United States District Court, W.D. Tennessee, Eastern Division
MACK W. ALLEN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE AFFIRMING THE DECISION OF THE COMMISSIONER
AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
Mack W. Allen filed this action to obtain judicial review of
Defendant Commissioner's final decision denying his
application for disability insurance benefits under Title II
of the Social Security Act (“Act”) and an
application for supplemental security income
(“SSI”) benefits based on disability under Title
XVI of the Act between the alleged onset date and October 26,
2009. Plaintiff's applications were denied initially and
upon reconsideration by the Social Security Administration.
Plaintiff then requested a hearing before an administrative
law judge (“ALJ”). On September 17, 2013, the ALJ
found Plaintiff to be disabled beginning October 26, 2009,
but not before that date. The Appeals Council denied
Plaintiff's request for review, and, thus, the decision
of the ALJ became the Commissioner's final decision.
Plaintiff, pro se, has filed a complaint in this Court
contending that he is entitled to “backtime
disability” for the period between his alleged onset
date and October 26, 2009, and an increase in his monthly
disability check. (Cmplt. p. 2, ECF No. 1.)
the matter had been fully briefed by the parties, on August
12, 2016, Magistrate Judge Tu M. Pham issued a report
recommending that the decision of the Commissioner be
affirmed. (ECF No. 21.) Plaintiff filed objections to the
report and recommendation on August 31, 2016. (ECF No. 22.)
The Commissioner filed a response to Plaintiff's
objections (ECF No. 23), and Plaintiff filed an additional
brief on September 30, 2016. (ECF No. 24.) Having reviewed
the record, the controlling case law, and Plaintiff's
objections, the Court agrees with the Magistrate Judge's
recommendation. The report and recommendation is
ADOPTED, the decision of the Commissioner is
AFFIRMED, and the case is hereby
noted by the Commissioner, Plaintiff's objections are
untimely. The parties had fourteen days to file written
objections. Plaintiff did not file his objections until
August 31, 2016, five days after the deadline of August 26.
Plaintiff's failure to timely file written objections
constitutes a waiver of any objections.
even on the merits, Plaintiff's objections fail because
the Magistrate Judge properly determined that substantial
evidence supports the Commissioner's decision. Under 42
U.S.C. § 405(g), a claimant may obtain judicial review
of any final decision made by the Commissioner after a
hearing to which he was a party. The Court's review is
limited to determining whether there is substantial evidence
to support the Commissioner's decision, 42 U.S.C. §
405(g), and whether the correct legal standards were applied.
Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997).
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)
(quoting Richardson v. Perales, 402 U.S. 389
(1971)). It is “more than a mere scintilla of evidence,
but less than a preponderance.” Bell v. Comm'r
of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). When substantial evidence supports the
Commissioner's determination, it is conclusive, even if
substantial evidence also supports the opposite conclusion.
Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390
(6th Cir. 2004); Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001).
the Magistrate Judge carefully looked at the ALJ's
weighing of the medical evidence in the record and the
ALJ's credibility determination and found that all legal
rules were followed and that substantial evidence supported
the ALJ's findings. In his objections, Plaintiff has
presented no relevant facts or arguments not considered by
the Magistrate Judge. Because Magistrate Judge Pham evaluated
the ALJ's decision under the proper legal standards and
addressed all of Plaintiff's arguments, the report and
recommendation is ADOPTED in its entirety.
Court must also consider whether Plaintiff should be allowed
to appeal this decision in forma pauperis, should he
seek to do so. Pursuant to the Federal Rules of Appellate
Procedure, a non-prisoner desiring to proceed on appeal
in forma pauperis must obtain pauper status under
Fed. R. App. P. 24(a). See Callihan v. Schneider,
178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a)(3) provides
that, if a party was permitted to proceed in forma
pauperis in the district court, he may also proceed on
appeal in forma pauperis without further
authorization unless the district court “certifies that
the appeal is not taken in good faith or finds that the party
is not otherwise entitled to proceed in forma
pauperis.” If the district court denies pauper status,
the party may file a motion to proceed in forma
pauperis in the Court of Appeals. Fed. R. App. P.
good faith standard is an objective one. Coppedge v.
United States, 369 U.S. 438, 445 (1962). The test for
whether an appeal is taken in good faith is whether the
litigant seeks appellate review of any issue that is not
frivolous. Id. The same considerations that lead the
Court to adopt the Magistrate Judge's report and
recommendation compel the conclusion that an appeal would not
be taken in good faith.
CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal
in this matter by Plaintiff is not taken in good faith. Leave
to proceed on appeal in forma pauperis is,
therefore, DENIED. Accordingly, if Plaintiff files a notice
of appeal, he must also pay the full appellate filing fee or
file a motion to proceed in forma pauperis and
supporting affidavit in the Sixth Circuit Court of Appeals
within thirty (30) days.
 Pursuant to Fed. R. App. P. 3(a), any
notice of appeal should be filed in this court. A motion to
appeal in forma pauperis then should be filed
directly in the United States Court of Appeals for the Sixth
Circuit. Unless he is specifically instructed to do so,
Plaintiff should not send to this ...