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Shelton v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

March 25, 2019

NORINE VANESSA SHELTON, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

         This matter comes before the Court on Norine Vanessa Shelton's ("Plaintiff) Objections to the Report and Recommendation of the Magistrate Judge ("Plaintiffs Objections"), ECF No. 36, filed in response to United States Magistrate Judge Robert J. Krask's Report and Recommendation, entered on January 24, 2019, ECF No. 35. For the reasons stated herein, the Court: (1) ACCEPTS the R&R, ECF No. 35; (2) AFFIRMS the decision of the Commissioner of the Social Security Administration ("Defendant" or "Commissioner"); (3) DENIES Plaintiffs Second Motion for Summary Judgment, ECF No. 30; and (4) GRANTS Defendant's Second Motion for Summary Judgment. ECF No. 32.

         Contents

         I. PROCEDURAL BACKGROUND.............................................................................2

         II. RELEVANT FACTUAL BACKGROUND...............................................................4

         A. Plaintiff's Background....................................................................................4

         B. Plaintiff's School Records.............................................................................5

         C. Statements by Plaintiff and Family Members............................................8

         D. Plaintiff's Consultative Examination.........................................................9

         E. State Agency Physician Review....................................................................12

         F. Testimony Before the ALJ.............................................................................13

         III. THE ALJ'S DECISION............................................................................................15

         IV. STANDARD OF REVIEW.......................................................................................18

         V. ANALYSIS.................................................................................................................20

         A. Objection One: Ms. Shelton did not waive her right to CHALLENGE THE APPOINTMENT OF THE ALJ WHO ADJUDICATED HER CLAIM AS A VIOLATION OF THE APPOINTMENTS CLAUSE....................................21

         B. Objection Two: The Magistrate Judge's finding that Ms. Shelton does not meet the criteria of 12.05 should be rejected.........23

         VI. CONCLUSION..........................................................................................................25

         I. PROCEDURAL BACKGROUND [1]

         Shelton protectively filed an application for supplemental security income on February 6, 2014. R. 10, 175-79.[2] Shelton alleges she became disabled on December 16, 2013, due to open heart surgery, a learning disability, high cholesterol, high blood pressure, pancreatitis, depression, and asthma. R. 222. The Commissioner denied Shelton's application on June 24, 2014, and, upon reconsideration, on October 30, 2014. R. 62-74, 76-88, 90-94. At Shelton's request, an Administrative Law Judge ("ALJ") heard the matter on August 25, 2016, and at the hearing received testimony from Shelton (who was represented by counsel), Shelton's mother, and an impartial vocational expert ("VE"). R. 33-61. On October 6, 2016, ALJ Stewart Goldstein denied Shelton's claims, finding that she had not been under a disability since February 6, 2014, the date her application was filed. R. 10-21.

         On September 22, 2017, the Appeals Council denied Shelton's request for review of the ALJ's decision. R. 1-5. Therefore, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(h), 1383(c)(3); 20 C.F.R. § 416.1481.

         Having exhausted all administrative remedies, Plaintiff filed a complaint with this Court on November 28, 2017. ECF No. 3. Defendant answered on February 16, 2018. ECF No. 8. The parties filed cross motions for summary judgment addressing whether substantial evidence in the record supports the decision of the ALJ. ECF Nos. 11-12, 14-17.

         On September 25, 2018, Plaintiff filed a motion for leave to amend the complaint, with a memorandum in support and a proposed amended complaint attached. ECF Nos. 18-19. In addition to the argument in count one that the decision of the ALJ is not supported by substantial evidence, Plaintiff alleges in count two of the first amended complaint that the Defendant's decision to deny her SSI benefits "is unconstitutional and void because the agency's disability determination of this case violates the Appointments Clause and constitutional removal requirements." First Am. Compl. ¶ 10, ECF No. 25 at 2. This allegation is premised upon the holding in Lucia v. SEC, 138 S.Ct. 2044 (2018), that ALJs for the Securities and Exchange Commission are "'Officers' under the Appointments Clause and cannot preside over hearings unless they are hired consistent with the Appointments Clause." Mem. in Suppt. Mot. For Leave to Am. 2-3, ECF No. 19. The Court granted Plaintiff leave to amend the complaint, and the amended complaint was filed on October 23, 2018. ECF Nos. 23, 25. Defendant answered the amended complaint on November 5, 2018. ECF No. 26. On the same day, Plaintiff and Defendant withdrew the motions for summary judgment that addressed the original complaint. ECF Nos. 27, 28.

         In compliance with the Court's second scheduling order, the parties filed cross motions for summary judgment addressing the amended complaint, which were fully briefed on January 22, 20l9.ECF Nos. 30-34.[3]

         The matter was then referred to United States Magistrate Judge Robert J. Krask pursuant to: (1) 28 U.S.C. § 636(b)(1)(B) and (C); (2) Rule 72(b) of the Federal Rules of Civil Procedure; (3) Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia, and (4) the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. Magistrate Judge Krask issued his R&R with respect to the parties' opposing motions on January 24, 2019. R&R, ECF No. 35. The R&R recommends that this Court DENY Plaintiffs Second Motion for Summary Judgment, AFFIRM the final decision of Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("SSA"), and GRANT the Commissioner's Second Motion for Summary Judgment. Id. Plaintiff filed her objections to the R&R on February 7, 2019. ECF No. 36. Defendant filed her Response to Plaintiffs Objections on March 7, 2019. ECF No. 39. Plaintiff did not file a reply.

         II. RELEVANT FACTUAL BACKGROUND[4]

         A. Plaintiffs Background

         Plaintiff was born in 1964 and was 49 years old on December 16, 2014, the onset date of her alleged disability. R. 175. Plaintiff completed the seventh grade, but ceased attending school at the age of 17, prior to completing the eighth grade. R. 41, 53.

         Plaintiff worked in housekeeping at several different hotels from 2008 through 2013. R. 250. Plaintiff generally worked five hours per day, six days per week on a seasonal basis. R. 44-45, 190, 251. Plaintiff stopped working in September 2013, when her seasonal position ended. R. 222. In December 2013, Plaintiff suffered a heart attack, which led to her application for disability benefits. R. 222.

         B. Plaintiffs School Records

         An attendance audit report indicates that Plaintiff repeated the first and third grades, R. 1028, and this is consistent with the dates and grade levels listed in her school records.

         Notes from Plaintiffs elementary transcript indicate that, in the first grade, [5] Plaintiff had some difficulty adjusting at first, but came "a long way" socially, was working hard, and was getting along with her classmates. R. 281, 1034. In second grade, her teacher noted that she was "very talkative and bossy," "love[d] attention," and although she was "not a fast worker," she "trie[d] very hard to do her best." Id. Her third-grade teacher noted that she "had difficulty in class because she did not follow directions well," but that "[w]hen she settled [down] to work she was able to do a pretty good job." Id. Results of a "Metropolitan Readiness Test" administered when Plaintiff was seven years old, [6] and in her second year of first grade, indicate a percentile rank of 35 and a letter rating of C. R. 267, 272, 1019, 1024.

         Plaintiff scored a 96 on a Kuhlmann-Anderson intelligence test administered in September 1972, when she was eight years old and in the second grade. R. 269, 1021. There is no indication of who administered the test. Plaintiffs birthday was again incorrectly listed as 1965, and her age incorrectly listed as seven years old. Id. When the same test was administered one year later, however, Plaintiff scored a 75. R. 271, 1023. That test was administered and scored by her third- grade teacher, who noted that Plaintiff "could not follow directions." Id. Her birth date and age were again misstated. Id.

         Testing of Plaintiffs reading ability was performed in February 1973 when Plaintiff was eight years old. R. 1020. Plaintiff scored a 77 out of 89 on her decoding skills and scored 80 out of 90 on comprehension skills. R. 268, 1020. Two months later, in April 1973, Plaintiff scored 71 out of 92 on decoding skills and 80 out of 90 on comprehension skills. Id. A checklist grade sheet completed for the school years ending in 1973 and 1975-78 indicate whether Plaintiff was "progressing slowly," "progressing," or "progressing rapidly" in several core subjects including reading, oral language, written language, mathematics, social studies, and science. R. 276-77, 1029-30. A separate sheet tracked her social development, including work habits, sociability, and personal growth for the same years. R. 279, 1032. Plaintiff was progressing slowly in every core subject during second grade, the 1972-73 school year, and her teacher only checked one out of 18 characteristics of social development evaluated, indicating that Plaintiff showed courtesy and consideration. R. 276-77, 279, 1029-30, 1032.

         For the 1974-75 school year, Plaintiffs second year in third grade, Plaintiff was "progressing slowly" or "progressing" in the core subjects, and had checks for several areas of social development, including striving to complete work, working well independently, participating in group discussions, exercising leadership, and showing initiative. Id.

         Plaintiff scored between the 2nd and 25th percentile for all subjects tested on an SRA assessment[7] conducted in October 1975, when Plaintiff was 11 years old and beginning the fourth grade. R. 284, 1037. The checklist completed the end of the 1975-76 school year indicated Plaintiff was "progressing" in almost all subject areas, "progressing rapidly" in social studies and science, and her teacher checked all 18 characteristics of social development with respect to work habits, sociability, and personal growth. R. 276-77, 279, 1029-30, 1032.

         A standardized test conducted in 1977, when Plaintiff was in the fifth-grade, indicates a grade equivalent score of 2.2 in reading comprehension, a 4.4 in math comprehension, and a composite score of 3.4. R. 260, 1009. Her teacher indicated that she was "progressing" with respect to all core subjects, and checked all 18 characteristics evaluated with respect to work habits, sociability, and personal growth. R. 276-77, 279, 1029-30, 1032.

         For the 1977-78 school year, when she was thirteen years old, Plaintiff was "progressing" with respect to most subject areas, and her teacher checked 10 of the 18 characteristics evaluated with respect to work habits, sociability, and personal growth. Id. Standardized testing during this sixth-grade year indicated a grade equivalent score of 4.6 in reading ...


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