MARSHALL v. COLVIN
Filing
19
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/14/2015; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for a Judgment Reversin g or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing (Docket Entry 12 ) should be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) should be granted, and that this action be dismissed with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN G. MARSHALL,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:14CV542
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, John G. Marshall, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying
(“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Benefits
The Court has before it the certified
administrative record (cited herein as “Tr. __”), as well as the
parties’ cross-motions for judgment (Docket Entries 12, 16).
For
the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on August 13, 2010
(protective filing date), alleging his disability began on that
same date.
that
(Tr. 178-81; see also Tr. 86, 224.)
application
initially
(Tr.
86-102,
Upon denial of
121-29)
and
on
reconsideration (Tr. 103-18, 131-38), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 139-40).
Plaintiff, his attorney, and a vocational expert (“VE”) attended
the hearing (Tr. 28-83), at which Plaintiff amended his alleged
onset date to March 31, 2011, his 50th birthday (see Tr. 36-37,
201).
By decision dated March 29, 2013, the ALJ determined that
Plaintiff did not qualify as disabled under the Act.
(Tr. 8-23.)
On May 1, 2014, the Appeals Council denied Plaintiff’s request for
review (Tr. 1-5), making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2013.
2.
[Plaintiff] has not engaged in substantial gainful
activity since March 31, 2011, the amended alleged onset
date of disability.
3.
[Plaintiff] has the following severe impairments:
chronic left ankle pain and chronic right leg pain.
. . . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . . .
5.
[Plaintiff] has the residual functional capacity to
perform light work . . . except that he can frequently
climb and balance but can only occasionally stoop and
climb ladders. Although an assistive device has not been
prescribed the undersigned gives [Plaintiff] the benefit
of the doubt and finds . . . that [Plaintiff] requires
the use of a cane to ambulate.
He also requires the
2
option to alternate between sitting and standing at will
throughout the workday.
. . . .
6.
[Plaintiff] is capable of performing past relevant
work as an Electronic Assembler.
This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from March 31, 2011, the amended
alleged onset date of disability, through the date of
this decision.
(Tr. 13-22 (internal parenthetical citations omitted).)1
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
In
this case, Plaintiff has not shown entitlement to relief under the
extremely limited review standard.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
1
Instead,
The ALJ further noted the VE’s testimony that an individual with Plaintiff’s
age, education, work experience, and residual functional capacity could perform
the jobs of crossing tender, information clerk, and storage facility rental
clerk. (See Tr. 22; see also Tr. 75-78.) Accordingly, the ALJ found in the
alternative that “[Plaintiff] is capable of making a successful adjustment to
other work that exists in significant numbers in the national economy.” (Tr.
22.)
3
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
marks
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.
1992) (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 [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” 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,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
4
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, 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)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
2
regulations
establish
a
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
. . .Supplemental Security Income . . . provides benefits to indigent disabled
persons. The statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects relevant here,
substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal citations
omitted).
5
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“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 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 [the claimant’s] past work or (5) any other work.”
Albright v. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award 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
each of the first three steps, 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,
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
the ALJ must 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,
whereupon 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 Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
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.
5
A claimant thus can establish disability via two paths through the SEP. 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. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) the ALJ failed to give good reasons for assigning no
weight to certain of the opinions of consultative examiners Dr.
Peter Morris and Dr. Patrick B. Sullivan (Docket Entry 13 at 2-7);
and
(2) the ALJ improperly rejected the Third Party Function
Report completed by Plaintiff’s girlfriend, Julie Spencer (id. at
7-10).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 17 at 4-16.)
Evaluation of Consultative Examiners’ Opinions
In Plaintiff’s first assignment of error, he faults the ALJ
for failing
to
give
good
reasons
for
rejecting
the
physical
limitations opined by consultative examiner Dr. Morris and the
diagnosis of depression offered by consultative psychologist Dr.
Sullivan.
(Docket Entry 13 at 2-7.)
In regards to Dr. Morris,
Plaintiff challenges the ALJ’s rationale that Dr. Morris’ findings
“fully contradict” his opinions.
(Id. at 6; see also Tr. 20, 330-
36.) Further, Plaintiff contends that, in rejecting Dr. Sullivan’s
diagnosis of depression, “[t]he ALJ substituted her lay opinion for
that of the Commissioner’s psychological expert.”
also Tr. 325-29.)
(Id. at 7; see
Plaintiff’s contentions do not warrant relief.
8
Consultative examiners do not constitute treating sources
under the regulations, see 20 C.F.R. § 404.1527(c)(2), and thus
their
opinions,
as
a
general
proposition,
do
not
warrant
controlling weight, Turberville v. Colvin, No. 1:11CV262, 2014 WL
1671582, at *6 (M.D.N.C. Apr. 23, 2014) (unpublished), rec. adopted
slip op. (M.D.N.C. May 15, 2014) (Eagles, J.).
However, the ALJ
must nevertheless evaluate consultative opinions using the factors
outlined in 20 C.F.R. § 404.1527(c)(1) through (6), and expressly
indicate and explain the weight he or she affords to such opinions.
See 20 C.F.R. § 404.1527(c) (“Regardless of its source, [the ALJ]
will evaluate every medical opinion [he or she] receive[s]” and
where an opinion does not warrant controlling weight, [the ALJ
must]
consider
all
of
the
.
.
.
factors
[in
20
C.F.R.
§ 404.1527(c)(1)-(6)] in deciding the weight [to] give to any
medical opinion.” (emphasis added)); Social Security Ruling 96–5p,
Medical Source Opinions on Issues Reserved to the Commissioner,
1996 WL 374183, at *5 (July 2, 1996) (“SSR 96–5p”) (noting that
ALJs “must weigh medical source statements . . . [and] provid[e]
appropriate
opinions”);
explanations
Social
for
Security
accepting
Ruling
96–8p,
or
rejecting
Assessing
such
Residual
Functional Capacity in Initial Claims, 1996 WL 374184, at *7 (July
2, 1996) (“SSR 96–8p”) (“The RFC assessment must always consider
and address
medical
source
opinions.
If
the
RFC
assessment
conflicts with an opinion from a medical source, the [ALJ] must
9
explain why the opinion was not adopted.”); see also Gordon v.
Schweiker,
725
reviewing
F.2d
court
231,
generally
235
(4th
“cannot
Cir.
1984)
determine
if
(holding
findings
that
are
supported by substantial evidence unless the [ALJ] explicitly
indicates the weight given to all of the relevant evidence”).
Dr. Morris consultatively examined Plaintiff on June 30, 2011,
and diagnosed Plaintiff with “[s]tatus post injury to right femur,
right knee and right lower leg in 1985,” “[r]ecent fracture of the
left fibula,” and “[d]epression.”
(Tr. 335.)
As a result of these
impairments, Dr. Morris opined that Plaintiff could stand and walk
for a total of two hours and sit for a total of six hours in an
eight-hour work day, with a break once per hour, could lift and
carry less than ten pounds, could not perform postural movements
throughout an eight-hour work day, and could not work at heights.
(Tr. 335-36.)
After discussing Dr. Morris’ findings and opinions, the ALJ
found as follows:
The undersigned assigns significant weight [to] Dr.
Morris’ observations that [Plaintiff] can handle all of
his personal care, could sit comfortably throughout the
examination, could take his shoes on and off without
difficulty, had tenderness in his leg, and could not
perform postural maneuvers due to a recent left ankle
injury. The undersigned also assigned significant weight
[to] Dr. Morris’ observation that [Plaintiff] could walk
without assistance.
All of these observations are
consistent with the medical evidence as a whole and
accurately reflect [Plaintiff’s] symptoms as reported
during the examination to other medical providers, and at
the hearing. The undersigned assigns no weight to Dr.
Morris’ opinions regarding [Plaintiff’s] limitations as
10
they fully contradict
examination.
the
above
observations
and
(Tr. 20.)
Here, the ALJ did not specifically identify which of Dr.
Morris’
examination
findings
“fully
contradict”
limitations for Plaintiff. (See Tr. 20.)
his
physical
Moreover, a review of Dr
Morris’ observations and findings on examination does not elucidate
which such findings the ALJ found “fully contradict[ory].”
Dr.
Morris’ examination reflects that Plaintiff “had a very slow and
antalgic gait,” refused to try tandem walking, heel walking, and
toe walking and could not perform “postural maneuvers” because of
his left ankle injury, had decreased range of motion in his
cervical and lumbar spines, right hip, right knee, and both ankles,
had tenderness to palpation in the right hip and both lower legs
and ankles, had some atrophy in his right lower leg, had 4/5
strength in the left leg and 3/5 strength in the right leg, and
complained of some numbness in his right leg.
(Tr. 334-35.)
Given
these findings, substantial evidence does not support the ALJ’s
bare
conclusion
that
Dr.
Morris’
physical
contradict” his findings on examination.
limitations
“fully
(Tr. 20.)
However, Plaintiff cannot show any prejudice arising from the
ALJ’s failure to properly explain her rationale with regard to Dr.
Morris’ physical limitations where substantial evidence supports
the ALJ’s ultimate decision to assign “no weight” to Dr. Morris’
limitations.
Notably, Dr. Morris’ limitations depend, in large
11
part, on the fact that, as of the date of Dr. Morris’ examination,
June
30,
2011,
Plaintiff’s
left
ankle
fracture
had
not
yet
completely healed. For example, Dr. Morris observed that Plaintiff
“fractured
his
left
fibula
two
months
ago
and
is
still
in
recovery,” that he “uses a walking boot all the time” (Tr. 331
(emphasis added)), and that Plaintiff “refused to try tandem
walking, heel walking and toe walking” and “was unable to perform
postural maneuvers because of the recent left lower extremity
injury” (Tr. 334 (emphasis added)). Dr. Morris based his limits on
standing, walking, and heights in part on Plaintiff’s inability to
tandem, heel, and toe walk and included postural restrictions based
on Plaintiff’s inability to perform postural movements because of
his recent left ankle injury.
(Tr. 335-36.)
As recognized by the
ALJ, just over one month later, [Plaintiff’s] left ankle fracture
had healed and upon physical examination he showed no tenderness
over the fracture site and had gained full ankle mobility.”
(Tr.
14.)
In short, although the ALJ did not sufficiently explain the
basis
for
the
weight
she
assigned
to
Dr.
Morris’
opinions,
substantial evidence supports her ultimate decision to afford such
opinions “no weight.”
(Tr. 20.)
Under those circumstances, the
Court should find the ALJ’s error harmless.
See Fisher v. Bowen,
869
(“No
F.2d
1055,
1057
(7th
Cir.
1989)
principle
of
administrative law or common sense requires us to remand a [Social
12
Security] case in quest of a perfect opinion [from an ALJ] unless
there is reason to believe that the remand might lead to a
different result.”).
Dr. Sullivan evaluated Plaintiff at the behest of the Social
Security Administration on June 13, 2011.
(Tr. 325-29.)
Dr.
Sullivan’s report reflects that Plaintiff maintained a “flat,
blunted, restricted affect” and a “moderately depressed” mood.
(Tr.
327.)
Further,
Dr.
Sullivan
found
Plaintiff’s
thought
processes “highly circumstantial and obsessively preoccupied with
physical
pain
and
delusional thinking.”
symptoms”
(Id.)
and
observed
“mild
persecutory
Plaintiff reported that he “hear[s]
things a lot” and “sometimes see[s] somebody near [his] bed.”
(Id.)
As a result of Dr. Sullivan’s observations and Plaintiff’s
symptom reports, Dr. Sullivan diagnosed “dysthymic disorder” and
rated Plaintiff’s Global Assessment of Functioning as “50 to 55.”
(Tr. 329.)6
The ALJ recited Dr. Sullivan’s findings and conclusions and
remarked as follows:
6
The GAF is a numeric scale from 0 to 100 representing a clinician’s judgment
of an individual’s social, occupational and school functioning “on a hypothetical
continuum of mental health-illness.” American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. text revision 2000). A GAF
of 41 to 50 reflects “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).”
Id. at 34. A GAF of 51 to 60 indicates “[m]oderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with
peers or coworkers).” Id. A new edition of the leading treatise discontinued use
of the GAF. See American Psychiatric Ass’n, Diagnostic and Statistical Manual
of Mental Disorders 16 (5th ed.2013).
13
The undersigned assigns significant weight to the
observations and analysis of [Plaintiff’s] activities of
daily living as provided in Dr. Sullivan’s report as they
are consistent with the remaining medical evidence and
somewhat reflect [Plaintiff’s] symptoms as he reported
them to other medical providers and at the hearing except
that [Plaintiff] has never reported to any other medical
providers that he has experienced hallucinations of any
kind. The undersigned further assigns no weight to the
consultative examiner’s diagnosis of depression as
[Plaintiff] has had nominal medical treatment for this
condition, has adequate activities of daily living, has
had no hospitalizations for the condition, and [the
diagnosis] is based on his subjective complaints,
including [Plaintiff’s] reports of hallucinations, which
are inconsistent with what he has reported to other
medical providers and at the hearing.
(Tr. 19.)
The ALJ’s statement that she assigned “no weight” to Dr.
Sullivan’s
“diagnosis
of
depression”
fails
to
satisfy
the
regulatory requirements for several reasons. First, at step two of
the SEP, the ALJ found that “depression” constituted a medically
determinable impairment for Plaintiff but did not rise to the level
of a severe impairment. (Tr. 15-16.)
Thus, the ALJ’s rejection of
Dr. Sullivan’s “depression” diagnosis conflicts with the ALJ’s own
finding at step two.
Second,
Dr.
Sullivan
did
not
diagnose
Plaintiff
“depression” but rather with “dysthymic disorder.”
with
(Tr. 329.)
Although the Diagnostic and Statistical Manual of Mental Disorders
(“DSM-IV-TR”)
does
not
include
a
mental
disorder
generically
entitled “depression,” the DSM-IV-TR specifies that “dysthymic
disorder,” characterized by “a chronically depressed mood that
14
occurs for most of the day more days than not,” must last “for at
least [two] years.”
requirement,
the
DSM-IV 376.
Court
cannot
Because of this durational
determine
whether
the
ALJ,
in
rejecting the so-called “depression” diagnosis, merely disputed
whether
Plaintiff
suffered
from
depression
at
all
or
rather
questioned Dr. Sullivan’s opinion that Plaintiff had suffered (or
would suffer) from his symptoms long enough for them to constitute
dysthymic disorder.
Third, the ALJ did not discuss the weight, if any, she
assigned to Dr. Sullivan’s GAF of 50 to 55, representing moderate
to
serious
functioning.
difficulty
in
social,
occupational,
or
school
See Locklear v. Colvin, No. 7:14–CV–154–FL, 2015 WL
4740786, at *9 (E.D.N.C. Aug. 10, 2015) (unpublished) (“GAF scores
are an assessment of an individual’s social, occupational and
psychological capacities and should be considered by the ALJ in
determining a claimant’s RFC.”); see also Administrative Message
13066 (AM–13066) (effective July 22, 2013) (“For purposes of the
Social
Security
disability
programs,
when
it
comes
from
an
acceptable medical source, a GAF rating is a medical opinion
. . . .
An [ALJ] considers a GAF score with all of the relevant
evidence in the case file and weighs a GAF rating as required by 20
CFR §[] 404.1527(c) . . . .”).
Although the ALJ erred in her analysis of Dr. Sullivan’s
opinions, the Court should conclude that error remains harmless
15
under the circumstances of this case.
posed
multiple
hypothetical
During the hearing, the ALJ
questions
to
the
VE,
including
hypothetical three, which built upon hypotheticals one and two and
assumed a capacity for light work, frequent climbing of ramps and
stairs,
climbing
frequent
of
balancing,
ladders,
no
occasional
exposure
to
stooping,
hazardous
occasional
conditions
or
heights, and the need to use an assistive device to ambulate, as
well as the following mental limitations: “simple, routine tasks;
simple, short instructions; simple work-related decisions; few work
place changes; no work at [a] fixed production rate or pace;
occasional interaction [with the] general public, co-workers, [and]
supervisors.”
(Tr. 75-77.)
In response, the VE cited three jobs,
available in significant numbers in the national economy, that
Plaintiff
could
perform.
(Tr.
77.)
The
ALJ
then
asked
hypothetical four, adding the need to alternate between sitting and
standing, and the VE indicated the same jobs remained available.
(Tr. 77-78.) Plaintiff does not suggest how a re-evaluation of Dr.
Sullivan’s
opinions
would
further
alter
the
RFC
and
the
corresponding hypothetical question or throw into question the
ALJ’s ultimate conclusion that Plaintiff could perform other jobs
in the national economy.
(Docket Entry at 13 at 7.)
The Court therefore should decline to remand the case due to
any errors in the assessment of Dr. Sullivan’s diagnosis.
See
Fisher, 869 F.2d at 1057 (“No principle of administrative law or
16
common sense requires us to remand a [Social Security] case in
quest of a perfect opinion [from an ALJ] unless there is reason to
believe that the remand might lead to a different result.”); see
also McAnally v. Astrue, 241 F. App’x 515, 518 (10th Cir. 2007)
(“[W]e agree with the magistrate that, ‘[w]ith regard to [her]
hypertension, loss of vision or skin problems, the claimant has
shown no error by the ALJ because she does not identify any
functional limitations that should have been included in the RFC
[assessment]
or
discuss
any
evidence
that
would
support
the
inclusion of any limitation.’”); Anderson v. Colvin, No. 1:10CV671,
2013 WL 3730121, at *7 (M.D.N.C. Jul. 12, 2013) (Webster, M.J.)
(unpublished) (“Plaintiff has failed to establish how further
scrutiny of the combination of her impairments results in any
greater functional limitations than those already set forth in her
RFC.”), recommendation adopted in relevant part, 2014 WL 1224726
(M.D.N.C. Mar. 25, 2014) (Osteen, C.J.) (unpublished); Miles v.
Astrue, No. 8:07-3164-RBH, 2009 WL 890651, at *14 (D.S.C. Mar. 30,
2009) (unpublished) (“[T]he plaintiff details various pieces of
evidence which she contends the ALJ misconstrued . . . . The
plaintiff, however, has not explained how such evidence, if fully
considered, would have proven additional limitations sufficient to
eliminate the possibility that [the] plaintiff could perform the
sedentary work required of her past relevant work.
17
Accordingly,
error, if any, in either failing to consider such evidence or in
misconstruing it, would be harmless.”).
In sum, Plaintiff’s first assignment fails as a matter of law.
2.
Evaluation of Third Party Function Report
In Plaintiff’s second and final issue on review, Plaintiff
argues that the ALJ erred by rejecting the Third Party Function
Report completed by Plaintiff’s girlfriend, Julie Spencer. (Docket
Entry 13 at 7-10 (citing Tr. 235-45).)
contends
that
the
ALJ’s
stated
In particular, Plaintiff
grounds
for
discounting
Ms.
Spencer’s statement, i.e., because Ms. Spencer “is not a medical
doctor” and “has a natural bias in favor of [Plaintiff] due to
their personal relationship” (Tr. 20), “amounted to a wholesale
dismissal of [Ms. Spencer’s statement] without any reference to
supportive
evidence”
(Docket
Entry
13
at
9).
According
to
Plaintiff, the ALJ’s improper analysis does not constitute harmless
error, because “the ALJ found [Plaintiff’s] testimony . . . not
credible and [his girlfriend’s] statement supports and corroborates
[his] testimony.” (Id. at 10.)
Plaintiff’s contentions provide no
basis for relief.
In addition to evidence from “acceptable medical sources,” 20
C.F.R. § 404.1513(a) (defining “acceptable medical sources” as
including licensed medical or osteopathic physicians, licensed or
certified
psychologists,
licensed
optometrists,
licensed
podiatrists, and qualified speech-language pathologists), the ALJ
18
may consider evidence from other non-medical sources, such as
statements
from
spouses,
relatives,
friends,
parents,
neighbors,
caregivers,
and
clergy,
siblings,
to
other
determine
the
severity of a claimant’s impairments and his or her residual
ability to work, see 20 C.F.R. § 404.1513(d)(4).
See also Social
Security Ruling 06–03p, Titles II and XVI: Considering Opinions and
Other
Evidence
from
Sources
Who
Are
Not
“Acceptable
Medical
Sources” in Disability Claims; Considering Decisions on Disability
by
Other
Governmental
and
Nongovernmental
2329939, at *2 (Aug. 9, 2006) (“SSR 06–03p”).
Agencies,
2006
WL
“[I]nformation from
[non-medical sources] may be based on special knowledge of the
individual
and
may
provide
insight
into
the
severity
of
the
impairment(s) and how it affects the individual's ability to
function[;]” however, in considering evidence from these sources,
“it would be appropriate to consider such factors as the nature and
extent of the relationship, whether the evidence is consistent with
other evidence, and any other factors that tend to support or
refute the evidence.”
Ms.
Spencer
SSR 06–03p, 2006 WL 2329939, at *2, *6.
completed
a
Third
Party
Function
Report
in
February, 2011, in which she related that she lived with Plaintiff,
had known him for 23 years, and spent about ten to 30 minutes per
day with him.
(See Tr. 235.) Ms. Spencer indicated that Plaintiff
could handle his personal needs, that he drove and could go out
alone, that he cooked meals once per day, that he took care of his
19
dog, that he watched television and movies, and that he purchased
groceries and personal items for about ten to 20 minutes at a time
on a near daily basis.
(See Tr. 235, 239-42.)
According to Ms.
Spencer, Plaintiff had poor sleep due to pain, could walk one
quarter of a mile before needing to rest, and used a cane all of
the time.
(See Tr. 239, 243-44.)
The ALJ summarized Ms. Spencer’s report, and then evaluated it
as follows:
The undersigned assigns little weight to the opinions of
Ms. Spencer as she is not a medical doctor who can
diagnose [Plaintiff’s] alleged impairments nor assess
their limitations. Furthermore, she has a natural bias
in favor of [Plaintiff] due to their personal
relationship.
(Tr. 20.)
On one hand, SSR 06-03p expressly permits an ALJ to
consider “the nature and extent of the relationship” between a
claimant and a third party source, as well as “any other factors
that tend to support or refute the evidence.”
2329939, at *6.
SSR 06–03p, 2006 WL
Thus, the ALJ did not commit per se error in
relying on the above-quoted reasons for rejecting Ms. Spencer’s
report.
On the other hand, Plaintiff’s point that the bases cited
by the ALJ could discredit virtually “any family member, friend,
housemate or acquaintance who testified or gave a statement in any
case” (Docket Entry 13 at 9) has some merit.
Ideally, the ALJ
would provide more complete, evidence-based reasons for rejecting
a third party’s report.
See Dodrill v. Shalala, 12 F.3d 915, 919
(9th Cir. 1993) (“If the ALJ wishes to discount the testimony of
20
the lay witnesses, he must give reasons that are germane to each
witness.”); Cooper v. Astrue, No. 2:08–CV–18–FL, 2009 WL 928548, at
*5-6 (E.D.N.C. Apr. 3, 2009) (unpublished) (“If the ALJ decides to
reject lay testimony concerning a [c]laimant’s pain or other
symptoms,
the ALJ
specificity
to
must
enable
do
so
explicitly and
the court
to
decide
with
whether
sufficient
there
are
legitimate reasons for the ALJ’s disbelief and whether the ALJ’s
determination
is
supported
by
substantial
evidence.”
(citing
Hatcher v. Secretary, Dep't of Health & Human Servs., 898 F.2d 21
(4th Cir. 1989))).
However, even assuming that the ALJ’s stated reasons for
discrediting Ms. Spencer constituted error, no basis exists for
remand of the case.
Plaintiff has failed to demonstrate how a
proper analysis of Ms. Spencer’s report would have resulted in a
different outcome in the case.
(See Docket Entry 13 at 7-10.)
That fact defeats this assignment of error.
See Dyrda v. Colvin,
47 F. Supp. 3d 318, 326-27 (M.D.N.C. 2014) (Schroeder, J.) (finding
ALJ’s failure to properly evaluate lay witness’s statement harmless
error where “the statement added little of substance to the record
because it merely corroborated [the plaintiff’s] testimony, which
the ALJ expressly found not to be credible in light of the medical
evidence and record” and where the plaintiff [made] no attempt to
show at which step he was prejudiced by the ALJ’s failure to
explain the weight given to the lay witness’s statement”).
21
Accordingly, Plaintiff’s second issue on review provides no
basis for relief.
III.
CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for a
Judgment Reversing or Modifying the Decision of the Commissioner of
Social Security, or Remanding the Cause for a Rehearing (Docket
Entry 12) should be denied, that Defendant’s Motion for Judgment on
the Pleadings (Docket Entry 16) should be granted, and that this
action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 14, 2015
22
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