Bennett v. Commissioner Of Social Security Administration

Filing 18

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE granting Plaintiff's 12 Motion for Summary Judgment; denying Defendant's 14 Motion for Summary Judgment; adopting 17 Report and Recommendations. Clerk is directed to enter Judgment. (copy to counsel via CM/ECF) Signed by Senior Judge Frederick P. Stamp, Jr on 3/20/2015. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALVIN R. BENNETT,
Plaintiff,
v.

Civil Action No. 5:14CV100
(STAMP)

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
I.

Background1

In this case, the plaintiff is a 47 year old man seeking
Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”).

Prior to the plaintiff’s current claim for SSI

and DIB, the plaintiff previously filed such a claim in 2009.
Regarding that prior claim, Administrative Law Judge (“ALJ”) Carol
A. Baumerich denied the plaintiff’s claim, finding that he was not
disabled at that time.

The plaintiff filed another claim for SSI

and DIB in July 2011 and was denied by both ALJ Brian P. Kilbane
and later the Appeals Council, which is the source of the current
civil action.
Regarding his occupation, the plaintiff was a carpenter and a
truck driver.
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He sustained serious injuries to his left leg after

This memorandum opinion and order contains only the most
relevant procedural and factual information. For more extensive
background information, see ECF No. 17.

falling off a cliff.

That incident occurred in December 2007, and

resulted in a status post fall, left plateau fracture, and left
knee lacerations.

It appears that after his fall in 2007, the

plaintiff began to develop significant arthritis in his left knee,
as well as lower back pain.

The record also shows that the

plaintiff suffered from seizures for about three years prior to his
fall.
Later in 2009, while under the care of Dr. V. Waid McMillion,
the plaintiff complained of back and neck pain, and mild dizzy
spells.

While under Dr. McMillion’s care, the plaintiff received

various medications and knee injections. The plaintiff’s condition
worsened, to the point where he claimed his pain level was at a six
or seven on a ten-point scale.

Dr. McMillion allegedly stated,

however, that the plaintiff “should [] be able to perform daily
duties of the labor given his age.”
seeing

Dr.

Sophia

Sibold

for

his

The plaintiff later began
conditions,

chiropractor named Dr. Betsy Bartlett.

as

well

as

a

Throughout his numerous

visits to both doctors, the plaintiff’s pain worsened, to the point
where he claimed his pain was a ten on a ten-point scale.

Later,

Dr. Atiya Lateef completed a physical residual functional capacity
assessment of the plaintiff.

In that assessment, Dr. Lateef

determined that, among other things, the plaintiff could perform
light

work

that

avoided

heights,

vibrations.

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hazards,

extreme

cold,

and

In his complaint, the plaintiff argues that ALJ Kilbane, using
the five-step sequential evaluation process, erred in assessing the
plaintiff’s credibility and in applying Acquiescence Ruling (“AR”)
00-1(4), whereas the defendant argues the opposite.

AR 00-1(4)

pertains to the procedure an adjudicator must follow when a final
ALJ or Appeals Council’s decision occurs in a prior disability
claim. Essentially, as applied to this civil action, the plaintiff
asserts that ALJ Kilbane needed to give “appropriate weight” to ALJ
Baumerich’s previous findings concerning whether the plaintiff had
a disability.

In his previous claim, ALJ Baumerich did not find

that the plaintiff had a disability but listed several severe
impairments.

The plaintiff argues that ALJ Kilbane did not

consider and weigh ALJ Baumerich’s prior decisions concerning those
severe impairments.
United States Magistrate Judge John S. Kaull then entered his
report and recommendation.

ECF No. 17.

The magistrate judge, in

examining that claim, agreed with the plaintiff. In particular, he
noted that ALJ Kilbane did not state what weight, if any, he
accorded to ALJ Baumerich’s step two determination.

For that

reason alone, the magistrate judge recommended remanding this civil
action.

Regarding

the

plaintiff’s

claim

that

ALJ

Kilbane

improperly considered the plaintiff’s credibility, the magistrate
judge refrained from addressing that claim because of his prior
finding.

For those reasons, the magistrate judge found that

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substantial evidence did not support the ALJ’s determinations, and
that the case should be reversed and remanded. The parties did not
file objections.

For the reasons set forth below, the report and

recommendation of the magistrate judge is affirmed and adopted.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

As to those

portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are clearly erroneous.
III.

Discussion

As the United States Court of Appeals for the Fourth Circuit
has held, “Under the Social Security Act, [a reviewing court] must
uphold the factual findings of the Secretary if they are supported
by substantial evidence and were reached through application of the
correct legal standard.”
Cir. 1996).

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

“Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Id.

A

reviewing

court

“does

not

reweigh

evidence

or

make

credibility determinations in evaluating whether a decision is
supported by substantial evidence; ‘[w]here conflicting evidence
allows reasonable minds to differ,’ we defer to the Commissioner’s
decision.”

Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir.
4

2011) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)).

Further, as the Supreme Court of the United States stated

in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395.
After reviewing the record before this Court, no clearly
erroneous findings exist concerning the magistrate judge’s report
and recommendation.

Under AR 00-1(4), it provides the following:

where a final decision of SSA after a hearing on a prior
disability claim contains a finding required at a step in
the sequential evaluation process for determining
disability, SSA must consider such finding as evidence
and give it appropriate weight in light of all relevant
facts and circumstances when adjudicating a subsequent
disability claim involving an unadjudicated period.
AR 00-1(4), 2000 WL 43774 at *4 (Jan. 12, 2000).

That ruling was

issued following the United States Court of Appeals for the Fourth
Circuit’s holding in Lively v. Sec. of Health & Human Servs., 820
F.2d 1391, 1392 (4th Cir. 1987), which requires an ALJ to consider
prior administrative findings and assign weight to those findings.
As

the

record

plaintiff’s

shows,

prior

ALJ

claim,

Baumerich,
found

that

who

presided

over

the

plaintiff’s

the

severe

impairments included the following: “bilateral knee degenerative
arthritis, a history of left lateral tibial plateau fracture,

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lumbar

spine

arthritis,

intermittent

dizzy

etiology, and a history of seizure disorder.”
When

ALJ

Kilbane

engaged

in

the

spells

of

unknown

ECF No. 8 *49.

five-step

sequential

evaluation process, however, he identified the following severe
impairments: “seizures and degenerative joint disease.”
*13.

ECF No. 8

In addition, ALJ Kilbane’s findings did not indicate that he

assigned any weight to ALJ Baumerich’s previous findings.

Because

the prior ALJ’s decision at Step Two of the evaluation process was
not properly considered, the civil action must be remanded.

See,

e.g., Bowman v. Astrue, 2011 WL 744767, at *16 (N.D. W. Va. Jan.
27, 2011), affirm. and adopt.,

2011

WL 736806 (N.D. W. Va. Feb.

23, 2011); see also Williams v. Astrue, 2012 WL 4321390, at *3
(E.D.N.C. Sept. 20, 2012). Therefore, this Court finds no error in
the determination of the magistrate judge and thus upholds his
ruling.

As to the plaintiff’s argument concerning ALJ Kilbane’s

credibility determination, this Court agrees with the magistrate
judge in declining to consider it due to the previous assignment of
error.
V.

Conclusion

For the reasons above, the magistrate judge’s report and
recommendation
plaintiff’s

is

motion

hereby
for

AFFIRMED

summary

and

judgment

ADOPTED.
is

Thus,

GRANTED

defendant’s motion for summary judgment is DENIED.

and

the
the

It is further

ORDERED that this case be REMANDED to the Commissioner for further

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action

in

accordance

recommendation.

with

the

magistrate

judge’s

report

and

It is ORDERED that this civil action be DISMISSED

and STRICKEN from the active docket of this Court.
Finally, this Court finds that the parties were properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the defendant has failed to

object, she has waived her right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

March 20, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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