United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin United States Magistrate Judge
matter is before the Court for a Report and Recommendation
pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C.
§ 636(b)(1)(B). Plaintiff, proceeding pro se, brought this
action pursuant to 42 U.S.C. §§ 405(g) to obtain
judicial review of a final decision of the Commissioner of
Social Security (“the Commissioner”), denying
Plaintiff's claim for disability insurance benefits
(“DIB”). For the reasons set forth below, it is
recommended that the decision of the Commissioner be
February 2014, Plaintiff protectively filed an application
for DIB alleging an onset of disability date of February 8,
2006. [R. 165-66.] The claim was denied initially and on
reconsideration by the Social Security Administration
(“the Administration”). [R. 111-15; 117-21.]
Plaintiff requested a hearing before an administrative law
judge (“ALJ”) and, on November 3, 2016, ALJ
Edward T. Morriss conducted a de novo hearing on
Plaintiff's claims. [R. 46-70.] Plaintiff chose to appear
and testify without the assistance of an attorney or other
representative. [R. 48-49.]
issued a decision on June 9, 2017, finding Plaintiff was not
disabled under the Social Security Act (“the
Act”). [R. 33-39.] At Step 1,  the ALJ found that Plaintiff
last met the insured status requirements of the Act on
December 31, 2009, and had not engaged in substantial gainful
activity during the period from his alleged onset date of
February 8, 2006, through his date last insured of December
31, 2009. [R. 35-36, Findings 1 & 2.] At Step 2, the ALJ
found that Plaintiff had medically determinable impairments
of heart failure and ADHD. [R. 36, Finding 3.] At Step 3, the
ALJ found that, through the date last insured, Plaintiff did
not have an impairment or combination of impairments that
significantly limited his ability to perform basic work
related activities for 12 consecutive months and, therefore,
Plaintiff did not have a severe impairment or combination of
impairments. [R. 36, Finding 4.] Accordingly, the ALJ
concluded that Plaintiff was not under a disability, as
defined in the Act, at any time from February 8, 2006, the
alleged onset date, through December 31, 2009, the date last
insured. [R. 38, Finding 5.]
requested Appeals Council review of the ALJ's decision,
but the Council declined review. [R. 1-5.] Plaintiff filed
this action for judicial review on November 8, 2018. [Doc.
1.] As noted, Plaintiff is proceeding pro se in seeking
judicial review of the ALJ's decision.
does not allege any error on the part of the ALJ. Instead,
Plaintiff submitted a pro se brief in which he makes the
following arguments, provided verbatim in part, in an effort
to obtain review of the ALJ's decision:
Exhibits in the Defendant's possession since 2014 show
that some of the Plaintiff's disabilities did indeed
exist before 2009. In no particular order:
a. Asperger's (Autism), ADHD, and other disorders were
diagnosed in the 1990's by Dr. Dale R. Jordan, Learning
Disabilities Specialist for the State of Arkansas Department
of Adult Education. He stated that this was a lifelong
disability. Plaintiff did not realize he had these
disabilities until he was 42 years old, but recognizes how
these disabilities have affected him all his life.
Disabilities confirmed by forensic psychiatrist in 2005.
b. Plaintiffs Heart Disability, diagnosed in the 1960's
to have been present since his early years, was reported by
Dr. Baumgartner to the Selective Service in a
“confidential” letter soon after 1969.
c. Plaintiff did not know about his Lack of Coordination
diagnosis (parental secrets?) until Dr. Baumgartner reported
it to the Selective Service in that same
“confidential” letter. Plaintiff learned of that
diagnosis when S. S. personnel handed him “his
file” containing everything they knew about him to
carry from doctor to doctor and from test station to test
d. Plaintiff was given 4F status circa 1970 based on these
e. These disabilities have afflicted Plaintiff virtually his
f. The psychiatrist at the Arkansas D.O.C. also confirmed
Plaintiff's emotional disability (Autism/Asperger's).
Psychiatrists would certainly agree that this grew into a
sexual disability which prevents Plaintiff from working where
his Master's Degree trained him to work.
g. The eight years that Plaintiff was unable to continue his
work programming computers also turned into a disability.
Eight years without programming makes it impossible to catch
up with what you've missed. Reading computer magazines
and playing with graphing calculator is not the same thing.
h. In many states, Social Security accepts incarceration for
more than five years as a disability.
i. Plaintiff affirms all statements made in the original
[Doc. 25 at 1-3.] Plaintiff seeks to have the Court overturn
the ALJ's decision and grant the relief requested.
[Id. at 3.]
Commissioner, on the other hand, argues that the ALJ's
decision is supported by substantial evidence. [Doc. 28.] The
Commissioner also notes that, even if Plaintiff had
demonstrated disability during the relevant period, he was
incarcerated for the entire relevant period and was
categorically ineligible to receive payment of disability
benefits for his period of incarceration. [Id. at
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla-i.e., the
evidence must do more than merely create a suspicion of the
existence of a fact and must include such relevant evidence
as a reasonable person would accept as adequate to support
the conclusion. See Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing
Woolridge v. Celebrezze, 214 F.Supp. 686, 687 (S.D.
W.Va. 1963)) (“Substantial evidence, it has been held,
is evidence which a reasoning mind would accept as sufficient
to support a particular conclusion. It consists of more than
a mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
conflicting evidence “allows reasonable minds to differ
as to whether a claimant is disabled, the responsibility for
that decision falls on the [Commissioner] (or the
[Commissioner's] designate, the ALJ), ” not on the
reviewing court. Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996); see also Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the
Commissioner's decision is supported by substantial
evidence, the court will affirm, even if the reviewer would
have reached a contrary result as finder of fact and even if
the reviewer finds that the evidence preponderates against
the Commissioner's decision). Thus, it is not within the
province of a reviewing court to determine the weight of the
evidence, nor is it the court's function to substitute
its judgment for that of the Commissioner so long as the
decision is supported by substantial evidence. See Bird
v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012);
Laws, 368 F.2d at 642; Snyder v. Ribicoff,
307 F.2d 518, 520 (4th Cir. 1962).
reviewing court will reverse the Commissioner's decision
on plenary review, however, if the decision applies incorrect
law or fails to provide the court with sufficient reasoning
to determine that the Commissioner properly applied the law.
Myers v. Califano,611 F.2d 980, 982 (4th Cir.
1980); see also Keeton v. Dep't of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the
Commissioner's decision “is in clear disregard of
the overwhelming weight of the evidence, Congress has
empowered the courts to modify or reverse the
[Commissioner's] decision ‘with or without
remanding the cause for a rehearing.'” Vitek v.
Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42
U.S.C. § 405(g)). Remand is unnecessary where “the
record does not contain substantial ...