Ray v. Astrue

Filing 21

ORDER directing that Commr's 19 Objection to Memorandum and Recommendations is calendared for hearing on September 11, 2013. Signed by District Judge Max O. Cogburn, Jr on 8/19/2013. (cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO. 5:12-cv-00008-MOC
MARY E. RAY,

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

ORDER

THIS MATTER is before the court on review of the Commissioner’s
Objection (#19) to the Memorandum and Recommendation (#18) of Judge Keesler.
In her Objection, the Commissioner contends that the recommendation of remand
for a new hearing is based on a misunderstanding by the magistrate judge as to the
scope of review. In sum, the Commissioner contends that the Appeals Council
cured the ALJ’s error in failing - - for a second time - - to consider specific
evidence concerning plaintiff’s mental health treatment before determining the
weight to be assigned the opinions of another mental health professional.
While this court agrees with the underlying argument that this appeal is from
the final decision of the Commissioner, which does not necessarily mean the final
decision of the ALJ, the court is concerned from the outset that the ALJ ignored

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and, perhaps, disobeyed Judge Voorhees’s previous Order of Remand.

Such

oversight undermines this court’s confidence that plaintiff received a fair hearing.
Even if the Appeals Council’s consideration of the overlooked evidence cures the
ALJ’s oversight, the court wants to hear how such consideration has satisfied the
Commissioner’s duty of explaining why she did not fully credit the opinions of Dr.
Ahsanuddin in light of such overlooked evidence. The opinion of a treating
physician is entitled to controlling weight if it is supported by “clinical and
laboratory diagnostic techniques,” and is not inconsistent with other substantial
evidence. 20 C.F.R. § 404.1527(d)(2).
If a physician’s opinion is not given controlling weight, then the
“factors listed below” and in paragraphs (d)(3) through (5) used to
determine the amount of weight to be given it are (1) the length of the
treatment relationship and the frequency of examination (“the longer a
treating source has treated you and the more times you have been seen
by a treating source, the more weight we will give to the source’s
medical opinion”); (2) the nature and extent of the treatment
relationship; (3) supportability (“the more a medical source presents
relevant evidence to support an opinion, particularly medical signs
and laboratory findings, the more weight we will give that opinion”);
(4) consistency (“the more consistent an opinion is with the record as
a whole, the more weight we will give to that opinion”); and (5)
specialization (“[w]e generally give more weight to the opinion of a
specialist about medical issues related to his or her area of specialty
than to the opinion of a source who is not a specialist”). Id. The
regulation also makes clear, however, that the ultimate determination
of disability is reserved for the Commissioner, and “[a] statement by a
medical source that you are ‘disabled’ or ‘unable to work’ does not
mean that we will determine that you are disabled.” 20 C.F.R. §
416.927(e)(1).
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Pittman v. Massanari 141 F.Supp.2d 601, 608 (W.D.N.C. 2001).
To that end, the court will schedule the pending motions and the
Commissioner’s Objection for hearing on September 11, 2013. In addition to the
SAUSAs of record, the court will require that an AUSA from this district also be
present and prepared to argue.

ORDER
IT IS, THEREFORE, ORDERED that the Commissioner’s Objection to
the Memorandum and Recommendation (#19) is calendared for hearing on
September 11, 2013, at a time to be noticed by the Clerk of Court.

Signed: August 19, 2013

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