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Stevens v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

January 11, 2018

GERALD D. STEVENS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Judge James L. Graham

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Gerald D. Stevens, brings this action under 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits.

         I. PROCEDURAL BACKGROUND The affidavit of Sharon Weeks, an Operations Analyst in the Operations Support Branch of the Office of Disability Operations of the Social Security Administration, sets forth the relevant procedural history of this case as follows:

a. The claimant filed applications for Title II disability insurance benefits (DIB) and Title XVI social security income (SSI) on March 27, 2015, alleging disability beginning August 1, 2008.
b. On September 15, 2015, the Agency denied claimant's Title II application for DIB and determined that he was not eligible for disability benefits. The Agency affirmed its initial determination upon reconsideration on January 14, 2016.
c. On September 24, 2015, the Agency determined claimant was eligible for SSI benefits under Title XVI on initial determination, finding him disabled beginning on March 27, 2015.
d. On October 28, 2016, after a hearing, the ALJ found that with respect to the DIB claim, Plaintiff was not disabled pursuant to sections 216(i) and 223(d) of the Social Security Act, from August 1, 2008, through the date last insured of December 31, 2012. The ALJ also found Plaintiff was eligible for Medicare-qualified government employee (MQGE) benefits, via collateral estoppel, as of the favorable Title XVI decision finding him eligible for SSI benefits with the established onset date of March 27, 2015.
e. On December 7, 2016, the Agency issued a Notice of Award indicating that claimant was disabled as of August 1, 2008. The Notice of Award also stated that claimant is entitled to Medicare benefits starting on September 1, 2015, and as a government employee does not qualify for monthly Social Security benefits.
f On March 3, 2017, the Appeals Council denied claimant's request for review of the ALJ's decision.

(Doc. 17-2, PAGEID #: 891). The Notice of Award (the "Notice") further advised Plaintiff that, if he disagreed with the decision, he could appeal within 60 days or later upon a showing of good cause. Plaintiff did not appeal.

         Instead, Plaintiff filed the instant action nearly five months later on May 4, 2017, asserting two alleged errors. (Doc. 14). The first error consists of a single paragraph:

The Notice of Award issued to Mr. Stevens on December 7, 2016 states he is disabled beginning August 1, 2008. It further states that as a government employee, he does not qualify for social security disability payments. Yet, Mr. Stevens' date last insured ("DLI") was determined to be December 31, 2012. These inconsistencies in the record require clarification, particularly if for some reason Mr. Stevens was found disabled despite the Decision.

(Doc. 14 at 2). The second assignment of error is likewise a single paragraph:

The ALJ failed to take into consideration the medical evidence related to Mr. Steven's right arm limitations. The ALJ determined that Mr. Stevens "would be unlimited in his ability to reach overhead with the right upper extremity". (Decision at p. 10) However, this finding overlooks the medical evidence which substantiates that Mr. Stevens was diagnosed with right shoulder rotator cuff re-tear, a chronic condition, on December 13, 2010. This is a long-lasting condition, which presented limitations pre- and post-DLI and ultimately resulted in surgical intervention and ongoing treatment including injections. (3F/4; 5F) An additional limitation related to his right upper extremity could very well interfere with, if not outright bar him, from performing the job functions of a buffing-machine tender, solderer, and ...

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