Fadeley v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

JOHN LEONARD FADELEY,

Plaintiff,

v. CIVIL CASE NO: 1:17-CV-129

(Judge Kleeh)

ANDREW M. SAUL1, Commissioner

of Social Security Administration,

Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 83],

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 75],

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

[DKT. NO. 79] OVERRULING PLAINTIFF’S OBJECTIONS

[DKT. NO. 85], AND DISMISSING THE CASE

Pending with the Court is the Report and Recommendation

(“R&R”) issued by Magistrate Judge James P. Mazzone on September

19, 2019 [Dkt. No. 83] recommending that Defendant’s motion for

summary judgment be granted. Plaintiff, John Leonard Fadeley

(“Fadeley” or “Plaintiff”), proceeding pro se2, brought this action

pursuant to Section 205(g) of the Social Security Act, as amended

1 On June 17, 2019, Andrew M. Saul became the Commissioner of

Social Security. Pursuant to Fed. R. Civ. P. 25(d), he is

automatically substituted for Defendant Nancy A. Berryhill, who

was the Acting Commissioner of Social Security when this action

was filed.

2 A non-lawyer representative, Fadeley’s brother-in-law David Tabb,

assisted Plaintiff with his SSA application, the review process,

and this matter [Dkt. No. 83 at 2].

(42 U.S.C. § 405(g)), to obtain judicial review of a final decision

of the Commissioner of Social Security denying his claim for

Disability Insurance Benefits (“DIB”) under the Social Security

Act (“SSA”)3 [Dkt. Nos. 1, 1-1].

I. BACKGROUND/PROCEDURAL HISTORY

Along with his July 24, 2017, Complaint [Dkt. Nos. 1, 1-1],

Plaintiff filed an application to proceed in forma pauperis [Dkt.

No. 2], which was granted by the magistrate judge on July 31, 2017

[Dkt. No. 4]. Plaintiff was provided written Notice of the General

Guidelines for Appearing Pro Se in Federal Court [Dkt. No. 3], and

a summons was issued to the Commissioner of the Social Security

Administration (“Defendant” or “Commissioner”) [Dkt. No. 5].

This case was referred to the United States Magistrate Judge

for submission of proposed findings of fact and recommendation for

disposition under 28 U.S.C. § 636(b)(1)(B). The Commissioner filed

a motion to dismiss because Plaintiff’s Complaint was filed more

than sixty (60) days after the Appeals Council denial of review

[Dkt. No. 17]. The motion was considered by the Magistrate Judge

at an evidentiary hearing and denied [Dkt. Nos. 36, 48]. The

3 The Appeals Council denied Plaintiff’s request for review on May

15, 2017, and sent Plaintiff notice of the action [Dkt. No. 61-2

at 2]. The Appeals Council notes that Plaintiff submitted eight

pages of additional evidence but that it was not considered because

it did not show a reasonable probability that it would change the

outcome of the decision [Id. at 3].

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Commissioner filed an Answer to Plaintiff’s Complaint on March 5,

2019, together with a copy of the Social Security Administrative

Record [Dkt. Nos. 60, 61]. On May 6, 2019, Defendant filed a

motion for summary judgment [Dkt. No. 75] with supporting

memorandum. On May 17, 2019, pro se Plaintiff filed a response in

opposition to the motion for summary judgment [Dkt. No. 79] which

was treated by the Magistrate Judge as a motion for summary

judgment [Dkt. No. 83 at n.1].

On September 19, 2019, after consideration of the motions,

the Magistrate Judge entered a report recommending that

Defendant’s motion for summary judgment be granted and that

Fadeley’s motion for summary judgment be denied [Dkt. No. 83]. A

copy of the R&R was received by Plaintiff on September 24, 2019

[Dkt. No. 84]. The R&R stated that “[a]ny party who appears pro

se and any counsel of record, as applicable, may, within fourteen

(14) days after being served with a copy of this Report and

Recommendation, file with the Clerk of the Court written objections

identifying the portions of the Report and Recommendation to which

objection is made, and the basis for such objection” [Dkt. No. 83,

10]. It further warned that a failure to timely file objections

to the R&R will result in waiver of the right to appeal [Id.].

Fadeley filed an application for DIB on August 12, 2014,

alleging disability beginning on November 19, 2010 [Dkt. No. 83,

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2; Dkt. No. 61-6, 2-5]. Plaintiff claimed he was rendered disabled

under the SSA due to an inability to walk and cirrhosis of the

liver [Id.; Dkt. No. 61-7, 4-5]. The application was denied

initially on November 7, 2014, and upon reconsideration on or about

March 2, 2015 [Id.; Dkt. No. 61-4, 12-16, 20-22]. An

administrative law hearing was held on January 10, 2017, during

which Plaintiff and his non-lawyer representative, David Tabb,

appeared before the Administrative Law Judge (“ALJ”) [Id.; Dkt.

No. 61-2, 34-54]. On February 13, 2017, the ALJ entered a decision

finding that Plaintiff had not been under a disability at any time

from November 19, 2010, the alleged disability onset date, through

June 30, 2013, the date last insured [Id.; Dkt. No. 61-2, 13-20].

As set forth in the R&R, the ALJ found that Plaintiff was

last insured on June 30, 2013, and that he did not engage in

substantial gainful activity from the onset date of November 19,

2010, through his last insured date of June 30, 2013 [Dkt. No. 83,

4]. For that period, there were no medical signs or laboratory

findings to substantiate the existence of a medically determinable

impairment [Id.]. Ultimately, the ALJ concluded that Plaintiff

was not under a disability as defined by the SSA at any time from

November 19, 2010, through June 30, 2013 [Id.].

Plaintiff asked the Appeals Council to review the ALJ’s

decision, and submitted eight pages of medical records that pre-

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dated June 30, 2013 [Dkt. No. 76, 2; Dkt. No. 60-2, 2-3 and 26-

32]. The records reflect mild arthritis in Plaintiff’s hip and

knee, mild complaints of pain, and a generally normal physical

examination [Id.]. The Appeals Council determined that the

additional evidence did not show a reasonable probability that it

would change the decision, and declined Fadeley’s request for

review [Id.].

II. APPLICABLE LAW

A. Review of the R&R

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court is required

to make a de novo review of those portions of the R&R to which

objection is timely made. However, a failure to file objections

permits the district court to review the R&R under the standard

that it believes to be appropriate, and if parties do not object

to an issue, the parties’ right to de novo review is waived. See

Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979). Additionally,

if the Plaintiff’s objections simply “reiterate[] the same

arguments made by the objecting party in [her] original papers

submitted to the magistrate judge … the Court subjects that portion

of the report-recommendation challenged by those arguments to only

a clear error review.” Taylor v. Astrue, 32 F. Supp. 3d. 253, 260

(N.D.N.Y. 2012); See 28 U.S.C. § 636(b)(1)(A) (for those findings

to which objections were not filed, the findings and recommendation

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will be upheld unless they are clearly erroneous or contrary to

law). Therefore, the Court will conduct a de novo review of those

portions of the R&R to which a party makes new objections and will

review the remaining portions of the R&R for clear error.

B. Review of the ALJ’s Decision

The Social Security Act limits this Court’s review of a final

decision of the Commissioner to: (1) whether substantial evidence

supports the Commissioner’s decision, and (2) whether the

Commissioner applied the correct legal standards. See Richardson

v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d

1453, 1456 (4th Cir. 1990). “Substantial evidence” is not a “large

or considerable amount of evidence,” but rather, “such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.” Pierce v. Underwood, 487 U.S. 552, 664-65

(1988)(internal citations and quotations omitted); Perales, 402

U.S. at 401 (citations omitted). The decision before the Court is

“not whether the Claimant is disabled, but whether the ALJ’s

finding of no disability is supported by substantial evidence.”

Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)(internal

citations and quotations omitted). The ALJ’s decision must be

upheld if it is supported by “substantial evidence.” 42 U.S.C. §§

405(g), 1383(c)(3).

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Further, a reviewing court must not re-weigh the evidence or

substitute its judgment for that of the Commissioner, so long as

that decision is supported by substantial evidence. Hays, 907

F.2d at 1456. Ultimately, it is the duty of the ALJ reviewing a

case, not the responsibility of the Court, to make findings of

fact and to resolve conflicts in the evidence. King v. Califano,

599 F.2d 597, 599 (4th Cir. 1979)(“This Court does not find facts

or try the case de novo when reviewing disability

determinations.”). See Seacrist v. Weinberger, 538 F.2d 1054,

1056-57 (4th Cir. 1976)(“We note that it is the responsibility of

the [Commissioner] and not the courts to reconcile inconsistencies

in the medical evidence, and that it is the claimant who bears the

risk of nonpersuasion.”).

C. Evaluation Process

To determine whether a claimant is disabled, the ALJ conducts

a five-step evaluation process. 20 C.F.R. § 404.1520(a)(4). If

the ALJ finds the claimant is not disabled at a certain step, the

ALJ does not proceed to the next step. Id.

At step one, the ALJ must determine whether the claimant is

engaging in substantial gainful activity. Next, the ALJ determines

whether the claimant has a severe impairment. Then, the ALJ

determines whether the claimant has a listed impairment (20 C.F.R.

Part 404, Subpart P, Appendix 1) and conducts a Residual Functional

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Capacity (“RFC”) assessment. At step four, the ALJ considers the

RFC assessment, age, education, and work experience to determine

whether the claimant can perform any other work. See Davidson v.

Astrue, Civil Action No. 2:11-CV-55, 2012 WL 667296, at *3 (N.D.

W. Va. Feb. 28, 2012)(citing 20 C.F.R. § 404.1520(a)(4)).

Here, under the five-step process, the ALJ found that Fadeley

was not disabled because he did not engage in substantial gainful

activity from the alleged onset date of November 19, 2010, through

his last insured date of June 30, 2013 [Dkt. No. 83, 4; Dkt. No.

61-2, 13-20].

III. DISCUSSION

In this matter, Magistrate Judge Mazzone found that the ALJ’s

decision is supported by substantial evidence [Dkt. No. 83, 6].

This Court agrees. The ALJ was forthright with Plaintiff during

the January 10, 2017, administrative law hearing when he explained

that non-medical testimony of people familiar with Plaintiff

without medical evidence of his conditions could not support a

decision for DIB [Dkt. No. 61-2, 51-53]. The ALJ’s decision

likewise states that a medically determinable physical or medical

impairment must be established by medical evidence, and that under

no circumstances may evidence of impairment be established on the

basis of symptoms alone in the absence of objective medical

abnormalities [Dkt. No. 61-2, 18-19].

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Moreover, the ALJ properly concluded that Plaintiff last met

the insured status requirements for the SSA on June 30, 2013 [Dkt.

No. 61-2, 18], a finding challenged by Fadeley. The DIB program

provides for payment of benefits to a person who is “insured” by

virtue of tax on their earnings.4 20 C.F.R. §§§ 404.110, 404.130,

404.315. The evidence presented to the ALJ substantially supports

the conclusion that Fadeley did not engage in substantial gainful

activity through his last insured date of June 30, 2013, because

he showed no earnings after 2010 [Dkt. No. 61-6, 7-12].

As noted in the R&R, “[t]o qualify for DIB [a plaintiff] must

prove that [he or she] became disabled prior to the expiration of

[his or her] insured status.” Johnson, 434 F.3d at 655-56

(citations omitted); See 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20

C.F.R. §§ 303.101(a), 404.131(a). The Court agrees with the

Magistrate Judge’s conclusion – Plaintiff failed to provide that

he became disabled prior to his last insured date of June 30, 2013,

and the ALJ’s decision and the decision of the Appeals Council

4 SSA rules for determining the Date Last Insured (“DLI”) in certain

cases where the alleged disability is not caused by a traumatic

event are complex and need not be analyzed here. The DLI is based

on the earnings record and may require manual calculation. See

SSA Program Operations Manual System (“POMS”), RS 00301.148 Date

Last Insured; RS 00301.120 DIB Insured Status. While Plaintiff

argues that the June 30, 2013, DLI was not explained to him during

the benefit review process, Fadeley’s earnings record is not in

dispute.

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should be affirmed. Although Plaintiff attempted to submit

additional records to the Appeals Council that pre-date June 30,

2013, the records are limited and do not reflect a disabling

condition that would support DIB. They do not support a finding

that Plaintiff was unable to work in any job in the national

economy prior to June 30, 2013, and were properly excluded from

consideration by the Appeals Council [Dkt. No. 83 at 10].

The Plaintiff’s objections to the R&R [Dkt. No. 85], filed on

October 9, 2019, do nothing more than reiterate his prior arguments

in submissions to the Court. He offers nothing new to dispute the

June 30, 2013, date last insured, as he had no earnings after 2010,

and incorrectly states that the Magistrate Judge failed to address

the substance of the additional records sent to the Appeals Council

[Id. at 2]. The R&R analyzed the supplemental records and

determined that they do not support Plaintiff’s contention that he

was disabled pursuant to the SSA prior to June 30, 2013 [Dkt. No.

83, 8-12]. The Court agrees. Plaintiff’s objections are without

merit.

IV. CONCLUSION

Accordingly, for the reasons stated herein and because the

final decision of the Commissioner is supported by substantial

evidence, the Court:

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1) ADOPTS the Magistrate Judge’s Report and Recommendation

[Dkt. No. 83] in its entirety;

2) GRANTS the Defendant’s Motion for Summary Judgment [Dkt.

No. 75];

3) DENIES Plaintiff’s response brief or Motion for Summary

Judgment [Dkt. No. 79];

4) OVERRULES Plaintiff’s Objection to the Report and

Recommendations [Dkt. No. 85];

5) DISMISSES this matter; and

6) DIRECTS the Clerk to enter a separate judgment order in

favor of Defendant Commissioner and to STRIKE this matter

from the Court’s docket.

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this Order

to counsel of record, and to the pro se Plaintiff, via Certified

Mail, return receipt requested, at his last known address as

reflected on the docket.

DATED: March 31, 2020

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE

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