Petition for Writ of Certiorari — In Re Pamela Denise Idlett, Petitioner

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Appendix

Rule 14.1(i)

Appendix A

U.S. Court of Appeals for the Fourth Circuit

FILED: July 12, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-1806

(4: 16-cv-00 134-MSD-RJK)

PAMELA DENISE IDLETT

Plaintiff— Appellant

NANCY A. BERRYHILL

Defendant Appellee

ORDER

The court defers consideration of the motion

for appointment of counsel pending review of the

appeal on the merits.

For the Court-By Direction

Is/Patricia S. Connor, Clerk

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-1806

PAMELA DENISE IDLETT,

Plaintiff

Appellant,

NANCY A. BERRYHILL,

Defendant

Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia, at Newport News.

Mark S. Davis, District Judge. (4:16-cv-00134-MSDRJK)

Submitted: January 16, 2018

Decided: March 9, 2018

Before KING and HARRIS, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Pamela Denise Idllett, Appellant Pro Se. George

Maralan Kelley, III, Assistant United States

Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Pamela Denise Idlett appeals the district

court's order accepting the recommendation of the

magistrate judge, granting the Acting Commissioner

of the Social Security Administration's motion to

remand for further administrative proceedings

pursuant to sentence four of 42 U.S.C. § 405(g)

(2012), and denying Idlett's motion for summary

judgment requesting an award of disability

insurance benefits.* We review a district court's

summary judgment decision de novo, Lee v. Town of

Seaboard, 863 F.3d 323, 327 (4th Cir. 2017), and a

district court's choice of remedy in a social security

action for an abuse of discretion, Radford v. Colvin,

734 F.3d 288, 295 (4th Cir. 2013). We have reviewed

the record and perceive no reversible error.

Accordingly, we affirm the district court's order and

deny Idlett's motion to appoint counsel.

dispense with oral argument because the facts and

legal contentions are adequately presented in the

materials before this court and argument would not

aid the decisional process.

AFFIRMED

*Although the district court remanded Idlett's

case for further proceedings, the order is appealable

because the district court denied Idlett's request for

an award of benefits. Forney v. Apfel, 524 U.S. 266,

271 (1998).

FILED: March 9, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-1806

(4: 16-cv-00134-MSD-RJK)

PAMELA DENISE IDETT

Plaintiff

Appellant

NANCY A. BERRYHILL

Defendant

Appellee

JUDGMENT

In accordance with the decision of this

court, the judgment of the district court is affirmed.

This judgment shall take effect upon

issuance of this court's mandate in accordance

with Fed. R. App. P. 41.

Is/PATRICIA. S. CONNOR, CLERK

FILED: June 12, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-1806

(4: 16-cv-00134-MSD-RJK)

PAMELA DENISE IDETT

Plaintiff

Appellant

NANCY A. BERRYHILL

Defendant

Appellee

ORDER

The petition and supplemental petition for

rehearing en banc were circulated to the full

court. No judge requested a poll under Fed. R. App.

P. 35. The court denies the petition and supplement

petition for rehearing en banc.

The court denies the motion to appoint

counsel.

For the Court

Is/Patricia S. Connor. Clerk

Appendix A

U.S. Court of Appeals for the

Fourth Circuit

Pamela Idlett v. Nancy Berryhill,

No. 17-1806 (4th Cr. 2018)

Electronic Case File (ECF) Docket Data

Subject

Order

Opinion

______

Judgment

•

Order

Ref.

Doe.

No.

Pg.

Docket Title

ORDER

Aldeferring motion

to appoint/assign

counsel pending

appeals review on

the merits.

Mar. 18

UNPUBLISHED 1, 11,

PER CURIAM

17,18

2018

A2-4

OPINION filed.

Hamilton, Senior

Circuit Judge

Motion

disposition

denying

Appoint/Motion

disposition

denying Appoint/

Case number:

4: 16-cv-00 134MSD-RSJ

Mar. 19

JUDGMENT

filed; affirmed

6, 10,

2018

District Court

11,

final order Before

14,

King and Harris,

17,

Circuit Judges,

and Hamilton,

Senior Circuit

A5-6

Judge

Jun 26

COURT ORDER

2,7,

12,

denying motion/

A62018

petition for

Date

July

12,

2017

rehearing en

bane and

motion for

appoint counsel

U.S. Court of Appeals

Other Relevant Filed Electronic Case File

(ECF) docket data

Subject

Petition

•

Motion

Doc.

Date No.

Docket Title

Jul.

Idlett's

12,

Informal

2017

Opening

Petition Brief

and Notice of

Appeal

Jul.

Idlett's Motion

12,

for Appoint/

2017

Assign Counsel

under the ADA;

Federal

Disability

Retired (NASA);

July 31, 2012

July. 11

MOTION by

18,

Idlett to stay

2017

mandate

JuL

NOTICE issued

re:, motion to

•

Notice

Ref.

Pg.

3638

2017

Notice

Jul.

2017

Response

Jul.

2017

Suppi.

Jul.

21,

2017

Aug.

23,

2017

Apr.

2018

Apr.

2018

Apr.

Petition

Motion

Petition

2018

Mandate

Jun

stay mandate

deemed moot.

NOTICE by

Appellee that

no brief will

be filed

RESPONSE/

ANSWER by

Idlett to no brief

Notice

Supplemental

Record

requesting AR

from Clerk

Admin.

Record (3

volumes)

Idlett's petition

for rehearing en

bane

Id1ett's motion

for

appoint/assign

counsel

Supplemental

petition for

rehearing en

banc (brief)

Mandate issued.

2018

A1O

13,

15,

Appendix B

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

05/05/17 Page 1 of 10 PagelD# 257

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

•

Newport News Division

•

PAMELA DENISE IDLETT,

Plaintiff,

•

ACTION NO. 4:16cv134

NANCY A. BERRYHILL,'

Acting Commissioner of Social Security,

Defendant.

UNITED STATES MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

Pamela Denise Idlett brought this, action,

pursuant to 42 U.S.C.

405(g), seeking judicial

review of a decision of the Acting Commissioner

("Commissioner") of the Social Security

•

All

Administration ("SSA") denying her claim for a

period of disability and disability insurance benefits

("DIB") under Title II of the Social Security Act.

An order of reference assigned this matter to

the undersigned. ECF No. 7. Pursuant to the

provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule

72(b) of the Federal Rules of Civil Procedure, and

Local Civil Rule 72, it is hereby recommended that

the Commissioner's motion to remand to the Social

Security Administration (ECF No. 12) be

GRANTED, the Commissioner's decision on Idlett's

claim be VACATED and REMANDED for further

review, and Idllett's motion for summary judgment

(ECF No. 10) be DENIED as MOOT.

'Nancy A. Berryhill became the Acting

Commissioner of Social Security on January 23,

2017, and is substituted for Carolyn W. Colvin as the

defendant in this suit. See Fed. R. Civ. Proc. 25(d).

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

Al2

05/05/17 Page 2 of 10 PagelD# 258

I. Procedural Background

P1aintiff,Pamela Denise Idlett ("Idllett"),

protectively filed an application for a period of

disability and DIB on October 31, 2012, R. 170712,

alleging that .she became disabled on October 1,

2011 due to n Arnold Chiari malformation (rare

brain malformation). R. 170, 303. The Commissioner

denied Idlett's application on January 9, 2013, and,

upon reconsideration, on September 17, 2013. R. 9099, 101-12. At Idlett's request, an Administrative

Law Judge ("AU") held a hearing by video

teleconference on. October 7, 2014, and received

testimony from Idlett (who was represented by

counsel) and an impartial vocational expert ("VE").

R. 63-89. During the hearing, ,Idlett amended the

onset date of disability from October 1, 2011 to

April 1, 2012. R. 66. Id1ett also related that she had

A13

received permanent disability retirement from the

federal government. R. 68. Without reference to

this known disability determination by another

federal agency, on January 12, 2015, the ALJ denied

Idlett's claim, finding that she was not disabled from

October 1, 20113 through the date of the decision. R.

48-57. On June 9, 2016, the Appeals Council denied

Id1ett's request for review of the AL's decision. R.

1-6. Therefore, the AL's decision stands as the final

decision of the Commissioner for purposes of judicial.

review. See 42 U.S.C. §§ 405(h), 1383(c)(3); 20

C.F.R. § 404.981.

Having exhausted all administrative

remedies, Id1ett filed a complaint with this Court on

August 8, 2016. ECF No. 1. The Commissioner

answered on October 7, 2016. ECF No. 5. In

response to the Court's order, Idlett filed a motion

for summary judgment, with supporting

A14

memorandum, on November 8, 2016. ECF No. 10.

On December 13, 2016, the Commissioner

2Page citations are to the administrative record•

previously filed by the Commissioner.

While the ALJ references the amendment of the

alleged onset date to April 1, 2012, R. 48, he

concludes that Idlett has not been under a disability

from October 1, 2011 through the date of the

decision. R.57.

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

05/05/17 Page 3 of 10 PagelD# 259

filed a motion to remand the case under the fourth

sentence of 42 U.S.C. § 405(g) due to "the fact that

the decision of the Administrative Law Judge

below does not demonstrate consideration of the

Plaintiffs disability award by another

governmental agency." ECF No. 12 at 1. Idlett

filed a response, objecting to the motion for

remand, and requesting, in part, that judgment be

A15

entered awarding her DIB. ECF No. 14. The

Commissioner filed a reply. ECF No. 15. Without

requesting leave to file a surreply, Idlett filed

(subject to defect) a surreply requesting an award

of benefits and sanctions. ECF No. 16.4 As neither

party has indicated special circumstances

requiring oral argument, the case is deemed

submitted for a decision.

II. The AL's Decision

On January 12, 2015, the ALJ determined Id1ett

was not disabled from October 1, 2011 through the

date of the decision. R. 57. To evaluate Idlett's

claim of disability5, the ALJ followed the sequential

five-step analysis set forth in the SSA's regulations

for determining whether an individual is disabled.

See 20 C.F.R. § 404.1520(a). Specifically, the AU

considered whether Id1ett: (1) was engaged in

substantial gainful activity; (2) had a severe

A16

impairment; (3) had an impairment that meets or

medically equals a condition within the SSA's listing

of official impairments; (4) had an impairment that

prevents her from performing any past

The Court GRANTS Idlett leave to Me the

surreply, and has considered her filing, ECF No. 16,

in making this report and recommendation.

To qualify for DIB, an individual must meet the

insured status requirements of the Social Security

Act, be under age 65, file an application, and be

under a "disability" as defined in the Act.

"Disability" is defined, for the purpose of obtaining

disability benefits, "as the inability to do 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." 20

C.F.R. § 404.1505(a); accord 42 U.S.C. §

423(d)(1)(A), 416(i)(1)(A). To meet this definition,

the claimant must have a "severe impairment"

making it impossible to do previous work or any

other substantial gainful activity that exists in the

national economy. 20 C.F.R. § 404.1505(a).

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

A17

05/05/17 Page 4 of 10 PagelD# 260

relevant work in light of her residual functional

capacity; and (5) had an impairment that prevents

her from engaging in any substantial gainful

employment. R. 50-57.

The ALJ found that Idlett met the insured

requirements 6 of the Social Security Act through

December 31, 2017, and she had not engaged in

substantial gainful activity since April 1, 2012, her

amended alleged onset date of disability. R. 50.

At steps two and three, the ALJ found that

IdJett's Arnold Chiari malformation constituted a

severe impairment. R. 50. The ALJ classified

Idlett's other asserted impairments, as non-severe,

because they either responded to medication,

required no significant medical treatment, did not

continuously exist for a 12-month period, or did not

otherwise continuously impose functional

A18

limitations upon Idlett. R. 50-51. The ALJ further

determined that Idlett's severe impairment, along

with her other conditions, failed to meet or

medically equal the severity of one of the

impairments listed in 20 C.F.R. Pt. 404, Subpt. P,

App. 1, as required for a finding of disability at step

three. R. 52 (citing 20 C.F.R. §§ 404.1520(d),

404.1525, 404.1526).

The ALJ next determined Idlett's residual,

functional capacity ("RFC"). R. 52-56. The AU

considered Idlett's reports of her condition and

symptoms,

and

activities. R. 53.

how

these

limited her

daily

The A.LJ summarized Idlett's

treatment notes, medications, and test results,

including multiple MRIs, a cerebrospinal fluid flow

study (CSF flow study), and an EEG. R. 53-54. The

AU addressed and weighed the opinion evidence

from Idlett's treating physicians, nurse practitioner,

A19

and physical therapist, as well as the state agency

consultant's assessments. R. 55-56. The ALJ found

that Idlett possessed an RFC to perform light work,

see 20 C.F.R. § 404.1567(b), with the following

limitations: (a) she could "lift and carry ten pounds

frequently

6 In order to qualify for DIB, an individual must also

establish a disability that commenced on or before

the last day in which that individual met the insured

status requirements of the Social Security Act. See

42 U.S.C. § 423(a), (c); 20 C.F.R. § 404.131(b).

Case 4: 16-cv-00 134-MSD-RJK Document 18 Filed

05/05/17 Page 5 of 10 PagelD# 261

and twenty pounds occasionally;" (b) she could sit

for six hours, and walk or stand for four hours, in

an eight-hour workday alternating "between

sitting and standing every thirty minutes for

comfort;" (c) she could not climb ladders or "work

A20

at unprotected heights or around dangerous

machinery;" (d) she could "perform jobs that

require no frequent grasping as would be required

on an assembly line;" and (e) she was "limited to

simple repetitive job tasks." R. 52. The AU

further concluded that this RFC was supported by

"the mild findings on radiographic and physical

examinations, the conservative level of treatment,

and [Idlett's] extensive activities of daily living."

R. 56. Based upon this assessment of Idlett's RFC,

the ALJ determined at step four that Idlett could

not return to her past relevant work as a program

analyst and a support assistant. R.56.

Finally, at step five, and after considering

her age, high school education, work experience,

and RFC, the ALJ found that Id1ett could perform

other jobs, such as an office helper, information

clerk, and clerical checker, which existed in

A21

significant numbers in the national economy. R.

56-57. Accordingly, the ALJ concluded that Idllett

was not disabled from October 1, 2011 through the

date of the AL's decision and was ineligible for a

period of disability or DIB. R. 57.

III. Standard of Review

In reviewing a social security disability

decision, the Court is limited to determining

whether the Commissioner applied the proper legal

standard in evaluating the evidence and whether

substantial evidence in the record supports the

decision to deny benefits. 42 U.S.C. § 405(g);

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

2005) (citing Craig v. Chater, 76 F.3d 585, 589 (4th

Cir. 1996)); Hays v. Sullivan, 907 F.2d 1453, 1456

(4th Cir., 1990). Substantial evidence is "such

relevant evidence as a reasonable mind might

accept as adequate to

A22

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

05/05/17 Page 6 of 10 PagelD# 262

support a conclusion." Richardson v Peráles, 402

U.S. 389, 401 (1971) (quoting Comsol. Edison Co. of

N.Y. V. NLRB, 305 U.S. 197, 229 (1938)). It

consists of "more than a mere scintilla of

evidence[,] but may be somewhat less than a

preponderance." Laws v. Celebrezze, 368 F.2d 640,

642 (4th Cir. 1966).

When reviewing for substantial evidence,

the Court does not re-weigh conflicting evidence,

make credibility determinations, or substitute its

judgment for that of the Commissioner. Craig, 76

F.3d at 589; Hays, 907 F.2d at 1456. "Where

conflicting evidence allows reasonable minds to

differ as to whether a claimant is disabled, the

responsibility for that decision falls on the

A23

Secretary (or the Secretary's designate, the AU)."

Craig, 76 F.3d at 589 (citing Walker v. Bowen, 834

F.2d 635, 640 (7th Cir. 1987)). The Commissioner's

findings as to any fact, if supported by substantial

evidence, are conclusive and must be affirmed,

unless the decision was reached by means of an

improper standard or misapplication of the law.

Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.

1987) (citing Myers v. Califano, 611 F.2d 980, 982

(4th Cir. 1980)). Thus, reversing the denial of

benefits is appropriate only if either (A) the record

is devoid of substantial evidence supporting the

AL's determination, or (B) the ALJ made an error

of law. Coffman, 829 F.2d at 517.

In reviewing a decision of the Commissioner

denying benefits, the Court has the power, "to enter,

upon the pleadings and transcript of the record, a

A24

judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with

or without remanding the cause for a rehearing." 42

U.S.C. § 405(g). Further, "[j]f the reviewing court

has no way of evaluating the basis for the. AU's

decision, then the proper course, except in rare

circumstances, is to remand, to the agency for

additional investigation or explanation." Radford v.

Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (quoting

Florida Power & Light Co.- v. Lorion, 470 U.S 729,

744.

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

05/05/17 Page 7 of 10 PagelD# 263

(1985)).

W. Analysis

Remand. of IdIett's case is necessary to allow

the ALJ to appropriately address, the disability

A25

determination of another governmental agency, the

Office of Personnel Management ("OPM"). In

evaluating a Social Security Disability claim, an AU

must consider all of the required categories of

evidence as set out by the Code of Federal

Regulations. 20, C.F.R. § 404.1513(a)(1)-(5). One of

the types of evidence that will be considered is

decisions by other governmental agencies about

whether a person is "disabled, blind, employable, or

entitled to any benefits." 20 C.F.R. § 404.1504.

These decisions are not binding upon the Social

Security Administration, 20 C.F.R. § 404.1504,

which reserves the ultimate authority for deciding

whether a petitioner is disabled, SSR 06-03p.

However, the ALJ is required to consider, evaluate,

and weigh these governmental agency decisions as

evidence in the petitioner's claim. 20 C.F.R. §

404.1504; Bird v. Comm 'r of Sac. Sec. Admin., 699

A26

F.3d 337,343 (4th Cir: 2012) ("SSA is required to

consider all record evidence relevant to a disability

determination, including decisions by other

agencies."); SSR 06-03p ("we are required to

evaluate all the evidence including decisions by

other governmental and nongovernmental

agencies"); Hicks v. Gardner, 393 F.2d 299, 302 (4th

Cir. 1968) ("Weight should be given to the findings

of the Virginia Compensation Commission even

though [the findings are] not determinative of the

issue." (citing Hayes v. Celebrezze, 311 F.2d 648, 654

(5th Cir. 1963))).7

A recent revision to the Code of Federal

Regulations states that "in claims filed [J on or after

March 27, 2017, we will not provide any analysis in

our determination or decision about a decision made

by any other governmental agency or a

nongovernmental entity about whether you are

disabled, blind, employable, or entitled to any

benefits." 20 C.F.R. § 404.1504. The SSA made clear

that it is now "not requiring adjudicators to provide

written analysis about how they consider the

A27

decisions from other governmental agencies and

nongovernmental entities.

Case 4: 16-cv-00134-MSD-RJK

Filed 05/05/17

Document 18

Page 8 of 10 PagelD# 264

When the ALJ has not weighed the disability

determination of another governmental entity in

accordance with the Fourth Circuit's Bird decision,

remand is the appropriate remedy. See Parker v.

Colvin, No. 3:14cv618, 2015 WL 5561213, at *16

(E.D. Va. Sept. 11, 2015); Wyche v. Colvin, No.

4:13cv43, 2014 WL 1903106, at *8 n.2 (E.D. Va. Apr.

30 2014) (collecting cases from "ten different district

and magistrate judges who have opined that Bird

requires remand to permit the ALJ to analyze a

[disability

determination

from

another

governmental agency] under the correct evidentiary

standard"). The Commissioner concedes that, in

Idlett's case, the AUJ failed to address the OPM's

A28

disability determination. ECF No. 15 at 1 (noting

the AL's opinion is "devoid of reference to a known

disability determination by another federal agency").

Because the ALJ failed to address the OPM

disability determination concerning Idlett, this

Court cannot determine whether the AL's decision

is supported by substantial evidence.

Remand is the appropriate remedy despite

Idlett's requests that the Court award her DIB

based on the current record. Here, the record

consists of lengthy treatment records, test results,

and multiple opinions from treating and nontreating sources, in addition to Idlett's reports

regarding her symptoms. The ALJ explicitly

considered and weighed this information when he

determined that Idlett was capable of a limited

range of light work. The Court cannot speculate as

to what weight, if any, the ALJ gave to OPM's

A29

disability decision, or whether consideration of the

OPM decision would change the AL's conclusions.

Therefore, the Court should remand the

[and that adjudicators will only] consider in [their]

determination or decision the relevant supporting

evidence underlying the other governmental agency

or nongovernmental entity's decision that [the SSA]

receive[s] as evidence in a claim." Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82

FR 5844-01, 2017 WL 168819 (Jan. 18, 2017). This

new rule does not apply to Idlett's case as the rules

only went into effect on March 27, 2017, and, from

its language, it applies only to claims made on or

after that date. See id. ("These final rules are

effective on March 27, 2017.").

[sJ

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

05/05/17 Page 9 of 10 PagelD# 265

case to allow the ALJ to weigh the evidence in

accordance with the Bird decision.8

V. Recommendation

For the foregoing reasons, this Court

recommends that the Commissioner's motion to

A30

remand .to the Social Security Administration (ECF

No. 12) be GRANTED, and that the Commissioner's

decision on Id1ett's claim be VACATED and the case

be REMANDED to the Acting Commissioner of

Social Security pursuant to sentence four of Section

405(8) of the Social Security Act, 42 U.S.C. § 405(8).

On remand, the Appeals Council should send the

case back to an Administrative Law Judge for

further administrative proceedings consistent with

this report and recommendation. Plaintiffs motion

for summary judgment (ECF No. 10) should be

DENIED as MOOT.

VI. Review Procedure

By copy of this report and recommendation,

the parties are notified that pursuant to 28 U.S.C. §

636(b)(1)(C):

A31

1. Any party may serve upon the other party

and file with the Clerk written objections to the

foregoing findings and recommendations within

fourteen (14) days from the date of mailing of this

report to the objecting party, see 28 U.S.C. § 636(b)(1),

computed pursuant to Rule' 6(a) of the Federal Rules

of Civil Procedure. Rule 6(d) of the Federal Rules of

Civil Procedure permits an extra three (3) days, if

service occurs by mail. A party may respond to any

other party's objections within fourteen (14) days

after being served with a copy thereof. See Fed. R.

Civ. P.

1n addition to the request for an award of benefits,

Idlett requests that certain harassing behavior,

"telecommunications intrusions, wiretapping,

location tracking and stalking" be immediately

stopped, and that the Commissioner be sanctioned

by referring this action to the judicial conference for

investigation based on the "federal violation

committed by the AU." ECF No. 14 at 5-6. These

requests are not properly before the Court in this

action brought pursuant to 42 U.S.C. § 405(g)

A32

seeking review of the SSA's decision denying Idlett

DIB. See Compl. 2, ECF No. 1.

Case 4:16-cv-00134-MSD-RJK Document 18 Filed

05/05/17 Page 10 of 10 PagelD# 266

72(b)(2) (also computed pursuant to Rule 6(a) and

(d) of the Federal Rules of Civil Procedure).

2. A district judge shall make a de novo

determination of those portions of this report or

specified findings or recommendations to which

objection is made.

The parties are further notified that failure to

file timely objections to the findings and

recommendations set forth above will result in a

waiver of appeal from a judgment of this Court

based on such findings and recommendations.

Thomas v. Am, 474 U.S. 140 (1985); Carr v. Hutto,

A33

737 F.2d 433 (4th Cir. 1984); United States u.

Schronce, 727 F.2d 91 (4th Cir. 1984).

Robert J. Krask

United States Magistrate Judge

Robert J. Krask

UNITED STATES MAGISTRATE JUDGE

Norfolk Virginia

May 5, 2017

Personal Identifier: Pamela Denise Idlett (XXX-XX0740)

THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA NEWPORT

NEWS DIVISION

PAMELA DENISE IDLETT,

Plaintiff, pro Se;

Civil Action No.: 4:16-cv-134-MSD-RJK

(Under Seal)

NANCY A. BERRYHILL,

A34

Acting Commissioner of Social Security, Defendant

PLAINTIFF'S OBJECTION TO MAGISTRATE

JUDGE'S REPORTAND RECOMMENDATION

FOR REMAND

Plaintiff, Pamela Denise Id1ett, pro Se,

brought this civil action before the District Court

seeking judicial review and summary judgment on

erroneous law execution and abuse of judicial

discretion claims against the Social Security

Administration pursuant to provisions of under

Federal Rule of Civil Procedure 56(B); and 28 U.S.C.

§636(b)(1)(B-C); (ECF No. 1, 10, 14,16).

Plaintiff herein respectfully OBJECT the

Magistrate

Judge's

recommendation

proposed

(ECF No. 18)

A35

TO THE HONORABLE DISTRICT JUDGE MARK

S. DAVIS

report

and

grant

the

Commissioner's (defendant's) motion to REMAND

(ECF No. 12) while DENYING and dismissing my

motion for summary judgment (ECF No. 10). This

objection is based on the grounds of vacating and

dismissing errors in law and abuse of judicial

discretion as "moot" issues of concern violates the

legal standard of review process (Judiciary Code of

Conduct, Canon 1; and Administrative Procedure

Act, 556).

Pamela Denise Id1ett (XXX-XX-0740) Case 4:16cv-134-MSD-RJK

Procedural Background Summary and

Arguments

1. Commissioner admits to an "error in law"

committed by the AU. This error in law "is devoid

of reference to a known disability determination by

another federal agency." (ECF No. 15, Defendant's

Rebuttal and Reply to Motion to Remand, paragraph

A36

1, sentence 2; and ECF No. 12). This error in law

violates the standard of review process; Section 223

[42 U.S.C. §423](d)(2)(A-C3); and 20 CFR

404.1512(b)(5-6).

The ALT committed this "error in law" as he

made reference and acknowledgment of my federal

disability retirement during the hearing, but devoid

from decision. The ALT's question, "Now, are you

currently retired from federal government, NASA?"

Plaintiffs answer, "Yes, I retired under disability."

ALJ reply, "Right. Is that a permanent disability

ma'am?" Plaintiffs answer, "Yes, sir." (Court

Transcript of Oral Hearing, p68) OPM's Disability

Retirement packet, letter and references are

enclosed as part of the Decision, exhibits listing.

(Court Transcript 4D, p174-175; 9D, p188-220; 13D,

p248-263; 3E, p284-286; and 17F, p1087)

A37

Effective July 2, 2003, the SSA's standard of

review process for assessing the duration of a

"severe" impairment" on symptoms under body

systems is no longer in effect (rescinded). Undated

process; if you have a "severe" impairment that is

listed in 20 CFR Part 404, Subpart P, Appendix 1

•

and functional limitations that exist for a continuous

duration of at least 12 months you will be found

disabled. [20 CFR Part 404, Subpart P, Appendix 1,

and 404. 1520(a)(4)(iii)}.

Defendant failed to provide a defense for "error in

law" supported by undisputed substantial evidence.

This error in law is assessing the continuous

duration of a "severe" impairment on body

symptoms. (Court Transcript of ALJ Hearing

Decision, p51, paragraph 1). This standard of review

process is rescinded. Assessing the duration on a

rescinded process violates the

A38

Pamela Denise Idllett (XXX-XX-0740) Case 4:16-cv134-MSD-RJK

standard of review process. In accordance with SSR

laws, "hypertension, headaches, and anxiety" (body

habitus symptoms) are not physical or • mental

impairments. .120 CFR Part 404, Subpart P,

Appendii 1, 404.1520(a)(4)iii); Section 223 [42

U.S.C. §4231(d)(2)(A.C3); and SSR 96-8p]. I have

been medically diagnosed with a severe impairment;

Arnold Chiari Malformation (Disability Code 3310,

Cerebral Degeneration).

This continuous

neurological impairment causes severe physical' and

mild mental functional limitations with

incapacitating episodic flare-ups.

4. Defendant failed to provide a logical defense for

"abuse of judicial discretion" supported by

undisputed substantial evidence. This abuse is

A39

significantly increasing exertionlnonexertion hours

from medical directives without adequate causation.

This act violates the standard of review process.

(Federal Rule of Civil Procedure 56(B); 28 U.S.C.

§636(b)(1)(B); Judiciary Code of Conduct, Canon 1;

and the Administrative Procedure Act. 556).

Medically directed exertionlnonexertion:

Sitting 2 hrs in 8hrs; walking/standing 1 hr in 8

hrs. [work(setting/day)] (Court Transcript, Disability

Impairment Questionnaire, p11-16; 12F, p10051013; and iF, p1115-1122)

ALJ changed exertion/nonexertion to: Sitting

6 hrs. in 8 hrs; walking/standing 4 hrs. in 8 hrs.

[work(setting/day)] (Court Transcript of AL's

Hearing Decision, p52, paragraph 5)

Magistrate Judge's Analysis Argument

The Magistrate Judge mistakenly disregarded

the proper standard of review process for errors in

A40

law and abuse of judicial discretion. These errors in

law are devoid "with" reference to a known

disability determination by another federal agency;

and assessing the duration of a "severe"

impairment on a rescinded review process. The

standard review process for such violations are

stated in the Standard of Review section of his

report (paragraph 2, last sentence).

Pamela Denise Idlett (XXX-XX-0740) Case 4:16-cv134-MSD-RJK

In addition, undisputed substantial evidence

further support violations in the standard of review

process. These violations are identified in the

Procedural Background Arguments 'section above.

These identified violations were mistakenly

disregarded (also filed in ECF No. 10, 14, and 16).

The Defendant provides no defense.

A41

Conclusion

Period of Disability Insurance Benefits (DIB)

expires December 31, 2017. A prompt decision is

required. Remanding my case back to an ALJ in the

Social Security Administration after such

•

misapplication of the law will prolong a decision.

This act will cause me to lose my disability

entitlement (surviving widow's insurance) benefits

retroactive back to April 1, 2012.

Denying and remanding my case for

rehearing by this federal agency where errors in law

and abuse of judicial discretion (misapplication of

the law) have occurred will further violating the

standard of review processes. These violations

deprive the hearing of fairness mandated by federal,

civil, SSA and United States Constitution, Article

III. The federal and civil standard of review

A42

processes for reversing the denial of benefits without

remanding this case for rehearing have been met.

Q 1)k*

(Date) May 12. 2017

Pamela Denise Idllett

U.S. Army Veteran and

• FERS Disabled

Civil Servant Retiree

• (Langley NASA)

435 Woodbrook Run

Newport News, VA

23606

757-272-7222(C);

•

757-826-8524 (H)

Case 4:16-cv-00134-MSD-RJK Document 20 Filed

05/31/17 Page 1 of 3 PageID# 272

•

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT. OF VIRGINIA

A43

NEWPORT NEWS DIVISION

FILED

PAMELA DENISE IDLETT,

I MAY 31, 201'j

CLERK US DISTRICT COURT

Plaintiff

NORFOLK, VA

ACTION NO. 4:16cv134

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant.

FINAL ORDER

Plaintiff, Pamela Denise Idlett ("Idlett"),

brought this action Pursuant to 42 U.S.C. §405(g),

seeking judicial review of a decision of the Acting

Commissioner of the Social Security Administration

("Commissioner") denying her claim for a period of

disability and Disability insurance benefits under

Title II of the Social Security Act.

This matter was referred to a United States

Magistrate Judge, Pursuant to the provisions of 28

U.S.C. § 636 (b) (1) (B) and (C) and Rule 72 (b) of the

A44

Federal Rides of Civil Procedure, as well as Rule 72

of the Rules of the United States District Court for

the Eastern District of Virginia. The Report and

Recommendation of the Magistrate Judge was filed

on May 5, 2017, recommending that the district

court grant the Commissioner's motion to remand to

the Social Security Administration (ECF No. 12),

that

Case 4:16-cv-00134-MSD-RJK Document 20 Filed

05/31/17 Page 2 of 3 PagelD# 273

the Cothmissioner's decision on Id1ett's claim be

vacated, and that the case be remanded to the

Acting Commissioner of. the Social Security

pursuant to sentence four of Section 405(g) of the

Social Security Act, 42 U.S.C.. §405(g). It was

further recommended that Plaintiffs motion for

summary Judgment (ECF No. 10) be denied as

moot.

A45

By copy of the Report and Recommendation,

each party was advised of the right to file written

objections to the findings and recommendation made

by the Magistrate Judge. Plaintiff filed her Objection

to Magistrate Judge's Report and Recommendation

for Remand, ECF No. 19, on May 12, 2017.

Defendant did not file a Response to Plaintiffs

objections.

Following a de novo review of the Magistrate

Judge's Report and Recommendation, and the

objections filed thereto, and finding no error, the

Court ADOPTS the findings and recommendations

set forth in the Report and Recommendation of the

United States Magistrate Judge filed on May 5,

2017. Therefore, the Commissioner's Motion to

Remand (ECF No. 12) is GRANTED, and the

Commissioner's decision on Idllett's claim is

VACATED and the case is REMANDED to the

A46

Acting Commissioner of Social Security pursuant to

sentence four of Section 405(g) of the. Social Security

Act, 42 U.S.C. § 405(g). On remand, the Appeals

Council should send the case back to an

Administrative Law Judge for further

administrative proceedings consistent with the

Magistrate Judge's Report and Recommendation.

Further, Plaintiffs

Case 4:16-6v-00134-MSD-RJK Document 20 Filed•

05/31/17 Page 3 of 3 PagelD# 274

Motion for Summary Judgment ((ECF No. 10) is

DENIED AS MOOT.

The parties are ADVISED that they may

appeal for this Final Order by forwarding a written

notice of appeal to the Clerk of the United States

District Court, United States Courthouse, 600

A47

Granby Street, Norfolk, Virginia 23510.

Said

written notice must be received by the Clerk within

sixty (60) days from the date of this Final Order.

The Clerk shall forward a copy of this Final

Order to Plaintiff and to counsel for the Defendant.

/s/ /V4 .

Mark S. Davis

United States District Judge

Norfolk, Virginia

May, 2017

Appendix B

U.S. District Court (D.C.)

Idlett v. Berryhill, No. 4:16-cv-00134. Doe. 20

(E.D. Va. 2017)

Electronic Case File (ECF) Docket Data

Subject

Opinion

Doc.

Date No.

Docket Title

May 18

"Magistrate

Judge's

A48

Ref.

Pg.

2-6,

37,

2017

•

May 19

12,

2017

Ohjection

Final

order.

•

May 20

31,

2017

Report and

43,

RecomA4,

mendation"

A11-34,

A45-47

Affirming - SSA

Commissioner's

Remand and

Deny and

Vacate Idllett's

Request for

Summary

Judgment of

Disability

Insurance

Benefits (DIB)

Before Mark S.

Davis, District

Judge and

Robert J Krask,

Magistrate

Judge

Idlett's

4-5,

OBJECTION

37,

44,

'Report and

A34-43

Recommendation

FINAL

5-6

ORDER

10,11,

Affirming

14, 17,

Commissioner's

18, 65,

•

A49

•

Remand for

Further

Administrative

Rehearing

Proceedings

Pursuant to

Sentence Four

of 42

U.S.C.405(g)

A43-48

U.S. District Court

Other Relevant Filed Electronic Case File

ECF) docket data

Subject

Cornplaint

•

Answer

Doe

Date No.

Docket Title

Aug. 1

COMPLAINT

Erroneous Law

2016

Execution and

Abuse of

Judicial

Discretion by

the AU

Oct. 5

ANSWER to

Complaint

2016

Oct

SSA Admin.

Record

2016

Ref.

Pg.

•

A50

15,67

Order

Oct.

2016

Nov. 10

Motion

•

2016

Dec. 12

139

2016

Motion

•

Motion

Dec 14

169

2016

•

Order Referring

Case to

Magistrate

Judge for Report

and Recommendations

Plaintiff's

(Idlett)

Motion for

Summary

Judgment

Defendant's

(Commissioner)

Motion for

Remand to

Agency for

further

Admin.

Rehearing

Proceedings

Under

Sentence

Four of 42

U.S.C.405(g)

Idlett's

"Motion to

Object

Proposed

Voluntary

Remand

A51

1, 4, 6,

13, 64,.

3-4,

36,

Based on

"Bad Faith"

Conduct"

Defendant's

Rebuttal

Brief ref.

docket 12

Motion to

Remand to

SSA

Id1ett's

response brief

in opposition of

Defendant's

rebuttal and

motion to

remand and

supporting

memorandum

Rebuttal Dec. 15

23,

2016

Response

Dec.

27,

2016

4,45

12, 37

Appendix C

Administrative Record (AR) Under Seal

Social Security Administration (SSA)

Disability Court Exhibits

Description

Appeals Council Denial,

06/09/2016

A52

Specific

Pg. #

1-7

No. of

Ps(s)

8-10

11-16

Attorney's Initial Request

for Review of ALT's Decision

by Appeals Council,

06/29/2015

Emergency Room Mary

Immaculate Hospital

Neurological dysfunction:

Loss of Consciousness

(Syncope), Dizziness,

Headaches, Neck Pain,

18-37

38-43

45-62

Medical Evidence of Record

(MER), dated 03/16/2016

from Frederick Patterson,

M.D.

Disability Impairment

Questionnaire, 07/03/2015,

Frederick Patterson, M.D.,

Riverside

Neurology

4/14/2015

Neurology Clinical Notes,

Frederick Patterson, M.D.,.

Riverside dated 05/04/2015;

Mild Tenderness, Palpation

:Trapezius on left side

Initials Request for Review

of Hearing Decision/Order;

01/28/2015

Administrative Law Judge

(AU) Hearing Decisions

dated

01/12/2015 .

A53

Transcript of Oral Hearing,

dated 10/07/2014

63-89

Specific Administrative Record (AR) Exhibits

Exhibit

No.

Specific

Description

AR Pg.

No.

No. of

Pg(s)

SSA Disability

Determination

Explanation,

1/9/2013

Disability

Determination

and Transmittal

SSA Disability

Determination

Explanation,

Case Analysis,

Impairment

Diagnosis 3310

Code Cerebral

Degeneration,

Severe; 9/17/2013

90-99

100

101112

113

114118

Recon Disability

Determination by

State Agency, Title

11, 9/17/03

T2 Notice of

Disability

Determination by

State

Agency

A54

8-9B

lOB

11B

9/17/2013

Request for

Recon.;

01/13/2013

Representative Fee

Agrmt.

Mario A. Davila,

Non-attorney,

dated 01/21/2013

Appt. of Rep.,

Mario A. Davila,

dated 01/21/2013

T2 Disability

Recon. Notice,

09/17/2013

Request for

Hearing by AU,

10/28/2013

Hearing Process

Explanation

letter dated

11/20/2013

NOTICE OF

HEARING

Resume of Voc.

Expert-Robert

Edwards

Rep. Fee agrmt.-.

Colleen Ilacqua

and Mario Davila,

'dated 08/18/2014

A55

119

120

121

122125

126127

128134

135161

162163

164

12B

Appt. of Rep.Colleen I1acqua,

dated 10/01/2014

Binder and.

Binder Reply to'

AL's statement

of unremarkable

MRI; 10/22/2014

Rep.

Correspondence

Appt. of DIB,

10/31/2012

13B

14B

Certificate of

Release of

Discharge from

Active, Duty (DD214); 01/1988

W2-2011,

11/05/2012

Workers'

Comp/Public DIB

Questionnaire,

02/04/2013

Detailed Earnings

Query, 07/07/2014

Summary.

Earnings Query,'

07/07/2014

Cert. Earnings

Record,

07/07/2014

A56

166168

169'

170171

172

173

174175

165

176

180

181

182186

10D

liD

12D.

13D

New Hire,

Quarter Wage,

Unemployment

Query (NDNH),

07/07/14

Atty./Rep.Supplied

Evidence

Appi. For Widows

ins. Ben.,

Death Certificate

OPM FERS

Disability

Retirement

Application with

Supervisor's and

Physician's

Statements

187,

236237

238-,

245

246

247248

02/02/12

13D

OPM FERS

Disability

Retirement

Application with

Supervisor's and

Physician's

Statements

02/02/2012

Medical Opinion,

Judy Huang MD,

Chief of

Cerebrovascular

A57

249257

258259

Neurosurgery,

• 12/13/2011; and

Family Health

Care Provider,

U.S. Department

• of the Army

Medical Center,

03/21/2012

Federal Agency

03/05/2012

Certification of

Reassign. and

Accommodation

Efforts

Dis. ReportAdult-12th grade

edu.(1893),

11/05/12 from

claimant

Work History

Report 11/14/12,

13D

from

260263

264272

•

273283

ii.

284

Id1ett

Function Report

Adult, 11/16/12

•

from

•

••

Idlett

OPM Disability

Retirement

Approval Letter;

7/24/2012

Function Report

A58

285286

287-296

•

Adult, 11/16/12

from Idllett

Dis. Report, Field

Office

Dis. Report, Field

Office.

297298

299300

301-

dated 01/17/2013

6E.

Function Report,

Adult, dtd

07/18/2013 from

claimant

Dis. Report, Field

Off., dtd

10/29/2013

Dis. Report,

Appeals, dtd

10/29/2013

Rep

Correspondence,

310

311-

312

313319

320-

330

dtd 07/07/2014,

from

SSA/ODARISCT/

10E

liE

12E.

PMSmith

Claimant's Recent

331Med. Treatment,

332

dtd 09/18/14

Claimant's

333-334

Medications, dtd

09/18/2014 from

Mario Davila

Attorney's

335.

A59

Request for

remand based on

legal errors with

detailed errors,

July 22 2015

follow up from

•

06/29/2015

13E

336

letter

•

Attorney's Second

Reminder to

Appeals Council

in connection

with request for

remand; Also

submitting

additional

medical

information, Dec.

10, 2015

Brain and

Cervical Spine

Clinical Notes:

01/27/2011MRI

Interpretation on

02/9/2011 During

follow up visit,

Peninsula

Neurology,

Steven Bojarski,

M.D.; Arnold

'Chiari

337

•

A60

338340

•

Malformation;

01/26/2011 first

visit exam

Facial deficit;

Left Facial

Asymmetry;

decrease

sensation in left

Arm; deficits in

muscle strength,

greater on left

McDonald Army

Health Center

and ER Dept.,

Migraine

Headaches and

Cervical Spine

radiology

Brain MRI

Interpretation of

Outside MRI on

01/27/2011 by

Johns Hopkins

Bayview Medical

Center; Arnold

Chiari

Malformation

Clinical Notes,

Judy Huang,

M.D., Chief

2-3F

A61

341353

354355

356370

371377

Cerebrovascular

Neurosurgery,

Johns Hopkins

Bayview Medical

Center,

11/29/2011&

12/20/2011;

Weakness,

Positive Romberg

(balance problem)

Medical Opinion,

Family Health

Care Provided,

U.S. Department

of the Army

Family Health

Center,

378

05/14/2012

U.S. Department

of Labor

Certification of

Health Care

Provider,

Employee's

Serious Health

Condition;

05/30/2012

John Hopkins

Clinical Notes,

12/29/20117

A62

384387

388398

• 4F

•

Duplicate

Brain MRI w/o

contrast/CSF flow

study

interpretation,

Sentara Norfolk

General Hospital,

ordered by Dr.

Huang,

12/13/2011;.

Arnold Chiari

Malformation

Brain and

Thoracic Spine

MRI

Interpretation,

Mary Immaculate

ordered by Dr.

Huang

12/09/2011;

Arnold Chiari

Malformation;

"Right tonsil

slightly extends

more inferiorly

than the left."•

But "No evidence

of thoracic cord

syrinx.

Brain & C-Spine

A63

399403

404407

•

408-

•2

________

w/o contrast MRI

Interpretation,

Mary Immaculate

ordered by Dr.

Bojarski,

01/27/2011;

Impression: Mild .

Chiari One

malformation

("6.6mm inferior

tonsillar

displacement

below the level of

the foramen

magnum"; But No

Spinal Syrinx.)

Mary Immaculate

Hospital MRITSpine,

12/09/2011, and

Dr. BoulosMikhaiel followup

Emergency Room

Langley Air Force

Hospital; Head,

Neck, and Back

Pain with

stiffness;

Confusion,

Vomiting, Change

A64

409

410504

505509

• in Vision,

Weakness, and

Spinal Morphine

Injection

Out/Inpatient

Rehabilitation

Records. Routine

Lab only and

personal Women

Health Clinic

Records, etc.: Not

Rehab. Records

Clinical Notes,

Dr. BoulosMikhaiel,

10/5/20118/29/2012

Various neurology.

and primary care

exams (Sentara

Neurology,

Hampton;

Sentara Medical

Group, Sentara

Norfolk General

Hospital Brain

MRI (w/o

• contrast)

Interpretation of

12/13/2011;

A65

510780

271

781802

803943

141

McDonald Army

Health Center;

Sentara Hospital;

10/5/201103/11/2013,

1OF

annotate past

history of

Headaches,

Loss of

Consciousness,

Dizziness, Head

Swelling,

Blurred

Unsteady Gaitfalls, Numbness,

Tremors, and

Memory Loss

Dr. Kaz Vision

Center

Sentara Hospital;

10/05/201103/11/2013,

tremors, memory

loss and

disorientated and

MRI imaging

results:

Cerebellar tonsils

extend 5 mm

below the

Foremen

magnum: Chiari

A66

944

945950

Malformation

Type 1

Cervical Spine

MRI

Interpretation,

Tidewater

Diagnostic

Imaging,

09/10/2012;

Arnold Chiari

Malformation;

But No Spinal

Syrinx

Hospital Records,

dtd 11/01/201207/16/2013, DOD

Centralized

Location Med.

Sharing Initiative

Multiple

Impairment

Questionnaire,

Joint

Participation;

Adel BoulosMikhaiel, M.D.,

Sentara

Neurology,

02/14/2014; and

Wayne

MacMaster, M.S.,

951953

9541004

10051013

12F

A67

13F

14F

15F

16F

17F

P.T.; 02/10/2014

Duplications of

medical records

Clinical

Associates of

Tidewater,

Psychotherapy

Fredrick Frieden,

PhD., 03/27/2014

Tidewater

Physical Therapy,

Inc.

Dr. Kaz Vision

Center;

Annotation of

Chiari

Malformation

Sentara

Neurology, Adel

Boulos-Mikhaiel,

M.D., Sentara

Hospital;

11/13/2012

02/24/2014,

Objective MRI

imaging

diagnosis: "The

cerebellar tonsils

extend 5 mm

below the

IS .1

10141063

10641072

10731075

10761078

10791092

18F

•

1920F

foremen magnum,

consistent with

the tonsillar

ectopia seen on

the prior brain

MRI"

"HEADACHE",

"numbness and

tingling in her

left side of the

body"

Cardiology; Dr.

Linz 05-05/201408/07/2014Result: Chest

pain: "...heart

symptom reacting

to a noncardiac

issue (a

physiologic

Response.)" No

other medication

therapy other

than Beta blocker

(atenorol). p1098 .

Multiple

Impairment

Questionnaire,

10/03/2014;

Frederick

A69

10931112

11131130

•

21F

Patterson, M.D.,

• Riverside

Neurology

Cervical Spine

MRI Imaging

Report, Frederick

Patterson, M.D.,

Riverside

Neurology,

11311133

11341167

11681174

9/16/2014; No

22F

23F

Spinal Syrinx

Mary Immaculate

Hospital ER,

03/03/2014

Left side chest

pain; and

09/17/2014;

10/27/2011

Clinical Notes,

Frederick

Patterson, M.D.,

Riverside

Neurology,

09/09/2014 office

visit; Positive

Romberg with

sway, tremors,

decrease hand

Feeling; 9/16/2014

MRI

A70

24F

•

interpretation

transcribed on

10/16/2014

Table of Contents

of Medical

Records obtained

Through DoD

Centralized

Location Medical

Sharing Initiative

Database,

9/12/2000 through

03/07/2016—

Appeals Council

Requested

Duplicate

medical

records, dated

03/07/2016

A71

11752286

1112

Appendix D

Constitutional Provisions

Statutory Text

(Rule 14.1(f))

Title(s)

Page(s)

18 U.S.C. §242........6, 7, 10, 14, 18, 63, A72-73

Deprivation of rights under color of law:

"Whoever, under color of any law,

statue, ordinance, regulation, or

custom, willfully subjects any person in

any State, Territory, Commonwealth,

Possession, or District to the

deprivation of any Eights, privileges, or

immunities secured or protected by the

Constitution or laws of the United

States, or to different punishments,

pains, or penalties, on account of

such person being an alien, or by

reason of his color, or race, than are

prescribed for the punishment of

citizens, shall be fined under this title

or imprisoned not more than one year,

or both; and if bodily injury results from

the acts committed in violation of this

section or if such acts include the use,

attempted use, or threatened use of a

dangerous weapon, explosive, or fire,

shall be fined under this title or

A72

Page(s)

Title(s)

18 U.S.C. §242 (Continuation):

imprisoned not more than ten years, or

both; and if death results from the acts

committed in violation of this section or

if such acts include kidnapping or an

attempt to kidnap aggravated sexual

abuse, or an attempt to kill, shall be

fined under this title, or imprisoned for

any term of years or for life, or both, or

may be sentenced to death."

18 U.S.C. §1001.........6, 7, 10, 14, 18, 19, 37, 61,

Statements or entries generally:

63, A 73-74

"(a) Except • as otherwise provided, in

this section, whoever, in any matter

within the jurisdiction of the executive,

legislative, or judicial branch of

the Government of the United States,

knowingly and willfully

falsifies, conceals, or covers up

by any ,trick, scheme, or device 'a

material fact:

makes any materially false,

fictitious,

fraudulent

statement of representation; or

makes or uses any false writing

or document knowing the same

to contain any materially false,

fictitious,

fraudulent

statement or entry;"

A73

Page(s)

Title(s)

18 U.S.C. §1001 (Continuation):

"shall be fined under this title,

imprisoned not more than 5 years or, if

the offense involves international or

domestic terrorism (as defined in

section 2331), imprisoned not more

than 8 years, or both. If the matter

relates to an offense under chapter

109A, 109B, 110, or 117, or section

1591, the term of imprisonment

imposed under this section shall be not

more than 8 years."

28 U.S.C. §453, Oaths of...........8, 10, 18, A74

Justices and Judges:

"I,

do solemnly swear (or

affirm) that I will administer justice

without respect to persons, and do equal

right to the poor and to the rich, and

that I will faithfully and impartially

discharge and perform all the duties

incumbent upon me as

under

the Constitution and laws of the United

States. So help me God."

____

42 U.S.C. §1983, Civil ............6, 8, 10, 13, 14,

action for deprivation of rights:

A74

18, 37, 63, A 74-75

Title(s)

Page(s)

42 U.S.C. §1983 (continuation):

"Every person who, under color of any

statue, ordinance, regulation, custom,

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States dr other person

within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress, except that in any action

brought against a judicial officer for an

act or omission taken in such officer's

judicial capacity, injunctive relief shall

not be granted unless declaratory

decree was violated or declaratory relief

was unavailable."

42 U.S.C. §2000d.............8, 10, 18, 63, A75

Title VT of the Civil Rights Act of 1964, states:

"No person in the United States shall,

on the grounds of race, color, or

national origin, be excluded from

participation in, be denied the benefits

of, or be subjected to discrimination

under any program or activity receiving

Federal financial assistance."

A 75

Page(s)

Title(s)

Code of Conduct

i, iii, 6, 8, 10, 18, 36, 37, 62,

...

A76

for United States Judges:

"Canon 1: A Judge Should Uphold the

Integrity, and Independence of the

Judiciary"

"Canon 2: A Judge Should Avoid

Impropriety and the Appearance of

Impropriety in all Activities"

"Canon 3: A 'Judge Should Perform the

Duties of the Office Fairly, Impartially,

and Diligently"

United States Constitution:

Amendment V...........7, 8, 10, 18, 37,

Rights of Persons:

63, 40, 67, A 76-77

"No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment

of a grand jury, except in cases arising

in the land or naval forces, or in the

A76

Title(s)

Page(s)

Amendment V (Continuation):

militia, when in actual service in time

of war or public danger; nor shall any

person be subject for the same offense

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor deprived of life, liberty, or

property, without due process of law;

nor shall private property be taken for

public use, without just compensation."

Amendment XIV, Rights ......7, 8, 10, 18

Guaranteed Privileges

37, 63,

and Immunities of Citizenship,

A77-78

Due Process, and Equal Protection:

"1. All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

the United States and of the State

wherein they reside. No State shall

make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any person

A77

Page(s)

Title(s)

Amendment XIV (Continuation):

within its jurisdiction the equal

protection of the laws."

Article VI, Prior Debts, ....6, 8, 9, 10, 12

National Supremacy,

13, 19, 36, 62,

Oaths of Office:

A78

"3. The Senators and Representatives

before mentioned, and the Members of

the several State Legislatures, and all

executive and judicial Officers, both of

the United States and the several

States, shall be bound by Oath or

support

this

Affirmation,

Constitution; but no religious Test shall

ever be required as a Qualification to

any Office or public Trust under the

United States."

A78

Index of Appendices

Rule 14.1(i)

Page(s)

Title(s)

Appendix A: U.S. Court of Appeals for..... A1-11

the Fourth Circuit Opinions, Judgment, Orders and

and relevant docket ECFs:

Appendix B: U.S. District Court, E.D ..... All-52

Va., Newport News Division, Report of Recommendation, Plaintiffs Objection, Final Order and Docket

ECFs:

Appendix C: Administrative Record (AR).. A52- 71

Under Seal; SSA Disability Court Exhibits

Appendix D: Constitutional Provisions.

A 72-78

Statutory Text:

Certificate of Compliance (Rule 33.1(h)):

...

A79-80

Certificate of Service (Rule 29.5). ......... A81-84

Index of Appendices ....................... A85

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.