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Grant v. Berryhill

United States District Court, S.D. West Virginia, Huntington Division

March 22, 2019

JOSHUA LEE GRANT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.

         Plaintiff Joshua Grant filed this action seeking review of the Commissioner's Final Decision denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. Compl., pp. 1-2, ECF No. 2. By standing order, this action was referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for Proposed Findings and Recommendations (“PF&R”). Standing Order, p. 2, ECF No. 4. In his PF&R issued on August 24, 2018, Magistrate Judge Aboulhosn recommends this Court grant judgment on the pleadings in favor of Plaintiff, reverse the Final Decision of the Commissioner, remand these matters for further proceedings, and dismiss this case. PF&R, pp. 1-2, ECF No. 18. Defendant Nancy Berryhill filed objections to the PF&R on September 6, 2018. Def.'s Objs. to PF&R, ECF No. 19.

         As explained below, the Court DENIES Defendant's objections (ECF No. 19), ADOPTS Magistrate Judge Aboulhosn's PF&R (ECF No. 18), DENIES Defendant's Motion for Judgment on the Pleadings (ECF No. 16), GRANTS Plaintiff's Motion for Judgment on the Pleadings to the extent he requests remand (ECF No. 12), REVERSES the Commissioner's Final Decision, REMANDS this matter for further proceedings, and DISMISSES this case from the docket.

         I. BACKGROUND

         Plaintiff protectively filed an application for Title XVI benefits on August 14, 2014, alleging disability beginning on January 1, 2014, due to “depressive order, asthma, and mild mental retardation.” Transcript, p. 210, ECF Nos. 9-1-9-14. Plaintiff's claim was denied initially on December 5, 2014, and again on February 26, 2015. Id. at 112-16, 120-22. An administrative hearing reviewing these denials was held on March 15, 2017 with Administrative Law Judge (“ALJ”) Melinda Wells. Id. at 70-89.

         On March 30, 2017, the ALJ entered an unfavorable decision. Id. at 17-33. In her decision, the ALJ made specific findings of Plaintiff's Residual Functional Capacity (“RFC”) and his ability to handle social interactions, stating he can “occasionally interact with supervisors and co-workers.” Transcript, at 24. The ALJ also made findings as to Plaintiff's training requirements for new work, determining Plaintiff “requires hands on demonstration of tasks and repetition of instructions throughout the first one to two days on a new job.” Id. (emphasis added). According to the Vocational Expert (“VE”), Anthony T. Michael, Jr., this type of training requirement was a basis for his testimony about the types of jobs available to Plaintiff. Id. at 86. When asked by Plaintiff's counsel, the VE testified that a situation where Plaintiff requires weekly training would raise his need to the level of “accommodated work or special supervision.” Id. at 88.

         On May 26, 2017, Plaintiff sought review by the Appeals Council of the ALJ's unfavorable decision. Id. at 269-70. On February 6, 2018, the Appeals Council denied Plaintiff's Request for Review, resulting in a final decision of the Commissioner. Id. at 1-7. Thereafter, Plaintiff filed the Complaint with this Court on March 26, 2018, objecting to the final decision of the Commissioner. Compl., ¶ 6. Plaintiff then moved for Judgment on the Pleadings, arguing the ALJ failed to properly consider Plaintiff's intellectual impairment under Listing 12.05B at step three of the five-step analysis.[1] Pl.'s Mem. Supp. J. on Pleadings, p. 7, ECF No. 15. As part of his argument, Plaintiff again raised the issue of the ALJ's finding that Plaintiff would only “require hands-on demonstration of tasks and repetition of instructions throughout the first one to two days on a new job[.]” Id. at 15. Plaintiff then points to the testimony of Dr. Corbett Alderman, who stated that Plaintiff would require “regular supervision and positive reinforcement.” Id.

         In his PF&R, Magistrate Judge Aboulhosn finds the ALJ appropriately considered Plaintiff's mental impairments at step three under Listing 12.11, rather than 12.05B.[2] PF&R, at 25-26. However, the magistrate judge subsequently examined the issue of Plaintiff's training requirements and finds the ALJ's decision on this matter was not supported by substantial evidence at step five. Id. at 29. Defendant filed her objections to the PF&R on September 6, 2018.

         II. STANDARD OF REVIEW

         This Court must “make a de novo determination of those portions of the . . . [Magistrate Judge's] proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The scope of this Court's review of the Commissioner's decision, however, is narrow: this Court must uphold the Commissioner's factual findings “if they are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” is defined as “consist[ing] of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In reviewing the case for substantial evidence, the Court does not re-weigh conflicting evidence, make determinations as to credibility, or substitute its own judgment for that of the Commissioner. Id. If there is conflicting evidence and reasonable minds could differ as to whether a claimant is disabled, it is the Commissioner or his designate, the ALJ, who makes the decision. Craig, 76 F.3d at 589 (citation omitted). The Court must also address whether the ALJ analyzed all relevant evidence and sufficiently explained the rationale in crediting or discrediting evidence. Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998).

         III. DISCUSSION

         Defendant objects to the PF&R, alleging Magistrate Judge Aboulhosn's findings err on procedural grounds and as a matter of law. Def.'s Objs. to PF&R, at 1, 4. Defendant clarifies this in two points. First, Defendant alleges Magistrate Judge Aboulhosn improperly raised an issue sua sponte, which should be deemed as waived, and denied Defendant proper notice to address the merits of this issue. Id. at 1. Second, Defendant alleges Magistrate Judge Aboulhosn improperly weighed evidence and overlooked the Commissioner's determinations when finding that the RFC was not supported by substantial evidence. Id. at 4. The Court addresses each objection in turn.

         A. Waiver and Notice

         In his Memorandum in Support of Judgment on the Pleadings, Plaintiff made one primary argument. He claimed the ALJ failed to evaluate Plaintiff's intellectual impairment under Listing 12.05B at step three. Pl.'s Mem. Supp. J. on Pleadings, at 1. Magistrate Judge Aboulhosn rejects this argument, but alternatively finds the RFC at step five was not supported by substantial evidence to support the limitation that Plaintiff “requires hand on demonstration of tasks and repetition of instructions throughout the first one or two days on a new job[, ]” and recommends remand. PF&R, at 29 (emphasis added). PF&R, at 29. Defendant contends that because Plaintiff did not specifically raise this issue before the magistrate judge, it is waived. Def.&#3 ...


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