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Hendrickson v. Berryhill

United States District Court, W.D. North Carolina, Asheville Division

March 22, 2018



          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.


         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 ...

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