TOMS v. COLVIN, No. 1:2010cv00856 - Document 20 (M.D.N.C. 2014)

Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRAE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 02/07/2014; that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 12 ) be DENIED, Defendant's Motion for Judgment on the Pleadings (Docket Entry 18 ) be GRANTED and the final decision of the Commissioner be upheld. (Garland, Leah)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA MOLLIE TOMS, Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:10cv856 MEMORà NDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Mollie Toms, btought this action pursuant to Section 205(g) of the Social Security Act (the "Act"), as amended (42 U.S.C. $ 405(9), to obtain review of a fìnal decision of the Commissioner of Social Secutity denying her claims for a Period of Disability ("POD") and Disability Insurance Benefìts ("DIB') under Title II of the Act.1 The Court has before it the cenifìed administtative tecord and cross-motions for judgment. I. PROCEDURAL HISTORY Plaintiff protectively filed an application fot alleging a disabiJity oriset date ofJune a 2,2005. (Ir. POD and DIB on Match '12,2007 10, 105-108.)2 The application was denied initially and again upon teconsideration. (Id. at 44-45, 46-49, 56-62.) Plaintiff then 1 Carolyn Sà . Colvin became the Acting Commissioner of Social Security on February 74, 2013. Putsuant to Rule 25(d) of the Fedetal Rules of Civil Procedute, Catolyn \)à . Colvin should be substituted for Michael J. Astrue as Defendant in this suit. No futther action need be t¿ken to continue this suit by teason of the last sentence of section 205(g) of the Act, 42 U.S.C. S 405 (g). 2 Transcrþt citations refer to the administrative record. requested aheanngbefote an à dministtative LawJudge 5,2010 headng were Plaintiff, her ^t20-42.) ^ttorfley, ("ALJ"). (Id. at 65.) ,A.t her mothe4 ar'd a vocational expert theJanuary ('1/E"). Qd. The,\LJ determined that Plaintiff was not disabled under the à ct. (Id. at7-1,9.) Plaintiff requested that the Appeals Council review the ALJ's decision and also submitted new Council. (Id. at 4-5.) On September 15, 2010 the à ppeals Council evidence to the Appeals denied PlaintifPs request fot teview, making the .,{IJ's determination the Commissioner's final decision fot purposes of review. (Id. at 1,-4.) II. FACTUAL BACKGROUND Plaintiff was 41 years old on the alleged disability onset date. (Id. at 1,7.) She had at least a high school education and was able to communicate in III. STANDARD English. (Id. at 1,5.) FOR REVIEW The Commissionet held that Plaintiff was not under a disability within the meaning the of ,\ct. Under 42 U.S.C. $ a05(g), the scope of judicial teview of the Commissionet's final decision is specific and natrow. Smith u. Schweiker,795 tr.2d 343,345 (4th Cir. 1936). This Coutt's review of that decision is limited to determining whether there is substantial evidence in the tecotd to support the Commissioner's decision. 42U.5.C. $ a05(g); Hanteru. Salliuan, 993 F.2d 31, 34 (4th Cir. 1,992); Hay u. Salliuan, 907 tr.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "such televant evidence as a reasorìable mind might accept as adequate to support a conclusio î." Hxlnter, 993 F .2d at 34 (cittng Nchardson u. Pera/es,402 U.S. 389 , 401, It of mote than a mete scintilla" "but may be somewhat less than a (1,971)). "consists prepondet^nce." Id. (Eto:J;ng l-,aws u. Celebre77e, 368 2 F.2d 640, 642 (4th Cir. 1.966)). The Commissionet must make fìndings of fact and resolve conflicts in the evidence. Hqt,907 F.2dat1456 (citing Kingu. Calfan0,599F.2d597,599 (4th Cir. 1,979)). The Court does not conduct a de novo review Schweiker,795 F.2d ^t of the evidence not of the Commissioner's 345. In reviewing fot findings. substantial evidence, the Coutt does not undetake to re-weigh conflicting evidence, to make credibiJity determinations, or to substitute its judgment for that of the Commissioner. Craig u. Chater, 7 6 F.3d 585, 589 (4th Cir. 1,996) (citing HoJt,907 F.2d at 1,456). 'lX/hete conflicting evidence allows reasonable minds to diffet as to whether a clarnant is disabled, the responsibility for that decision falls on the [Commissioner] (ot the [Commissionet's] desþate, the,{.LJ)." C*tS76F.3d Walker u. Bowen, 834 F.2d 635, 640 (7th Cit. 1987)). The denial only See if no reasorìable mind could accept the tecotd Nchardson u. Pera/es,402 U.S. 389,401. as adequate (1971). The at 589 (quoting of benefits will be reversed to support the determination. issue before the Coutt, thetefore, is not whethet Plaintiff is disabled, but whethet the Commissioner's finding that Ptaintiff is not disabled is supported by substantial application of the relevant law. See evidence and was teached based upon a coffect id.; Cofrnan u. Bowen, 829 tr.2d 51.4, 517 (4th Cir. 19S7). IV. THE ALJ'S DISCUSSION The Social Secudty Regulations defìne "disability" for the purpose of obtaining disability benefìts as the "inabiJity to do any substantial gainful activity by reason of any medically detetminable physical ot mental impaitment3 which can be expected to result in death ot which has lasted or can be expected to last for a continuous period of not less than 12 3 A "physical or mental impairment" is an impairment tesulting from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42U.5.C. S 423 (dX3) . J months." 20 C.F.R. S 404.1505 (a); see also 42 U.S.C. S 423(dX1Xà . To meet this definition, a clatrnant must have a sevete impairment which makes it impossible to do previous work or any other substantial gainful acivítya that exists 404.1505(a); see also 42U.5.C. S A. The Commissioner follows is disabled, which is set 1,7 'Và hether 'Và hethet The Five-Step Sequential Analysis a five-step sequential analysis to ascertain whethet the claimant SeeAlbrighta. Comm'rof Soc. Sec. Admin., Cr' 1,999). The AIJ must determine in sequence: the claimant is engaged in substanial gainful activity (i.e.,whethet the clatrnant is Q) 423(dX2Xà . foth in 20 C.F.R. S 404.1520. 4 F .3d 47 3 , 47 5 n.2 (4th (1) in the national economy. 20 C.F.R. S wotking). If so, the claimant is not disabled and the inquiry ends. the claimant has a severe impairment. If not, then the claimant is not disabled and the inquiry ends. (3) \)à hethet the impairment meets or equals 404, Subpat P, à ppendix 1, which sets to medical cdteda of 20 C.F.R., Pat foth a list of impaitments thatwanant finding of disability without considedng vocational ctiteria. If a so, the claimant zi disabled and the inquiry is halted. (4) Whethet the impairment prevents the cluma¡t ftom performing past relevant work. If not, the claimant is not disabled and the inquiry o is halted. "substantial gainful activity" is work that (1) involves performing significant or productive physical ot mental duties, and Q) is done (or intended) for pay or profit. 20 C.F.R. S 404. 1 51 0. 4 (5) Whether the claimant is able to perform any other work considedng both her residual functional capacitys and het vocational abilities. If so, the claimant is not disabled. 20 c.F.R. S 404.1s20. Here, the AIJ frst determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date ofJun e 2, 2005. Qr. at 12) two that PlaintifPs depression was a severe impairment. (Id.) The ALJ next found in step ,A.t step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to, one listed in à ppendix 1. Qd. at was unable to petfotm any past relevant 1,3.) At step four, the ALJ concluded that Plaintiff wotk. (Id. at 1,7 .) At step five, the ALJ determined that considedng Plaintiffs age, education, wotk expetience, and RFC, there were jobs in the national economy that the clatmantcould B. perfom. (Id. at1.8.) Residual Functional Capacity Determination Pdot to step four, the AIJ detetmined Plaintiffs RFC based on his evaluation of the evidence, including Plaintiffs testimony and the findings of tteating and examining health care ptovidets. Qd. at 1,5-1,7.) Based on the evidence as a whole, the -ALJ detetmined that Plaintiff retained the RFC to petfotm a full tange of work at all exertional levels, but was also limited to simple, toutine, tepetitive tasks with short simple instructions, few work place 5 "Residual functional czpaciLy" is the most aclaímantcan do in work setting despite the physical and (e¿., pan). See 20 C.F.R. S 404.1545(z)(1); see also Hines u Barnhart, 453 F.3d 559, 562 (4th Cir. 2006). The RFC includes both a "physical exertional or strength limitation" that assesses the claimant's "abiJity to do sedentary, light, medium, heav!, or very heavy work," as well as "nonexertion¿l limitations (mental, sensory or skin impairments)." Ha// a. Harris,658tr.2d260,265 (4th Cir. 1981). mental limitations a of her impairment and any related symptom 5 decisions ot changes, only occasional intetactions with public and co-wotkers, and only frequent interactions with supervisors. (Id. at 15.) C. Past Relevant Work The ALJ found in step fout that Plaintiff was not capable of performing past televant work as a fundraiset, child monitor, and shipping and receiving D. clerk. (Id. at 17 .) Adjustment to Other Work The claimant beats the initial burden of ptoving the existence of a disability. 42U.5.C. S 423(dX5);20 C.F.R. S 404.1.51,2; Snitlt u. Calfano,592F.2d1235,1.236 (4thC11.1,979). Once the claimant has established at step four that she cannot do any work she has done in the past because of her severe impairments, the burden shifts to the Commissioîer atstep five to show that jobs exist in significant numbets in the national economy which the claimant could petform consistent with het RFC, at35; If,/ilson u. Calfan0,61,7 age, education, and past work expedence . Hønter,993 F.2d F.2d 1050, 1053 (4th Cir. 1980). Flere, the AIJ found that given Plaintiffs age, education, wotk expetience, and RFC, there were other jobs existing in signifìcant numbets in the national economy that she could perform such as a fliral mall carrier,laundry laborer, and hand packager Qd. at1,8.) V. ANALYSIS Plaintiff essentially taises five issues. First, she contends that the AIJ "etred in faiJing to find that the clatmant is disabled under Listing 12.04." pocket E.rtry 75 at 1,2.) Second, Plaintiff atgues that à LJ did not ptopetly physician. (Id. ^t assess the evidence ftom Dt. Post, a tteattng 1,0-1,1.) Third, she asserts that the 6 AIJ's ctedibility evaluation is unsupported by substantial evidence. Qd. at 8-10.) Foutth, Plaintiff maintains that the ALJ's step five fìnding is unsuppoted by substantial evidence. (Id. Appeals Council etred in declining to review the A. A{'s at9.) Last, she argues that the decision. Qd. at 1,1-1,2.) The Listings Plaintiff contends the,A.LJ ened in not concluding that pocket Enry 1.5 at 12.) she met the crrteriaof Listing 12.04. Specifically, Plaintiff contends: The claimant meets both the A and B cdteria of ìisting 12.04. The claimant has a loss of intetestin all activities. This is chancterized throughout the recotd and in the claimant's testimony as spending sevetal days in bed (I. 30, 360). Thete is also sleep distwbance, decreased energy, and difficulty in concenttating. She has matked resúictions in social functioning (I. 350-64). She will not talk on the telephone to people u/ho had been ftiends. (I. 36). She has not maintained past friendships. G. 36). There are days that she is so depressed that she cannot go to therapy. G. 227). She also expetienced matked difficulties in concentration and petsistence (I 359-64). She cannot rcad secondary to the decreased concenttation. G.197). She rarely starts a task. (I. 36). If she does statt a task, she does not finish it. Id. These limitations meet the A and B cdteria of listing 1,2.04 entitling the claimant to benefits. The decision should be reversed and the benefits pteviously denied should be awarded. (Docket Enry 15 at 12.) Plaintiff contends that she has satisfied Listing 12.04, Affective Disorders, because has shown that A andB, as set forth below, are satisfied: The tequired level of severity for these disordets is met when the tequitements in both A and B are satisfied . . 7 she A. Medically documented persistence, eithet continuous or intermittent, of one of the following: 1. Depressive syndrome characteà zed by at least four of the following: a. ,A.nhedotia activities; ot ot pervasive loss of interest in almost all b. Appetite disturbance with change in weight; or c. Sleep distutbance; or d. Psychomotor agitatton or retardation; or e. Decreased energy; or f. Feelings of guilt or worthlessness; or g. Diffìculty concentrating or thinking; or h. Thoughts of suicide; or i. Hallucinations, delusions, or paranoid thinking; ot 2. Mantc syndrome chancterized by at least three of the following: a. Hyrcr.activity; or b. Pressute of speech; or c. Flight of ideas; ot d. Inflated self-esteem; or e. Decreased need for sleep; or f. Easy distractibiliy; or g. Involvement in activities that have a high probability I of painful consequences which are îottecognized; or h. Hallucinations, delusions or paranoid thinking; of 3. Bipolat syndrome with a history of episodic periods manifested by the full symptomatic pictute of both manic and depressive syndtomes (and current)y characterized by either ot both syndromes); ,q.ND B. Resulting in at least two of the following: 1,. Marked testriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Matked difficulties in maintaining concenúation, petsistence, or pace; or 4. Repeated episodes of decompensation, each ot extended duration 20 C.F.R. Pt.404, Subpt. P, App. 1, S 12.04(,\)-(B).u Plaintiff has failed to point to evidence that makes out these required showings of "marked" functional limitations or decompensation history or risk, andfor inability to 6 To quali$' as "marked," a limittdton must "interfere seriously with [one's] ability to function independently, apptopriately, effectively, and on a sustained basis." 20 C.F.R. Pt. 404, Subpt. P, App. 1, S 12.00(C). Decompensation refets to "an exacerbadon in symptoms or sþs that would ordinarily tequire increased treatment or a less sttessful situation (or a combination of the two)." 20 C.F.R. il. 404, Subpt. P, App. 1, S 12.00(C)(4). Repeated periods of decompensation ¿re measured on a fout-point scale using the desþation "[n]one, one or two, three and four or more." 20 C.F.R. S 404.1520a(c)(4). Repeated periods of decompensation, each for extended duradons, requires "three episodes within 7 yeat, or of once evety 4 months, each lasting fot at Ieast 2 weeks." 20 ^fl 1, 12.00(c) C.F.R. pt 404, subpt P, app. ^vet^ge (4). *If fPlaintiffl experienced more frequent episodes of $ shottet duration or less frequent episodes of longer duration, [the à LJ] must use judgment to detetmine if the dumtion and functional effects of the episodes are of equal severity and may be used to substitute for the listed finding in a determination of equivalence." Id. 9 maintain an independent existence. Qocket Entty 1,5 at1.2.) In in teaching his conclusions, the ALJ consideted PlaintifPs activities of daily living; social functioning; concentration, petsistence ot p^ce; and any episodes of decompensation. tegarding activities of daily living, the à LJ concluded Qr (Ir. 13-15.) Specifically, 13-14) that Petitioner had mild restrictions, reasoning that despite Plaintifls testimony that she did not attend to her petsonal hygiene, often spends sevetal days in bed, and relies on het mother to drive her to her doctor's appointments, (1) Plaintiff appeated at the hearing appropnately groomed and that she had been dtessed and gtoomed at the February 27,2008 consultative psychological examination (id. at1,93), Q) Plaintiff was able to attend regular doctor's appointments and managed to keep thity-fìve appointments over an eighteen month pedod with her psychologist (3) Qd. at227-29), Plaintiffs consultative psychological examination in Febtuary 2008 revealed that Plaintiffs activities of daily living (including cleaning, shopping, cooking, maintaining a tesidence, and taking public transportation) wete done at het own initiative Qd. at 195-199). The ALJ also tejected the DDS teview psychologist's opinion of moderate limitations in this categoty ^tthe teconsideration level (id. at242-255), but the ALJ's finding was consistent with the opinion the DDS teview psychologist finding of mild resttictions at the initial level (id. t In detuiling the reasons of ^t206-219).1 why Plaintiff only had mild restrictions in activities of daily living, the ALJ stated that "the claimant is able to attend regular doctor's appointments and managed to keep 35 appointments over an 18-month pedod with her psychologist Cynthia L. Post." (Tr. 13 citing 227-29.) The à LJ also assetts that "there is limited evidence of treatment for this condit.ott" (i.e., Plaintiffs depression) and that Dt. Post's treatment notes indicate that Plaintiff "sought therapy 77 times in the coutse of 8 months." Qd. at 1,5.) Plaintiff contends that this amounts to a contradiction in the ALJ's findings. (Docket Entry 1.5 at9.) As noted above, there are only a few pages of Dr. Post's tteatment notes in the tecord. Two of those pages detail what transpired during eleven meetings between Plaintiff and Dt. Post. (Ir. at 190-91.) There are no additional treatment notes fiom Dt. Post in the recotd, howevet, there is a statemeflt by Dr. Post alluding to many additional treatments. (Id. at 227.) Howevet, there is no additional evidence in the record detailing what 10 The ALJ next concluded that Plaintiff had modetate difficulties in social functioning. Qd. at 14.) The ALJ pointed out that Plaintiff difficulties with het living arrangement. resides with her parents and teports no (Id.) The ALJ pointed further to the testimony of Plaintiffs mothet, who tepotted no difficulties with Plaintiffs living arrangement. Qd. referencing Tt. 35-38.) Plaintiffs mother testified furthet that Plaintiff no longer socialized with friends, and has been unable to maintain friendships other than with one couple, but that even that relationship had suffeted because Plaintiff could only maintatn a relalonship with them via email. Qd.) The ALJ noted too that his finding of modetate consistent with the opinions of the DDS reviewing psychologists. social functioning was (d. crtng 252,216.) Next, the ,AtJ concluded that Plaintiff had moderate difficulties with concentration, petsistence, or pace. concentrate enough Qr at 1,4.) The AIJ noted that Plaintiff testified that she could not to tead the papet ot watch a television show. (Id. referencing 31.) Plaintiffs mother testified that Plaintiff :øiely engaged in activities and is usually unable to complete them. Qd. referencing 36.) The AIJ noted, however, that Plaintiff was able to follow the ptoceedings without difficulty and responded apptopdately to questioning for period of apptoximately fìfteen minutes without ^ppelrerft difficulties and that the finding of moderate difficulties in this category was consistent with the DDS review psychologists. ^t 206-219, 242-255.) Finally, the decompensation ALJ concluded that thete were no of an extended dutation. Qd. a episodes Qd. of at 1,4.) Thus, because PlaintifPs mental impairment did not cause at least two "marked" limitations or one "marked" limitation and transpfued during those visits. This does not strike the undersþed as a conftadiction. However, even assuming it did, the "contradiction" would not alter the ultimate recornmendation set forth below error would ultimately be harmless. ^s ^ny 1,1, "repeated" episodes of decompensation of an extended duration, the "paragtaph B" crtteria u/ere not satisfied. Qd.) Upon review of the entire tecord, the undetsigned concludes that the ALJ's detetmination that Plaintiff had not met or medically equaled the criteria of Listing 12.04 ts suppotted by substantial evidence. à s Defendant corecdy points out (DocketF,ntry"l.9 at 6-7),inteaching this conclusion, the ALJ telied upon the opinions of state agency psychologist Dt. C.B. Moore, Psy. D., and state agency psychological consultant W.\ù7. à lbetson, Ed. D., who teviewed the tecotd and concluded that at most Plaintiff only had moderate limitations à r. L4, 206-21.9, 242-55.) These doctots and consultants are experts in the evaluation of medical issues in disability claims under the .,\ct, whose opinions must be consideted by the à LJ to the extent they are consistent with the recotd. 20 C.F.R. 404.1,527 (à ; Social Security Ruling ("SSR'), 96-6p,199617L 3741.80,at*2. The opinionof anon-examiningpsychologist can constitute substanttal evidence in support of the ALJ's decision where, as here, it consistentwiththetecord. Smithu.Schweicker,791F.2d343,345-46 (4thCir. 1986); is Cordorua. Schweiker,72s tr.2d 231, 235 (4th Cir. 1984) Moteover, the undersigned agrees with Defendant that where medical evidence ftom examining or tteating sources is conflictirig, an A{'s detetmination orl the side of the non-examining physician should stand. Gordon,725 F.2d at 235. While Plaintiff submitted an opinion from a "current tteating physician" (Docket uncleat whether this is ^rr ^ccLtr^te Enry 1,5 at 1,1), Dr. R. Nene, it is desctiption of the telationship between Dt. Nene and Plaintiff (It.358-65). The opinion ftomDt. Nene dated-,\pril 1,4,20'l,0,whichwas submitted 1,2 after the ALJ's decision was issued on March 19,20'l,0,is the only evidence of treatment in the tecord from the physician. SeeMitchellu. Schweiker,699F.2d 185, 187 (4th Cir. 1983) ("While the Secretary is not bound by the opinion of a claknant's tteating physician, that opinion is entitled to great weight for it reflects an expert judgment based on a continuing observation the patient's condition over a ptolonged pedod of tirr,e."); 20 C.F.R. of 404.1,527(d)Q) ("Genetally, we give more weight to opinions ftom your ffeating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal pictute of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone ot from reports of individual examinations, such as consultative examinations ot brief hospitalizations.'). In (fr. any event, Dt. Nene concluded that Plaintiff had matked and extreme limitations 358-65), however, het opiniorì was not suppoted by clinical findings and is inconsistent with the State agency opinions. See20 C.tr.R. 404.1.527(d)(2) (concluding that the à IJ will give controlling weight to the opinion of a tteains source regarding the nature and sevedty of anknparment if it is well supported by medically acceptable clinical andlaboratory diagnostic techniques and not inconsistent with othet substantial evidence in the case record) F.3d at 590 ('F]f a physician's opinion is not supported by clinical . evidence CraigT6 ot if it is inconsistent with other substantial evidence, it should be accotded signifìcantly less weight."); accord Mastro,270 F.3d 171,,1,78 (4th Cir. 2001). Consequently, even had the ALJ seen Dr. Nene's report, he likely would have rejected it as being unsupported by objective medical evidence and at odds with the state agency opinions. 13 B. The Treating Physician Rule Plaintiff next argues that the to .A{ erred in concluding that there was no treating source considet, because the medical opinion of Dt. Post is entitled to controlling weight. (Docket Etttty 15 at 10-11.) The "tteating physiciân rule,"8 20 C.F.R. S 404.1,527(dX2) genetally ptovides mote weight to the opinion of a tteains source, because detailed, longitudinal picture it may "ptovide a of [the claimant's] medical impairmentþ) [which] may bring a unique perspective to the medical evidence." 20 C.F.R. S 404.1,527(dX2)., But not all treating sources ate cteated equal. An ALJ refusing to accord controlling weight to the medical opinion of a tteattng physician must considet vatious "factots" to determine how much weight to give it. Id. S 404.1.527 (d)Q)-6). These factors include: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ü) the evidence in suppoît of the úeating physician's opinion; (rü) the consistency of the opinion with the tecord as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administtation's attention that tend to support or contradict the opinion. Id. 8 Effective Match 26, 2072, a rcgriatory change renumbered, but did not impact the substantive language of, the treating physician rule. 77 Fed. Reg. 10651 -10657 @eb. 23,201.2). Given that all matenal events in this action ptecede this nominal regulatory change, this Opinion and Recommendation will make use of the pte-March 26,2012 cttattons. o SSR 96-2p provides that "Controllingweightmay ttotbe given to a tteatjngsouà ce's medical opinion unless the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques." SSR 96-2p, GiuingControllingl%etght to TreatingSource Medical Opinions. However, where "a tteating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case tecord, it must be given controlling weight." Id. SSR 96-5p provides frrrther that"úeaflng source opinions on issues reserved to the Commissiolter never entitled to controlling ^re weight or special significance." SSR 96-5p, Medical Source Opinions on Issues Reseraed to the Commissioner. Flowever, "opinions from any medical sorüce about issues resewed to the Commissioner must never be þored, and. .. the nodce of the determination or decision must explain the consideration given to the treating source's opinion(s)." 1/. 14 Significantly, as subsections (2) through (4) of the de desctibe in gteat detail, atre tà rg source's opinion, like all medical opinions, must be both well-supported by medical signs and laboratory findings as well as consistent with the other substantial evidence in the case tecotd. Id. S 404.1,527 (d)Q)-@. "Flf a physician's opinion it is inconsistent with othet substantial evidence, is not supported by clinical evidence ot it should be accotded significandy weight." Cmig 76 F.3d at 590; accord Mastro ,. Qrt[ 270 at 1,78. Opinions by if less physicians tegarding the ultimate issue of whether a plainttff is disabled within the meaning of the Act never receive conttolling weight because the decision on that issue temains for the Commissioner alone. 20 C.F.R. $ aOa.1527(e). Flete, after the ALJ rendered his decision, Plaintiff submitted a letter from a licensed psychologist, Dr. Cynthia Post, who wrote the following on December 5,2007: Ms. Toms is curendy suffeting from deptession. The symptoms she is curently expetiencing include anhedonia, helplessness, hopelessness, crying easily and suicidal ideation. ,{.dditionaliy, she is having touble concenttating and completing tasks. These symptoms are making it difficult fot her to wotk at this time. Recendy, she began experiencing numbness. This combine with all the other physical ptoblems have led het to become increasingly deptessed and she is often unable to get out of bed as [a] result of it. In my clinical opinion, the chroninty [sic] of both het depression and physical problems make it likely that she will be in need of long-term disability. Qr. 4, 1,84.) Two the pages of Dr. Post's treatment notes are also in the tecotd and wete befote ALJ. Qr. at 1,90-91,.) In support of het argument, Plaintiff points to a pottion of one treatment note fot the ptoposition that Plaintiff was unable to focus or leave bed for extended periods. (Docket Entty 15 at 10 citing Tr at 1.90.) Plaintiff points futthet to a number of 15 other pottions of the tecord containing testimony and medical tecotds, contending that these references are consistent'ürith Dr. Post's conclusions. Q)ocket 19 5, 1.97, 226, and E.rry '1,5 at 1.0-1."1. citing Tr. 27 4.) It does not appear that Dr. Posts' Decembet 5,2007 note was before the AIJ prior to his rendedng of the March 1,9, 201,0 decision. à r. 4, 1,84.) Nevettheless, there are good reasons to believe that had the ,{IJ considered the letter along with Dr. Post's treatment notes, they would not have prompted the ALJ to change the disposition set forth in his decision. This is because Dt. Post's opinion is internally inconsistent, addresses mattets teserved to the ALJ, and is inconsistent with other substantial evidence on the recotd. Fitst, Dt. Post's treatment notes from September 2007 maintain that Plaintiff was "involved in something meaningful fot her and feeling physically able to do it . . . was . . . ovetall feeling bettet when she's busy [and] . . . . doing things in spite of pain. (ft. 191.) As of November 1.2,2007,Dr. Post noted that Plaintiff was "doing better." Qd.) As Defendant conecdy points out (Docket E.rry Second, 1,9 at9) these findings are inconsistent with a fìnding of total disabiJity. Dt. Post's conclusion that Plaintiff would likely "be in need of long-tetm disability" strays into ateas reserved for the ALJ. -,\s noted above, opinions by physicians regarding the ultimate issue of whether a plainttff is disabled within the meaning of the à ct never teceive conttolling weight because the decision Commissioner on that issue temains for the alone. 20 C.F.R. $ 404.1527(e). Finally, in addition to being internally inconsistent and addressing matters teserved inconsistent with othet substantial evidence for the ALJ, Dr. Post's evaluation is also of tecotd, such as the state agency opinions 16 concluding that she was not totally disabled. Consequently, even if the ALJ was able to view Dt. Post's lettet opinion, thete is no teason to believe that it would have been úforded any special significance. C. Credibility Plaintiff asserts that the ,{IJ's credibiJity evaluation is unsupported by substantial evidence. (Docket E.rtty 15 at 8-10.) The Fourth Cfucuit Coutt of Appeals has adopted two-step process by which the requires the a AIJ must evaluate a clatmant's symptoms. The first step AIJ to determine if the plainuffls medically documented impafuments could teasonably be expected to cause plaintiffs alleged symptoms. Cmig76 F.3d at 594. The second step includes an evaluation of subjective evidence, considering claimant's "statements about the intensity, petsistence, and limiting effects of fclatmant's] symptoms." Id. at 595 (citing 20 C.F.R. SS 416.929GX4) and 404.1.529(c)@.) "The ALJ must considet the following: (1) a claimant's testimony and other statements concerning pain ot other subjective complaints; Q) claknant's medical history andlaboratory findings; (3) any objective medical evidence of pain; and (4) any other evidence televant to the severity of the impairment." Crubb1,201,0WL 5553677, at x3 (citing CraigT6 F.3d at 595;20 C.F'.R. $ 404.1529(c).) "Other evidence" refers to factors such as claimant's daily activities, duration and ftequency of pain,tteatrnent othet than medication received for telief of symptoms, andany other measures used to relieve claimant's alleged pain. Id. Moreover, SSR 96-8p requires that: The adjudicator must consider all allegattons of physical and mental limitations ot resttictions and make every teasonable effott to ensure that the fi.le contains sufficient evidence to assess RFC. Careful considetation must be given to any avatlable information about symptoms because subjective desctiptions 17 mây indicate more severe limitations or testtictions than can be shown by objective medical evidence alone. SSR 96-8p , 1996 \Xil, 37 41,84, *5. Similady, in determining the ctedibility of a claknant, SSR 96-7p, instructs the ALJ to "consider the entire case record" and tequites a ctedibiJity detetmination to "contain specific teasorìs fot the finding on ctedibility, suppoted by the evidence in the case record[.]" SSR 96-7p, 1996 WL 374186, at x4. Importantly, an ALJ's ctedibility detetmination is also entitled to "substantial deference." Saye u. Chater, NO 95-3080, 1,997 WL 232305, atxl (4th Cir. May 8,'1,997) (unpublished); Saþers u. Chater,No. 96-2030,1.997 WL71704, at x1 (4th Cir. Feb. 20,1,991) (unpublished) Flete, the ALJ performed both steps of the analysis. First, the ALJ completed step one, concluding that the "claimant's medically determinable impairments could teasonably be expected to cause the alleged symptoms." (Tr. analysis, concluding 17.) Next, the ALJ completed step two of the Plaintiffs statemerits regarding "intensity, petsistence, and limiting effects of þet] symptoms [were] not credible to the extent they are inconsistent with" het RFC. The -ALJ continued his analysis concluding: In terms of the claimant's alleged impairments, the undetsigned finds that het statements regarding the persistence and limiting effects of het impairments ctedible, yet unpersuasive. The claimant has not alleged any side effects from het medication. She has not been hospitalized for any acute episodes of deptession. She has not expetienced periods of ^ny decompensation fot extended periods of time. The claimant was able to testi$r and adequately follow the proceedings without any repotted difficulties, a task considered stressful, tending to belie the limited nature of her deptession. The undetsigned fìnds that the statements of the claimant's mother were also credible but unpersuasive. Neithet the claimant not het mother tepotted any side effects to medication. 18 (Id.) Neither tepotted any hospitahzaions for any acute episodes of depression. Futhet, the claimant's own testimony and ability to function at the hearing evidence a highet level of functioning than alleged. à s fot the opinion evidence, no treating source has offered an opinion in this case. Therefore, the underslgned has accorded considerable werght to the opinions of the DDS review psychologists that the claimant retains the ability to conduct simple routine tepetitive tasks with some difficulty with interactions with othets. In sum, the above residual functional capacíty assessment is suppoted by the opinions of the DDS review physicians . . . and the medical evidence of tecord. (Id.) Flete, aftet reviewing all the evidence of tecotd, the subjective statements tegarding het limitations due unpersuasive." (Id.) The AtJ to AIJ detetmined that Plaintiffs depression were "credible, yet essentially incorporated into his analysis his eadier observation that despite allegations of disabling depression, Plaintiff presented very limited evidence of treatment fot the impaitment CIr. 15). The medical evidence regarding mental health treatment consisted of four pages of treatment notes, a one-page sufiìmary of treatment, and the report of the consultative psychological examination. See Mickles u. Shalala,29 tr.3d 918, 930 (4th Cir. 1994) ("At unexplained inconsistency between the claimant's chancterization of the severity of het condition and the treatment she sought to alleviate that condition is highly ptobative of the claimant's ctedibility."). The ALJ also pointed out that Plaintiff did not allege side effects from medication, had not been hospitahzed for any acute episodes of deptession, and had not expetience d any pedods of decompensation for extended 19 periods of time. 20 C.F.R. 404.1529(c)(3); SSR 96-7p. Plaintiff does not addtess these findings, but instead-c r:ìng Jenkins a. Sølliuan, 906 tr .2d 107, 108 (4th Cir. 1990)-argues that the hearing wete observations of Plaintiffs demeanot at the improper. (Docket Entty 15 at 8.) It is true that the Fourth Circuit Court of -,{.ppeals has tejected decision-making. 5553677 , at A!'s See "sit and squirm" Jen,ëins u. ^s a proper method fot judicial ot administrative Sølliuaa,906 F.2d 107, 108 (4th Cir. 1990), Grubb1,2010 nà L *3 n.6. The regulations also ptovide that in "instances in which the adjudicatot has observed the individual, the adjudicator is not ftee to accept or teject the individual's complaints solely on the basis of such petsonal observations, but should considet any petsonal observations in the ovetall evaluation of the credibility of the individual's statements." SSR 96-7p, 1,996 WL 374"1.86, at x 8. weighing in on Plaintiffs demeanor, set forth above.lo Regardless F{ete, even assuming the ^ny AIJ sttayed by impermissibly eftor is harmless given the evidence and lack theteof of the abovementioned demeanor, there is substantial evidence on the tecotd statements regarding Plaintiffs in suppott of the ,{IJ's ctedibility detetmination. In other wotds, thete is no reason to believe that but fot the presumed error, this case would tesolve diffetently. 10 Srr, e¿., Shrewsbury u. Chater, No. 94-2235, 1995 'ùøL 592236, at x5 (4th Cir. Oct. 6, 1gg5) (unpublished) ('[]t is not tevetsible error for an ALJ to consider a claimant's demeanor when he has akeady determined that the claimant's alleged level of pain is inconsistent with the objective medical evidence."); Coþeland u. Brown,1989 !øL 90545, at *3 (4th Cir. 1989) (unpublished) (concluding that it wâs error for the ALJ to conclude in his decision that "the undetsþed has had the oþportunity to observe the claimant at the hearing whete his attention was unimpaited," but that the error was harmless in light of other "objective evidence that the claimant's pain, though perhaps sometimes severe, was not debilitating:'); Parkeru. Coluin, No. 1:10-CV-650, 2073WL 4671765, *8 (1\4.D.N.C. Aug. 30, 2013) (concluding that it was not error for the ALJ to find in his decision that the claimant "had no diffrculty testi$ring whatsoevet [and] [t]here were no apparent concentration deficits" where the ALJ did not exclusively tely on his observations of Plaintiff at the headng in discounting her credibiliry). 20 D. The Appeals Council Plaintiff next contends that the ALJ's decision should be teversed and remanded so that the mental tesidual functional capacity evaluation of Dr. Nene-v/hich Plaintiff submitted aftet the ALJ's decision but before the Appeals Council denied Plaintiffs request for futthet lsvis\à /-çan be considered. (It. 4,358-65, Docket E.rtty 1,5 at1,1,-1,2.) Mote specifically, Plaintiff contends: Claimant's cuffent treating physician, Dr. Nene, has completed a mental tesidual functional capacity evaluation which confirms the claimant's severe limitations from depression. The clatrnant has extteme limitation in het ability to complete a normal wotkday due to het inabiJity to get out of bed because of het deptession fot days at a :JLme. (T. 360.) She also has extreme limitation in het ability to attend a task over an eight hout day. (I. 136). She has markedimpairmentin her abilityto follow detailed instructions; function independently; maintain continuous petformance to complete a task; and in her ability to tolerate customary work place stress. G. 359-64.) She has modetate limitation in her ability to follow work procedures; accept supervision; intetact appropriately with the public; exercise apptoptiate judgment and propedy complete sequential tasks without supervision. (Id.) Dt. Nene also finds that claimant has not been able to function outside a highly supportive living envfuonmerìt over the last two years. G.364.) The doctot also finds that fPlaintiffl would detetiotate undet stress. (Id.) The evidence is consistent with the opinion of Dt. Post. The decision should be ovetturned so this evidence may be properþ considered. @ocket Entty 1.5 at'1,1,-1,2.) The.Appeals Council must considet evidence submitted by a claknantwith the request for review "if the additional evidence is (a) new, þ) matedal, and (c) relates to the petiod orì or 21 befote the date of the ALJ's decision." V/ilkins u. SecJ4 Dept. ofHeahlt dyHuman Sers.,953F.2d 93,95-96 (4th Cir. 1,991). Evidence is new if it is not duplicative or cumulative, and matenalif there is "a teasoà r ble possibility that the new evidence would have changed the outcome the case." Id. at96. "fih. ,{ppeals Council must consider new and material evidence relating to the pedod pdor to the ALJ decision in determining whether to grant teview, even though may ultimately decline review." Id. at 95. FIowever, the à ppeals Council explain its reason for denying review of an ALJ decision. Meyr (4th Cir. 201,1). An AIJ of u. it does not need to Astrae, 662 F.3d 700,705 may discount a tteatne physician's opinion if it is not well-suppotted by medically acceptable clinical and laboratory diagnostic techniques. SSR 96-2p, 1.996 WL 3741.88, at*1.; Mastro,270 F.3d at 1,78. Here, the Appeals Council received Dt. Nene's mental tesidual functional capacity evaluation aftet the ALJ tendeted his decision. (It. 4.) It then made the evaluation pat of the tecord, but declined to teview the ALJ's decision, noting that the "additional evidence" submitted did "not provide a basis for changing the [ALJ'.] decision. (Id. at 2, 4.) ,\s explained, the opinion is not supported by any findings or clinical evidence and is contrary to the conclusions of the state agency psychologists. It would thus be entitled to little weight. Consequently, the decision of the Appeals Counsel is suppotted by substantial evidence and thete is no reason to believe that had the ALJ consideted this new evidence, he would have reached a different conclusion as to whether Plaintiff was disabled under the Act. E. Step Five Finally, Plaintiff contends that the ,{IJ ered in determining 22 that she had moderate limitations in concentration, persistence , and pace, but then failing to ask the VE to consider hypothetical individual with these moderate restrictions. (Docket Entty '1,5 a at 9-10.) The ALJ did conclude that Plaintiff had moderate testtictions in concentation, persistence, and pace. Qr 1,4-1,5.) Yet, based on the conclusions of state âgency consultants, the ALJ accounted fot PlaintifPs moderate testrictions by limiting Plaintiff to simple, routine, repetitive tasks with shott, simple instructions, few wotk place decisions or changes, only occasional intetactions with public co-wotkers, and only frequent interactions with supervisors. (Id. at 1,5,206-222,242-254.) Consequently, the ALJ asked the VE to consider a hypothetical with these resffictions. (Id. at 40.) .As Defendant correctly points out (Docket Entry L9 at 1,2) an ALJ's findings regarding the B Critena are only televant to the issues of whethet Plaintiff has a severe impaitment and whether het condition was equivalent to any of the impairments that are listed in ,\ppendix 282909, ú*2 A of the tegulations. See Furst u. Cornm's of Social Securiry,2000 WL (6th Cir. Mar. 13,2000); SSR 96-8p,1996\X/'I- 3741.84, atx4 à ,.1y 2,1,996). Moreover, in questioning a VE in a Social Security disability headng, an ALJ must ptopound hypothetical questions that accourit for all of the claimant's limitations. Il/alker Bowen,889 tr.2d 47,50-51, (4th Cit. 19S9). F{owevet, "[t]here is no obligation ... u. to ttansfer the fìndings [from a mental impairment report] verbatim to the hypothetical questions." Yoho a. ComrzissionerofSoc. Jee., No. 98-1,684,1998 WL 91171.9,at*3 (4thCir. Dec. 31.,1,998). as a hypothetical adequately encompasses the effects suffices. See id.; accord Cox u. So long of a claimant's mental limitations, it Astrae, 495 tr.3d 61.4, 620 (Sth Cir.2007) (hotding that proper hypothetical questions need only capture "the concrete consequences 23 of a clatrnant's deficiencies"). Hete, the ,tLJ accounted for PlaintifPs moderate resttictions by limiting Plaintiff to simple, routine, tepetitive tasks with short, simple instructions, few work place decisions ot changes, only occasional interactions with public and co-workets, and only frequent intetactions with supervisots. There is no reversible erot hete. Haw/ry u. Astrae, No. 1:09CV246,201,2WL 1268475, at *7 (à 4.D.N.C. Apr 16,201,2) ("fflh. restriction to unskilled, simple, toutine, tepetitive tasks and limited interaction with others adequately accounted fot Plaintifls intellectual deficit and problems with concenttation, persistence, and pace, in light of the evidence that Plaintiff canperfoffi such two-hour blocks, wotkday typically.') 1 ^s ^r'teight-hour 1 VI. CONCLUSION After a carefil considetation of the evidence of record, the Court fìnds that Commissioner's decision the is supported by substantial evidence. ,\ccordingly, this Coun RECOMMENDS that Plaintiffs Motion fotJudgment on the Pleadings (DocketBntty 1,2) be DENIED, Defendant's Motion fot Judgment on the Pleadings (Docket Entry 18) be GRANTED and the final decision of the Commissioner be upheld. L 1ï¡d¡steL Stutcs Mt¡gstmt*Juclp Durham, North Caroltna Febtuary 7,201,4 tt In support of this argument, Plaintiff cit es O'Connor-spinner a. Astrue, 627 F .3d 674, 679-20 (7th Cir. 201,0). However, the Seventh Cfucuit's decision in that case is distinguishable in that the errot there lay n the ALJ's failure to include in the hypothetical a modetate limitation on concentration, persistence, or pace explicitly included in the RFC assessmerit. (Id. at 617 -20.) 24

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