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, Precious Shavon Scott, filed a complaint against
the Commissioner of Social Security seeking review of a
decision denying her claims for supplemental security income
benefits. ECF No. ECF No. 1-1 at 1-2. Both the plaintiff and
the defendant filed a motion for summary judgment. ECF Nos.
35 and 58.
plaintiff's brief, the plaintiff first contends that she
was disabled and that when she went to the Social Security
Administration office in Arizona, she was informed that her
case was closed because she was no longer disabled. ECF No.
35 at 2. She states that she had just been diagnosed with
secondary progressive multiple sclerosis, suffers from a
variety of medical issues, and is now more disabled than she
was when she was first approved for benefits. Id. at
2, 4. She further contends that she was advised each month to
sign a "waiver" indicating that she was appealing
the agency's decision to terminate her benefits and that
she wants to continue receiving benefits until a final
decision is made. Id. The plaintiff states that she
eventually stopped receiving any benefits without warning.
plaintiff next asserts that the administrative law judge
("ALJ") did not correctly account for the dates in
question. Id. The plaintiff then "objects and
prays the court will make her aware of the non-specific State
Agency that found her no longer disable. By providing the
full medical report. Neither before nor after turning 18 was
the Plaintiff redetermined." Id. Plaintiff also
contends that the residual functional capacity assessment was
not completed, and that the doctors who evaluated her did not
take "this matter, seriously enough to obtain adequate
medical records or to sign the forms they completed."
Id. The plaintiff also "objects to the
treatment received at the Local SSA office in Tucson,
AZ." Id. The plaintiff further states that she
attempted to seek help for her medical conditions, but her
insurance would not provide the necessary coverage.
Id. at 4.
plaintiff states that her attorney was not diligent and did
not remain informed of the details of her case. Id.
The plaintiff also contends that "[i]t was [the
ALJ's] responsibility to obtain emergency room records
and or subpoena the doctors, friends and the Plaintiff's
family members in effort to satisfy the guidelines set forth
by Appeals Council, Mark K. Haydu. In the Order Of Appeals
Council Exhibit No. B5A R# 4 of 6 . . . [w]hich [the] ALJ [ ]
did not do." Id. at 7.
plaintiff then presents a "proposed stipulation of
facts" and later proceeds in presenting her contentions.
Id. at 8-9. The plaintiff explains that there are
missing records and so the ALJ's determination was not
based on an accurate reflection of her conditions, that she
was not adequately represented, and that the doctors who
examined her were not properly informed of her conditions and
did not properly evaluate her conditions. Id. at
10-12. The plaintiff then concludes by requesting that the
Court obtain certain medical records, and for certain
"funds to be surrendered to the Plaintiff."
Id. at 12.
contrast, the Commissioner first contends that the ALJ
determined that the plaintiff was not engaged in substantial
gainful employment, and that she had the severe impairments
of depressive disorder, learning disorder, and multiple
sclerosis. ECF No. 59 at 7. However, the Commissioner states
that the plaintiff did not have an impairment or combination
of impairments that met or equaled the criteria of a listing
level impairment. Id. The Commissioner then notes
that the ALJ determined that the plaintiff had the residual
functional capacity ("RFC") to perform a range of
sedentary work, and that the ALJ also determined that the
plaintiff had no past relevant work to which she could
the Commissioner contends that the ALJ complied with the
instructions from the Appeals Council Remand Order to
consider new evidence submitted by the plaintiff as part of
her administrative appeal. Id. at 9. Specifically,
the Commissioner contends that the ALJ complied with the
order by: (1) evaluating all of the new and existing medical
opinion evidence and using it to establish the RFC; (2)
finding that the plaintiff had multiple sclerosis and
considering the symptoms associated with that diagnosis,
including whether the symptoms the plaintiff complained of
were corroborated by the treatment notes, and whether her
symptoms improved when she was treated and when she complied
with her medication regimen; (3) by obtaining vocational
expert testimony; (4) by holding a new hearing; and (5) and
by issuing a new decision. Id. at 9-14.
the Commissioner asserts that the ALJ adequately informed the
plaintiff of her right to counsel, notifying her that she
could postpone certain hearings in order to retain an
attorney, and stating that she may qualify for free legal
services and that the agency could provide attorney referral
numbers. Id. at 15. The Commissioner states that the
plaintiff elected to proceed with at times without an
attorney, and that the ALJ took various measures to ensure
development of the record. Id. at 15-16. The
Commissioner then states that the plaintiff blames the ALJ
for not obtaining certain medical records, but the plaintiff
is the one who failed to put forth any evidence that she
requested assistance and that the agency did not answer her
need for assistance. Id. at 16.
the Commissioner asserts that the plaintiff's potential
claim for ineffective assistance of counsel is misplaced
since nothing in the Social Security Act or Regulations
creates a cause of action against the agency for ineffective
assistance of counsel. Id. at 17.
the Commissioner contends that the agency performed the
redetermination in a timely manner, within one year of the
plaintiff turning 18 years old, pursuant to the regulations.
Id. Moreover, the Commissioner states that even if
the plaintiff could demonstrate some technical timing error,
she has failed to show any unfair prejudice stemming from
that error that prevented her from introducing evidence or
otherwise limited her claim. Id.
the Commissioner asserts that the ALJ adequately developed
the record by securing two consultative examinations.
Id. The Commissioner notes that although the
plaintiff claims that there are records in existence that are
not submitted to the agency, it is the plaintiff's burden
of production and not the ALJ's duty to gather evidence.
Id. The Commissioner also states that the plaintiff
was never prevented in entering evidence into the
administrative record. Id. at 19-20. Moreover, the
Commissioner maintains that although there may be hurdles in
obtaining care or securing a doctor relationship with a
preferred provider, those reasons do not determine whether
the agency performed its duty in developing the record.
Id. at 20.
the Commissioner asserts that substantial evidence supports