Westfall v. Commissioner Of Social Security Administration

Filing 20

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 19 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: the plaintiff's 13 Motion for Summary Judgment is DENIED; the defendant's 15 Motion for Summary Judgment is DENIED, and the commi ssioner's decision is VACATED and REMANDED for further proceedings. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgmenton this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 7/24/2019. (copy to counsel via cm/ecf) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KENNETH ALLEN WESTFALL,
Plaintiff,
v.

Civil Action No. 5:18CV57
(STAMP)

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

The plaintiff, Kenneth Allen Westfall, by counsel, seeks
judicial review of the above-named defendant’s decision to deny his
claims for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act and Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act following the decision
of

Administrative

Law

Judge

(“ALJ”)

Sabrina

M.

Tilley

that

plaintiff was not disabled within the meaning of the Social
Security Act.

Plaintiff maintains that the following medical

conditions render him disabled pursuant to the Social Security Act:
bilateral carpal tunnel syndrome, chest pains, lower back and hand
pain, restless leg syndrome, torn ligaments and cartilage in the
left knee, migraines, anxiety and depression.

ECF No. 13-1 at 2.

The plaintiff applied for DIB and SSI in June 2014, alleging
disability beginning August 25, 2013.

His claim was denied

initially and again upon reconsideration. The plaintiff then filed
a written request for a hearing, and a video hearing was held
before the ALJ.

On March 28, 2017, the ALJ entered a decision

finding plaintiff had not been under a disability at any time since
his alleged onset date of August 25, 2013.

In the decision, the

ALJ noted plaintiff’s first request for subpoena (dated January 25,
2017) and summarily denied the same as being deficient.

The ALJ

did not address plaintiff’s revised subpoena request of February
14, 2017.
On April 20, 2018, plaintiff timely filed his complaint,
objecting to the final decision of the Commissioner and seeking
remand and reversal of the ALJ’s adverse decision.

ECF No. 1.

Defendant filed an answer on June 28, 2018.

ECF No. 6.

the

Record

Social

Security

contemporaneously

with

Administrative
defendant’s

answer.

ECF

A copy of

was
No.

filed
7.

On

September 4, 2018, plaintiff filed his motion for summary judgment
and memorandum in support.

ECF No. 13.

Defendant filed a motion

for summary judgment and memorandum in support on September 11,
2018.

ECF No. 15.
United States Magistrate Judge James P. Mazzone then entered

his

report

and

objections.

recommendation,

ECF No. 19.

to

which

neither

party

filed

The magistrate judge recommended that

this matter be remanded to the ALJ for further proceedings.
No. 19 at 10.
2

ECF

For the reasons discussed below, the report and recommendation
of the magistrate judge (ECF No. 19) 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.

Because neither party filed

objections, this Court will review the magistrate judge’s findings
and recommendations under the clearly erroneous standard. 28 U.S.C.
§ 636(b)(1)(A).
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
3

decision.”

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

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.
In making his recommendations, the magistrate judge correctly
acknowledging the discretionary nature of the ALJ’s decision to
issue a subpoena, and nevertheless correctly concluded that the ALJ
erred when she failed to make findings relative to plaintiff’s
February 14, 2017, revised request for a subpoena directed to
Westbrook

Health

Services.

ECF

No.

19

at

9.

Further

the

magitsrate judge properly found that “[t]he ALJ’s failure to
address

the

second,

revised

subpoena

request

is

somewhat

confounding because the ALJ relied upon the initial intake record
from

Westbrook

Health

Services

to

support

her

finding

that

Plaintiff was not under a disability at any time relevant to the
proceedings.” Id. The magistrate judge further noted that “[s]uch
reliance demonstrates that Plaintiff’s treatment with Westbrook
Health Services is an important piece of Plaintiff’s case, however,
the ALJ failed to address the second, revised subpoena which
requested the treatment record from Westbrook Health Services.”
4

Id.

Utimately, the magistrate judge concluded that “[w]hile the

ALJ’s apparent failure to consider the second, revised request for
subpoena is problematic, the undersigned does not believe that a
conclusion such as the one Plaintiff urges can be made at this time
without an explanation as to why the ALJ did not consider the
second, revised subpoena request for records from Westbrook Health
Services,” and “that a finding as to whether and to what extent
Plaintiff was prejudiced as result of the ALJ’s failure to consider
the second, revised subpoena request, cannot be made on the record
as it stands currently.”

Id. at 10.

Thus, the magistrate judge

recommended that “this matter be remanded to the ALJ for findings
as to why the second, revised request for subpoena to Westbrook
Health Services was not considered.”

Id.

After reviewing the record and the parties’ filings, this
Court is not “left with the definite and firm conviction that a
mistake has been committed” as to the findings of the magistrate
judge.

United States Gypsum Co., 333 U.S. at 395.

Therefore, the

report and recommendation of the magistrate judge is AFFIRMED and
ADOPTED.
IV.

Conclusion

For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 19) is AFFIRMED and ADOPTED.
Therefore, the plaintiff’s motion for summary judgment (ECF No. 13)
is DENIED, the defendant’s motion for summary judgment (ECF No. 15)
5

is DENIED, and the Commissioner’s decision is VACATED and REMANDED
for further proceedings.1

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 both parties failed to object,
both the defendant and the plaintiff have waived the 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:

July 24, 2019

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

1

Although the magistrate judge recommended that the parties’
motions for summary judgment be deferred, for the same reasons
stated in the report and recommendation, this Court finds that the
appropriate course of action is to deny the parties’ motions for
summary judgment and remand this action for further proceedings.
6