The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PRECIOUS SHAVON SCOTT,
Plaintiff,
v. Civil Action No. 5:18CV158
(STAMP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I. Background
The 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.
In the 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. Id.
The 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.
The 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
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Order Of Appeals Council Exhibit No. B5A R# 4 of 6 . . . [w]hich
[the] ALJ [ ] did not do." Id. at 7.
The 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.
In 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 return. Id.
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Second, 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.
Third, 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
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put forth any evidence that she requested assistance and that the
agency did not answer her need for assistance. Id. at 16.
Fourth, 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.
Fifth, 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.
Sixth, 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
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reasons do not determine whether the agency performed its duty in
developing the record. Id. at 20.
Seventh, the Commissioner asserts that substantial evidence
supports the period of non-disability. Id. at 20-22.
United States Magistrate Judge Michael John Aloi issued a
report and recommendation recommending that the defendant's motion
for summary judgment be granted in full, the plaintiff's motion for
summary judgment be denied, the ruling of the Commissioner be
affirmed, and that this civil action be dismissed with prejudice.
ECF No. 65 at 57. Neither party filed objections.1
For the reasons discussed below, the report and recommendation
of the magistrate judge is AFFIRMED and ADOPTED in its entirety.
II. Applicable Law
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a de novo review of any portion of a 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.
III. Discussion
As the United States Court of Appeals for the Fourth Circuit
has held: “Under the Social Security Act, [a reviewing court] must
1This Court notes that the plaintiff received the magistrate
judge’s report and recommendation by certified mail and that she
accepted service on August 1, 2019. See ECF No. 66.
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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 F. App’x 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. 364, 395.
After reviewing the record and the parties’ filings, this
Court finds that because the parties did not file any objections to
the report and recommendation, the magistrate judge’s findings and
recommendations will be upheld unless they are “clearly erroneous
or contrary to law.” 28 U.S.C. § 636(b)(1)(A). After reviewing
the record before this Court, no clearly erroneous findings exist
concerning the magistrate judge’s report and recommendation.
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In making his recommendations, the magistrate judge correctly
found that the ALJ considered the plaintiff's testimony, medical
notes, and non-medical statements that were provided in the record.
Id. at 42-43. The magistrate judge properly noted that the ALJ gave
little weight to the State agency medical examiners who determined
that there was no severe physical impairment, and completely
discounted the medical opinions and evaluations of certain
examiners who found that the plaintiff's mental disorders were not
severe and those who did not determine that the plaintiff had a
physical impairment. Id. at 43. The magistrate judge further
correctly noted that the ALJ did not find that the plaintiff's
statements concerning the intensity, persistence, and limiting
effects of her symptoms to be entirely consistent with the medical
evidence and other evidence in the record. Id. The magistrate judge
properly found that the ALJ obtained supplemental testimony when
necessary, that the ALJ adequately and thoroughly discussed the
plaintiff's testimony and conclusion, considered all of the medical
records, and redetermined her RTC in consideration of new medical
records. Id. at 43-47. Therefore, the magistrate judge properly
concluded that the ALJ complied with the requirements of the Remand
Order, that the ALJ's decision was based on substantial evidence,
and that the plaintiff did not demonstrate that the determination
was not based on substantial evidence. Id. at 47.
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The magistrate judge also correctly found that the plaintiff
was properly informed by the ALJ of her ability to be represented
by counsel, and that the ALJ informed the plaintiff that she could
postpone a hearing to discuss her case with counsel. Id. at 48-50.
Moreover, the magistrate judge correctly determined that the
plaintiff was adequately represented by counsel when she did obtain
counsel. Id. at 50-51.
Moreover, the magistrate judge properly addressed whether the
ALJ adequately developed the record. Id. at 51. Specifically, the
magistrate judge correctly found that the ALJ reviewed background
information, inquired into the plaintiff's abilities to perform
everyday tasks, inquired into her medications and ailments
associated with her diagnoses, questioned her about doctor visits,
and questioned her about missing redetermination evaluation
appointments. Id. at 52-53. The magistrate judge properly noted
that various medical records were obtained and made part of the
Record, that the ALJ thoroughly questioned the plaintiff and sought
out missing medical records, and sent the plaintiff to a
reevaluation appointment. Id. at 54. Ultimately, this Court finds
that the magistrate judge properly determined that the ALJ
adequately developed the record. Id. at 55.
Lastly, the magistrate judge correctly found that the
plaintiff failed to attend the redetermination and that this
triggered the cancellation of her benefits. Id. at 56. Moreover,
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the magistrate judge properly stated that the plaintiff's failure
to show up for appointments was the reason the redetermination took
so long. Id. Lastly, the magistrate judge correctly concluded that
the plaintiff was not prejudiced by a later determination and that
her claim that the agency did not comply with regulations to
redetermine a claimant two months prior to his or her 18th birthday
is not supported by the regulations nor is substantiated by the
facts in this case. Id. at 56-57.
After 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. This Court
finds no clear error in any of the above determinations of the
magistrate judge and thus upholds his rulings. Therefore, the
report and recommendation of the magistrate judge is AFFIRMED and
ADOPTED in its entirety.
IV. Conclusion
For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 65) is AFFIRMED and ADOPTED.
Therefore, the defendant’s motion for summary judgment (ECF No. 58)
is GRANTED, the plaintiff’s motion for summary judgment (ECF
No. 35) is DENIED, and the Commissioner’s decision is AFFIRMED. It
is ORDERED that this civil action be DISMISSED WITH PREJUDICE and
STRICKEN from the active docket of this Court.
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Finally, this Court finds that the parties were properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights. ECF No. 22 at 17-18. Because both
parties failed to object, both the defendant and the plaintiff have
waived the right to seek appellate review of this matter. See
Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir. 1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the plaintiff by certified mail and to counsel
of record herein. Pursuant to Federal Rule of Civil Procedure 58,
the Clerk is DIRECTED to enter judgment on this matter.
DATED: August 20, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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