United States District Court, Western District of Virginia, Danville Division
DAVID H. ROBERTSON, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Joel C. Hoppe United States Magistrate Judge
Plaintiff David H. Robertson asks this Court to review the Commissioner of Social Security’s (“Commissioner”) final decision denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401–434. (See ECF No. 3.) This Court has authority to decide Robertson’s case under 42 U.S.C. § 405(g), and his case is before me by referral under 28 U.S.C. § 636(b)(1)(B) (ECF No. 11). I recommend that this Court dismiss Robertson’s action without prejudice because he has failed to prosecute his case.
I. Procedural History
Robertson filed for Disability Insurance Benefits on April 18, 2011, alleging disability beginning September 15, 2009. (R. 31.) He said that he could not work anymore because of chronic obstructive pulmonary disease (“COPD”), high blood pressure, and an unidentified heart condition. (See id.) At 64 years old, Robertson was “closely approaching retirement age” when he applied for disability benefits. (Id.) A state agency twice denied his application. (R. 35, 40.) The state agency medical consultants found that Robertson’s impairments did not significantly limit his ability to perform basic work activities on or before December 31, 2009, the date he was last insured for disability benefits. (See R. 35, 41.)
On August 6, 2012, Robertson appeared pro se at an administrative hearing via video feed from Danville, Virginia. (R. 21.) The Administrative Law Judge’s (“ALJ”) questions focused exclusively on Robertson’s condition between September 15 and December 31, 2009. (See R. 26–29.) Robertson testified as to his respiratory symptoms and his ability to perform daily activities during those three months. (See id.) No one else testified at the hearing. (See R. 21, 30.)
In a written decision dated August 15, 2012, the ALJ found that Robertson was not “disabled” because his hypertension, atrial fibrillation, asthma, and COPD did not “significantly limit” his ability to perform basic work-related tasks for 12 consecutive months before December 31, 2009. (R. 10, 13.) The Appeals Council refused to revisit the ALJ’s decision. (R. 1.)
Robertson filed his complaint pro se in this Court on November 12, 2013. (ECF No. 3.) The Clerk’s Office gave Robertson hardcopies of the Pro Se Handbook and Local Rule 4 when he filed at the counter. (See ECF Staff Note dated Nov. 13, 2013.) The Commissioner filed her answer and the administrative transcript on March 18, 2014. (ECF Nos. 6, 8.) On the same day, this Court directed Robertson to file “a brief addressing why the Commissioner’s decision is not supported by substantial evidence or why the decision otherwise should be reversed or the case remanded.” W.D. Va. Gen. R. 4(c)(1). (ECF No. 9.) Robertson’s brief was due on April 21, 2014. (See id.) That deadline passed without any word from Robertson. (See ECF No. 10.)
As of May 13, 2014, Robertson had neither filed a brief nor contacted the court regarding the status of his case. (See ECF No. 12.) On that date, I sua sponte ordered Robertson either to file a brief that complied with the original briefing order and Local Rule 4(c)(1) or to file a document explaining why his case should not be dismissed for failure to prosecute. (See id.) I also warned Robertson that his case could be dismissed without further notice if he did not file an “appropriate document” by June 13, 2014. (Id.)
The Clerk’s Office in Danville received Robertson’s four-page response on June 13, 2014. (ECF No. 13.) The documents appeared to be the same CM/ECF documents that the Clerk’s Office had mailed to Robertson on May 13, 2014. (See Id . 1–4.) A handwritten paragraph on the first page read in its entirety:
Show cause due by 6/13/2014. Original order on March 18, 2014 was for the (plaintiff) David H. Robertson to file by April 21, 2014 a brief addressing why the Commissioner’s decision is not supported by substantial evidence, or why decision should otherwise be reversed or case remanded. As of May 13, David has not filed nor contacted court regarding status of his case. Therefore [illegible] ordered by June 13 in place for brief in place w/ original or document explaining why his case should not be dismissed for failure to prosecute. Failure to file an appropriate document by 6/13/14 may result in this action being dismissed w/o further notice.
(Id. 1.) This essentially restates the contents of the Order to Show Cause issued on May 13, 2014. (See ECF No. 12.) Each of the four pages also contained an incomprehensible collection of scribbled circles, arrows, underlines, and parentheses. (See ECF No. 13, 1–4.)
On July 16, 2014, I sua sponte convened a telephonic hearing to discuss Robertson’s response to the Order to Show Cause. (See ECF No. 15.) Robertson appeared pro se, and attorney James McTigue appeared on behalf of the Commissioner. (See id.) Robertson informed the Court that he cannot read or write. He also said that he would try to hire an attorney. Counsel for the Commissioner did not oppose the Court extending by another 30 days the time within which Robertson must file his brief or other “appropriate document.” (ECF No. 16.)
On July 16, 2014, I ordered that on or before August 15, 2014, Robertson must file a brief in accordance with the original briefing order and Local Rule 4(c)(1) or file a document explaining why his case should not be dismissed for failure to prosecute. (See id.) I again warned Robertson that his “failure to file a brief or other appropriate document by August 15, 2014, may result in this action being dismissed without further notice.” (Id.) August 15 passed without any word from Robertson. As of August 21, 2014, Robertson still had not filed an appropriate document, and an attorney had not ...