BELTON v. COLVIN
Filing
13
MEMORANDUM OPINION AND RECOMMENDATIONOF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/24/2015. After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is suppor ted by substantial evidence. Accordingly, this Court RECOMMENDS that Plaintiff's Motion for Judgment Reversing Commissioner (Docket Entry 6 ) be DENIED, Defendant's Motion for Judgment on the Pleadings (Docket Entry 10 ) be GRANTED and the final decision of the Commissioner be upheld.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHARI LYNN BELTON,
Plaintiff,
v
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
)
)
)
)
)
)
)
)
)
|:I4CY777
)
Defendant.
)
)
MEMORANDUM OPINION AND R-ECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Shari Lynn Belton, seeks review of a ftnal decision of the Commissioner of
Social Secudty denying her claims for social security disability benefìts and supplemental
security income. The Coutt has before
it the cerified
administrative record and
ctoss-motions for judgment.
I. PROCEDURAL HISTORY
Plaintiff filed applications for disability insutance benefìts and supplemental security
income in Âugust
February
of 2011 alleging
a disability onset date of July 1,2007,later amended to
1,2011. Qr. 62,253-57,259-64,287 ,343.) The applications
were denied initially
and agatn upon teconsideration. (Id. at 99-100, 147 -48, 1.79-184, 190-207
.) ,\ hearing was
then held befote an Administtative LawJudge ("ALJ") at which Plaintiff, her attorney, and
vocational expert
(1/E')
a
were presenr. Qd. at 60-98.) On NIay 28, 2013, the ALJ
detetmined that Plaintiff was not disabled under
the,{.ct. (Id. at46-5S.) OnJuly 12,2014 the
,\ppeals Council denied Plaintiffls request for review, making the ,{.LJ's determination the
Commissioner's final decision fot putposes of
teview. (Id. at 1,-6.)
II. STANDARD FOR REVIESø
The scope of judicial review of the Commissionet's final decision is specific and
narrow. Snith
determining
if
u. Schwei,ëer, 795 F.2d 343, 345 (4th Cu.
thete is substantial evidence
decision. 42U.5.C.
$ a05(g); Hanteru.
907 tr.2d 1453,1,456 (4th Cir.
1986). Review is limited to
in the record to support the Commissioner's
Salliuan,993F.2d31,34 (4th Cir. 1,992); Hals
u.
1990). In reviewing for substanial evidence, the Cout
Sulliuan,
does
not
te-weigh conflicting evidence, make credibility determinations, or substitute its judgment for
that of the Commissionet. Craigu. Chater,76tr.3d 585, 589 (4th Cir. 1996). The issue before
the Cout, therefote, is not whethet Plaintiff is disabled but whethet the Commissionet's
fìnding that she is not disabled is suppotted by substantial evidence and was reached based
upon a cortect application of the relevant
law.
Id.
III. THE ALJ'S DISCUSSION
The,ÀIJ followed the well-establ-ished five-step sequential
the claimant is disabled, which is set forth in 20 C.F.R.
u. Comm'r of Soc. Sec. Admin., 1.74
SS
analysis to ascettain whether
404.1520 and 41,6.920.
See
Albright
tr3d 473, 475 n.2 (4th Cir. 1,999). Here, the ,\IJ frst
determined that Plaintiff had not engaged in substantial gainful activity since het alleged onset
date. (Id. at 48.) The -dLJ next found that Plaintiff suffered ftom the following
severe
impairments: bipolar disorder; anxiety disordet; personality disorder; degenerative joint
disease; and degenerative disc
disease. Qd.) Ät step three, the ÂLJ found that Plaintiff did
2
not have an impairment or combination of impairments that meets ot medically equals one
listed in ,\ppendix
1.
(Id. at 48-49.) Prior to step four, the ALJ determined Plaintiffls
residual functional capacity
("RFC").
(Id. at 49-52.) Based on the evidence as a whole, the
ÂLJ determined that Plaintiff retained the RFC to perform a limited range of medium work.
Qd.
at 49.) Specifically, the ÅLJ futher limited Plaintiff to pefotming only simple, routine,
repetitive tasks, with only occasional interaction with others, and without performance of
production wotk or fast-paced jobs with deadlines and quotas. (Id. at 49.) Ât the foutth
step, the ,\LJ determined that Plaintiff was unable to perform any past relevant
52.) At step five, the ALJ
work.
(Id. at
determined that, given Plaintiffs age, education, work experience,
and RFC, there wete other jobs that Plaintiff could perform, such as linen room attendant,
laundry wotket, and marker. (Id. at
53.) Consequently,
the ÂLJ determined that Plaintiff was
not disabled through the decision date. (Tr. 53-54.)
IV.
ANALYSIS
A. PlaintifPs Treatins Phvsician
Plaintiff atgues that the -{LJ's RtrC fìnding is unsupported by substantial evidence
because inadequate weight was
Entty 7 at
affotded to Dt. Dinesh Benjamin's medical opinion. (Docket
8-11. referendngTr.
425-30.) The treating physician rule,20 C.F.R. $$ 404.1527(c),
41,6.927(c), genetally requires
an.{LJ to give conttoll-ingweight to the opinion of a tteating
source as
to the nature and sevedty of a
clatmant's impaitment. Yet, a treating source
opinion, Iike all medical opinions, must be both well-supported by medical signs and
labotatory fìndings and consistent with the othet substantial evidence in the case record. 20
3
C.F.R. SS 404.1.527(c)(2)-(4) and 416.927(c)()-@.
"[]f a physician's opinion is not
suppoted by clinical evidence ot if it is inconsistent with other substantial evidence, it should
beaccotdedsignifìcantlylessweight." Cmig76F.3dat590:'accordMastrou.Apfel,270F.3d171,
1,78 (4th
Cir.2001).
The .,\IJ's conclusion that Dr. Benjamin's restrictions were inconsistent with the
record is supported by substanttal evidence.
Qr. 50-52.) First, the ALJ discussed Plaintifls
mental health records in detail, including those ftom Dr. Benjamin atCarobraBehavioral Care
("CBC"). (Id.) Dr. Benjamin
treated Plaintiff intermittently between Match 2011 and
Jznuary 201.3 for a history of bipolar disorder and bordedine personality disotder
Gr. 384-94,
401-409,41,1,-24,431,-33) and a history of auditory hallucinations and paranoia (id. at 384, 388,
392,421). Plaintiff had also suuggled with drugs and alcohol. Gt. 384,388,392,421.) Dt.
Benjamin ptescdbed Setoquel and, in increasing dosages, it improved Plaintiffs symptoms.
(fr.
384, 386, 388, 390,392-93,401.,403-04,406, 408-09,41"1.,41.4,41.7-18,420,423,431.-32.)
In May
201.2,
Dt. Benjamin completed a medical source statement ("MSS").
(Tr.
425-30.) Specifically, Dr. Benjamin opined that Plaintiff expetienced a "substant:aI loss of
abiüty" to tespond appropdately to supervision, co-workers, and usual work situations, and to
deal
with changes in a toutine work setting.
Çr 429.) He futher opined that Plaintiff
would
only be able to maintain concenttation about 30 minutes and would be off-task more than
20o/o
of the time. (Tr. 430.) The ÂLJ explained that he gave the opinion "little weight"
because among othet things, he found
untemarkable examination
Dt. Benjamin's conclusions inconsistent with "several
findings." (Tr. 51.)
4
See
20 C.tr.R. $S
404.1,527(c)(4),
41,6.927 (c)(4).
Treatment records from CBC duting the relevant period showed that although
Plaintiff occasionally complained of symptoms, including irdtability, emotional lability, mood
swings, paranoia, and hearing noises Gr. 388, 401,,407,41,5,41,8,421), on most examinations,
she was
alerta¡d fully oriented, and had normal attention and concentration, no depressive or
manic signs, intact thought orgatizalon, and no auditory hallucinations or delusions (id. at
385,402,405,408,412,416,419,422,431.-32). These fìndings supported the ÂLJ's decision
not to accord great on controlling weight to Dr. Benjamin's disabiJity opinion.
Thete was also an internal inconsistency in Dr. Benjamin's opinion. He found that
Plaintiff had moderate diffìculties
in
social functioning and maintaining concentration,
persistence, or pace, but found latet in his MSS that Plaintiff had a substantial loss of ability to
perfotm cettain work-related activities, e.g., responding apptoptiately
co-workets, and usual wotk situations.
(ft.
to
supervision,
51, 429-30.) Defendant coruectly points out that
a substantial loss in ability-meaning that the individual could not perform the patticular
activity in tegular, competitive employmsn¡-i5 more severe than
is not indicative of
a
moderate limitation, which
disability.l Qr. 429.) Likewise, with regard to concentration, persistence,
or pace, Dr. Benjamin's finding of moderate difficulties in this area was inconsistent with his
subsequent MSS finding that Plaintiff was restticted to maintaining attention
minutes at a ttme and that she would likely be off task mote than
20o/o
fot about
30
of the wotkday. (Tr.
429-30.) ,\s stated above, given the mental status fìndings, it was not unreasonable for the
tModetate means less than marked.
Qr.427.) See 20 C.F.R. pt.404, subpt. P, opp. 1, $ 12.00C
(defining "marked" in the B criteria). r\ marked limitation is one where the degree of limitation is
such as to interfete setiously with an individual's ability to function independently, apptopnately,
effectively, and on a sustained basis. Id.
5
ÂIJ to conclude that modetate limitations were more consistent with the evidence.
It
was also appropdate
for the ALJ to note that Dr.
Benjamin's opinion was
inconsistent with the sevetal GÂF scores that he assessed in the mid-50's.2
(Ir.
51, 386,390,
393,403, 406, 409, 413,4'1.7,420,423,431,.) ,\dditionally, the ÂLJ did not tely on the GAF
scores alone as indicative
of Plaintiffs functioning. (Ir. 51.)
Rather, the ALJ ptopedy
considered Plaintiff s G.,\F scores in context with the rest of the evidence from Dr. Benjamin
in determining what weight to give his MSS.
Despite Plaintiffs assertions
to the conúarf, Dr. Benjamin's opinion regarding
Plaintiffs difficulty maintaining concentration and intetacting apptopdately with others
was
not consistent v¡ith the opinion from Åpril Harris-Britt, Ph.D., the consultative psychologist.
@ocket E.rt y 7 at'1,1 referentingTr.3T0-75.) Dt. Harris-Britt opined that although Plaintiff
stuggled with maintaining concentration, persistence, and pace, she was not precluded from
undetstanding, retaining, and following instructions and not precluded from perfotming
simple, routine, repetitive tasks.
Qr. 37a.) Similarþ, while Dr. Harris-Britt opined that
Plaintiffs ability to tespond apptoptiately to supervision or interaction with co-wotkers
v/as
impacted by her symptoms, the doctor also stated that Plaintiff was otherwise self-sufficient in
tegatds to het occupational functioning.
Çr. 374-75.) Thus, Dr. Hards-Britt's opinion did
not infet disability, as did some of the limitations in Dr. Benjamin's report. ,{.dditionally, the
'
The G,{.F is a scale ranging from zero to one hundred used to r^te
individual's psychological,
^Í7
social, and occupational functioning. See Ãrr.. Psychiatric Âssoc, Diagnostic and Statistical Manual of
Mental Disorders ("DSM-IV") 32-34 (4th Ed., Text Revision 2000). Scotes between 51-60 indicate
mocletate symptoms or moclerate difficulties in social, occupad.onal, ot school ftrnctioning. 1rl.
Although the tecent edition of the DSM no longet includes the GAF rating fot assessment of mental
disotders, the ÀLJ was not precluded from consideting the previously assessed GÂF scores as opinion
evidence. See Emrich u. Coluìn, No. 1:13cv1.01.2, 201.5 WL 867287, at x10 (X{.D.N.C. Mar. 2, 2015)
(unpublished).
6
State agency teview psychologist specifically considered
Dt. Hattis-Britt's opinion and opined
that Plaintiff could maintain attention and concentration to petfotm simple, routine, repetitive
tasks and interact with others and take insttuctions ftom a supervisot. (Tt. 105, 108-09,1.54,
157-58.) The ALJ did not er in affording little weight to Dt. Benjamin's opinion.
B. The ALJ's Credibility Analysis
Plaintiff also asserts that the ALJ materially erred in his analysis of Plaintiffls credibility.
(Docket E.rtty 7 at
1.'1.-15;
Docket Entry 12 ar 5-7.) Regarding credibility, Craig u. ChaÍer
provides a two-part test for evaluating a clatrnant's statements about symptoms. "Fitst, thete
must be objective medical evidence showing 'the existence of a medical impairment(s) which
tesults from anatomical, physiological,
or psychological
abnormalities and which could
reasonably be expected to ptoduce the pain or other symptoms alleged."' Craigu. Chater,76
F.3d 585, 589 (4th Clr. 1,996) (citing 20 C.F.R. $S 416.929þ)
*
404.1,529þ)).
If the ,{.LJ
determines that such an impairment exists, the second patt of the test then requires him to
considet all avatlal:le evidence, including the claimant's statements about pain, in otdet to
determine whether the claimant is disabled. Id. at 595-96 (citing 20 C.F.R.
SS
416.929(c) and
a0a.1,529(c)). While the ,\LJ must considet a claimant's statements and other subjective
evidence at step rwo, he need not credit them to the extent they conflict with the objective
medical evidence or to the extent that the undedying impairment could not reasonably be
expected to cause the symptoms alleged.
Id. Where the ,AIJ has considered
the televant
factots and has heatd the claimant's testimony and observed his demeanor, the
7
A{'s
credibility determination is entitled to deference. Shiueþ
u. Hec,ëler,739
tr.2d987 ,989 (4th Cir.
1.e84).
A recent Fourth Circuit case is also relevant here. In Mascio
Clr.201,5), the Fourth Circuit found that an -AIJ erred by using,
^t
u.
Co/uin,780 F.3d 632 (4th
part two of the credibility
assessment, "boilerplate" language that "the claimant's statements concerning the intensity,
persistence and limiting effects of
þs
pain] are not credible to the extent they are inconsistent
with the above tesidual functional capacity assessment." Id. at 639. This method "'gets
things backwatds' by i-plytng that ability to work is determined fìrst and is then used to
detetmine the claimant's credibility." Id. (qtottng Bjornson
C11.
u.
Asîrue, 671, F.3d 640, 644-45 (7th
2012)). Instead, "the ,\LJ lin Mastio] should have compared fthe claimant's] alleged
functional limitations from pain to the othet evidence in the tecord, not to fthe claimant's]
residual functional capactqr." Id.
Here, the .,\LJ satisfied the
frst
step of the credibility inqurry, finding that Plaintiffs
medically determinable impafuments could reasonably be expected
symptoms.
(Ir. 50.)
to
cause the alleged
Next, the ,\LJ stated that "the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible for the
teasons explained in this de¿i¡ion."
Qd.) To his credit, the,\LJ in this case did not use the same
obiectionable "boilerplate" language used
in Ma¡do.
Consequently, this case
is
factually
distinct fromMastio. Nevertheless, the question of whether the language the,\LJ actually did
use is any more adequate than the language used in Mastio is worth considering. This is
because courts have chancterized the language used in the.,{IJ's decision here (i.e., "for the
8
reasons explained
in this
decision") and concluded that sÍanding alone
it is meaningless
boiletplate akin to the boilerplate used in Ma:ù0.3 Nevetheless, these cases, includtngMasù0,
also teach that any error may be rendered harmless.
Fot example, in Masciq the Foutth Circuit explained what hatmless ettot looks like,
stating that "The,\LJ's errot would be harmless iFhe propetly analyzed credibility elsewhere."
Masr.io, 780 F.3d
^t
640. The Fourth Circuit made it clear that an ALJ
discharges this
obligation when he "explainfs] how he decided which of fthe claimant's] statements to believe
and which
to discredit." Id. at 6. However, in Ma¡cio the ÅLJ failed to explain himself
accordingly, except to make "the vague (and circular) boilerplate statement that he did not
believe any claims
of limitations beyond what he found when consideting fthe
tesidual functional capacity."
Id.
claimant's]
The lack of an explanation required remand. Id.
The question hete, then, is whether the
ÂIJ sufficiently "explainfs] how
he decided
which . . . statements to believe and which to disctedit." Id. at 640. To answer this question,
an undetstanding
of the testimony taken at the hearing,
as
well as the futher details of the
ÂLJ's ctedibility determination, is in order.
Plaintif?s Testimony
Plaintiff testified hete at considerable length. She worked for fourteen years as a
supervisot fot the wotd ptocessing department of alaw firm, which involved hiring, Fring, and
3
4:12-CY-37-D,201,5 WL 21,24773 @,.D.N.C. NIay 6, 201,5) reþort and
recommendaÍion adoþted, 4:12-CY-37-D, 2015 WL 41.33720 (E.D.N.C. July B, 2015) (unpublished);
Rawlingt u. Coluin, No.3:14cv00159, 2015WL3970608, x9 (S.D. OhioJune 30,201.5) (unpublished);
Veløy'o u. Colrin, No. SA CV 14-01,432 F.Z, 2015 WL 1.607796, *1. (C.D. Cal. ,\pril 8, 2015)
See, e.g., Brinson u. Coluin,
(unpublished).
9
setting the schedule for eight employees. (Tr.
66.)
However, Plaintiff further testified that
her inability to concentrate, her paranoia, her anxiety, and the side-effects of her medication
now rendeted het disabled. More specifically, Plaintiff testifìed that the medicine she took for
her mental lll¡ss5ss-Seroquel-"slowed þer] down," sometimes made other persons sound
"muffled" to her, made her drowsy, and gave her dry mouth. (Id. at 69.) Plaintiff noted that
het dosage of this drug had increased from 50 milligrams to 400 milligtams over
89.)
She furthet stated that she heard things that were
time. (d.
at
not there, which she called
"hallucinations," such as dootbells, knocks on the door, and sometime voices, including those
of het mother ot father. (Id. at70.) She heatd these things both during the day and atnight
and
it frightened het and, when het auditory hallucinations took place at night,
they made
it
difficult for her to sleep. (d. at71)
Plaintiff testified further that het mental illness had also changed her personality,
ttiggedng feelings
of petsecution þeing "attacked") that lead her to start "screaming
fothets] and getting rcally
^ngry
but then they tell me what I
and saying things, but then
did."
I
at
can'tremember later what I said,
Qd. at71,-72.) Plaintiff testified that she wakes up feeling
"like thete's blood all ovet [h.t]" and that is how she knows she "went into this zngßJ rage."
Qd.)
Consequendy,
Plaintiff-who stated that she has uied
unsuccessfully
to
make
friends-testifìed that she tends to stay home because she is afraid that she will lose control
over hetself and because her medication does not help with these particular symptoms. (Id. at
72-73,87-88.) Despite this, Plaintiff admitted that
10
she
went to "Chdstian meerings" "twice
a
week" "toheat sermons," but added that she had not "been going regularly lately" because she
felt "like there's some conflict there." Qd. at82-83.)
Plaintiff also testified that
she is
in "constantpain" because of a"bad knee," though she
did not use a cane because she can "hold ofl to objects" and
that the Motrin she took forpain did not
limp. (d. at73-74.)
She stated
help. (Id. at78.) Then Plaintiff testified that she
had day long migtaines "every other month" "at one point" and "that's the worst pain ever."
(Id.
at74.)
She testified she could walk a block befote she had
to stop and rest and that
she
could stand fot about fìfteen minutes and sit for about half an hour. (Id. at79.)
Plaintiff also testifìed that she did wash clothes because she had a washing machine in
het bedtoom, that she does some rathff slow tidying of the house, that she does not cook
because she loses concentration and burns the food, and that she likewise loses concenúation
while shopping-which she does while leaning on
shopping ptocess.
(Ir. 81-S4.) Plaintiff
^
c rt-thereby greatly lengthening the
expounded on her inability to concentrate, stating
that she would begin ptojects-like mailing a letter-but never complete them and that she
had a diffìcult time sticking to a schedule, including taking her medication and "being
somewhere that [she] sayfs] [she is] going to
be." (Id. at 85-83.)
The Testimony of Phyllis Ifaymer
Phyllis Haymet also testified at the hearing.a (Id. at
89.)
She testifìed
Plaintiff four to five days a week and agteed with the contents of PlaintifPs testimony
to
seeing
as
to her
limitations. Qtl.) She added that sometimes Plaintiff forgets to take her medicine entìrely,
but that when she takes het medicine she tends to sleep for twelve or more hours afterwards.
* Thit analysis also
applies to Ms. Haymer's thrrd-party function report. [r.298-305.)
1,1
(Id. at
90.) Ms. Haymet also expounded on Plaintiffs
attendance
of
Chdstian meerings,
indicating that "something tdggeted" Plaintiff and that they "basically had to leave" because
"it ends up being like an atgument." (Id.
^t
92.) Ms. Haymer further testified that
even
though she attempted to help Plaintiff, Plaintiff would "turn[] on þer]," that somethingwould
"tttgger" Plaintiff, an argument would ensue, that Plaintiff would say and text things in
a
"tage," and that the next day Plaintiff would rÌot remember what she did. (Id. at92-93.)
i.
The ALJ's Treatment of PlaintifPs Testimony
Here, after noting that Plaintifls alleged symptoms were not entirely ctedible for the
reasorLs he
would afticulate, the ,{LJ then moved into a discussion of the objective medical
evidence' (Id. at 50-52.) The
,å,LJ did
not mention any specific restimony from Plaintiff until
the end of his RFC analysis, at which point he made the following fìndings:
Of particular importance is that the claimant testified to
having severe problems sleeping. She said that she hears things
that do not allow her to sleep. However, she also stated that the
Setoquel makes her drowsy, and her witness, Ms. Haymer, stated
that she sleeps 12-15 hours a day. These statements aïe
inconsistent. In any event, in Äpril 2013 the claimant denied
experiencing any hallucination symptoms. In Åugust, 2012, she
told treating providers thar Seroquel was causing daytime
sedation, but that it was tolerable.
Also of paticular importance is that while the claimant
testified to having pain and walking problems, the November
2011 consultative physicai examination rendered no substantially
debilitating findings. The foregoing suppons the above
assessmerìt. There is no substantial evidence in the record of
any medication side effect that would prevent the claimant from
petforming work activiry.
1,2
Weight was affotded to the Third Party Function Report and to
Ms. Haymer's testimony to the extent that they wete consistent
with the above residual functional capaciqr assessment.
Qr. s2.)
The undersigned agrees with Defendant here that the,\LJ's credibility determination is
both susceptible to judicial review and suppoted by substantial evidence. Plaintiff
chanctertzes the
as to PlaintifPs
ÂIJ
as doing
nothing more than conducting an erroneous credibility analysis
difficulties in sleeping. (Docket Enry 7 at 1.4.) But the .,\LJ cleady did more
than that, because aftet pointing to Plaintiffls alleged difficulties in sleeping resulting from
auditory hallucinations, he pointed further to evidence on the record that in Àpril 2013 the
claimant denied experiencing
ÂIJ noted too that in .Àugust,
daytime sedation, but that
PlaintifPs difficulties
in
it
^ny
hallucination symptoms.
(r.
52 referencingTr. 398.) The
2012, Plaintiff told treating providers that Seroquel was causing
was tolerable. (Id.
referenting
Tr. 411.) Consequently, as to
sleeping, the -ÀLJ specifìcally explained how he decided which
Plaintiffs statements to believe. His credibility
analysis
of
in this regard is susceptible to judicial
teview and supported by substantial evidence.s
Substantial evidence also supports the ,\LJ's decision to only par'jally credit Plaintiffs
alÌegations
of disttactablity and interpersonal difficulties. Specifically, the ,\LJ pointed to
t Pluintiff
only appears to be contesting the ALJ's assessment of her alleged mental limitations. The
Court notes in passing, however, that the ALJ also discharged his obligation regatding Plaintiffs
alleged physical limitations regarding her knee, by aliuding to that testimony and then noting that in
November 2011 a consultative physical examination tendered no substantially debilitating findings.
(Tt. 51 at 377 -380.) The ÂLJ then tied this finding back to Plaintiff s allegations that she could not
wotk because of the alleged side-effects of Seroquel by noung that there is no substantial evidence in
the record of any medication side effect that would prevent the claimant from performing work
activity. (Tr. 51.) Once again, the ALJ explained why he chose not to fully accept Plaintiffs
testìmony and so his decision is susceptible to judicial review and supported by substantial evidence.
1,3
instances whete Plaintiff had self-repotted
to her physicians that her mood swings
and
patanota were well-controlled and that she was feeling better with her medication. (T.. 50-51
citingTr. 388,392, 401., 411;
see
also
Tr
384,386,391,394, 404, 406, 4i.4, 41.8,420,423,
The ,{LJ also pointed to tecord evidence demonstrating that Plaintiffs allegations
431.)
of
a
disabling lack of concenttation and an inability to wotk with others were not entitely credible.
Fot example, the ,{LJ pointed to the opinion of consultative examiner Dr. Hards-Britt, who
opined that although PlaintifFstruggled with maintaining concentration, persistence, and pace,
she was not precluded from understanding, retaining, and following instuctions and not
ptecluded ftom petfotming simple, routine, repetitive tasks.
(fr.
50 referencingTr 374.) Dr.
Haruis-Btitt also opined that PlaintifPs ability to respond appropriately to supervision or
interaction with co-r,votkers was impacted by her symptoms, but that Plaintiff was otherwise
self-suffìcient in regatds to het occupational functioning and minimally self-sufficient socially.
Çr
374-75.)
State agency review psychologists also specifically considered
Dr.
Hatds-Bdtt's
opinion and opined that Plaintiff could maintatn attention and concentration to perform
simple, routine, repetitive tasks and intetact with others and take instructions from
supervisor.
(fr.
a
105, 108-09,154,157-58.) ,Ldditionally, all Plaintiff's credible limitations
wete also accounted for the in
intetacting with people,
e.g.,
RFC. For example, to the extent that Plaintiff had problems
"mild paranoia about otherf']s intentions" (Tt. 374), the ,\LJ
limited PlaintifF to only occasional interaction with others
(Ir. 49).
Likewise, to the extent
that Plaintiff had problems with focus and attention and completing tasks, the,\LJ limited her
14
to not only simple, routine, and tepetitive tasks, but also ptovided that Plaintiffwould "need to
avoid ptoduction wotk ot similat fast-paced jobs with deadlines and quoras."
(td.)
These
additional limitations directly accounted for problems in stress, attention, and task petsistence.
Fot all these reasons, the ÅLJ's ctedibility analysis here is susceptible to judicial review and
supported by substantial evidence.
ii.
The AIJ's Treatment of Ms. Flaymer's Testimony
Plaintiff also contends that the ALJ ered in his treatment of Ms. Haymer's testimony.
(Docket E.ttty 7 at 1'1-15.) In his decision, as explained in the block quore above, the
,\IJ
briefly mentioned Ms. Haymet's statement that Plaintiff slept a considerable amount of time
when she took het medicine. Other than that, the
,\LJ
analyzed Ms. Haymet's lay witness
evidence by stating, 'lX/eight was affotded to the Third Patty Function Report and
to þer]
testimony to the extent they were consistent with the above residual functional capacity
assessment."
Qr 52.)
The generalapproach to third p^try testimony or statements renders
harmless the failute of an ÂIJ to weigh or address the credibility of lay testimony, where the
testimony essentially teitetates that
claimant's testimony.
ó
of the claimant, and the ,ttJ ptopedy discredited
a
Hete, as explained above, the ALJ's credibility analysis was
susceptible to judicial teview and suppoted by substantiai evidence. Because Ms. Haymer's
6
See, e¿., Dyda u. Coluin,47 F. Supp. 3d 318, 325-27 (À4.D.N.C. 201,4); Mt(]lothlen u. Astrz.te,No.
7:11-CV-148-RJ,2072WL3647411,at*1.1. (E.D.N.C. t\ug.23,201,2) (unpublished) (finding aÍty errot
by the ALJ in evaluating the lay witness opinion to be harmless because the ALJ properþ discred.ited
claimant's testimony which was similar to the witness's testimony); Pitta a. Astrae, No. 5:11-CV-356-D,
2012 WL 3524829, at *4 (E.D.N.C. -4ug.1,4, 2012) (unpublished) (frnding no erÍor in the ALJ's
considetation of testimony by two lay witnesses where "[t]he ÂLJ's decision ma[de] clear that he
evaluated [the lay witness] testimony collectively along with [claimanr's] testimony and that, as a
practical matter, he considered thefu testimony to be essentially consistent with [claimant's]
testimony").
15
testimony essentially reiterated PlaintifPs testimony, any error in evaluating the
as the application
f6¡¡¡ç¡-5sçþ
of the objectionable boilerplate language found rn Mailil- was harmless in
light of the ,\LJ's sufficient ctedibility analysis of the latter. Put differently, the same reasons
given for partially discounting Plaintifls testimony are also relevant, valid, and apphcable as to
the pattial discounting of Ms. Haymer's testimony.
C. The ALJ's Steo Five Analvsis
PlaintifPs also contends that.{LJ relied on flawed VE testimony to fìnd that she could
petfotm other jobs that existed in the national economy. (Docket Entty 7 at 1,5-16.) Here,
based on
VE testimony, the ,\LJ found that there were three jobs Plaintiff could perform:
linen toom attendant (reasoning level three, Linen Room Âttendant, DOT S 222.387-030,
auailable
aî 1991WL 672098), laundry worket (reasoning level two, Laundry !Øorker, DOT
S
at 1991WL 672987), and marker (reasoning level two, Matket, DOT
$
361,.685-01'8 auailable
369.687-026 aaailable at'1,991,WL 673074).
flr. 95.)
However, even assuming that as Plaintiff contends the ÂLJ erted
in
adopting VE
testimony regarding PlaintifPs abiliry to work as a linen room attendant because a reasoning
level of thtee is inconsistent with the performance of simple, routine, repetitive tasks, the error
was hatmless. This is because the VE also testifìed that between the occupations of laundry
wotker and marker, there existed approximately 21,000 jobs in the national economy and no
fewet than 700 in the state economy. (Tt.
95.)
These two jobs
^Íe ^treasoning
ate consistent with Plaintiffls ability to perform simple, routine, repetitive
See, e.g., Green u. Colain,
work. (Tr. 95.)
No. 1:10CV561, 2013 wL 3206114, at xs-9 O{.D.N.C.
16
level two and
J:une 24,201,3)
(unpublished), repoø and retvmrnendation adopted,201,3
WL
4811.705 O4.D.N.C. Sept.
9, 2013)
(unpublished). This evidence thus provided sufficient support for the ,\LJ's conclusion that
Plaintiff could make a successful adjustment to other work that existed in significant numbers
in the national economy.
See,
0.!., Hicþ; u. Califano,600 F.2d 1,048,1051 n. 2 (4th Cu. 1,979)
(110 lobs constitute a significant
number). .,{ny error here was harmless.
D. The Appeals Council
Finally, Plaintiff argues that the ,Lppeals Council erred in not consideting a MSS from
Dt. ÂndteaTaylo1 dated December
1.3,201,3, submitted
ÂLJ's decision. (Docket Entty 7 at 4-7
referenting
Tr.
to the ,\ppeals Council after the
25-29; Docket E.ttty 12
at 1,-5.)
Specifically, PlaintifF asserts that Dr. Taylot's opinion related back to her mental condition
prior to the,\LJ's decision and, therefore, was "new and matedal" evidence waranting review
by the Appeals Council. @ocket Ent y 7 at 5.)
The -{ppeals Council must consider evidence submitted by a claimantwith the request
fot teview if the additional evidence is (a) new, (b) material, and (c) relates to the period on or
befote the date of the .{LJ's decision. ll/il,Qiru¡ u. Sec)t, Dep't of Health dz Haman Serut.,953
93,95-96 (4th Cit. 1991);20 C.F.R.
$S
F
.2d
404.976(b)(1), 41,6.1476þ)('t). Evidence is new if it is
not duplicative ot cumulative, and matertal tf there is a "teasoî ble possibility that the new
evidence would have changed the outcome oFthe case." IYilkin¡,953 F.2d
at96. "ff]h.
Åppeals Council must considet new and material evidence relating to that period pdor to the
ALJ decision in determining whethet to grant review, even though it may ultimately decline
review." Id. at 95. The ,\ppeals Council need not review or consider new evidence that
17
relates only to a time pedod after the,\LJ issues his decision.
See
20 C.F.R. S 416.1,476(bX1).
In this case, in petinent part, the,\ppeals Council "looked at" Dr. Taylor's MSS, and
attached treatment notes, and concluded that they were new information about a later time
and, thetefore, did not affect the decision as to whether Plaintiff was disabled on or before
May 28,2013, the date of the
,\IJ's decision. Gt.2,25-35.) The Appeals Council, rherefore,
found no basis for granting PlaintifPs request for review and did nor receive this additional
infotmation in the record.T (Id. at 1,6.)
Dr. Taylor's repoft is as follows. She identified Plaintiffs impairments as bipolar
disorder and bordetline petsonality disorder and described Plaintifls symptoms.
She checked
Çr. 25.)
off boxes indicating that PlaintifPs mental impai-rments affected her ability to
maintain attention and concenttation for extended periods, would tikely take her off-task more
than 20o/o of the wotkday, would prevent here from completing a workday or workweek
without the interruption of her symptoms, and would affect her ability to interact with other
people in a workplace, including the general public and supervisors.
t Wh.te,
[r.25-27.) Dt.
Taylor
as here, the Appeals Council declines to accept additional evidence, some courts ln this
appeal of that issue under "sentence slr"7 of 42 U.S.C. S 405G), rathet than "sentence
four." See,^n Bart¡ a. Co/vin, No. 4:13-CY-23,2014wL 366L097, *9 (\ø.D.va. JuIy 22,2014)
e.s.,
(unpubhshed) (collecting cases). As explained above, the sentence four factors are thatthe evidence
must be (a) new, þ) material, and (c) related to the pedod on or before the date of the ÂLJ's decision.
IWil,kins,953 F.2d93,95-96. The sentence six factots are that the evidence (a) must be relevant to the
deternination of disability at the time the application was first filed; þ) the evidence must be material
to the extent that the Commissionet's decision might reasonably have been different had the new
evidence been before her; (c) there must be good cause for the claimant's failure to submit the
evidence when the claim was befote the Commissioner; and (d) the claimant must make at least a
general showing of the natute of the new evidence to the reviewing court. See, eg., Do//-Carpenrer u.
Comm\, 4:71-cv-28, 2012 WL 5464956, at *4 ('\ü/.D.Va, May 7, 201,2) (unpublishecl) (citing Miller u.
Barnhørt,64 Fed. App'* 858, 859 (4th Cir. 2003)). The Cout need not resolve the issue of which test
applies here because, given their ovedapplng nature, particularþ on materiality, th" result is ultimately
circuit tle t
the same.
18
also checked
off
activities within
boxes indicating that PlaintifF would be unable
a
to consistendy perform
schedule, maintain regular attendance, and be punctual and
appropriately with the ordinary stresses of regular work
to
deal
activity. Çr.28.) Dr. Taylor opined
that these symptoms and ümitations applied since at least February 1, 2011 (Plaintiffs
amended alleged onset date of disabiJity). Qd.)
Plaintiff argues that the Àppeals Council ered in concluding that Dr. Taylor's report
was information about a later time because Dr. Taylor indicated that her responses applied
since at least Febru^ry 1,201.1.
(Ir. 28.)
a report is not necessarily dispositive
Defendant, in turn, contends that while the date
of whether it relates to the relevant period, :ee Bird
Comm'r of Soc. Set., 699 F.3d 337, 341 (4th
Ck.
201,2),
it cannot be assumed that Dr.
of
u.
Taylor's
December 2013 opinion related to the relevant pedod given coflr.ary evidence. In support,
Defendant notes that Dr. Taylor did not begin treating Plaintiff until October 201.3,
months aftet the ,\IJ's decision (fr. 30) when Dr. Taylor replaced Dr. Benjamin.
Qr
Ftve
384-94,
40'I-409, 41,1-24,431,-333.) Defendant concludes that thete is no indication that Dr. Taylot
reviewed the records ftom Dt. Benjamin as far back as February
1,2011. Thus, Defendant
reasons, the Âppeals Council reasonably concluded that the report was about a later time.
The Court concludes that any effor here is hatmless. This is because, even
Taylor's repott related to the relevant period, her report is not new or matelrral.
"new"
because
It
if
Dr.
was not
it is cumulative of evidence existing in the record and considered by the ALJ.
The recotd akeady contained a similar MSS ftom Dr. Benjamin
Gr.
425-30) so Dr. Taylot's
"rìew" MSS did not offet additional insight into Plaintiffs mental status. Qr. 51-52.)
T9
Nor was Dr. Taylor's report m^terial. The severity of the limitations that
were
identified in Dr. Taylor's questionnaire were inconsistent with other evidence in the record,
described in considerable detail throughout this Recommendation, including the mental status
findings from CBC and the generally consistent GAF scotes of
55. Qr.
384-94,395-424,
431-35.) Dr. Taylor's opinion was also inconsistent with het own examination report in
Octobet
201.3,
in which
she indicated that
Plaintiff had normal attention and concentration.
flr. 33.) .{s stated above, the ALJ had befote him Dr. Benjamin's
similar MSS and afforded
it
little weight because he found it inconsistent with the clinical fìndings. Çr. 51-52.) Given
the similarity of the opinions, and their similar shortcomings, the undetsigned can see no
possibility that Dr. Taylor's report would have changed the ALJ's decision. The repott and
treatment notes are neithet new not matenal.
Plaintiff objects to this conclusion, asserting that it results from aftet-the-fact gap filling
by the Commissioner. pocket E.rtry 12 at 1,-5.) The Coutt does not agree. First, tathet
raionalzation, the Cout
than seeing this as an instance of impermissible þost-hoc
^gency
instead views this as PlaintifPs failure to meet her burden of demonstrating that the evidence
in
question meets the elements
of the relevant inquiry and thetefore
Second, the Âppeals Council does not need to explain its teason
ÀLJ's decision. Meyr
u.
requires a remand.
fot denying review of
an
Astrue, 662 F.3d 700,702 (4th Cir. 201,1). Given this, and the fact
that the evidence in question is not even part of the administrative record (Tr. 5), it would be
unreasonable to estop the Commissioner from pointing out what the Court can easily see for
itself, and which
it
has reasoned
to
independently; that is, that
20
Dr. Taylor's MSS and
supporting documents are cumulative and immaterial. Third, other courts within the Fourth
Circuit have likewise declined to remand in similar ciïcumstances.s Any etrot is harmless.
V. CONCLUSION
After a careful consideration of the evidence of tecord, the Cowt fìnds that
Commissioner's decision
the
is suppoted by substantial evidence. Accotdingly, this Coutt
RECOMMENDS that Plaintiffs Motion for Judgment Reversing Commissionet (Docket
Entty 6) be DENIED, Defendant's Motion forJudgment on the Pleadings (Docket Entry 10)
be GRANTED and the final decision of the Commissionet be upheld.
e
August
$,
tu
zOrS
States Magistrate Judge
Action No. 6:13-2907-TMC, 201,5 Vrry- 628504, *2, 4-5 (D.S.C. Feb.
1,2,201,5) (unpublished) (rejecting the atgument that it would be a post hoc tationabzatton for "a
magistrate judge [to] determine whethet [a medical] Questionnafue would affect the decision of the
AIJ"); Saunders u. Coluin, No. 5:12-CV-775-D, 2074 WL 1057024, at *7 (E.D.N.C. Mar. 1'7, 201'4)
(unpublished) (detetmining that a mentalimpairment questionnaite submitted to the Appeals Council
was not new because the doctor based her questionnaire resPonses on her eadier treatment of the
cla:tmant, and those treatment notes were alrcady contained in the tecord and considered by the AL);
Mallo1t u. Co/uin, 1:1,0-cv-420, 2013 WL 2747681., at x5 (l\{.D.N.C. May 16, 201,3) (unpublished),
8
See,
e¿., Il/illians u. Colrin, Civil
recomnendation adopnd,
slip op. (X{.D.N.C. July 10, 2013) (unpublished).
21.
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