COLEMAN V. COLVIN

Filing 20

ORDER signed by JUDGE THOMAS D. SCHROEDER on 9/26/2016 adopting the Magistrate Judge's Recommendation 15 ; that Plaintiff's motion for judgment on the pleadings (Doc. 11 ) is DENIED, that Defendant's motion for judgment on the pleadi ngs (Doc. 13 ) is GRANTED, that the Commissioner's decision finding no disability is AFFIRMED, and that this action is DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with this Order. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GARY RAY COLEMAN,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

1:15CV751

ORDER
Plaintiff Gary Ray Coleman brought this action under 42 U.S.C.
§ 405(g), seeking to obtain review of a final decision by the
Commissioner of Social Security to deny his claims for disability
benefits.

On January 22, 2016, Plaintiff filed a motion for

judgment on the pleadings, requesting that the court reverse the
Commissioner’s decision.

(Doc. 11.)

Defendant Carolyn Colvin

filed a competing motion for judgment on the pleadings on March
22, 2016.

(Doc. 13.)

In accordance with 28 U.S.C. § 636(b), the

Recommendation of the United States Magistrate Judge was filed and
served on the parties in this action.

(Doc. 15.)

Within the time

limitation set forth in the statute, counsel for Plaintiff objected
to the Recommendation (Doc. 18), and the Commissioner responded
(Doc. 19).
The court has made a de novo determination of those portions

of the Recommendation to which Plaintiff has objected, which is in
accord with the Magistrate Judge’s report.
lack merit.
Citing

Plaintiff’s objections

However, two are worthy of discussion.
20

C.F.R.

§

404.1512(e)(1),

Plaintiff

faults

the

Administrative Law Judge (“ALJ”) for not attempting to re-contact
a nurse practitioner to seek further explanation or clarification
of her opinions.

(Doc. 18 at 5.)

This objection lacks merit for

several reasons.
First, issues, such as this one, “raised for the first time
in objections to the magistrate judge’s recommendation[,] are
deemed

waived.”

Deaver

v.

Colvin,

No.

5:13cv05776,

2014

WL

4639888, at *7 (S.D. W.Va. September 16, 2014) (citations omitted).
Second, this regulation was no longer in effect when Plaintiff
applied for benefits in August of 2012.

(Tr. 11, 152-58.)

In

fact, subsection (e)(1) was deleted from 20 C.F.R. § 404.1512 in
March of 2012, eliminating the language requiring an ALJ to recontact a physician or other medical source.

See How We Collect

and Consider Evidence of Disability, 77 Fed. Reg. 10651-01, 2011
WL 7404303 (Feb. 23, 2012).

Under the revised regulations, an ALJ

may re-contact a medical source if there is insufficient record
evidence to determine whether the claimant is disabled.
C.F.R. § 404.1520b(c)(1).

See 20

Because there is sufficient evidence

that Coleman was not disabled, as discussed below, and because
2

initiating a re-contact is within the discretion of the ALJ,
Plaintiff’s reliance on this regulation is misplaced.
Third, even setting both of these reasons aside, Plaintiff
has failed to set forth any meaningful reason to conclude that
this issue requires remand so that the ALJ may re-contact a medical
source.

See Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004)

(“An ALJ need recontact medical sources only when the evidence
received

is

inadequate

to

determine

whether

the

claimant

is

disabled.”); White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001)
(“[I]t is not the rejection of the treating physician’s opinion
that triggers the duty to recontact the physician; rather it is
the

inadequacy

claimant’s

of

the

treating

‘evidence’
physician’

the

ALJ

that

‘receives

triggers

from

the

the

duty.”)

(citations omitted); Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)
(finding no duty to contact when “[t]he ALJ had before him a
complete medical history, and the evidence received from the
treating physicians was adequate for him to make a determination
as to disability”).
Next, although he fails to cite the governing law or relevant
regulatory factors, Plaintiff may also be challenging the ALJ’s
credibility
Magistrate

analysis.
Judge’s

(Doc.

18

Recommendation,

at

6-7.)

Plaintiff

raised or briefed credibility in his pleadings.
3

As

noted

never

in

the

explicitly

(Doc. 15 at 15.)

The issue has consequently been waived.
at *7.
the

Deaver, 2014 WL 4639888,

Moreover, the Magistrate Judge was also correct that, in

alternative,

there

credibility analysis.
correctly

pointed

out

was

no

material

error

(Doc. 15 at 15, n.6.)
that

Plaintiff

in

the

AJL’s

For example, the ALJ

generally

received

only

conservative treatment and also performed a wide range of daily
activities.

(Tr. at 18-21, 228-32, 414.)

Fed.

264,

Appx.

273

(4th

Cir.

2015)

See Dunn v. Colvin, 607
(holding

that

an

ALJ's

consideration of the conservative nature of treatment was a proper
factor to be considered in credibility analysis); Campbell v.
Colvin, No. 1:13-CV-00233-MR-DLH, 2014 WL 6680369, at *6 (W.D.N.C.
Nov. 25, 2014) (“The ALJ must consider the claimant's activities
of daily living as one of the numerous aforementioned factors in
20 C.F.R. § 404.1529 when assessing pain.”).

Plaintiff was also

found able to sit, stand, and ambulate without difficulty, and
found to have a normal gait. (Tr. at 21, 293, 296, 426.) Likewise,
the ALJ also pointed to a treatment note indicating that Plaintiff
was still working during some parts of 2013, which is inconsistent
with a claim of total disability on the alleged onset date.

(Tr.

at 20-21, 529.)
All this and more supports the ALJ’s decision to partially
discount Plaintiff’s credibility.

Craig v. Chater, 76 F.3d 585,

593-96 (4th Cir. 1996); 20 C.F.R. § 404.1529(a)-(c).
4

The fact

that Plaintiff may disagree with the ALJ’s decision does not make
it

legally

incorrect

or

unsupported

by

substantial

evidence.

Therefore, to the extent Plaintiff actually is contesting the ALJ’s
credibility analysis, and insofar as the issue has not been waived,
the objection has no merit.
IT IS THEREFORE ORDERED that Plaintiff’s motion for judgment
on the pleadings (Doc. 11) is DENIED, that Defendant’s motion for
judgment

on

the

pleadings

(Doc.

13)

is

GRANTED,

that

the

Commissioner’s decision finding no disability is AFFIRMED, and
that this action is DISMISSED WITH PREJUDICE.
A

Judgment

dismissing

this

action

will

be

entered

contemporaneously with this Order.

/s/
Thomas D. Schroeder
United States District Judge
September 26, 2016

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