United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
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.
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
Standard of Review
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.
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)).
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).
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).
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.
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.
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
Weight of Medical Opinions
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).
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).
in the court's analysis, below is a summary of pertinent
medical opinions ...