Gregory v. Social Security
Filing
17
FINAL ORDER: The Court ADOPTS AND APPROVES in full the findings and recommendations set forth in the R&R. ECF No. 13. Accordingly, the Commissioner's Motion to Dismiss (ECF No. 7) is GRANTED and this case is DISMISSED WITH PREJUDICE. Copies of this order sent as DIRECTED on 5.15.18. Signed by District Judge Arenda L. Wright Allen and filed on 5/14/2018. (epri)
FLED
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
MAY 1 4 2018
JESTINE DELORES GREGORY,
CLERK. US DISTRICT COURT
NORFOLK. VA
Plaintiff,
V.
Civil No. 2:17cv629
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration,
Defendant.
FINAL ORDER
PlaintiffJestine Delores Gregory ("Plaintiff) brings this action under 42 U.S.C. § 405(g)
seeking judicial review of the final decision of the Social Security Commissioner ("the
Commissioner") to deny her claim for disability insurance benefits ("DIB") under the Social
Security Act. Pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure
72(b), and the Local Rules, this matter was referred to a United States Magistrate Judge for a
Report and Recommendation ("R&R"). ECF No. 10.
In the R&R filed on March 26, 2018, the Magistrate Judge concluded that Plaintiff had
failed to timely file her Complaint and that equitable tolling of the timeliness requirement was
not warranted. ECF No. 13 at 3-4. Accordingly, the Magistrate Judge recommended granting
the Commissioner's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
(ECF No. 7) and dismissing the case with prejudice. Id. at 9.
By copy of the Report, each party was advised of the right to file written objections to the
findings and recommendations made by the Magistrate Judge. Id. The Court has received
Plaintiffs timely objection to the Magistrate Judge's R&R (ECF No. 14), as well as the
Commissioner's response to Plaintiffs objection (ECF No. 16).
I.
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court reviews de novo any part
of a magistrate judge's recommendation to which a party has properly objected.
See also
Wimmer v. Cook, 11A F.2d 68, 73 (4th Cir. 1985) ("[A]ny individual findings of fact or
recommendations for disposition by [the magistrate judge], if objected to, are subject to final de
novo determination ... by a district judge ....").
A court reviewing a decision made in accordance with the Social Security Act must
determine whether the factual findings are supported by substantial evidence and were reached
through application of the correct legal standard. Craig v. Chater, 16 F.3d 585, 589 (4th Cir.
1996).
Accordingly, if the Commissioner's denial of benefits is supported by substantial
evidence and was reached by applying the correct legal standard, the Court must affirm the
Commissioner's final decision. 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 support a conclusion; [i]t consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance."
Craig, 76 F.3d at 589 (citations omitted).
Li
reviewing for substantial evidence, this Court does not reweigh conflicting evidence, make
credibility determinations, or substitute its judgment for that of the Commissioner. Id. The
Commissioner's findings as to any fact, if supported by substantial evidence, are conclusive and
must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971).
n.
BACKGROUND
As recounted in the R&R, Ms. Gregory filed an application for DIB on July 10, 2014.
ECF No. 13 at 1. Ms. Gregory's application was denied on May 18, 2015; again upon
reconsideration on July 13, 2015; and by the Administrative Law Judge ("ALJ") on May 3, 2017.
Id. at 1-2.
Following the filing of Ms. Gregory's Complaint, the Commissioner moved to dismiss
the Complaint for lack of jurisdiction. The Commissioner contended that because Ms. Gregory
had failed to file her Complaint within the sixty-day period after receiving the notice to file a
civil action seeking court review, the Court lacked jurisdiction over the case pursuant to Federal
Rule of Civil Procedure 12(b)(1). See ECF Nos. 7, 8; see also ECF No. 13 at 2-3.
As reviewed above, the Magistrate Judge's R&R recommended that the Commissioner's
Motion to Dismiss be granted because Ms. Gregory filed her Complaint after the sixty-day
window pursuant to 41 U.S.C. § 405(g) had expired. The Magistrate Judge also noted that Ms.
Gregory had failed to submit evidence rebutting the five-day presumptive period—^that is, the
period after the date on the notice, during which it is presumed that the applicant has received the
notice. ECF No. 13 at 4-6.
The Magistrate Judge also found that Ms. Gregory had failed to demonstrate that she had
pursued her rights diligently and that some extraordinary circumstance presented an obstacle to
her pursuit of her rights.
The Magistrate Judge concluded that equitable tolling was not
warranted. Id. at 7-9 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Ms. Gregory filed her objection to the R&R on April 6, 2018.
ECF No. 14. The
Commissioner filed a response on April 17, 2018. ECF No. 16.
Ms. Gregory's objection requests a hearing "on [her] behalf because of new information
on [her] case." See ECF No. 14. Ms. Gregory attaches a letter from a treating physician dated
April 5, 2018, which states that the physician has been seeing Ms. Gregory since the beginning
of 2017 to address chronic issues, including lumbar spinal stenosis and chronic foot pain. ECF
No. 14-1 at 1. The April 5, 2018 letter also includes a medical report from July 20, 2015. Id. at
2. Ms. Gregory also attaches a record of a medical examination from March 23, 2018. Id. at 4.
Ms. Gregory appears to assert that, based on this new evidence, the R&R should be rejected and
the matter should be remanded to the Social Security Administration for reconsideration. She
presents no other information regarding the Magistrate Judge's findings.
III.
ANALYSIS
42 U.S.C. § 405(g) provides for two forms of remand to the Social Security
Administration, only one of which is based on new evidence:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing .... The court . . . may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding ....
The decision in Babcock v. Commissioner of Social Sec., No. 3:10cv431, 2011 WL
2899169, at *6 (E.D. Va. July 18, 2011) further notes that:
A district court reviewing an ALJ's decision cannot consider evidence outside the
record in front of the ALJ. Smith v. Chater, 99 F.3d 635, 638 n.5 (4th Cir. 1996).
A district court can order evidence presented to the Commissioner on remand if
(1) the evidence is relevant to the determination of disability at the time the
application was filed, (2) the evidence is material to the extent that the
Commissioner's decision might reasonably have been different had the new
evidence been before him, (3) there is good cause for the claimant's failure to
submit the evidence when the claim was before the Commissioner, and (4) the
claimant makes a general showing of the new evidence to the reviewing court. 42
U.S.C. § A05{g)\ Borders v. Heckler, 111 F.2d 954, 955 (4th Cir.l985)[;
also] Miller v. Barnhart, 64 Fed. App'x 858, 859-60 (4th Cir. 2003).
The burden of showing that these factors are met rests with the claimant. Keith v. Astrue, No.
4:llcv37, 2012 WL 2425658, at *2 (W.D. Va. June 22, 2012) ("The burden of demonstrating
that all of the Sentence Six requirements have been met rests with the plaintiff").
The Court construes Ms. Gregory's submission of additional evidence as a request for a
remand of the 2017 decision in light of the additional information provided. However, Ms.
Gregory has failed to meet her burden of demonstrating that all four of the remand requirements
have been met. The information from March and April 2018 fail to meet the first requirement
that it be relevant to the determination of disability at the time the application was filed. The
information that Ms. Gregory has presented as new evidence of her disability are dated April 5,
2018 (incorporating medical records from July 20, 2015) and March 23, 2018. See ECF No. 141. Ms. Gregory submitted her application for DIB on July 10, 2014. ECF No. 13 at 1. Her
application was denied on May 18, 2015; again upon reconsideration on July 13, 2015; and by
the ALJ on May 3, 2017. Id. at 1-2. The new information from March and April 2018 does not
relate to the determination of disability at the time the application was filed, and therefore cannot
serve as the basis for rejecting the R&R and remanding to the Social Security Administration.
See Babcock, 2011 WL 2899169, at *6 (denying remand based on new evidence because it did
not relate to a period before the ALJ's decision).'
With respect to the information from July 20,2015, Ms. Gregory has not made a showing
that the information is material and that there is good cause for her failure to incorporate such
evidence into the record in a prior proceeding. See Reichard v. Barnhart, 285 F. Supp. 2d 728,
733 (S.D.W.V. 2003).
Furthermore, even if Ms. Gregory had demonstrated that the new
' Babcock, 2011 WL 2899169, at *6, specifically noted:
Moreover, [the doctor's report submitted as new evidence] is not "new" as the term is
defined in § 405(g). The new evidence must "relate[ ] to the period on or before the date
of the administrative law judge hearing decision." 20 C.F.R. § 404.970(b). The evidence
need not have existed during that period; rather, the evidence must shed light on the
applicant's disability status during the relevant time period. Reichard v. Barnhart, 285 F.
Supp. 2d 728, 733 (S.D.W. Va. 2003). The ALJ issued his decision on October 1, 2008.
[The doctor's] report is dated March 11, 2011. Therefore, the report does not disclose
information pertinent to the period before the ALJ's decision.
information meets the requirements for a Sentence Six remand, she has not demonstrated that the
submission of the information—^whether from July 2015 or this year—^addresses the R&R's
findings regarding timeliness or rebuts the five-day presumption.
Even if her submission is read broadly as an objection regarding equitable tolling, Ms.
Gregory has failed to demonstrate that she diligently pursued her rights or that extraordinary
circumstances prevented her from pursuing her rights. See Pace, 544 U.S. at 418. The United
States Court of Appeals for the Fourth Circuit has not held that health impairments alone are
sufficient to warrant equitable tolling. Rather, "the § 405(g) limitations period has been tolled
only in cases of some administrative malfimction that hinders a claimant's ability to pursue his
rights." Shellman v. Colvin, No. 2:14cv382, 2015 WL 721621, at *1 (E.D. Va. Feb. 18, 2015)
(internal citations omitted). Furthermore, even if the statute of limitations could be tolled based
on Ms. Gregory's medical challenges, courts within this District have concluded that such issues
"are insufficient to warrant such tolling" where the plaintiff has not alleged that he or she
suffered from the exacerbation of his or her symptoms during the sixty-day limitations period or
has not "alleged how such impairments prevented [the plaintiff] from timely filing a complaint
with this Court." Id. Ms. Gregory has alleged neither.
If Ms. Gregory believes that the new information submitted demonstrates that her
condition has worsened to the point that she qualifies for a finding of a disability as to the period
after the administrative decision, Ms. Gregory is encouraged to file a new application for
benefits. 20 C.F.R. § 416.330(b) provides: "If [an applicant] first meet[s] all the requirements
for eligibility after the period for which [the] application was in effect, [the applicant] must file a
new application for benefits." See also Home v. Berryhill, No. I:15cv902, 2017 WL 1155053,
at *1 (D.S.C. March 27, 2017) (regarding new evidence presented by a claimant that related to
the period after the administrative determination, the claimant "remains free to present the
evidence in a new administrative apphcation as to the later time period"); J.M. by Nunley v.
Berryhill, No. 2:15cv475, 2017 WL 570710, at *10 (E.D. Va. Feb. 13, 2017) (denying a
plaintiffs request to consider new evidence because the evidence was not relevant to the
determination of disability at the time the application was filed, but noting that the plaintiff could
file a new application for benefits if she believed that the ALJ would now find a disability);
Goodshield v. Colvin, No. 8:14-1809-MGL-JDA, 2015 WL 5009243, at *13 n.l3 (D.S.C. Aug.
19,2015) (denying a plaintiffs request to consider new evidence because she did not explain her
failure to present the evidence to the ALJ, or explain how the new evidence related back to the
relevant time period and how the new evidence compelled remand, but noting that the plaintiff
could file a new application for benefits if she believed that her functional abilities to work had
deteriorated since the ALJ's decision).
IV.
CONCLUSION
Following this Court's de novo review of the R&R filed on March 26, 2018, and
consideration of the objections filed thereto, and finding no errors, the Court ADOPTS AND
APPROVES in full the findings and recommendations set forth in the R&R.
ECF No. 13.
Accordingly, the Commissioner's Motion to Dismiss (ECF No. 7) is GRANTED and this case is
DISMISSED WITH PREJUDICE.
The parties are ADVISED that an appeal from this Final Order may be commenced by
forwarding a written notice of appeal to the Clerk of the United States District Court, United
States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. This written notice must be
received by the Clerk within sixty days from the date of this Final Order.
The Clerk is REQUESTED to forward a copy of this Order to all parties.
IT IS SO ORDERED.
{Uiy
/
' ' ,2018
Norfoiy Virginia
ArerJdsrl^ Wright Allen
United States District Judge
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