Allen v. Commissioner of Social Security
Filing
26
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AFFIRMING THE DECISION OF THE COMMISSIONER AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH. Signed by Chief Judge S. Thomas Anderson on 7/19/17. (Anderson, S. Thomas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MACK W. ALLEN,
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Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
Case No: 1:15-cv-01159-STA-tmp
ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
AFFIRMING THE DECISION OF THE COMMISSIONER
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
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Plaintiff Mack W. Allen filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying his application for disability insurance benefits under
Title II of the Social Security Act (“Act”) and an application for supplemental security income
(“SSI”) benefits based on disability under Title XVI of the Act between the alleged onset date
and October 26, 2009. Plaintiff’s applications were denied initially and upon reconsideration by
the Social Security Administration. Plaintiff then requested a hearing before an administrative
law judge (“ALJ”). On September 17, 2013, the ALJ found Plaintiff to be disabled beginning
October 26, 2009, but not before that date. The Appeals Council denied Plaintiff’s request for
review, and, thus, the decision of the ALJ became the Commissioner’s final decision. Plaintiff,
pro se, has filed a complaint in this Court contending that he is entitled to “backtime disability”
for the period between his alleged onset date and October 26, 2009, and an increase in his
monthly disability check. (Cmplt. p. 2, ECF No. 1.)
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After the matter had been fully briefed by the parties, on August 12, 2016, Magistrate
Judge Tu M. Pham issued a report recommending that the decision of the Commissioner be
affirmed. (ECF No. 21.) Plaintiff filed objections to the report and recommendation on August
31, 2016. (ECF No. 22.) The Commissioner filed a response to Plaintiff’s objections (ECF No.
23), and Plaintiff filed an additional brief on September 30, 2016. (ECF No. 24.) Having
reviewed the record, the controlling case law, and Plaintiff’s objections, the Court agrees with
the Magistrate Judge’s recommendation. The report and recommendation is ADOPTED, the
decision of the Commissioner is AFFIRMED, and the case is hereby DISMISSED.
As noted by the Commissioner, Plaintiff’s objections are untimely. The parties had
fourteen days to file written objections. Plaintiff did not file his objections until August 31,
2016, five days after the deadline of August 26. Plaintiff’s failure to timely file written
objections constitutes a waiver of any objections.
However, even on the merits, Plaintiff’s objections fail because the Magistrate Judge
properly determined that substantial evidence supports the Commissioner’s decision. Under 42
U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made by the
Commissioner after a hearing to which he was a party. The Court’s review is limited to
determining whether there is substantial evidence to support the Commissioner’s decision, 42
U.S.C. § 405(g), and whether the correct legal standards were applied. Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting
Richardson v. Perales, 402 U.S. 389 (1971)). It is “more than a mere scintilla of evidence, but
less than a preponderance.” Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996)
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(citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
When substantial
evidence supports the Commissioner’s determination, it is conclusive, even if substantial
evidence also supports the opposite conclusion. Warner v. Comm’r of Soc. Sec., 375 F.3d 387,
390 (6th Cir. 2004); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001).
Here, the Magistrate Judge carefully looked at the ALJ’s weighing of the medical
evidence in the record and the ALJ’s credibility determination and found that all legal rules were
followed and that substantial evidence supported the ALJ’s findings. In his objections, Plaintiff
has presented no relevant facts or arguments not considered by the Magistrate Judge. Because
Magistrate Judge Pham evaluated the ALJ’s decision under the proper legal standards and
addressed all of Plaintiff’s arguments, the report and recommendation is ADOPTED in its
entirety.
The Court must also consider whether Plaintiff should be allowed to appeal this decision
in forma pauperis, should he seek to do so.
Pursuant to the Federal Rules of Appellate
Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must obtain pauper
status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir.
1999). Rule 24(a)(3) provides that, if a party was permitted to proceed in forma pauperis in the
district court, he may also proceed on appeal in forma pauperis without further authorization
unless the district court “certifies that the appeal is not taken in good faith or finds that the party
is not otherwise entitled to proceed in forma pauperis.” If the district court denies pauper status,
the party may file a motion to proceed in forma pauperis in the Court of Appeals. Fed. R. App.
P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438,
445 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks
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appellate review of any issue that is not frivolous. Id. The same considerations that lead the
Court to adopt the Magistrate Judge’s report and recommendation compel the conclusion that an
appeal would not be taken in good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by
Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore,
DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay the full appellate
filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth
Circuit Court of Appeals within thirty (30) days.1
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: July 19, 2017.
1
Pursuant to Fed. R. App. P. 3(a), any notice of appeal should be filed in this court. A motion to
appeal in forma pauperis then should be filed directly in the United States Court of Appeals for
the Sixth Circuit. Unless he is specifically instructed to do so, Plaintiff should not send to this
Court copies of motions intended for filing in the Sixth Circuit.
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