United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
B. Jones, Jr. United States Magistrate Judge
matter is before the court on the parties' cross-motions
for judgment on the pleadings [DE-19, -22] pursuant to
Fed.R.Civ.P. 12(c). Claimant Justin Graham
("Claimant") filed this action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the denial of his application for a period of
disability and Disability Insurance Benefits
("DIB"). Claimant also filed a notice of
subsequently decided authority regarding Lucia v. Sec.
& Exch. Comm 'n, - U.S. -, 138 S.Ct. 2044
(2018). [DE-21]. The time for filing responsive briefing has
expired, and the pending motions are ripe for adjudication.
Having carefully reviewed the administrative record and the
motions and memoranda submitted by the parties, it is
recommended that Claimant's Motion for Judgment on the
Pleadings be denied, Defendant's Motion for Judgment on
the Pleadings be allowed, and the final decision of the
Commissioner be affirmed.
STATEMENT OF THE CASE
filed an application for a period of disability and DIB on
November 9, 2014, alleging disability beginning September 20,
2014. (R. 11, 306-09). His claim was denied initially and
upon reconsideration. (R. 11, 189-214). A hearing before the
Administrative Law Judge ("ALJ") was held on August
8, 2017, at which Claimant, represented by counsel, and a
vocational, expert ("VE") appeared and testified.
(R. 11, 170-88). On September 8, 2017, the ALJ issued a
decision denying Claimant's request for benefits. (R.
8-29). The Appeals Council denied Claimant's request for
review on December 15, 2017. (R. 1-7). Claimant then filed a
complaint in this court seeking review of the now-final
STANDARD OF REVIEW
scope of judicial review of a final agency decision regarding
disability benefits under the Social Security Act
("Act"), 42 U.S.C. § 301 et seq., is
limited to determining whether substantial evidence supports
the Commissioner's factual findings and whether the
decision was reached through the application of the correct
legal standards. See Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). "The findings of the Commissioner
... as to any fact, if supported by substantial evidence,
shall be conclusive . . . ." 42 U.S.C. § 405(g).
Substantial evidence is "evidence which a reasoning mind
would accept as sufficient to support a particular
conclusion." Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966). While substantial evidence is not a
"large or considerable amount of evidence,"
Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is
"more than a mere scintilla . . . and somewhat less than
a preponderance." Laws, 368 F.2d at 642.
"In reviewing for substantial evidence, [the court
should not] undertake to re-weigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the [Commissioner]." Mastro v. Apfel,
270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v.
Chafer, 76 F.3d 585, 589 (4th Cir. 1996), superseded
by regulation on other grounds, 20 C.F.R. §
416.927(d)(2)). Rather, in conducting the "substantial
evidence" inquiry, the court's review is limited to
whether the ALJ analyzed the relevant evidence and
sufficiently explained his or her findings and rationale in
crediting the evidence. Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
DISABILITY EVALUATION PROCESS
disability determination is based on a five-step sequential
evaluation process as set forth in 20 C.F.R. § 404.1520
under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial
gainful activity," i.e., currently working; and (2) must
have a "severe" impairment that (3) meets or
exceeds [in severity] the "listings" of specified
impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional
capacity to (4) perform ... past work or (5) any other work.
Albright v. Comm's of the SSA, 174 F.3d
473, 475 n.2 (4th Cir. 1999). "If an applicant's
claim fails at any step of the process, the ALJ need not
advance to the subsequent steps." Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation
omitted). The burden of proof and production during the first
four steps of the inquiry rests on the claimant. Id.
At the fifth step, the burden shifts to the ALJ to show that
other work exists in the national economy that the claimant
can perform. Id.
assessing the severity of mental impairments, the ALJ must do
so in accordance with the "special technique"
described in 20 C.F.R. § 404.1520a(b)-(c). This
regulatory scheme identifies four broad functional areas in
which the ALJ rates the degree of functional limitation
resulting from a claimant's mental impairment(s):
understand, remember, or apply information; interact with
others; concentrate, persist, or maintain pace; and adapt or
manage oneself. Id. § 404.1520a(c)(3). The ALJ
is required to incorporate into his written decision
pertinent findings and conclusions based on the "special
technique." Id. § 404.1520a(e)(3).
case, Claimant alleges the ALJ was not properly appointed and
had no jurisdiction to issue a decision, and the ALJ erred by
failing to (1) properly consider evidence from treatment
providers, (2) include all relevant limitations in the
hypothetical to the VE and in the RFC, and (3) find Claimant
was disabled based on evidence from the VA related to his
PTSD. Pl.'s Mem. [DE- 20] at 10-17; Pl.'s Notice
[DE-21], IV. ALJ'S FINDINGS
the above-described sequential evaluation process, the ALJ
found Claimant "not disabled" as defined in the
Act. At step one, the ALJ found Claimant had not engaged in
substantial gainful employment since the alleged onset date.
(R. 1, 3). Next, the ALJ determined Claimant had the severe
impairments of post-traumatic stress disorder
("PTSD"), sleep apnea, and degenerative disc
disease and the non-severe impairments of hypertension,
hyperlipidemia, and obesity. (R. 13-14). However, at step
three, the ALJ concluded these impairments were not severe
enough, either individually or in combination, to meet or
medically equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (R. 14-16). Applying the
technique prescribed by the regulations, the ALJ found that
Claimant's mental impairments had resulted in mild
limitations in understanding, remembering, or applying
information; moderate limitations in interacting with others;
mild limitations in concentrating, persisting, and
maintaining pace; and moderate limitations in adapting or
managing oneself. (R. 15). Prior to proceeding to step four,
the ALJ assessed Claimant's RFC, finding he had the
ability to perform medium work with the following limitations:
no exposure to work hazards, occasional contact with the
general public, no work in a team setting, occasional changes
in the work setting/procedure, and no work in a fast-paced
production environment. (R. 16-22). At step four, the ALJ
concluded Claimant did not have the RFC to perform the
requirements of his past relevant work. (R. 22). Nonetheless,
at step five, upon considering Claimant's age, education,
work experience, and RFC, the ALJ determined Claimant is
capable of adjusting to the demands of other employment
opportunities that exist in significant numbers in the
national economy. (R. 23).
The ALJ's Appointment and Jurisdiction
filed a notice of subsequently decided authority regarding
Lucia v. Sec. & Exch. Comm'n, ___U.S.___,
138 S.Ct. 2044 (2018) and challenges the ALJ's
appointment and jurisdiction to issue the decision at issue
in this matter. [DE-21]. The Commissioner contends
Claimant's failure to challenge the ALJ's appointment
during the administrative proceeding before the agency
forfeited any Appointment Clause claim. Def.'s Mem.
[DE-23] at 12-18.
Lucia, the Supreme Court considered whether ALJs within
the Securities and Exchange Commission ("SEC") were
"Officers of the United States" and subject to the
Appointments Clause, which requires appointment of such
officers by only the President, a court of law, or a head of
department. 138 S.Ct. at 2051 (citing U.S. Const, art. II,
§ 2, cl. 2). The Court decided that the ALJ was, in
fact, an "officer" and that his appointment was
unconstitutional because it was made by an SEC staff member
rather than one of the constitutionally permissible entities.
Id. at 2055. Finally, the Court concluded that
because Lucia made a timely challenge to the validity of the
ALJ's appointment before the SEC and in subsequent
litigation, he was entitled to a new hearing before a
properly appointed official. Id. ('"ne
who makes a timely challenge, to the constitutional validity
of the appointment of an officer who adjudicates his
case' is entitled to relief.") (quoting Ryder v.
United States, 515 U.S. 177, 182-183 (1995)).
there is no evidence in the record that Claimant challenged
the ALJ's appointment in the administrative proceeding
before the SSA. Claimant raised this issue for the first time
before this court, and, therefore, his challenge is untimely.
Cf. Lucia, 138 S.Ct. at 2055 (finding Lucia's
challenge was timely because he challenged the ALJ's
appointment before the SEC and continued to pursue his claim
in court). Courts having considered post-Lucia
Appointment Clause challenges to Social Security ALJ
appointments "have unanimously rejected attacks on the
validity of the ALJ's appointment under Lucia if
claimant failed to make a constitutional challenge at the
administrative level before the ALJ or the Appeals
Council." Nickum v. Berryhill, No. 17-2011-SAC,
2018 WL 6436091, at *6 (D. Kan. Dec. 7, 2018) (collecting
cases); see also Abbington v. Berryhill, No. CV
l:17-00552-N, 2018 WL 6571208, at *2 (S.D. Ala. Dec. 13,
2018) ("In addressing Appointment Clause challenges to
Social Security ALJ's since Lucia was decided,
numerous district courts have held that a claimant forfeits
such a challenge by failing to raise it at the administrative
level.") (collecting cases). Claimant's failure to
timely challenge the ALJ's appointment before the SSA is
a bar to this court's review of the issue on appeal from
the Commissioner's decision. See Weatherman v.
Berryhill, No. 5:18-CV-00045-MOC, 2018 WL 6492957, at *4
(W.D. N.C. Dec. 10, 2018) (finding post-Lucia
challenge to appointment of Social Security ALJ "not to
be cognizable on appeal as plaintiff did not first raise it
before the Commissioner administratively); Britt v.
Berryhill, No. 1:18-CV-00030-FDW, 2018 WL 6268211, at *2
(W.D. N.C. Nov. 30, 2018) (denying motion to remand under
Lucia on the grounds that the ALJ and the
Administrative Appeals Judge presiding over his claim were
not constitutionally appointed because the claimant
"forfeited the issue by failing to raise it during his
administrative proceedings.") (citing Garrison v.
Berryhill, No. 1:17-cv-00302-FDW, 2018 WL 4924554 (W.D.
N.C. Oct. 10, 2018); Meanel v. Apfel, 172 F.3d 1111,
1115 (9th Cir. 1999) (as amended) (holding that a plaintiff
forfeits issues not raised before ALJ or Appeals Council)).
Accordingly, Claimant has waived any challenge to the
ALJ's appointment by failing to raise it below.
Evidence from Claimant's Treatment Providers
contends the ALJ erred by failing to (1) obtain and consider
examination records from Dr. Georgiev and Dr. Ikle, (2)
consider an examination record from Dr. Coben, and (3)
sufficiently evaluate Dr. Silver's consultative opinion.
Pl.'s Mem. [DE-20] at 10-14. The Commissioner contends
that the ALJ did not err in failing to obtain the records
from Dr. Georgiev and Dr. Dele and, in any event, the records
do not support remand; the ALJ was not required to discuss
Dr. Coben's examination because it was not a medical
opinion; and the ALJ properly explained the weight afforded
to Dr. Silver's opinion. Def.'s Mem. [DE-23] at 3-9.
assessing a claimant's RFC, the ALJ must consider the
opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless
of the source, the ALJ must evaluate every medical opinion
received. Id. § 404.1527(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). 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). When the
opinion of a treating source regarding the nature and
severity of a claimant's impairments is
"well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence" it is given controlling
weight. Id. However, "[i]f 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." Craig, 76
F.3d at 590.
ALJ determines that a treating physician's opinion should
not be considered controlling, the ALJ must then analyze and
weigh all of the medical opinions in the 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, and (5) whether
the physician is a specialist. Johnson v. Barnhart,
434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. §
404.1527). An ALJ may not reject medical evidence for the
wrong reason or no reason. See Wireman v. Barnhart,
No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5,
2006). "In most cases, the ALJ's failure to consider
a physician's opinion (particularly a treating physician)
or to discuss the weight given to that opinion will require
remand." Love-Moore v. Colvin, No.
7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D. N.C. Sept. 24,
2013) (citations omitted).
Dr. Georgiev's and Dr. Ikle's Examination
November 27, 2017, Claimant submitted for the first time to
the Appeals Council a form titled "Back (Thoracolumbar
Spine) Conditions Questionnaire" completed on September
9, 2015 by Dr. Georgiev (R. 46-55) and a form titled
"Review Post Traumatic Stress Disorder (PTSD) Disability
Benefits Questionnaire" completed on September 8, 2015
by Dr. Ikle (R. 57-64). The Appeals Council found Claimant
did not show good cause for failing to submit the evidence
earlier and, therefore, did not consider the
evidence. (R. 2). Claimant does not take issue with
the Appeals Council's decision, but rather argues that
the ALJ should have obtained and considered this evidence.
Pl.'s Mem. [DE-20] at 12.
has a responsibility to "explore all relevant facts and
inquire into the issues necessary for adequate development of
the record, and cannot rely only on the evidence submitted by
the claimant when that evidence is inadequate." Cook
v. Heckler, 783 F.2d 1168, 1173 (4th Cir.1986) (citing
Walker v. Harris, 642 F.2d 712, 714 (4th Cir. 1981);
Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980)).
This "duty to develop the record further is triggered
only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the
evidence." Baysden v. Colvin, No.
4:12-CV-303-FL, 2014 WL 1056996, at *9 (E.D. N.C. Mar. 18,
2014) (quoting Mayes v. Massanari, 276 F.3d 453,
459-60 (9th Cir. 2001)). However, "the ALJ is not
required to function as the claimant's substitute
counsel." Clark v. Shalala, 28 F.3d 828, 830
(8th Cir. 1994). The ALJ's duty to develop the record
"does not permit a claimant, through counsel, to rest on
the record-indeed, to exhort the ALJ that the case is ready
for decision-and later fault the ALJ for not performing a
more exhaustive investigation." Maes v. Astrue,
522 F.3d 1093, 1097 (10th Cir. 2008).
administrative hearing, Claimant was represented by counsel
who engaged in the following exchange with the ALJ regarding
the evidence of record:
ALJ: You have reviewed the documentary evidence?
ATTY: Yes, Your Honor.
ALJ: Nothing else to submit?
ATTY: Your Honor, I just wanted to make you aware that we are
still missing records from the VA, but those are follow-up
appointments; so, if you would like to close the record,