CLEMMER v. ASTRUE
Filing
13
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 9/30/2014, that the Commissioner's decision finding no disability is AFFIRMED, that Plaintiff's Motion to Reverse the Decision of the Commissioner of Social Secu rity (Doc. 8 ) is DENIED, that Defendant's Motion for Judgment on the Pleadings (Doc. 10 ) is GRANTED, and that this action is DISMISSED with prejudice. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KIMBERLY L. CLEMMER,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Commissioner of Social
Security,
Defendant.
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1:11CV669
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Kimberly Clemmer (“Plaintiff”) brought this
action pursuant to Section 205(g) of the Social Security Act, as
amended (42 U.S.C. § 405(g)), to obtain judicial review of a
final decision of the Commissioner of Social Security denying
her claim for Disability Insurance Benefits under Title II of
the Social Security Act (the “Act”).
The parties have filed
cross-motions for judgment, and the administrative record has
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the Defendant in this suit.
No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security
Act. 42 U.S.C. § 405(g).
1
been certified to the court for review.2
For the reasons set
forth below, the Commissioner’s motion will be granted,
Plaintiff’s motion will be denied, and the case will be
dismissed.
I.
PROCEDURAL HISTORY
Plaintiff filed her application for Disability Insurance
Benefits (“DIB”) on January 9, 2008, alleging a disability onset
date of October 31, 2007. (Tr. at 15, 107-14.) Her application
was denied initially (Tr. at 70, 89-92) and upon reconsideration
(Tr. at 69, 93-95).
Thereafter, Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”). (Tr. at 58.)
Plaintiff, along with her attorney and an impartial vocational
expert, attended the subsequent hearing on October 17, 2008.
(Tr. at 75.)
Although the ALJ ultimately determined that
Plaintiff was not disabled within the meaning of the Act (Tr. at
81), the Appeals Council of the Social Security Administration
subsequently granted Plaintiff’s request for review of the
decision and remanded the case for a new hearing (Tr. at 86-87).
Following a second hearing on September 18, 2009, at which
Plaintiff, an impartial vocational expert, and an impartial
medical expert testified, the ALJ again denied Plaintiff’s DIB
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer (Doc. 6).
2
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claim.
(Tr. at 15-29.)
The Appeals Council subsequently denied
Plaintiff’s request for review of the decision, thereby making
the ALJ’s conclusion the Commissioner’s final decision for
purposes of judicial review.
(Tr. at 4-6.)
In rendering his disability determination on remand, the
ALJ made the following findings later adopted by the
Commissioner:
1. The claimant meets the insured status requirements
of the Social Security Act through December 31, 2012.
2. There is no evidence in the record that the
claimant has engaged in any substantial gainful
activity since October 31, 2007, the claimant’s
alleged onset date (20 CFR 404.1520(b) and 404.1571 et
seq.).
3. The claimant has the following severe impairments:
temporomandibular joint disorder (TMJ); fibromyalgia;
diabetes mellitus; obesity; sleep apnea; depression;
anxiety; and attention deficit hyperactivity disorder
(ADHD) (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity from a physical
standpoint to perform light work as defined in 20 CFR
404.1567(b). The claimant is able [to] lift up to 20
pounds occasionally and ten pounds frequently. She is
able to stand and/or walk for up to six hours and sit
for up to two hours in an eight hour work day. The
claimant has no postural, manipulative, visual,
communicative, or environmental limitations. However,
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due to the combined effects of her mental impairments
and pain, the claimant is limited to “unskilled” work
performing simple, routine, repetitive tasks in an
environment with limited interaction with supervisors,
coworkers, and the public.
(Tr. at 17-20.)
The ALJ determined that the demands of Plaintiff’s past
relevant work exceeded the above residual functional capacity
(“RFC”).
(Tr. at 26-27.)
However, the ALJ then considered
Plaintiff’s age, education, work experience, and RFC, along with
the vocational expert’s testimony regarding these factors, and
found that Plaintiff could perform other jobs that exist in
significant numbers in the national economy.
(Tr. at 27-28.)
Accordingly, he concluded that Plaintiff was not under a
“disability,” as defined in the Act, from her alleged onset date
through the date of the decision.
II.
(Tr. at 28.)
LEGAL STANDARD
Federal law authorizes judicial review of the Social
Security Commissioner’s denial of social security benefits. 42
U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir.
2006).
However, the scope of review of such a decision is
“extremely limited.”
Cir. 1981).
Frady v. Harris, 646 F.2d 143, 144 (4th
“The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
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Instead,
“a reviewing 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.”
Hancock v.
Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation
omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.”
Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation
marks omitted).
“If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
substantial evidence.”
Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
“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
[ALJ].”
Mastro, 270 F.3d at 176 (internal brackets and
quotation marks omitted).
“Where conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled,
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the responsibility for that decision falls on the ALJ.”
Hancock, 667 F.3d at 472.
In undertaking this limited review, the court notes that
“[a] claimant for disability benefits bears the burden of
proving a disability.”
Cir. 1981).
Hall v. Harris, 658 F.2d 260, 264 (4th
In this context, “disability” means the “‘inability
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.’”
Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3
“The Commissioner uses a five-step process to evaluate
disability claims.”
3
Hancock, 667 F.3d at 472 (citing 20 C.F.R.
As set out in Craig:
The Social Security Act comprises two disability
benefits programs. The Social Security Disability
Insurance Program (SSDI), established by Title II of
the Act as amended, 42 U.S.C. § 401 et seq., provides
benefits to disabled persons who have contributed to
the program while employed. The Supplemental Security
Income Program (SSI), established by Title XVI of the
Act as amended, 42 U.S.C. § 1381 et seq., provides
benefits to indigent disabled persons. The statutory
definitions and the regulations promulgated by the
Secretary for determining disability, see 20 C.F.R.
pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing
these two programs are, in all aspects relevant here,
substantively identical.
Craig v. Chater, 76 F.3d 585, 589 n.1 (4th Cir. 1996).
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§§ 404.1520(a)(4), 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked
during the alleged period of disability; (2) had a severe
impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her
past relevant work; and (5) if not, could perform any other work
in the national economy.”
Id.
A finding adverse to the claimant at any of several points
in this five-step sequence forecloses a disability designation
and ends the inquiry.
For example, “[t]he first step determines
whether the claimant is engaged in ‘substantial gainful
activity.’ If the claimant is working, benefits are denied.
The
second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d
157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden
at the first two steps, and if the claimant’s impairment meets
or equals a “listed impairment” at step three, “the claimant is
disabled.”
Mastro, 270 F.3d at 177.
Alternatively, if a
claimant clears steps one and two, but falters at step three,
i.e., “[i]f a claimant’s impairment is not sufficiently severe
to equal or exceed a listed impairment,” then “the ALJ must
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assess the claimant’s residual functional capacity (‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess whether,
based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
which “requires the [Government] to prove that a significant
number of jobs exist which the claimant could perform, despite
[the claimant’s] impairments.”
Hines, 453 F.3d at 563.
In
making this determination, the ALJ must decide “whether the
claimant is able to perform other work considering both [the
claimant’s RFC] and [the claimant’s] vocational capabilities
(age, education, and past work experience) to adjust to a new
job.”
Hall, 658 F.2d at 264-65.
If, at this step, the
Government cannot carry its “evidentiary burden of proving that
4
“RFC is a measurement of the most a claimant can do
despite [the claimant’s] limitations.” Hines, 453 F.3d at 562
(noting that administrative regulations require RFC to reflect
claimant’s “ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis . . . [which] means 8 hours a day, for 5 days a week, or
an equivalent work schedule” (internal emphasis and quotation
marks omitted)). The RFC includes both a “physical exertional
or strength limitation” that assesses the claimant’s “ability to
do sedentary, light, medium, heavy, or very heavy work,” as well
as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined
by the ALJ only after [the ALJ] considers all relevant evidence
of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
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[the claimant] remains able to work other jobs available in the
community,” the claimant qualifies as disabled.
Hines, 453 F.3d
at 567.5
III. DISCUSSION
In the present case, the ALJ found that Plaintiff had not
engaged in “substantial gainful activity” since her alleged
onset date.
She therefore met her burden at step one of the
sequential evaluation process.
At step two, the ALJ further
determined that Plaintiff suffered from the following severe
impairments: TMJ, fibromyalgia, diabetes mellitus, obesity,
sleep apnea, depression, anxiety, and ADHD.
(Tr. at 17.)
The
ALJ found at step three that these impairments did not meet or
equal a disability listing.
(Tr. at 18.)
Thereafter, he
assessed Plaintiff’s RFC and determined that Plaintiff could
lift up to 20 pounds occasionally and ten pounds frequently,
stand and walk for up to six hours in an eight-hour work day,
and sit for up to two hours in an eight-hour work day, and as a
result, the ALJ found that Plaintiff’s physical impairments
limited her to “light work” as defined in 20 C.F.R. § 404.1567.
5
A claimant thus can qualify as disabled via two paths
through the five-step sequential evaluation process. The first
path requires resolution of the questions at steps one, two, and
three in the claimant’s favor, whereas, on the second path, the
claimant must prevail at steps one, two, four, and five.
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In the first hearing, the ALJ also determined that
Plaintiff was limited to light work, but the ALJ did not account
for the effect of Plaintiff’s mental impairments. (Tr. at 78.)
In the second hearing on remand from the Appeals Council, the
ALJ found that Plaintiff’s mental impairments, combined with her
physical impairments, limited Plaintiff to “‘unskilled’ work
performing simple, routine, repetitive tasks in an environment
with limited interaction with supervisors, coworkers, and the
public.”
(Tr. at 20.)
Although the ALJ determined at step four
that Plaintiff’s RFC precluded her from performing her past
relevant work, he concluded that Plaintiff could perform other
jobs available in the national economy and was therefore not
disabled.
(Tr. at 26-28.)
Plaintiff now argues that, on remand, the ALJ erred in two
respects regarding medical expert testimony.
First, Plaintiff
contends that the ALJ’s brief questioning of the medical expert
failed to clarify the effect of Plaintiff’s mental impairments
on her RFC in accordance with the Appeals Council’s order.
(Pl.’s Br. Supp. Mot. to Reverse the Decision of the Comm’r
(“Pl.’s Br.”) (Doc. 9) at 3-4; Tr. at 86.)
Second, Plaintiff
argues that the ALJ erred by failing to allow Plaintiff’s
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counsel an opportunity to question the medical expert himself.
(Pl.’s Br. at 6-7.)
A.
Compliance with Appeals Council Order
Plaintiff first contends that the ALJ’s decision should be
reversed because the ALJ did not comply with the remand order
issued by the Appeals Council.
However, as explained below,
this court does not review an ALJ’s decision to determine if it
complies with the Appeals Council’s order.
As a result, any
noncompliance with the Appeals Council’s remand order is not a
ground, in and of itself, for the court to reverse the ALJ’s
decision.
This court, among others, has found that an Appeals Council
remand order “constitutes an intermediate agency action and not
the final decision of the Commissioner.” Thompson v. Colvin, No.
1:09CV278, 2014 WL 185218, at *4 (M.D.N.C. Jan. 15, 2014)
(citing Peckham v. Astrue, 780 F. Supp. 2d 1195, 1203 (D. Kan.
2011); Brown v. Comm’r of Soc. Sec., No. 1:08CV183, 2009 WL
465708, at *5 (W.D. Mich. Feb. 24, 2009) (unpublished); Bass v.
Astrue, No. 1:06CV591, 2008 WL 3413299, at *4 (M.D.N.C. Aug. 8,
2008) (unpublished)).
But see Scott v. Barnhart, 592 F. Supp.
2d 360, 371-72 (W.D.N.Y. 2009) (holding that the failure of an
ALJ to comply with such an order “constitutes legal error, and
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necessitates a remand”); Salvati v. Astrue, No. 3:08-CV-494,
2010 WL 546490, at *7 (E.D. Tenn. Feb. 10, 2010) (unpublished).
“Because ‘[t]he [c]ourt does not review internal, agency-level
proceedings,’ it lacks the jurisdiction to ‘address whether the
ALJ complied with specific provisions of the Appeals Council’s
remand order.’”
Thompson, 2014 WL 185218, at *4 (quoting Bass,
2008 WL 3413299, at *4).
As Plaintiff correctly notes in her brief, the Appeals
Council vacated the ALJ’s first hearing decision because the ALJ
failed to include any limitations related to Plaintiff’s
established mental limitations in his RFC finding, despite a
step two finding that Plaintiff had multiple severe mental
impairments and a step three finding that she had moderate
limitations in both social functioning and maintaining
concentration, persistence and pace.
(See Tr. at 77-78, 86.)
As a result, Plaintiff argues that her current capabilities
could not be adequately compared to the requirements of her past
work, to which the ALJ found she could return.
(Tr. at 86.)
To correct this failing on remand, the Appeals Council
directed the ALJ to “[f]urther consider [Plaintiff’s] mental
impairments . . . with the special technique described in 20 CFR
404.1520a,” “[i]f necessary, obtain evidence from a medical
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expert to clarify the nature and severity of [Plaintiff’s]
impairments and their effects singly and in combination on [her]
ability to perform work related activities,” and to reassess
Plaintiff’s RFC, “provid[ing] the appropriate function by
function assessment with rationale and specific references to
evidence of record in support of the assessed mental and
physical limitations.”
(Tr. at 86-87.)
Plaintiff now argues that the ALJ failed to adequately
question the medical expert as directed in the Appeals Council
remand order.
However, Plaintiff has not addressed the proper
scope of judicial review of an ALJ’s alleged failure to comply
with an Appeals Council remand order.
Therefore, the court will
not address whether the ALJ complied with specific provisions of
the Appeals Council’s order as Plaintiff alleges.
Instead, the
court focuses on whether the ALJ’s conclusions are “supported by
substantial evidence and were reached through application of the
correct legal standard.”
B.
Hancock, 667 F.3d at 472.
Insufficiency of Medical Opinion on Mental Impairments
While the court will not review compliance with the Appeals
Council remand order, the court examines Plaintiff’s argument to
see whether any of the alleged noncompliance with the Appeals
Council’s remand order resulted in an ALJ decision not supported
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by substantial evidence or one that the ALJ made using incorrect
legal standards.
Plaintiff asserts that the ALJ “took only
limited testimony from [a Medical Expert]” and did not ask the
Medical Expert to state opinions as to the severity of
Plaintiff’s mental impairments or whether the medical evidence
of record supported Plaintiff’s testimony as to the severity of
her mental impairments. (Pl.’s Br. (Doc. 9) at 4-5.)
However,
after reviewing the decision of the ALJ and the medical evidence
the ALJ cites, the court finds that the ALJ’s conclusions are
supported by substantial evidence and were reached through
application of the correct legal standard.
When viewed in context of the entire record, it appears
that the medical evidence regarding Plaintiff’s mental
impairments was inconsistent, and the ALJ has the responsibility
of resolving those inconsistencies.
472.
See Hancock, 667 F.3d at
During the proceeding, Plaintiff testified that her
chronic pain, lack of rest due to sleep apnea, depression,
anxiety, and ADHD created “mental fogginess” which affected her
ability to concentrate.
She stated that, during her last six
months at work, this problem adversely affected her ability to
complete paperwork.
(Tr. at 21, 568-69.)
Treatment records
from Plaintiff’s former primary care physician, Dr. Sundara
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Rajan, confirm that Plaintiff complained of pain, depression,
and sleep and memory problems.
However, these complaints began
in 2004 — three years before she ceased work (Tr. at 22, 390),
and there is no evidence from Plaintiff’s employment records
that indicate her mental impairments adversely affected her job
performance. (Tr. at 21.)
Elsewhere in the record, Plaintiff
indicated that she had always struggled with inattention. (Tr.
at 284.)
Similarly, the ALJ identified some conflict in the extent
of Plaintiff’s mental impairments in her mental health
evaluations.
Dr. Joseph Appollo, a psychiatrist, evaluated
Plaintiff in April 2007, six months before her onset date, and
diagnosed her with major depressive disorder and ADHD.
283-85.)
(Tr. at
However, Dr. Appollo assessed a Global Assessment on
Functioning (GAF) score of 65, which indicated only mild
symptoms in terms of social and occupational functioning.
at 21, 24, 283-85.)
(Tr.
A year later, an evaluation through the
North Carolina Division of Mental Health yielded a diagnosis of
adjustment disorder with mixed anxiety and depressed mood and a
GAF of 55, indicating moderate symptoms.
(Tr. at 25, 383.)
Despite this indication of increased severity in early 2007, all
medical records after this date indicate that Plaintiff’s mood
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was relatively well-controlled with medication.
480, 483-84, 485-86, 495.)
(Tr. at 25,
Based on this information, State
agency psychological consultant Dr. Guiliana Gage opined that
Plaintiff can perform simple, routine, repetitive tasks
(“SRRTs”).
(Tr. at 26, 272.)
Similarly, Dr. Nancy Herrera,
another State agency consultant, found that Plaintiff can
perform SRRTs in a low stress, low production environment with
limited social interaction.
(Tr. at 26, 260.)
To help reconcile these inconsistencies, the ALJ questioned
a medical expert, psychologist Robert Ballantyne.
Dr.
Ballantyne testified that, based on the medical records, it
appears that Plaintiff’s depression may cause her complaints of
sleep disturbance and difficulty in concentration or thinking.
(Tr. at 590-591.)
The ALJ questioned Dr. Ballantyne regarding
the evidence of Plaintiff’s mental impairments in the medical
record, and specifically questioned Dr. Ballantyne regarding the
severity of Plaintiff’s depression. (Tr. at 590.)
Dr.
Ballantyne pointed to Plaintiff’s GAF scores as indicators of
the severity of her mental condition.
When asked whether
Plaintiff met a listing related to her mental impairments, Dr.
Ballantyne identified the relevant listings but indicated that
Plaintiff did not meet those listings.
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(Tr. at 591.)
This
testimony was directly elicited to clarify the nature and
severity of Plaintiff’s mental impairments and the effects of
those impairments on her ability to perform work related
activity, and Dr. Ballantyne’s testimony was considered and
reflected in the ALJ’s decision.
(Tr. at 25.)
Overall, the ALJ determined that Plaintiff has an RFC from
a mental standpoint to perform “unskilled” work. (Tr. at 26.)
Initially, the ALJ found that “the evidence as a whole is not
fully supportive of [Plaintiff’s] subjective complaints” (Tr. at
26), and “there is no indication that [Plaintiff] reported any
problems being around people or out in public” (Tr. at 25).
Nonetheless, the ALJ gave Plaintiff “the benefit of the doubt”
and limited her to “‘unskilled’ work performing simple, routine,
repetitive tasks in an environment with limited interaction with
supervisors, coworkers, and the public.”
(Tr. at 26.)
In
short, the ALJ fully analyzed the nature and severity of
Plaintiff’s mental impairments and their effects on her ability
to work, and assigned significant mental RFC limitations.
In determining if the ALJ’s determination is supported by
substantial evidence, the court does not question the
conflicting evidence resolved by the ALJ.
at 472.
See Hancock, 667 F.3d
Instead, the court looks to the facts cited by the ALJ
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and considers whether the ALJ has built “an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000).
In this case, the ALJ considered all medical opinions and
evaluations related to Plaintiff’s mental impairments, including
the Global Assessment of Functioning (GAF) test conducted by
psychiatrist Dr. Appollo in 2007 that indicated only mild
symptoms of difficulty in social or occupational functioning
(Tr. at 22), the GAF test conducted in 2008 by the North
Carolina Division of Mental Health that indicated moderate
symptoms of difficulty in in social or occupational functions
(Tr. at 25), the testimony of the State agency psychological
consultants that Plaintiff was limited to unskilled work, and
the testimony of Dr. Ballantyne explained above.
After discussing this evidence in his decision, as well as
discounting Plaintiff’s testimony as to her limitations, the ALJ
stated that his opinion regarding Plaintiff’s mental impairments
RFC were consistent with those of the State agency psychological
consultants that limited Plaintiff to unskilled work performing
simple, routine, repetitive tasks in an environment with limited
interaction with supervisors, coworkers, and the public. (Tr. at
26.)
Plaintiff makes no argument discrediting this conclusion,
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and the record itself provides none. Therefore, substantial
evidence supports the ALJ's RFC determination.
The court finds
no error.7
C.
Cross-Examination of Medical Expert
Plaintiff next contends that the ALJ barred her from crossexamining the medical expert.
However, Plaintiff was
represented by counsel at the hearing, and there is no evidence
in the hearing transcript that Plaintiff’s counsel ever asked to
question the medical expert, let alone was actively barred from
doing so.
(See Tr. at 591.)
The applicable regulations provide that the ALJ “will
allow” the parties or their representatives to question
witnesses. 20 C.F.R. § 404.950(e).
The transcript reveals that
the ALJ first questioned Plaintiff, and then told Plaintiff’s
counsel, “Counsel, before you question I’m going to get Dr.
Balentine [sic] to give me what his overview of her
psychological status is.”
(Tr. at 590.)
7
The ALJ then
Although the issue of the ALJ’s compliance with the
Appeals Council remand order is an internal administrative step
not directly before the court, the court notes that, in any
event, the evidence in the record indicates that the ALJ did
comply with the Appeals Council remand order by further
assessing Plaintiff’s mental impairments, as noted at length
above, and to the extent necessary, obtaining evidence from a
medical expert to clarify the nature and severity of her
impairments and their effects on her ability to perform
work-related activities.
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questioned Dr. Ballantyne and then returned to questioning
Plaintiff.
(Tr. at 591.)
At the conclusion of his questioning,
the ALJ stated, “All right, counsel, you can question.”
594.)
(Tr. at
Plaintiff’s counsel then questioned Plaintiff but did not
question Dr. Ballantyne.
(Tr. at 594-604.)
Thus, based on the
transcript of the proceeding, there is no indication that
Plaintiff’s counsel was in any way precluded from questioning
Dr. Ballantyne at that time.
Moreover, Plaintiff’s counsel
confirmed before the close of the administrative proceedings
that the medical record was complete and that he had nothing
further.
(Tr. at 609.)
Given these circumstances, the court
finds no legal error on the part of the ALJ.8
IV.
CONCLUSION
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is AFFIRMED, that Plaintiff’s Motion to
Reverse the Decision of the Commissioner of Social Security
(Doc. 8) is DENIED, that Defendant’s Motion for Judgment on the
Pleadings (Doc. 10) is GRANTED, and that this action is
DISMISSED with prejudice.
A judgment consistent with this
8
The court also notes that in his briefing before this
court, Plaintiff’s counsel does not identify any additional
matters that he would have asked the medical expert that were
not sufficiently addressed in the testimony provided at the
hearing. Thus, the court also cannot find any prejudice as a
result of the alleged error.
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Memorandum Opinion and Order will be entered contemporaneously
herewith.
This the 30th day of September, 2014.
_______________________________________
United States District Judge
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