BANNISTER v. COLVIN, No. 1:2014cv00741 - Document 14 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 8/25/2015; that Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 9 ) be GRANTED, that Defendant's Motion for Summary Judgment (Docket Entry 11 ) be DENIED. FURTHER that the decision of the ALJ be REVERSED and that this matter be REMANDED to the Commissioner for an award of benefits. (Sheets, Jamie)
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BANNISTER v. COLVIN Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA REBECCA D. BANNISTER, ) ) ) Plaintiff, ) ) ) ) ) ) ) ) V CAROLYN Sí. COLVIN, Acting Commissionet of Social S ecurity,\dminis tration, Defendant. Civil,\ction No. 1,:1,4CY7 41 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Rebecca D. Bannister, btought this action pursuant to Section 205(9) of the Social Security Act (the 'îcC'), as amended (42 U.S.C. $ a05(g)), to obtain judicial review of a îtnal decision of the Commissioner of Social Security denying her claim fot supplemental secwity income ("SSI"). The Coutt has befote it the cetified administtative tecord and ctoss-motions for judgment. For the reasons set forth below, the Court recommends that Plaintiffs motion (Docket E.ttty 9) be granted, the Commissioner's motion (Docket E.rtty 11) be denied, and the case be remanded fot the awatding of benefìts. I. PROCEDURAL HISTORY Plaintiff filed an application fot SSI on January disabled onJanuary 8,201,1,. upon reconsidetation. (Id. (Ir. 1.4, 2011, alleging that she became 158-164.)1 The application was denied initially and agun 93, '1,02.) Plaintiff then requested a hearing befote ^t Administrative Law Judge ("AIJ"). an (Id. at 1,07-1,09.) Present at the June 4, 2013 heatrng t Transcript citations refer to the adminisffadve tecotd which was filed with Defendant's Answer. (Docket Entry 7.) Dockets.Justia.com were Plaintiff and her attorney. disabled under the Act. (d. at39.) The AIJ determined that Plaintiff was not (Id. at 10-19.) Plaintiff requested that the -Appeals Council teview the ALJ's decision. Qd. at 6.) On June 30, 20L4, the -A.ppeals Council denied Plaintiffs request for review, making the ,\LJ's determination the Commissionet's fìnal decision for purposes of teview. (d. at 1,-3.) The Plaintiff has exhausted aII avallal:le administrative remedies, and this case is now ripe for review pursuant to 42 U.S.C. $ 405(g). II. FACTUAL BACKGROUND Plaintiff was 47 years old on the alleged disability onset date. Çr. 37.) She has an eleventh grade education and is able to tead and wdte. III. (Ir. a0.) STANDARD FOR REVIEW The Commissioner held that Plaintiff was not undet a disability within the meaning of the -dct. Under 42 U.S.C. $ a05(g), the scope of judicial review of the Commissioner's final decision is specific and narrow. Smith u. Schweiker,795 tr.2d 343,345 (4th Cir. 1986). This Court's review of that decision is limited to determining whethet thete is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. $ a05(g); Hanter Salliuan,993tr.2d31,,34 (4th Cir. 1,992); Hals Substantial evidence is "such relevant u. u. Salliuan,907 tr.2d1453,1.456 (4th Cir. 1990). evidence as a teasonable mind might accept as adequate to support a conclusion." Hanter, 993 F.2d at 34 (citing Nchard¡on u. Perale¡, 402 U.S. 389, 401 (1,971)). "It consists of mote than a mere scintilla of evidence but may be somewhat less than a prepondefa,nce." Id. (quottng I-øws u. Celebreçry,368 F.2d 640, 642 (4th Cn.'1966)). 2 The Commissionet must make findings of fact and resolve conflicts in the evidence. Ha1s, 907 F.2d at 1456 (citing King u. Calfano, 599 does not conduct a de novo review Schweiker,795 F.2d undertake F.2d 597 , 599 (4th Cir. 1979)). The Court of the evidence not of the Commissioner's findings. at 345. In reviewing fot substantial evidence, the Court does not to te-weigh conflicting evidence, to make ctedibility determinations, or to substitute its judgment for that of the Commissioner. Craigu. Chater,76F.3d 585,589 (4th Ck. 1,996) (citing Hryt,907 F.2d at1,456). "!(/hete conflicting evidence allows teasonable minds to diffet as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the LJ)." Cmig76F.3d at 589 (quoting lY/alker reversed only u. Boweru,834 tr.2d 635, 640 (7th Cir. 1987). The denial of benefits will be if no reasonable mind determination. See could accept the recotd as adequate to suppott the Nchardson u. Perales,402 U.S. 389,401, (1,971). The issue befote the Court, thetefote, is not whethet Plaintiff is disabled, but whethet the Commissioner's finding that Plaintiff is not disabled is supported by substantial evidence and was reached based upon coffect application of the relevant law. See a id.; Cofman u. Bowen,829 F.2d 51.4, 517 (4th Cir. le87) IV. DISCUSSION The Social Secutity Regulations defìne "disability" fot the purpose of obtaining disability benefits under the reason of any medically ,\ct as the "inability to do any substantial gainful activity by detetminable physical ot mental impaitment2 which can be expected ' ,4. "physical or mental impairment" is an impairment resulting from"anatomical, physiological, ot psychological abnormalities which are demonstrable by medically acceptable clinical andlaboratory diagnostic techniques." 42 U .5.C. SS 423 (dX3), 1382c(a)(3XD) a t to tesult in death ot which has lasted ot can be expected to last for a continuous period of not less than 12 months." 20 C.tr.R. S 404.1505(a); see al¡o 42 U.S.C. $$ a23(d)(1)(a), 1382c(a)(3)(A). To meet this defìnition, a claimant must have a severe impafument which it impossible to do ptevious work or makes in the national economy. 20 ^ny other substantial gainful acttvity3 that exists C.F'.R. S 404.1505(a); see al¡o 42 U.S.C. SS 423(dX2)(A), 1382c(a)(3)(B). A. The Five-Step Sequential Analysis The Commissionet uses a fìve-step process to evaluate disability claims. 20 C.F.R. 404.1520,41,6.920. See Hannck u. Astrae,667 F.3d 470,472 (4th Cir. SS 201,2). Undet this process, the Commissioner asks, in sequerice, whethet the claimant (1) worked dudng the alleged petiod of disability; Q) had a severe impairment; (3) had an impairment that met or equaled the requirements of a Iisted impairment; (4) could teturn to her past relevant work; and (5) if not, could petform any other work in the national economy. Id. (cittng 20 C.F.R. SS 404.1520,41,6.920(^X4). The claimant bears the burden as to the fout steps, but the Commissionerbears the burden In as frst to the fifth step. Id. at472-73. undertaking this sequentìal evaluation process, the five steps are considered in tutn, although a finding advetse to the clair.rrant at either of the fìrst two steps forecloses a determination of disability and ends the inquiry. In this regard, "[t]he füst step determines whether the claimant is engaged in 'substantial gainful activity.' benefìts are denied. The second step determines benefits are denied ." Bennett u. Sulliuan,917 tr.2d t If the claimant is working, if the claimant is 'severely' disabled. If not, 157 , 1,59 (4th Cir. 1990). "srrbstuntial gainful activity" is work that (1) involves performing significant or productive physical ot mental duties, and (2) is done (or intended) for p^y or profrt. 20 C.F.R. SS 404.1510, 41,6.910. 4 If a clatrnant carries his butden at the ftst two steps and also meets his burden at step in the regulations, the claimant is disabled, and there is no need to proceed to step fout ot [tve. See three Møstro of estabìishing an impairment that meets or u. equals an impaitment listed Apfe[210 F.3d 1,71., 177 (4th Cir. 2001). Àltematively, if a claimant cleats steps one and two but fails to show that the alleged impaitment is sufficiently sevete to equal or exceed a listed impairment, then the analysis continues and the ,AIJ must determine the claimant's RFC. Id. at 179.a Step fout then requires the ÅLJ to assess whethet, based on that RFC, the claimant can "perfom past relevant work;" Id. at 179-80. However, if if so, the claknant does not quali$t as disabled. the claimant establishes that she is unable to return to her pdor wotk based on that RF'C, the analysis moves to the fifth step, which shifts the butden of ptoof to the Commissionet "to prove that a significant numbet of jobs exist which the claimant could petform, despite [the claimant's] impairments." Hines u. Barnhart, 453 tr.3d 559,563 (4th Cir. 2006). In making this determination, the ALJ must decide "whethet the claknant is able to petform othet wotk considedng both [the claimant's RFC] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to new job." Ha// u. Han'is, 658 F.2d 260, 264-65 (4th Cir. 1981). a Il at this step, the Commissioner cannot c^rry her "evideniary burden of proving that fthe claimant] remains able to work othet jobs available in the community," the claimant o qualifìes as disabled. "RFC is a measutement of the most a claimant can do despite his limitatiofls." Hifles, 453 F.3d at 562 (noting that administrative regulations require RFC to reflect claimant's "abiJity to do sustained wotk-related physical and mental activities in a wotk setting on a regular and continuing basis . . . [wlúch] means 8 hours a day, fot 5 days a week, or an equivalent wotk schedule" (internal emphasis and quotation marks omitted)). The RFC includes a "physical exertional or strength limitation" analysis that assesses the claimant's "abilty to do sedentary, Iight, medium, heavy or very heavy work," as well as "nonexertional limitations (mental, sensoty, ot skin impairments)." Hal/,658 F.2d at265. "RFC is to be determined by the ALJ only after [the A.LJ] considets all televant evidence of a claimant's impaitments and any related symptoms (e.g., patn) J' Hine¡, 453 F .2d zt 562-63 . 5 Hines,453 F.3d 567. ^t Hete, the AIJ completed all fìve steps of the sequence, and detetmined that while Plaintiff could no longer perform her past relevant work, she was not disabled because othet jobs existed in significant numbets in the national economy which Plaintiff could perform. Gr. 17-18.) To reach his conclusion, in steps one and two the LJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of January 8, 2011. and had the severe impairments of schizoaffective disordet, mood disorder, major depressive disordet/anxiety disotders and chronic obstuctive pulmonary disease (Id. at 1,2.) thtee, the ÅLJ found that Plaintiff did not have an impafument impairments listed in, or medically equal to, one listed in ,{.ppendix ,\t step or combination of 1. Qd. at 12-13.) At step four, the ALJ assessed the Plaintiffs RFC, fìnding that she had the ability to perform light work except that she was limited to simple wotk with no fixed production rate, few changes and involving no more that occasional interaction and avoidance extremes. of with others; no outdoor work; concentrated pulmonaÍy tftltants, workplace hazards and temperature (ft. 13.) Considedng Plaintiffs age, education, wotk experience and tesidual functional capacity, the ALJ found that thete were jobs that existed in significant numbers in the national economy that Plaintiff could perform and that therefore she was not disabled as defined by the Social Security Act. Plaintiff argues that the .{LJ ered in (1) giving little weight to the opinion of Plaintiffs treating physician regarding Plaintifls physical testtictions:' Q) farhns to evaluate Plaintiffs respiratory impairment under Listing 3.02Al' and (3) failing to considet 6 the disability determination of the North Caroltna Division of Vocational Rehabilitation Services pursuant to SSR 06-03p B. The ALJ's Evaluation of Dr. Squire's Medical Opinion At step four, the ,\LJ found that Dr. Squire's medical opinions in his medical assessment statement were entitled to "significant weight" as they "related to the claimant's pulmonary ptoblems," but "little weight" as to his opinions "tegatding the claimantf's] physical testrictions because they ate not suppoted by clinical evidence and imaging reports of the claimant's chest and the medical evidence as a whole." (Tr. 17.) Plaintiff atgues that the A{ ered in failing to give Dt. Squire's opinion conttolling weight and in failing to take into consideration spirometry testing results which Dt. Squire used in tendeting his opinion. The Commissioner argues that the evidence of record does not support the extteme and disabling functional limitations found by Dr. Squire. (Def.'s Mem. at 9, DocketE,ntry 1,2.) Undet the treating physician rule, the ALJ genetally must give conttolling weight to the opinion of a treating source regarding the natute and sevedty of a claknant's impairment. 20 C.F.R. SS 404.1527(r)Q), 416.927(c)(2) longitudinal picture perspective ("[!]reating soutces ptovide a detailed, of la claimant's] medical impairment[s] and may bring a unique to the medical evidence that cannot be obtained ftom the objective medical findings alone or from reports of individual examinations, such as consultative examinations or bdef hospitabzations."). However, ^ fte ttng physician's opinion is not due controlling weight when it is either "not suppoted by clinical evidence or if it is inconsistent urith other substantial evidence." CraigT6 F.3d ^t 590. . treating physician's opinion is not entitled to controlling weight whete it is conclusory, based upon a claknant's subjective reports and not 7 supported by the physician's own medical notes. Id. Additionally, ^ tre ttîe physician's opinion will not be given controlling weight where the opinion lists diagnoses but fails to explain how such conditions impact the claimant's wotk-related abilities. See Thompson u. Astrue,442F. App'* 804, 808 (4th Cir. 201,1). In evaluating medical opinions, an 1'J-J should examine "(1) whether the physician has examined the applicant, (2) the treatment relationship benveen the physician and the applicant, (3) the suppotability of the physician's opinion, (4) the consistency of the opinion with the recotd, and (5) whether the physician is a specialist." Johnson u. Bamhaú, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. S 404.1,527). While an less weight N,J "rrray choose to give to the testimony of a trcaine physician if there is petsuasive contrary evidence," Hanter, 993 F.2d ^t 35, "the ALJ may not chetry-pick trivial inconsistencies between a treating physician's opinion and the record or take evidence out of context to discount the physician's opinion." Meyr-Il/illians u. Coluin, No. 1:14-CV-393, 201,5 WL 33963'1., x2 ^t (À4.D.N.C. Jan. 26,2015) @,agles, J.) (unpublished) (citing E//i¡ a. Coluin,5:13CV00043,2014 WL 2862703 68001.27 , ñ CX/.D.Va. June 24, 2014); Brlant u. Coluin, No. 3:12-CV-307-C,A.N, 2013 WL *1.2 (l\f .D. Ind. Dec. 20, 2013) (citing Scott u. A$rae, 647 tr.3d 734, 7 40 (7th Cir. 201,1))). An IJ's decision not to afford controlling weight to a treating physician's opinion must be supported by substantial evidence in the record. If/inford u. Chater,917 tr. Supp. 398, 400 (E.D. Ya. 1996). In this case, the ALJ's evaluation of Dt. Squire's opinions is not supported by substantial evidence. 8 On Apdl 23,2013, Dr. Squire, Plaintiffs treating physician of sevetal years, rendered his medical opinion on het symptoms, diagnoses and functional limitations. Dt. [r 327-329.) Squire noted that Plaintiff suffers from severe COPD, and listed subjective findings which are consistent with this impairment, including dyspneas multiple times a day, cough, and frequent use of an inhaler with bronchodilator medication and sputum production. (Tt. 327.) Dt. Squire also noted multiple objective fìndings, including "a productive sounding cough, severe airways obstruction affectng lung function, requited use cotticosteroid . . . , a long acting bronchodilator of an inhaled .. . and an anticholinergic agent tiottopium to conttol her symptoms along with a shon acting bronchodilator albuterol . . . along with exacetbations that have required an antibiotic . . . and a systemic cotticostetoid." Qd.) Dt. Squire then stated "[t]hese are chronic findings and are expected future." to worsen in the near (Id.) Based on these findings, occasionally and should Dt. Squire opined that Plaintiff could lift only 1-2 pounds lift nothing frequently. Çr. 327 .) He furthet stated that Plaintiff has limitations walking and standing, and that she only has the ability without stopping to rest for 10 - to walk 200 feet 15 minutes. (Id.) Dr. Squire opined that "fc]umulative walking-capacity during a day [is] estimated to be less than 2 cumulative hours." Qd.) He noted: The relevant symptom for fPlaintiffl is dyspnea. She experience dyspnea multiple times each duy and the sense of breathlessness that occurs intermittently throughout the day would be enough to tequire that she divert het attention and considet using het meteted dose inhaler, the one that contains which she uses for short term telief. The mete fact that '{.lbuterol u "Dyrpn.a" is defmed as "difficult or labored respiration." MERRrÀÀ,I-WEBSTER DICTIONIRv, found at www.merriam-webster.com/dictionary/dyspnea. 9 she often must do this two or more times per day indicates that the combination of an inhaled corticosteroid and long acting btonchodilator have been ineffective controlling symptoms. These symptomatic experiences will continue to worserì unless she is able to cease smoking, but in this tegard she may be the most addicted nicotine-addict that I have taken cate of with conrnensurate difficulty in quitting. She's tried multiple times, but we are continuing to work on this problem. Qr 328.) The ALJ, while crediting Dr. Squite's opinion regarding Plaintiffs impairments, discounted the physician's opinion as to Plaintiffs functional limitations. The ALJ provided no cleat reasons fot not fully crediting Dr. Squfue's opinion, stating only that the restrictions suggested by Dr. Squire "^re rtot suppoted by clinical evidence and imaging reports claimant's chest and the medical evidence of record as a whole." Qr. 17 .) of the This Court finds that the ALJ's rejection of Dr. Squire's opinion as to functional limitations is not suppotted by substantial evidence. The three physical exams tefetred to by the ALJ, those in Octobet 2012 and February 2013, were ones in which Plaintiff showed some imptovement, but the overwhelming majoÅry limitations . (S ee, e.g., Tr. of the exams in the record show that Plaintiff 27 6; 268; 27 2-7 For instance, on January 17, has disabling 3; 27 0 ; 268.) 201,1, Dr. Squire noted Plaintiffs "matkedly decteased att enty involving the right posterior, inferior and latenl chest wall," along with other similat fìndings. Qt 268.) Dr. Squire noted that Plaintiff had "been expetiencing exacetbation fot over a month . . . and was still using het inhalet 4 times pet February 201.1,, Dr. Squire agarn noted Plaintifls "matkedly decreased noticeable wheezing and low bronchodilator responsiveness. day." (Id.) In ait entrf" with Qr.264.) The teatment note also reported "prolonged expiration [and] inspitatory and expiratory wheezrng." 10 an (Itl.) In March 20L2, Dt. Squire noted that "þ]ased upon her lung functions and het degtee of dyspnea, which includes being breathless with dressing or undtessing[,] puts het in the c^tegory of severe COPD." (Tr. 3a0.) The record contains other similat treatment notes. Às noted by the ALJ, dudng her February 26,201,3 visit with Dr. Squire, Plaintiff had a normal lung exam without wheezing or coughing. Çr.331,.) Flowever, this note is one of the only ones in the record where Plaintiff was riot expedencing significant tespiratory symptoms and in fact is not illustrative of the longitudinal picture of PlaintifPs impairments and limitations. Additionally, this February 26,2013 visit followed a pedod where Plaintiff had sought treatment in the emergency room for "seven to ten days of incteasing cough, expectoration (clear), dyspnea with exertion and malaise" which tesulted in prescriptions, including steroids. Qt ßa.) To selectively multiple cite only this tteatment note (along with one or two others), where Plaintiff showed some improvement after receiving emergency treatment, out of the record of the whole constitutes impetmissible chetry- picking. "An ALJ cannot pick and choose just selected notes. Rather, the recotd must be assessed in its entirety." Kirbl u. Astrue, 731. F. S.rpp. 2d 453,456 e,.D.N .C. 201,0). Hete, "[t]he .,{IJ rejected the opinion of Plaintifls teating physician which was 'well-suppoted by medically acceptable clinical andlaboratory diagnostic techniques' and 'was not inconsistent with the other substantial evidence in [the] case record."' Meler-IØilliam¡,2015 WL 33961, at x3. The majority of Plaintifls medical records are consistent with Dr. Squire's opinion. dditionally, the.{LJ stated in his decision that "[t]here are no pulmonary functions tests reports or back imaging evidence impairment." in the tecotd to support a disabling bteath or back (Ir. 15.) This finding completely 1l ignotes Dr. Squi-te's February 22, 201.2 treatment note in which he reported spirometric test results showing "severe impairment of fPlaintiffs] lung function." Gr. 340.) While the results themselves are not contained in the record, Dr. Squire repoted the results and relied upon this clinical evidence in making his assessment. Under these circumstances, the ALJ has failed to show that Dr. Squire's opinions are "not suppoted by clinical evidence . . . and the medical evidence of tecotd as a whole." C*tç76tr.3d at 590. Ultimately the question for this Cout is whether substantial evidence suppoÍts the IJ's finding that Plaintiff could perform work in the ¡atonal economy on a tegular and consistent basis. In light of the opinion of Plaintiffs treating physician, which is not contradicted by the longitudinal record or the objective medical evidence in this case, the Court holds that the ALJ's finding is unsuppotted by substantial evidence. C. ALJ's Failure to Consider Disability Determination of Vocational Rehabilitation6 Alternatively, Plaintiff argues that the ALJ erted by wholly fa:hng to consider and weigh the determination Services of the North Caroltna Division of Vocational Rehabilitation ("VR") finding Plaintiff unemployable. The tecord contains two letters from Vocational Rehabilitation Counselot at VR. In the ltst letter, dated June L5, 201.1., a the VR counselor noted Plaintifls significant physical limitations from COPD and concluded that het failing condition prevents our agency ftom placing het in employment that can accommodate her limitations. Ms. Bannistet's mental health diagnosis severely limits the types of work and environment in which she can function. Added to the aforementioned, her lack of stamina has made it impossible to place her in gainful employment. u In light of this Court's Recommendation to reverse the decision of the ALJ, it is unnecessaLry to reach the third issue taised by Plaintiff involving Listing 3.021' l2 Çr 325.) In an update on Febtuary 21, 2013, the VR counselot noted that the agency had made futher attempts to place Plaintiff in employment: rX/e placed het in a position with an In-House Progtam to evaluate het abiJity to work given her functional limitations and provided appropriate accommodations. Unfotunately, even in this extremely accommodating envitonment she was unable to be successful. fPlaintiffls] health ptoblems stopped het ftom being able to show up to work as she was too ill. She continues to have chronic Btonchitis and it appears that her immune system is comptomised to the point that she seems to catch cofiunon colds, etc. more often than typical. We have run out of options at this point and continue to reconünend eligibility for social security disability. Çr 326.) Under the Social Security Regulations, opinions of providers who are not consideted medical sources are not binding, but the ALJ must explain the weight given to opinions these non-medical sources and the reasons fot the weight given. argues that the LJ did not even considet the opinions -1¿¿ SSR of 06-03p. Plaintiff of the VR counselor, much less explain any weight given to these opinions and that thetefote the case should be temanded fot proper evaluation of this evidence. temand fot the awatding of benefìts, Because this Court is tecommending reversal and it is not necess^ry to addtess this issue in a detailed fashion. However, under different circumstances, the failure of the ALJ to specifically refet to the Vocational Rehabilitation assessments would waffa.nt temand to the Commissionet fot teconsideration in order to permit the ALJ to consider the Vocational Rehabilitation statement and state what weight, Commi¡¡ioner,699 F.3d if any, the decision played in the .,{LJ's analysis. See 337,343 (4th Cu.201,2) (noting that although anothet Bird u. agency's disability determination is not binding on the SS, such a determination cannot be ignored and must be considered); Il/il¡on u. Coluin, No. 1:11,CV256, 201.4 \Xl, 4274253, 13 ñ x5-6 G\,{.D.N.C. t\ug. 29, 201,4) (in remanding case, court ditects Commissioner to directly address the weight attributable to claimant's rec. adopted, V,t disability rating) (Peake, MJ.) (unpublished) slip op. (À4.D.N.C. Sept. 17, 201.4) (Osteen,Jt.,J) (unpublished); Sags No. 4:11,-CV-1,28-trL, 201,3 VlL 466406, at *4 (E.D.N.C. Feb. 7, 201,3) where ALJ failed to consider V-,\ disability determination because it the Social Security determination) (Flanagan, J.) (unpublished); u. Attrae, (not harmless error may have a beadng on Watsoru u. Astrae, No. 5:08- CV-553-F'L,2009 WL 2423967, at x3 (E.D.N.C. ,\ug. 6,2009) (noting that remand is ptopet where an N,J fails to explain weight given to a state Medicaid decision) flanagan, J.) (unpublished). D. Reversal for Award of Benefits "The decision of whethet to reverse and remand fot benefìts ot teverse and temand for a new headng is one which lies within the sound discretion of the disttict court. Kirþt u. Astrae,880 F. S.rpp. 2d 695,701 (E.D.N.C.201,2) (intemal quotation and citation omitted). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the corect legal standard and when reopening the tecotd for more evidence would serve no purpose." Breeden u. IØeinbergtr,493 F.2d 1002,1.012 (4th ck.1,974). Here, because the ALJ's decision to deny benefits and not fully credit the opinion of Plaintrffs treating physician is not supported by substantial evidence, and reopening the record for additional evidence would serve no purpose, remand for reconsidetation is not necessry. See Meyr-ll/illiams,20"1.5 WL 339631 at t4 x6. .,{.ccotdingly, the Coutt tecommends that the Commissioner's decision finding Plaintiff not disabled be reversed and that the matter be temanded fot the award of benefits V. CONCLUSION Fot the fotegoing reasons, it is RECOMMENDED that Plaintif8s Motion for Judgment Reversing the Commissioner (Docket Ent y 9) be GRANTED, that Defendant's Motion for Summary Judgment (Docket Entry 11) be DENIED. IT IS FURTHER RECOMMENDED that the decision of the AIJ be REVERSED and that this matter REMANDED to the Commissioner for an award of benefits U Dutham, August Noth àl Catolina , zots 15 Webster State s Magistrate J udge be
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