BELTON v. COLVIN, No. 1:2014cv00777 - Document 13 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATIONOF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/24/2015. After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is suppor ted by substantial evidence. Accordingly, this Court RECOMMENDS that Plaintiff's Motion for Judgment Reversing Commissioner (Docket Entry 6 ) be DENIED, Defendant's Motion for Judgment on the Pleadings (Docket Entry 10 ) be GRANTED and the final decision of the Commissioner be upheld.(Taylor, Abby)
Download PDF
<![CDATA[
BELTON v. COLVIN Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA SHARI LYNN BELTON, Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security, ) ) ) ) ) ) ) ) ) |:I4CY777 ) Defendant. ) ) MEMORANDUM OPINION AND R-ECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Shari Lynn Belton, seeks review of a ftnal decision of the Commissioner of Social Secudty denying her claims for social security disability benefìts and supplemental security income. The Coutt has before it the cerified administrative record and ctoss-motions for judgment. I. PROCEDURAL HISTORY Plaintiff filed applications for disability insutance benefìts and supplemental security income in ugust February of 2011 alleging a disability onset date of July 1,2007,later amended to 1,2011. Qr. 62,253-57,259-64,287 ,343.) The applications were denied initially and agatn upon teconsideration. (Id. at 99-100, 147 -48, 1.79-184, 190-207 .) ,\ hearing was then held befote an Administtative LawJudge ("ALJ") at which Plaintiff, her attorney, and vocational expert (1/E') a were presenr. Qd. at 60-98.) On NIay 28, 2013, the ALJ detetmined that Plaintiff was not disabled under the,{.ct. (Id. at46-5S.) OnJuly 12,2014 the Dockets.Justia.com ,\ppeals Council denied Plaintiffls request for review, making the ,{.LJ's determination the Commissioner's final decision fot putposes of teview. (Id. at 1,-6.) II. STANDARD FOR REVIESø The scope of judicial review of the Commissionet's final decision is specific and narrow. Snith determining if u. Schwei,ëer, 795 F.2d 343, 345 (4th Cu. thete is substantial evidence decision. 42U.5.C. $ a05(g); Hanteru. 907 tr.2d 1453,1,456 (4th Cir. 1986). Review is limited to in the record to support the Commissioner's Salliuan,993F.2d31,34 (4th Cir. 1,992); Hals u. 1990). In reviewing for substanial evidence, the Cout Sulliuan, does not te-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissionet. Craigu. Chater,76tr.3d 585, 589 (4th Cir. 1996). The issue before the Cout, therefote, is not whethet Plaintiff is disabled but whethet the Commissionet's fìnding that she is not disabled is suppotted by substantial evidence and was reached based upon a cortect application of the relevant law. Id. III. THE ALJ'S DISCUSSION The,ÀIJ followed the well-establ-ished five-step sequential the claimant is disabled, which is set forth in 20 C.F.R. u. Comm'r of Soc. Sec. Admin., 1.74 SS analysis to ascettain whether 404.1520 and 41,6.920. See Albright tr3d 473, 475 n.2 (4th Cir. 1,999). Here, the ,\IJ frst determined that Plaintiff had not engaged in substantial gainful activity since het alleged onset date. (Id. at 48.) The -dLJ next found that Plaintiff suffered ftom the following severe impairments: bipolar disorder; anxiety disordet; personality disorder; degenerative joint disease; and degenerative disc disease. Qd.) Ät step three, the LJ found that Plaintiff did 2 not have an impairment or combination of impairments that meets ot medically equals one listed in ,\ppendix 1. (Id. at 48-49.) Prior to step four, the ALJ determined Plaintiffls residual functional capacity ("RFC"). (Id. at 49-52.) Based on the evidence as a whole, the LJ determined that Plaintiff retained the RFC to perform a limited range of medium work. Qd. at 49.) Specifically, the ÅLJ futher limited Plaintiff to pefotming only simple, routine, repetitive tasks, with only occasional interaction with others, and without performance of production wotk or fast-paced jobs with deadlines and quotas. (Id. at 49.) t the foutth step, the ,\LJ determined that Plaintiff was unable to perform any past relevant 52.) At step five, the ALJ work. (Id. at determined that, given Plaintiffs age, education, work experience, and RFC, there wete other jobs that Plaintiff could perform, such as linen room attendant, laundry wotket, and marker. (Id. at 53.) Consequently, the LJ determined that Plaintiff was not disabled through the decision date. (Tr. 53-54.) IV. ANALYSIS A. PlaintifPs Treatins Phvsician Plaintiff atgues that the -{LJ's RtrC fìnding is unsupported by substantial evidence because inadequate weight was Entty 7 at affotded to Dt. Dinesh Benjamin's medical opinion. (Docket 8-11. referendngTr. 425-30.) The treating physician rule,20 C.F.R. $$ 404.1527(c), 41,6.927(c), genetally requires an.{LJ to give conttoll-ingweight to the opinion of a tteating source as to the nature and sevedty of a clatmant's impaitment. Yet, a treating source opinion, Iike all medical opinions, must be both well-supported by medical signs and labotatory fìndings and consistent with the othet substantial evidence in the case record. 20 3 C.F.R. SS 404.1.527(c)(2)-(4) and 416.927(c)()-@. "[]f a physician's opinion is not suppoted by clinical evidence ot if it is inconsistent with other substantial evidence, it should beaccotdedsignifìcantlylessweight." Cmig76F.3dat590:'accordMastrou.Apfel,270F.3d171, 1,78 (4th Cir.2001). The .,\IJ's conclusion that Dr. Benjamin's restrictions were inconsistent with the record is supported by substanttal evidence. Qr. 50-52.) First, the ALJ discussed Plaintifls mental health records in detail, including those ftom Dr. Benjamin atCarobraBehavioral Care ("CBC"). (Id.) Dr. Benjamin treated Plaintiff intermittently between Match 2011 and Jznuary 201.3 for a history of bipolar disorder and bordedine personality disotder Gr. 384-94, 401-409,41,1,-24,431,-33) and a history of auditory hallucinations and paranoia (id. at 384, 388, 392,421). Plaintiff had also suuggled with drugs and alcohol. Gt. 384,388,392,421.) Dt. Benjamin ptescdbed Setoquel and, in increasing dosages, it improved Plaintiffs symptoms. (fr. 384, 386, 388, 390,392-93,401.,403-04,406, 408-09,41"1.,41.4,41.7-18,420,423,431.-32.) In May 201.2, Dt. Benjamin completed a medical source statement ("MSS"). (Tr. 425-30.) Specifically, Dr. Benjamin opined that Plaintiff expetienced a "substant:aI loss of abiüty" to tespond appropdately to supervision, co-workers, and usual work situations, and to deal with changes in a toutine work setting. Çr 429.) He futher opined that Plaintiff would only be able to maintain concenttation about 30 minutes and would be off-task more than 20o/o of the time. (Tr. 430.) The LJ explained that he gave the opinion "little weight" because among othet things, he found untemarkable examination Dt. Benjamin's conclusions inconsistent with "several findings." (Tr. 51.) 4 See 20 C.tr.R. $S 404.1,527(c)(4), 41,6.927 (c)(4). Treatment records from CBC duting the relevant period showed that although Plaintiff occasionally complained of symptoms, including irdtability, emotional lability, mood swings, paranoia, and hearing noises Gr. 388, 401,,407,41,5,41,8,421), on most examinations, she was alerta¡d fully oriented, and had normal attention and concentration, no depressive or manic signs, intact thought orgatizalon, and no auditory hallucinations or delusions (id. at 385,402,405,408,412,416,419,422,431.-32). These fìndings supported the LJ's decision not to accord great on controlling weight to Dr. Benjamin's disabiJity opinion. Thete was also an internal inconsistency in Dr. Benjamin's opinion. He found that Plaintiff had moderate diffìculties in social functioning and maintaining concentration, persistence, or pace, but found latet in his MSS that Plaintiff had a substantial loss of ability to perfotm cettain work-related activities, e.g., responding apptoptiately co-workets, and usual wotk situations. (ft. to supervision, 51, 429-30.) Defendant coruectly points out that a substantial loss in ability-meaning that the individual could not perform the patticular activity in tegular, competitive employmsn¡-i5 more severe than is not indicative of a moderate limitation, which disability.l Qr. 429.) Likewise, with regard to concentration, persistence, or pace, Dr. Benjamin's finding of moderate difficulties in this area was inconsistent with his subsequent MSS finding that Plaintiff was restticted to maintaining attention minutes at a ttme and that she would likely be off task mote than 20o/o fot about 30 of the wotkday. (Tr. 429-30.) ,\s stated above, given the mental status fìndings, it was not unreasonable for the tModetate means less than marked. Qr.427.) See 20 C.F.R. pt.404, subpt. P, opp. 1, $ 12.00C (defining "marked" in the B criteria). r\ marked limitation is one where the degree of limitation is such as to interfete setiously with an individual's ability to function independently, apptopnately, effectively, and on a sustained basis. Id. 5 IJ to conclude that modetate limitations were more consistent with the evidence. It was also appropdate for the ALJ to note that Dr. Benjamin's opinion was inconsistent with the sevetal GF scores that he assessed in the mid-50's.2 (Ir. 51, 386,390, 393,403, 406, 409, 413,4'1.7,420,423,431,.) ,\dditionally, the LJ did not tely on the GAF scores alone as indicative of Plaintiffs functioning. (Ir. 51.) Rather, the ALJ ptopedy considered Plaintiff s G.,\F scores in context with the rest of the evidence from Dr. Benjamin in determining what weight to give his MSS. Despite Plaintiffs assertions to the conúarf, Dr. Benjamin's opinion regarding Plaintiffs difficulty maintaining concentration and intetacting apptopdately with others was not consistent v¡ith the opinion from Åpril Harris-Britt, Ph.D., the consultative psychologist. @ocket E.rt y 7 at'1,1 referentingTr.3T0-75.) Dt. Harris-Britt opined that although Plaintiff stuggled with maintaining concentration, persistence, and pace, she was not precluded from undetstanding, retaining, and following instructions and not precluded from perfotming simple, routine, repetitive tasks. Qr. 37a.) Similarþ, while Dr. Harris-Britt opined that Plaintiffs ability to tespond apptoptiately to supervision or interaction with co-wotkers v/as impacted by her symptoms, the doctor also stated that Plaintiff was otherwise self-sufficient in tegatds to het occupational functioning. Çr. 374-75.) Thus, Dr. Hards-Britt's opinion did not infet disability, as did some of the limitations in Dr. Benjamin's report. ,{.dditionally, the ' The G,{.F is a scale ranging from zero to one hundred used to r^te individual's psychological, ^Í7 social, and occupational functioning. See Ãrr.. Psychiatric ssoc, Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") 32-34 (4th Ed., Text Revision 2000). Scotes between 51-60 indicate mocletate symptoms or moclerate difficulties in social, occupad.onal, ot school ftrnctioning. 1rl. Although the tecent edition of the DSM no longet includes the GAF rating fot assessment of mental disotders, the ÀLJ was not precluded from consideting the previously assessed GF scores as opinion evidence. See Emrich u. Coluìn, No. 1:13cv1.01.2, 201.5 WL 867287, at x10 (X{.D.N.C. Mar. 2, 2015) (unpublished). 6 State agency teview psychologist specifically considered Dt. Hattis-Britt's opinion and opined that Plaintiff could maintain attention and concentration to petfotm simple, routine, repetitive tasks and interact with others and take insttuctions ftom a supervisot. (Tt. 105, 108-09,1.54, 157-58.) The ALJ did not er in affording little weight to Dt. Benjamin's opinion. B. The ALJ's Credibility Analysis Plaintiff also asserts that the ALJ materially erred in his analysis of Plaintiffls credibility. (Docket E.rtty 7 at 1.'1.-15; Docket Entry 12 ar 5-7.) Regarding credibility, Craig u. ChaÍer provides a two-part test for evaluating a clatrnant's statements about symptoms. "Fitst, thete must be objective medical evidence showing 'the existence of a medical impairment(s) which tesults from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to ptoduce the pain or other symptoms alleged."' Craigu. Chater,76 F.3d 585, 589 (4th Clr. 1,996) (citing 20 C.F.R. $S 416.929þ) * 404.1,529þ)). If the ,{.LJ determines that such an impairment exists, the second patt of the test then requires him to considet all avatlal:le evidence, including the claimant's statements about pain, in otdet to determine whether the claimant is disabled. Id. at 595-96 (citing 20 C.F.R. SS 416.929(c) and a0a.1,529(c)). While the ,\LJ must considet a claimant's statements and other subjective evidence at step rwo, he need not credit them to the extent they conflict with the objective medical evidence or to the extent that the undedying impairment could not reasonably be expected to cause the symptoms alleged. Id. Where the ,AIJ has considered the televant factots and has heatd the claimant's testimony and observed his demeanor, the 7 A{'s credibility determination is entitled to deference. Shiueþ u. Hec,ëler,739 tr.2d987 ,989 (4th Cir. 1.e84). A recent Fourth Circuit case is also relevant here. In Mascio Clr.201,5), the Fourth Circuit found that an -AIJ erred by using, ^t u. Co/uin,780 F.3d 632 (4th part two of the credibility assessment, "boilerplate" language that "the claimant's statements concerning the intensity, persistence and limiting effects of þs pain] are not credible to the extent they are inconsistent with the above tesidual functional capacity assessment." Id. at 639. This method "'gets things backwatds' by i-plytng that ability to work is determined fìrst and is then used to detetmine the claimant's credibility." Id. (qtottng Bjornson C11. u. Asîrue, 671, F.3d 640, 644-45 (7th 2012)). Instead, "the ,\LJ lin Mastio] should have compared fthe claimant's] alleged functional limitations from pain to the othet evidence in the tecord, not to fthe claimant's] residual functional capactqr." Id. Here, the .,\LJ satisfied the frst step of the credibility inqurry, finding that Plaintiffs medically determinable impafuments could reasonably be expected symptoms. (Ir. 50.) to cause the alleged Next, the ,\LJ stated that "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the teasons explained in this de¿i¡ion." Qd.) To his credit, the,\LJ in this case did not use the same obiectionable "boilerplate" language used in Ma¡do. Consequently, this case is factually distinct fromMastio. Nevertheless, the question of whether the language the,\LJ actually did use is any more adequate than the language used in Mastio is worth considering. This is because courts have chancterized the language used in the.,{IJ's decision here (i.e., "for the 8 reasons explained in this decision") and concluded that sÍanding alone it is meaningless boiletplate akin to the boilerplate used in Ma:ù0.3 Nevetheless, these cases, includtngMasù0, also teach that any error may be rendered harmless. Fot example, in Masciq the Foutth Circuit explained what hatmless ettot looks like, stating that "The,\LJ's errot would be harmless iFhe propetly analyzed credibility elsewhere." Masr.io, 780 F.3d ^t 640. The Fourth Circuit made it clear that an ALJ discharges this obligation when he "explainfs] how he decided which of fthe claimant's] statements to believe and which to discredit." Id. at 6. However, in Ma¡cio the ÅLJ failed to explain himself accordingly, except to make "the vague (and circular) boilerplate statement that he did not believe any claims of limitations beyond what he found when consideting fthe tesidual functional capacity." Id. claimant's] The lack of an explanation required remand. Id. The question hete, then, is whether the IJ sufficiently "explainfs] how he decided which . . . statements to believe and which to disctedit." Id. at 640. To answer this question, an undetstanding of the testimony taken at the hearing, as well as the futher details of the LJ's ctedibility determination, is in order. Plaintif?s Testimony Plaintiff testified hete at considerable length. She worked for fourteen years as a supervisot fot the wotd ptocessing department of alaw firm, which involved hiring, Fring, and 3 4:12-CY-37-D,201,5 WL 21,24773 @,.D.N.C. NIay 6, 201,5) reþort and recommendaÍion adoþted, 4:12-CY-37-D, 2015 WL 41.33720 (E.D.N.C. July B, 2015) (unpublished); Rawlingt u. Coluin, No.3:14cv00159, 2015WL3970608, x9 (S.D. OhioJune 30,201.5) (unpublished); Veløy'o u. Colrin, No. SA CV 14-01,432 F.Z, 2015 WL 1.607796, *1. (C.D. Cal. ,\pril 8, 2015) See, e.g., Brinson u. Coluin, (unpublished). 9 setting the schedule for eight employees. (Tr. 66.) However, Plaintiff further testified that her inability to concentrate, her paranoia, her anxiety, and the side-effects of her medication now rendeted het disabled. More specifically, Plaintiff testifìed that the medicine she took for her mental lll¡ss5ss-Seroquel-"slowed þer] down," sometimes made other persons sound "muffled" to her, made her drowsy, and gave her dry mouth. (Id. at 69.) Plaintiff noted that het dosage of this drug had increased from 50 milligrams to 400 milligtams over 89.) She furthet stated that she heard things that were time. (d. at not there, which she called "hallucinations," such as dootbells, knocks on the door, and sometime voices, including those of het mother ot father. (Id. at70.) She heatd these things both during the day and atnight and it frightened het and, when het auditory hallucinations took place at night, they made it difficult for her to sleep. (d. at71) Plaintiff testified further that het mental illness had also changed her personality, ttiggedng feelings of petsecution þeing "attacked") that lead her to start "screaming fothets] and getting rcally ^ngry but then they tell me what I and saying things, but then did." I at can'tremember later what I said, Qd. at71,-72.) Plaintiff testified that she wakes up feeling "like thete's blood all ovet [h.t]" and that is how she knows she "went into this zngßJ rage." Qd.) Consequendy, Plaintiff-who stated that she has uied friends-testifìed that she tends to stay home because she unsuccessfully to make is afraid that she will lose control over hetself and because her medication does not help with these particular symptoms. (Id. at 72-73,87-88.) Despite this, Plaintiff admitted that 10 she went to "Chdstian meerings" "twice a week" "toheat sermons," but added that she had not "been going regularly lately" because she felt "like there's some conflict there." Qd. at82-83.) Plaintiff also testified that she is in "constantpain" because of a"bad knee," though she did not use a cane because she can "hold ofl to objects" and that the Motrin she took forpain did not limp. (d. at73-74.) She stated help. (Id. at78.) Then Plaintiff testified that she had day long migtaines "every other month" "at one point" and "that's the worst pain ever." (Id. at74.) She testified she could walk a block befote she had to stop and rest and that she could stand fot about fìfteen minutes and sit for about half an hour. (Id. at79.) Plaintiff also testifìed that she did wash clothes because she had a washing machine in het bedtoom, that she does some rathff slow tidying of the house, that she does not cook because she loses concentration and burns the food, and that she likewise loses concenúation while shopping-which she does while leaning on shopping ptocess. (Ir. 81-S4.) Plaintiff ^ c rt-thereby greatly lengthening the expounded on her inability to concentrate, stating that she would begin ptojects-like mailing a letter-but never complete them and that she had a diffìcult time sticking to a schedule, including taking her medication and "being somewhere that [she] sayfs] [she is] going to be." (Id. at 85-83.) The Testimony of Phyllis Ifaymer Phyllis Haymet also testified at the hearing.a (Id. at 89.) She testifìed Plaintiff four to five days a week and agteed with the contents of PlaintifPs testimony to seeing as to her limitations. Qtl.) She added that sometimes Plaintiff forgets to take her medicine entìrely, but that when she takes het medicine she tends to sleep for twelve or more hours afterwards. * Thit analysis also applies to Ms. Haymer's thrrd-party function report. [r.298-305.) 1,1 (Id. at 90.) Ms. Haymet also expounded on Plaintiffs attendance of Chdstian meerings, indicating that "something tdggeted" Plaintiff and that they "basically had to leave" because "it ends up being like an atgument." (Id. ^t 92.) Ms. Haymer further testified that even though she attempted to help Plaintiff, Plaintiff would "turn[] on þer]," that somethingwould "tttgger" Plaintiff, an argument would ensue, that Plaintiff would say and text things in a "tage," and that the next day Plaintiff would rÌot remember what she did. (Id. at92-93.) i. The ALJ's Treatment of PlaintifPs Testimony Here, after noting that Plaintifls alleged symptoms were not entirely ctedible for the reasorLs he would afticulate, the ,{LJ then moved into a discussion of the objective medical evidence' (Id. at 50-52.) The ,å,LJ did not mention any specific restimony from Plaintiff until the end of his RFC analysis, at which point he made the following fìndings: Of particular importance is that the claimant testified to having severe problems sleeping. She said that she hears things that do not allow her to sleep. However, she also stated that the Setoquel makes her drowsy, and her witness, Ms. Haymer, stated that she sleeps 12-15 hours a day. These statements aïe inconsistent. In any event, in Äpril 2013 the claimant denied experiencing any hallucination symptoms. In Åugust, 2012, she told treating providers thar Seroquel was causing daytime sedation, but that it was tolerable. Also of paticular importance is that while the claimant testified to having pain and walking problems, the November 2011 consultative physicai examination rendered no substantially debilitating findings. The foregoing suppons the above assessmerìt. There is no substantial evidence in the record of any medication side effect that would prevent the claimant from petforming work activiry. 1,2 Weight was affotded to the Third Party Function Report and to Ms. Haymer's testimony to the extent that they wete consistent with the above residual functional capaciqr assessment. Qr. s2.) The undersigned agrees with Defendant here that the,\LJ's credibility determination is both susceptible to judicial review and suppoted by substantial evidence. Plaintiff chanctertzes the as to PlaintifPs IJ as doing nothing more than conducting an erroneous credibility analysis difficulties in sleeping. (Docket Enry 7 at 1.4.) But the .,\LJ cleady did more than that, because aftet pointing to Plaintiffls alleged difficulties in sleeping resulting from auditory hallucinations, he pointed further to evidence on the record that in Àpril 2013 the claimant denied experiencing IJ noted too that in .Àugust, daytime sedation, but that PlaintifPs difficulties in it ^ny hallucination symptoms. (r. 52 referencingTr. 398.) The 2012, Plaintiff told treating providers that Seroquel was causing was tolerable. (Id. referenting Tr. 411.) Consequently, as to sleeping, the -ÀLJ specifìcally explained how he decided which Plaintiffs statements to believe. His credibility analysis of in this regard is susceptible to judicial teview and supported by substantial evidence.s Substantial evidence also supports the ,\LJ's decision to only par'jally credit Plaintiffs alÌegations of disttactablity and interpersonal difficulties. Specifically, the ,\LJ pointed to t Pluintiff only appears to be contesting the ALJ's assessment of her alleged mental limitations. The Court notes in passing, however, that the ALJ also discharged his obligation regatding Plaintiffs alleged physical limitations regarding her knee, by aliuding to that testimony and then noting that in November 2011 a consultative physical examination tendered no substantially debilitating findings. (Tt. 51 at 377 -380.) The LJ then tied this finding back to Plaintiff s allegations that she could not wotk because of the alleged side-effects of Seroquel by noung that there is no substantial evidence in the record of any medication side effect that would prevent the claimant from performing work activity. (Tr. 51.) Once again, the ALJ explained why he chose not to fully accept Plaintiffs testìmony and so his decision is susceptible to judicial review and supported by substantial evidence. 1,3 instances whete Plaintiff had self-repotted to her physicians that her mood swings and patanota were well-controlled and that she was feeling better with her medication. (T.. 50-51 citingTr. 388,392, 401., 411; see also Tr 384,386,391,394, 404, 406, 4i.4, 41.8,420,423, The ,{LJ also pointed to tecord evidence demonstrating that Plaintiffs allegations 431.) of a disabling lack of concenttation and an inability to wotk with others were not entitely credible. Fot example, the ,{LJ pointed to the opinion of consultative examiner Dr. Hards-Britt, who opined that although PlaintifFstruggled with maintaining concentration, persistence, and pace, she was not precluded from understanding, retaining, and following instuctions and not ptecluded ftom petfotming simple, routine, repetitive tasks. (fr. 50 referencingTr 374.) Dr. Haruis-Btitt also opined that PlaintifPs ability to respond appropriately to supervision or interaction with co-r,votkers was impacted by her symptoms, but that Plaintiff was otherwise self-suffìcient in regatds to het occupational functioning and minimally self-sufficient socially. Çr 374-75.) State agency review psychologists also specifically considered Dr. Hatds-Bdtt's opinion and opined that Plaintiff could maintatn attention and concentration to perform simple, routine, repetitive tasks and intetact with others and take instructions from supervisor. (fr. a 105, 108-09,154,157-58.) ,Ldditionally, all Plaintiff's credible limitations wete also accounted for the in intetacting with people, e.g., RFC. For example, to the extent that Plaintiff had problems "mild paranoia about otherf']s intentions" (Tt. 374), the ,\LJ limited PlaintifF to only occasional interaction with others (Ir. 49). Likewise, to the extent that Plaintiff had problems with focus and attention and completing tasks, the,\LJ limited her 14 to not only simple, routine, and tepetitive tasks, but also ptovided that Plaintiffwould "need to avoid ptoduction wotk ot similat fast-paced jobs with deadlines and quoras." (td.) These additional limitations directly accounted for problems in stress, attention, and task petsistence. Fot all these reasons, the ÅLJ's ctedibility analysis here is susceptible to judicial review and supported by substantial evidence. ii. The AIJ's Treatment of Ms. Flaymer's Testimony Plaintiff also contends that the ALJ ered in his treatment of Ms. Haymer's testimony. (Docket E.ttty 7 at 1'1-15.) In his decision, as explained in the block quore above, the ,\IJ briefly mentioned Ms. Haymet's statement that Plaintiff slept a considerable amount of time when she took het medicine. Other than that, the ,\LJ analyzed Ms. Haymet's lay witness evidence by stating, 'lX/eight was affotded to the Third Patty Function Report and to þer] testimony to the extent they were consistent with the above residual functional capacity assessment." Qr 52.) The generalapproach to third p^try testimony or statements renders harmless the failute of an IJ to weigh or address the credibility of lay testimony, where the testimony essentially teitetates that claimant's testimony. ó of the claimant, and the ,ttJ ptopedy discredited a Hete, as explained above, the ALJ's credibility analysis was susceptible to judicial teview and suppoted by substantiai evidence. Because Ms. Haymer's 6 See, e¿., Dyda u. Coluin,47 F. Supp. 3d 318, 325-27 (À4.D.N.C. 201,4); Mt(]lothlen u. Astrz.te,No. 7:11-CV-148-RJ,2072WL3647411,at*1.1. (E.D.N.C. t\ug.23,201,2) (unpublished) (finding aÍty errot by the ALJ in evaluating the lay witness opinion to be harmless because the ALJ properþ discred.ited claimant's testimony which was similar to the witness's testimony); Pitta a. Astrae, No. 5:11-CV-356-D, 2012 WL 3524829, at *4 (E.D.N.C. -4ug.1,4, 2012) (unpublished) (frnding no erÍor in the ALJ's considetation of testimony by two lay witnesses where "[t]he LJ's decision ma[de] clear that he evaluated [the lay witness] testimony collectively along with [claimanr's] testimony and that, as a practical matter, he considered thefu testimony to be essentially consistent with [claimant's] testimony"). 15 testimony essentially reiterated PlaintifPs testimony, any error in evaluating the as the application f6¡¡¡ç¡-5sçþ of the objectionable boilerplate language found rn Mailil- was harmless in light of the ,\LJ's sufficient ctedibility analysis of the latter. Put differently, the same reasons given for partially discounting Plaintifls testimony are also relevant, valid, and apphcable as to the pattial discounting of Ms. Haymer's testimony. C. The ALJ's Steo Five Analvsis PlaintifPs also contends that.{LJ relied on flawed VE testimony to fìnd that she could petfotm other jobs that existed in the national economy. (Docket Entty 7 at 1,5-16.) Here, based on VE testimony, the ,\LJ found that there were three jobs Plaintiff could perform: linen toom attendant (reasoning level three, Linen Room ttendant, DOT S 222.387-030, auailable aî 1991WL 672098), laundry worket (reasoning level two, Laundry !Øorker, DOT S at 1991WL 672987), and marker (reasoning level two, Matket, DOT $ 361,.685-01'8 auailable 369.687-026 aaailable at'1,991,WL 673074). flr. 95.) However, even assuming that as Plaintiff contends the LJ erted in adopting VE testimony regarding PlaintifPs abiliry to work as a linen room attendant because a reasoning level of thtee is inconsistent with the performance of simple, routine, repetitive tasks, the error was hatmless. This is because the VE also testifìed that between the occupations of laundry wotker and marker, there existed approximately 21,000 jobs in the national economy and no fewet than 700 in the state economy. (Tt. 95.) These two jobs ^Íe ^treasoning ate consistent with Plaintiffls ability to perform simple, routine, repetitive See, e.g., Green u. Colain, work. (Tr. 95.) No. 1:10CV561, 2013 wL 3206114, at xs-9 O{.D.N.C. 16 level two and J:une 24,201,3) (unpublished), repoø and retvmrnendation adopted,201,3 WL 4811.705 O4.D.N.C. Sept. 9, 2013) (unpublished). This evidence thus provided sufficient support for the ,\LJ's conclusion that Plaintiff could make a successful adjustment to other work that existed in significant numbers in the national economy. See, 0.!., Hicþ; u. Califano,600 F.2d 1,048,1051 n. 2 (4th Cu. 1,979) (110 lobs constitute a significant number). .,{ny error here was harmless. D. The Appeals Council Finally, Plaintiff argues that the ,Lppeals Council erred in not consideting a MSS from Dt. ndteaTaylo1 dated December 1.3,201,3, submitted LJ's decision. (Docket Entty 7 at 4-7 referenting Tr. to the ,\ppeals Council after the 25-29; Docket E.ttty 12 at 1,-5.) Specifically, PlaintifF asserts that Dr. Taylot's opinion related back to her mental condition prior to the,\LJ's decision and, therefore, was "new and matedal" evidence waranting review by the Appeals Council. @ocket Ent y 7 at 5.) The -{ppeals Council must consider evidence submitted by a claimantwith the request fot teview if the additional evidence is (a) new, (b) material, and (c) relates to the period on or befote the date of the .{LJ's decision. ll/il,Qiru¡ u. Sec)t, Dep't of Health dz Haman Serut.,953 93,95-96 (4th Cit. 1991);20 C.F.R. $S F .2d 404.976(b)(1), 41,6.1476þ)('t). Evidence is new if it is not duplicative ot cumulative, and matertal tf there is a "teasoî ble possibility that the new evidence would have changed the outcome oFthe case." IYilkin¡,953 F.2d at96. "ff]h. Åppeals Council must considet new and material evidence relating to that period pdor to the ALJ decision in determining whethet to grant review, even though it may ultimately decline review." Id. at 95. The ,\ppeals Council need not review or consider new evidence that 17 relates only to a time pedod after the,\LJ issues his decision. See 20 C.F.R. S 416.1,476(bX1). In this case, in petinent part, the,\ppeals Council "looked at" Dr. Taylor's MSS, and attached treatment notes, and concluded that they were new information about a later time and, thetefore, did not affect the decision as to whether Plaintiff was disabled on or before May 28,2013, the date of the ,\IJ's decision. Gt.2,25-35.) The Appeals Council, rherefore, found no basis for granting PlaintifPs request for review and did nor receive this additional infotmation in the record.T (Id. at 1,6.) Dr. Taylor's repoft is as follows. She identified Plaintiffs impairments as bipolar disorder and bordetline petsonality disorder and described Plaintifls symptoms. She checked Çr. 25.) off boxes indicating that PlaintifPs mental impai-rments affected her ability to maintain attention and concenttation for extended periods, would tikely take her off-task more than 20o/o of the wotkday, would prevent here from completing a workday or workweek without the interruption of her symptoms, and would affect her ability to interact with other people in a workplace, including the general public and supervisors. t Wh.te, [r.25-27.) Dt. Taylor as here, the Appeals Council declines to accept additional evidence, some courts ln this appeal of that issue under "sentence slr"7 of 42 U.S.C. S 405G), rathet than "sentence four." See,^n Bart¡ a. Co/vin, No. 4:13-CY-23,2014wL 366L097, *9 (\ø.D.va. JuIy 22,2014) e.s., (unpubhshed) (collecting cases). As explained above, the sentence four factors are thatthe evidence must be (a) new, þ) material, and (c) related to the pedod on or before the date of the LJ's decision. IWil,kins,953 F.2d93,95-96. The sentence six factots are that the evidence (a) must be relevant to the deternination of disability at the time the application was first filed; þ) the evidence must be material to the extent that the Commissionet's decision might reasonably have been different had the new evidence been before her; (c) there must be good cause for the claimant's failure to submit the evidence when the claim was befote the Commissioner; and (d) the claimant must make at least a general showing of the natute of the new evidence to the reviewing court. See, eg., Do//-Carpenrer u. Comm\, 4:71-cv-28, 2012 WL 5464956, at *4 ('\ü/.D.Va, May 7, 201,2) (unpublishecl) (citing Miller u. Barnhørt,64 Fed. App'* 858, 859 (4th Cir. 2003)). The Cout need not resolve the issue of which test applies here because, given their ovedapplng nature, particularþ on materiality, th" result is ultimately circuit tle t the same. 18 also checked off activities within boxes indicating that PlaintifF would be unable a to consistendy perform schedule, maintain regular attendance, and be punctual and appropriately with the ordinary stresses of regular work to deal activity. Çr.28.) Dr. Taylor opined that these symptoms and ümitations applied since at least February 1, 2011 (Plaintiffs amended alleged onset date of disabiJity). Qd.) Plaintiff argues that the Àppeals Council ered in concluding that Dr. Taylor's report was information about a later time because Dr. Taylor indicated that her responses applied since at least Febru^ry 1,201.1. (Ir. 28.) a report is not necessarily dispositive Defendant, in turn, contends that while the date of whether it relates to the relevant period, :ee Bird Comm'r of Soc. Set., 699 F.3d 337, 341 (4th Ck. 201,2), it cannot be assumed that Dr. of u. Taylor's December 2013 opinion related to the relevant pedod given coflr.ary evidence. In support, Defendant notes that Dr. Taylor did not begin treating Plaintiff until October 201.3, months aftet the ,\IJ's decision (fr. 30) when Dr. Taylor replaced Dr. Benjamin. Qr Ftve 384-94, 40'I-409, 41,1-24,431,-333.) Defendant concludes that thete is no indication that Dr. Taylot reviewed the records ftom Dt. Benjamin as far back as February 1,2011. Thus, Defendant reasons, the ppeals Council reasonably concluded that the report was about a later time. The Court concludes that any effor here is hatmless. This is because, even Taylor's repott related to the relevant period, her report is not new or matelrral. "new" because It if Dr. was not it is cumulative of evidence existing in the record and considered by the ALJ. The recotd akeady contained a similar MSS ftom Dr. Benjamin Gr. 425-30) so Dr. Taylot's "rìew" MSS did not offet additional insight into Plaintiffs mental status. Qr. 51-52.) T9 Nor was Dr. Taylor's report m^terial. The severity of the limitations that were identified in Dr. Taylor's questionnaire were inconsistent with other evidence in the record, described in considerable detail throughout this Recommendation, including the mental status findings from CBC and the generally consistent GAF scotes of 55. Qr. 384-94,395-424, 431-35.) Dr. Taylor's opinion was also inconsistent with het own examination report in Octobet 201.3, in which she indicated that Plaintiff had normal attention and concentration. flr. 33.) .{s stated above, the ALJ had befote him Dr. Benjamin's similar MSS and afforded it little weight because he found it inconsistent with the clinical fìndings. Çr. 51-52.) Given the similarity of the opinions, and their similar shortcomings, the undetsigned can see no possibility that Dr. Taylor's report would have changed the ALJ's decision. The repott and treatment notes are neithet new not matenal. Plaintiff objects to this conclusion, asserting that it results from aftet-the-fact gap filling by the Commissioner. pocket E.rtry 12 at 1,-5.) The Coutt does not agree. First, tathet raionalzation, the Cout than seeing this as an instance of impermissible þost-hoc ^gency instead views this as PlaintifPs failure to meet her burden of demonstrating that the evidence in question meets the elements of the relevant inquiry and thetefore Second, the ppeals Council does not need to explain its teason ÀLJ's decision. Meyr u. requires a remand. fot denying review of an Astrue, 662 F.3d 700,702 (4th Cir. 201,1). Given this, and the fact that the evidence in question is not even part of the administrative record (Tr. 5), it would be unreasonable to estop the Commissioner from pointing out what the Court can easily see for itself, and which it has reasoned to independently; that is, that 20 Dr. Taylor's MSS and supporting documents are cumulative and immaterial. Third, other courts within the Fourth Circuit have likewise declined to remand in similar ciïcumstances.s Any etrot is harmless. V. CONCLUSION After a careful consideration of the evidence of tecord, the Cowt fìnds that Commissioner's decision the is suppoted by substantial evidence. Accotdingly, this Coutt RECOMMENDS that Plaintiffs Motion for Judgment Reversing Commissionet (Docket Entty 6) be DENIED, Defendant's Motion forJudgment on the Pleadings (Docket Entry 10) be GRANTED and the final decision of the Commissionet be upheld. e August $, tu zOrS States Magistrate Judge Action No. 6:13-2907-TMC, 201,5 Vrry- 628504, *2, 4-5 (D.S.C. Feb. 1,2,201,5) (unpublished) (rejecting the atgument that it would be a post hoc tationabzatton for "a magistrate judge [to] determine whethet [a medical] Questionnafue would affect the decision of the AIJ"); Saunders u. Coluin, No. 5:12-CV-775-D, 2074 WL 1057024, at *7 (E.D.N.C. Mar. 1'7, 201'4) (unpublished) (detetmining that a mentalimpairment questionnaite submitted to the Appeals Council was not new because the doctor based her questionnaire resPonses on her eadier treatment of the cla:tmant, and those treatment notes were alrcady contained in the tecord and considered by the AL); Mallo1t u. Co/uin, 1:1,0-cv-420, 2013 WL 2747681., at x5 (l\{.D.N.C. May 16, 201,3) (unpublished), 8 See, e¿., Il/illians u. Colrin, Civil recomnendation adopnd, slip op. (X{.D.N.C. July 10, 2013) (unpublished). 21.
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
