Little v. Astrue

Filing 27

ORDER DENYING 21 Plaintiff's Motion for Judgment on the Pleadings, and GRANTING 23 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is AFFIRMED. Signed by US District Judge Terrence W. Boyle on 12/21/2013. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:13-CV-1-BO
VINSON R. LITTLE,

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Plaintiff,

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V.

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CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

ORDER

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This matter is before the Court on the parties' cross motions for judgment on the
pleadings [DE 21 & 23]. A hearing on this matter was held in Raleigh, North Carolina on
December 12, 2013 at 3:00p.m. For the reasons detailed below, plaintiffs motion is DENIED
and defendant's motion is GRANTED. The decision of the Commissioner is AFFIRMED.

BACKGROUND
Mr. Little applied for supplemental security income on April 2, 2009 and alleged an onset
date of January 30, 2009. His application was denied initially and upon reconsideration. After a
hearing on December 22, 2011, an Administrative Law Judge ("ALJ") denied plaintiffs claim
on January 19, 2012. The Appeals Council denied review rendering the ALJ's opinion the final
decision of the commissioner. The plaintiff commenced a civil action in this Court on January 2,
2013.

DISCUSSION
Pursuant to the Social Security Act, 42 U.S.C. § 405(g), this Court's review of the
Commissioner's decision is limited to determining whether the Commissioner's decision, as a

whole, is supported by substantial evidence and whether the Commissioner employed the correct
legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (citing Richardson v.

Pearles, 402 U.S. 389, 390 (1971)). '"[S]upported by substantial evidence' means 'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."' !d. (quoting

Pearles, 402 U.S. at 401). Regulations establish a five-step sequential evaluation process to be
followed when determining whether a claimant is disabled. 20 C.P.R. §§ 404.1520 and 416.920.
"The claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five." Rogers v. Barnhart, 216 Fed. App'x 345, 348 (4th Cit. 2007) (citing

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).
Plaintiff complains that the ALJ did not satisfy the heightened duty owed to an
umepresented claimant at the administrative hearing, insufficiently developed the record, and
improperly considered a treating source's medical opinion.
I.

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THE DEVELOPMENT OF THE RECORD.

A pro se claimant is "entitled to the sympathetic assistance of the ALJ to develop the
record, to assume a more active role and to adhere to a heightened duty of care and
responsibility." Crider v. Harris, 624 F.2d 15, 16 (4th Cir. 1980) (quotations omitted). The ALJ
must "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant
facts, being especially diligent in ensuring that favorable as well as unfavorable facts and
circumstances are elicited." Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980) (quotations
omitted). If the ALJ's failure to do so results in the absence of counsel creating "clear prejudice
or unfairness to the claimant, a remand is proper." Sims v. Harris, 631 F.2d 26, 27 (4th Cir.
1980).
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At the hearing before this Court, plaintiff's counsel announced that he was limiting his argument to the treatment
of the medical opinions. It is unclear to the Court whether he intended to waive his other arguments, but the Court
will discuss them out of an abundance of caution.

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Plaintiff alleges that the ALJ did not adequately develop the record here by failing to
obtain medical records from Albemarle Mental Health, Agape Community Clinic, and Tideland
Mental Health. Defendant counters that the ALJ properly advised the claimant of the benefits of
representation, including potential assistance in obtaining and updating medical records, and that
the ALJ adequately developed the record.
Here, the ALJ did adequately develop the medical record. Although an unrepresented
claimant is entitled to the sympathetic assistance of the ALJ to develop the record, Crider, 624
F.2d at 16, an ALJ "is not required to function as the claimant's substitute counsel, but only to
develop a reasonably complete record." Bell v. Chater, 57 F.3d 1065 (4th Cir. 1995) report'd in
full at 1995 U.S. App. LEXIS 14322 *12. Contrary to plaintiffs assertions, the ALJ did obtain

additional records from Tideland after the hearing and before making her decision. [See Tr. 43339]. The record also contains treatment notes from Agape during the only month claimant's
mother said he received treatment there. [See Tr. 359-63]. Plaintiffs contentions as to Tideland
and Agape are simply unfounded.
Plaintiffs counsel, not the ALJ, was responsible for obtaining additional records from
Albemarle. Mr. Little obtained legal representation after the hearing, by at least May 2012.
Therefore, the ALJ's heightened duty to plaintiff ended at that time as he was no longer
unrepresented. See Michael v. Astrue, 2011 U.S. Dist. LEXIS 109883 *8 (D. Md. Sept. 26, 2011)
(finding the ALJ's duty to fully develop the record is somewhat relaxed when the plaintiff is
represented by counsel). The Albermarle records were mentioned only in passing at the
administrative hearing and when the ALJ asked what records might be helpful, plaintiff did not
mention the Albemarle records. [Tr. 67]. After the hearing, there was ample opportunity for
plaintiffs counsel to obtain the records and submit them. Regardless, the records would have

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been cumulative, as the record already contained evidence of plaintiffs condition during the
months he was seen at Albemarle. See Strunk v. Heckler, 732 F.2d 1357, 1363 (7th Cir. 1984)
(rejecting argument that the ALJ failed to develop the record because additional exams would
have been cumulative). Further, plaintiff has not established that the omission of the Albemarle
records is prejudicial and therefore, he is not entitled to remand. See Marsh, 632 F.2d at 300
(holding a case should be remanded where the failure to adequately develop the record is
prejudicial to the claimant). "Prejudice can be established by showing that additional evidence
would have been produced . . . and that the additional evidence might have led to a different
decision." Ripley v. Chafer, 67 F.3d 552, 557 n.22 (5th Cir. 1995). Here, plaintiff has not
explained what the missing evidence would have shown and therefore has failed to demonstrate
prejudice from its omission. Therefore, this Court finds that the ALJ adequately developed the
record.
II.

THE ADMINISTRATIVE HEARING.

Plaintiff alleges that claimant was never given a chance to question the vocational expert
at his hearing and therefore the ALJ erred. However, the relevant law does not support this.
Although the Fourth Circuit has sparse precedent on the issue, other circuits have held that
"[p]rocedural perfection in administrative proceedings is not required, so that judgment will be
vacated only when a party's substantial rights have been affected. Morris v. Bowen, 83 7 F .2d
1362, 1364 (5th Cir. 1988). "The ALJ does not have an absolute duty to advise an unrepresented
claimant of the right to cross-examine witnesses, and failure to do so is seldom, by itself, reason
for remand." Fiqueroa v. Secretary of Health, Educ. & Welfare, 585 F.2d 551, 554 (1st Cir.
1978). Therefore, this Court will not remand for the ALJ' s failure to notify the claimant of an
opportunity to question the vocational expert.

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III.

THE MEDICAL OPINIONS.

Plaintiffs final argument for remand is that the ALJ did not properly consider the reports
from treating physicians, Dr. Taska and Dr. Swaniathan. The ALJ did, however, provide good
reasons for giving little weight to the medical opinion that was signed by Dr. Taska and Dr.
Saminathan. These reasons are supported by substantial evidence in the record and therefore are
affirmed.
An opinion from a treating source is generally given more weight than an opinion from
other sources, but may be given controlling weight only if the treating source's opinion is (1)
well-supported by medically acceptable clinical and laboratory diagnostic techniques and (2) not
inconsistent with other evidence. 20 C.F.R. § 416.927(d)(2); Social Security Ruling (SSR) 96-2p,
1996 WL 374188. Conversely, "if a [treating] 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 v. Chafer, 76 F.3d 585, 590 (4th Cir. 1996). An opinion that is
not entitled to controlling weight is evaluated using several non-exclusive factors; (1) the length
of the treatment relationship and the frequency of examination, (2) the nature and extent of the
treatment relationship, (3) the supportability of the opinion by relevant medical evidence and by
explanations from the treating source, (4) the consistency of the opinion with the record as a
whole, and (5) any other factors which tend to support or contradict the opinion. See 20 C.F.R. §
416.927(c). The ALJ is not required to discuss each of these factors, Baxter v. Astrue, 2012 WL
32567 *6 (D. Md. Jan. 4, 2012), but must provide "good reasons" for the weight given to a
treating source's medical opinion. 20 C.F.R. § 416.927(c)(2).
Here, the ALJ gave little weight to the opinion at issue because it lacked support and was
inconsistent with other substantial evidence in the record. [Tr. 33]. Earlier in her decision, the

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ALJ discussed substantial evidence which supported her findings. [Tr. 30-32]. Accordingly, the
ALJ' s decision was supported by substantial evidence. The finding of the Commissioner that
plaintiff was not disabled must be affirmed.
CONCLUSION

For the reasons outlined above, defendant's motion for judgment on the pleadings is
GRANTED and plaintiffs motion is DENIED. The decision of the Commissioner is
AFFIRMED. The clerk is directed to close the file.

SO ORDERED.
This, the _a_{_ day of December, 2013.

TE
NCE W. BOYLE
UNITED STATES DISTRICT J

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