KERSHAW v. COLVIN
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/13/2016; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be granted, and that judgment be entered for Defendant. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CAROLYN W. COLVIN,
Acting Commissioner of Social
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sylvia Kershaw, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Defendant has filed the certified administrative record
(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 14; see also Docket Entry 13
For the reasons that follow, the Court should enter
judgment for Defendant.
Plaintiff applied for DIB and SSI, alleging an onset date of
applications initially (Tr. 76-95, 122-27) and on reconsideration
(Tr. 96-121, 130-38), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 139-44).
(represented by counsel), Plaintiff’s sister, Faye McGilvary, and
a vocational expert (“VE”) testified at the hearing.
The ALJ subsequently ruled that Plaintiff qualified as disabled
under the Act from her alleged onset date of December 29, 2011,
through April 1, 2013, but that, beginning on April 2, 2013,
Plaintiff’s condition medically improved such that she no longer
thereafter denied Plaintiff’s request for review (Tr. 1-6, 12-13,
278-81), thereby 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:
[Plaintiff] meets the insured status requirements of
the  Act through March 31, 2013.
[Plaintiff] has not engaged in substantial gainful
activity since December 29, 2011, the date [Plaintiff]
. . .
From December 29, 2011 through April 1, 2013, the
period during which [Plaintiff] was under a disability,
[Plaintiff] had the following severe impairments: effects
of cerebral vascular accidents (CVAs) times two;
hypertension; and diabetes.
. . .
From December 29, 2011 through April 1, 2013,
[Plaintiff] did not have an impairment or combination of
impairments that met or medically equaled the severity of
an impairment listed in 20 CFR Part 404, Subpart P,
. . .
. . . [F]rom December 29, 2011 through April 1,
2013, [Plaintiff] had the residual functional capacity to
perform light work . . ., except that she could never
climb ladders, ropes, or scaffolds; and occasionally
balance, stoop, and climb ramps and stairs. [Plaintiff]
could occasionally push and/or pull with the left upper
and lower extremities; and occasionally reach with the
left upper extremity. She need[s] to avoid concentrated
exposure to hazards, such as dangerous machinery and
unprotected heights. [Plaintiff] required hourly work
breaks to the extent she would be off task greater than
15 percent of the workday.
. . .
From December 29, 2011 through April 1, 2013,
[Plaintiff] was unable to perform any past relevant work.
. . .
10. From December 29, 2011 through April 1, 2013,
experience, and residual functional capacity, there were
no jobs that existed in significant numbers in the
national economy that [Plaintiff] could have performed.
. . .
11. [Plaintiff] was under a disability, as defined by
the  Act, from December 29, 2011 through April 1, 2013.
12. [Plaintiff] has not developed any new impairment or
impairments since April 2, 2013, the date [Plaintiff’s]
Thus, [Plaintiff’s] current severe
impairments are the same as that present from December
29, 2011 through April 1, 2013.
13. Beginning April 2, 2013, [Plaintiff] has not had an
impairment or combination of impairments that meets or
medically equals the severity of one of the impairments
listed in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
14. Medical improvement occurred as of April 2, 2013,
the date [Plaintiff’s] disability ended.
. . .
15. The medical improvement that has occurred is related
to the ability to work because there has been an increase
in [Plaintiff’s] residual functional capacity.
. . .
16. . . . [B]eginning April 2, 2013, [Plaintiff] has had
the residual functional capacity to perform light work
. . ., except she requires a sit/stand option at 60minute intervals. [Plaintiff] can occasionally climb
ladders, ropes, and scaffolds; frequently climb ramps and
stairs; and frequently balance and stoop.
frequently push and/or pull with the left upper and lower
extremities; occasionally reach overhead with the left
upper extremity, and frequently reach in other directions
with the left upper extremity. [Plaintiff] must avoid
concentrated exposure to hazards, such as dangerous
moving machinery and unprotected heights.
. . .
17. [Plaintiff] is still unable to perform past relevant
. . .
20. Beginning April 2, 2012, considering [Plaintiff’s]
age, education, work experience, and residual functional
capacity, there have been jobs that exist in significant
numbers in the national economy that [Plaintiff] can
. . .
[Plaintiff’s] disability ended April 2, 2013.
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).
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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).
the Court “must uphold the factual findings of the ALJ if they are
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
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, 401 (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) (brackets and internal
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the 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
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the 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
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.
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]
‘sequential evaluation process’ to determine whether a claimant is
This sequential evaluation process (“SEP”) has up to five
“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. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2
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
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
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).
“Through the fourth step, the burden of production and proof is on the
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
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,
the ALJ must assess the claimant’s residual functional capacity
Id. at 179.3
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.
See 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
“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.
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
Hines, 453 F.3d at 567.4
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “[s]ubstantial evidence of record does not support the
ALJ’s finding that [Plaintiff] experienced medical improvement”
(Docket Entry 13 at 5); and
(2) “[t]he ALJ erred in failing to grant [Plaintiff’s] request
for a post-hearing psychological consultative evaluation to assess
her cognitive deficits” (id. at 10).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 15 at 6-20.)
1. Medical Improvement
In Plaintiff’s first assignment of error, she contends that
the ALJ failed to support his finding of medical improvement as of
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.”).
April 2, 2013, with substantial evidence.
(See Docket Entry 13 at
“misinterpreted” an April 2, 2013 statement Plaintiff made to a
consulting neurologist during a hospitalization that she felt back
to “her baseline” (id. at 6 (internal quotation marks omitted)
statement contradicted her testimony that neurological deficits had
continued beyond April 2, 2013 (id. (citing Tr. 28)).
emphasizes that, according to her family, Plaintiff’s presentation
during that hospitalization, including observations by treatment
providers that Plaintiff “was a poor historian and seemed slightly
slow and forgetful,” actually represented “her baseline since
(Id. at 7; see also Tr. 507, 508.)
maintains that the ALJ “fail[ed] to consider the parts of the
record that suggest that [Plaintiff] [wa]s not ‘back at baseline’
after April 2, 2013” (Docket Entry 13 at 8), including improperly
discounting the opinions of Plaintiff’s treating physician, Dr.
Martina Dockery-Monroe (id.; see also Tr. 297, 575-79), and failing
to weigh the testimony of Plaintiff’s sister, Ms. McGilvary (id. at
8-9 (citing Tr. 64-67)).
Plaintiff’s arguments fall short.
The regulations define “medical improvement” as “any decrease
in the medical severity of [a claimant’s] impairment(s) which was
Neither party challenges the ALJ’s conclusion that Plaintiff qualified as
disabled under the Act from December 29, 2011 to April 1, 2013. (See Docket
Entry 13 at 6-20; Docket Entry 15 at 5-12.)
present at the time of the most recent favorable medical decision
§§ 404.1594(b)(1), 416.994(b)(1).
The ALJ must base a finding of
medical improvement “on changes (improvement) in the symptoms,
signs, and/or laboratory findings associated with [the claimant’s]
impairment(s).” Id. If the ALJ finds medical improvement, he must
then determine whether that improvement resulted in an increased
RFC to perform work activities.
See 20 C.F.R. §§ 404.1594(a),
(b)(2)-(4), (c)(2), (f)(4); 20 C.F.R. §§ 416.994(a), (b)(2)-(4),
Here, the ALJ supported his finding of medical improvement
with substantial evidence.
Although the ALJ noted Plaintiff’s
April 2, 2013 “baseline” statement (Tr. 28), the ALJ’s subsequent
explanation makes clear he did not misinterpret that statement. In
regards to medical improvement, the ALJ stated as follows:
On [April 2, 2013], [Plaintiff] indicated that she felt
back at her baseline. She was not aware of any increased
weakness on the left and had no more changes.
discussed above, functioning began to improve in August
2012, despite continued smoking and some noncompliance
with medication. [Plaintiff] [had] decreased strength at
4/5 in August 2012 and slow speech, but her tremors had
improved. From a visit later in August 2012 to January
2013, her gait, sensation, coordination, and muscle
strength were normal. On July 11, 2013, [Plaintiff] was
doing “quite well” clinically and had only “very mild
Blood pressure readings from
June 2012 to January 2013 were within normal range.
emphasized portions of the ALJ’s analysis show, the ALJ focused on
improvement in Plaintiff’s functioning beginning in August 2012,
followed by a period of relative stability in Plaintiff’s symptoms
from late August 2012 to January 2013.
Moreover, the ALJ
experienced very mild left hemiparesthesias.
thus demonstrates that the ALJ did not misinterpret Plaintiff’s
“baseline” statement or construe it to mean Plaintiff had reached
a symptom-free state of full functionality; rather, the ALJ viewed
Plaintiff’s “baseline” as the point at which Plaintiff’s poststroke deficits had improved and stabilized.
(See Tr. 29 (noting
that, after April 2013 hospitalization, “[s]ubsequent treatment
records documented stability in functioning”.)6
Plaintiff further faults the ALJ for affording little weight
to Dr. Monroe’s January 9, 2014 opinions, which Plaintiff maintains
show that she did not return to her baseline after April 2, 2013.
(See Docket Entry 13 at 8; see also Tr. 29, 575-79.)
Plaintiff, “the record shows that [Plaintiff] continued to have
episodes of ‘shaking of the arm and leg’ lasting for ‘several
minutes’” (Docket Entry 13 at 8 (quoting Tr. 559)) and “continued
to struggle with . . . depression and memory deficiencies” (id.
Notably, the ALJ did not, as Plaintiff argues (see Docket Entry 13 at 6),
remark that Plaintiff’s “baseline” statement contradicted her testimony that any
neurological deficits continued after April 2, 2013; rather, he found that the
“baseline” statement contradicted Plaintiff’s testimony that the “same
neurological deficits” that Plaintiff experienced in the aftermath of her
December 2011 stroke persisted beyond April 2, 2013, (Tr. 28 (emphasis added)).
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
§§ 404.1527(c)(2), 416.927(c)(2) (“[T]reating sources . . . provide
impairment(s) and may bring a unique perspective to the medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.”).
also recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
416.927(c)(2)(ii). Moreover, as subsections (2) through (4) of the
rule describe in great detail, a treating source’s opinion, like
all medical opinions, deserves deference only if well-supported by
medical signs and laboratory findings and consistent with the other
§§ 404.1527(c)(2)-(4), 416.927(c)(2)-(4).
“[I]f a physician’s
inconsistent with other substantial evidence, it should be accorded
Plaintiff’s citation to pages 584 and 589 of the administrative transcript
constitutes a typographical error, as the transcript ends with page 579.
significantly less weight.”
Craig, 76 F.3d at 590 (emphasis
Dr. Monroe completed a “Stroke [RFC] Questionnaire” on January
9, 2014, and opined that, as a result of Plaintiff’s stroke(s), she
could sit and stand each for no more than 10 minutes at a time and
for less than two hours total in a workday, walk less then one
quarter of a block and less than two hours total in a workday,
would require 15 to 20 minute breaks every 20 minutes, would need
to elevate her legs for one to two hours per workday, could never
lift or carry objects weighing less than 10 pounds or engage in any
postural movements, could handle, finger, and reach less than five
(See Tr. 576-78.)
According to Dr.
attention and concentration needed to perform even simple work
tasks” (Tr. 576), and would cause her to be absent from work more
than four times per month (Tr. 579).
The ALJ summarized Dr. Monroe’s opinions, and then provided
the following analysis:
[T]he evidence beginning on April 2, 2013, documented
that [Plaintiff’s] clinical findings were no worse than
mild. This opinion is grossly exaggerated and is not
supported by the medical record, including Dr. Monroe’s
own treatment notes. Accordingly, the [ALJ] gives this
opinion little weight for the period beginning on April
Thus, the ALJ complied with the regulations, and
discounted Dr. Monroe’s opinions both as not “well-supported by
medical signs and laboratory findings” in Dr. Monroe’s treatment
records and as inconsistent “with the other substantial evidence in
the case record,” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). (See
A review of the relevant portions of the record confirms the
ALJ’s above-described conclusions.
The record contains only two
treatment records from Dr. Monroe between April 2, 2013, the date
the ALJ found Plaintiff’s disability ended, and January 9, 2014,
the date on which Dr. Monroe offered her opinions.
(See Tr. 548-
On April 24, 2013, Plaintiff presented to Dr. Monroe
with primary complaints of urinary tract infection, rash, and
(See Tr. 548.)
Dr. Monroe described Plaintiff as
“[a]lert and oriented,” noted a blood pressure of 95/61, and
documented a physical examination with no significant findings.
Nearly eight months later, Plaintiff sought treatment
with Dr. Monroe to refill her prescriptions and for complaints of
constipation and a “[d]ark spot” on her right leg.
Monroe recorded a blood pressure of 126/86, and found Plaintiff
“[a]lert and oriented” with [n]o focal [neurological] deficits” and
a “[n]ormal range of motion.”
These relatively benign
findings do not support the extreme limitations that Dr. Monroe
offered on January 9, 2014.
(See Tr. 575-79.)
The record contains only one other treatment record between
April 2, 2013, and January 9, 2014 – a July 11, 2013 visit with
treating neurologist Dr. Bruce S. Solomon.
(See Tr. 559-60.)
Plaintiff faults the ALJ for “fail[ing] to consider” Plaintiff’s
complaint to Dr. Solomon of episodic “shaking of the arm and leg”
that “last[ed] for several minutes” and Dr. Solomon’s concern that
those shaking episodes could constitute “focal motor seizures.”
(Docket Entry 13 at 8; see also Tr. 559.)
However, the ALJ
expressly noted Plaintiff’s testimony that “her left hand and left
leg shook twice weekly” and “that th[o]se episodes lasted about
[five] to 10 minutes and had gotten worse” (Tr. 24; see also Tr.
45), and found her statements “generally credible from December 29,
2011 through April 1, 2013” (Tr. 24), but “not entirely credible”
for the period beginning on April 2, 2013 (Tr. 29).8
mere possibility that Plaintiff’s shaking episodes could represent
focal motor seizures does not mandate acceptance of Dr. Monroe’s
extreme limitations, especially where, as here, Dr. Solomon noted
abnormalities, he did not witness any of Plaintiff’s episodes, the
concluded that Plaintiff “[wa]s doing quite well clinically.” (Tr.
Plaintiff has not challenged the ALJ’s analysis of Plaintiff’s subjective
complaints. (See Docket Entry 13 at 5-12.)
“explain the weight assigned to Ms. McGilvary’s opinion and why he
found her testimony to be less credible for the period beginning on
April 2, 2013.”
(Docket Entry 13 at 8-9.)
Ms. McGilvary testified
understand or comprehend things well, that she avoided interaction
with others, and that she had trouble focusing.
(See Tr. 63-67.)
problems with memory and comprehension” (Tr. 24), but did not
expressly state the weight he assigned to Ms. McGilvary’s testimony
(see Tr. 18-31).
An ALJ may consider evidence from non-medical sources, such as
severity of a claimant’s impairments and his or her residual
ability to work.
See 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4);
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
Agencies, 2006 WL 2329939, at *2 (Aug. 9, 2006) (“SSR 06–03p”).
“[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.”
SSR 06–03p, 2006 WL 2329939, at
Here, the ALJ failed to expressly indicate the weight he
assigned to Ms. McGilvary’s testimony (see Tr. 18-31); however,
notwithstanding that error, no basis exists for remand of the case.
Plaintiff has failed to demonstrate how an express weighing of Ms.
McGilvary’s testimony would have resulted in a different outcome in
the case, see generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th
Cir. 1989) (observing that “[n]o principle of administrative law or
common sense requires [a court] to remand a case in quest of a
perfect opinion [by an ALJ] unless there is reason to believe that
the remand might lead to a different result”).
13 at 8-9.)
Ms. McGilvary’s testimony regarding Plaintiff’s
(See Docket Entry
challenge the ALJ’s finding that Plaintiff’s statements lacked full
credibility for the period beginning on April 2, 2013 (see Docket
Entry 13 at 5-12).
That fact defeats this aspect of Plaintiff’s
first 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”).
Thus, Plaintiff’s first assignment of error entitles her to no
2. Consultative Psychological Evaluation
In Plaintiff’s second and final issue on review, she contends
that the ALJ erred by failing to grant Plaintiff’s request for a
post-hearing consultative psychological evaluation to assess her
(See Docket Entry 13 at 10-12.)
Plaintiff acknowledges Dr. Solomon’s July 11, 2013 findings that
Plaintiff displayed “‘[n]o impairment of attention, impairment of
concentration, impairment of long term memory or impairment of
short term memory’” (id. at 10 (quoting Tr. 560)), she maintains
that “evidence . . . to the contrary” exists in the record (id.
Many of Plaintiff’s cited transcript pages do not, in fact, supply evidence
contradicting Dr. Solomon’s July 11, 2013 findings. Pages 22 through 24 of the
transcript constitute pages of the ALJ’s decision. (See Tr. 22, 24.) Pages 493
and 498 involve treatment in 2012, during the period in which the ALJ found that
Plaintiff qualified as disabled. (See Tr. 493, 498.) Page 571 merely reflects
Plaintiff’s subjective complaints of “[c]onfusion, [l]oss of coordination,
[m]emory loss, [and] decreased concentration” (Tr. 571), and the remainder of
that examination on December 10, 2013, contains no objective findings of any
Plaintiff, “there are inconsistencies in the record regarding
whether or not [Plaintiff] suffers from ongoing memory impairment”
(id. at 12), which triggered the ALJ’s duty to order a consultative
Plaintiff’s contention fails to warrant relief.
See 20 C.F.R. §§ 404.1519a, 416.919a;
Bishop v. Barnhart, 78 F. App’x 265, 268 (4th Cir. 2003).
inconsistency in the evidence, or when the evidence as a whole is
insufficient to allow [the ALJ] to make a determination or decision
on [the] claim,” 20 C.F.R. §§ 404.1519a(b), 416.919a(b).
The ALJ did not abuse his discretion by denying Plaintiff’s
request for a consultative evaluation.
(See Tr. 18 (denying
request and finding that “the medical evidence of record after the
closed period [of disability from December 29, 2011 to April 1,
2013] shows little to no memory impairment or cognitive deficit”).)
As an initial matter, the ALJ did not find the evidence before him
inadequate (see Tr. 18-31), and Plaintiff makes no argument to the
contrary (see Docket Entry 13 at 5-12).10
Rather, Plaintiff relies
cognitive deficits (see Tr. 571-74).
Indeed, the ALJ had before him records of office visits with Plaintiff’s
treating neurologist spanning from December 31, 2011, to July 11, 2013 (see Tr.
326-27, 330-32, 402-04, 493-99, 559-60), as well as records from multiple
hospitalizations for stroke symptoms and diagnostic tests, such as MRIs, CT
scans, and EEGs (see Tr. 328, 329, 396-400, 423-25, 448, 453-54, 469-70, 471-72,
on “inconsistencies” in the evidence regarding the degree of
Plaintiff’s cognitive impairment as the basis of the ALJ’s duty to
order the consultative evaluation.
(See id. at 12.)
ALJ bears the duty to resolve conflicts in the evidence, see Craig,
76 F.3d at 589 (noting that, “[w]here conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled,
the responsibility for that decision falls on the [ALJ]”), and the
ALJ here resolved any inconsistencies in the evidence regarding
Plaintiff’s cognitive deficits, and did not indicate that he
required any further information to reach his conclusions (see Tr.
Under such circumstances, the ALJ did not abuse his discretion
by denying Plaintiff’s request for a consultative evaluation.
Cosom v. Astrue, No. 11–CV–294, 2012 WL 1898921, at *7 (W.D.N.C.
Feb. 23, 2012) (unpublished) (finding “there was no need to arrange
information he needed to reach a decision”).
Plaintiff has not established an error warranting reversal or
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
500, 502-09, 537-38, 539-40).
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 14)
be granted, and that judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 13, 2016
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