Fadeley v. Commissioner of Social Security

Filing 87

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 83 ,GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT [DKT. NO. 75 , DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT[DKT. NO. 79 OVERRULING PLAINTIFFS OBJECTIONS[DKT. NO. 85 , AND DISMISSING THE CASE. (copy pspl) Signed by District Judge Thomas S. Kleeh on 3/31/20. (jss) (Additional attachment(s) added on 3/31/2020: # 1 Certified Mail Return Receipt) (jss).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
JOHN LEONARD FADELEY,
Plaintiff,

v.

CIVIL CASE NO: 1:17-CV-129
(Judge Kleeh)

ANDREW M. SAUL 1, Commissioner
of Social Security Administration,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 83],
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 75],
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 79] OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 85], AND DISMISSING THE CASE
Pending with the Court is the Report and Recommendation
(“R&R”) issued by Magistrate Judge James P. Mazzone on September
19, 2019 [Dkt. No. 83] recommending that Defendant’s motion for
summary judgment be granted.

Plaintiff, John Leonard Fadeley

(“Fadeley” or “Plaintiff”), proceeding pro se 2, brought this action
pursuant to Section 205(g) of the Social Security Act, as amended

1

On June 17, 2019, Andrew M. Saul became the Commissioner of
Social Security.
Pursuant to Fed. R. Civ. P. 25(d), he is
automatically substituted for Defendant Nancy A. Berryhill, who
was the Acting Commissioner of Social Security when this action
was filed.
2

A non-lawyer representative, Fadeley’s brother-in-law David Tabb,
assisted Plaintiff with his SSA application, the review process,
and this matter [Dkt. No. 83 at 2].

(42 U.S.C. § 405(g)), to obtain judicial review of a final decision
of the Commissioner of Social Security denying his claim for
Disability Insurance Benefits (“DIB”) under the Social Security
Act (“SSA”) 3 [Dkt. Nos. 1, 1-1].
I.

BACKGROUND/PROCEDURAL HISTORY

Along with his July 24, 2017, Complaint [Dkt. Nos. 1, 1-1],
Plaintiff filed an application to proceed in forma pauperis [Dkt.
No. 2], which was granted by the magistrate judge on July 31, 2017
[Dkt. No. 4]. Plaintiff was provided written Notice of the General
Guidelines for Appearing Pro Se in Federal Court [Dkt. No. 3], and
a summons was issued to the Commissioner of the Social Security
Administration (“Defendant” or “Commissioner”) [Dkt. No. 5].
This case was referred to the United States Magistrate Judge
for submission of proposed findings of fact and recommendation for
disposition under 28 U.S.C. § 636(b)(1)(B). The Commissioner filed
a motion to dismiss because Plaintiff’s Complaint was filed more
than sixty (60) days after the Appeals Council denial of review
[Dkt. No. 17].

The motion was considered by the Magistrate Judge

at an evidentiary hearing and denied [Dkt. Nos. 36, 48].

3

The

The Appeals Council denied Plaintiff’s request for review on May
15, 2017, and sent Plaintiff notice of the action [Dkt. No. 61-2
at 2]. The Appeals Council notes that Plaintiff submitted eight
pages of additional evidence but that it was not considered because
it did not show a reasonable probability that it would change the
outcome of the decision [Id. at 3].
2

Commissioner filed an Answer to Plaintiff’s Complaint on March 5,
2019, together with a copy of the Social Security Administrative
Record [Dkt. Nos. 60, 61].
motion

for

memorandum.

summary

judgment

On May 6, 2019, Defendant filed a
[Dkt.

No.

75]

with

supporting

On May 17, 2019, pro se Plaintiff filed a response in

opposition to the motion for summary judgment [Dkt. No. 79] which
was treated by the Magistrate Judge as a motion for summary
judgment [Dkt. No. 83 at n.1].
On September 19, 2019, after consideration of the motions,
the

Magistrate

Defendant’s

Judge

motion

for

entered
summary

a

report

judgment

be

recommending
granted

and

that
that

Fadeley’s motion for summary judgment be denied [Dkt. No. 83].

A

copy of the R&R was received by Plaintiff on September 24, 2019
[Dkt. No. 84].

The R&R stated that “[a]ny party who appears pro

se and any counsel of record, as applicable, may, within fourteen
(14) days after being served with a copy of this Report and
Recommendation, file with the Clerk of the Court written objections
identifying the portions of the Report and Recommendation to which
objection is made, and the basis for such objection” [Dkt. No. 83,
10].

It further warned that a failure to timely file objections

to the R&R will result in waiver of the right to appeal [Id.].
Fadeley filed an application for DIB on August 12, 2014,
alleging disability beginning on November 19, 2010 [Dkt. No. 83,
3

2; Dkt. No. 61-6, 2-5]. Plaintiff claimed he was rendered disabled
under the SSA due to an inability to walk and cirrhosis of the
liver [Id.; Dkt. No. 61-7, 4-5].

The application was denied

initially on November 7, 2014, and upon reconsideration on or about
March

2,

2015

[Id.;

Dkt.

No.

61-4,

12-16,

20-22].

An

administrative law hearing was held on January 10, 2017, during
which Plaintiff and his non-lawyer representative, David Tabb,
appeared before the Administrative Law Judge (“ALJ”) [Id.; Dkt.
No. 61-2, 34-54].

On February 13, 2017, the ALJ entered a decision

finding that Plaintiff had not been under a disability at any time
from November 19, 2010, the alleged disability onset date, through
June 30, 2013, the date last insured [Id.; Dkt. No. 61-2, 13-20].
As set forth in the R&R, the ALJ found that Plaintiff was
last insured on June 30, 2013, and that he did not engage in
substantial gainful activity from the onset date of November 19,
2010, through his last insured date of June 30, 2013 [Dkt. No. 83,
4].

For that period, there were no medical signs or laboratory

findings to substantiate the existence of a medically determinable
impairment [Id.].

Ultimately, the ALJ concluded that Plaintiff

was not under a disability as defined by the SSA at any time from
November 19, 2010, through June 30, 2013 [Id.].
Plaintiff asked the Appeals Council to review the ALJ’s
decision, and submitted eight pages of medical records that pre4

dated June 30, 2013 [Dkt. No. 76, 2; Dkt. No. 60-2, 2-3 and 2632].

The records reflect mild arthritis in Plaintiff’s hip and

knee, mild complaints of pain, and a generally normal physical
examination

[Id.].

The

Appeals

Council

determined

that

the

additional evidence did not show a reasonable probability that it
would change the decision, and declined Fadeley’s request for
review [Id.].
II.

APPLICABLE LAW

A. Review of the R&R
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court is required
to make a de novo review of those portions of the R&R to which
objection is timely made.

However, a failure to file objections

permits the district court to review the R&R under the standard
that it believes to be appropriate, and if parties do not object
to an issue, the parties’ right to de novo review is waived.

See

Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979). Additionally,
if

the

Plaintiff’s

objections

simply

“reiterate[]

the

same

arguments made by the objecting party in [her] original papers
submitted to the magistrate judge … the Court subjects that portion
of the report-recommendation challenged by those arguments to only
a clear error review.”

Taylor v. Astrue, 32 F. Supp. 3d. 253, 260

(N.D.N.Y. 2012); See 28 U.S.C. § 636(b)(1)(A) (for those findings
to which objections were not filed, the findings and recommendation
5

will be upheld unless they are clearly erroneous or contrary to
law).

Therefore, the Court will conduct a de novo review of those

portions of the R&R to which a party makes new objections and will
review the remaining portions of the R&R for clear error.
B. Review of the ALJ’s Decision
The Social Security Act limits this Court’s review of a final
decision of the Commissioner to: (1) whether substantial evidence
supports

the

Commissioner’s

decision,

and

(2)

Commissioner applied the correct legal standards.

whether

the

See Richardson

v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). “Substantial evidence” is not a “large
or considerable amount of evidence,” but rather, “such relevant
evidence as a reasonable mind might accept as adequate to support
a

conclusion.”

Pierce

v.

Underwood,

487

U.S.

552,

664-65

(1988)(internal citations and quotations omitted); Perales, 402
U.S. at 401 (citations omitted).

The decision before the Court is

“not whether the Claimant is disabled, but whether the ALJ’s
finding of no disability is supported by substantial evidence.”
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)(internal
citations and quotations omitted).

The ALJ’s decision must be

upheld if it is supported by “substantial evidence.”
405(g), 1383(c)(3).

6

42 U.S.C. §§

Further, a reviewing court must not re-weigh the evidence or
substitute its judgment for that of the Commissioner, so long as
that decision is supported by substantial evidence.
F.2d at 1456.

Hays, 907

Ultimately, it is the duty of the ALJ reviewing a

case, not the responsibility of the Court, to make findings of
fact and to resolve conflicts in the evidence.

King v. Califano,

599 F.2d 597, 599 (4th Cir. 1979)(“This Court does not find facts
or

try

the

case

determinations.”).

de

novo

when

reviewing

disability

See Seacrist v. Weinberger, 538 F.2d 1054,

1056-57 (4th Cir. 1976)(“We note that it is the responsibility of
the [Commissioner] and not the courts to reconcile inconsistencies
in the medical evidence, and that it is the claimant who bears the
risk of nonpersuasion.”).
C. Evaluation Process
To determine whether a claimant is disabled, the ALJ conducts
a five-step evaluation process.

20 C.F.R. § 404.1520(a)(4).

If

the ALJ finds the claimant is not disabled at a certain step, the
ALJ does not proceed to the next step.

Id.

At step one, the ALJ must determine whether the claimant is
engaging in substantial gainful activity. Next, the ALJ determines
whether the claimant has a severe impairment.

Then, the ALJ

determines whether the claimant has a listed impairment (20 C.F.R.
Part 404, Subpart P, Appendix 1) and conducts a Residual Functional
7

Capacity (“RFC”) assessment.

At step four, the ALJ considers the

RFC assessment, age, education, and work experience to determine
whether the claimant can perform any other work.

See Davidson v.

Astrue, Civil Action No. 2:11-CV-55, 2012 WL 667296, at *3 (N.D.
W. Va. Feb. 28, 2012)(citing 20 C.F.R. § 404.1520(a)(4)).
Here, under the five-step process, the ALJ found that Fadeley
was not disabled because he did not engage in substantial gainful
activity from the alleged onset date of November 19, 2010, through
his last insured date of June 30, 2013 [Dkt. No. 83, 4; Dkt. No.
61-2, 13-20].
III. DISCUSSION
In this matter, Magistrate Judge Mazzone found that the ALJ’s
decision is supported by substantial evidence [Dkt. No. 83, 6].
This Court agrees.

The ALJ was forthright with Plaintiff during

the January 10, 2017, administrative law hearing when he explained
that

non-medical

testimony

of

people

familiar

with

Plaintiff

without medical evidence of his conditions could not support a
decision for DIB [Dkt. No. 61-2, 51-53].

The ALJ’s decision

likewise states that a medically determinable physical or medical
impairment must be established by medical evidence, and that under
no circumstances may evidence of impairment be established on the
basis

of

symptoms

alone

in

the

absence

abnormalities [Dkt. No. 61-2, 18-19].
8

of

objective

medical

Moreover, the ALJ properly concluded that Plaintiff last met
the insured status requirements for the SSA on June 30, 2013 [Dkt.
No. 61-2, 18], a finding challenged by Fadeley.

The DIB program

provides for payment of benefits to a person who is “insured” by
virtue of tax on their earnings. 4
404.315.

20 C.F.R. §§§ 404.110, 404.130,

The evidence presented to the ALJ substantially supports

the conclusion that Fadeley did not engage in substantial gainful
activity through his last insured date of June 30, 2013, because
he showed no earnings after 2010 [Dkt. No. 61-6, 7-12].
As noted in the R&R, “[t]o qualify for DIB [a plaintiff] must
prove that [he or she] became disabled prior to the expiration of
[his

or

her]

insured

status.”

Johnson,

434

F.3d

at

655-56

(citations omitted); See 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20
C.F.R. §§ 303.101(a), 404.131(a).

The Court agrees with the

Magistrate Judge’s conclusion – Plaintiff failed to provide that
he became disabled prior to his last insured date of June 30, 2013,
and the ALJ’s decision and the decision of the Appeals Council

4

SSA rules for determining the Date Last Insured (“DLI”) in certain
cases where the alleged disability is not caused by a traumatic
event are complex and need not be analyzed here. The DLI is based
on the earnings record and may require manual calculation. See
SSA Program Operations Manual System (“POMS”), RS 00301.148 Date
Last Insured; RS 00301.120 DIB Insured Status. While Plaintiff
argues that the June 30, 2013, DLI was not explained to him during
the benefit review process, Fadeley’s earnings record is not in
dispute.
9

should

be

affirmed.

Although

Plaintiff

attempted

to

submit

additional records to the Appeals Council that pre-date June 30,
2013, the records are limited and do not reflect a disabling
condition that would support DIB.

They do not support a finding

that Plaintiff was unable to work in any job in the national
economy prior to June 30, 2013, and were properly excluded from
consideration by the Appeals Council [Dkt. No. 83 at 10].
The Plaintiff’s objections to the R&R [Dkt. No. 85], filed on
October 9, 2019, do nothing more than reiterate his prior arguments
in submissions to the Court.

He offers nothing new to dispute the

June 30, 2013, date last insured, as he had no earnings after 2010,
and incorrectly states that the Magistrate Judge failed to address
the substance of the additional records sent to the Appeals Council
[Id.

at

2].

The

R&R

analyzed

the

supplemental

records

and

determined that they do not support Plaintiff’s contention that he
was disabled pursuant to the SSA prior to June 30, 2013 [Dkt. No.
83, 8-12].

The Court agrees.

Plaintiff’s objections are without

merit.
IV.

CONCLUSION

Accordingly, for the reasons stated herein and because the
final decision of the Commissioner is supported by substantial
evidence, the Court:

10

1) ADOPTS the Magistrate Judge’s Report and Recommendation
[Dkt. No. 83] in its entirety;
2) GRANTS the Defendant’s Motion for Summary Judgment [Dkt.
No. 75];
3) DENIES Plaintiff’s response brief or Motion for Summary
Judgment [Dkt. No. 79];
4) OVERRULES

Plaintiff’s

Objection

to

the

Report

and

Recommendations [Dkt. No. 85];
5) DISMISSES this matter; and
6) DIRECTS the Clerk to enter a separate judgment order in
favor of Defendant Commissioner and to STRIKE this matter
from the Court’s docket.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record, and to the pro se Plaintiff, via Certified
Mail, return receipt requested, at his last known address as
reflected on the docket.
DATED: March 31, 2020

/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

11