IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREGORY L. DANIELS, *

 *

Plaintiff, *

 *

vs. * Civil Action 08-00399-CG-B

 *

MICHAEL J. ASTRUE, *

 * 

Defendant. *

REPORT AND RECOMMENDATION

This action, which is before the Court on Plaintiff Gregory L.

Daniels’ Motion for Leave to Appeal In Forma Pauperis(Doc. 24), was

referred to the undersigned for report and recommendation pursuant

to 28 U.S.C. § 636(b)(3). Based upon a careful review of

Plaintiff’s motion, and the case file, the undersigned finds that

Plaintiff’s appeal is not taken in good faith, and therefore

recommends that Plaintiff’s motion be denied pursuant to 28 U.S.C.

§ 1915(a)(3).

 Plaintiff, proceeding pro se, filed the instant action seeking

judicial review of a final decision of the Commissioner of Social

Security denying his claim for a period of disability and disability

income benefits under Title II of the Social Security Act (“Act”),

42 U.S.C. § 416 et seq. (Doc. 1). According to Plaintiff, he is

entitled to disability benefits because he was previously denied

disability benefits based on a VA determination that was later

revised to grant him 100 percent VA disability. According to

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Plaintiff, based on that VA revision, the Commissioner should find

him disabled. (Doc. 4 at 1). In support of his claim, Plaintiff

submitted various documents including a VA Rating Decision dated

February 25, 2002, and a letter from the VA dated March 8, 2002.

According to the VA Rating Decision, Plaintiff has a 10 percent

service-connected disability, based on diabetes mellitus, type 2,

effective March 26, 2001, and a 100 percent disabled serviceconnected disability, based on PTSD, effective December 13, 1993.

Based upon a review of the record evidence, the undersigned

recommended that Plaintiff’s claim be dismissed in a Report and

Recommendation issued on February 4, 2010. (Doc. 19) In

recommending the dismissal of Plaintiff’s claim, the undersigned

found that the Administrate Law Judge’s decision was supported by

substantial evidence. The undersigned concluded that March 31,

1992 is the date on which Plaintiff was last insured, and while

Plaintiff relied upon VA Rating Decisions dated August 22, 2001

(Doc. 9 at 5), September 6, 2001 (Doc. 9 at 3-4), February 25, 2002

(Doc. 1 at 1-3), and March 8, 2002 (Doc. 1 at 5-8), those documents

do not relate to the period in question, but instead relate to a

period nearly twenty months after the expiration of Plaintiff’s

insured status. Accordingly, the undersigned determined that

because the record is devoid of any evidence that Plaintiff

experienced any functional limitations of any sort prior to his

date last insured, the Administrative Law Judge’s decision was due

to be affirmed. 

Case 1:08-cv-00399-CG-B Document 26 Filed 03/01/10 Page 2 of 4
 Plaintiff filed an Objection to the Report and Recommendation,

and upon consideration, the Report and Recommendation was adopted

by District Judge Granade. (Docs. 20, 21, 22). In Plaintiff’s

Notice of Appeal (Doc. 23), filed on February 25, 2010, he

essentially asserts that the decision to deny him disability

benefits is unfair in light of his military service and the VA’s

Rating Decisions.

28 U.S.C. § 1915(a) provides that “[a] appeal may not be taken

in forma pauperis if the trial court certifies in writing that it

is not taken in good faith.” In making this determination as to

good faith, a court must use an objective standard, such as whether

the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438,

445, 82 S. Ct. 917, 8 L.Ed. 2d 21 (1962), or “has no substantive

merit.” United States v. Bottoson, 644 F. 2d 1174, 1176 (5th cir.

Unit B May 15, 1981)(per curiam); See also United States v. Wilson,

707 F. Supp. 1582, 1583 (M.D. Ga. 1989), aff’d., 896 F. 2d 558

(llth Cir. 1990).

 Applying the foregoing standard, the undersigned opines that

Plaintiff’s appeal is without a legal or factual basis, and

accordingly, is frivolous and not taken in good faith. As set

forth in detail in the Report and Recommendation issued on February

4, 2010 (Doc. 19), the record is devoid of any evidence that

Plaintiff experienced any functional limitations of any sort prior

to his date last insured. In his Notice of Appeal, Plaintiff has

not raised any issues reasonably arguable on their merits.

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Accordingly, the undersigned recommends that the district court

certify that Plaintiff’s appeal is not taken in good faith, and

deny his Motion for Leave to Appeal In Forma Pauperis.

DONE this 1st day of March, 2010.

 /S/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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