Moss v. Office of Disability Adjudication and Review et al

Filing 17

ORDER vacating 15 Report and Recommendations. Plaintiff is ORDERED to file his opening brief complying with the above within 14 days of service of this order or face a recommendation of dismissal for failure to comply with a Court order. Signed by Magistrate Judge James E. Graham on 11/29/2018. (evs)

FILED
Scott L. Poff, Clerk
United States District Court

By Ericka Sharpe at 2:45 pm, Nov 29, 2018

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
BRADFORD E. MOSS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CV418-049

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ORDER
Plaintiff filed his Complaint seeking review of a final decision of the
Commissioner of Social Security and motion to proceed in forma pauperis
(IFP) in March 2018. Docs. 1 & 2. The Court, after screening, granted
IFP and permitted his Amended Complaint to be served by the United
States Marshal. Docs. 5 & 8. Plaintiff was also served with this Court’s
General Order in Social Security Appeals, which sets forth the briefing
schedule and requirements to which all Social Security appeal plaintiffs
(whether pro se or represented by counsel) must adhere. Doc. 4. That
Order explains that within 30 days of lodging of the Administrative Record
and filing of defendant’s answer to the complaint, plaintiff must file his
opening brief setting forth his entitlement to relief. The Record was

lodged and answer filed on July 27, 2018, yet plaintiff failed to file his
opening brief or request more time to do so despite the Court’s order.
Doc. 14. The Court therefore recommended Moss’ complaint be dismissed
on inactivity and, thus, abandonment grounds. Doc. 15. Plaintiff has since
filed an “objection” that, perhaps, he hopes will be reconstrued as an
opening brief. Doc. 16.
Plaintiff lists six “factor[s] attributing to the need for disability”
benefits. Doc. 16 at 1. He is (1) unable to financially contribute to his
family, preventing him from “feel[ing] as if [he is a] productive member
and head of [his] household”; (2) unable to stand for prolonged periods of
time; (3) unable to repetitively bend and lift, “immediately rais[ing] a red
flag to employers” who “do not want to take on the risk of further injury”
by hiring him; (4) unable to sit for long period of time to travel by car,
plane, train, or bus to visit aging family members or plan a vacation;
(5) waiting for surgery, delayed by Workers’ Compensation, that may
resolve his disabling impairments and permit him to work; and (6) limited
in his ability to fulfill his social and spousal duties. Id. at 1-2.
That list does not, however, demonstrate any error in the
Administrative Law Judge’s written denial of benefits. At most, Moss
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waves at a general allegation that his physical ability to work is not as
extensive as the ALJ concluded it to be. Id. But to have this Court review
the Commissioner’s decision, there must be something more than “they
got it wrong.” As set forth in this Court’s General Order, plaintiff must:
(a) State the issues presented for review, set forth in separate
numbered paragraphs. In other words -- what did the ALJ get
wrong?
(b) Briefly summarize his mental and physical impairments and the
medical evidence supporting those impairments, with references to
the pages of the Administrative Record where that medical evidence
may be found. Meaning -- what evidence did the ALJ have before
him when he denied benefits?
(c) Separately and clearly set forth his argument regarding each
issue, with specific reference to the portion of the record relied upon
and by citations to statutes, regulations, and cases. Or, how did the
ALJ get it wrong?
See doc. 4 at 2. Plaintiff apparently wishes to continue to prosecute his
case. See doc. 16. The Court appreciates that plaintiff disagrees with the
ALJ’s conclusion that he is not disabled. His burden, however, is to clearly
identify some mistake (or mistakes) in the administrative record that led
the ALJ to that (incorrect) conclusion. If he is unable to identify any
mistake, there is nothing for this Court to review.
Crediting plaintiff’s objections as a late attempt to comply with the
Court’s Order, the Court’s Recommendation that the case be dismissed on
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inactivity grounds is VACATED.

Plaintiff is ORDERED to file his

opening brief complying with the above within 14 days of service of
this order or face a recommendation of dismissal for failure to comply
with a Court order. See Fed. R. Civ. P. 41(b); S.D. Ga. L.R. 41.1(c).; Link
v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (courts have the inherent
authority to dismiss claims for lack of prosecution); Mingo v. Sugar Cane
Growers Co-op, 864 F.2d 101, 102 (11th Cir. 1989); Jones v. Graham, 709
F.2d 1457, 1458 (11th Cir. 1983); Floyd v. United States, CV491-277 (S.D.
Ga. June 10, 1992).
SO ORDERED, this 29th day of November, 2018.

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