United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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. 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.”
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. 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.
STANDARD OF REVIEW
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).
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
Waiver and Notice
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.