Nicholson v. Commissioner of Social Sec. Admin.

• Decision Date: 27 February 2009
• Docket Number: Civil Action No. 1:08CV17.
• Citation: 600 F.Supp.2d 740
• Parties: William S. NICHOLSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — Northern District of West Virginia

600 F.Supp.2d 740

William S. NICHOLSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

Civil Action No. 1:08CV17.

United States District Court, N.D. West Virginia.

February 27, 2009.

Joyce H. Morton, Montie Vannostrand, Vannostrand & Morton, PLLC, Webster Springs, WV, for Plaintiff.

Helen Campbell Altmeyer, U.S. Attorney's Office, Wheeling, WV, for Defendant.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

IRENE M. KEELEY, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 72(b), Federal Rules of Civil Procedure and Local Court Rule 4.01(d), on January 7, 2008, the Court referred this Social Security action to United States Magistrate James E. Seibert with directions to submit proposed findings of fact and a recommendation for disposition. On November 4, 2008, Magistrate Judge Seibert filed his Report and Recommendation ("R & R") recommending that the case be remanded for further proceedings solely on the issue of whether Nicholson's lazy eye constitutes a severe impairment that meets or equals one listed by the Secretary and if not, does it effect the Administrative Law Judge's finding that there are a significant number of jobs within the national economy that Nicholson is capable of performing and directed the parties, in accordance with 28 U.S.C. § 636(b)(1) and Rule 6(e), Fed.R.Civ.P., to file any written objections with the Clerk of Court within ten (10) days after being served with a copy of the R & R.

On November 6, 2008, counsel for the defendant, Commissioner of Social Security, objected to the R & R. On November 8, 2008, Nicholson, by counsel, also objected to the R & R. On November 12, 2008, the Commissioner filed its response to Nicholson's objections.

I. PROCEDURAL BACKGROUND

On August 22, 1984, the Commissioner awarded Childhood Disability Benefits Supplemental Security Income ("SSI") to Nicholson. These benefits ceased on February 2, 1999 due to a disability cessation notice. Nicholson appealed the cessation notice and subsequently received an unfavorable reconsideration determination. On March 24, 2000, however, following a favorable hearing determination, the Commissioner restored the award of benefits.

On May 10, 2002, Nicholson received notice that the Commissioner was reviewing his SSI benefits under adult standards because he had reached the age of eighteen. On June 25, 2002, Nicholson submitted another application for Childhood Disability Benefits. On September 30, 2002, the Commissioner determined that Nicholson's disability had ended on August 1, 2002 and terminated his SSI benefits as of September 30, 2002. In August 2002, the Commissioner also determined that Nicholson was "not disabled" with respect to his June 2002 application for Childhood Disability Benefits.

Following a September 10, 2003 hearing on these claims, on October 31, 2003, an ALJ issued an unfavorable decision. Nicholson requested a review of that unfavorable decision, which the Appeals Council denied on December 24, 2003.

On January 26, 2004, Nicholson filed a new protective filing for SSI and on January 31, 2004, he submitted another application for Childhood Disability Benefits alleging disability beginning at birth due to curvature of the spine, missing one-half vertebrae, heart disease/Tetralogy of Fallot and attention deficit hyperactivity disorder ("ADHD"). On April 27, 2004, the Commissioner denied these claims initially and, on August 17, 2004, denied them again after reconsideration.

After Nicholson requested a hearing, an ALJ conducted a hearing on September 9, 2005, at which Nicholson, represented by counsel, his mother and a vocational expert ("VE"), appeared and testified. On September 26, 2005, the ALJ determined that Nicholson was not disabled at any time since November 1, 2003.

Relying on 20 C.F.R. §§ 404.987 et seq. and 416.987 et seq., the ALJ determined that no new or material evidence or other basis sufficient to establish "good cause" existed for reopening and revising the October 31, 2003 hearing determination and, therefore, restricted the scope of consideration regarding Nicholson's disability status to the period after the date of the October 31, 2003 unfavorable decision. Thus, the period at issue here began on November 1, 2003.

On November 16, 2007, the Appeals Council denied Nicholson's October 25, 2005 request for a review of the September 26, 2005 decision, making it the final decision of the Commissioner. On January 1, 2008, Nicholson filed this action seeking review of that final decision.

II. PLAINTIFF'S BACKGROUND

Nicholson was nineteen years old on November 1, 2003 and is considered a "younger individual 18-44" within the meaning of the regulations for the period at issue. Nicholson has an eleventh grade education and no vocationally relevant past work experience. He reported trying to work as a stock person at a retail store but quit after four days due to weakness and shortness of breath.

III. ADMINISTRATIVE FINDINGS

Utilizing the five-step sequential evaluation process prescribed in the Commissioner's regulations at 20 C.F.R. §§ 404.1520 and 416.920, the ALJ found that Nicholson:

1. Met the nondisability requirements for Childhood Disability Benefits set forth in Section 202(d) of the Social Security Act (with the exceptions noted in 20 CFR § 404.352(b)(2));

2. Had not engaged in substantial gainful activity since November 1, 2003, the time period at issue;

3. Had the following combination of severe impairments during the period at issue that, alone or in combination do not meet or equal a listed impairment and have not significantly limited his ability to perform basic work activities for a period of at least 12 consecutive months: mild scoliosis, Tetralogy of Fallot (a congenital heart defect), depression, anxiety, borderline intellectual functioning, and history of attention deficit hyperactivity disorder;

4. Had no medically determinable impairments during the period at issue, alone or in combination, that presented symptoms sufficient to meet or medically equal the severity criteria for any impairment listed in Appendix 1, Subpart P, Regulation No. 4 (20 CFR §§ 404.1520(d) and 416.920(d));

5. Was not fully credible regarding the period at issue concerning his impairment-related limitations and purported inability to work;

6. Retained the residual functional capacity to perform at least a range of unskilled work that requires no more than a light level of physical exertion, accommodates brief, one to two minute changes in physical position at intervals not to exceed thirty minutes, entails no concentrated exposure to temperature extremes, involves only second grade or lower, if any, level reading, writing or mathematics, involves no detailed or complex instructions, requires no close concentration or attention to detail for extended periods, and accommodates unscheduled absences of at least one workday per month;

7. Has no vocational relevant past work experience;

8. Is considered a younger individual throughout the period at issue (20 CFR 404.1563 and 416.963);

9. Has a "limited" (eleventh grade) education;

10. Had impairment-related limitations throughout the period at issue that precluded his ability to perform the full range of even light exertional work and, pursuant to Medical-Vocational Rule 202.17, is capable of performing a significant number of jobs that exist within the national economy, including hand packer, laundry folder and office cleaner, as well as sedentary positions as an inspector checker and glass products waxer; and

11. Was not under a "disability," as defined in the Social Security Act, since November 1, 2003, the period at issue (20 CFR 404.1520(g) and 416.920(g)).

IV. OBJECTIONS

On November 6, 2008, counsel for the defendant, Commissioner of Social Security, objected to any remand of the case for consideration of Nicholson's alleged eye impairment. The Commissioner argues that remand is futile and unnecessary because Nicholson's application fails to list a vision impairment, and Nicholson's failure to "even mention a vision impairment until his hearing undermined his allegation of a severe vision impairment."

On November 8, 2008, Nicholson filed objections to the R & R, contending that the ALJ had failed

1) to make the specific findings required in Acquiescence Ruling AR 00-1(4);

2) to consider the reports from Dr. Dawlah pursuant to SSR 96-2p prior to determining that his back condition had not worsened;

3) to consider Nicholson's record of school absences prior to determining that he would miss only one day per month from work; and

4) Nicholson did not object to the remand of the case but argues that it "would be greatly prejudicial" if the Court remanded the case solely for review of the vision impairment.

On November 12, 2008, the Commissioner responded to Nicholson's objections, contending that Nicholson is asking this Court to re-weigh the evidence in this case and that, pursuant to Craig v. Chater, 76 F.3d 585, 589 (4th Cir.), a court may not "re-weigh conflicting evidence, make credibility determinations or substitute its judgment for that of the [ALJ]." The Commissioner asserts that the record contains substantial evidence to support the ALJ's findings.

V. RELEVANT MEDICAL EVIDENCE

The relevant medical history includes:

1. A February 22, 2001 psychological evaluation from Lisa P. Stafford, M.S., C.S.P., indicating a WAIS-III: Verbal IQ 81, Performance IQ 85 and Full Scale IQ 81 WIAT scores of Basic Reading 68, Mathematics Reasoning 67, Spelling 55, Reading Comprehension 71, Numerical Operations 66, Written Expression 56, Reading Composite 61, Math Composite 63, and Writing Composite 49.

Stafford noted that Nicholson is a student of generally borderline cognitive ability, statistically is at the lowest end of the scale for his age, and needs to "exert some effort in completing assignments to the best of his ability;"

2. August, 1997 through May 1, 2001...