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Martin v. Berryhill

United States District Court, W.D. North Carolina

October 2, 2017

DANNY C. MARTIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER comes before the Court on Plaintiff's Motion for Summary Judgment, (Doc. No. 11); Plaintiff's Memorandum in Support, (Doc. No. 12); Defendant's Motion for Summary Judgment, (Doc. No. 14); and Defendant's Memorandum in Support, (Doc. No. 15). The motions are ripe for adjudication.

         I. BACKGROUND

         A. Procedural Background

         Danny C. Martin (“Plaintiff”) seeks judicial review of Nancy A. Berryhill's (“Defendant” or “Commissioner”) denial of his social security claim. Plaintiff filed an application under Title II for a period of disability and disability insurance benefits on April 25, 2012, alleging an onset date of July 22, 2009. (Doc. Nos. 10 to 10-19: Administrative Record (“Tr.”) at 277-282, 283-288). His applications were denied first on September 5, 2012, and again on October 29, 2012 upon reconsideration. (Tr. 174, 184). Plaintiff filed a timely request for a hearing on November 5, 2012 (Tr. 202), and an administrative hearing was held by an administrative law judge (“ALJ”) for the Social Security Administration on March 3, 2014, during which Plaintiff was represented by the first of three different attorneys. (Tr. 70-116).

         During this first hearing, the ALJ found a lack of medical proof of disability and agreed, at Plaintiff's request, to order two consultative exams (“CE”). (Tr. 112). The ALJ explained to Plaintiff that he could not decide the case based solely on his testimony. (Id.). Plaintiff, Plaintiff's attorney, and the ALJ agreed the record did not clearly indicate what impairment caused the Plaintiff's symptoms. (Id. at 114). Thus, the Plaintiff agreed to the CEs and would secure records from his treating doctors, which the Commissioner noted would be helpful in this decision-making process. (Id. at 112-114).

         On September 15, 2014, the ALJ held a second hearing, (Id. at 35), during which the Plaintiff was represented by his second of three attorneys. At this hearing the ALJ took the Plaintiff's testimony, as well as the testimony of the vocational expert (“VE”). (Id. at 35-69). Following this hearing, the ALJ found that the Plaintiff was not disabled from July 22, 2009, through the date of the decision. (Id. at 27). The Plaintiff requested a review of the ALJ's decision on December 15, 2014, but on February 5, 2016, the Appeals Council denied the request, therefore finalizing the Commissioner's decision. (Id. at 1-4, 12). See C.F.R. §§ 404.981, 416.1481.

         Plaintiff exhausted his administrative remedies and this case is now before the Court for disposition of the parties' cross-motions for summary judgment. Plaintiff's Motion for Summary Judgment, (Doc. No. 11), and Plaintiff's Memorandum in Support, (Doc. No. 12), were filed on August 22, 2016. Defendant's Motion for Summary Judgment, (Doc. No. 14) and Memorandum in Support, (Doc. No. 15), were filed on October 24, 2017. Plaintiff did not file a response to the Defendant's motion for Summary Judgment and the time for doing so has passed. The pending motions are ripe for adjudication.

         B. Factual Background

         Plaintiff alleges that his disability began on July 22, 2009. (Tr. 279). At the first administrative hearing on March 3, 2014, the ALJ asked Plaintiff if he had made any effort to obtain a medical source statement from any of his treating physicians. (Id. at 74). Plaintiff's attorney responded, “The issue that we have is some … of the issues are still kind of up in the air as far as the doctor's opinion as to maybe what's causing them…” (Id.). In response, the ALJ kept the record open for two weeks following the hearing and requested that Plaintiff's attorney retrieve the opinions of Plaintiff's treating physicians regarding Plaintiff's conditions and functioning. (Id. at 75). Additionally, at this same hearing Plaintiff's attorney requested two CEs, including one with a neurologist. (Id. at 10). The ALJ granted this request stating that it would help in this decision. (Id. at 75, 112-14). At the close of the hearing on March 3, 2014, the ALJ determined that a decision would be premature because he could not decide Plaintiff's case solely on his testimony. (Id. at 111).

         The record shows that the ALJ ordered a CE performed by Albert Whitaker, Jr., M.D., which the Plaintiff completed on April 1, 2014. (Id. at 906-11). At the beginning of the second hearing held on September 15, 2014, the ALJ asked whether Plaintiff tried to obtain any medical source statements from treating physicians. Plaintiff responded, “No, sir, not that I'm aware of.” (Id. at 40). Still lacking the requested medical opinions, the ALJ noted that once he had all of the information from the performed CE, plus any additional information the Plaintiff's attorney submitted, he may or may not hold a supplemental hearing. (Id. at 115).

         In his decision, the ALJ reviewed Dr. Whitaker's CE report and afforded great weight to it because Dr. Whitaker was deemed an acceptable medical authority. (Id. at 23-25). The CE's credibility increased further when Plaintiff testified that Dr. Whitaker spent approximately an hour with him, resulting in what Plaintiff felt was a thorough examination. (Id. at 25, 44-45). Plaintiff has not challenged the Commissioner's findings related to Dr. Whitaker's report. (Doc. No. 15 at 11).

         The ALJ did order the second CE in the form of a neurological exam. However, because no examining source was located within a reasonable distance, and because the provider that was an hour away and only scheduled appointments at 9:15 AM, the neurological CE was never scheduled. (Id. at 16-17, 421). On June 27, 2014, Plaintiff's attorney requested that the ALJ reschedule the neurological exam. No response was given. (Id. at 17, 425). Nevertheless, Plaintiff's attorney did not raise the issue during the second hearing held on September 15, 2014. Nor did Plaintiff's attorney renew the request or make any objection to the evidence of record. (Id. at 17, 425). Consequently, the ALJ found that reasonable efforts[1] were made to complete the record and issued his decision on the current evidence of record. (Id. at 17).

         The Social Security Administration has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:

(1) whether claimant is engaged in substantial gainful activity-if yes, not disabled;
(2) whether claimant has a severe medically determinable physical or mental impairment, or combination of impairments that meet the duration requirement in § 404.1509-if no, not disabled;
(3) whether claimant has an impairment or combination of impairments that meets or medically equals one of the listings in appendix 1 and meets the ...

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