Farmer v. Kijakazi

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

KIPPY LEE FARMER,

Plaintiff,

v. CIVIL ACTION NO. 2:21-cv-00035

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

PROPOSED FINDINGS & RECOMMENDATION

Plaintiff Kippy Lee Farmer (“Claimant” or “Plaintiff”) seeks review of the final

decision of the Commissioner of Social Security (the “Commissioner”) denying his

application for disability insurance benefits, a period of disability, and supplemental

social-security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-

433, 1381-1383f. (ECF No. 1.) By standing order entered on January 4, 2016, and filed in

this case on January 15, 2021, this matter was referred to the undersigned United States

Magistrate Judge to consider the pleadings and evidence and to submit proposed findings

of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF

No. 3.) Presently pending before this Court are Claimant’s Brief in Support of Appeal

and Motion for Remand (ECF No. 14), and the Commissioner’s Brief in Support of

Defendant’s Decision (ECF No. 15).

Having fully considered the record and the arguments of the parties, the

undersigned respectfully RECOMMENDS that the presiding District Judge DENY

Claimant’s request to reverse the Commissioner’s decision (ECF No. 14), GRANT the

Commissioner’s request to affirm her decision (ECF No. 15), AFFIRM the final decision

of the Commissioner, and DISMISS this civil action from the Court’s docket.

I. BACKGROUND

A. Information about Claimant and Procedural History of Claim

Claimant was 32 years old at the time of his alleged disability onset date and 42

years old on the date of the decision by the Administrative Law Judge (“ALJ”). (Tr. 51.)1

The Claimant graduated from high school, where he participated in special education

classes and received average grades. (Tr. 38-39, 226, 414.) Most recently, he worked as

a Laborer at a sawmill for nine years until his alleged disability onset in 2010; he has also

been employed as a Water-Softener Installer, Grocery Clerk, and Stamping-Press

Operator. (Tr. 38, 102, 413.) Claimant alleges that he became disabled on September 1,

2010, due to “carpal tunnel; brain surgery on back of neck;” and “no balance.” (Tr. 52, 71,

88-91, 218-21.)

In February 2019, Claimant protectively filed an application for a period-of-

disability and disability-insurance benefits, as well as an application for supplemental-

security income. (Tr. 218-27.) His claim was initially denied on June 27, 2019, and again

upon reconsideration on September 20, 2019. (Tr. 86, 120.) Thereafter, on October 30,

2019, Claimant requested a hearing before an ALJ. (Tr. 169.) An administrative hearing

was held before ALJ Francine A. Serafin on April 16, 2020; the hearing was conducted

telephonically by agreement of the parties due to the Covid-19 pandemic. (Tr. 32-50.) On

May 19, 2020, the ALJ rendered an unfavorable decision. (Tr. 10-21.) Subsequently,

Claimant sought review of the ALJ’s decision by the Appeals Council; however, the

1 All references to “Tr.” refer to the Transcript of Proceedings filed in this action at ECF No. 5.

Council denied Claimant’s request for review on November 25, 2020, and the ALJ’s

decision then became the Commissioner’s final decision on that date. (Tr. 1-3, 214-16.)

Claimant timely brought the present action on January 14, 2021, seeking judicial

review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) The

Commissioner filed an Answer, along with a transcript of the administrative proceedings

(ECF Nos. 4, 5). Claimant subsequently filed, by counsel, his Brief in Support of Appeal

and Motion for Remand. (ECF No. 14.) In response, the Commissioner filed her Brief in

Support of Defendant’s Decision. (ECF No. 15.) As such, this matter is fully briefed and

ripe for resolution.

B. Relevant Evidence

The undersigned has considered all evidence of record, including the medical

evidence, pertaining to Claimant’s arguments and summarizes it here for the convenience

of the United States District Judge.

i. MEDICAL EVIDENCE

On July 28, 2008, Claimant presented to neurosurgeon David L. Weinsweig, M.D.,

with complaints of headaches, neck pain, and some pain in his thoracolumbar region–all

occurring over the previous six months to a year. (Tr. 337.) Dr. Weinsweig noted

Claimant’s medical history of brain surgery and “complete craniospinal neuraxial

radiation” treatment to remove medulloblastoma, a cancerous tumor, with which he was

diagnosed at the age of four. Id. Claimant denied any coordination problems or problems

with his arms and legs, leading Dr. Weinsweig to note that “overall, he has done

remarkably well” following his childhood cancer treatment. (Tr. 337; 423). Dr.

Weinsweig also noted Claimant’s past surgical history of bilateral carpal tunnel releases

in 2003. (Tr. 337; see also Tr. 423.)

On examination, Dr. Weinsweig observed that Claimant’s gait and tandem gait

were normal; motor strength was grossly strong throughout the upper and lower

extremities; sensation was intact, reflexes were equal, and there was no evidence of

spasticity or myelopathy. (Tr. 337.) Brain and spine MRI and follow-up studies showed

an intradural extramedullary lesion at C5-6, without evidence of diffuse metastasis. (Tr.

338.) Dr. Weinsweig diagnosed Claimant with possible recurrent cancer or other type of

lesion, and at his recommendation Claimant elected a posterior cervical laminectomy at

C5-8 to remove the lesion and relieve pressure on his spinal cord. Id. Subsequent

cervical-spine imaging showed no evidence of a recurrent tumor, compression, or

stenosis. (Tr. 339, 343, 350, 378.) The record does not indicate that Claimant had further

complaints or treatment related to his cervical spine after the 2008 procedure.

In 2009, Claimant returned to Dr. Weinsweig with complaints of headaches and

back pain. (Tr. 339.) On November 4, 2009, Dr. Weinsweig found that medical imaging

indicated the signal in Claimant’s spinal cord and vertebral marrow were normal; no

Chiari malformation, acute bony abnormality or subluxation, abnormal enhancement,

or recurrent tumor were observed; no cord-signal abnormalities were identified; and no

significant cord compression was noted. (Tr. 339, 343.) Dr. Weinsweig concluded that

there was “[n]o evidence for [a] recurrent tumor,” and Claimant’s examination was

stable. (Tr. 340-41.) However, Dr. Weinsweig found a “broad-based disc bulge at the L4-

L5 level, which [wa]s causing moderate left and moderate to severe right neural

foraminal narrowing.” (Tr. 340.) As “[t]he remaining levels [we]re unremarkable” and

there was “no abnormal enhancement,” Dr. Weinsweig’s diagnosis was “persistent

minimal subluxation L4 on L5, with associated disc bulge and neural foraminal

compromise.” (Tr. 340-41.) On March 7, 2010, Dr. Weinsweig ordered a sensory-

response evaluation of Claimant’s upper and lower extremities to evaluate for any

returning tumor in his spinal cord. (Tr. 335-36.) The findings “indicate[d] normal

conduction in the central sensory pathways to the posterior tibial stimulation.” (Tr. 336.)

There is no indication on the record that Claimant sought or received treatment for pain

during his treatment with Dr. Weinsweig.

On March 29, 2010, Claimant presented to Boone Memorial Hospital emergency

room with “pain after injury at work” due to lifting. (Tr. 387-95.) Diagnostic x-rays of the

lumbar spine indicated that Claimant did not have an acute fracture, but did present

“decreased disc space height at L5-S1,” as well as “sacralization of L5,” which is a spinal

irregularity of the fifth lumbar vertebra, associated with lower-back pain, posture control

problems, and range-of-motion limitations. (Tr. 387-88.) Because sacralization can be

congenital, the radiologist found that the decreased disc-space height “may be

developmental rather than due to degenerative disc disease.” (Tr. 387.) Finally, the

radiologist noted that “3 mm anterior subluxation of L4 is noted on L5 with no other

malalignment,” which could be evaluated for possible “ligamentous instability.” Id.

Claimant was diagnosed with low back strain and prescribed Flexeril, a muscle relaxant

used to treat pain and stiffness caused by muscle spasms. (Tr. 389-91.) A follow-up MRI

on April 12, 2010 indicated a localized central disc protrusion at L4-5 as well as a mild

bulging disc at L5-S1, but no acute fracture or high-grade spinal stenosis. (Tr. 393-96.)

On December 29, 2014, Claimant presented to the emergency room at Boone

Memorial Hospital with complaints of back pain. (Tr. 398.) Thoracic spine x-rays

“reveal[ed] mild to moderate degenerative changes at multiple levels,” with “[n]o definite

acute fracture or acute malalignment seen; Claimant was told to seek follow-up imaging

if his back-pain symptoms persisted. Id. Following this 2014 treatment, the record does

not contain evidence of any relevant medical treatment Claimant subsequently sought or

received before initiating his February 2019 claim.

ii. PHYSICAL CONSULTATIVE EXAMINATION

Claimant underwent a consultative internal-medicine examination with family-

medicine physician Stephen Nutter, M.D., on June 13, 2019. (Tr. 423-26.) Dr. Nutter

wrote that Claimant “is a 41-year-old male claiming disability stating, ‘my wrists.’” (Tr.

423.) Claimant reported “problems with joint pain in the wrists, shoulders, and knees,”

with intermittent joint pain for the previous five years. Id. He stated to Dr. Nutter that

“walking, standing, kneeling, squatting and going up and down stairs increases the knee

pain.” Id. Dr. Nutter wrote that Claimant “has had x-rays on both wrists,” followed by

“bilateral carpal tunnel release in 2003.” Id. Claimant told Dr. Nutter that his carpal

tunnel surgery “helped for a while,” but that his wrists “have gotten worse.” (Tr. 423.)

Claimant reported numbness and tingling in both hands and increased wrist pain with

grasping, lifting, pushing, and pulling on objects; further, he reported that he has dropped

things that he is holding onto “once or twice.” (Tr. 423-25.) Dr. Nutter noted Claimant’s

statement that he had never had imaging of the joints performed; nor had he been treated

with “joint injection or aspiration.” Id.

Claimant also told Dr. Nutter that he had experienced “problems with back pain

for 10 years,” though he denied injury. (Tr. 424.) Claimant elaborated that he experienced

“intermittent weekly pain in the upper and lower back,” which was worsened by

“[b]ending, sitting, lifting, and riding in a car.” Id. His back pain did not radiate, and he

denied neck pain. Id. Claimant stated that he was not prescribed or taking medications

for any of these complaints, and did not have a treating physician.

Dr. Nutter’s examination found that Claimant had a limited range of motion of the

cervical spine, bilateral shoulders, and lumbar spine; right wrist tenderness; and an

inability to squat or perform tandem gait adequately. (Tr. 424-26, 428). However, he

noted that Claimant was able to “ambulate[] with a normal gait, which is not unsteady,

lurching, or unpredictable, and did “not require the use of a handheld assistive device.”

(Tr. 424.) He “appear[ed] stable at station and comfortable in the supine and sitting

positions.” Id. Claimant exhibited no tenderness to percussion of the dorsolumbar

spinous processes, nor tenderness of the cervical spine; had normal straight leg raise

testing, normal muscle strength of the bilateral upper and lower extremities, and well-

preserved sensory modalities; and could walk on heels and toes. (Tr. 425-26.)

Additionally, Claimant had full (5/5) bilateral grip strength and he could make a fist

bilaterally, write with his dominant right hand, and pick up coins with either hand without

difficulty (Tr. 423-24.) Finally, lumbar spine x-ray imaging taken during the course of the

examination revealed no acute findings. (Tr. 427-30.) Dr. Nutter diagnosed Claimant with

degenerative arthritis, history of bilateral carpal tunnel syndrome, and chronic

dorsolumbar strain. (Tr. 426.) He concluded, “The claimant is a 41-year-old male who

complains of joint pain and back pain[;] [t]here were positive physical findings related to

those complaints as documented in the above physical exam section.” Id.

iii. NEUROPSYCHOLOGICAL CONSULTATIVE EXAMINATION

On May 20, 2019, Claimant underwent a neuropsychological consultative

examination by clinical psychologist Lester Sargent, M.A. (“Sargent”); as part of Sargent’s

evaluation process, Sargent reviewed records followed by several assessments including

a clinical interview, mental-status examination, and IQ test of the Claimant. (Tr. 412.)

During the clinical interview, Claimant stated that he is unable to work primarily

due to memory impairment, which he attributed to his brain surgery; pain in his hands

following carpal tunnel surgery; and chronic back pain. (Tr. 413.) He reported

experiencing multiple cognitive deficits, presumed to be the result of his childhood brain

surgery. Id. Claimant reported “a history of academic deficits and special education in

school.” Id. Claimant reported that he did graduate from high school, where he had

participated in special education classes and achieved average grades. (Tr. 414.) He

reported that he was not required to read and write or operate equipment during his work

history. Id. He reported that he did not maintain a checking account, pay bills, or have a

source of income. (Tr. 418.) He reported daily activities of watching television, running

errands with his father, visiting close friends and family, and walking around outside for

exercise, and occasionally playing video games. (Tr. 412, 418-19.) He also reported his

ability to handle self-care independently, was able to keep scheduled appointments, and

that he had a driver’s license although his father drove him to the interview. (Tr. 412, 418-

19.) No history for mental-health treatment was reported, and Sargent noted that

Claimant did not have a primary-care provider and was not taking any medications. Id.

Sargent found that “current psychological testing reveals a mild decline in his

overall level of cognitive functioning since he was tested in 2015 and 2011; Claimant was

noted to have difficulty recalling previously-learned information, processing new

information without making errors; performing tasks that assess short-term memory and

concentration. (Tr. 413.) Sargent also found evidence of “mild psychomotor retardation

and disturbance in executive functioning.” Id. Based upon the composite score derived

from 10 subtest scores of the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-

IV), Sargent found that Claimant’s general cognitive ability “is within the extremely low

range of intellectual functioning.” (Tr. 414.) All of the subtest scores were either

borderline or extremely-low range. (Tr. 414-15.) Sargent found that Claimant exhibited a

slow pace and required occasional repetition of direction. (Tr. 416-18.) He further found

that Claimant exhibited moderately impaired recent memory, and mildly deficient remote

memory, concentration, and persistence. (Tr. 417-18.) There was also evidence of pain

behaviors. (Tr. 417.) However, Sargent also found that Claimant had understandable and

connected thought processes as well as normal immediate memory. (Tr. 417-18.) Based

upon these factors, Sargent concluded that Claimant had mild neurocognitive disorder

and somatic symptom disorder with predominant pain. (Tr. 418.)

iv. OPINION EVIDENCE

1. Physical Residual Functional Capacity Assessment by

Brandy Vannatter, D.O.

Dr. Brandy Vannatter, D.O. (“Dr. Vannatter”), a physician who reviewed

Claimant’s medical records and examined Claimant but did not treat him for any of his

alleged physical or mental impairments, also completed a “Physical Residual Functional

Capacity Assessment” form at Claimant’s request. (Tr. 400.) In this January 15, 2019

assessment, Dr. Vannatter opined that Claimant’s “impairments are severe and would

adversely affect [his] ability to maintain employment at any job on a sustained basis.” Id.

She described his primary diagnoses as “bilateral carpal tunnel syndrome, brain cancer

resection, cervical spine mass with cord compression, headaches, and depression.” (Tr.

401.)

Dr. Vannatter included with her report a “Purdue Pegboard Score Sheet” form

which set forth Claimants’ results from Dr. Vannatter’s administration of the Purdue

Pegboard test.2 (Tr. 408.) Dr. Vannatter indicated on the form that she administered the

Purdue Pegboard test to Claimant three times and used the average of the three tests to

score Claimant’s results. Calculating the averages for each subset based upon the three

test rounds, Dr. Vannatter found that Claimant’s average scores were as follows: 11 with

his right hand, 8.33 with his left hand, 13 with both hands, and 18.33 on “assembly.”3 (Tr.

408.) Dr. Vannatter also indicated on the form that Claimant experienced numbness with

the exam. (Tr. 408.)

Rating Claimant’s exertional limitations, Dr. Vannatter indicated that Claimant

could occasionally and frequently lift and carry fewer than ten pounds; could stand and/or

walk, with normal breaks, for a total of less than 2 hours in an 8-hour workday; and sit,

with normal breaks, for a total of less than about 6 hours in an 8-hour workday. (Tr. 402.)

Additionally, she limited Claimant’s ability to push and/or pull, including operation of

hand and/or foot controls, in the upper and lower extremities. Id. In support of these

2 The Court takes judicial notice that the “Purdue Pegboard” test consists of a pegboard with two vertical

rows of 25 small holes down its center; it is administered in a series of four subtests, where the subject is

directed to place certain objects in the pegboard holes within specified periods of time in order to measure

the coordination and motor skills of the subject’s fingers, hands, and arms. See Katie Marvin, MSc.PT,

Purdue Pegboard Test (PPT), Canadian Partnership for Stroke Recovery (Jun. 9, 2012), available at

https://strokengine.ca/en/assessments/purdue-pegboard-test-ppt/ [hereinafter the “Marvin Article”]; J.

Tiffin & E. J. Asher, The Purdue Pegboard: norms and studies of reliability and validity, 32 J. Applied

Psychol. 221, 234-47 (Jun. 1948). In the first subtest, the subject uses his or her right hand to place as many

cylindrical dowels called “pins” as possible down on the right row within 30 seconds; similarly, in the second

subtest, the subject uses his or her left hand to place as many pins as possible down on the left row within

30 seconds. See id. Third, the subject uses both hands simultaneously to place as many pins as possible

down both rows. See id. In the fourth and final “assembly” subtest, the subject uses both hands to place a

specified assembly of pins, washers, and a hollow cylinder “collar” into as many pegboard holes as possible

down both rows within sixty seconds. See id. The goal of this test is to determine the subject’s competence

in completing a task or job that requires manual dexterity. See id.

3 The significance of these scores is not readily apparent from the face of Dr. Vannatter’s form, which

included but did not refer to Claimant’s results in relation to a “quick reference” table taken from the

Appendix in the original 1968 Purdue Pegboard Manual that set forth “normative population averages” for

different occupational areas such as general factory work and assembly jobs. (Tr. 408.) Looking at the range

of averages for each of the occupational areas on the table, however, it is apparent that each of the subset

scores were below the manual’s average range with the exception of the score for both hands, which was

normal. Id.

limitations, Dr. Vannatter pointed to Claimant’s “cervical spine tumor resulting in cord

compression with radicular symptoms and carpal tunnel,” and stated that Claimant’s

symptoms were consistent with medical-imaging and physical examination. Id. Dr.

Vannatter also indicated that he could occasionally climb ramps and stairs, kneel, and

crouch, but never climb ladders, ropes, or scaffolds, balance, stoop, or crawl. (Tr. 403.)

As explanation for these findings, Dr. Vannatter wrote that Claimant’s symptoms and

limitations were “consistent with physical exam which shows difficulty with balance.” Id.

Rating Claimant’s manipulative limitations, Dr. Vannatter indicated that Claimant

was limited in his abilities to reach, handle, finger, and feel. (Tr. 404.) She wrote that

Claimant was “limited in reaching, fingering and handling to occasional only[, and]

[r]eaching is limited in all directions which is supported by both physical exam, medical

evidence and P[u]rdue Pegboard exam,” the latter of which is an indicator of fine motor

speed and dexterity of the dominant hand, non-dominant hand, and both hands

simultaneously. Id. Dr. Vannatter did not check the boxes on the form to indicate that

Claimant had visual or communicative limitations, but did write that “Patient [had] visual

limitations but [they were] not tested by me.” Id.

Rating Claimant’s environmental limitations, Dr. Vannatter indicated that

Claimant should avoid even moderate exposure to extreme heat, and should avoid all

exposure to extreme cold, vibration, and hazards. (Tr. 405.) She wrote that Claimant’s

“history of neuropathy which causes difficulty with balance limits all the above

environmental factors which could result in injury or worsening of [his] symptoms.” Id.

Finally, Dr. Vannatter wrote that Claimant’s symptoms “are attributed to a

medically determinable impairment which is supported by medical evidence,” and that

Claimant met the “medical listing from [his] spinal tumor which resulted in cord

compression which is characterized by pain, limited range of motion, weakness and

neuropathy.” (Tr. 406.)

2. State-Agency Physical Residual Functional Capacity

Assessment

State-agency physician Narendra Parikshak, M.D. completed a physical Residual

Functional Capacity (“RFC”) Assessment of Claimant on June 27, 2019. (Tr. 61.) First, Dr.

Parikshak found that Claimant’s medical records were insufficient to evaluate his RFC on

the date he was last insured; turning to Claimant’s “current” RFC at the time of her

evaluation, however, Dr. Parikshak found that Claimant had exertional limitations,

including only occasionally lifting and/or carrying 20 pounds; frequently lifting and/or

carrying 10 pounds; standing and/or walking, with normal breaks, for about six hours in

an eight-hour workday. (Tr. 61.) Based on Claimant’s tandem-gait and balance limitations,

limited lumbar forward-flexion, as well as his history of spinal and brain surgeries, Dr.

Parikshak found that his RFC had postural limitations, including climbing ramps or stairs,

balancing, stooping, kneeling, crouching, or crawling, only occasionally—and never

climbing ropes, ladders, or scaffolds. (Tr. 61-62.) Finally, Dr. Parikshak found that

Claimant had environmental limitations, including avoiding concentrated exposure to

extreme cold, avoiding concentrated exposure to vibration, avoiding even moderate

exposure to hazards such as machinery and heights. (Tr. 62.) Thus, Dr. Parikshak

concluded that Claimant’s physical symptoms and severity were partially consistent with

the medical records; however, she found that additional limitations were not warranted

based upon record evidence of Claimant’s normal gait, strength and lack of atrophy. Id.

Additionally, imaging of Claimant’s spine was unremarkable, a Tinel’s test was negative

for nerve compression or damage with a preserved grip strength, and his straight-leg raise

was normal. Id.

3. State-Agency Mental Residual Functional Capacity

Assessment

As to Claimant’s mental-health issues, John Todd, Ph.D., completed a Mental RFC

Assessment and found that Claimant was “markedly limited” in his ability to understand,

remember, and carry out detailed instructions, but could respond to simple one-step or

two-step verbal instructions. (Tr. 63-64.) With respect to Claimant’s adaptation

limitations, Dr. Todd found that Claimant was “moderately limited” in his ability to

respond appropriately to changes in the work setting as well as the ability to travel in

unfamiliar places or use transportation. (Tr. 64.) Dr. Todd also found that Claimant was

“moderately limited” in the ability to set realistic goals or make plans independently of

others, requiring plans and goals to be set by others and additional time given to learn

new tasks. (Tr. 64.) Jeff Harlow, Ph.D., affirmed Dr. Todd’s assessment several months

later. (Tr. 98.)

Finally, State-agency psychiatric expert, H. Hoback Clark, M.D., also completed an

RFC Assessment and similarly found that Claimant could understand and follow simple

instructions, sustain routine work tasks, focus on and carry out simple tasks in two-hour

increments, and adapt to minimal changes. (Tr. 118.)

v. HEARING TESTIMONY

An administrative hearing was held telephonically before ALJ Francine A. Serafin

on April 16, 2020. (Tr. 32-50.) Claimant’s counsel presented opening and closing

argument, and the ALJ heard testimony from Claimant as well as from vocational expert

Cecilia Thomas (the “VE”).

Claimant testified that he was placed in special education classes for the entirety

of his primary and secondary schooling, and he is not able to read “real well.” (Tr. 38-39.)

Following secondary school, he generally worked as a laborer for a variety of jobs, all of

which required him to do heavy lifting. (Tr. 38-39.) He most recently worked at a sawmill

in approximately 2010 or 2011, where he performed heavy manual labor. (Tr. 38.)

Claimant further testified that none of his past jobs required him to follow written

directions or read anything. (Tr. 38-39.) He testified that he has trouble remembering

and following directions, even if given orally. (Tr. 41-42.) Claimant testified that he was

currently experiencing pain, including back pain; pain starting in his wrist and radiating

all the way up his arm; numbness in his hands along with difficulty grasping and hanging

on to objects; and difficulty both with reaching his arms and rotating his back, in all

directions. (Tr. 39-41.) Further, Claimant testified that he has experienced problems with

balance his entire life, including sudden, periodic dizzy spells that recur approximately

once per week and last at least 30-40 minutes. (Tr. 41.) Claimant testified that he stopped

working when he was unable to perform heavy manual labor because of his back pain,

arm pain, and numbness in his hands, which has gone on since he last worked. (Tr. 42.)

After Claimant’s testimony, the VE testified. (Tr. 43.) Claimant’s counsel did not

object, and “recognize[d] her as an expert.” Id. Relevant to Claimant’s ability to perform

past work, the ALJ then questioned the VE whether, based upon her review of the record,

she had information to classify Claimant’s past work. Id. The VE testified in response to

the ALJ’s question that Claimant’s past work constituted medium to very-heavy unskilled

labor. (Tr. 43-44.)

Relevant to the ALJ’s determination of Claimant’s RFC, the ALJ then asked the VE

to provide her opinion in response to three hypothetical questions. See id. Each of the

three questions sought to evoke the VE’s opinion regarding a theoretical person’s ability

to work [hereinafter referred to as “Mr. Theoretical”]. In each of the three hypothetical

scenarios, the ALJ asked the VE to assume that Mr. Theoretical shared the same age,

education and work history as Claimant; the only difference in each hypothetical was

whether Mr. Theoretical had or did not have various sets of the physical limitations

asserted by the Claimant.

The ALJ’s first hypothetical to the VE asked her to assume—in addition to the

assumption that Mr. Theoretical shared the same age, education and work history as

Claimant—that Mr. Theoretical would be capable of performing work at the light

exertional level, but this light-work capability would be subject to five main limitations.

(Tr. 44-45.) First, Mr. Theoretical could engage in frequent fingering, handling and

feeling, but with the right upper extremity only; second, he could occasionally climb

ramps and stairs; balance, stoop, kneel, crouch and crawl; third, he would need to avoid

frequent exposure to extreme cold, vibration, and also workplace hazards such as moving

machinery or unprotected heights; fourth, he would be limited to simple, routine,

repetitive tasks with only simple instructions; fifth, he could handle minimal changes

(three to four per workday or work shift) in the work setting; and sixth, he could never

climb ladders, ropes, and scaffolds, or walk on uneven terrain. Id.

The VE testified in response to the ALJ’s first hypothetical that Mr. Theoretical

would not be able to perform Claimant’s past work; however, she further testified that

there are other jobs in the national economy that Mr. Theoretical could perform,

including cafeteria attendant, housekeeping, and inspecting and sorting. (Tr. 44-46.)

The ALJ’s second hypothetical to the VE asked her to assume that Mr. Theoretical

had exactly the same characteristics as the previous hypothetical, but with one

modification. (Tr. 46.) Specifically, the ALJ asked the VE to assume that Mr. Theoretical’s

limitation for fingering, handling, and feeling with the right upper extremity was further

limited from frequent, to only occasional or less than occasional. Id. The VE testified in

response to the ALJ’s second hypothetical that Mr. Theoretical “would not be able to meet

any standards set by an employer as far as performance” and “could very likely result in a

person losing a job” even if they were able to obtain work. (Tr. 46.)

The ALJ’s third and final hypothetical asked the VE to forget the previous two

assumptions and this time assume only that Mr. Theoretical would be off-task for 15% or

more of a workday in a regular, eight-hour workday. (Tr. 47.) Under this assumption, the

ALJ asked the VE to consider an employer’s tolerance for off-task time, specifically, what

impact Mr. Theoretical’s 15% off-task time would have on the type of job that he could

perform. Id. The VE testified in response to the ALJ’s third hypothetical that Mr.

Theoretical’s problem with staying on-task for 15% or more of a regular, eight-hour

workday would be work preclusive. (Tr. 47.)

Finally, Claimant’s counsel asked the VE to provide her opinion in response to one

hypothetical question. Directing her back to the ALJ’s second hypothetical, counsel asked

the VE to assume that Mr. Theoretical’s limitation for “reaching, fingering, and handling

would be limited to occasional only in all directions.” (Tr. 47.) The VE testified in response

to counsel’s hypothetical that such a limitation would eliminate all the work Mr.

Theoretical could perform. Id.

C. Sequential Evaluation Process

An individual unable “to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less

than 12 months” is considered to be disabled and thus eligible for benefits. 42 U.S.C.

§ 423(d)(1)(A). To establish eligibility for benefits, the claimant has the ultimate burden

to prove that he or she—as applicable—is disabled, had a period of disability, and/or

became disabled before the claimant’s date last insured. Preston v. Heckler, 769 F.2d 988,

990 (4th Cir. 1985); Bird v. Comm’r of Soc. Sec., 699 F.3d 337, 340 (4th Cir. 2012).

The Social Security Administration established a five-step sequential evaluation

process to aid the ALJ in this determination. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);

Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). The ALJ proceeds through each

step until making a finding of either “disabled” or “not disabled.” If no conclusive finding

is made at one of these steps, the analysis advances on to the next step in the sequence.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

At the first step in the sequential evaluation process, the ALJ must determine

whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial

gainful activity, the ALJ then proceeds to the second step.

At the second step, the ALJ considers the combined severity of the claimant’s

medically-determinable physical and mental impairments. Id. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii). The ALJ gleans this information from the available medical evidence.

See Mastro v. Apfel, 270 F.3d 171, 177 (4th Cir. 2001). An individual impairment or

combination of impairments that is not classified as “severe” and does not satisfy the

durational requirements will result in a finding of “not disabled.” 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); Mascio v. Colvin, 780 F.3d 632, 634–35 (4th Cir.

2015).

Similarly, at the third step, the ALJ determines whether the claimant’s impairment

or combination of impairments meets or is medically equal to the criteria of an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R.

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). “A claimant is entitled to a conclusive

presumption that [he or she] is impaired if [the claimant] can show that [his or her]

condition ‘meets or equals the listed impairments.’” Radford v. Colvin, 734 F.3d 288, 291

(4th Cir. 2013) (quoting Bowen v. City of New York, 476 U.S. 467, 471 (1986)).

“If the first three steps do not lead to a conclusive determination, the ALJ then

assesses the claimant’s residual functional capacity” before proceeding to the fourth step.

Mascio, 780 F.3d at 635; see 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant’s RFC

reflects his or her “ability to perform work despite [the claimant’s] limitations.” Patterson

v. Comm’r of Soc. Sec., 846 F.3d 656, 659 (4th Cir. 2017); Monroe v. Colvin, 826 F.3d

176, 179 (4th Cir. 2016) (defining claimant’s RFC as “the most the claimant can still do

despite physical and mental limitations that affect [his or her] ability to work” (alterations

and internal quotation marks omitted)); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

To make this RFC assessment, the ALJ must “first identify the individual’s functional

limitations or restrictions and assess his or her work-related abilities on a function-by-

function basis,” then “define the claimant’s RFC in terms of the exertional levels of work.”

Lewis, 858 F.3d at 862. “In determining a claimant’s RFC, the ALJ must consider all of

the claimant’s medically determinable impairments . . . including those not labeled

severe” as well as “all the claimant’s symptoms, including pain, and the extent to which

his symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence.” Monroe, 826 F.3d at 179 (alterations and internal

quotation marks omitted); see 20 C.F.R. §§ 404.1545(a), 416.945(a).

When the claimant alleges a mental impairment, the first three steps of the

sequential evaluation process and the RFC assessment are conducted using a “special

technique” to “evaluate the severity of [the] mental impairment[].” 20 C.F.R.

§§ 404.1520a(a), 416.920a(a); see Patterson, 846 F.3d at 659. Considering the claimant’s

“pertinent symptoms, signs, and laboratory findings,” the ALJ determines whether the

claimant has “a medically determinable mental impairment(s)” and “rate[s] the degree of

functional limitation resulting from the impairment(s)” according to certain criteria. 20

C.F.R. §§ 404.1520a(b), 416.920a(b); see id. §§ 404.1520a(c), 416.920a(c). “Next, the

ALJ must determine if the mental impairment is severe, and if so, whether it qualifies as

a listed impairment.” Patterson, 846 F.3d at 659; see 20 C.F.R. §§ 404.1520a(d),

416.920a(d). “If the mental impairment is severe but is not a listed impairment, the ALJ

must assess the claimant’s RFC in light of how the impairment constrains the claimant’s

work abilities.” Patterson, 846 F.3d at 659.

After assessing the claimant’s RFC, the ALJ at the fourth step determines whether

the claimant has the RFC to perform the requirements of his or her past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv); Monroe, 826 F.3d at 180. If not, then

“the ALJ proceeds to step five.” Lewis, 858 F.3d at 862.

The fifth and final step requires the ALJ to consider the claimant’s RFC, age,

education, and work experience in order to determine whether the claimant can make an

adjustment to other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At this point,

“the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that

the claimant can perform other work that ‘exists in significant numbers in the national

economy.’” Lewis, 858 F.3d at 862 (quoting Mascio, 780 F.3d at 635). “The

Commissioner typically offers this evidence through the testimony of a vocational expert

responding to a hypothetical that incorporates the claimant’s limitations.” Id. (quoting

Mascio, 780 F.3d at 635). If the claimant can perform other work, the ALJ will find him

or her to be “not disabled.” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the

Claimant cannot perform other work, the ALJ will find him or her to be “disabled.” Id.

Applying the sequential evaluation process in this case, at step one the ALJ found

that Claimant had not engaged in substantial gainful activity since the alleged onset date

of September 1, 2010. (Tr. 12.) Accordingly, the ALJ proceeded to step two. At the second

step, the ALJ found that Claimant had seven (7) “severe” medically-determinable4

impairments: (1) history of medulloblastoma surgery at age 4 with complaints of

headaches; (2) history of surgery to remove cervical spine tumor; (3) carpal tunnel

syndrome with history of bilateral release; (4) degenerative disc disease of the lumbar,

thoracic, and cervical spine; (5) arthritis; (6) neurocognitive disorder; and (7) somatic

disorder. (Tr. 13.) Further, the ALJ found that these impairments “significantly limit”

Claimant’s “ability to perform basic work activities as required by SSR 85-28.” (Tr. 13.)

However, at the third step, the ALJ found that neither the seven severe

impairments, nor a combination thereof, met or medically equaled any of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13.) Because the

first three steps did not lead to a conclusive determination, therefore, the ALJ’s next task

was to assess Claimant’s RFC. Upon assessing Claimant’s RFC, the ALJ determined that

Claimant is able to perform light work as defined in C.F.R. §§ 404.1567(b) and 416.967(b),

except he can “never climb ladders, ropes, or scaffolds and occasionally climb ramps and

4 The ALJ acknowledged that Claimant “complained of anxiety and sadness,” but because of a lack of any

“diagnosis of anxiety or depression in the record since [Claimant’s] alleged onset date,” the ALJ found that

neither anxiety nor depression satisfied the standard for medically-determinable impairments under the

circumstances. (Tr. 13.)

stairs, balance, stoop, kneel, crouch, and crawl.” (Tr. 15.) The ALJ found Claimant was

“incapable of walking on uneven terrain,” and though she found Claimant was able to

frequently finger, handle, and feel, she limited those activities to the right upper extremity

Id. Further, she found that Clamant “must avoid frequent exposure to extreme cold,

vibration, and workplace hazards such as moving machinery and unprotected heights,”

and was “limited to simple, routine repetitive tasks with only simple instructions.” Id.

Finally, the ALJ found that Claimant could “handle minimal changes in work setting

defined as three changes per workday or work shift.” Id.

Based upon the limitation to light exertion, the ALJ determined that Claimant was

unable to perform his past relevant work, all of which involved medium to very heavy

exertion. (Tr. 19-20.) She found that Claimant was “a younger individual” on the

disability-onset date, that he “has at least a high-school education and is able to

communicate in English,” and that “[t]ransferability of job skills is not an issue in this

case because [the Claimant’s] past relevant work is unskilled.” (Tr. 20.) Because the ALJ

determined that Claimant was unable to perform the full range of light work, she enlisted

the testimony of the VE to aid in finding that Claimant is capable of working as a cafeteria

attendant, a cleaner/housekeeper, or inspector/sorter. Id. As a result, the ALJ concluded

that Claimant “has not been under a disability . . . from September 1, 2010 [the disability-

onset date] through the date of this decision” within the scope of 20 C.F.R. §§

404.1520(g), 416.920(g). (Tr. 21.)

II. LEGAL STANDARD

This Court has a narrow role in reviewing the Commissioner’s final decision to

deny benefits: it “must uphold the factual findings of the Commissioner [here,

represented by the decision of the ALJ] if they are supported by substantial evidence and

were reached through application of the correct legal standard.” Hancock v. Astrue, 667

F.3d 470, 472 (4th Cir. 2012). “Substantial evidence” is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion,” and it must be “more

than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). In other words,

this Court “looks to [the] administrative record and asks whether it contains ‘sufficient

evidence’ to support the agency’s factual determinations.” Id. (alteration omitted). “[T]he

threshold for such evidentiary sufficiency is not high.” Id.

In reviewing the record for substantial evidence, the Court’s role is not to re-weigh

conflicting evidence, make credibility determinations, reach independent determinations

as to the weight to be afforded to a claimant’s report of symptoms, or substitute its own

judgment for that of the ALJ. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

Rather, the Court’s task is to ensure that the ALJ made reasonable and supportable

inferences after carefully considering the evidence—including all the relevant medical

evidence—and explained her conclusions—without ignoring conflicting evidence. Arakas

v. Comm’r of Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020); McCall v. Apfel, 47 F.

Supp. 2d 723, 731 (S.D. W. Va. 1999). To demonstrate compliance with this standard, the

ALJ’s decision must “build an accurate and logical bridge from the evidence to [the ALJ’]s

conclusion,” including an explanation for the ALJ’s decision to give less weight to

evidence that conflicts with her conclusion. Id. at 100. The Court must uphold the ALJ’s

decision if it meets this standard, even if “reasonable minds [could] differ as to whether a

claimant is disabled.” Craig, 76 F.3d at 589.

III. ANALYSIS

As discussed below, Claimant’s brief merely consists of numerous conclusory

statements. (See ECF No. 10-2.) Construing these arguments liberally, however, Claimant

appears to assert three main issues: (1) whether the ALJ’s decision is supported by

substantial evidence; (2) whether the ALJ erred by not affording proper weight to the

opinion of Brandy Vanatter, D.O.; and (3) whether the ALJ erred by not following the

applicable regulations in evaluating the evidence as a whole and when assessing

Claimant’s physical and mental impairments. Id. at 2-7. Claimant asks the Court to “set

aside” and “reverse the order that denied this claim for disability benefits and SSI

benefits,” or alternatively “that this claim be reversed and[] remanded for an

administrative hearing which addresses the issues and errors identified herein, including

the effect of the claimant’s limitations in balancing, bending, reaching, handling, and

fingering.” (ECF No. 10-2 at 1, 18.) The Commissioner responds that the ALJ’s decision is

supported by substantial evidence, which she appropriately evaluated and explained.

(ECF No. 15.) The Commissioner challenges Claimant’s suit as an improper attempt to

elicit different credibility determinations, reweigh the evidence, and displace the ALJ’s

judgment to achieve a different outcome. Id. at 2. Further, the Commissioner argues that,

by failing to tether conclusory statements to supporting legal authority and specific facts

on the record, the undeveloped arguments in Claimant’s brief are so fundamentally

inadequate that he has effectively waived his claims on appeal. (ECF No. 15 at 8-9.)

A claimant’s argument is so fundamentally inadequate as to warrant a finding that

he has waived his claims against the Commissioner when “his entire discussion” of an

issue “is limited to several pages of [regurgitated] legal standards and a few vague

references to [the claimant’s] testimony and medical records,” such that it is not fairly

presented to the district court. Pawlowski v. Comm'r. of Soc. Sec., 13–cv–11445, 2014 WL

3767836 at *5 (E.D.Mich. July 31, 2014). It is well-settled that a claimant “cannot simply

make the claim that the ALJ committed error, while leaving it to the Court to scour . . . or

to wade through and search the entire record for some specific facts that might support”

his or her argument. McPhillips v. Comm'r of Soc. Sec., 13-CV-13557, 2014 WL 5092884,

at *7 (E.D. Mich. Oct. 10, 2014). As Judge Richard Posner’s oft-repeated aphorism posits,

federal judges “are not like pigs, hunting for truffles” buried in the record. United States

v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), quoted with approval by, e.g., Christian v.

Cook Inc., 2:13-CV-20841, 2015 WL 3557242, at *2 (S.D. W. Va. June 4, 2015); Kraim v.

Virginia, 3:21-CV-326, 2021 WL 3612305, at *3 (S.D. W. Va. July 26, 2021), report and

recommendation adopted, 2021 WL 3610509 (S.D. W. Va. Aug. 13, 2021). See also

Cooper v. City of Charleston, 624 S.E.2d 716, 727 (W. Va. 2005).

Nor is the Court “obligated to make plaintiff’s case for them.” McPhillips, 2014 WL

5092884, at *6. See Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005)

(rejecting out of hand a conclusory assertion that the ALJ failed to consider whether the

claimant met the listings, because the claimant provided no analysis of relevant law or

facts regarding the listings); Lobos v. Colvin, 15-cv-5007, 2016 WL 8710077, at *5 (W.D.

Ark. Apr. 1, 2016), report and recommendation adopted, 2016 WL 3523740 (W.D. Ark.

June 22, 2016) (“Plaintiff does not address any medical evidence to support his position

or meaningfully argue this point in his brief, and the Court therefore finds Plaintiff has

waived this argument”).

Even if the Claimant were not represented by counsel in this matter, and therefore

was afforded the liberal construction and less stringent standard to which pro se litigants

are held, the brief at issue is still so fundamentally inadequate that a finding that he has

waived his claims against the Commissioner would still be warranted under the

circumstances. Even though this standard may produce harsh results for claimants, its

rationale is supported by the same guiding principles the Fourth Circuit employs when

considering on appeal “the difficult problems raised when pro se litigants only vaguely

identify potential legal issues in the controversy at hand.” Beaudett v. City of Hampton,

775 F.2d 1274, 1276 (4th Cir. 1985). In those circumstances, the Fourth Circuit must

balance the interest of protecting pro se litigants who “cannot, of course be expected to

frame legal issues with the clarity and precision ideally evident in the work of those

trained in law,” against the judicial system’s efficiency interest in protecting trial courts

from the burden of “conjur[ing] up and decid[ing] issues never fairly presented to them.”

Id. at 1276. The Fourth Circuit acknowledged that the imbalance caused by failing to

consider the latter interest of the trial court would not only improperly “strain

judicial resources by requiring those courts to explore exhaustively all potential claims of

a pro se plaintiff, but would also transform the district court from its legitimate advisory

role to the improper role of an advocate seeking out the strongest arguments and most

successful strategies for a party.” Id. at 1278.

Here, the undersigned notes that Claimant is represented by counsel of record in

this matter, who submitted the subject brief on Claimant’s behalf. (See ECF No. 14.)

Logically, if even the liberal protections afforded to pro se claimants have limits as

discussed above, then by extension, the trial-court protection illustrated by the Fourth

Circuit is particularly apt when a plaintiff is represented by counsel. See Beaudett, 775

F.2d at 1276.5 However the undersigned, having reviewed the parties’ submissions in this

5 Mirroring a district court’s observation regarding another attorney, here the undersigned expresses frank

“concern with the work product of Plaintiff’s counsel,” whose “reliance on conclusory assertions and

absence of developed argument has become the calling card of . . . counsel in a number of recent Social

Security cases.” Fielder v. Comm’r of Soc. Sec., 13-cv-10325, at *1 n.1 (E.D. Mich. Mar. 24, 2014). Like the

Fielder court, in this case the undersigned instructs Claimant’s counsel to ensure that future filings before

this Court “advance properly supported arguments that rest upon (and cite to) the facts of a particular case”

and tether those facts to an analysis—rather than a regurgitation—of applicable law. See id.

matter, finds that even under the liberal construction and less stringent standards

afforded to pro se filings,6 Claimant’s “arguments” in support of his appeal consist solely

of conclusory statements, devoid of any analysis—let alone a meaningful analysis—of the

facts and law, rendering them so fundamentally inadequate that a finding of waiver is

warranted. See Vandenboom, 421 F.3d at 750; Lobos, 2016 WL 8710077, at *5.

Like the Pawlowski case, where the Commissioner’s decision was affirmed on the

basis of waiver, here Claimant’s discussion is essentially “limited to several pages of

[regurgitated] legal standards and a few vague references to [the Claimant’s] testimony

and medical records,” such that it is not fairly presented to the district court.” Pawlowski,

2014 WL 3767836 at *5.

First, the “facts” section of Claimant’s brief, which is comprised of about 250

words, contains no citations to the record aside from the ALJ’s Decision itself. (ECF No.

10-2 at 1-2.) Instead, Claimant makes “a few vague references” to the evidence, such as

the statements that he “testified and the record confirms that he has difficulty with his

balance and with his vision” and “further suffers from multiple disc lesions (herniations)

in his lumbar spine that were confirmed by MRI in 2008 and 2009.” Id. at 2.

Following the “facts” section, Claimant’s brief next sets forth fifteen numbered

paragraphs, each of which are made up of a few sparse, unsupported sentences that

generally allege an “assignment of error” made by the ALJ. (ECF No. 10-2 at 2-7.) For

example, the tenth numbered paragraph “assigns as error” the ALJ’s alleged failure “to

give proper weight to results of the Purdue Pegboard Test administered by Dr. Vannatter,

6 See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (explaining that generally, “[a] document filed pro se is to

be liberally construed”); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (liberally construing whether a pro se

party’s complaint stated a cognizable claim on the grounds that, “however inartfully pleaded, [a pro se

pleading] must be held to ‘less stringent standards than formal pleadings drafted by lawyers”).

where the test was stated to be valid and where there is no other evidence of manual

dexterity testing.” Id. at 6. This statement does not cite to the record or otherwise address

the manner in which, or by whom, the “test was stated to be valid.” See id.

The next section, titled “the law involved,” asserts the general statement that

“[h]ere, the ALJ did not follow the established procedures when evaluating the evidence,

nor did she explain why she failed to follow the established procedures.” Id. at 7. This

statement is followed by ten pages of block quotes copied and pasted7 directly from

portions of the Social Security Administration’s regulations relating to Title II and Title

XVI of the Social Security Act—with no accompanying annotations, comments, or context.

(See ECF No. 10-2 at 7-17 (quoting from 20 C.F.R. §§ 404.1569a, 416.920a, and 416.927).)

Finally, on the last page of Claimant’s brief, a 73-word “argument” section merely

states the following:

The ALJ failed to properly evaluate the evidence in accordance with

mandated procedures. She failed to properly consider objective evidence of

impairment that was supported by test results and reasoned medical

opinions of evaluating doctors. She also failed to explain why she did not

consider that objective evidence and why she then gave controlling weight

to the opinions of reviewing doctors, who stated that they had insufficient

evidence to reach a conclusion.

ECF No. 10-2 at 18.) On its face, Claimant’s cursory “argument” is improperly comprised

solely of conclusory and unsupported statements. (ECF No. 10-2 at 18.)

Further, Claimant’s brief failed to comply with the form requirement for briefs

pursuant to Rule 9.4(b) of the Court’s Local Rules of Civil Procedure. Specifically, the Rule

requires a claimant’s brief to “contain a statement of issues, a statement of the facts, and

an argument on each issue asserted.” L.R. Civ. P. 9.4(b) (emphasis added). Claimant’s 73-

7 The undersigned notes that the portion of Claimant’s brief that sets forth these extensive block quotes is

in a lighter-colored font, with blue hyperlinks observable for regulatory citations—both indications that the

text was simply copied and pasted from an electronic source without modification.

word argument clearly fails to meet this standard. Even if the fifteen numbered

paragraphs titled “assignment of error” could be liberally construed as an “argument,”

this would still fall short of the standard, as the Rule further specifies that “[t]he argument

on each issue shall identify the findings which are alleged not to be supported by

substantial evidence, and other errors which are alleged to have been made, with citations

to the pertinent transcript pages and to relevant regulations, rulings, and cases.” Id.

(emphasis added). As set forth above, Claimant’s brief contained no citations to the record

other than the ALJ’s decision. (See ECF No. 10-2.)

In sum, Claimant’s submission—wholly devoid of any “meaningful argument” with

respect to each of the fifteen counts of error that were generally alleged, and “limited to

several pages of [regurgitated] legal standards and a few vague references to [the

Claimant’s] testimony and medical records”—is so fundamentally inadequate that it

cannot be said to have been “fairly presented” to the Court. See Pawlowski, 2014 WL

3767836 at *5; Lobos, 2016 WL 8710077, at *5. Claimant's fifteen conclusory assertions

that the ALJ erred, unsupported by any analysis of the relevant law or facts, improperly

seeks to oblige the Court to root through the record and make Claimant's case for him.

McPhillips, 2014 WL 5092884, at *6; Vandenboom, 421 F.3d at 750. As the Fourth Circuit

observed, such an exercise would waste judicial resources and "transform the district

court from its legitimate advisory role to the improper role of an advocate seeking out the

strongest arguments and most successful strategies for a party.” Beaudett, 775 F.2d at

1278. Moreover, the Court's efficiency interest particularly outweighs Claimant's need for

protection under the circumstances because, unlike the pro se litigant in Beaudett—who

the Fourth Circuit found could “not, of course be expected to frame legal issues with the

clarity and precision ideally evident in the work of those trained in law,” here Claimant is

represented by counsel who is duty-bound to do so. Id. A determination that Claimant’s

brief is so fundamentally inadequate that he has waived his claims against the

Commissioner—though a harsh finding—is therefore appropriate under the

circumstances.

Additional circumstances relating to Claimant’s counsel contribute to the

appropriateness of a finding of waiver in this action. This Court’s Local Rules of Civil

Procedure require a claimant to “file and serve a brief in support of the complaint no later

than 30 days after the date of service of the certified . . . administrative transcript.” L.R.

Civ. P. 9.4(a). In this case, the Commissioner filed and served the transcript on June 14,

2021. (ECF No. 5.) Claimant’s brief in support of his Complaint, therefore, was originally

due on July 14, 2021. L.R. Civ. P. 9.4(a). However, Claimant failed to file a timely brief;

subsequently, the undersigned entered an Order sua sponte extending Claimant’s

deadline to submit his brief to July 30, 2021. (ECF No. 6.) The Order specifically warned

Claimant “that his failure to submit his brief in support of the complaint . . . will result in

the undersigned’s recommendation that this action be dismissed for failure to prosecute.”

Id. Again, however, Claimant failed to file a timely brief and the undersigned

recommended dismissal on August 6, 2021. (ECF No. 7.)

On August 20, 2021, Claimant moved for a fifteen-day extension of time to object

to the undersigned’s dismissal recommendation, on the grounds that “a critical member

of the Social Security staff . . . test[ed] positive for Covid-19” which resulted in closure of

the office. (ECF No. 8.) The presiding District Judge granted the extension and ordered

Claimant to file any objections no later than September 6, 2021. (ECF No. 9.) The District

Judge noted, however, the following:

The Court notes that the PF&R recommends dismissal for failure to

prosecute because the Plaintiff failed to file a brief in support of the

complaint by the July 14, 2021 deadline and failed to respond to an order

warning that dismissal would be recommended absent a response by July

30, 2021. While the Court has found that a COVID-19 outbreak within the

law office directly impacting a vital staff member constitutes good cause for

an extension, the history of lack of responsiveness by counsel is quite

concerning.

Id. at 1 n.1. Claimant’s counsel filed his Objections on September 7, 2021—one day after

the District Judge’s deadline; therein, he indicated that he overlooked the applicable

deadlines due to office closures and quarantines for COVID-19 infections, and during

some periods lacked access to the transcript. (See ECF No. 10.) Claimant’s subject Brief

in Support of Appeal and Motion for Remand was attached to this filing. (ECF No. 10-2.)

As the Commissioner did not object to Claimant’s late filing, the District Judge permitted

the filing of Claimant’s brief, noting that, “[w]hile counsel should have monitored

deadlines and timely sought any extensions necessitated by the COVID cases within his

law office, the pandemic has created disruptions” that sufficiently supported good cause.

(ECF No. 13 at 2.)

Counsel filed Claimant’s brief nearly ninety days after the Commissioner made the

administrative transcript available. In light of the District Judge’s generous extensions of

time, and considering all the surrounding circumstances, the failure of counsel to submit

a brief that complied with even the basic form requirements of Local Rule 9.4(b) is

particularly egregious. Accordingly, the undersigned FINDS that Claimant’s arguments

were waived by his counsel.

IV. CONCLUSION

For the foregoing reasons, the undersigned respectfully RECOMMENDS that the

presiding District Judge DENY Claimant’s request to reverse the Commissioner’s

decision (ECF No. 14), GRANT the Commissioner’s request to affirm her decision (ECF

No. 15), AFFIRM the final decision of the Commissioner, and DISMISS this civil action

from the Court’s docket.

Alternatively, the undersigned respectfully RECOMMENDS that the presiding

District Judge DENY the parties’ pending motions without prejudice; ORDER Claimant

to file, within thirty (30) days, a renewed brief in support of appeal, with the

Commissioner’s brief due thirty (30) days thereafter; and NOTIFY Claimant that

continued failure to submit a timely brief in compliance with Rule 9.4(b) of the Court’s

Local Rules of Civil Procedure—advancing arguments which analyze, rest upon, and cite

to specific legal authority and facts of record—shall result in dismissal of this action.

The parties are notified that this Proposed Findings and Recommendation is

hereby FILED and a copy will be submitted to the Honorable Irene C. Berger, United

States District Judge. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal

Rule of Civil Procedure 72(b), the parties shall have fourteen (14) days from the date of

the filing of this Proposed Findings and Recommendation to file with the Clerk of this

Court specific written objections identifying the portions of the Proposed Findings and

Recommendation to which objection is made and the basis of such objection. Extension

of this time period may be granted for good cause shown. Copies of any objections shall

be served on opposing parties and provided to Judge Berger.

Failure to file written objections as set forth above shall constitute a waiver of de

novo review by the District Court and a waiver of appellate review by the Fourth Circuit

Court of Appeals. 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 155 (1985);

Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Wright v. Collins, 766 F.2d 841,

846 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

The Clerk is DIRECTED to file this Proposed Findings and Recommendation and

to transmit a copy of the same to counsel of record and to any unrepresented party.

ENTER: August 15, 2022

vN_HAacn LES Am

□□ Dwane L. Tinsley .

_.._ United States Magistrate Judge

32