United States District Court, W.D. North Carolina
DANNY C. MARTIN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
J. Conrad, Jr. United States District Judge
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
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).
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
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.
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
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).
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).
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).
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 were made to complete the record and
issued his decision on the current evidence of record.
(Id. at 17).
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,
(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 ...