United States District Court, M.D. North Carolina
HARVEY B. BIDDY, JR., Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
Carlton Tilley, Jr. Senior United States District Judge.
Recommendation of the United States Magistrate Judge was
filed with the Court in accordance with 28 U.S.C. §
636(b) and was served on the parties in this action on
October 19, 2018. (Mem. Op. & Recommendation of the U.S.
Magistrate Judge (“Recommendation”) [Doc. #16];
Notice of Mailing Recommendation [Doc. #17]). Plaintiff
Harvey B. Biddy, Jr. (“Biddy”) objected to the
Recommendation within the time limits prescribed by 28 U.S.C.
§ 636, (Obj. to the Recommended Ruling
(“Biddy's Objs.”) [Doc. #18]), to which
then-Acting Commissioner Nancy A. Berryhill
(“Commissioner”) filed a response, [Doc. #19].
For the reasons explained below, the Recommendation is
raises two objections to the Recommendation: first, that
“[t]he Magistrate Judge had no basis to conclude that
medical evidence from 2004 is relevant to the issue of
Plaintiff's disability at his amended alleged onset date
of January 10, 2015, ” and second, that “[t]he
Magistrate failed to apply Fourth Circuit and Middle District
case law establishing that an administrative law judge
commits a reversible error by failing to explain the weight
given to obviously probative evidence.” (Biddy's
Objs. at 1, 3.) As explained below, neither of these
objections have merit.
first objection hinges on the ALJ's consideration of an
“on-the-job back injury that [Biddy] suffered in 2004
and a subsequent August 2004 MRI of the thoracic
spine.” (Id. at 1 (citing Administrative
Record (“A.R.”) 295).) Biddy contends that the
ALJ's consideration of this injury and assignment of
weight to the various treating physicians' opinions was
impermissible, because “[a]s a matter of simple logic,
the medical evidence from 2004 is too far removed in time to
be of any use in in [sic] evaluating the severity of
Plaintiff's back condition in January 2015 or in November
2016, when his disability hearing was held.”
(Id. at 3.) Biddy therefore argues that the
Magistrate Judge's conclusion that the 2004 medical
evidence is relevant to Biddy's disability claim is
incorrect, because the Magistrate Judge “cites no legal
authority to support this finding and makes no attempt to
explain how that evidence could be relevant . . . [and
instead] just declares it to be so.” (Id. at
contrast to Biddy's argument, the Magistrate Judge does
in fact cite legal authority specifically regarding how much
weight should be given to evidence that predates the
disability onset date. (Recommendation at 6-7.) The
Magistrate Judge noted that:
[a]lthough not settled by the Fourth Circuit, some courts
have found that an ALJ's failure to mention medical
evidence that predated the alleged onset date was an error,
particularly where that evidence involved the same
impairments claimant asserted as a disability. See
Pilcher v. Colvin, No. 5:14-CV-191-RJC, 2016 WL 1048071,
at *4 (W.D. N.C. Mar. 16, 2016) (unpublished); Marsh v.
Colvin, 792 F.3d 11790 (9th Cir. 2015); Kish v.
Astrue, No. 10-CV-225-WDS, 2012 WL 996964, at *10 (S.D.
Ill. Mar. 23, 2012) (unpublished). However, other courts have
found evidence that predates the alleged onset date is of
limited relevance, and need not even be considered. See
Graley v. Colvin, No. 3:14-CV-25277, 2015 WL 5773162, at
*6 (S.D. W.Va. Sept. 29, 2015) (citing Gullace v.
Astrue, 1:11CV0755 TSE/JFA, 2012 WL 691554, at *15 &
n.18 (E.D. Va. Feb. 13, 2012) (unpublished), report and
recommendation adopted, 2012 WL 688488 (Mar. 2, 2012)
(Id. at 7.) The Magistrate Judge then concluded that
“the ALJ's consideration of Plaintiff's back
treatment was relevant and necessary to examine the
longitudinal picture of Plaintiff's functional
limitations.” (Id. at 8.)
Magistrate Judge was correct: the ALJ did not base her
determination of Biddy's disability in 2015 on evidence
from 2004, but instead only used the 2004 medical evidence as
context for Biddy's later medical problems. (See
A.R. at 22-23.) Therefore, the 2004 evidence is relevant as
the ALJ found it to be and was properly considered, and
consequently, Biddy's objection is overruled.
second objection argues that the ALJ failed to consider
medical evidence from a February 2011 MRI of the lumbar
spine, even though the Fourth Circuit and the Middle District
have held that “obviously probative exhibits”
must be considered, and “[t]he February 2011 lumbar is
obviously probative to Plaintiff's disability claim
because it establishes a change in the condition of his
spine.” (Biddy's Objs. at 4-5.) Biddy is correct
that the ALJ did not explicitly mention the February 2011
MRI, but is incorrect in arguing that the February 2011 MRI
is so “obviously probative” it must be discussed.
(See Biddy's Objs. at 5.)
case, the February 2011 MRI is not obviously probative in
determining the physical impairment or disability at the time
of the decision. As the Magistrate Judge notes, even if
Plaintiff had possible neural encroachment in February of
2011, an examination in July 2016 revealed that Plaintiff had
a normal range of motion, was able to flex his back to
90˚, and was able to walk on his tiptoes and on his
heels. Additionally, in December of 2015, shortly after
having heart surgery, Plaintiff was able to walk a half mile
with little to no discomfort.
at 8-9 (citing A.R. 23, 875, 863).) Additionally, the
February 2011 MRI does not provide any information regarding
Biddy's limitations or difficulties, and any difficulties
that may have existed are not reflected in the medical
evidence from 2016. Therefore, the February ...