United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
plaintiff, Kenneth Allen Westfall, by counsel, seeks judicial
review of the above-named defendant's decision to deny
his claims for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
and Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act following the decision
of Administrative Law Judge (“ALJ”) Sabrina M.
Tilley that plaintiff was not disabled within the meaning of
the Social Security Act. Plaintiff maintains that the
following medical conditions render him disabled pursuant to
the Social Security Act: bilateral carpal tunnel syndrome,
chest pains, lower back and hand pain, restless leg syndrome,
torn ligaments and cartilage in the left knee, migraines,
anxiety and depression. ECF No. 13-1 at 2.
plaintiff applied for DIB and SSI in June 2014, alleging
disability beginning August 25, 2013. His claim was denied
initially and again upon reconsideration. The plaintiff then
filed a written request for a hearing, and a video hearing
was held before the ALJ. On March 28, 2017, the ALJ entered a
decision finding plaintiff had not been under a disability at
any time since his alleged onset date of August 25, 2013. In
the decision, the ALJ noted plaintiff's first request for
subpoena (dated January 25, 2017) and summarily denied the
same as being deficient. The ALJ did not address
plaintiff's revised subpoena request of February 14,
April 20, 2018, plaintiff timely filed his complaint,
objecting to the final decision of the Commissioner and
seeking remand and reversal of the ALJ's adverse
decision. ECF No. 1. Defendant filed an answer on June 28,
2018. ECF No. 6. A copy of the Social Security Administrative
Record was filed contemporaneously with defendant's
answer. ECF No. 7. On September 4, 2018, plaintiff filed his
motion for summary judgment and memorandum in support. ECF
No. 13. Defendant filed a motion for summary judgment and
memorandum in support on September 11, 2018. ECF No. 15.
States Magistrate Judge James P. Mazzone then entered his
report and recommendation, to which neither party filed
objections. ECF No. 19. The magistrate judge recommended that
this matter be remanded to the ALJ for further proceedings.
ECF No. 19 at 10.
reasons discussed below, the report and recommendation of the
magistrate judge (ECF No. 19) is AFFIRMED and ADOPTED.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
As to those portions of a recommendation to which no
objection is made, a magistrate judge's findings and
recommendation will be upheld unless they are clearly
erroneous. Because neither party filed objections, this Court
will review the magistrate judge's findings and
recommendations under the clearly erroneous standard. 28
U.S.C. § 636(b)(1)(A).
United States Court of Appeals for the Fourth Circuit has
held: “Under the Social Security Act, [a reviewing
court] must uphold the factual findings of the Secretary 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 such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. A reviewing court “does
not reweigh evidence or make credibility determinations in
evaluating whether a decision is supported by substantial
evidence; ‘[w]here conflicting evidence allows
reasonable minds to differ,' we defer to the
Commissioner's decision.” Thompson v.
Astrue, 442 Fed.Appx. 804, 805 (4th Cir. 2011) (quoting
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)). Further, as the Supreme Court of the United States
stated in United States v. United States Gypsum Co.,
“a finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” 333 U.S.
making his recommendations, the magistrate judge correctly
acknowledging the discretionary nature of the ALJ's
decision to issue a subpoena, and nevertheless correctly
concluded that the ALJ erred when she failed to make findings
relative to plaintiff's February 14, 2017, revised
request for a subpoena directed to Westbrook Health Services.
ECF No. 19 at 9. Further the magitsrate judge properly found
that “[t]he ALJ's failure to address the second,
revised subpoena request is somewhat confounding because the
ALJ relied upon the initial intake record from Westbrook
Health Services to support her finding that Plaintiff was not
under a disability at any time relevant to the
proceedings.” Id. The magistrate judge further
noted that “[s]uch reliance demonstrates that
Plaintiff's treatment with Westbrook Health Services is
an important piece of Plaintiff's case, however, the ALJ
failed to address the second, revised subpoena which
requested the treatment record from Westbrook Health
Services.” Id. Utimately, the magistrate judge
concluded that “[w]hile the ALJ's apparent failure
to consider the second, revised request for subpoena is
problematic, the undersigned does not believe that a
conclusion such as the one Plaintiff urges can be made at
this time without an explanation as to why the ALJ did not
consider the second, revised subpoena request for records
from Westbrook Health Services, ” and “that a
finding as to whether and to what extent Plaintiff was
prejudiced as result of the ALJ's failure to consider the
second, revised subpoena request, cannot be made on the
record as it stands currently.” Id. at 10.
Thus, the magistrate judge recommended that “this
matter be remanded to the ALJ for findings as to why the
second, revised request for subpoena to Westbrook Health
Services was not considered.” Id.
reviewing the record and the parties' filings, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” as to the findings of the
magistrate judge. United States Gypsum Co., 333 U.S.
at 395. Therefore, ...