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Fears v. Berryhill

United States District Court, W.D. Virginia, Lynchburg Division

February 26, 2018

VIRGINIA ALEASE FEARS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Robert S. Ballou, United States Magistrate Judge.

         Plaintiff Virginia Alease Fears (“Fears”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) determining that she was not disabled and therefore not eligible for supplemental security income (“SSI”), and disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 402(d), 1381-1383f. Specifically, Fears alleges that the ALJ erred by (1) holding a hearing in her absence; (2) failing to itemize her various mental functions when crafting her residual functional capacity (“RFC”); (3) failing to account for her moderate limitations in concentration, persistence, or pace; (4) failing to give more weight to the opinion of consultative examiner Franklin E. Russell, Ph.D.; and (5) failing to consider her obesity in combination with her asthma and left knee ailments. I find that substantial evidence supports the ALJ's decision on all grounds. Accordingly, I RECOMMEND GRANTING the Commissioner's motion for summary judgment (Dkt. 14), and DENYING Fears's motion for summary judgment (Dkt. 12).

         STANDARD OF REVIEW

         This Court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Fears failed to demonstrate that she was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         CLAIM HISTORY

         Fears protectively filed for SSI and DIB on January 3, 2012, claiming that her disability began on November 11, 2011. R. 312-22. The Commissioner denied the application at the initial and reconsideration levels of administrative review. R. 73, 82, 96, 108. On March 31, 2015, ALJ Marc Mates held an administrative hearing to consider Fears's disability claim. R. 32-43. Fears was incarcerated at the time of the hearing, but appeared through her attorney. R. 34. Vocational expert Gerald K. Wells testified at the hearing. R. 36-41.

         On June 26, 2015, the ALJ entered his decision analyzing Fears's claim under the familiar five-step process, [2] and denying Fears's claim for disability. R. 10-24. The ALJ found that Fears suffered from the severe impairments of: “left knee lateral meniscus tear and chondromalacia, diabetes mellitus, hypertension, asthma, obesity, borderline intellectual functioning, mood disorder, and anxiety disorder.” R. 13. The ALJ further found that Fears retained the RFC to perform a range of light work, but she is restricted to lifting and carrying ten pounds frequently, lifting and carrying twenty pounds occasionally, standing and/or walking for six hours in an eight-hour workday, and sitting for six hours in an eight-hour workday. R. 15. The ALJ explained that Fears can never climb ladders, scaffolds, or ropes; can never crawl; and can never be exposed to extreme temperatures, wetness, humidity, fumes, odors, dust, gases, poor ventilation, vibration, and hazards (such as unprotected heights or hazardous moving machinery). R. 15-16. The ALJ further found that Fears can occasionally balance and stoop as well as push and pull with her left leg. R. 15. Finally, the ALJ explained that Fears can “perform simple, routine tasks; sustain concentration toward such tasks for 2-hour segments; interact as needed with coworkers/supervisors, with only occasional public contact; and respond appropriately to change in a routine work setting.” R. 16.

         The ALJ determined that Fears could not return to her past relevant work as a fast food worker, store clerk, and sewing machine operator, but that she could work at jobs that exist in significant numbers in the national economy, such as a cafeteria attendant or a cleaner. R. 22-23. Thus, the ALJ concluded that Fears was not disabled. R. 24. Fears appealed the ALJ's decision to the Appeals Council, but her request for review was denied. R. 1-3. This appeal followed.

         ANALYSIS

         Fears challenges the ALJ's decision on five grounds: (1) the ALJ violated her rights to procedural due process in holding the administrative hearing in her absence; (2) the ALJ failed to conduct a “more detailed assessment” required by SSR 96-8p by itemizing Fears's various mental functions; (3) the ALJ failed to account for Fears's moderate limitations in concentration, persistence, and pace; (4) the ALJ failed to give appropriate weight to Dr. Russell's consultative psychological assessment; and (5) the ALJ failed to consider Fears's obesity in combination with her asthma and left knee ailments.

         I. The Administrative Hearing

         Fears first argues that the ALJ violated the Social Security Administration's internal operating guidelines-the HALLEX manual-by proceeding at the hearing while she was in jail.

         The HALLEX manual “provides guiding principles, procedural guidelines and information.” Parham v. Colvin, No. 3:14cv283, 2015 WL 1649143, at *15 (E.D. Va. Apr. 13, 2015). “[I]nterpretations contained in policy statements, agency manuals and enforcement guidelines lack the force of law.” Id. (citing Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)). An internal claims manual created “for internal use by thousands of SSA employees” is not a regulation, meaning “[i]t has no legal force” and “does not bind the SSA.” Schweiker v. Hansen, 450 U.S. 785, 789 (1981). “HALLEX is an internal guidance tool and thus, lacks the force of law.” Parham, 2015 WL 1649143, at *15 (citations omitted). Thus, the HALLEX manual gives Fears no basis to challenge the ALJ's decision.

         Fears then contends that the ALJ violated her rights under the Due Process Clause of the Fifth Amendment when he determined that she constructively waived her presence at the administrative hearing.

         The Fifth Amendment prevents any person from being “deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. It is well-established that “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). To satisfy procedural due process, the individual must, at a minimum, receive “notice and an opportunity to be heard.” United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993). The individual's due process rights will be violated if the notice is not “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their [case].” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citation omitted).

         Fears first received notice of her administrative hearing on February 9, 2015. R. 270. A second notice was sent on March 17, 2015 notifying her of the administrative hearing. R. 302. Fears's attorney was mailed copies of both notices. R. 275, 303.

         Fears was arrested on March 6, 2015, twenty-five days after receiving her first notice and twenty-five days before her hearing. R. 460. Fears remained in jail until April 2, when she was released on bond. Id. Fears's attorney received both notices prior to the administrative hearing and was aware of her incarceration before the hearing began, ...


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