Opinion
No. 4:17-cv-01606
08-31-2018
JENNIFER LYNN RICHMOND, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Brann, J.)
() REPORT AND RECOMMENDATION
This is an action brought under 42 U.S.C. §405(g), seeking judicial review of the Commissioner of Social Security's final decision denying Jennifer Lynn Richmond's claims for disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge for the preparation of the report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
For the reasons stated herein, we respectfully recommend that the decision of the Commissioner be AFFIRMED. I. Background and Procedural History
Richmond is an adult individual born February 7, 1980. She was thirty-four years old at the time of the alleged onset of disability—May 17, 2014. (Tr. 10, 52).
Richmond's age at the onset date places her in a category of a "younger person" under the Commissioner's regulations whose age generally does not affect her ability to adjust to other work.
On July 7, 2014, Richmond protectively filed an application for benefits under Title II of the Social Security Act alleging disability as of May 17, 2014. In her application, Richmond alleged that the following impairments prevent her from engaging in any work: multiple sclerosis, abnormal heartbeat, blurry vision, numbness of right side of face and right arm, chronic fatigue, and chronic headaches. (Tr. 134).
Richmond's claim was initially denied on September 9, 2014. Thereafter, on September 29, 2014, Richmond filed a timely request for an administrative hearing. Her request was granted. Richmond appeared and testified before Administrative Law Judge ("ALJ") Theresa Hardiman on August 31, 2016. Richmond was represented by counsel, Robert Frantz, throughout the proceeding. In addition, impartial vocational expert ("VE") Carmine Abraham also appeared and testified during the administrative hearing.
On November 2, 2016, the ALJ denied Richmond's application for benefits in a written decision. On February 10, 2017, Richmond sought further review of her claims by the Appeals Council, but her request was denied on July 10, 2017. This makes the ALJ's November 2, 2016, decision the final decision subject to judicial review by this Court.
Richmond filed a timely complaint in this court on September 8, 2017. (Doc. 1). In her complaint, Richmond alleges that the final decision of the Commissioner is not supported by substantial evidence or applicable law, and therefore she should be found disabled.
On November 15, 2017, the Commissioner filed her answer, in which she maintains that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 7).
This matter has been fully briefed by the parties and is ripe for decision. (Docs. 9, 13). II. Statement of Facts
At the time of the administrative hearing, Richmond was thirty six years old and resided with her husband and two children ages, 9 and 13, in Tamaqua, Pennsylvania, which is in the Middle District of Pennsylvania. (Tr. 52, 133). Richmond's past work includes: nurses' aide, cleaning, manufacturing, and retail and temporary work. (Tr. 135).
Richmond testified that she completed a high school education. (Tr. 52). Richmond possesses a drivers' license. (Tr. 53). Richmond testified that she lives in a two-story home with her husband and two children. She testified that she goes up and down the stairs in her home approximately six times a day.
Richmond stated that she is the primary caretaker of her children, although she does get help from her husband. She stated that she is able to care for her personal needs such as bathing, grooming, and dressing. (Tr. 53-54). She stated that she is able to do chores, such as cooking, cleaning, and laundry. Richmond stated that she goes to the grocery store with her husband. (Tr. 54). She stated she has a smart phone which she uses occasionally due to her vision issues. (Tr. 54). Richmond stated that she watches television, but does not read books, magazines, or the newspaper. (Tr. 54).
Richmond stated that she is able to lift a bag of potatoes. She stated she could raise her legs from a seated position, put them straight out, and up and down. She stated that she could also reach overhead. (Tr. 55).
She stated on a typical day she gets up between 4:00 a.m. and 7:00 a.m., and goes to bed around 8:00 p.m. She stated that she usually sleeps between four to six hours each night and she takes two to three naps a day. (Tr. 63). She stated that she would be able to stand for two to three hours (Tr. 56), but later in the testimony, she stated it would be only twenty minutes. (Tr. 68). She stated that she cannot stand, sit, or bend over for long periods of time. (Tr. 68). She stated she can only walk a half a block before having to stop (Tr. 56), and that stress, heat, and cold aggravate her symptoms. (Tr. 61). III. Legal Standards
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). In an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003). The question before the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.") (alterations omitted); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
To receive disability benefits, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).
A "physical or mental impairment" is an impairment resulting from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
"Substantial gainful activity" is work that (1) involves performing significant or productive physical or mental duties, and (2) is done (or intended) for pay or profit. 20 C.F.R. § 404.1510.
The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a). Under this process, the Commissioner must determine, in sequence: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do past relevant work, considering his or her residual functional capacity ("RFC"); and (5) whether the claimant is able to do any other work, considering his or her RFC, age, education, and work experience. Id. The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064. IV. Discussion
An extensive list of impairments that warrant a finding of disability based solely on medical criteria, without considering vocational criteria, is set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1.
"Residual functional capacity" is the most a claimant can do in a work setting despite the physical and mental limitations of his or her impairment(s) and any related symptoms (e.g., pain). 20 C.F.R. § 404.1545(a)(1). In assessing a claimant's RFC, the Commissioner considers all medically determinable impairments, including those that are not severe. Id. § 404.1545(a)(2). --------
In her November 2, 2016, decision denying Richmond's claim, the ALJ evaluated Richmond's application for benefits at each step of the sequential process. The decision was based on the relevant period for consideration of disability from May 7, 2014, through June 30, 2015, when Richmond's insured status expired. At step one, the ALJ found that Richmond did not engage in substantial gainful activity during the period of her alleged onset date of May 7, 2014, through June 20, 2015. (Tr. 12). At step two, the ALJ found the following medically determinable impairment severe during the relevant period: multiple sclerosis. (Tr. 12). At step three, the ALJ found that Richmond did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, during the relevant period. (Tr. 15). The ALJ also found that Richmond had the following non-severe medical impairments: palpitations/premature ventricular contractors, anemia, hemianopia, status post optic neuritis, retrobulbar neuritis, possible retinopathy, degenerative disc and joint disease of the lumbar, thoracic and cervical spines, lumbar radiculopathy, and affective disorder. (Tr. 12).
Between steps three and four, the ALJ assessed Richmond's RFC. After evaluating the relevant evidence of record, the ALJ found that Richmond had the RFC to perform medium work as defined in 20 C.F.R. 404.1567(c), except for the following:
[s]he could perform occasional climbing, balancing, and stooping, but never on ladders. [She] must avoid temperature extremes, humidity, vibration, fumes and hazards. [She] is
limited to unskilled work activity that is low stress, defined as only occasional decision making required and only occasional changes in the work setting.(Tr. 15).
The ALJ's conclusion at step four of the sequential evaluation process was based on the RFC assessment and the VE's testimony. At step four, the ALJ found that Richmond was able to perform her past relevant work as a production worker and picker/packer. (Tr. 18).
a. The ALJ properly evaluated the record evidence and her decision is supported by substantial evidence.
Richmond contends that the ALJ's decision is not supported by substantial evidence that Richmond is not disabled, and raises several issues within that scope.
First, the ALJ found multiple sclerosis to be a severe impairment.
Richmond argues that the ALJ erred by discounting numerous conditions as "not severe" when, in fact, they were "severe" because they individually cause more than a minimal impact on Richmond's physical and mental abilities to do work. (Doc. 9, at 4)
At step two of the sequential evaluation process, the ALJ considers whether a claimant's impairments are (1) medically determinable or not medically determinable, and (2) severe or non-severe. To be medically determinable, an impairment must "result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques." SSR 96-4p, 1996 WL 374187 at *1. An impairment is not severe if it does not significantly limit [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §404.1521(a); 20 C.F.R. §416.921(a); see also SSR 85-28, 1985 WL 56856 at *3 ("An impairment or combination of impairments is found 'not severe' and a finding of 'not disabled' is made at [step two] when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered").
An ALJ's failure to find a medical condition severe at step two does not render a decision deficient if another medical condition was found at step two that subsequently led to all impairments being considered at step four in formulating the RFC. Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§ 404.1523, 416.923, 404.1545(a)(2), and 416.945(a)(2); Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); Shannon v. Astrue, No. 4:11-cv-00289, 2012 WL 1205816, at 10-11 (M.D. Pa. Apr. 11, 2012); Bell v. Colvin, No.: 3:12-cv-00634, 2013 WL 6835408, at *8 (M.D. Pa. Dec. 23, 2013)).
The ALJ accounted for Richmond's severe and non-severe impairments in formulating her RFC. (Tr. 15-18). Where the ALJ accounts for limitations resulting from the claimant's severe and non-severe impairments that are supported by the record, the ALJ's decision is sufficient. See Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *5 (providing that the ALJ must consider severe and non-severe impairments in evaluating a claimant's residual functional capacity); see also Rutherford, 399 F. 3d at 553 (holding the ALJ's failure to mention obesity at step two, where another impairment was found to be severe, did not require remand "because it would not affect the outcome of the case"); DeSando v. Astrue, No. 07-1823, 2009 WL 890940, at *5 (M.D. Pa. Mar. 31, 2009) (finding ALJ's failure to consider whether fibromyalgia was a severe impairment was "irrelevant and harmless" because "[s]tep two of the Commissioner's five step sequential evaluation process 'is a threshold analysis that requires the claimant to show that he has one severe impairment"' and the ALJ found other impairments severe "sufficient to move beyond the second step of the five step sequential evaluation process" (quoting Bradley v. Barnhardt 178 Fed. App'x 87, 90 (7th Cir. 2006)).
Step two is merely a threshold analysis requiring claimant to prove only one severe impairment at that step. 20 C.F.R. § 416.920(d)-(f). If there is no severe impairment, the ALJ will conclude at step two that the claimant is not disabled. 20 C.F.R. § 416.920(d)-(f). If there is at least one severe impairment, the ALJ will continue the sequential evaluation process. Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 145 n.2 (3d Cir. 2007) ("Because the ALJ found in [plaintiff's] favor at step two, even if he had erroneously concluded that some of her other impairments were non-severe, any error is harmless") (citing Rutherford v. Barnhardt, 399 F.3d 546, 553 (3d Cir. 2005)); Richards v. Astrue, No. 08-284, 2010 WL 2606523, at *6 (W.D. Pa. June 28, 2010) ("Where at least one impairment is found to be 'severe' and all limitations (including those resulting from 'non-severe' impairments) are reflected in the ultimate residual functional capacity, any error committed at the second step of the sequential process can fairly be characterized as harmless").
Richmond's records with regard to her vision issues show minimal vision changes during the relevant period of time. A report from Tamaqua Family Practice dated August 1, 2014, showed Richmond was "overall doing better," but she still had peripheral vision loss on the right side, she stopped working, and she had stopped driving temporarily. (Tr. 303) In February 2015, an ophthalmologist with Bethlehem Eye reported that Richmond's vision was "excellent and almost a perfect 20/20 in each eye." (Tr. 669). A follow-up record dated April 20, 2015, from St. Luke's Neurology showed that Richmond's eyes were free of erythema, swelling, or discharge. (Tr. 481) Although there were diagnoses in July 2014 and February 2015 of possible retinopathy and retrobulbar neuritis, notes from February 2016 state no abnormality. (Tr. 668).
Richmond had a cardio work-up in July 2014. (Tr.268-297). Physical exam findings along with cardiac findings were normal. (Tr. 289-90). Records indicate Richmond treats her palpations and PVCs with beta blockers, as needed. (Tr. 269). The records do not indicate any follow-up with reference to this condition.
Richmond was treated for blurred vision, hemianopia, status post optic neuritis, possible retrobulbar neuritis, and possible retinopathy. The records do not show these specific findings. The visual acuity findings were normal in July 2014, February 2015, and February 2016. Records show a possible retinopathy and retrobulbar neuritis diagnosis in July 2014 and February 2015, but by February 2016, the record notes show no abnormalities. (Tr. 664-690).
In a report dated October 9, 2014, from St. Luke's Neurology Associates, Richmond reported she was tolerating the medications well and without any side effects. She reported fatigue, anxiety, and some myoclonus, for which medications were prescribed. She denied any back pain and/or falls. She reported her headaches were under control. She denied any vision changes. (Tr. 522). On exam, her gait, stance, balance, and muscle strength were normal. She experienced no atrophy, abnormal movements, flaccidity, cog wheeling, or spasticity. She was oriented to person, place, and time. She displayed normal thought process and attention span. She possessed a normal vocabulary with appropriate knowledge of current events and history. Her cranial nerves were normal and vision was 20/20 bilaterally. Her reflexes, coordination, and cortical function were normal. (Tr. 526).
Records from St. Luke's Neurology Associates in October and December 2014, show Richmond's condition as clinically stable. (Tr. 503, 510). Reports from Physical Therapy at St. Luke's as of March 17, 2015, show that she complained of mild cognitive-linguistic deficits. (Tr. 649). Records show that she was able to perform all tasks without redirection and no episodes of being off topic. Short term and long term goals were discussed. She was receptive to the plan of care, appeared to be aware of her deficits, and appeared motivated for improvement which would give her a good prognosis. (Tr. 649).
With regard to Richmond's back, there are MRIs of Richmond's cervical, thoracic, and lumbar spines which show minimal degenerative changes. (Tr. 223, 226-29, 331-38, 442-45, 467-72, 482-84). There are no records confirming radiculopathy, although the records show Richmond had four scheduled physical therapy appointments, two of which she cancelled, and the records show no additional treatment. (Tr. 718).
The record shows no psychological treatment from a medical professional, and that she was prescribed medications by her primary physician. The state agency consultant found that Richmond had affective disorder, but found it to be mild, and non-severe. Richmond's mental impairment of affective disorder was found not to cause more than minimal limitations in her ability to perform basic mental work activities and was found non severe; Richmond had mild restrictions in activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. (Tr. 14).
Richmond has not pointed specifically to any evidence to prove that her impairments resulted in disabling functional limitations. Her conditions were either treated by medications or controlled. Because the ALJ found at least one severe impairment and accounted for all of the non-severe impairments, the step two finding is not a basis for remand.
After review of the entire record and review of the "severe and non-severe" impairments, the ALJ found that Richmond was capable of performing her past relevant work. Her work did not require the performance of work-related activities precluded by her RFC capacity.
Richmond next argues that the ALJ erred in failing to properly consider the combined impact of Richmond's diagnoses and the impact they have both individually and in combination with her residual functional capacity and ability to perform work in accordance with Soc. Sec. Rulings 85-2a.
As stated above, a claimant's RFC assessment is a reflection of the most a claimant can still do despite the limitations resulting from his or her medically determinable severe and non-severe impairments. 20 C.F.R. § 404.1545. The ALJ uses the RFC assessment at the fourth step of the sequential evaluation process to determine whether a claimant can engage in his or her past relevant work. 20 C.F.R. § 404.1545(a)(5)(i). Where an RFC assessment is incorrect, or incomplete, it undermines the ALJ's conclusion at step four of the sequential evaluation process. See SSR 96-8p, 1996 WL 374184 at *4 (recognizing that the failure to make a function by function assessment at step four could result in the adjudicator overlooking some of an individual's restrictions and could lead to an erroneous finding that an individual is not disabled).
The ALJ found that Richmond's medically determined impairments could reasonably be expected to cause the alleged symptoms; however, Richmond's testimony regarding the intensity, persistence, and limiting effects of her pain were not entirely credible.
Subsequent to the ALJ's decision, Richmond submitted a Multiple Sclerosis ("MS") Listing Letter dated August 25, 2016, which was completed by her treating medical practitioners at St. Luke's Family Practice and presented to the Appeals Council. The letter confirmed that Richmond met Listing 11.09(c) for MS. The checkbox form was checked stating that Richmond had:
Significant reproducible fatigue of motor function with substantial muscle weakness on repetitive activity shown on physical examination, that results from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process.(Doc. 10, at 3).
On July 10 2017, the Appeals Council denied Richmond's request for review. (Tr. 1-6). In its notice, the Appeals Council informed Richmond that the ALJ decided her case through June 30, 2015. The additional evidence did not relate to the period at issue and therefore, it did not affect the decision about whether she was disabled beginning on or before June 30, 2015 In deciding whether to consider the additional evidence that was submitted to the Appeals Council and which was not before the ALJ, we are guided by the following rules. When a claimant seeking judicial review of the Commissioner's final decision seeks to rely on evidence that was not before the ALJ, the district court may remand to the Commissioner "but only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ." Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001); Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991). No statutory authority allows the Court to review the Appeals Council's decision to deny review or to make a decision on the substantial evidence standard based on the alleged new and material evidence never presented to the ALJ. Matthews, 239 F.3d at 594. Rather, the Social Security Act gives the Court authority to remand the case to the Commissioner upon the condition that the claimant has shown good cause why such new and material evidence was not presented to the ALJ. Id.
But if the claimant proffers evidence in this Court that was not presented to the ALJ, disposition of the case may instead be governed by sentence six of § 405(g), which provides that:
The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at
any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....28 U.S.C. § 405(g) (sentence six) (emphasis added); see also Matthews, 239 F.3d at 592.
Thus, "when the Appeals Council has denied review the district court may affirm, modify, or reverse the Commissioner's decision, with or without a remand based on the record that was made before the ALJ (Sentence Four review)," but "when the claimant seeks to rely on evidence that was not before the ALJ, the district court may remand to the Commissioner but only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ (Sentence Six review)." Matthews, 239 F.3d at 593 (emphasis added). "[A]lthough evidence considered by the Appeals Council is part of the administrative record on appeal, it cannot be considered by the District Court in making its substantial evidence review once the Appeals Council has denied review." Matthews, 239 F.3d at 593.
Therefore, the Court is here presented with a threshold question regarding the additional evidence submitted by Richmond to the Appeals Council after the ALJ issued her decision on November 2, 2016. Moreover, the question is not whether the Appeals Council abused its discretion in denying review based on this purportedly new and material evidence. See Matthews, 239 F.3d at 594 ("No statutory authority (the source of the district court's review) authorizes the court to review the Appeals Council decision to deny review."). Rather, the question is whether the statutory criteria for a sentence six remand is met—that is, whether the evidence is (1) new and (2) material, and if there was (3) good cause why it was not presented to the ALJ. See 28 U.S.C. § 405(g) (sentence six); Matthews, 239 F.3d at 592-93; see also Szubak v. Sec'y of Health & Hum. Servs., 745 F.2d 831, 833 (3d Cir.1984) (per curiam).
It is undisputed that the report to the Appeals Council was not made available to the ALJ. We can only look at evidence that was actually presented to the ALJ in determining whether the ALJ's decision was supported by substantial evidence. Richmond is relying on untimely produced evidence that was not before the ALJ for decision. In this case Richmond has made no attempt to demonstrate that this evidence is new, material, or that there is good cause for us to remand for consideration of it.
It is the claimant's burden to provide "some justification for the failure to acquire and present such evidence to the [ALJ]." Szubak v. Sec'y Health & Hum. Servs., 745 F.2d 831, 833 (3d Cir. 1984)(per curiam). Richmond has not offered any valid justification for her failure to acquire this evidence and present it to the ALJ. Accordingly, Richmond has failed to satisfy the statutory requirements for a sentence six remand. Thus, we are precluded from considering the additional evidence submitted to the Appeals Council after the ALJ's decision had been issued on November 2, 2016.
As such, we find that the ALJ's decision is supported by substantial evidence. V. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner of Social Security be AFFIRMED and that Richmond's requests for the award of benefits or remand for a new administrative hearing be DENIED.
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge Dated: August 31, 2018 NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 31, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: August 31, 2018