United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr.Senior United States District Judge.
are the objections to the magistrate judge's Proposed
Findings and Recommendation (“PF&R”), filed
by the plaintiff, Ezekiel Lee Midkiff
(“Claimant”), on December 27, 2018.
February 22, 2018, Claimant instituted this civil action
pursuant to 42 U.S.C. § 405(g). Claimant seeks judicial
review of defendant Nancy A. Berryhill's
(“Commissioner”) administrative decision, which
denied his application for disability insurance benefits and
supplemental security income.
action was referred to United States Magistrate Judge Cheryl
A. Eifert for consideration in accordance with 28 U.S.C.
§ 636(b)(1)(B) and the standing order in this district.
Claimant and the Commissioner have filed cross motions for
judgment on the pleadings.
asserts that the ALJ abused her discretion by refusing to
consider a July 2017 medical opinion from Claimant's
psychiatrist, Dr. Casdorph, that was not filed until one day
before Claimant's administrative hearing. The ALJ found
that the Claimant had failed to comply with the Five-Day
Rule. Pl.'s Mem. in Supp. J. on the Plead.
1. The Claimant argues that an exception to the rule applied
because there was a “reasonable possibility” this
evidence would “affect the outcome of the claim”
and was not sooner presented because of an “unavoidable
circumstance” beyond Claimant's control.
Id. at 5; 20 C.F.R. §
magistrate judge filed her PF&R on December 20, 2018 and
found that: “the ALJ's rejection of Dr.
Casdorph's July 2017 opinion on the basis” that an
exception did not apply “was a correct application of
the law and supported by substantial evidence, ”
concluding that “Claimant did not establish good
cause” for an exception under 20 C.F.R. §
404.935(b)(3). Consequently, “the Appeals Council was
not required to review the new evidence and determine whether
it established a basis to remand the decision to the
ALJ.” PF&R 25, 33, 35-36. Furthermore, “the
ALJ properly considered and weighed the evidence from
Claimant's treating psychiatrist, Dr. Casdorph.”
The magistrate judge recommends that the plaintiff's
request for judgment on the pleadings be denied, that the
Commissioner's request to affirm the decision of the
Commissioner be granted, and that this action be dismissed.
advances three objections. First, he challenges the
magistrate judge's determination that Claimant's
failure to comply with the Five-Day Rule warranted the
ALJ's rejection of Dr. Casdorph's July 2017 medical
opinion (“July 2017 opinion”). See
Claimant's Objections to PF&R (“Obj.”) 2.
Second, he supports that same objection by objecting to the
magistrate judge's reliance upon Freeman v.
Colvin, 2015 WL 4041733 at *1 (D. Me. July 1, 2015),
arguing it was inapplicable. Third, he objects to the
magistrate judge's so-called “post hoc
analysis” in “weigh[ing] and reject[ing] Dr.
Casdorph's 2017 medical opinion as probative.”
Id. at 3, 5. The Commissioner filed a response on
January 2, 2019, contending that Claimant's objections
should be denied because they “reargue the very same
issues raised by [Claimant] in h[is] initial brief” and
because Claimant “has not identified any credible legal
errors” in the magistrate judge's PF&R.
party has objected to the magistrate judge's recitation
of the standards for (1) reviewing the Commissioner's
final decision, or (2) the sequential evaluation process.
Those same two components of the PF&R, see PF&R 3-5,
are deemed to apply on review before the undersigned.
Claimant specifically objects to the fact that the ALJ
“never explained what, if any, exceptions” to the
Five-Day Rule were considered, even though, according to
Claimant, the “regulations clearly impose a duty of
explanation on the ALJ in cases where good cause” under
the 20 C.F.R. § 404.935(b)(3) exception “is found
not to exist.” Obj. 2. Claimant asserts it was an
unavoidable circumstance that the July 2017 opinion did not
exist until two days before his administrative hearing and
argues that the ALJ should have explained why such an
exception would not have applied. See Pl.'s Mem. in Supp.
J. on the Plead. 6; Obj. 2.
support of this proposition, Claimant cites See v.
Washington Metropolitan Transit Auth., 36 F.3d 375, 384
(4th Cir. 1994), and “81 Fed. Reg. 90988 (Dec. 16,
2016), ” but appears to have intended to cite 81 FR
90987-01 (Dec. 16, 2016). However, 81 FR 909807-01 and
See are entirely devoid of such an imposition. The
magistrate judge thoroughly explained the inadequacy of
Claimant's proffered excuse that it was impossible to
furnish the July 2017 opinion timely because it did not exist
more than five days before the hearing. It was, however, the
Claimant's responsibility to provide the evidence on time
or demonstrate an exceptional reason why the Claimant failed
to get it timely, including whether he actively and
diligently sought the late-filed evidence. See
PF&R 23-25. This objection is deemed to be without merit.
Claimant pursues the same objection by taking exception to
the magistrate judge's “appli[cation]” by
analogy to Freeman v. Colvin, 2015 WL 4041733, at *1
(D. Me. July 1, 2015), inasmuch as Claimant asserts that
there is a “key difference” between
Freeman and the present case. Obj. 3. He explains
that in Freeman, the untimely medical opinion
existed, but was not discovered or submitted in a timely
fashion, whereas here, the July 2017 opinion “could not
have been discovered, obtained, and submitted to the Court
more than five days prior to the administrative hearing
because it did not exist until July 24, 2017, and the hearing
took place on July 26, 2017.” Obj. 3.
arguing this point, Claimant essentially sets forth the same
argument raised in his brief, namely, that (1) the
“unusual, unexpected, or unavoidable
circumstance” exception under 20 C.F.R. §
404.935(b)(3) should apply because the July 2017 opinion did
not exist until two days before the hearing, and, (2)
according to Claimant, he thus could not have complied with
the Five-Day Rule. Claimant further asserts that, inasmuch as
the ALJ was “notified in writing that Dr. ...