BANNISTER v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 8/25/2015; that Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 9 ) be GRANTED, that Defendant's Motion for Summary Judgment (Docket Entry 11 ) be DENIED. FURTHER that the decision of the ALJ be REVERSED and that this matter be REMANDED to the Commissioner for an award of benefits. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
REBECCA D. BANNISTER,
)
)
)
Plaintiff,
)
)
)
)
)
)
)
)
V
CAROLYN Sí. COLVIN,
Acting Commissionet of Social
S ecurity,\dminis tration,
Defendant.
Civil,\ction No. 1,:1,4CY7 41
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rebecca D. Bannister, btought this action pursuant to Section 205(9) of the
Social Security Act (the
'îcC'),
as amended (42 U.S.C. $ a05(g)),
to obtain judicial review of
a îtnal decision of the Commissioner of Social Security denying her claim fot supplemental
secwity income ("SSI"). The Coutt has befote
it the cetified administtative
tecord and
ctoss-motions for judgment. For the reasons set forth below, the Court recommends that
Plaintiffs motion (Docket E.ttty 9) be granted, the Commissioner's motion (Docket E.rtty
11) be denied, and the case be remanded fot the awatding of benefìts.
I.
PROCEDURAL HISTORY
Plaintiff filed an application fot SSI on January
disabled onJanuary 8,201,1,.
upon reconsidetation. (Id.
(Ir.
1.4, 2011, alleging
that she became
158-164.)1 The application was denied initially and agun
93, '1,02.) Plaintiff then requested a hearing befote
^t
Administrative Law Judge ("AIJ").
an
(Id. at 1,07-1,09.) Present at the June 4, 2013 heatrng
t Transcript citations refer to the adminisffadve tecotd which was filed with Defendant's Answer.
(Docket Entry 7.)
were Plaintiff and her attorney.
disabled under the
Act.
(d. at39.) The AIJ
determined that Plaintiff was not
(Id. at 10-19.) Plaintiff requested that the -Appeals Council teview
the ALJ's decision. Qd. at
6.) On June 30, 20L4, the -A.ppeals Council denied Plaintiffs
request for review, making the ,\LJ's determination the Commissionet's fìnal decision for
purposes
of teview. (d. at 1,-3.) The Plaintiff has exhausted aII avallal:le
administrative
remedies, and this case is now ripe for review pursuant to 42 U.S.C. $ 405(g).
II. FACTUAL BACKGROUND
Plaintiff was 47 years old on the alleged disability onset date. Çr. 37.) She has an
eleventh grade education and is able to tead and wdte.
III.
(Ir.
a0.)
STANDARD FOR REVIEW
The Commissioner held that Plaintiff was not undet a disability within the meaning
of the -dct. Under 42 U.S.C. $ a05(g), the scope of judicial review of the Commissioner's
final decision is specific and narrow. Smith u. Schweiker,795 tr.2d 343,345 (4th Cir. 1986).
This Court's review of that decision is limited to determining whethet thete is substantial
evidence in the record to support the Commissioner's decision. 42 U.S.C. $ a05(g); Hanter
Salliuan,993tr.2d31,,34 (4th Cir. 1,992); Hals
Substantial evidence
is "such relevant
u.
u.
Salliuan,907 tr.2d1453,1.456 (4th Cir. 1990).
evidence as
a teasonable mind might accept
as
adequate to support a conclusion." Hanter, 993 F.2d at 34 (citing Nchard¡on u. Perale¡, 402
U.S. 389, 401 (1,971)).
"It
consists
of mote than a mere scintilla of evidence but may be
somewhat less than a prepondefa,nce." Id. (quottng I-øws u. Celebreçry,368 F.2d 640, 642 (4th
Cn.'1966)).
2
The Commissionet must make findings of fact and resolve conflicts in the evidence.
Ha1s, 907 F.2d at 1456 (citing King u. Calfano, 599
does not conduct a de novo review
Schweiker,795 F.2d
undertake
F.2d 597 , 599 (4th Cir. 1979)). The Court
of the evidence not of the Commissioner's
findings.
at 345. In reviewing fot substantial evidence, the Court does not
to te-weigh conflicting
evidence,
to make ctedibility determinations, or
to
substitute its judgment for that of the Commissioner. Craigu. Chater,76F.3d 585,589 (4th
Ck.
1,996) (citing
Hryt,907 F.2d at1,456). "!(/hete conflicting evidence allows teasonable
minds to diffet as to whether a claimant is disabled, the responsibility for that decision falls
on the [Commissioner] (or the [Commissioner's] designate, the ÂLJ)." Cmig76F.3d at 589
(quoting lY/alker
reversed only
u. Boweru,834
tr.2d 635, 640 (7th Cir. 1987). The denial of benefits will be
if no reasonable mind
determination.
See
could accept the recotd as adequate to suppott the
Nchardson u. Perales,402 U.S. 389,401, (1,971). The issue befote the Court,
thetefote, is not whethet Plaintiff is disabled, but whethet the Commissioner's finding that
Plaintiff is not disabled is supported by substantial evidence and was reached based upon
coffect application of the relevant law.
See
a
id.; Cofman u. Bowen,829 F.2d 51.4, 517 (4th Cir.
le87)
IV. DISCUSSION
The Social Secutity Regulations defìne "disability" fot the purpose of obtaining
disability benefits under the
reason
of any medically
,\ct
as the "inability
to do any substantial gainful activity by
detetminable physical ot mental impaitment2 which can be expected
' ,4. "physical or mental impairment" is an impairment resulting from"anatomical, physiological, ot
psychological abnormalities which are demonstrable by medically acceptable clinical andlaboratory
diagnostic techniques." 42 U .5.C. SS 423 (dX3), 1382c(a)(3XD)
a
t
to tesult in death ot which has lasted ot can be expected to last for a continuous period of
not less than 12 months." 20 C.tr.R. S 404.1505(a);
see
al¡o 42 U.S.C. $$ a23(d)(1)(a),
1382c(a)(3)(A). To meet this defìnition, a claimant must have a severe impafument which
it impossible to do ptevious work or
makes
in the national economy. 20
^ny
other substantial gainful acttvity3 that exists
C.F'.R. S 404.1505(a); see al¡o 42 U.S.C. SS 423(dX2)(A),
1382c(a)(3)(B).
A.
The Five-Step Sequential Analysis
The Commissionet uses a fìve-step process to evaluate disability claims. 20 C.F.R.
404.1520,41,6.920.
See
Hannck
u.
Astrae,667 F.3d 470,472 (4th Cir.
SS
201,2).
Undet this process, the Commissioner asks, in sequerice, whethet the
claimant (1) worked dudng the alleged petiod of disability; Q) had a severe
impairment; (3) had an impairment that met or equaled the requirements of a
Iisted impairment; (4) could teturn to her past relevant work; and (5) if not,
could petform any other work in the national economy.
Id. (cittng 20 C.F.R.
SS
404.1520,41,6.920(^X4). The claimant bears the burden as to the
fout steps, but the Commissionerbears the burden
In
as
frst
to the fifth step. Id. at472-73.
undertaking this sequentìal evaluation process, the five steps are considered in
tutn, although a finding advetse to the
clair.rrant at either
of the fìrst two steps forecloses
a
determination of disability and ends the inquiry. In this regard, "[t]he füst step determines
whether the claimant is engaged in 'substantial gainful activity.'
benefìts are denied. The second step determines
benefits are denied
."
Bennett u.
Sulliuan,917 tr.2d
t
If
the claimant is working,
if the claimant is 'severely' disabled. If not,
157
, 1,59 (4th Cir. 1990).
"srrbstuntial gainful activity" is work that (1) involves performing significant or productive
physical ot mental duties, and (2) is done (or intended) for p^y or profrt. 20 C.F.R. SS 404.1510,
41,6.910.
4
If a clatrnant carries
his butden at the
ftst two steps and also meets his burden at step
in
the
regulations, the claimant is disabled, and there is no need to proceed to step fout ot [tve.
See
three
Møstro
of estabìishing an impairment that meets or
u.
equals an impaitment listed
Apfe[210 F.3d 1,71., 177 (4th Cir. 2001). Àltematively, if
a claimant cleats steps one
and two but fails to show that the alleged impaitment is sufficiently sevete to equal or exceed
a listed impairment, then the analysis continues and the ,AIJ must determine the claimant's
RFC. Id. at 179.a Step fout then requires the ÅLJ to assess whethet, based on that RFC, the
claimant can "perfom past relevant work;"
Id. at 179-80. However,
if
if
so, the claknant does not quali$t as disabled.
the claimant establishes that she is unable to return to her pdor
wotk based on that RF'C, the analysis moves to the fifth step, which shifts the butden of
ptoof to the Commissionet "to prove that a significant numbet of jobs exist which the
claimant could petform, despite [the claimant's] impairments." Hines u. Barnhart, 453 tr.3d
559,563 (4th Cir. 2006). In making this determination, the ALJ must decide "whethet the
claknant is able
to petform othet wotk considedng both [the claimant's RFC] and [the
claimant's] vocational capabilities (age, education, and past work experience) to adjust to
new
job."
Ha// u. Han'is, 658 F.2d 260, 264-65 (4th Cir. 1981).
a
Il at this step, the
Commissioner cannot c^rry her "evideniary burden of proving that fthe claimant] remains
able
to work othet jobs
available
in the community," the claimant
o
qualifìes as disabled.
"RFC is a measutement of the most a claimant can do despite his limitatiofls." Hifles, 453 F.3d at
562 (noting that administrative regulations require RFC to reflect claimant's "abiJity to do sustained
wotk-related physical and mental activities in a wotk setting on a regular and continuing basis . . .
[wlúch] means 8 hours a day, fot 5 days a week, or an equivalent wotk schedule" (internal emphasis
and quotation marks omitted)). The RFC includes a "physical exertional or strength limitation"
analysis that assesses the claimant's "abilty to do sedentary, Iight, medium, heavy or very heavy
work," as well as "nonexertional limitations (mental, sensoty, ot skin impairments)." Hal/,658 F.2d
at265. "RFC is to be determined by the ALJ only after [the A.LJ] considets all televant evidence of
a claimant's impaitments and any related symptoms (e.g., patn) J' Hine¡, 453 F .2d zt 562-63 .
5
Hines,453 F.3d
567.
^t
Hete, the
AIJ completed all fìve steps of the sequence,
and detetmined that while
Plaintiff could no longer perform her past relevant work, she was not disabled because othet
jobs existed in significant numbets in the national economy which Plaintiff could perform.
Gr. 17-18.)
To reach his conclusion, in steps one and two the ÂLJ determined that Plaintiff had
not engaged in substantial gainful activity since her alleged onset date of January 8, 2011. and
had the severe impairments
of schizoaffective disordet, mood disorder, major depressive
disordet/anxiety disotders and chronic obstuctive pulmonary disease (Id. at 1,2.)
thtee, the ÅLJ found that Plaintiff did not have an impafument
impairments listed in, or medically equal to, one listed in ,{.ppendix
,\t
step
or combination of
1. Qd. at 12-13.) At
step four, the ALJ assessed the Plaintiffs RFC, fìnding that she had the ability to perform
light work except that she was limited to simple wotk with no fixed production rate, few
changes and involving no more that occasional interaction
and avoidance
extremes.
of
with others; no outdoor work;
concentrated pulmonaÍy tftltants, workplace hazards and temperature
(ft. 13.) Considedng Plaintiffs age, education, wotk experience
and tesidual
functional capacity, the ALJ found that thete were jobs that existed in significant numbers in
the national economy that Plaintiff could perform and that therefore she was not disabled
as
defined by the Social Security Act.
Plaintiff argues that the .{LJ ered
in
(1) giving little weight
to the opinion of
Plaintiffs treating physician regarding Plaintifls physical testtictions:' Q) farhns to evaluate
Plaintiffs respiratory impairment under Listing 3.02Al' and (3) failing to considet
6
the
disability determination of the North Caroltna Division of Vocational Rehabilitation Services
pursuant to SSR 06-03p
B. The ALJ's Evaluation of Dr. Squire's Medical Opinion
At
step four, the ,\LJ found that Dr. Squire's medical opinions
in his
medical
assessment statement were entitled to "significant weight" as they "related to the claimant's
pulmonary ptoblems," but "little weight" as
to his opinions "tegatding the claimantf's]
physical testrictions because they ate not suppoted by clinical evidence and imaging reports
of the claimant's chest and the medical evidence as a whole." (Tr. 17.) Plaintiff atgues that
the
A{
ered in failing to give Dt. Squire's opinion conttolling weight and in failing to take
into consideration spirometry testing results which Dt. Squire used in tendeting his opinion.
The Commissioner argues that the evidence of record does not support the extteme and
disabling functional limitations found by Dr. Squire. (Def.'s Mem. at 9, DocketE,ntry
1,2.)
Undet the treating physician rule, the ALJ genetally must give conttolling weight to
the opinion of a treating source regarding the natute and sevedty of a claknant's impairment.
20 C.F.R.
SS 404.1527(r)Q), 416.927(c)(2)
longitudinal picture
perspective
("[!]reating
soutces
ptovide a detailed,
of la claimant's] medical impairment[s] and may bring a unique
to the medical evidence that cannot be obtained ftom the objective medical
findings alone or from reports of individual examinations, such as consultative examinations
or bdef hospitabzations."). However,
^
fte ttng physician's opinion is not due controlling
weight when it is either "not suppoted by clinical evidence or if it is inconsistent urith other
substantial evidence." CraigT6 F.3d
^t
590. Â. treating physician's opinion is not entitled to
controlling weight whete it is conclusory, based upon a claknant's subjective reports and not
7
supported by the physician's own medical notes.
Id.
Additionally,
^
tre ttîe physician's
opinion will not be given controlling weight where the opinion lists diagnoses but fails to
explain how such conditions impact the claimant's wotk-related abilities. See Thompson u.
Astrue,442F. App'* 804, 808 (4th Cir.
201,1).
In evaluating medical opinions, an 1'J-J should
examine "(1) whether the physician
has examined the applicant, (2) the treatment relationship benveen the physician and the
applicant, (3) the suppotability of the physician's opinion, (4) the consistency of the opinion
with the recotd, and (5) whether the physician is a specialist."
Johnson u. Bamhaú, 434 F.3d
650, 654 (4th Cir. 2005) (citing 20 C.F.R. S 404.1,527). While an
less weight
N,J
"rrray choose to give
to the testimony of a trcaine physician if there is petsuasive contrary evidence,"
Hanter, 993 F.2d
^t
35, "the ALJ may not chetry-pick trivial inconsistencies between
a
treating physician's opinion and the record or take evidence out of context to discount the
physician's
opinion." Meyr-Il/illians u. Coluin, No. 1:14-CV-393,
201,5
WL
33963'1.,
x2
^t
(À4.D.N.C. Jan. 26,2015) @,agles, J.) (unpublished) (citing E//i¡ a. Coluin,5:13CV00043,2014
WL 2862703
68001.27
,
ñ
CX/.D.Va. June 24, 2014); Brlant u. Coluin,
No. 3:12-CV-307-C,A.N, 2013 WL
*1.2 (l\f .D. Ind. Dec. 20, 2013) (citing Scott u. A$rae, 647 tr.3d 734, 7 40 (7th Cir.
201,1))).
An ÂIJ's decision not to afford controlling weight to a treating physician's opinion
must be supported by substantial evidence in the record. If/inford u. Chater,917 tr. Supp. 398,
400 (E.D. Ya. 1996). In this case, the ALJ's evaluation of Dt. Squire's opinions is not
supported by substantial evidence.
8
On Apdl 23,2013, Dr. Squire, Plaintiffs treating physician of sevetal years, rendered
his medical opinion on het symptoms, diagnoses and functional limitations.
Dt.
[r
327-329.)
Squire noted that Plaintiff suffers from severe COPD, and listed subjective findings
which are consistent with this impairment, including dyspneas multiple times a day, cough,
and frequent use of an inhaler with bronchodilator medication and sputum production. (Tt.
327.) Dt. Squire also noted multiple objective fìndings, including "a productive sounding
cough, severe airways obstruction affectng lung function, requited use
cotticosteroid . . . , a long acting bronchodilator
of an inhaled
.. . and an anticholinergic agent tiottopium
to conttol her symptoms along with a shon acting bronchodilator albuterol . . . along with
exacetbations that have required an antibiotic . .
.
and a systemic cotticostetoid." Qd.) Dt.
Squire then stated "[t]hese are chronic findings and are expected
future."
to worsen in the near
(Id.)
Based on these findings,
occasionally and should
Dt. Squire opined that Plaintiff could lift only 1-2 pounds
lift nothing frequently. Çr.
327
.)
He furthet stated that Plaintiff
has limitations walking and standing, and that she only has the ability
without stopping to rest for 10
-
to walk 200
feet
15 minutes. (Id.) Dr. Squire opined that "fc]umulative
walking-capacity during a day [is] estimated to be less than 2 cumulative
hours." Qd.) He
noted:
The relevant symptom for fPlaintiffl is dyspnea. She experience dyspnea
multiple times each duy and the sense of breathlessness that occurs
intermittently throughout the day would be enough to tequire that she divert
het attention and considet using het meteted dose inhaler, the one that
contains
which she uses for short term telief. The mete fact that
'{.lbuterol
u "Dyrpn.a" is defmed as "difficult
or labored respiration." MERRrÀÀ,I-WEBSTER DICTIONIRv,
found at www.merriam-webster.com/dictionary/dyspnea.
9
she often must do this two or more times per day indicates that the
combination of an inhaled corticosteroid and long acting btonchodilator have
been ineffective controlling symptoms. These symptomatic experiences will
continue to worserì unless she is able to cease smoking, but in this tegard she
may be the most addicted nicotine-addict that I have taken cate of with
conrnensurate difficulty in quitting. She's tried multiple times, but we are
continuing to work on this problem.
Qr 328.)
The ALJ, while crediting Dr. Squite's opinion regarding Plaintiffs impairments,
discounted the physician's opinion as to Plaintiffs functional limitations. The ALJ provided
no cleat reasons fot not fully crediting Dr. Squfue's opinion, stating only that the restrictions
suggested by Dr. Squire "^re rtot suppoted by clinical evidence and imaging reports
claimant's chest and the medical evidence of record as a whole." Qr.
17
.)
of the
This Court finds
that the ALJ's rejection of Dr. Squire's opinion as to functional limitations is not suppotted
by substantial evidence. The three physical exams tefetred to by the ALJ, those in Octobet
2012 and February 2013, were ones in which Plaintiff showed some imptovement, but the
overwhelming majoÅry
limitations
.
(S ee,
e.g.,
Tr.
of the exams in the record show that Plaintiff
27
6; 268;
27 2-7
For instance, on January 17,
has disabling
3; 27 0 ; 268.)
201,1,
Dr. Squire noted Plaintiffs "matkedly decteased
att enty involving the right posterior, inferior and latenl chest wall," along with other
similat fìndings.
Qt 268.) Dr. Squire noted that Plaintiff had "been expetiencing
exacetbation fot over a month . . . and was still using het inhalet 4 times pet
February 201.1,, Dr. Squire agarn noted Plaintifls "matkedly decreased
noticeable wheezing and low bronchodilator responsiveness.
day." (Id.) In
ait entrf" with
Qr.264.) The teatment note
also reported "prolonged expiration [and] inspitatory and expiratory wheezrng."
10
an
(Itl.) In
March 20L2, Dt. Squire noted that "þ]ased upon her lung functions and het degtee of
dyspnea, which includes being breathless
with dressing or undtessing[,] puts het in the
c^tegory of severe COPD." (Tr. 3a0.) The record contains other similat treatment notes.
Às noted by the ALJ, dudng her February 26,201,3 visit with Dr. Squire, Plaintiff had
a normal lung exam
without wheezing or coughing. Çr.331,.) Flowever, this note is one of
the only ones in the record where Plaintiff was riot expedencing significant tespiratory
symptoms and in fact is not illustrative of the longitudinal picture of PlaintifPs impairments
and limitations. Additionally, this February 26,2013 visit followed a pedod where Plaintiff
had sought treatment in the emergency room for "seven to ten days of incteasing cough,
expectoration (clear), dyspnea
with exertion and malaise" which tesulted in
prescriptions, including steroids.
Qt ßa.) To selectively
multiple
cite only this tteatment note
(along with one or two others), where Plaintiff showed some improvement after receiving
emergency treatment,
out of the record of the whole constitutes impetmissible chetry-
picking. "An ALJ cannot pick and choose just selected notes. Rather, the recotd must be
assessed
in its entirety." Kirbl
u.
Astrue, 731. F. S.rpp. 2d 453,456 e,.D.N .C. 201,0). Hete,
"[t]he .,{IJ rejected the opinion of Plaintifls teating physician which was 'well-suppoted by
medically acceptable clinical andlaboratory diagnostic techniques' and 'was not inconsistent
with the other substantial evidence in [the] case record."' Meler-IØilliam¡,2015 WL 33961, at
x3. The majority of Plaintifls medical records
are consistent
with Dr. Squire's opinion.
Âdditionally, the.{LJ stated in his decision that "[t]here are no pulmonary functions
tests reports or back imaging evidence
impairment."
in the tecotd to support a disabling bteath or back
(Ir. 15.) This finding completely
1l
ignotes Dr. Squi-te's February 22,
201.2
treatment note in which he reported spirometric test results showing "severe impairment
of
fPlaintiffs] lung function." Gr. 340.) While the results themselves are not contained in the
record, Dr. Squire repoted the results and relied upon this clinical evidence in making his
assessment. Under these circumstances, the ALJ has failed
to
show that
Dr.
Squire's
opinions are "not suppoted by clinical evidence . . . and the medical evidence of tecotd as a
whole." C*tç76tr.3d at 590.
Ultimately the question for this Cout is whether substantial evidence suppoÍts the
ÂIJ's finding that Plaintiff could perform work in the ¡atonal economy on a tegular and
consistent basis.
In light of the opinion of Plaintiffs
treating physician, which is not
contradicted by the longitudinal record or the objective medical evidence in this case, the
Court holds that the ALJ's finding is unsuppotted by substantial evidence.
C. ALJ's Failure to Consider Disability Determination of Vocational Rehabilitation6
Alternatively, Plaintiff argues that the ALJ erted by wholly fa:hng to consider and
weigh the determination
Services
of the North Caroltna Division of
Vocational Rehabilitation
("VR") finding Plaintiff unemployable. The tecord contains two letters from
Vocational Rehabilitation Counselot at
VR. In the ltst
letter, dated June L5,
201.1.,
a
the VR
counselor noted Plaintifls significant physical limitations from COPD and concluded that
het
failing condition prevents our agency ftom placing het in employment that can
accommodate her limitations. Ms. Bannistet's mental health diagnosis
severely limits the types of work and environment in which she can function.
Added to the aforementioned, her lack of stamina has made it impossible to
place her in gainful employment.
u
In light of this Court's Recommendation to reverse the decision of the ALJ, it is unnecessaLry to
reach the third issue taised by Plaintiff involving Listing 3.021'
l2
Çr
325.) In an update on Febtuary 21, 2013, the VR counselot noted that the agency had
made futher attempts to place Plaintiff in employment:
rX/e placed
het in a position with an In-House Progtam to evaluate het abiJity
to work given her functional limitations and provided appropriate
accommodations. Unfotunately, even in this extremely accommodating
envitonment she was unable to be successful. fPlaintiffls] health ptoblems
stopped het ftom being able to show up to work as she was too ill. She
continues to have chronic Btonchitis and it appears that her immune system is
comptomised to the point that she seems to catch cofiunon colds, etc. more
often than typical. We have run out of options at this point and continue to
reconünend eligibility for social security disability.
Çr
326.)
Under the Social Security Regulations, opinions of providers who are not consideted
medical sources are not binding, but the ALJ must explain the weight given to opinions
these non-medical sources and the reasons
fot the weight given.
argues that the ÂLJ did not even considet the opinions
-1¿¿
SSR
of
06-03p. Plaintiff
of the VR counselor, much
less
explain any weight given to these opinions and that thetefote the case should be temanded
fot proper evaluation of this evidence.
temand fot the awatding of benefìts,
Because this Court is tecommending reversal and
it is not necess^ry to addtess this issue in
a detailed
fashion. However, under different circumstances, the failure of the ALJ to specifically refet
to the Vocational Rehabilitation
assessments would waffa.nt temand
to the Commissionet
fot teconsideration in order to permit the ALJ to consider the Vocational Rehabilitation
statement and state what weight,
Commi¡¡ioner,699 F.3d
if any, the decision
played in the .,{LJ's analysis.
See
337,343 (4th Cu.201,2) (noting that although anothet
Bird
u.
agency's
disability determination is not binding on the SSÂ, such a determination cannot be ignored
and must be considered); Il/il¡on u. Coluin, No. 1:11,CV256, 201.4 \Xl, 4274253,
13
ñ
x5-6
G\,{.D.N.C.
t\ug. 29, 201,4) (in remanding case, court ditects Commissioner to directly
address the weight attributable to claimant's
rec. adopted,
V,t
disability rating) (Peake, MJ.) (unpublished)
slip op. (À4.D.N.C. Sept. 17, 201.4) (Osteen,Jt.,J) (unpublished); Sags
No. 4:11,-CV-1,28-trL, 201,3 VlL 466406, at *4 (E.D.N.C. Feb. 7,
201,3)
where ALJ failed to consider V-,\ disability determination because
it
the Social Security determination) (Flanagan, J.) (unpublished);
u.
Attrae,
(not harmless error
may have a beadng on
Watsoru u.
Astrae,
No.
5:08-
CV-553-F'L,2009 WL 2423967, at x3 (E.D.N.C. ,\ug. 6,2009) (noting that remand is ptopet
where an
N,J fails to explain
weight given to a state Medicaid decision) flanagan, J.)
(unpublished).
D.
Reversal for Award of Benefits
"The decision of whethet to reverse and remand fot benefìts ot teverse and temand
for
a new headng is one
which lies within the sound discretion of the disttict court. Kirþt
u.
Astrae,880 F. S.rpp. 2d 695,701 (E.D.N.C.201,2) (intemal quotation and citation omitted).
Remand is unnecessary where "the record does not contain substantial evidence to support a
decision denying coverage under the corect legal standard and when reopening the tecotd
for more evidence would serve no purpose."
Breeden u. IØeinbergtr,493
F.2d 1002,1.012 (4th
ck.1,974).
Here, because the ALJ's decision to deny benefits and not fully credit the opinion
of
Plaintrffs treating physician is not supported by substantial evidence, and reopening the
record for additional evidence would serve no purpose, remand for reconsidetation is not
necessâry.
See
Meyr-ll/illiams,20"1.5
WL
339631 at
t4
x6. .,{.ccotdingly, the Coutt tecommends
that the Commissioner's decision finding Plaintiff not disabled be reversed and that the
matter be temanded fot the award of benefits
V. CONCLUSION
Fot the fotegoing
reasons,
it is RECOMMENDED that Plaintif8s Motion
for
Judgment Reversing the Commissioner (Docket Ent y 9) be GRANTED, that Defendant's
Motion for Summary Judgment (Docket Entry 11) be
DENIED. IT IS FURTHER
RECOMMENDED that the decision of the AIJ be REVERSED and that this matter
REMANDED to the Commissioner for an award of benefits
U
Dutham,
August
Noth
àl
Catolina
, zots
15
Webster
State s Magistrate J udge
be
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