Bays v. Astrue
Filing
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MEMORANDUM OPINION AND ORDER adopting and incorporating the 12 Proposed Findings and Recommendation by Magistrate Judge; granting judgment in favor of the Commissioner; affirming the Commissioner's final decision; and dismissing and striking this civil action from the docket. Signed by Judge John T. Copenhaver, Jr. on 7/17/2012. (cc: attys; Magistrate Judge Mary Stanley) (cbo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CINDY MARIE BAYS,
Plaintiff,
v.
CIVIL ACTION NO: 2:11-cv-00548
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
On August 12, 2011, plaintiff instituted this action
seeking judicial review of the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g).
The sole issue before the court
is whether the decision denying plaintiff’s claim is supported
by substantial evidence.
See 45 U.S.C. § 405(g).
By standing order this action was referred to the
Honorable Mary E. Stanley, United States Magistrate Judge.
On
May 15, 2012, the magistrate judge filed her Proposed Findings
and Recommendation ("PF&R").
In the PF&R, the magistrate
recommends that the Commissioner's final decision be affirmed
and this matter dismissed from the docket.
plaintiff filed her objection.
Commissioner filed his response.
On May 31, 2012,
On June 13, 2012, the
I.
On June 26, 2008, plaintiff filed an application for
supplemental security income.
That claim was denied initially
on September 29, 2008, and upon reconsideration on June 26,
2009.
On July 29, 2009, plaintiff filed a written request for a
hearing, which was held before Administrative Law Judge Thomas
Erwin (“ALJ”) on November 15, 2010.
At the conclusion of that
hearing, a post-hearing psychological consultative evaluation
was scheduled in an attempt to further develop the record.
The post-hearing evaluation was originally scheduled
for December 27, 2010.
However, plaintiff was unable to attend
that day, and the examination was rescheduled for January 19,
2011.
On January 18, 2011, plaintiff’s counsel contacted
plaintiff to remind her of the appointment.
Nonetheless,
plaintiff failed to appear for the examination.
Instead, she
claims, early on the morning of the examination she was taken to
a local hospital to treat a bacterial infection in her leg.
She
further claims that she at some point contacted the examiner’s
office at the state Disability Determination Section (“DDS”) to
make them aware that she was unable to make the appointment.
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No
new examination was scheduled.
Subsequently, on February 8,
2011, the ALJ issued his opinion, stating that
at the conclusion of the hearing, a psychological
consultative evaluation was scheduled in an attempt to
more fully develop the record. The claimaint did not
appear for the scheduled evaluation, provide an
explanation for such failure to appear, or request for
the evaluation to be rescheduled. Accordingly, the
undersigned finds that the claim is now ready for
decision.
(Tr. at 16).
not disabled.
Ultimately, the ALJ concluded that plaintiff was
(Id. at 26).
II.
Plaintiff reasserts an argument that was addressed by
the magistrate in her PF&R, that the Commissioner’s decision is
not supported by substantial evidence because the ALJ violated
20 C.F.R. § 416.918 by failing to find good cause for
plaintiff’s inability to appear for a post-hearing consultative
examination and, as a result, failed to adequately develop the
record.
The applicable regulation states that
If you are applying for benefits and do not have a
good reason for failing or refusing to take part in a
consultative examination or test which we arrange for
you to get information we need to determine your
disability or blindness, we may find that you are not
disabled or blind. If you are already receiving
benefits and do not have a good reason for failing or
refusing to take part in a consultative examination or
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test which we arranged for you, we may determine that
your disability or blindness has stopped because of
your failure or refusal. Therefore, if you have any
reason why you cannot go for the scheduled
appointment, you should tell us about this as soon as
possible before the examination date. If you have a
good reason, we will schedule another examination. We
will consider your physical, mental, educational, and
linguistic limitations (including any lack of facility
with the English language) when determining if you
have a good reason for failing to attend a
consultative examination.
20 C.F.R. § 416.918(a).
Illness on the date of a scheduled
examination or test is one example of a good reason for failure
to appear.
Id. at § 416.918(b)(1).
As the magistrate judge observed, at the time of the
ALJ’s decision, plaintiff had offered no explanation for missing
her scheduled examination.
While plaintiff subsequently
explained in her brief to the Appeals Council two months later
in April, 2011, that she was admitted to the hospital on the
morning of her scheduled examination, she provides no evidence - such as medical records or affidavits -- indicating that her
hospitalization actually occurred.
Further, plaintiff does not
provide any evidence that she contacted DDS or the ALJ at the
time of her appointment.
As such, the substantial evidence
supports the determination that plaintiff did not show good
reason for her failure to attend the consultative examination.
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III.
For the reasons stated, and having reviewed the record
de novo, the court ORDERS as follows:
1.
That the PF&R be, and it hereby is, adopted and
incorporated herein;
2.
That judgment be, and it hereby is, granted in favor
of the Commissioner;
3.
That the Commissioner’s final decision be, and it
hereby is, affirmed; and
4.
That this civil action be, and it hereby is, dismissed
and stricken from the docket.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and the
United States Magistrate Judge.
DATED:
July 17, 2012
John T. Copenhaver, Jr.
United States District Judge
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