Bennett v. Berryhill
| Decision Date | 15 February 2019 |
| Docket Number | Action No. 2:17cv520 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | RYAN ALLEN BENNETT, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant. |
This matter is before the Court on Plaintiff Ryan Allen Bennett's ("Plaintiff") Amended Complaint, ECF No. 28, filed pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("the Commissioner"), denying Plaintiff's claim for a period of disability and Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("SSA"). Plaintiff filed a Motion for Summary Judgment and memorandum in support, ECF Nos. 32-33, and the Commissioner filed a Cross Motion for Summary Judgment and memorandum in support, ECF Nos. 35-36, which are now ready for recommended disposition. This action was referred to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. After reviewing the briefs, the undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that Plaintiff's Motion for Summary Judgment, ECF No. 32, be GRANTED, the Commissioner's Motion for Summary Judgment, ECF No. 35, be DENIED, and an Order be entered awarding Plaintiff disability benefits.
On July 11, 2013, Plaintiff protectively filed his application for DIB and SSI, alleging an onset date of October 31, 2010, due to a learning disability, scoliosis, attention deficit hyperactive disorder, and slight speech impairment. R. at 15, 58, 70-80, 91, 170-182, 202. His application was initially denied on January 14, 2014, and again denied upon reconsideration on October 1, 2014. R. at 15, 58-101. Plaintiff then requested a hearing in front of an administrative law judge, which was conducted on July 22, 2016. R. at 30-52. The Administrative Law Judge William T. Vest, Jr. ("the ALJ"), issued a decision denying Plaintiff's DIB and SSI applications on August 15, 2016. R. at 15-25. Plaintiff then filed a request with the Appeals Council to reconsider the ALJ's decision, which was denied by the Appeals Council on July 30, 2017. R. at 1-5. The Appeals Council denied Plaintiff's request for review because the Appeals Council found no reason under the rules to review the ALJ's decision, making the ALJ's decision the Commissioner's final decision. R. at 1. At no time during the administrative process did Plaintiff argue or assert that ALJs are inferior officers subject to the Appointments Clause.
Having exhausted his administrative remedies, on October 2, 2017, Plaintiff filed his first complaint for judicial review of the Commissioner's decision. ECF No. 3. The Commissioner filed an Answer on December 22, 2017. ECF No. 7. The matter was referred to the undersigned U.S. Magistrate Judge ("the undersigned") on January 9, 2018. ECF No. 10. The Parties filed cross motions for summary judgment. ECF Nos. 12, 14. On August 14, 2018, Plaintiff filed aMotion for Leave to Amend Complaint and memorandum in support seeking to add Count II, which challenges the constitutionality of Commissioner's decision in Plaintiff's case. ECF Nos. 16, 17. The Commissioner filed a consent Motion for Leave to File Opposition to Plaintiff's Motion to Amend Complaint, ECF No. 19, which was granted, ECF No. 20. The Commissioner's Opposition to Plaintiff's Motion for Leave to Amend Complaint was filed on September 19, 2018. ECF No. 21. The Court then entered an Order setting a hearing on Plaintiff's Motion for Leave to Amend Complaint. ECF No. 18. Plaintiff filed a Motion for Extension to File Plaintiff's Rebuttal Brief, ECF No. 22, which the Court granted, ECF No. 23. The Court held a hearing on Plaintiff's Motion for Leave to Amend Complaint on September 20, 2018.1 ECF No. 24. On October 9, 2019, Plaintiff filed a rebuttal brief, ECF No. 25, and on October 15, 2018, the Commissioner filed her reply, ECF No. 26. Thereafter on October 19, 2018, the Court granted Plaintiff's Motion for Leave to Amend Complaint and deemed Plaintiff's Amended Complaint ("Complaint") properly filed. ECF No. 27. On October 25, 2018, the Commissioner filed her Answer to the Complaint. ECF No. 29. On November 2, 2018, the Court granted the parties leave to file new cross-motions for summary judgment, ECF No. 30, after which the parties withdrew their earlier cross-motions for summary judgment. ECF Nos. 31, 34. On December 3, 2018, Plaintiff filed his second Motion for Summary Judgment and supporting memorandum, ECF Nos. 32-33, and on December 21, 2018, the Commissioner filed her second Cross-Motion for Summary Judgment and supporting memorandum, ECF No. 35-36. On January 4, 2018, Plaintiff filed a reply to the Commissioner's Cross-Motion for Summary. Therefore, the matter is now ripe for recommended disposition.
Plaintiff was born on August 2, 1985, and was twenty-five years old at the time of his alleged onset date of disability, making him a "younger individual" under the SSA's regulations. See R. at 32. See also 20 C.F.R. § 416.963(c) (). On July 22, 2016, Plaintiff appeared, represented by Erick Bowman, Esq.2 and testified before the ALJ at the administrative hearing. R. at 30, 33-42. The Plaintiff's mother, Karen Bennett, R. at 30, 42-48, and Linda Augins, an impartial vocational expert ("VE"), R. at 30, 48-51, also appeared and testified. The record included the following factual background for the ALJ to review:
A. Plaintiff's Academic and Work History
In 1989, Plaintiff was first deemed eligible for special education services by Virginia Beach City Public Schools. R. at 246, 256-57. At age four Plaintiff attended a handicapped preschool and thereafter continued with special education through elementary, middle, and high school. R. at 208, 246, 256-57. In high school Plaintiff was mainstreamed for English but performed poorly in that class. R. at 208. Plaintiff was unable to pass the Standard of Learning test, necessary to obtain a regular high school diploma, and ultimately graduated high school with a Special Diploma in 2005. R. at 208, 256-57.
In 1999 Plaintiff was administered the Wechsler Intelligence Scale for Children - Third Edition ("WISC-III"), Wechsler Individual Achievement Test ("WIAT"), and the Development Test of Visual-Motor Integration ("VMI"). R. at 251. On the WISC-III, Plaintiff scored in the low average range for performance and verbal IQ and scored in the well below average/borderline range in all other categories. Id. Plaintiff also had a full scale IQ of 78, which falls in the wellbelow average/borderline range. Id. The evaluator noted "these results place [Plaintiff] in the well below average to low average range of potential." Id. On the VMI, Plaintiff scored in the very low range, demonstrating that Plaintiff "probably encounters significantly more difficulty than is typical for his age group with the mechanisms involved in paper and pencil types of tasks." Id. On the WIAT, Plaintiff demonstrated "significant academic weakness in the areas of reading, writing, and math . . . [which] fall well below the average range and well below grade level expectations." R. at 251-52.
A November 30, 2004 assessment for continued special education services indicated Plaintiff was receiving resource and vocational training in commercial food and that he was working toward a special education diploma. R. at 246. The evaluator identified problems with the legibility of Plaintiff's handwritten assignments unless Plaintiff is reminded to slow down and rewrite the assignment. Id. Plaintiff was provided extra time to complete assignments. Id. Plaintiff's academic achievement ranged from borderline to the extremely low range and, while Plaintiff was characterized as "diligent and cooperative" a "significant and unusual discrepancy between his ability and achievement was noted in the areas of reading, math, and written language." R. at 246-47. The assessment also indicated Plaintiff "had a job at Farm Fresh, but that his hours were gradually reduced until he had none on the schedule so [Plaintiff] quit." R. at 247.
From 2005 to 2010 Plaintiff worked at Pizza Hut as a food preparer. R. at 257. Plaintiff's responsibilities included making pizza dough, setting up ingredients, stocking the back of the restaurant with deliveries, and assisting delivery drivers with folding boxes. R. at 33. Pizza Hut began reducing his hours until he was only working 2-3 hours a week. R. at 33, 37, 257. Although unconfirmed by the employer, Plaintiff and his mother believe the reduction in hours was the resultof Plaintiff's inability to keep up with the pace of the work. R. at 37, 41, 44, 257. At some point during this employment Plaintiff moved and was no longer within walking distance from his job. R. at 33. Thereafter, Plaintiff either took public transportation to work or a family member would drive him. R. at 37. Ultimately, Plaintiff quit his job at Pizza Hut because the significant reduction in his hours made the cost of traveling to and from work prohibitive. R. at 37.
B. Plaintiff's Function Report
On September 4, 2013, Plaintiff's mother completed an Adult Function Report in which she indicated Plaintiff does some household chores, including mowing the lawn, raking leaves, pulling weeds, loading and unloading the dishwasher, and doing laundry with supervision. R. at 209, 211. Plaintiff can prepare quick and easy meals for himself...
To continue reading
Request your trial