From Casetext: Smarter Legal Research

Edwards v. Massanari, Social Security

United States District Court, S.D. Alabama, Southern Division
Jun 4, 2001
Civil Action 00-0548-BH-M (S.D. Ala. Jun. 4, 2001)

Opinion

Civil Action 00-0548-BH-M

June 4, 2001


REPORT AND RECOMMENDATION


In this action under 42 U.S.C. § 1383 (c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for Supplemental Security Income (SSI). The undersigned previously entered a report and recommendation that "the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant Larry G. Massanari and against Plaintiff Charlotte Edwards on all claims" (Doc. 26, p. 1).

Plaintiff has objected to the Report and Recommendation (Doc. 27). United States District Court Judge Hand referred this matter back to the undersigned "to determine whether the arguments of plaintiff's new counsel require any reconsideration" of the previously-entered report and recommendation (Doc. 29).

The short answer to Judge Hand's query is that further consideration is not required. A more detailed answer follows.

Edwards's objections focus primarily on the evidence submitted regarding her mental impairments. There are basically two arguments.

Plaintiff argues that the ALJ improperly rejected evidence of record that she had a mental impairment. That evidence comes in the form of a letter from Plaintiff's attorney to the ALJ stating that certain IQ tests had been administered which show that Edwards exhibits a sub-average IQ sufficient to sustain disability ( see Tr. 164). Edwards argues that the ALJ considered this evidence but improperly rejected it (Doc. 27, p. 2).

The Court finds that Plaintiff's assertion of a treating source's findings does not constitute evidence. See 20 C.F.R. § 416.912-.913 (2000). Additionally, though Edwards asserts that the actual medical evidence was submitted to the ALJ before his decision was rendered, it does not appear in the record, for whatever reason. The ALJ cannot consider what does not appear in the record and it is plainly clear that this record does not contain medical evidence of mental impairment-only an assertion of it by the attorney. This being the case, the Court finds substantial support for the ALJ's rejection of the evidence.

The Court also notes that a bare assertion of IQ scores by the medical source itself with nothing more would fail to constitute objective medical evidence.

The ALJ's decision indicates that he was relying on Plaintiff's assertion of the evidence-not the actual medical evidence. In fact, the ALJ's note indicates that Plaintiff's attorney himself did not yet have the evidence in hand ( see Tr. 16; cf. Tr. 164).

It is noted that Plaintiff makes other arguments with regard to this issue. However, because the undersigned has reached the conclusion that he has, it is unnecessary to address those arguments.

Plaintiff has also asserted that the undersigned improperly rejected the newly-submitted evidence, evaluating it under the improper legal standard (Doc. 27, p. 4). Edwards asserts that the Court should not have considered the evidence under the new evidence standard of Caulder because the ALJ had already considered and rejected it.

As noted earlier, the ALJ did not have the evidence before him to consider. It does not appear in the record. The only way for this Court to consider the evidence is as new evidence. In the prior report and recommendation, the Court evaluated the evidence under that standard and found it insufficient to warrant a remand (Doc. 26, pp. 3-4). Plaintiff has asserted nothing new which persuades the Court to believe that it was in error previously.

In fact, after further evaluation, it is noted that the newly-submitted evidence would, more-than-likely, be rejected because it does not come from an acceptable medical source as it comes from a psychometrist rather than a psychiatrist or psychologist. 20 C.F.R. § 416.913 (a) (2000).

The Court has considered the objections made by Plaintiff and finds nothing there which would lead the undersigned to change the previous report and recommendation. Therefore, it is, again, recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant Larry G. Massanari and against Plaintiff Charlotte Edwards on all claims.

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de nova and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.


Summaries of

Edwards v. Massanari, Social Security

United States District Court, S.D. Alabama, Southern Division
Jun 4, 2001
Civil Action 00-0548-BH-M (S.D. Ala. Jun. 4, 2001)
Case details for

Edwards v. Massanari, Social Security

Case Details

Full title:CHARLOTTE EDWARDS, Plaintiff, v. LARRY G. MASSANARI, Acting Commissioner…

Court:United States District Court, S.D. Alabama, Southern Division

Date published: Jun 4, 2001

Citations

Civil Action 00-0548-BH-M (S.D. Ala. Jun. 4, 2001)