Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Graham v. Berryhill

United States District Court, E.D. North Carolina, Southern Division

January 10, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.


          Robert B. Jones, Jr. United States Magistrate Judge

         This 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.


         Claimant 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 administrative decision.


         The 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).


         The 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.

         When 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).

         In this 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

         Applying 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[1] 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).

         V. DISCUSSION

         A. The ALJ's Appointment and Jurisdiction

         Claimant 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.

         In 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. ('"[0]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)).

         Here, 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.

         B. Evidence from Claimant's Treatment Providers

         Claimant 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.

         When 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).[2] 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.

         If the 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).

         1. Dr. Georgiev's and Dr. Ikle's Examination Notes

         On 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.[3] (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.

         The ALJ 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).

         At the 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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.