Jeffrey v. Colvin
Filing
14
MEMORANDUM OPINION AND ORDER adopting and incorporating the 11 Proposed Findings and Recommendations by Magistrate Judge; denying plaintiff's objections to the 11 Proposed Findings and Recommendation; affirming the decision of the Commissioner; and dismissing and striking this action from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 3/31/2017. (cc: counsel of record; any unrepresented parties) (ts)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARK LYNN JEFFREY,
Plaintiff,
v.
Civil Action No. 15-15226
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is the objection filed on February 8, 2017, by
plaintiff Mark Lynn Jeffrey to the magistrate judge’s Proposed
Findings and Recommendation (“PF&R”).1
I.
Procedural History
On November 16, 2015, plaintiff, proceeding pro se,
instituted this civil action pursuant to 42 U.S.C. § 405(g).
Plaintiff seeks judicial review of the Commissioner’s
administrative decision denying plaintiff’s application for
disability insurance benefits and supplemental security income.
While Carolyn W. Colvin was the Acting Commissioner of Social
Security as of the date of the objections to the PF&R, Nancy
Berryhill became the Acting Commissioner on January 23, 2017.
1
It is noted that plaintiff first filed for social
security benefits on August 30, 2007.
His claim was denied by
the Administrative Law Judge on November 4, 2009.
Tr. at 6.
After the appeals council denied his request for review,
plaintiff’s counsel filed a complaint in district court.
On
February 22, 2012, Judge Irene C. Berger vacated the
Commissioner’s decision and remanded the matter for further
proceedings because the ALJ did not consider the consultative
examination report of Dr. Bruce Davis.
Id. at 524.
Plaintiff
thereafter became incarcerated and as a result, his attorney
withdrew as his council.
Id. at 568.
After the ALJ again
determined he was not disabled, plaintiff, who remains
incarcerated, instituted this civil action.
This action was referred to United States Magistrate
Judge Dwane L. Tinsley for consideration, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and standing order in this district.
The
magistrate judge filed his PF&R on February 24, 2017.
In that
document, the magistrate judge recommends that the
Commissioner’s final decision be affirmed and that this action
be dismissed from the docket of the court.
See PF&R at 10.
noted, plaintiff timely filed objections to the PF&R.
The
Commissioner has not responded to plaintiff’s objections.
2
As
Plaintiff has five objections to the PF&R.
First,
plaintiff states that there is not substantial evidence in the
record as to “his current health and physical condition.”
Plaintiff’s Objections to PF&R (“Obj.”) at 3-4.
See
Second,
plaintiff objects to the ALJ’s step three determination
respecting Listed impairments.
Id. at 4.
Third, plaintiff says
that “it is not apparent” that the ALJ considered his past
relevant work and determined whether or not he could perform his
past work despite his impairments.
Id. at 4-5.
Fourth,
plaintiff argues that because he turned 55 on June 10, 2011, he
is in the “advanced age” category for social security purposes.
Id. at 6.
Finally, plaintiff states that the PF&R does not
indicate that the ALJ “alerted plaintiff to the availability of
representation through Legal Services and Legal Aid Program.”
Id.
II.
Standard of Review
The court reviews de novo those portions of the
magistrate judge's PF&R to which objections are timely filed.
28 U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982); see also 20 C.F.R. § 416.927(e)(1) (ultimate
decision regarding disability determinations rests with the
Commissioner).
On the other hand, the standard for review of
the Commissioner’s decision is rather deferential to the
3
Commissioner, for, “[u]nder the Social Security Act, [a
reviewing court] must uphold the factual findings of the [ALJ]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.”
Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal citations
and quotations omitted); Oppenheim v. Finch, 495 F.2d 396, 397
(4th Cir. 1974) (court must scrutinize the record as a whole to
determine whether the conclusions reached are supported by
substantial evidence); see also 42 U.S.C. § 405(g).
Substantial
evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.”
Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal citations and quotations
omitted).
“In reviewing for substantial evidence, [a district
court does] not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the ALJ.”
Johnson, 434 F.3d at 653 (internal citations
and quotations omitted).
Substantial evidence is by definition
more than “a mere scintilla,” Smith v. Chater, 99 F.3d 635, 638
(4th Cir. 1996), but “may be somewhat less than a
preponderance,” Blalock v. Richardson, 483 F.2d 773, 776 (4th
Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1996)).
4
III.
Discussion
The Social Security regulations establish a
“sequential evaluation” for the adjudication of disability
claims.
See 20 C.F.R. §§ 404.1520(a), 416.920(a).
The first
question is whether the claimant is currently engaged in gainful
employment.
Id. at §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
If
not, the second question is whether the claimant suffers from a
severe impairment.
Id. at §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii).
If so, the third question is whether the
claimant’s impairment meets or equals any of the specific
impairments listed in Appendix 1 to Subpart P of the
regulations.
Id. at §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant’s impairments meet or equal a listing, he or she
is considered disabled, and is awarded benefits.
Id.
If not,
the inquiry continues on to whether the claimant’s impairments
prevent the performance of past relevant work.
404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Id. at §§
If the claimant
satisfies this inquiry, the claimant establishes a prima facie
case of disability, shifting the burden to the Commissioner for
the fifth and final inquiry.
Hall v. Harris, 658 F.2d 260, 264
(4th Cir. 1981); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th
Cir. 1983).
The final inquiry is whether the claimant is able
to perform other forms of substantial gainful activity
5
considering the claimant’s impairments, age, education and prior
work experience.
20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v).
Here, the ALJ found at step one that plaintiff was
not engaged in substantial employment.
Tr. at 459.
At step
two, the ALJ found that plaintiff suffered from the following
severe impairments: diabetes mellitus, obesity, arthritis,
hyperlipidemia, peripheral neuropathy, and depression.
Id.
At
step three, the ALJ found that plaintiff’s impairments did not
meet or equal any listed impairment.
Id. at 460-61.
At step
four, the ALJ found that plaintiff had the Residual Functional
Capacity (“RFC”) to perform light work with the following
limitations:
[H]e was able to stand and/or walk up to one hour
continuously and four hours in an eight-hour workday in
total; sit two hours continuously and up to eight hours or
more hours in an eight-hour workday; occasionally operate
foot controls bilaterally; frequently but not constantly
able to handle, finger, feel, reach, push, and pull
bilaterally; able to occasionally stoop, kneel, and crouch
but never crawl; occasionally able to tolerate exposure to
hazards such as unprotected heights or moving machinery;
able to occasionally tolerate exposure to extreme heat,
cold, or vibrations; and able to use common sense
understanding to perform instructions provided in oral,
written, or diagrammatic form consistent with a range of
unskilled work at or below reasoning level 3 as those terms
are defined in the Dictionary of Occupational Titles.
Id. at 461.
The ALJ determined that plaintiff retained the
above RFC at least in part because he found that plaintiff’s
6
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, [his] statements
concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons
explained in this decision.”
Id. at 462.
Finally, based on his assessment of plaintiff’s RFC
and the testimony of Ruth Fast, the vocational expert, the ALJ
found, at steps four and five, that plaintiff was not capable of
performing any past relevant work, but was capable of performing
the requirements of representative occupations, such as a mail
sorter, garment folder, and information clerk.
Id. at 465.
The
ALJ concluded that plaintiff “was capable of making a successful
adjustment to other work that existed in significant numbers in
the national economy.”
Id.
plaintiff was not disabled.
As a result, he determined that
Id.
Because neither plaintiff nor the Commissioner filed
any pleadings or motions in the case, the magistrate judge’s
PF&R was based on the record of the case.
After considering the
evidence and the ALJ’s decision, the magistrate judge recommends
that the court affirm the final decision of the Commissioner and
dismiss the matter from the docket of the court.
10.
7
See PF&R at
A. Plaintiff’s Current Condition
Plaintiff first argues that the decision of the ALJ is
not supported by substantial evidence because of the lack of
evidence in the record as to his current health and physical
condition.
Obj. at 3.
Plaintiff asserts that he “should be
given the opportunity to have a complete psychiatric evaluation,
a recent medical evaluation, and current consultative
psychological evaluation,” id., which he says “would account for
the deterioration of [his] health and physical condition since
the consultative medical evaluation performed by Dr. Bruce Davis
on April 4, 2007.”
Id. at 6.
According to the ALJ, plaintiff’s earning record shows
that he had “acquired sufficient quarters of coverage to remain
insured through December 31, 2007.”
Tr. at 457.
Plaintiff must
therefore must establish that he had a disability during the
relevant time period of September 1, 2002, his alleged onset
date of disability, through December 31, 2007, the date he last
met the insured status requirement (“DLI”) under Title II of the
Social Security Act.
See 42 U.S.C. § 416.
Although post-DLI evidence may be considered and
evaluated in determining whether plaintiff was disabled prior to
the DLI, plaintiff has not explained how new consultative
examinations will demonstrate that he was disabled prior to
8
December 31, 2007, arguing only that it will show his
impairments have worsened since his last examinations.
The ALJ
considered the evidence in the record pertaining to plaintiff’s
impairments, including consultative evaluations from 2007 and
2008.
Tr. at 463.
The court thus finds plaintiff’s first
objection is without merit.
B. Step Three Determinations
Plaintiff next contends that the ALJ erred in
concluding that his impairments did not meet or medically equal
any listing at step three.
Obj. at 4.
Plaintiff does not point
to any evidence or listing that the ALJ should have but failed
to properly consider, and otherwise fails to explain his
objection to the ALJ’s step three determination.
To obtain de novo review of a magistrate judge's
findings, the party objecting to the magistrate judge's
recommendation must file specific written objections, see Fed.
R. Civ. P. 72(b), and the district judge “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”
28 U.S.C. § 636(b)(1)(C).
The objection must be made
“with sufficient specificity so as reasonably to alert the
district court of the true ground for the objection,” and cannot
be merely a generalized objection.
9
U.S. v. Midgette, 478 F.3d
616, 621-22 (4th Cir. 2007).
“[W]hen no timely objection is
filed, the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.”
Fed. R. Civ. P. 72.
Because plaintiff’s objection to the ALJ’s step three
determination does not point to any specific error within the
PF&R, the court will review the ALJ’s step three determination
for clear error.
With regards to plaintiff’s diabetes mellitus and
neuropathy, the ALJ considered Listing 9.08.
The ALJ found that
“there was no evidence of severe motor dysfunction, frequent
acidosis, amputation, or retinopathy.
The claimant was also
noncompliant with treatment and medications.”
(internal citations omitted).
Id. at 460
It appears that in analyzing
plaintiff’s diabetes mellitus, the ALJ used the old version of
section 9.00, which, effective June 7, 2011, was revised to
delete the individual endocrine listings, including listing
9.08.
See Revised Medical Criteria for Evaluating Endocrine
Disorders, 76 FR 19692-01.
The revised criteria states that the
revision is due to “significant advances in detecting endocrine
disorders at earlier stages and newer treatments, [which] have
resulted in better management of these conditions since we last
published final rules making comprehensive revisions to the
10
endocrine listings in 1985. . . . Therefore, we have determined
that . . . we should no longer have listings in sections 9.00
and 109.00 based on endocrine disorders alone.”
Id. at 19692.
The old version of listing 9.08 under which the ALJ
analyzed plaintiff’s impairments states
Diabetes mellitus.
With:
A. Neuropathy demonstrated by significant and persistent
disorganization of motor function in two extremities
resulting in sustained disturbance of gross and dexterous
movements, or gait and station (see 11.00C); or
B. Acidosis occurring at least on the average of once every
two months documented by appropriate blood chemical tests
(pH or pCO2 or bicarbonate levels); or
C. Retinitis proliferans; evaluate the visual impairments
under the criteria in 2.02, 2.03, or 2.04.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
As the ALJ discussed, the evidence contained in the
record does not demonstrate that plaintiff had severe motor
dysfunction in two extremities, nor was there evidence of
acidosis or renopathy.
Tr. at 460.
Additionally, the record
does not demonstrate that plaintiff had visual impairments of
the type contemplated in listings 2.02, 2.03 or 2.04.
The amended version of listing 9.00 states that
“impairments that result from endocrine disorders [will be
evaluated] under the listing for other body systems.”
See
Revised Medical Criteria for Evaluating Endocrine Disorders, 76
11
FR 19692-01 at 19697.
For example, “[p]ituitary gland disorders
can disrupt hormone production and normal functioning in other
endocrine glands and in many body systems.
The effects of
pituitary gland disorders vary depending on which hormones are
involved. . . . [W]hen pituitary hypofunction affects water and
electrolyte balance in the kidney and leads to diabetes
insipidus, we evaluate the effects of recurrent dehydration
under 6.00.”
Id.
Hence, the revised listing directs a claimant
to show that his diabetes mellitus or other endocrine disorder
caused him to meet or equal the criteria for a listing of
another body system.
The Revised Medical Criteria for Evaluating Endocrine
Disorders states that the revised listing is effective June 7,
2011, and further states “we will use these final rules on and
after their effective date in any case in which we make a
determination or decision.
We expect that Federal courts will
review our final decisions using the rules that were in effect
at the time we issued the decisions.
If a court reverses our
final decision and remands a case for further administrative
proceedings after the effective date of these final rules, we
will apply these final rules to the entire period at issue in
the decision we make after the court’s remand.”
12
Id., n. 3.
Plaintiff first filed a Title II application for
disability and disability insurance benefits on August 30, 2007.
His claim was denied initially, on reconsideration, and after a
hearing before an ALJ.
After the appeals council denied his
request for review, plaintiff filed a complaint in district
court.
As discussed, on February 22, 2012, District Judge Irene
C. Berger vacated the Commissioner’s decision and remanded the
matter for further proceedings for the failure of the ALJ to
consider the consultative examination report and Medical Source
Statement from Bruce Davis, M.D.
Tr. at 524.
Because Judge Berger remanded the matter for further
proceedings on February 22, 2012, after the effective date of
the revised listing 9.00, pursuant to the SSR’s rule, the ALJ
should have applied the revised listing in considering
plaintiff’s impairments.
However, the revised listing 9.00 makes it more
difficult to meet the listing requirements for an impairment of
endocrine system such as diabetes mellitus, because it removes
listing 9.08 and instead requires a claimant to show that the
effects of his diabetes mellitus meets another listing.
Because
the ALJ specifically discussed Listing 9.08 in reference to
plaintiff’s diabetes mellitus and neuropathy, and also stated
that those impairments did not meet or equal the requirements of
13
listing 9.08 or any other listing section, any error in the
failure of the ALJ to consider the amended listing was harmless.2
Tr. at 460.
C. Plaintiff’s Prior Work History
Plaintiff’s next objection is that “[i]t is not
apparent in the [PF&R] that [the ALJ] considered and evaluated
plaintiff’s past relevant work or made any determination whether
‘plaintiff can perform his past work despite his impairments.’”
Obj. at 4-5 (quoting Albright v. Comm’r of Soc. Sec. Admin, 174
F.3d 473 (4th Cir. 1999).
Plaintiff further states that the
ALJ’s “assessment of prior work history is insufficient for this
2
As noted, an ALJ or appeals council is instructed to apply an
amended listing to a plaintiff’s impairments if its effective
date is prior to the ALJ or appeals council’s determination.
When the effective date of an amended listing is after a
claimant files for disability benefits but before the appeals
council’s decision, courts to consider the issue are split on
whether the application of the amended regulation to a
claimant’s claims is impermissibly retroactive. Compare, Cherry
v. Barnhart, 327 F. Supp. 2d 1347 N.D. Okla. 2004) (finding the
elimination of the presumption of disability for obesity to
pending social security applications to be impermissibly
retroactive) with Combs v. Comm'r of Soc. Sec., 459 F.3d 640
(6th Cir. 2006) (en banc) (finding the application of the same
amended regulation regarding obesity not to be impermissibly
retroactive). Inasmuch as the court has determined that the ALJ
considered both the old listing 9.08 and also considered
plaintiff’s endocrine related impairments under other listings,
which is the directive of the amended listing 9.00, plaintiff’s
impairments do not meet the requirements of either the old or
amended listing. Thus, the court need not decide whether the
regulation is impermissibly retroactive.
14
court to conduct a meaningful review, and, thus, remand is
required.”
Id. at 5.
Between the third and fourth steps of the disability
determination process, the ALJ must determine a claimant’s
residual functional capacity, or RFC.
“Ordinarily, RFC is an
assessment of an individual’s ability to do sustained workrelated physical and mental activities in a work setting on a
regular and continued basis.”
(S.S.A. July 2, 1996).
SSR 96-8p, 1996 WL 374184 at *1
The RFC determines the most “an
individual can do despite his or her limitations or
restrictions.
Id.
To determine a claimant’s RFC, the ALJ “must
first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a
function-by-function basis.”
Id. at *1.
The RFC is then used
to determine, among other things, whether a claimant can perform
past relevant work as it was actually performed.
Although plaintiff objects to the ALJ’s failure to
consider whether he could perform his past relevant work, the
ALJ found, based on his RFC, that plaintiff “was unable to
perform past relevant work . . . as an inspector/ packer and
forklift operator [because] [t]hese jobs required more than
light exertion and other job tasks precluded by the claimant’s
combined limitations.”
Tr. at 464.
15
Because the ALJ determined
that plaintiff was unable to perform his past relevant work due
to his impairments, plaintiff’s objection is without merit.
To the extent that plaintiff additionally objects to
the RFC on the basis that the ALJ failed to correct the error
that formed the basis of Judge Berger’s remand of the case to
the Commissioner in 2012, that objection is also without merit.
As noted, Judge Berger vacated the prior ALJ’s decision and
remanded the case for the failure of that ALJ to consider the
consultative examination report and Medical Source Statement of
Ability to Do Work-Related Activities of Bruce Davis, M.D.,
dated April 4, 2007.
See PF&R at 2; Tr. at 524.
The ALJ in
this instance considered the consultative examination of Dr.
Davis, gave it significant weight and included the
recommendations of Dr. Davis in plaintiff’s RFC.
Id. at 463;
Tr. at 215-223.
D. Plaintiff’s Age
Plaintiff also argues that because he turned 55 on
June 10, 2011, he is in the “advanced age” category for social
security purposes.
Obj. at 6.
He states that “given [his]
incarceration and projected release date of July 24, 2034, [he]
will not have an [sic] viable opportunity to secure substantial
gainful employment . . . until [he] is seventy-eight (78) years
16
old and presumptively collecting his social security benefits.”
Id.
In determining whether an individual is disabled, a
claimant’s “chronological age in combination with [his RFC,]
education, and work experience” is considered.
416.963(a).
20 C.F.R. §
The age categories are: (1) “younger person,” who
is someone under 50 years old; (2) “person closely approaching
advanced age,” who is an individual between 50 and 54; and (3)
person of advanced age, who is an individual 55 or older.
at §§ 416.963(c)-(e).
Id.
The ALJ must apply “each of the age
categories that applies . . . during the period for which . . .
[it must be] determine[d] if [a claimant] is disabled.”
Id. at
§ 416.963(b).
In the present case, plaintiff was born on June 10,
1956.
Tr. at 464.
The evidence must demonstrate that plaintiff
was disabled on or before his date last insured, December 31,
2007, in order to be eligible for benefits.
Plaintiff was 51 on
December 31, 2007, putting him in the “closely approaching
advanced age” category on this date.
Id.
Because plaintiff
must establish he was disabled by December 31, 2007, it is not
relevant to the RFC determination that he is now considered to
be of “advanced age.”
See 20 C.F.R. § 416.963(b).
17
E. Plaintiff’s Right to Representation
1. Representation at the ALJ Hearing
In his objections, plaintiff contends that the PF&R
“did not indicated [sic] that [the ALJ] alerted plaintiff to the
availability of representation through Legal Services and Legal
Aid Program,” and requests that the court appoint him an
attorney to represent him in future proceedings in this case.
Obj. at 6-7.
Plaintiff’s assertion that he was not notified of
the potential availability of representation through legal
services programs is unsupported by the record evidence.
Claimants have a statutory right to have an attorney
or other representative present at a social security hearing.
42 U.S.C. § 406.
A claimant is not required to be represented
by counsel during a Social Security proceeding, and “lack of
representation by counsel is not by itself an indication that a
hearing was not full and fair.”
27-28 (4th Cir. 1980).
Sims v. Harris, 631 F.2d 26,
A remand based on a claimant’s lack of
counsel during Social Security proceedings is thus proper only
“where the absence of counsel created clear prejudice or
unfairness to the claimant.”
Id. at 28.
Plaintiff was thoroughly advised of his right to
representation by the ALJ.
On November 18, 2013, the ALJ began
a telephonic hearing with plaintiff and notified plaintiff that
18
he was entitled to postpone the hearing in order to try to find
representation.
Id. at 475-76.
The ALJ also explained to
plaintiff that he could be represented by an attorney or nonattorney and advised him of the potential availability of legal
aid organizations to represent him at no cost.
Id. at 482.
The
ALJ explained that he may be unable to obtain such free services
due to his incarceration, and explained contingency fee
arrangements.
Id.
Due to plaintiff’s request to postpone the
hearing to try to find representation, the ALJ continued the
hearing for nearly four months until March 12, 2014.
Id.
At
the hearing on March 12, 2014, the following exchange occurred:
ALJ: Do I understand correctly that you’ve not retained a
representative, Mr. Jeffrey?
Pl.: I’m unable to.
That’s correct.
ALJ: All right. Now, do you want to proceed with your
hearing representing yourself?
Pl.: Well, I guess. Is there—how long can this be
postponed? Years or just months?
ALJ: Well, I’d have to grant postponement. You know,
that’s a decision that I make. At this point, I’d have to
hear something awfully compelling to postpone it again.
Pl.: Yeah.
ALJ: We’ve had a postponement of several months for the
purpose of obtaining representation.
Pl.: Okay.
ALJ: Now, are you going to be released eminently?
Pl.: It’ll be about 12 or 13 years.
19
ALJ: Yeah. So—
Pl.:
If I luck out it might be sooner.
ALJ: I don’t think I would grant another postponement under
those facts.
Pl.: Okay.
ALJ: So, you would have to go forward representing
yourself, if that’s what you want to do today.
Pl.: Well, I guess I have to.
ALJ: All righty.
Tr. at 488-489.
I understand.
The ALJ then continued with the hearing.
The
ALJ followed the procedures set forth in the SSA’s Hearings,
Appeals, and Litigation Law Manuel (“HALLEX”),3 which states:
If the claimant asks to postpone the hearing to obtain
a representative and it is the first request, the ALJ will
typically grant the requested postponement. The ALJ will:
• Go on the record and advise the claimant of the right to
be represented;
• Provide the claimant with information about organizations
that provide free legal services;
• Advise the claimant to notify the hearing office if
representation is obtained;
• Advise the claimant that the hearing will be postponed
and rescheduled;
• Advise the claimant that normally only one postponement
is permitted to obtain representation, unless he or she can
show good cause that requires an additional postponement;
3
HALLEX is a “manual in which the Associate Commissioner of
Hearings and Appeals conveys guiding principles, procedural
guidance and information to the office of Hearings and Appeals
(OHA) staff.” Roseberry v. Colvin, No. 3:15-CV-04895, 2016 WL
1737121, at 15 (S.D.W. Va. May 2, 2016)
20
• Advise the claimant that if he or she appears at the
rescheduled hearing without a representative, the hearing
will proceed with the unrepresented claimant unless he or
she shows good cause; and
• Obtain an “Acknowledgement of Postponement in Order to
Obtain Representative” from the claimant (see sample
provided in HALLEX I-2-6-97) with his or her witnessed
signature. The ALJ will mark the acknowledgement as an
exhibit and provide a copy of the acknowledgement to the
claimant.
HALLEX I-2-6-52(C), Postponement of the Hearing to Obtain
Representation.
Here, the ALJ advised plaintiff of his right to
representation, explained to plaintiff that legal aid
organizations may be available to represent him without cost and
discussed contingency fee arrangements with him.
The ALJ then
postponed the hearing for almost four months so that plaintiff
could obtain counsel.
Plaintiff was unable to articulate a
compelling reason for another postponement of the hearing.
It
appears from his question regarding the length of time the ALJ
could continue the hearing, that he wished to postpone the
proceedings until after he was released from jail in twelve
years.
See Tr. at 489.
Prior to the hearing, plaintiff was additionally sent
three copies of an informational sheet called “Your Right to
Representation” informing him of his right to an attorney or
other representative during his social security appeal and
21
providing a website and phone number where an individual can ask
specific questions about the social security process.
577-578, 592-593, 609-610.
See Tr.
The sheet also notified plaintiff of
the existence of organizations that “can help you find a
representative or give you free legal services if you qualify”
and that “Your Social Security office has a list of
organizations that can help you find a representative.”
Id. at
450.
After the ALJ’s determination that plaintiff was not
disabled, plaintiff apparently wrote the appeals council on June
17, 2014, indicating that he needed assistance finding an
attorney.
Id. at 448.
A representative of the appeals council
wrote back to plaintiff on December 16, 2014, stating, “Although
you have a right to be represented before the Social Security
Administration, obtaining a representative is your
responsibility.”
Id.
The appeals council granted plaintiff a
30-day extension before plaintiff was required to explain why he
disagreed with the ALJ’s decision so that he could obtain an
attorney.
Id.
Enclosed with the letter was another copy of the
informational sheet “Your Right to Representation.”
451.
Id. at 450-
On January 22, 2015, plaintiff wrote back to the appeals
council stating that he was unable to obtain representation, and
asking for more time so that he could find representation when
22
he was released from prison.
Id. at 445.
A representative of
the appeals council responded on September 11, 2015, stating,
“Our rules do not permit us to grant you an indefinite or twelve
year extension of time.”
Id.
The letter also notified
plaintiff that he had 60 days from the date of his denial letter
before he was required to file a civil action, during which time
he could obtain representation.
Id.
Plaintiff was thus advised of his right to
representation multiple times before the ALJ continued with the
administrative hearing.
He was advised of the existence of
organizations that may provide him representation at no cost,
and was given ample time to obtain counsel, but failed to do so.
Moreover, plaintiff had at least a high school education and the
hearing transcripts reveal that he understood and was able to
answer questions posed by the ALJ.
Although plaintiff was given
time by both the ALJ and the appeals council to obtain counsel,
he failed to do so, and still has failed to obtain
representation.
On these facts, the court finds that plaintiff
knowingly and intelligently waived his right to counsel.
As noted, even if plaintiff’s waiver was faulty, a
flawed waiver of counsel does not require remand unless “the
absence of counsel created clear prejudice or unfairness to the
claimant.”
Sims, 631 F.2d at 27-28; Brock v. Chater, 84 F.3d
23
726, 729 n. 1 (5th Cir. 1996) (per curium) (“A claimant who does
not validly waive his right to counsel must prove that he was
prejudiced thereby in order to merit reversal of the ALJ's
decision.”).
Plaintiff has not indicated how the lack of counsel at
the ALJ hearing prejudiced him.
At the hearing, the ALJ
inquired into, inter alia, why plaintiff stopped working in
2002, the neuropathy in his feet, the doctors he was seeing and
the medication he was taking, and how long he could stand and
sit comfortably before experiencing pain.
Tr. at 490-513.
In
addition, the ALJ asked plaintiff about medical records that
plaintiff indicated were missing from the record, and requested
copies of those records from plaintiff’s physicians after the
hearing.
Id. at 512-514.
The ALJ informed plaintiff that he
would send him copies of his medical records so that plaintiff
could ensure that none were missing.
Id. at 514, 652.
Finally, the ALJ asked hypotheticals to the vocational
expert of the type that a claimant’s representative would pose.
He asked whether an individual could maintain the jobs of a
sorter, garment folder or clerk if he was “off-task due to the
intrusion of mental health symptoms and distraction from pain,
such that they were not about their employer’s business 15
percent of the time of [sic] more” or if “there were absenteeism
24
for any reason at the rate of two days a month or more and that
persisted.”
Id. at 519.
to both hypotheticals.
The vocational expert responded “no”
Id.
The evidence does not demonstrate that plaintiff was
prejudiced by any failure of having representation at the
hearing.
The ALJ inquired into plaintiff’s impairments, medical
records and medications and posed to the vocational expert
questions of the kind that a representative would ask.
The
court thus finds that this objection is unpersuasive.4
When a claimant represents himself pro se, the ALJ additionally
has a heightened duty to “scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts, being
especially diligent in ensuring that favorable as well as
unfavorable facts and circumstances are elicited.” Marsh v.
Harris, 632 F.2d 296, 299 (4th Cir. 1980). An ALJ's failure to
adequately develop the record warrants remand only where the
failure results in prejudice or unfairness to the claimant.
Sims, 631 F.2d at 28; Brown v. Shalala, 44 F.3d 931, 935 (11th
Cir. 1995). Remand is improper, “unless the claimant shows that
he or she was prejudiced by the ALJ's failure. To establish
prejudice, a claimant must demonstrate that he or she could and
would have adduced evidence that might have altered the result.”
Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). The court
finds that any deficiency of the ALJ to fully develop the record
did not prejudice plaintiff for the same reasons that the court
has articulated that plaintiff was not prejudiced by the failure
to have counsel at the ALJ hearing.
4
25
2. Request that the Court Appoint Plaintiff an Attorney
Plaintiff additionally “prays this Court will appoint
an attorney, with experience in disability claims . . . to
represent [him] in any further proceedings in this case.”
at 7.
Obj.
Inasmuch as “counsel will be appointed in civil cases
only in exceptional circumstances,” the court finds that
plaintiff has failed to demonstrate exceptional circumstances
that would warrant the appointment of an attorney.
See
Richardson v. Henry, 902 F.2d 414 (5th Cir. 1990).
Plaintiff’s
request for appointment of an attorney is thus denied.
IV.
Conclusion
Accordingly, having received the PF&R and the
defendant’s objections, and having reviewed the record de novo,
it is ORDERED:
1.
That the PF&R be, and it hereby is, adopted and
incorporated herein;
2.
That plaintiff’s objections to the PF&R Be, and they
hereby are, denied;
3.
That the decision of the Commissioner be, and it hereby
is, affirmed;
26
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd be, and it hereby is, dismissed and
4. That this action United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed to appear.
stricken from the docket of the court.
02/29/2016
Entry of scheduling order.
The Clerk is requested serve F.R. Civ. P 26(a)(1) disclosures.
03/08/2016
Last day to to transmit copies of this
memorandum opinion and order to all counsel of record and any and
The Clerk is requested to transmit this Order
Notice parties.
unrepresented to all counsel of record and to any unrepresented
parties.
DATED: January 5, 2016
DATED: March 31, 2017
John T. Copenhaver, Jr.
United States District Judge
27
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