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Gregory v. Berryhill

United States District Court, E.D. North Carolina, Western Division

September 20, 2017

KRISTEANIEN THREATT GREGORY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on the parties' cross motions for judgment on the pleadings. (DE 11, 17). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert T. Numbers, II, entered memorandum and recommendation (“M&R”), wherein it is recommended that the court deny plaintiff's motion, grant defendant's motion, and affirm defendant's decision. Plaintiff timely filed objections to the M&R, and the issues raised are ripe for ruling. For the reasons that follow, the court declines to follow the recommendation of the magistrate judge, grants plaintiff's motion to remand, and denies defendant's motion for judgment on the pleadings.

         BACKGROUND

         On April 20, 2012, plaintiff protectively filed an application for a period of disability and disability insurance benefits, alleging disability beginning May 1, 2010. The application was denied initially and upon reconsideration. Plaintiff filed a request for hearing before an administrative law judge (“ALJ”), who, after a November 20, 2014, hearing, denied plaintiff's claims by decision entered December 17, 2014. Following the ALJ's denial of her application, plaintiff timely filed a request for review, and the Appeals Council denied plaintiff's request for review, leaving the ALJ's decision as defendant's final decision. Plaintiff then filed a complaint in this court on May 23, 2016, seeking review of defendant's decision.

         COURT'S DISCUSSION

         A. Standard of Review

         The court has jurisdiction under 42 U.S.C. § 405(g) to review defendant's final decision denying benefits. The court must uphold the factual findings of the ALJ “if they are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence [is] . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). The standard is met by “more than a mere scintilla of evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). In reviewing for substantial evidence, the court is not to “re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for defendant's. Craig, 76 F.3d at 589.

         “A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, ” including “a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). An ALJ's decision must “include a narrative discussion describing how the evidence supports each conclusion, ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)), and an ALJ “must build an accurate and logical bridge from the evidence to his conclusion.” Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).

         To assist it in its review of defendant's denial of benefits, the court may “designate a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and recommendations for the disposition [of the motions for judgment on the pleadings].” See 28 U.S.C. § 636(b)(1)(B). The parties may object to the magistrate judge's findings and recommendations, and the court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. § 636(b)(1). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         The ALJ's determination of eligibility for Social Security benefits involves a five-step sequential evaluation process, which asks whether:

(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a medical impairment (or combination of impairments) that are severe; (3) the claimant's medical impairment meets or exceeds the severity of one of the impairments listed in [the regulations]; (4) the claimant can perform [his or her] past relevant work; and (5) the claimant can perform other specified types of work.

Johnson v. Barnhart, 434 F.3d 650, 653 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

         In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since May 1, 2010. At step two, the ALJ found that plaintiff had the following severe impairments: bipolar disorder, post traumatic stress disorder, and borderline intellectual functioning. However, at step three, the ALJ further determined that these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listings in the regulations.

         Before proceeding to step four, the ALJ determined that during the relevant time period plaintiff had the residual functional capacity (“RFC”) to perform a limited range of medium work, in that plaintiff needs to avoid concentrated exposure to pulmonary irritants such as fumes, odors, dust, gases, and poor ventilation; she is limited to frequent handling, fingering, and feeling with both upper extremities; she can perform “no more than simple routine repetitive tasks involving no more than simple work related decisions with few work related decisions and few work place changes”; and she is limited to occupations which require no more than occasional interaction with co-employees and supervisors and no interaction with the public. (Tr. 23). At step four, the ALJ concluded plaintiff was unable to perform any past relevant work as a collection clerk, head bank teller, or cosmetologist. However, at step five, upon considering plaintiff's age, education, work experience, and RFC, as well as testimony of a vocational expert (“VE”), the ALJ concluded that jobs exist in significant numbers in the national economy that plaintiff could perform such as laundry cleaner, laundry worker, and machine feeder. Thus, the ALJ concluded that plaintiff was not disabled under the terms of the Social Security Act.

         B. Analysis

         Plaintiff argues that the magistrate judge incorrectly determined that 1) substantial evidence supports the weight given by the ALJ to the medical opinion evidence; 2) the ALJ properly accounted for plaintiff's limitations in his hypothetical presented to the VE; and 3) the new evidence before the Appeals Council is not “new” and therefore remand is not warranted. The court addresses each argument in turn below.

         1. Weight of Medical Opinions

         Regardless of the source, the ALJ must evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(c); 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide “a detailed, longitudinal picture” of a claimant's alleged disability, than non-treating sources, such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2). Though the opinion of a treating physician is generally entitled to “great weight, ” the ALJ is not required to give it “controlling weight.” Craig, 76 F.3d at 590. In fact, “if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight.” Id.; see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992) (stating “[t]he ALJ may choose to give less weight to the testimony of a treating physician if there is persuasive contrary evidence”); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (explaining “the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence”) (citation omitted).

         If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all the medical opinions of record, taking into account the following non-exclusive list: 1) whether the physician has examined the applicant, 2) the treatment relationship between the physician and the applicant, 3) the supportability of the physician's opinion, 4) the consistency of the opinion with the record, (5) whether the physician is a specialist, and 6) any other relevant factors. Johnson, 434 F.3d at 654 (citation omitted).

         To aid in the court's analysis, below is a summary of pertinent medical opinions ...


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