United States District Court, W.D. North Carolina, Charlotte Division
JOHN R. HALL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
COGBURN JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the court on review of a Memorandum
and Recommendation (“M&R”) issued in this
matter (#15). In the M&R, the magistrate judge advised
the parties of the right to file objections within 14 days,
all in accordance with 28, United States Code, Section
636(b)(1)(c). Objections have been filed within the time
allowed. See Pl. Objections (#16).
M&R in this case, the Honorable Dennis L. Howell, United
States Magistrate Judge, analyzed the available record,
including the disability decision from the State of North
Carolina and the decision of the Administrative Law Judge
(“ALJ”) (#15). Ultimately, Judge Howell
recommended that the court grant defendant's Motion for
Summary Judgment (#11).
has filed three objections to the M&R (#16). First, the
magistrate judge held that recent evidence offered by
plaintiff does not constitute the kind of new and material
evidence that justifies further review by the Appeals
Council. Plaintiff objects, arguing that the evidence is new
and material and should be considered on remand. Second, the
magistrate judge held that the ALJ properly considered mental
impairments when formulating plaintiff's mental residual
functional capacity (“RFC”). Plaintiff objects,
arguing that the ALJ did not fully and properly assess
plaintiff's mental RFC. Third, the magistrate judge held
that the ALJ properly considered the medical opinions of
record in determining plaintiff's RFC. Plaintiff objects,
arguing that there are inconsistencies that the ALJ failed to
explain and that the court is improperly relying on post
hoc rationalizations instead of the record. The court
considers defendant's objections below.
Federal Magistrates Act of 1979, as amended,
provides that “a district court shall make a de
novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).
However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo
review of the record may be dispensed with.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982).
Similarly, de novo review is not required by the
statute “when a party makes general or conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations.” Id. Moreover, the statute
does not on its face require any review at all of issues that
are not the subject of an objection. Thomas v. Arn,
474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d
at 200. Nonetheless, a district judge is responsible for the
final determination and outcome of the case, and accordingly
the court has conducted a careful review of the magistrate
judge's recommendation, the ALJ's decision, and the
record as a whole in determining whether plaintiff's
objections are valid.
first objection, plaintiff asserts that the magistrate judge
improperly held that new evidence offered by plaintiff did
not warrant remand and review by the Appeals Council. The
evidence in question pertains to the state of plaintiff's
hip, as plaintiff argues that records from plaintiff's
treating orthopedic surgeon and plaintiff's primary care
provider shed further light on problems with plaintiff's
hip that plaintiff argues are relevant to the findings of the
ALJ and the Appeals Council. In the M&R, the magistrate
judge found that the new evidence was not truly new and that
remand was unnecessary.
the court agrees with the magistrate judge's finding.
Evidence is new if it is “not duplicative or
cumulative” and material “if there is a
reasonable possibility that the new evidence would have
changed the outcome.” Wilkins v. Secretary,
Dep't of Health & Human Servs., 953 F.2d 93, 96
(4th Cir. 1991); see also Borders v.
Heckler, 777 F.2d 954, 955 (4th Cir. 1985).
The “new” evidence offered by plaintiff
concerning plaintiff's hip pain appears to be duplicative
and cumulative. For example, plaintiff notes that the new
evidence includes plaintiff's orthopedic surgeon opining
that plaintiff may need to consider hip replacement in the
future due to plaintiff's hip pain. But at the hearing
with the ALJ, plaintiff already opined that he would be
getting a hip replacement in the future, rendering it unclear
what more this new evidence offers for review. Further, such
evidence only reinforces that plaintiff's hip pain is
short-term, or at the very least remediable, and neither
short-term pain nor remediable pain warrant a finding of
disability. See Bradley v. Ribicoff, 298 F.2d 855,
857 (4th Cir. 1962); 42 U.S.C. §
423(d)(1)(A). Finally, plaintiff has not shown that the
evidence is material, or at least enough that there is a
possibility the outcome would have changed. Even accepting
that plaintiff's hip pain has worsened as described by
the new evidence plaintiff offers, the ALJ's RFC appears
to account for any worsening of hip pain by limiting
plaintiff to “the full range of sedentary work, ”
based in no small part on plaintiff's present hip pain.
(Tr. 24-25.) At any rate, the court agrees with the
magistrate judge's holding and finds no reason for remand
on the basis of new evidence.
second objection, plaintiff asserts that the ALJ did not
properly and fully assess plaintiff's mental RFC since
the ALJ did not explain what effect plaintiff's
limitations in concentration, persistence, and pace have on
his RFC and his ability to stay on task. In the M&R, the
magistrate judge found that the ALJ properly explained why
plaintiff's depression was non-severe and did not create
any work-related limitations for plaintiff's RFC.
the court again agrees with the magistrate judge's
findings. The ALJ took note of plaintiff's depression,
but found that it had minimal effect on his ability to
perform basic work activities, that plaintiff's wife
indicated his prescribed medication was helping, that he was
not receiving any mental health treatment from a specialist,
and that his depression was thus a non-severe impairment.
(Tr. 21-22). Further, while the ALJ did find that plaintiff
had a mild limitation in concentration, persistence, or pace,
Tr. 22, the ALJ did not assign a limitation on his ability to
stay on task. However, while plaintiff asserts that the ALJ
failed to explain his reasoning as to why such a limitation
did not extend into his mental RFC, the ALJ does
explain his reasoning at length. The ALJ explained that,
while plaintiff did complain of depression and increased
stress, he denied any other impairments, including
“concentration difficulties.” (Tr. 26). The ALJ
further noted that plaintiff had acknowledged that his
prescribed medication improved his condition, that plaintiff
was able to maintain relationships, that depression did not
interfere with plaintiff's activities of daily living,
and that plaintiff's mental status examination was ...