United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM & ORDER
T. Numbers, II United States Magistrate Judge.
James Hicks Pittman, Jr., instituted this action on October
20, 2016, to challenge the denial of his application for
social security income. Pittman claims that Administrative
Law Judge (“ALJ”) Carl B. Watson erred in (1)
evaluating the medical opinion evidence, (2) failing to
properly explain his rationale at each step of the sequential
analysis, and (3) considering Pittman's diabetes. Both
Pittman and Defendant Nancy A. Berryhill, the Acting
Commissioner of Social Security, have filed motions seeking a
judgment on the pleadings in their favor. D.E. 20, 32.
reviewing the parties' arguments, the court has
determined that ALJ Watson reached the appropriate decision.
Substantial evidence supports his evaluation of the medical
opinion evidence and his consideration of Pittman's
impairments, including his diabetes. The court also finds
that ALJ Watson properly set forth his reasoning at each step
of the sequential analysis. Therefore, the court denies
Pittman's motion, grants Berryhill's motion, and
affirms the Commissioner's decision.
October 10, 2012, Pittman protectively filed an application
for disability benefits alleging a disability that began on
July 15, 2010. After his claim was denied at the initial
level and upon reconsideration, Pittman appeared before ALJ
Watson via video conference for a hearing to determine
whether he was entitled to benefits. ALJ Watson determined
Pittman was not entitled to benefits because he was not
disabled. Tr. at 14-23.
Watson found that Pittman had the following severe
impairments: diabetes with neuropathy, alcoholic liver
disease, and pancreatic insufficiency. Id. at 16.
ALJ Watson found that Pittman's impairments, either alone
or in combination, did not meet or equal a Listing
impairment. Id. at 18. ALJ Watson then determined
that Pittman had the RFC to perform a range of light work
with additional limitations. Id. He cannot climb
ladders, ropes, or scaffolds but he can occasionally climb
ramps and stairs. Id. He must also avoid working
around unprotected heights or hazardous machinery.
Id. ALJ Watson concluded that Pittman was capable of
performing his past relevant work as chemist. Id. at
22. Thus, ALJ Watson found that Pittman was not disabled.
unsuccessfully seeking review by the Appeals Council, Pittman
commenced this action on October 20, 2016. D.E. 1.
Standard for Review of the Acting Commissioner's Final
social security claimant appeals a final decision of the
Commissioner, the district court's review is limited to
the determination of whether, based on the entire
administrative record, there is substantial evidence to
support the Commissioner's findings. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971). Substantial evidence is defined as “evidence
which a reasoning mind would accept as sufficient to support
a particular conclusion.” Shively v. Heckler,
739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the
Commissioner's decision is supported by such evidence, it
must be affirmed. Smith v. Chater, 99 F.3d 635, 638
(4th Cir. 1996).
Standard for Evaluating Disability
making a disability determination, the ALJ engages in a five
step evaluation process. 20 C.F.R. § 404.1520; see
Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The
analysis requires the ALJ to consider the following
enumerated factors sequentially. At step one, if the claimant
is currently engaged in substantial gainful activity, the
claim is denied. At step two, the claim is denied if the
claimant does not have a severe impairment or combination of
impairments significantly limiting him or her from performing
basic work activities. At step three, the claimant's
impairment is compared to those in the Listing of
Impairments. See 20 C.F.R. Part 404, Subpart P, App.
1. If the impairment is cited in the Listing of Impairments
or if it is equivalent to a listed impairment, disability is
conclusively presumed. However, if the claimant's
impairment does not meet or equal a listed impairment, the
ALJ assesses the claimant's RFC to determine, at step
four, whether he can perform his past work despite his
impairments. If the claimant cannot perform past relevant
work, the analysis moves on to step five: establishing
whether the claimant, based on his age, work experience, and
RFC can perform other substantial gainful work. The burden of
proof is on the claimant for the first four steps of this
inquiry, but shifts to the Commissioner at the fifth step.
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
is a diabetic who has been insulin-dependent for
approximately 20 years. Tr. at 44. Katy Robinette, PA-C, of
Wilmington Gastroenterology saw Pittman in March 2012 for
abdominal cramping and alcoholic hepatitis. Id. at
321. She noted mild hepatic encephalopathy with asterixis and
mild jaundice, and she suspected pancreatic dysfunction.
Id. at 322. Robinette advised Pittman to abstain
from alcohol. Id. Testing the following month showed
mild portal gastropathy, mild antritis, and internal
hemorrhoids. Id. at 299. He returned to Wilmington
Gastroenterology the following month for abdominal pain,
diarrhea, and alcoholic liver disease. Id. at 317.
Pittman reported that he had stopped drinking and that he
walked for 40 minutes, four times per week. Id. at
318. An examination noted normal findings aside from mild
jaundice and a slightly enlarged liver. Id. at
Peter Morris performed a consultative examination on March
30, 2013. Id. at 360-64. The examination yielded
generally normal findings except for a slightly slow and
antalgic gait, decreased sensation in the feet, and slight
difficulties with the heel, toe, and tandem walking.
Id. at 362-63. Dr. Morris's diagnoses included
diabetes mellitus with diabetic neuropathy in both feet,
abdominal complaints possibly related to alcoholic liver
disease and pancreatic dysfunction, and a history of alcohol
abuse. Id. He opined that Pittman could perform the
exertional requirements associated with light work but that
he should not work around heights. Id. at 363.
next month, Dr. Gregory Johnson performed a consultative
vision examination. Id. at 367-68. He noted Pittman
had corrected vision of 20/40 in the right eye and 20/30 in
the left eye. Id. Dr. Johnson's assessment was
very mild nonproliferative diabetic retinopathy in the left
eye and mild cataracts in both eyes. Id.
that month, Dr. Hari Kuncha, a state agency reviewer, opined
that Pittman could perform light work with postural
limitations to frequently climbing and balancing and an
environmental limitation to avoid concentrated exposure to
hazards. Id. at 67-68. Dr. Kuncha also noted that
Pittman's visual impairments did not result in any
significant visual limitations. Id. In May 2013, Dr.
Robert Whittier reviewed Pittman's records and opined
that he was capable of performing light work. Id. at
91-92. Like Dr. Kuncha, he found that Pittman would be
limited to frequent climbing and frequent balancing and
should avoid concentrated exposure to hazards. Id.
He also concluded that Pittman's eye conditions did not
result in any significant visual restrictions. Id.
saw his treating physician, Dr. Scott Visser, for follow-up
care for his diabetes in October 2013. Id. at
403-04. His examination recorded mostly normal findings aside
from diminished sensation in the lower right extremity.
Id. Dr. Visser made similar findings after
examinations in January and April 2014 Id. at
months later, Danielle Wright, Pharm.D., saw Pittman for
follow-up diabetic care. Id. at 371-75. Pittman
reported that he walked 30-60 minutes per day, four or five
times every week. Id. at 372. He reported compliance
with medication and only one hypoglycemic episode in the
previous month. Id. at 371-72.
months later, Pittman consulted with a dietician for his
diabetes. Id. at 380. He stated that he did not care
about the goal for his fasting blood sugar. Id. at
381. He reported that he experienced hypoglycemic episodes
every one to two weeks but that they occurred less frequently
than they had six months earlier. Id. at 382. The
dietician opined that Pittman lacked understanding of his
insulin regimen. Id.
2014, Pittman saw Rachel Thomas, Pharm.D., for management of
his diabetes. Id. at 385. She remarked that he
lacked motivation to manage his condition. Id.
Specifically, she noted that he adjusted his insulin doses on
his own and administered Humalog after meals, despite being
advised to administer it before meals. Id. He
reported that he decreased his walking due to foot pain but
that he rode a stationary bike for 20 minutes, four times per
week. Id. at 386.
returned later that month for foot pain and hypertension. Dr.
Visser noted a generally normal examination except for
monofilament testing in the lower extremities. Id.
at 393. He observed that Pittman's glucose was fairly
well- controlled and he diagnosed plantar fasciitis as the
cause of his foot pain. Id. at 393-94.
months later, Dr. Visser issued a statement in which he
concluded that Pittman could not lift ten pounds or
occasionally lift and carry articles like small tools, he
could not walk or stand for up to one third of an eight-hour
work day, and he could not sit for about six hours in an
eight-hour workday. Id. at 424. Dr. Visser listed
Pittman's diagnoses of diabetes, neuropathy, and
pancreatic insufficiency as the basis for the limitations he
Pittman returned to Dr. Visser in January 2015 for an
examination, Dr. Visser noted normal findings except for
monofilament testing and absent light touch sensation in a
“stocking” pattern in both legs. Id. at
437-38. Three months later, Tyler Whiteside, D.P.T.,
performed a Functional Capacity Evaluation
(“FCE”). Id. at 442-46. Whiteside noted
that Pittman was unable to perform the demand minimal
functional capacity for standing, walking, balancing, or
kneeling. Id. at 446. He also noted that Pittman
could not perform the demand minimal functional capacity for
stair climbing for five minutes, squatting for five minutes,
or stooping for five minutes at ¶ 75- degree flexation.
Id. These results were endorsed by Dr. Visser as
indicative of Pittman's condition since March 2012.
Id. at 440.
support his claims, Pittman submitted additional evidence to
the Appeals Council that was not before ALJ Watson. The
Commissioner argues, and the court concludes, that the
submitted evidence does not merit remand under sentence six.
Appeals Council must consider evidence submitted by a
claimant with a request for review “if the additional
evidence is (a) new, (b) material, and (c) relates to the
period on or before the date of the ALJ's
decision.” Wilkins v. Sec'y, Dep't of
Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir.
1991), superseded on other grounds by 20 C.F.R.
§ 404.1527; 20 C.F.R. § 404.976(b)(1) (effective to
Feb. 4, 2016) (“The Appeals Council will consider all
the evidence in the administrative law judge hearing record
as well as any new and material evidence submitted to it
which relates to the period on or before the date of the
administrative law judge hearing decision.”). Evidence
is new if it is not duplicative or cumulative, and it is
material if there is a “reasonable possibility that the
new evidence would have changed the outcome of the
case.” Wilkins, 953 F.2d at 96. The Appeals
Council need not review or consider new evidence that relates
only to a time period after the ALJ issues the decision.
See 20 C.F.R. § 404.976(b)(1).
Appeals Council need not explain its reason for denying
review of an ALJ's decision. Meyer v. Astrue,
662 F.3d 700, 702 (4th Cir. 2011). It “must consider
new and material evidence relating to that period prior to
the ALJ decision in determining whether to grant review, even
though it may ultimately decline review.”
Wilkins, 953 F.2d at 95. When the Appeals Council
incorporates additional evidence into the record, the
reviewing court must “review the record as a whole,
including the new evidence, in order to determine whether
substantial evidence supports the Secretary's
findings.” Gentry v. Colvin, No.
2:13-CV-66-FL, 2015 WL 1456131, at *3 (E.D. N.C. Mar. 30,
2015) (quoting Wilkins, 953 F.2d at 96).
Pittman submitted several pieces of evidence,  including
Whiteside's FCE and Dr. Visser's endorsement of those
findings (D.E. 22), Dr. Visser's office treatment notes
from May 19, 2015, through August 7, 2015 (D.E. 23), records
from Southeast Nephrology Associates from September 1, 2015,
through May 23, 2016 (D.E. 24), and Pittman's blood sugar