Opinion

Scott v. Commissioner of Social Security

Court
District Court, N.D. West Virginia
Filed
Aug 20, 2019
Cited by
0 cases
Authority
More cited than 32.7%

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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