Opinion
Case Number 3:01CV31
July 11, 2001
MEMORANDUM OPINION
This matter is before the court by consent of the parties on the Defendants' separate motions to dismiss pursuant to Fed.R.Civ.P. 12 (b)(1) and (b)(6). The Defendant, the Commonwealth of Virginia (Commonwealth), asserts that the court lacks subject matter jurisdiction under the Eleventh Amendment because the state has not consented to being sued nor has the Congress specifically abrogated its immunity and, in the alternative, because the Plaintiff, Ned N. Cary, Jr. (Cary), proceeding pro se, has failed to state a claim upon which relief may be granted. The other Defendant, the Social Security Administration (SSA), treating the Plaintiffs claims against it as a timely appeal from the denial of benefits pursuant to 42 U.S.C. § 405 (g), asserts that the Plaintiff has not alleged sufficient grounds as a matter of law to challenge the adverse administrative determination and that a review of the administrative record that has been filed with the court does not otherwise suggest a basis for the requested relief.
Following oral argument on its motion to dismiss, the Commonwealth discovered that Cary had previously litigated the same basic factual issues on repeated occasion to unsuccessful conclusion and it now argues accordingly that he should be estopped from re-litigating them. (Pl.'s Info. Discovered After April 11th Mot. to Dismiss Hearing (citing and attaching copies of Cary v. Carmichael, 908 F. Supp. 1334 E.D. Va. (1995), aff'd sub nom. Cary v. Anheuser-Busch, 1997 U.S. App. LEXIS 15168 (4th Cir., June 23, 1997)(unpublished)); see also Cary v. Teamsters Local 95, 1994 WL 1687460 (4th Cir. May 4, 1994), dismissing appeal from 1993 WL 814265 (E.D. Va. 1993) (a related action against the union which was the bargaining agent for the Plaintiff in the same dispute with his employer and which would represent yet another (fourth) unsuccessful effort to obtain relief for the same or related claims)).
Factual and Procedural Background
This is not the first time the Plaintiff has sought relief in this court for the same essential claim that he was discriminated against on the basis of his religious beliefs. Cary v. Carmichael, 908 F. Supp. 1334, aff'd sub nom. Cary v. Anheuser-Busch, 1997 U.S. App. LEXIS 15168. In fact, as summarized by the district court (J. Doumar) in Cary v. Carmichael, the Plaintiff has also pursued claims based on the same essential facts before the Virginia Employment Commission (for workers' compensation benefits), before the Equal Opportunity Commission (for alleged religious discrimination), as well as in this court (Norfolk Division) on three separate occasions, once against the union (negotiated for Plaintiff with his employer) and twice against his former employer (which he claimed violated his civil rights involving his religious beliefs). Cary v. Teamsters Local 95, 1994 WL 1687460 dismissing appeal from Cary v. Teamsters Local 95, 1993 WL 814265; Cary v. Carmichael, 908 F. Supp. 1334, aff'd sub nom. Cary v. AnheuserBusch, 1997 U.S. App. LEXIS 15168. The Plaintiff also filed for disability and supplemental security income benefits with the SSA as a result of what appears to be a previous work-related injury that put in motion the relevant sequence of events. He pursued his SSA claims through all administrative levels, also without success. Thus, the Plaintiff has lost on every effort in every forum, both administrative and judicial.
There is also reference in the record in Cary v. Carmichael, 908 F. Supp. 1334, to an action the Plaintiff pursued unsuccessfully against the union before the National Labor Relations Board in regard to the same basic scenario.
In his most recent effort prior to this case, the Plaintiff sued his former employer for alleged unlawful discharge in violation of Title VII of the Civil Rights Act. Having failed again, he has now re-packaged the same claim into a Section 1983 ( 42 U.S.C. § 1983) suit in which he alleges, based on a most liberal interpretation, that Va. Code § 8.01-42.1(c) is unconstitutional in that it abridges his rights of religious freedom and due process. The Plaintiff also stated during oral argument before this court on the Defendants' motions that he was alleging that unspecified state agents, assisted by unidentified agents of the co-defendant, the SSA, aided and abetted a private lawyer who had been representing him (and who he also sued unsuccessfully for legal malpractice) in "covering up" his original work-related injury so as to result in the denial of worker's compensation benefits. He also suggested in oral argument that the Industrial Commission, as an entity subject to suit, violated his civil rights by virtue of its decision that one's religious beliefs that were inconsistent with employer requirements could not be the basis for a compensable injury. Finally, the Plaintiff has asserted in various pleadings and oral argument that unspecified agents of both Defendants conspired against him to violate his civil rights in unspecified ways in violation of 18 U.S.C. § 246.
For reasons that are unclear to this court other than a perceived distrust on the part of Plaintiff of all Virginia courts, state and federal, the Plaintiff initiated the present action in the United States District Court for the District of Columbia. However, the Commonwealth moved to transfer venue to this court while preserving its alternative motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. The district court in the District of Columbia (J. Roberts) granted the motion to transfer, specifically declining to rule on any other aspect of the case. Another probable reason for the Plaintiff having initiated his action in a different judicial district, given the prior history of the situation, is that the Plaintiff was hopeful he could "slip in through the back door" and not face a res judicata or collateral estoppel bar, let alone possible sanctions for pursuing what constitutes frivolous litigation as discussed later herein.
Following oral argument and in order to insure that the pro se Plaintiff had a full opportunity consistent with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), to address all issues in the face of possible summary relief in favor of the Defendants, especially because he had not yet articulated (at least as far as this court could tell) the basis on which he claims he was improperly denied SSA benefits, the court ordered that the Plaintiff submit whatever additional pleadings and proffered evidence (in affidavit form) as he may wish for the court's consideration (Order, May 3, 2001). The Plaintiff has responded and the Defendants have likewise submitted responsive pleadings as invited by the court's order so that the matter is ready for disposition.
However, the Plaintiffs submissions have done nothing to illuminate or substantiate his claims as discussed herein and the court does not believe that any further opportunity for the Plaintiff to address the situation is either necessary or likely to be fruitful, especially given the many opportunities provided over time.
The Plaintiffs additional contentions concern an alleged massive conspiratorial plot which woefully fail to survive the most rudimentary requirements of Fed.R.Civ.P. 8 in alleging a cause of action under even the most liberal of interpretations. Moreover, as pointed out by the Commonwealth, the criminal statute relied on by the Plaintiff, 18 U.S.C. § 246, cannot, itself, be the basis for a civil cause of action. Therefore, the only basis upon which any relief could possibly be based for the asserted violations of Section 1983 is that of alleged religious discrimination.
At the same time, the precise nature of the Plaintiffs basic complaint of religious discrimination remains as elusive for this court as it was for all the tribunals involved in the earlier chapters of the case, even giving the Plaintiff the benefit of all reasonable inferences and interpretation because of his pro se status. See Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir. 1978). The most that can be discerned is that the Plaintiff alleges he was terminated from employment because he refused on religious grounds to sign a required consent form to take a mandatory drug test, even though he was prepared to submit to the testing procedure without executing the consent form. See Cary v. Anheuser-Busch, 1997 U.S. App. LEXIS 15168 at 8 ("the logic of this distinction eludes this court as it did the district court"). After repeated opportunity, the Plaintiff has been unable to articulate the nature of his religious beliefs that supposedly motivated his refusal to sign the consent form and he persists in challenging a Virginia statute which he claims (without addressing the issue of standing) impermissibly sanctioned the illegal actions of the employer. The court is ready to resolve the pending motions after reviewing all the pleadings and the administrative record submitted in regard to the Plaintiffs claim against the Social Security Administration.
In addition to ample opportunity to do so during the pleading stage, this court gave the Plaintiff repeated opportunity during oral argument on the Defendants' motions to explain the rationale of his position. The Plaintiff simply responded in conclusionary fashion that his religious beliefs — whatever they are — required him to take the action he did, but without articulation of the nature of those beliefs which is necessary for the court to know in order to determine (if it reached the issue of possible religious discrimination) whether they are bona fide beliefs that conflict with an employment requirement so as to render the latter impermissible.
The Plaintiff also moved to disqualify counsel for the Commonwealth on the basis of some alleged bias and/or conflict of interest. The court denied the motion for the reasons stated in its Memorandum Opinion of March 19, 2001 and none of the issues addressed and resolved in regard to that objection of the Plaintiff are relevant to the disposition of the present motions.
Rule 12(b)(1) and (b)(6) Standard for Review
A motion to dismiss pursuant to either Fed.R.Civ.P. 12(b)(1) or (b)(6) is a challenge on the face of the pleadings in which the court, accepting as true, all non-conclusory factual allegations in the complaint and drawing all reasonable inferences in favor of the non-moving party, concludes that the plaintiff cannot prevail as a matter of law, either because the court lacks subject matter jurisdiction or because the allegations do not assert a cause of action cognizable under federal law. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Similarly, the SSA seeks summary judgment pursuant to Fed.R.Civ.P. 56 (c) and such relief is only appropriate when, viewed in the light most favorable to the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c), Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). The court must decide if the evidence "presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25 1-52 (1986). Conclusory allegations that are unsupported by factual assertions are not sufficient to withstand dismissal. See, e.g., Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981), aff'd., 460 U.S. 325 (1983); Breeden v. Richmond Community College, 171 F.R.D. 189, 195 (M.D.N.C. 1997).Commonwealth's Motion to Dismiss
The Eleventh Amendment prohibits suit against a state unless the state has waived its immunity by specifying a clear intention to submit to federal jurisdiction or if an Act of Congress clearly abrogates such immunity. See Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 100 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985);Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56 (1996). The Commonwealth has not waived its immunity, but Title VII and Section 1983 abrogate such immunity by law where a state agent or employee is charged with having acted illegally under color of state law. However, the Plaintiff has failed to identify any state actors identified with the events complained of and it is equally clear that the Plaintiff has been unable to articulate or even suggest a basis upon which relief could possibly be granted due to religious discrimination. As discussed in detail by Judge Doumar in that court's earlier opinion, the Plaintiff has not shown that he holds bona fide religious beliefs that should have been accommodated by his employer without undue burden so as to preclude his discharge. Cary v. Carmichael, 908 F. Supp. 1304. Furthermore, as to Plaintiffs assertion that Va. Code § 8.01-42.1(c) is violative of federal law by supposedly sanctioning religious discrimination in the workplace, it does not. Though perhaps inartfully crafted in that it does not make it clear on its face that the section must be read in conjunction with not only the remaining provisions of the same statute, but also all related state and federal proscriptions which allow for such a cause of action, just as the Plaintiff himself pursued earlier in this court against his former employer. The statute provides for a private cause of action under certain circumstances; it simply does not preclude suit under others, including the circumstances of this case if the Plaintiff could meet his burden of proof.
Plaintiff named the Social Security Administration which the court construes to be the Commissioner of Social Security; Louis Matthews, Assistant Attorney General of Virginia; and the Attorney General of the United States. See Compl. at 1; Hafer v. Melo, 502 U.S. 21, 30-31 (1991) (citations omitted).
The section states that "[t]he provisions of this section shall not apply to any actions between an employee and his employer, or between or among employees of the same employer, for damages arising out of incidents occurring in the workplace or arising out of the employee-employer relationship."
The Plaintiff has also made some veiled assertion in his pleadings and during oral argument that the Virginia Human Rights Act, Va. Code § 2.1-725, somehow "forbids enforcement of the 1964 civil rights act and preserves Virginia's status as a Jim Crow commonwealth in violation of civilized society causing stress and anguish for minority citizens." (Def.'s Resp. Brief Re: More Definite Statement ¶ 9) (emphasis in original). The court is at a loss to know how or why the Plaintiff thinks the statute is unconstitutional on its face or even as applied and the court's own review does not illuminate a basis.
Although additional grounds could be addressed, including the Commonwealth's most recent assertion that the Plaintiff may be collaterally estopped from re-litigating the same essential issues, it is not necessary to do so because the Commonwealth's motion must be granted on the grounds already asserted.
Social Security Claim
Plaintiffs Complaint alleges a claim against the Commissioner of Social Security (Commissioner) which the Commissioner has answered with sufficient specificity and evidence outside the pleadings to construe its answer as a motion for summary judgment under Fed.R.Civ.P. 56. Having considered the entire record together with all of Plaintiff's allegations, the court is of the opinion that no liberal interpretation of Plaintiffs complaint gives rise to a cause of action. However, because of the long history of the case and Plaintiffs gross misunderstanding and/or abuse of litigation, the court shall review this social security appeal as if it stated a cognizable claim in an effort to conclude the matter once and for all.
Plaintiff was found by the Commissioner not to be disabled within the meaning of the Social Security Act (Act) and applicable regulations (regulations) pursuant to a hearing and appeal. Pursuant to 42 U.S.C. § 405 (g), Plaintiff now seeks judicial review of the final decision of the Commissioner to deny disability insurance benefits (DIB) and supplemental security income (SSI). The Commissioner's final decision is based on a finding by Administrative Law Judge (ALJ) O. Price Dodson that the Plaintiff had no disability as defined by the Act. (Social Security Administrative Record at 12-19)(AR). Because Plaintiff has filed several pleadings in support of his appeal, had sufficient opportunity to be heard at oral argument, and because the complete administrative record is before the court, the matter involving his claim for benefits is also ready for disposition. See Myers v. Califano, 611 F.2d 980 (4th Cir. 1 980) (the court may decide a social security appeal pursuant to Fed.R.Civ.P. 56).
The court understands that Plaintiff seeks review based on the following errors in the administrative proceeding: (1) the Appeals Council failed to consider Plaintiffs request that it consider "a 'Heart Attack' in addition to other concerns not addressed in the previous hearing"; (2) the ALJ refused to accept evidence at the hearing which Plaintiff alleges violates federal law; (3) that "forcing of the plaintiff to submit to the SSA Doctor for testing was a deliberate attempt for the collusion of the Virginia Disability Services And SSA to conspire and enter false documents and statements"; (4) the Commissioner's behavior was "immoral and illegal" which "was not incidental, but rather designed to attack and cause harm"; (5) the "SSA Doctors report is repulsive and totally disgusting"; (6) there were certain alleged misstatements in the report submitted by Michel Gingras, M.D. and other "false filings by the social security physician"; and (7) general objections by the Plaintiff to his neoropsychological evaluation by Karen Haskett, Ph.D. (Pl.'s Certified Brief and Mem. in Response to Order at 1-2; see generally, Resp. Br. Re: More Def. Statement).
Procedural History
Plaintiff filed an application for a period of DIB and SSI with a protective filing date of May 8, 1997, alleging an onset date of November 15, 1994. (AR at 93-96). He was denied for both DIB and SSI benefits initially and on reconsideration. (AR at 69-70; 73-74; 233, 237; 240-242). Plaintiff timely requested an administrative hearing which was held in Norfolk, Virginia, on September 29, 1998. (AR at 32-63). On November 27, 1998, Plaintiff received an unfavorable decision from the ALJ which, on April 7, 2000, the Appeals Council declined to review because Plaintiff failed to indicate a cognizable basis for review under the regulations. (AR at 9, 5-6). The ALJ's decision thus became the final decision of the Commissioner and Plaintiff timely filed this appeal in U.S. District Court for the District of Columbia on April 21, 2000, which subsequently transferred the case to this federal district.
The actual date the application was taken by SSA was June 4, 1997, and apparently signed by Plaintiff on June 5, 1997.
Although not before the court, the ALJ noted that the Plaintiff had previously filed an application but that no good cause existed to reopen the previous case.
Standard of Review for Social Security Appeals
The court is limited in its review to determining whether the Commissioner's decision was supported by substantial evidence on the record and whether the proper legal standard was applied in evaluating the evidence. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is more than a scintilla, less than a preponderance, and is the kind of relevant evidence which a reasonable mind could accept as adequate to support its conclusion. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971); and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
In order to find whether substantial evidence exists, the court is required to examine the record as a whole, but may not "undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In considering the record as a whole, the ALJ must "'take into account whatever in the record fairly detracts from its weight.'" Abbott v. Sullivan, 905 F.2d 918, 923 (4th Cir. 1990). The Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. at 390. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record or has made an error of law, the district court must reverse the decision. Coffman v. Bowen, 829 F.2d at 517. The pleadings filed in this matter are construed by the court to be motions for summary judgment under Fed.R.Civ.P. 56. As such, the court may render its decision only when there is no dispute as to any issue of material fact and one party is entitled to judgment as a matter of law.
Questions Presented in Social Security Appeal
While the court has gleaned several assignments of error from Plaintiffs Complaint, briefs and argument, the questions which the court may review as presented in this appeal are restricted to (1) whether the final decision of the Commissioner was reached by application of the correct legal standard and, (2) whether it is supported by substantial evidence on the record.
Evidence on the Record
Although the court normally focuses primarily on the medical evidence of record, a review of all documents in this case, including Plaintiffs initial application, are helpful in deciphering the relevant issues. (AR at 93-97). At the time Plaintiff filed for benefits, he agreed, among other things, to provide medical evidence about his alleged disability or to assist the SSA in doing so; to submit to a consultative examination; and to authorize any physician, hospital agency, or other organization to disclose any medical record concerning his disability. (AR at 95). Plaintiffs signed application states:
There are several extraneous documents peppering the record which are irrelevant to the determination of disability, but were obviously important to Plaintiff. Such documents include: an un-attributed excerpt entitled "Psychiatry's Betrayal: In the Guise of Help" (AR at 173-175); a page entitled "Ordained, Licensed and Commissioned Ministers" that appears to be published by "Clergy, Tax Law, Inc." (AR at 171); a page from what is purported to be the World Book Encyclopedia with a passage on "Protestant" (AR at 170); various correspondence and argument by Plaintiff (AR at 167, 172); and an undated letter from the Virginia Employment Commission which disqualified Plaintiff for unemployment compensation because it determined that he was discharged for misconduct and wilful disregard of the employer's best interests. (AR at 171).
The problem with my hand started with an injury that I incurred while working for Anheiser (sic) Busch in 1986. At one time I did file s/c claims based on that injury, but the claims were denied because I had filed my request more than 2 years after the date of injury. I was let go from the brewery in 1992 nad (sic) have not worked since that date.
(AR at 96).
In the earliest dated disability report, taken simultaneously with the application on June 4, 1997, Plaintiff either reported or was observed to have virtually no restrictions. (AR at 144-147). A contact report dated June 11, 1997, indicated that Plaintiff had determined the alleged onset date based on when he started having significant problems with his hand due to the injury in 1986. (AR at 148). Plaintiff told the SSA contact person, G. Protzman, that he lost his job at the brewery because of religious persecution. Id. Protzman felt that a neuropsychological evaluation from Riverside Hospital from October of 1987 "sheds some light on his dismissal" (AR at 228-232) and suggested a re-evaluation of an onset date back to 1992. Id.
An SSA contact report of August 22, 1997, disclosed that Plaintiff admitted to having been seen for a neuropsychological evaluation in 1987; that he had never been treated with medication or hospitalization; and he did not feel he had a mental condition. (R. at 149). Plaintiff admitted that he was on medication for diabetes and high blood pressure and also was taking ibuprofen and Tylenol for pain due to arthritis in his right hand and right hip. Id. However, Plaintiff claimed that he could use his right hand without difficulty. Id. An October 31, 1997, Disability Determination and Transmittal report indicated Plaintiffs primary diagnosis was diabetes mellitus with a secondary diagnosis of affective disorder. (AR at 234).
See Medical Evidence section, infra at 16-21.
A November 25, 1997, Reconsideration Disability self-report indicated that Plaintiff added depression as a change in his illness since he filed his claim. (AR at 150). On that same date, Plaintiff filed his request for reconsideration, claiming that he was disabled "due to a religious belief diagnosed as acute paranoia. I believe that I was called to serve God as a preacher." (AR at 237). Plaintiff also completed a Daily Activities Questionnaire on December 20, 1997, in which he described a typical day as involving "meditation prayer . . . medication . . . meal . . . correspondence . . . consultations . . . studys (sic) . . . visitation . . . school (Wed.) . . . discourse . . . prep . . . prayer." (AR at 156). He admitted that he went outside his home daily, drove and walked, visited hospice twice a week and needed no assistance getting places. (AR at 157). He reported that he prepared his own meals and cooked daily, did his own shopping, maintained his home and did household chores such as cleaning, vacuuming, laundry, and repairs "as necessary." (AR at 157). Plaintiff reported that he needed no help handling his personal business such as finances or insurance nor had he experienced any changes in his ability to engage in any of these activities of daily living. (AR at 158). He also reported that he was able to fish 4-5 times per year and golf once or twice per month from April through September. (AR at 158). His reported daily activities also included reading for 1-1/2 hours, watching television, listing to the radio, and having social contacts with friends and relatives. (AR at 159). He stated he participated in church activities, including as a pastor. (AR at 160). He reported his medications to be insulin, catapress III, procardia, zocor, and [over the] counter as needed. Id. He reported no side effects from his medication. Id. Plaintiff also reported that the condition which kept him from working was that his "system of belief [was] unacceptable by employer." (AR at 161).
In January of 1998, Rev. Milton A. Hines, Jr., Chaplain at Williamsburg Community Hospital, wrote a "To whom it may concern" letter stating that Plaintiff had "been seen as requested but also several other times in the past" and that he was having "some physical symptoms," but went to Rev. Hines "for the purpose of stress reduction and depression." (AR at 162). Rev. Hines wrote that Plaintiff "was alert and oriented . . . [a]ffect was flat" and that Plaintiff "continues to be bothered by the past situation." Id.
On January 26, 1998, a disability determination and transmittal notice was sent to Plaintiff which indicated his diagnoses as depression and diabetes, and that considering all of the factors required under the regulations, none of his claimed disabilities were severe enough to show a disabling condition on or before December 31, 1997. His application was accordingly denied. (AR at 239).
The record includes an undated, and what may be an incomplete, statement by Plaintiff upon his request for a hearing regarding his asserted disability. (AR at 163-166). Plaintiff listed the same medications as in his reconsideration disability report except that he was using aspirin instead of Tylenol. (AR at 165). He denied that he had worked, that there had been any change in his condition or change in his daily activities and/or social functioning. Id. Also included in the record is Plaintiffs March 13, 1998, claim for benefits submitted to the Virginia Workers' Compensation Commission (Commission) in which he claimed the nature of his disease to be "Christianity" and named the Hon. Robert G. Doumar, United States District Judge, as his doctor. (AR at 168-170)).
Without any disrespect for the religion or his Honor, this statement by the Plaintiff sums up the whole pathetic situation that results from the Plaintiffs total lack of understanding of the process and the relevant facts.
There are several form reports customarily used by SSA to assess disability, function, work history, and pain. (AR 104-143). These reports indicate that at the time they were completed, Plaintiff complained of physical illness (diabetes and hypertension) and mental illness; that he could not return to work because he was "banned"; and he also could not go back to work due to pain and stress. (ARat 104). The Plaintiff also included the names of doctors who treated him, including an emergency room visit for a hand injury, and the names of medications he was taking. (AR at 105-110, 117). The undated function self-report disclosed a person with virtually unlimited ability to conduct all activities of daily living with only a few restrictions apparently related to his diabetic condition. (AR at 125-129). Except for changes in his diet requiring a diabetic menu, restrictions on extended exertion, yard work, lifting, using his hands and recreational activities, Plaintiff reported he was able to engage in all other normal activities. The undated pain self-report disclosed that Plaintiff claimed to continuously suffer from right-hand and right-leg aches and cramps which he described as "moderate to severe," brought on or made worse by the weather. (AR at 136-137). Plaintiff indicated he treated his pain with over-the-counter Tylenol and ibuprofen which sometimes brought relief. Id.
The table of contents indicates the reports are undated. However, the final page of the series was dated June 4, 1997, which is consistent with the reasonable conclusion that the Plaintiff completed these self-reports when he initially filed his application. (AR at 147).
On the self-report there is also a section which asks claimants to explain their restrictions, but Plaintiffs responses therein are so scant they shed no light on the extent of his alleged restrictions.
Medical Evidence
The earliest medical record in Plaintiffs SSA file is an emergency room report and x-ray request from Williamsburg Community Hospital on January 28, 1986, which indicates that Plaintiff presented with a 1.5 cm deep laceration to the web space between the second and third digits of his right hand which was reportedly caused by a metal fragment. (AR at 176). He was treated with irrigation and bacitracin, and exhibited good flexion and extension with a normal neurovascular exam. Id. The x-ray report indicated the image exhibited what appeared to be a "[l]arge metallic foreign body . . . which measures 5 x 7 x 7 mm . . ." and an "accessory area of ossification under the distal 4th proximal phalanx probably representing an old injury." (AR at 177).
Also included in the record was an evaluation by Karen J. Haskett, Ph.D., at the Riverside Hospital conducted on August 8, 1987, and reported October 14, 1987, following repeated attempts to continue to test Plaintiff. (R. at 228-232). Plaintiff felt he was not in need of treatment or further testing and therefore discontinued any participation. The evaluation was prompted following Plaintiffs religious conversion, when his behavior and attempts to convert co-workers concerned his supervisor at Anheuser Busch and caused Plaintiff to be referred to Dr. Haskett for a neuropsychological examination "to rule out an underlying emergent neurologic condition which could be responsible for his abrupt change in behavior and to evaluate personality status and functioning." Dr. Haskett reported that during the clinical interview Plaintiff was aware why he was being evaluated and even though he thought it was unnecessary, he wanted to prove to others he was not insane. (AR at 229). Dr. Haskett administered a number of tests, including the Weschler Adult Intelligence Scale — Revised (WAIS-R) on which Plaintiff scored a full scale IQ of 104, within the average range of intellectual ability. (AR at 230). Results in the other neuropsychological tests were within normal limits, with some above- and some below-average scores on various tests. (AR at 231).
There is a two-page excerpt from this report at 178-179 of the AR.
The results of the Minnesota Multiphasic Personality Inventory (MMPI suggested that Plaintiff
has some awareness of his difficulties which he may be minimizing. He has little insight and is unlikely to appreciate the degree to which his veiled hostility is easily detected by others. He has significant hysteroid personality traits with some tendencies toward histrionic behavior. He is an overly sensitive and suspicious man who feels unfairly treated by others.
(AR at 231).
Dr. Haskett concluded that Plaintiffs performance on the intellectual and neuropsychological studies were basically normal with no indication of underlying neurologic disorder to account for his abrupt change in behavior. (AR at 231-232). The personality studies disclosed "evidence of hysteroid tendencies and a great deal of suppressed anger and hostility," but that the "diagnostic picture remains unresolved." (AR at 232).
On October 6, 1995, Plaintiff presented to Maistead D. Howell, M.D., for an evaluation of a mass in his right hand apparently resulting from the injury several years before. (AR at 180). Dr. Howell excised the foreign body under local anesthesia. Id.
The record also contains Plaintiffs treatment notes by T. Johnson, M.D., from December of 1993 through June of 1997. (AR at 181-188). On December 9, 1993, Dr. Johnson observed Plaintiff to have a diagnosis of essential hypertension, hyperlipidemia and type I diabetes, but that at that time he was "doing well" with his diet and was compliant with medication. (AR at 188). With the exception of a cough and runny nose, Dr. Johnson's notes reflect Plaintiffs condition was unchanged until July 24, 1994, when Plaintiff reported with a urinary tract infection, gastroenteritis, and physical exhaustion following "an extended trip to Liberia . . ." and that he had not taken his insulin that day because of poor diet. (AR at 187). The following month, Plaintiff was still suffering from gastroenteritis, but was also diagnosed as having hepatitis documented on a recent lab screen and that he had not yet resumed his insulin. (AR at 186). Although he reported increased stress "due to personal litigation," by October 6, 1994, Plaintiffs exam was unremarkable and his condition returned to diagnoses of hypertension, type I diabetes, and hyperlipidemia, all controlled by medications prescribed by Dr. Johnson. (AR at 186).
Plaintiff did not see Dr. Johnson again until August 10, 1995, when he reported for a general medical check-up in which he complained of increased tension due to prolonged litigation. (AR at 185). This is the first time Dr. Johnson appears to have diagnosed anxiety depression along with previously diagnosed illnesses. Id. In February of 1996, Plaintiff presented without complaints of depression, but again with gastritis. (AR at 184). At that time, Dr. Johnson reported that Plaintiff was compliant with his diet and medications. Id. On June 7, 1996, Plaintiff reported to Dr. Johnson he was in the midst of a conflict "between his church ministry and his parishioners," and requested an aphrodisiac. (AR at 184). Dr. Johnson added diagnoses of reactive depression, erectile dysfunction and lassitude to the list of previously diagnosed illnesses. In October of 1996, Plaintiff presented again to Dr. Johnson, desiring to discuss his "unsettling marital discord" and he was diagnosed with an adjustment reaction. (AR at 183). On November 11, 1996, it was noted that Plaintiff had lost weight over the previous five months, was observed to have a "thin frame," and was continuing to have adjustment disorder. Id. One month later, Plaintiff admitted to poor compliance with medications, poor nutrition, and complained that his life was "out of control." Id.
Less than a month later, Plaintiff returned with continued unintentional weight loss and uncontrolled diabetes. (AR at 182). Within three weeks, Plaintiff was again seen by Dr. Johnson who noted that his "reactive depression seems resolved" and that his nutritional status was improved and there were no acute findings. Id. When Plaintiff returned on March 5, 1997, his weight loss had continued, he was sullen, soft spoken and thin. (AR at 181). Although there were no acute findings, Dr. Johnson noted that Plaintiff expressed that life's duties and responsibilities were still stressful and Dr. Johnson accordingly reassigned a diagnosis of depression with a need for "psychotherapy re: upcoming job litigation." Id. On June 19, 1997, Plaintiff appeared to Dr. Johnson to be more relaxed, feeling better and more energetic. Id. It is also noted that he had started gaining weight and was back on his medications. He reported to Dr. Johnson that his "legal battle with Anheuser Busch" was "'leaning in his favor.'" Id. His diagnoses returned to essential hypertension, insulin dependent diabetes, and hyperlipidemia with a need for nutritional supplementation. Id.
Plaintiff was also seen by Michel Gingras, M.D., for a consultative exam by Virginia Department of Rehabilitative Services at the request of SSA. (AR at 202). Dr. Gingras reported that at the time of the evaluation, Plaintiff was "a 54-year-old black male, living by himself, separated and a father of three children, already adopted." Plaintiff reported that he was "becoming more and more depressed especially after his wife left him." (AR at 203). Dr. Gingras noted that Plaintiff had no previous psychiatric history, but had a medical history of insulin dependent diabetes mellitus and "surgery for his hands 20 years ago but nothing serious." Id.
Significantly, Dr. Gingras' mental status examination revealed that Plaintiff had an essentially normal mental status marked by anxiety which was under control, but also feelings of being "'low' and 'tired' and worried about his financial status." (AR at 204). Plaintiff admitted to feeling sad at times, but not depressed or suicidal. With respect to mental status diagnoses, Dr. Gingras noted somatoform disorder, not otherwise specified; probable depression, mild with situational components; and personality disorder, mixed, with passive-dependent features. (AR at 204). Dr. Gingras recommended that the patient would not benefit from any psychiatric help and that it was unclear why he should not be returned to work. Id.
The presence of physical symptoms suggesting a general medical condition but which cannot be explained by a diagnosable general medical condition, by the direct effects of a substance, or by another mental disorder. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 445, 468-469 (American Psychiatric Ass'n ed., 4th ed. 1994).
Plaintiffs record, including his consultative examination, was subjected to a Psychiatric Review Technique by two different state agency reviewers, Stonsa Insinna, Ph.D. on October 30, 1997, and Daniel Walter, Psy.D., on January 26, 1998. Dr. Insinna's summary of all the evidence showed that Plaintiffs medical impairments were not severe but were marked by affective and somatoform disorders, including mild depression with situational components. (AR at 205, 208, 210). The only functional limitation Dr. Insinna noted was Plaintiffs slight difficulty maintaining social functioning. (AR at 212). Dr. Walter found essentially the same results with minor variations such as consideration of a personality disorder instead of somatoform disorder and he concluded that there was "no evidence of claimed acute paranoia, which would not be allowed anyway [under the regulations] as it is acute and would not last a year." (AR at 214-215). Dr. Walter also found that Plaintiffs personality disorder was marked by "inflexible and maladaptive personality traits which cause either significant impairment in social or occupational functioning or subjective distress." (AR at 219). Dr. Walter also found slight functional limitations in activities of daily living, difficulty maintaining social functioning, and seldom deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere.) (AR at 221).
Plaintiff's Testimony
The record includes testimony by the Plaintiff in which he testified about his work history, education, skills, general duties of his past relevant work, and his then-current daily routine which generally reflected the disability, function and work history reports contained in his application. (AR at 41-49). Plaintiff responded to the ALJ's questioning that his "biggest problem" which "effects his ability to work" is discrimination, that he was gainfully employed and his employer fired him and he "[hasn't] been able to recover." (AR at 49). Plaintiff expressed that he was waiting for a trial, for reinstatement, that he had been denied worker's compensation benefits, and that he had worked all of his life but was motivated to apply to Social Security because he was "basically left out there hanging because people are committing crimes."Id. Plaintiff continued to insist that his disability was that he "believe[s] in Jesus Christ and [he] had an agnostic employer . . . their response was the I had to be crazy because there is no God and even if it was there's nothing he could use 'Niggers' for . . . and it's so mentally distressful that I have been unable to . . . gain reemployment." (AR at 51). Plaintiff responded that he may not be able to go back to his brewery job because he would have "a lot of emotional concerns." (AR at 52). The only other problem Plaintiff testified about with respect to returning to his former employment was the absentee policy "with regard to having pain once in awhile and I don't know what the absentee policy would be right now." Id. Plaintiff also testified it was "'extremely stressful to deal with a lot of . . . 'Americans'" because "they are continually harassing the black clergy and make it almost impossible to work in a civilized environment, mostly especially the white male." (AR at 53).
Plaintiff also testified that he "won the religious discrimination complaint and [was] still not getting any income" nor had he been accepted back at work. (AR at 49). As discussed elsewhere in this opinion, Plaintiff has never succeeded in any of his claims but for the initial agreement reached between his union and the brewery to reinstate him pending his cooperation in signing the consent to urine testing which he then proceeded to reject.
The ALJ questioned Plaintiff about his objections to Dr. Gingras' report that Plaintiff had not had any previous psychiatric history. (AR at 53). Plaintiff testified that he was "diagnosed as being severely paranoid because I believe in God," but had not undergone any psychiatric treatment. (AR at 54).
Plaintiff also complained that Dr. Gingras' misstated that Plaintiffs hand surgery was twenty years earlier, which the medical records do show to be incorrect though surely an unintentional misstatement by Dr. Gingras.
Plaintiff asked the Reverend Richard John Holmes, Sr., to testify on his behalf at the hearing. (AR at 55). Rev. Holmes stated that he was unaware of any problems that would prevent Plaintiff from being able to work. Id. Rev. Holmes also testified that he had also experienced ridicule in the workplace because he was a black minister. Id.
Plaintiff also attempted to submit various records which the ALJ refused to accept as irrelevant. (AR at 58-59). Plaintiff argued to the ALJ that he was trying to "prove stress and mental impairment" that prevents him from working. (AR at 59). He stated that he had been "beat up on and . . . my mind is so that I can't hardly accept being around you — you people." Id. He further testified, "I don't suffer from paranoia. White folk are mean. And I'm trying to establish that because when . . . people are mean spirited and they cause harm and conflict . . . there is accountability that has to come from someplace." Id.
The ALJ's Decision
The ALJ gave full consideration to all the evidence, including all medical reports and the reports submitted by various witnesses on behalf of the Plaintiff, including a Rev. Milton Hines, Jr. (AR at 19). The ALJ specifically found that Plaintiff had not engaged in substantial gainful activity since November 15, 1994; that he suffered from depression, somatoform disorder, personality disorder, essential hypertension, insulin dependent diabetes mellitus and hyperlipidemia; that his subjective complaints of pain were not fully credible nor did they relate to his mental or physical disability to do work; and that because Plaintiff had no impairment or combination of impairments which limited his ability to perform basic work related activities, he did not have a severe impairment under the regulations. (AR at 18). Therefore, the ALJ concluded that Plaintiff was not under a disability at any time as defined by the Act. (AR at 19). Upon the Appeals Council decision to decline to review, this decision of the ALJ became the final decision of the Commissioner from which Plaintiff now appeals.
Analysis
A five-step sequential process must be followed in evaluating a disability case. 20 C.F.R. § 416.920, 404.1520. If the Plaintiff fails in his burden of proof at any step, the inquiry ends and the Plaintiff is found "not disabled." Reichenbach v. Heckler, 808 F.2d 309, 311 (4th Cir. 1985).
The first step is to determine when a claimant last engaged in "substantial gainful activity" (SGA). In this case, the record shows, and the ALJ found, that Plaintiff had not been engaged in substantial gainful activity since the alleged onset date of November 15, 1994. (AR at 13).
The second step in the analysis is to determine whether the claimant has a "severe" impairment which is an impairment that causes more than a minimal effect on one's physical or mental ability to perform basic work activity. 20 C.F.R. § 404.1520 (c); 404.1520a; 404.1521. It is at the second step that the ALJ found the Plaintiff to be not disabled under the Act because he did not have a severe impairment or combination of impairments and thus was not eligible for disability benefits. (AR at 13). To be severe, an impairment must significantly limit an individual's physical and/or mental ability to perform basic work activities.
Accord Lively v. Secretary of H.E.W., 820 F.2d at 1392.
The ALJ's conclusions at step two are supported by substantial evidence on the record. Of significance, the record reveals that Plaintiff suffers from insulin-dependent diabetes mellitus controlled by medication and diet when he is compliant; essential hypertension and hyperlipidemia, also controlled with medication; hand pain controlled by over the counter medication; Axis I somatoform disorder, not otherwise specified with mild depression for which he denied he sought treatment; and Axis II personality disorder for which he also rejected treatment. However, it is also clear that despite these diagnosed medical and mental conditions, Plaintiff has virtually no limitation on his ability to live alone, to engage in all of his activities of daily living, to pursue his vocation as a minister, to tend to the sick, to read, to drive, to socialize with family and friends, and to care for his home. He produced no objective evidence to show that he has any limitation on his ability to perform mental and physical activities of work.
Because the ALJ's decision at step 2 was proper, it is not necessary for the court to analyze Plaintiffs claim in light of the remaining steps in the sequential evaluation. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (relying on 20 C.F.R. § 1520(a)).
Although the ALJ was obliged to consider the Plaintiffs subjective complaints regarding the nature and extent of his disabilities and their alleged impact on his ability to maintain employment, there was a substantial basis for the ALJ to conclude, as he did, that Plaintiffs subjective complaints regarding the nature of his disability, the impact on his ability to do workrelated activity, and the extent of his pain were not "entirely credible." The consistent objective medical, psychiatric, and vocational evidence failed to support a finding that any of Plaintiffs conditions were as severe as alleged. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985) (it is the ALJ's duty to lay a foundation for credibility determinations). The Plaintiffs own testimony regarding his abilities, activities, and alleged reasons for not returning to work demand this conclusion. Plaintiffs understanding and characterization of what he perceives to be his disability simply do not fall within the realm of the Act, let alone within the regulations' definition of severe impairment.
The errors that Plaintiff assigns to the ALJ's decision are ludicrous and frivolous. There is no evidence, no basis, and no need to address Plaintiffs bald, if not delusional allegations that "forcing of the plaintiff to submit to the SSA Doctor for testing was a deliberate attempt for the collusion of the Virginia Disability Services And SSA to conspire and enter false documents and statements"; the Commissioner's behavior was "immoral and illegal" which "was not incidental, but rather designed to attack and cause harm"; and the "SSA Doctors report is repulsive and totally disgusting." (Pl.'s Certified Brief and Mem. in Response to Order at 1-2; see generally, Resp. Br. Re: More Def. Statement). As provided under the regulations, the Plaintiff consented to a consultative examination when he applied for benefits. 20 C.F.R. § 404. 1517, 404.1519, 404.15 19a, 404.15 19g. If Plaintiff had an objection to the consultative examiner and could show good cause why he shouldn't be evaluated by Dr. Gingras under 20 C.F.R. § 404.15 19j, then the SSA could have assigned another doctor to evaluate Plaintiff. However, not only was there no basis at the time to object to Dr. Gingras, Plaintiff has not currently articulated any objection cognizable under the regulations. Id. Other than his bald allegations, there is nothing in the record to suggest a conspiracy to "attack and cause harm" to Plaintiff. On the contrary, there is every indication that the Commissioner complied with his duty fully in attempting to evaluate Plaintiffs claim in a way that could possibly be construed as a claim for benefits cognizable under the law.
To the extent that Plaintiff has alleged errors which may have impacted the ALJ's decision at step two or the Appeals Council's decision to decline review, such as alleged misstatements by Doctors Gingras and Haskett, or that the Appeals Council refused to consider evidence of a heart attack, and that the ALJ refused to accept evidence at the hearing, the court addresses these concerns ad seriatim.
Misstatements by Drs. Gingras and Haskett
Plaintiff complains that Dr. Gingras' report incorrectly states that Plaintiffs children were adopted. What Dr. Gingras' report actually states is ambiguous, however, it is completely irrelevant to the determination of disability in any event. (AR at 202). The court accepts as true Plaintiffs assertion that his children were not adopted for whatever difference that conclusion could possibly make. While the court acknowledges it is impossible to discern what Dr. Gingras meant by noting that Plaintiff was "separated and a father of three children, already adopted," it has absolutely no bearing on the resolution of any issue in this matter and is completely immaterial.
Plaintiff also complains, as he did at the hearing, that Dr. Gingras' report incorrectly states that he had surgery on his hand twenty years earlier. The medical evidence is clear about the dates, by whom, and where Plaintiff was treated for his hand injury and resulting hand pain. Again, the court accepts as true Plaintiffs version of events to the extent they are supported by the record; however, Dr. Gingras' misstatement had absolutely no bearing on the resolution of any issue in this case and is therefore also completely immaterial.
Plaintiff further complains that the report indicated that Plaintiff had no previous history of psychiatric problems. Again, the record is clear that Plaintiff was evaluated by Dr. Haskett in 1987, refused further testing, and declined treatment. (AR at 228-232). Plaintiff is likewise adamant that he suffers from stress brought on by religious persecution, but asserts he is not paranoid. The court accepts as true that Plaintiff was evaluated in 1987, to the extent he would cooperate, for a possible medical condition underlying his behavioral changes at work. Dr. Haskett opined that Plaintiff suffered no discernable medical condition to account for his behavior. (AR at 232). She also observed that Plaintiff "may actually be considerably more paranoid than his MMPI responses would indicate," but without further testing, "the diagnostic picture remains somewhat unresolved." Id. The court finds that Dr. Gingras' assessment is not in conflict with Dr. Haskett's conclusions in 1987, a conclusion that is required when one has the benefit of the full record upon with to make a determination regarding Plaintiffs complete physical and mental history. The evidence supports a conclusion that Plaintiff suffers from Axis I somatoform disorder and mild depression as well as Axis II personality disorder. However, there is no evidence on the record that Plaintiffs mental status has any impact on his ability to do work activity as defined in the regulations.
Evidence of Heart Attack
Where the Commissioner fails to make specific findings concerning 'new information relevant and material to the evaluation of' Plaintiffs condition, the case must be reversed. See Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979) (citing Arnold v. Secretary of H.E.W., 567 F.2d 258, 259 (4th Cir. 1977)). This is not such a case. There is no objective medical evidence anywhere in the record, nor has any been submitted by Plaintiff at any time, that he suffered a heart attack. If he had suffered a heart attack, he is required to prove on what date the alleged heart attack occurred, by whom and where he was treated, that it resulted in a severe impairment which lasted for twelve months or is expected to result in death which prevented him from engaging in work activity available in the local or national economy. On this issue, the complete lack of evidence, coupled with Plaintiffs complete lack of credibility, render this assignment of error without merit.
The ALJ'S refusal to allow Plaintiff to submit evidence or read evidence into the record.
Plaintiff complains that he was precluded from submitting certain evidence at his hearing, which is true. The ALJ limited Plaintiffs testimony, the testimony of his witness, and the exhibits he introduced to evidence "related to the issue of whether you're disabled or not." (AR at 55). The ALJ limited Plaintiffs ability to introduce irrelevant testimony or read into the record evidence which was not related to the determination of disability such as the witness' testimony that it was difficult for a black minister to work "in a public job"; an employer affidavit which Plaintiff argued "causes great duress with regard to my condition as being a Christian"; and a charge from the Equal Employment Opportunity Commission. Plaintiff argued, "[h]ow is it, Sir, that I'm ever going to be able to prove stress and mental impairment if anything that I put before you you're going to reject . . . you can't stand there and — and deny me every opportunity that I have to establish the fact that the work place is causing me problems and at the same time say you're not eligible for anything." (AR at 59).
The ALJ explained to Plaintiff at his hearing, and discussed in detail in his opinion, the evidence which is to be considered under the regulations to determine whether a person is disabled. This evidence includes objective medical evidence of a determinable physical or mental disease which prevents a claimant from engaging in substantial gainful activity. (AR at 61, 13-16); 20 C.F.R. § 404.1435, 404.1512-404.1515. It is Plaintiffs burden to produce acceptable evidence which is defined by the regulations as objective medical evidence and laboratory findings; other evidence from medical sources such as history and opinions; statements by Plaintiff or witnesses regarding restrictions, daily activities, efforts to work, or any other relevant statements made during the course of treatment; and decisions by any governmental or nongovernmental agency.
At the hearing stage, Plaintiff appeared to be attempting to prove he suffered disabling emotional distress as a result of religious persecution in the workplace. If Plaintiff were suffering such a disabling impairment, he had to prove it by offering admissible evidence as defined in the regulations and not for the first time through the introduction of irrelevant evidence and argument at the hearing stage. The ALJ granted Plaintiff extraordinary leeway in developing his argument and was clearly not in error by limiting Plaintiffs offer of proof to relevant evidence. Therefore, Plaintiffs assignment of error is without merit.
Conclusion Regarding Disability Appeal
It is apparent from the record that Plaintiff has been on a quest to have someone pay him for losing his job at Anheuser Busch — be it his union, his ex-employer, the Commonwealth or the federal government. The Plaintiff fully believes that he is the victim of religious persecution. However, religious persecution is not the proper subject to be resolved in a DIB or SSI claim. There is no doubt that Plaintiff has some medical conditions and that he has experienced personal hardship and loss since his religious conversion. However, Plaintiff has articulated no set of facts nor produced relevant evidence to support his application for disability or a showing that the determination of the Commissioner is in error. Having closely reviewed the entire record in light of the guiding standard and Plaintiffs assignments of error, it is obvious that the Commissioner's decision to deny DIB and SSI is supported by substantial evidence on the record and was made in compliance with the governing statutes, regulations and case law. Therefore, the decision of the Commissioner is AFFIRMED.
Possible Sanctions
Neither Defendant has moved for sanctions for the Plaintiff having filed and pursued what constitutes a frivolous suit because of his fruitless effort to re-litigate the same basic issues on which he has repeatedly failed. Nevertheless, the court can initiate appropriate action on its own in aid of the administration of justice.
The SSA Defendant did request costs "and such other relief as may be appropriate" in its Answer but costs do not include attorney's fees and no renewed demand with substantiation has yet been made so as to convert the standard phraseology of a responsive pleading into a basis for specific relief, at least at this juncture.
This matter has been pending for nearly a decade in multiple forums and venues. The Plaintiff has been given every conceivable opportunity to plead his case and in different forms; yet, even after every effort is expended to explain to him why he does not have a claim and why he cannot prevail on the facts he alleges and the applicable law, he continues to take advantage and imposes himself on the judicial and administrative systems, both state and federal, to tell him the same things again, over and over. There must be an end to it.
This court, as all of the other tribunals that have been involved, has done everything it could to accommodate the Plaintiff in his pro se efforts and it will give him the benefit of the doubt one more time because of his position. The court will not impose sanctions at this time, even though it was previously recommended for sound reason by the Magistrate Judge in his Report and Recommendation in Cary v. Carmichael for similar, if not related misconduct. However, the court will entertain any request from the Defendants for attorney's fees and unreimbursed costs in this action if the Plaintiff seeks to file without prior approval of a court any related action in the future in any federal court, except a direct appeal from this decision. The Clerk of this court is directed to take such measures as may be deemed reasonable and necessary to at least insure that no such action is filed in any division of this judicial district without prior leave of court. The court cannot extend this restriction beyond the federal realm, except to make this Memorandum Opinion a matter of public record and knowledge by its publication so as to assist and guide any tribunal or authority that may be confronted by the situation in the future.
Conclusion
For the reasons stated, the Defendant Commonwealth of Virginia's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim is GRANTED. Likewise, but for different reasons as expressed herein, including the independent review of the entire administrative record by this court to determine if there are any grounds upon which to consider reversal or remand of the issue involving the denial of SSA benefits, the Defendant Social Security Administration's motion for summary judgment as construed by its answer and administrative record is also GRANTED.
Let the Clerk forward a copy of this Memorandum Opinion to the Plaintiff and counsel of record.
An appropriate Order shall issue.
ORDER
This matter is before the court on the Defendants' separate motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). For the reasons set forth in the accompanying Memorandum Opinion, the respective motion of each Defendant is GRANTED and the case is DISMISSED. It is further
ORDERED that the Clerk of this court shall take such reasonable steps as are deemed appropriate to notify each division of this judicial district that the Plaintiff, Ned N. Cary, Jr., has been ordered by this court not to file without prior approval of a court any related action in the future in any federal court, except a direct appeal from this decision. In this regard, the Clerk is authorized to forward copies of the accompanying Memorandum Opinion upon inquiry for purposes of determining whether any further efforts by the Plaintiff are related to this matter.
Let the Clerk forward a copy of the accompanying Memorandum Opinion and this Order to the Plaintiff and all counsel of record.
It is so ORDERED.