Midkiff v. Berryhill

Filing 13

MEMORANDUM OPINION AND ORDER the Claimant's 11 Objections to the Proposed Findings and Recommendation are overruled; the 10 Proposed Findings and Recommendation of the magistrate judge are adopted in their entirety; the Claimant's 7 request for judgment on the pleadings is denied; the Commissioner's 8 request for judgment on the pleadings is granted; the decision of the Commissioner is affirmed; and the Claimant's action is dismissed and removed from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 3/19/2019. (cc: counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
EZEKIEL LEE MIDKIFF,
Plaintiff,
v.

Civil Action No. 2:18-cv-00338

NANCY BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER

Pending are the objections to the magistrate judge’s
Proposed Findings and Recommendation (“PF&R”), filed by the
plaintiff, Ezekiel Lee Midkiff (“Claimant”), on December 27,
2018.
I. Procedural History

On February 22, 2018, Claimant instituted this civil
action pursuant to 42 U.S.C. § 405(g).

Claimant seeks judicial

review of defendant Nancy A. Berryhill’s (“Commissioner”)
administrative decision, which denied his application for
disability insurance benefits and supplemental security income.
This action was referred to United States Magistrate
Judge Cheryl A. Eifert for consideration in accordance with 28

U.S.C. § 636(b)(1)(B) and the standing order in this district.
Claimant and the Commissioner have filed cross motions for
judgment on the pleadings.
Claimant asserts that the ALJ abused her discretion by
refusing to consider a July 2017 medical opinion from Claimant’s
psychiatrist, Dr. Casdorph, that was not filed until one day
before Claimant’s administrative hearing.

The ALJ found that

the Claimant had failed to comply with the Five-Day Rule.1
Mem. in Supp. J. on the Plead. 1.

Pl.’s

The Claimant argues that an

exception to the rule applied because there was a “reasonable
possibility” this evidence would “affect the outcome of the
claim” and was not sooner presented because of an “unavoidable
circumstance” beyond Claimant’s control.

Id. at 5; 20 C.F.R. §

404.935(b)(3).2

The Five-Day Rule, see 20 CFR 404.935, permits an ALJ to decline to consider
evidence not submitted at least five business days before the claimant’s
administrative hearing, unless certain exceptions, see 20 C.F.R. §
404.935(b), apply.
2 An ALJ must accept evidence not submitted at least five days prior to the
administrative hearing if “he or she has not yet issued a decision and [the
claimant] did not . . . submit the evidence before the deadline because:
“(3) Some other unusual, unexpected, or unavoidable circumstance
beyond [the claimant’s] control prevented [claimant] from . . .
submitting the evidence earlier. Examples include, but are not
limited to:
(i) [The claimant] w[as] seriously ill, and [the] illness
prevented [claimant] from contacting [the ALJ] in person, in
writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in [claimant’s]
immediate family;
(iii) Important records were destroyed or damaged by fire or
other accidental cause; or
1

2

The magistrate judge filed her PF&R on December 20,
2018 and found that: “the ALJ’s rejection of Dr. Casdorph’s July
2017 opinion on the basis” that an exception did not apply “was
a correct application of the law and supported by substantial
evidence,” concluding that “Claimant did not establish good
cause” for an exception under 20 C.F.R. § 404.935(b)(3).
Consequently, “the Appeals Council was not required to review
the new evidence and determine whether it established a basis to
remand the decision to the ALJ.”

PF&R 25, 33, 35-36.

Furthermore, “the ALJ properly considered and weighed the
evidence from Claimant’s treating psychiatrist, Dr. Casdorph.”
The magistrate judge recommends that the plaintiff’s request for
judgment on the pleadings be denied, that the Commissioner’s
request to affirm the decision of the Commissioner be granted,
and that this action be dismissed.

PF&R 36.

Claimant advances three objections.

First, he

challenges the magistrate judge’s determination that Claimant’s
failure to comply with the Five-Day Rule warranted the ALJ’s
rejection of Dr. Casdorph’s July 2017 medical opinion (“July
2017 opinion”).

See Claimant’s Objections to PF&R (“Obj.”) 2.

(iv) [The claimant] actively and diligently sought evidence from
a source and the evidence was not received or was received less
than 5 business days prior to the hearing.”
20 C.F.R. § 404.935(b)(3).

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Second, he supports that same objection by objecting to the
magistrate judge’s reliance upon Freeman v. Colvin, 2015 WL
4041733 at *1 (D. Me. July 1, 2015), arguing it was
inapplicable.

Third, he objects to the magistrate judge’s so-

called “post hoc analysis” in “weigh[ing] and reject[ing] Dr.
Casdorph’s 2017 medical opinion as probative.”

Id. at 3, 5.

The Commissioner filed a response on January 2, 2019, contending
that Claimant’s objections should be denied because they
“reargue the very same issues raised by [Claimant] in h[is]
initial brief” and because Claimant “has not identified any
credible legal errors” in the magistrate judge’s PF&R.

Id.

Neither party has objected to the magistrate judge’s
recitation of the standards for (1) reviewing the Commissioner’s
final decision, or (2) the sequential evaluation process.

Those

same two components of the PF&R, see PF&R 3-5, are deemed to
apply on review before the undersigned.
III. The Objections

First, Claimant specifically objects to the fact that
the ALJ “never explained what, if any, exceptions” to the FiveDay Rule were considered, even though, according to Claimant,
the “regulations clearly impose a duty of explanation on the ALJ
in cases where good cause” under the 20 C.F.R. § 404.935(b)(3)
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exception “is found not to exist.”

Obj. 2.

Claimant asserts it

was an unavoidable circumstance that the July 2017 opinion did
not exist until two days before his administrative hearing and
argues that the ALJ should have explained why such an exception
would not have applied.

See Pl.’s Mem. in Supp. J. on the

Plead. 6; Obj. 2.
In support of this proposition, Claimant cites See v.
Washington Metropolitan Transit Auth., 36 F.3d 375, 384 (4th
Cir. 1994), and “81 Fed. Reg. 90988 (Dec. 16, 2016),” but
appears to have intended to cite 81 FR 90987-01 (Dec. 16, 2016).
However, 81 FR 909807-01 and See are entirely devoid of such an
imposition.

The magistrate judge thoroughly explained the

inadequacy of Claimant’s proffered excuse that it was impossible
to furnish the July 2017 opinion timely because it did not exist
more than five days before the hearing.

It was, however, the

Claimant’s responsibility to provide the evidence on time or
demonstrate an exceptional reason why the Claimant failed to get
it timely, including whether he actively and diligently sought
the late-filed evidence.

See PF&R 23-25.

This objection is

deemed to be without merit.
Second,

Claimant pursues the same objection by taking

exception to the magistrate judge’s “appli[cation]” by analogy
to Freeman v. Colvin, 2015 WL 4041733, at *1 (D. Me. July 1,
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2015), inasmuch as Claimant asserts that there is a “key
difference” between Freeman and the present case.

Obj. 3.

He

explains that in Freeman, the untimely medical opinion existed,
but was not discovered or submitted in a timely fashion, whereas
here, the July 2017 opinion “could not have been discovered,
obtained, and submitted to the Court more than five days prior
to the administrative hearing because it did not exist until
July 24, 2017, and the hearing took place on July 26, 2017.”
Obj. 3.
In arguing this point, Claimant essentially sets forth
the same argument raised in his brief, namely, that (1) the
“unusual, unexpected, or unavoidable circumstance” exception
under 20 C.F.R. § 404.935(b)(3) should apply because the July
2017 opinion did not exist until two days before the hearing,
and, (2) according to Claimant, he thus could not have complied
with the Five-Day Rule.

Claimant further asserts that, inasmuch

as the ALJ was “notified in writing that Dr. Casdorph intended
to provide an updated medical opinion via hearing testimony,”
the ALJ should have accepted the July 2017 opinion.
As stated, the magistrate judge thoroughly addressed
this argument in her PF&R and explained why the exception did
not apply here.

See PF&R 23-25.

Additionally, the fact that

the ALJ received notice of Dr. Casdorph’s plan to testify has no
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bearing on her ability to reject medical evidence not submitted
at least five days prior to the administrative hearing.

See 20

CFR § 404.935.
Finally, Claimant objects to the magistrate judge’s
alleged “post hoc analysis to conclude that Dr. Casdorph’s 2017
medical opinion would not have, in any way, disturbed the ALJ’s
conclusion that the June 2015 opinion was inconsistent with the
treatment records.”

Obj. 5.

He claims that, in making this

determination, the magistrate judge improperly “reviewed both
existing medical records, as well as new medical records not
before the ALJ, and has weighed and compared the 2017 opinion
(unseen by the ALJ) to the 2015 opinion.”

Id.

The magistrate judge only examined the July 2017
opinion, however, in order to address an argument raised by the
Claimant, namely, that the July 2017 opinion “‘certainly would
have helped the ALJ understand’ the June 2015 opinion.”
(quoting Pl.’s Mem. in Supp. J. on the Plead. at 9).

PF&R 31

In

response, the magistrate judge noted that “an examination of the
July 2017 opinion reveals very little information that was not
already available at the time the ALJ considered Dr. Casdorph’s
June 2015 opinion.”

PF&R 31. It is true that any reliance by

the magistrate judge upon the July 2017 opinion would have been
improper for purposes of reviewing whether the ALJ’s decision
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was supported by substantial evidence.

But that was not the

reason the magistrate judge examined the July 2017 opinion.

She

did so instead to address the very objection the Claimant was
making.

As the Commissioner correctly points out, the

magistrate judge “carefully considered [Claimant’s] arguments in
the context of the ALJ’s decision and the entire record,
sufficiently addressed Plaintiff’s arguments, and articulated
specific reasons as to why [Claimant’s] challenges did not merit
disruption of the ALJ’s decision.”

ECF No. 12 at 2.

III. Conclusion

Accordingly, having received the PF&R and Claimant’s
objections, and having reviewed the record de novo, it is
ORDERED:
1. That the Claimant’s objections to the PF&R be, and
hereby are, overruled;
2. That the proposed findings and recommendations of
the magistrate judge be, and hereby are, adopted in their
entirety;
3. That the Claimant’s request for judgment on the
pleadings be, and hereby is, denied;

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4. That the Commissioner’s request for judgment on the
pleadings be, and hereby is, granted;
5. That the decision of the Commissioner be, and
hereby is, affirmed; and
6. That the Claimant’s action be, and hereby is,
dismissed and removed from the docket of the court.
The Clerk is directed to forward all copies of this
judgment order to all counsel of record and the United States
Magistrate Judge.

ENTER: March 19, 2019

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