United States District Court, W.D. North Carolina, Asheville Division
ORDER
Max O.
Cogburn Jr. United States District Judge.
THIS
MATTER is before the Court on review of a Memorandum
and Recommendation issued in this matter. In the Memorandum
and Recommendation, the magistrate judge advised the parties
of the right to file objections within 14 days (plus three
days for service by mail), all in accordance with 28, United
States Code, Section 636(b)(1)(c). An Objection (#25) was
filed by defendant within the time allowed and plaintiff
included an Objection in his Reply (#26) to defendant's
Objection. The issues having become ripe on March 16, 2018,
with the filing of plaintiff's Reply, the Court has
carefully considered the pleadings and enters the following
findings, conclusions, and Order.
FINDINGS
AND CONCLUSIONS
I.
Applicable Standard
The
Federal Magistrates Act of 1979, as amended,
provides that “a district court shall make a de
novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1);
Camby v. Davis, 718 F.2d 198, 200 (4th
Cir.1983). However, “when objections to strictly legal
issues are raised and no factual issues are challenged,
de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir.1982).
Similarly,
de novo review is not required by the statute
“when a party makes general or conclusory objections
that do not direct the court to a specific error in the
magistrate judge's proposed findings and
recommendations.” Id. Moreover, the statute
does not on its face require any review at all of issues that
are not the subject of an objection. Thomas v. Arn,
474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d
at 200. Nonetheless, a district judge is responsible for the
final determination and outcome of the case, and accordingly
the Court has conducted a careful review of the magistrate
judge's Memorandum and Recommendation and conducted a
de novo review on issues not reached in the
recommendation.
II.
Discussion
A.
Background
Plaintiff,
now a young adult, was receiving Supplemental Security Income
(“SSI”) based on his own disability as a child
based on mental health impairments. When he turned 18 years
old in 2012, the Commissioner revisited plaintiff's
eligibility for benefits as required under 42 U.S.C. §
1382c(a)(3)(H)(iii) and 20 C.F.R. § 416.987. In
conducting that review, it was determined that plaintiff
suffers from Asperger's Syndrome, depression, anxiety,
and personality disorder, not otherwise specified. (Tr. 47).
Upon
initial consideration, the agency determined that plaintiff
was no longer disabled as of January 2013, which was upheld
on reconsideration. Plaintiff, with the assistance of
counsel, challenged that determination and requested a
hearing by an ALJ. In September 2015, a hearing was held
before an ALJ at which plaintiff, his father, and a
vocational expert (“VE”) testified. The ALJ
issued an unfavorable administrative decision
(“ALJDEC”) (Tr. 42-54) the following month.
Plaintiff then sought review by the Appeals Council, which
upheld the ALJDEC decision a year later in 2016, (Tr. 1-5),
making the ALJ's decision the final decision of the
Commissioner.
This
appeal was timely taken on November 9, 2016. In May 2017,
plaintiff filed his Motion for Summary Judgment (#13),
Memorandum in Support (#14), and Motion to Receive New and
Material Evidence (#12). Issues ripened on July 14, 2017,
when the Commissioner filed her responsive Motion for Summary
Judgment (#18) and supporting Memorandum of Law (#19).
Honorable Dennis L. Howell, United States Magistrate Judge,
entered his Memorandum and Recommendation (#24) on those
motions February 20, 2018. He advised the parties that they
had 14 days from that decision to file Objections.
Id. at 11.
The
Court has given careful consideration to Judge Howell's
Memorandum and Recommendation and to each Objection, and will
conduct a de novo review as warranted. For the
reasons that follow, the Court will sustain the
Commissioner's Objection, overrule plaintiff's
Objection, consider de novo other assignments of
error raised by plaintiff, affirm the Commissioner, and
dismiss this action.
B.
The Recommendation
As to
plaintiff's Motion to Receive New and Additional
Evidence, Judge Howell recommended that such request be
denied as the evidence submitted is not material to the
issues addressed in this action. Further, Judge Howell
recommends that plaintiff's request for a Sentence Six
remand based on such evidence be denied.
In
addressing the substance of the cross motions for summary
judgment at pages eight and nine of the M&R, Judge Howell
cites a decision by this Court's colleague in Switzer
v. Colvin, No. 1:15-CV-212, 2016 WL 4182755 (W.D. N.C.
July 5, 2016), which held that conclusory findings by an ALJ
make meaningful review impossible. Id. at *4. Judge
Howell determined that while the ALJ found that plaintiff
suffered from several severe impairments at step two of the
sequential evaluation process, such finding “does
not come along with a discussion of the evidence
relating to Plaintiff's mental impairments. (T.
33.).”[1] M&R (#24) at 9 (emphasis in the
original). Likewise, Judge Howell also determined that the
ALJ's step three severity determination was also
deficient because there was “no discussion of
Plaintiff's medical evidence and how it applied to
listings 12.04, 12.06, 12.08, and 12.10. (T. 34.)”
Judge Howell then concludes that “Switzer is
applicable and remand is necessary because the ALJ failed to
show his work.” Id. Judge Howell recommends
that the Court reverse the decision of the Commissioner and
remand this action in accordance with Sentence Four.
For the
reasons that follow, the Court agrees over plaintiff's
Objection as to the proposed resolution of the Sentence Six
request for remand based on new and material evidence. As to
the recommendation that a Sentence Four remand be granted on
the cross Motions for Summary judgment, the Court will
sustain the Commissioner's Objection as it is apparent
from the face of the decision that the ALJ explained his
findings at length and cited the Court to the materials in
the record that informed his decision. Finding that
substantial evidence referenced by the ALJ supports his
determinations, the final decision of the Commissioner will
be affirmed.
C.
Plaintiff's Objection
Plaintiff
has objected to the magistrate judge's conclusion that a
subsequent decision by another ALJ, granting plaintiff
disability benefits for a later period, is not material to
the time period at issue in this case and, therefore, does
not provide a basis for a remand under Sentence Six of 42
U.S.C. § 405(g). See M&R (#24) at 6-8.
Based on such conclusion, Judge Howell recommends that
plaintiff's Motion to Receive New and Material Evidence
(#12) be denied. Overruling plaintiff's Objection, the
Court concurs with and fully affirms Judge Howell's
determination for the reasons that follow.
As a
procedural matter, the Court notes that plaintiff's
Objection is included in his Reply to defendant's
Objection. Inclusion of an Objection in a response or a reply
is not sufficient to raise an Objection as it would typically
fail to put the Court or the opposing party on notice that an
Objection has been raised. See generally L.Cv.R.
7.1(c)(2) (motions not to be included in responses). The
Objection included in the Reply is also not timely as the
deadline for filing objections ran March 6, 2018, making
plaintiff's March 16, 2018, Objection untimely. Putting
aside those technical concerns, the Court has fully
considered the merits of plaintiff's Objection.
In sum,
plaintiff's Objection reasserts his argument that a
favorable decision by another ALJ in December 2016 -- finding
him disabled as of October 16, 2015 -- constitutes new and
material evidence. First, “a subsequent favorable
decision itself, as opposed to the evidence supporting the
subsequent decision, does not constitute new and material
evidence under § 405(g).” Baker v. Comm'r
of Soc. Sec., No. 12-1709, 2013 WL 1866936, *1 n.* (4th
Cir. May 6, 2013) (unpublished). Second, a remand is not
warranted on the basis of a subsequent grant of benefits, by
itself, since the subsequent grant of benefits could have
been based on a new age classification, a worsening of the
claimant's condition, or some other change. Allen v.
Commissioner, 561 F.3d 645, 654 (6th Cir. 2009).
Moreover,
the December 2016 decision is not material to the decision at
issue here as the later decision covers October 16, 2015 (the
date plaintiff stated he became disabled in that claim)
through December 23, 2016 (the dated the second decision
issued). The period at issue here is January 1, 2013 (the
date on which plaintiff was determined in this matter to no
longer be disabled) through October 15, 2015, the date the
ALJ issued the unfavorable decision herein. The Sixth
Sentence of 42, United States Code, Section 405(g) provides:
The court may . . . at any time order additional evidence to
be taken before the Secretary, but only upon a showing that
there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into
the record in a prior proceeding; and the Secretary shall,
after the case is remanded, and after hearing such additional
evidence if so ordered, modify or affirm his findings of fact
or his decision, or both, and shall file with the court any
such additional and modified findings of fact and decision,
and a transcript of the additional record and testimony upon
which his action in modifying or affirming was based.
42
U.S.C. § 402(g) (sentence six).
In
Wilkins v. Secretary, Dep't of Health & Human
Servs., 953 F.2d 93 (4th Cir. 1991), [2] the Court of
Appeals for the Fourth Circuit held that evidence is new if
it “is not duplicative or cumulative, ” and is
material “if there is a reasonable possibility that the
new evidence would have changed the outcome.”
Id., at 96. See also Borders v. Heckler,
777 F.2d 954, 955 (4th Cir. 1985). Even if a subsequent
opinion in another claim could constitute “evidence,
” which it is not under Baker, such is not
material as there is no reasonable possibility that such
decision would have changed the outcome of this claim.
To the
extent plaintiff is seeking to have the evidence supporting
the subsequent decision considered here, he argues that a
report from Dr. Marcus and a statement from Mr. Semcho are
new and material evidence. Even if the Court considered Dr.
Marcus's evidence “new, ” it is not material
as it is dated October 2016 and provides a report on
plaintiff's “present illness.” While it is
arguable that plaintiff's present illness or illnesses
are the same illnesses he has suffered from his entire life,
Dr. Marcus did not relate her opinions on plaintiff's
functional limitations back to the period under consideration
in this appeal. Thus, that report, while completely relevant
in the subsequent action, is not material to the claim
considered in this matter. The statement by Mr. Semcho fairs
no better as such vocational opinion discusses the work
accommodations plaintiff would need as of May 2016. The
temporal incompatibility of that opinion to the issues in
this action is made clear when Mr. Semcho opines that
“Theo is not able to currently handle a full-time
job.”
Plaintiff's
Objection is, therefore, overruled and the Court affirms
Judge Howell's recommended ...