Jones v. Colvin
ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS. Plaintiffs motion for judgment on the pleadings 16 is DENIED, and defendants motion for judgment on the pleadings 21 is GRANTED. The clerk of court is DIRECTED to close this case. Signed by District Judge Louise Wood Flanagan on 9/13/2017. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
TINA CAHOON JONES,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
This matter is before the court on the parties’ cross motions for judgment on the pleadings.
(DE 16, 21). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United
States Magistrate Judge Robert T. Numbers, II, entered memorandum and recommendation
(“M&R”), wherein it is recommended that the court deny plaintiff’s motion, grant defendant’s
motion, and affirm defendant’s decision. Plaintiff timely filed objections to the M&R, and the issues
raised are ripe for ruling. For the reasons that follow, the court adopts the M&R as its own, grants
defendant’s motion, denies plaintiff’s motion, and affirms defendant’s final decision.
On September 20, 2013, plaintiff filed applications for disabled widow’s benefits and
supplemental security income, alleging disability beginning September 7, 2013. The applications
were denied both initially and upon reconsideration. Plaintiff filed a request for hearing before an
administrative law judge (“ALJ”), who, after a January 7, 2016, video hearing, denied plaintiff’s
claims by decision dated January 20, 2016. Following the ALJ’s denial of her applications, plaintiff
timely filed a request for review with the Appeals Council, which denied the request, leaving the
ALJ’s decision as defendant’s final decision. Plaintiff then commenced this action on June 9, 2016,
seeking review of defendant’s decision.
Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review defendant’s final decision
denying benefits. The court must uphold the factual findings of the ALJ “if they are supported by
substantial evidence and were reached through application of the correct legal standard.” Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence is . . . such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quotations omitted). The standard is met by “more than a mere scintilla of
evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
In reviewing for substantial evidence, the court is not to “re-weigh conflicting evidence, make
credibility determinations, or substitute [its] judgment” for defendant’s. Craig, 76 F.3d at 589.
“A necessary predicate to engaging in substantial evidence review is a record of the basis
for the ALJ’s ruling,” including “a discussion of which evidence the ALJ found credible and why,
and specific application of the pertinent legal requirements to the record evidence.” Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013). An ALJ’s decision must “include a narrative discussion
describing how the evidence supports each conclusion,” Monroe v. Colvin, 826 F.3d 176, 189 (4th
Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)), and an ALJ “must build
an accurate and logical bridge from the evidence to his conclusion.” Id. (quoting Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000)).
To assist it in its review of defendant’s denial of benefits, the court may “designate a
magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [of the motions for judgment on the pleadings].” See 28 U.S.C.
§ 636(b)(1)(B). The parties may object to the magistrate judge’s findings and recommendations,
and the court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1). The court does
not perform a de novo review where a party makes only “general and conclusory objections that do
not direct the court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a specific and timely filed objection,
the court reviews only for “clear error,” and need not give any explanation for adopting the M&R.
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis,
718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
The ALJ’s determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant’s medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform [his or her] past
relevant work; and (5) the claimant can perform other specified types of work.
Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff had not engaged in substantial gainful activity since September 7, 2013. At step
two, the ALJ found that plaintiff had the following severe impairments: cervical degenerative disc
disease and spondylosis; obesity; bipolar disorder; and attention deficit hyperactivity disorder
(ADHD). However, at step three, the ALJ further determined that these impairments were not
severe enough, either individually or in combination, to meet or medically equal one of the listings
in the regulations.
Before proceeding to step four, the ALJ determined that during the relevant time period
plaintiff had the residual functional capacity (“RFC”) to perform light work, with the following
[Plaintiff] can push/pull as much as she can lift and/or carry. She can frequently
perform tasks requiring fingering and handling. She can occasionally balance on
narrow, slippery, or moving surfaces, climb ladders and stairs, stoop, crouch, kneel,
and crawl. She has a decreased ability to concentrate on and attend to work tasks to
the extent that she can only do simple, routine, repetitive tasks (i.e., can apply
commonsense understanding to carry out instructions furnished in written, oral, or
diagrammatic form and deal with problems involving several concrete variables in
or from standardized situations). She is able to concentrate for two-hour increments
with normal rest breaks (i.e., 15, 30, 15 minutes). The claimant can occasionally
deal with the public. She is unable to work at jobs requiring complex decision
making, constant change, or dealing with crisis situations.
(Tr. 24). In making this assessment, the ALJ found plaintiff’s statements about her limitations not
fully credible. At step four, the ALJ concluded plaintiff has no past relevant work. At step five, the
ALJ determined that there are jobs that exist in significant numbers in the national economy that
plaintiff can perfomr. Thus, the ALJ concluded that plaintiff was not disabled under the terms of
the Social Security Act.
In her objections, plaintiff argues that the ALJ erred in failing to accord appropriate weight
to opinion evidence in the record, and in failing to formulate properly her RFC with due
consideration of her testimony and limited daily activities. The magistrate judge cogently addressed
each of the arguments raised by plaintiff, discussing applicable law and evidence in the record.
Plaintiff does not “direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano, 687 F.2d at 47 (emphasis added). Therefore, de novo review is not
required. Id. Nevertheless, upon de novo review of plaintiff’s arguments set forth in her objections,
the court adopts as its own the full analysis in the M&R.1 The court writes separately to augment
the analysis in the M&R as to the issues noted below.
Plaintiff argues that the ALJ erred in giving less weight to opinions of consultative examiners
because they “only had the opportunity to examine the claimant on one occasion,” (Tr. 28), whereas
the ALJ gave great weight to agency medical consultants who never examined her. The reasons
given by the ALJ for weighing the medical opinions, however, were valid, multi-faceted, and
supported by the record.
First, although non-examining consultant opinions generally are given less weight than
examining physician opinions, see 20 C.F.R. § 404.1527(c)(1), the lack of an ongoing treatment
relationship is also a critical factor for the ALJ to consider in weighing consultative examiner
opinions along with other evidence in the record. See id. § 404.1527(c)(2). Here, for consultative
The magistrate judge addressed additional arguments raised by plaintiff concerning the ALJ’s analysis of
Listings 12.04 and 12.06, which arguments plaintiff does not repeat in her objections. Upon careful review of the
M&R and the record generally, the court finds no clear error in the magistrate judge’s treatment of this issue.
examiner Dr. LaCroix, the lack of an ongoing treatment relationship was compounded by the fact,
as noted by the ALJ, that he did not have benefit of any medical records or testing for review and
relied upon plaintiff’s statements and one-time examination findings. (Tr. 28, 426).
By contrast, the non-examining consultants had benefit of a complete review of plaintiff’s
medical records, and the opinion they formulated was more consistent with those underlying medical
records. (E.g., Tr. 104-120). This factor was noted specifically by the ALJ in his decision, both as
a reason for giving less weight to Dr. Lacroix and more weight to non-examining consultants. (Tr.
28 (noting Dr. Lacrox’s “overstatement of the claimant’s limitations when compared with his
physical exam findings”), Tr. 29 (noting consultant’s assessments “are generally consistent with the
claimant’s physical exam results and treatment recommendations”)). Where the non-examining
consultants’ opinions were more consistent with the underlying medical records, the ALJ properly
gave more weight to the non-examining consultants’ opinions than Dr. Lacroix.
As for Dr. Bing, whose opinion the ALJ gave “moderate” weight, it was likewise appropriate
for the ALJ to note “he only evaluated the claimant on one occasion,” where this fact considered
along with the fact that “it was unclear whether the claimant had been compliant with her medication
at the time of the evaluation,” two considerations relevant to assessment of functional impact of
plaintiff’s bipolar disorder. (Tr. 28-29; see Tr. 27 (noting “the claimant has a long-term history of
[bipolar disorder] . . . with varying of symptoms and compliance with treatment”)). The ALJ also
noted that Dr. Bing’s opinion “appeared based more on the claimant’s reports tha[n] his own clinical
findings, particularly his concerns about the claimant’s social functioning and his measurement of
the claimant’s GAF score[s].” (Tr. 28-29). Thus, the ALJ properly considered multiple factors in
weighing the opinion of Dr. Bing, and tempered his consideration of Dr. Bing’s opinion against the
complete medical record, including additional clinical records and assessments of consulting
physicians who reviewed plaintiff’s entire record. (See Tr. 27, 29).
Plaintiff argues that the ALJ did not properly take into account the limitations in plaintiff’s
activities of daily living when formulating plaintiff’s RFC, by “erroneously equat[ing] [plaintiff’s]
ability to engage in some activities on her own schedule with an ability to work full-time.” (Obj.
at 8). This argument mis-represents the ALJ’s analysis, however. In formulating plaintiff’s RFC,
the ALJ considered plaintiff’s testimony as well as medical evidence of record, with a thorough
discussion of both. (Tr. 24-29). Activities of daily living are not discussed as a defining feature of
plaintiff’s RFC, but rather are noted in conjunction with other medical evidence of record as
pertinent to evaluating plaintiff’s credibility. (See id.).
For example, the ALJ noted plaintiff’s testimony that she “is limited to lifting 10 pounds and
sitting for 15 to 25 minutes,” that “one or two days a week she stays in bed . . . with 10 bad days a
month,” and that she “stated that she has not worked for the past two and half years, with the
exception of when she tried to work at Jack’s Tavern for two days but could not perform the work
of cleaning the kitchen because her feet swelled.” (Tr. 25). The ALJ also noted a third party
statement of a friend that plaintiff “did very little during the day due to pain,” and “had difficulty
cooking, driving, and sweeping due to hand pain and numbness.” (Tr. 29).
In evaluating plaintiff’s activities, the ALJ noted, by contrast, the following:
The claimant testified at the hearing that she last worked as a personal care aide. She
indicated that this work stopped because her client died, not because she became
unable to work. The claimant further stated that she has been a house sitter for the
past two years, which has included caring for the owner’s cats, doing her laundry,
and cleaning her home. She noted that when the home owner is at the house, she
sometimes helps her get dressed. . . . At her psychological consultative evaluation
she volunteered that she cleaned for free at her church, ran errands for the woman
she lived with, and occasionally took the woman places.
(Tr. 28). In noting these activities, in conjunction with the medical record, the ALJ concluded
“[o]verall, the evidence of record does not fully support the degree of limitation alleged.” (Id.). As
such, the ALJ did not use activities of daily living to define plaintiff’s RFC, but properly noted them
in evaluating plaintiff’s credibility in conjunction with the medical evidence in the record. See 20
C.F.R. § 416.929(c)(4); S.S.R. 96-7p, 1996 WL 374186, at *2.
Accordingly, plaintiff’s argument that the ALJ erred in considering plaintiff’s activities of
daily living is without merit.
Based on the foregoing, upon careful review of the M&R and the record in this case, the
court ADOPTS the recommendation in the M&R. Plaintiff’s motion for judgment on the pleadings
(DE 16) is DENIED, and defendant’s motion for judgment on the pleadings (DE 21) is GRANTED.
The clerk of court is DIRECTED to close this case.
SO ORDERED this 13th day of September, 2017.
LOUISE W. FLANAGAN
United States District Judge
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