Opinion
No. 7:17-CV-227-D
01-22-2019
DAWN M. PIATZ, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dawn M. Piatz ("Plaintiff") filed this pro se action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the parties' filings, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #21] be denied, Defendant's Motion for Judgment on the Pleadings [DE #22] be granted, and the Commissioner's decision be affirmed.
STATEMENT OF THE CASE
Plaintiff filed applications for SSI and DIB on January 30, 2012, which were denied on August 29, 2012. (R. 92-97.) Plaintiff subsequently filed new applications for SSI on May 3, 2013, and for a period of disability and DIB on January 8, 2014, alleging disability beginning December 22, 2011. (R. 78, 79, 80, 86.) The applications were denied initially and upon reconsideration, and a request for hearing was filed. (R. 78-79, 80-90, 100-07, 116-18.) On June 7, 2016, a video hearing was held before Administrative Law Judge Roseanne M. Dummer ("ALJ"), at which Plaintiff appeared and was represented by counsel. (R. 40.) The ALJ issued an unfavorable ruling on June 17, 2016. (R. 22-34.)
Plaintiff sought review by the Appeals Council and submitted a Mental Residual Functional Capacity Questionnaire completed by her nurse practitioner Kristine Bailey on June 23, 2016. (R. 71-77.) On September 29, 2017, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (R. 1-3.) The Appeals Council did not consider the questionnaire completed by Ms. Bailey, stating the "evidence does not show a reasonable probability that it would change the outcome of the decision." (R. 2.) Plaintiff, now proceeding pro se, seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
The questionnaire was not accepted as evidence (R. 2), and Plaintiff has not sought remand pursuant to sentence six of 42 U.S.C. § 405(g). Accordingly, this court may not consider the questionnaire in reviewing the Commissioner's decision. See 42 U.S.C. § 405(g) (limiting judicial review to the record of proceedings before the Commissioner).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks and citation omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (internal quotation marks omitted) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c), 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). These four broad functional areas also correspond to the "paragraph B" criteria of many of the mental disorders in the Listing of Impairments that may be considered at step three of the sequential evaluation process. See 20 C.F.R. Part 404, Subpart P, App. 1. The ALJ is required to incorporate into the written decision pertinent findings and conclusions based on the "special technique." 20 C.F.R. §§ 404.1520a(e)(3), 416.920a(e)(3).
III. ALJ's Findings
As a preliminary matter, the ALJ found that the Commissioner's August 29, 2012, decision denying Plaintiff's prior applications was final and binding, no basis to reopen the prior determination having been shown. (R. 22.) The ALJ also found that Plaintiff met the requirements for insured status under the Social Security Act ("the Act") through December 31, 2018. (R. 24.) As a consequence, the ALJ considered Plaintiff's applications as to the period from August 30, 2012, to the date of the ALJ's decision on June 17, 2016. (R. 22, 33-34.)
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Act. At step one, the ALJ found Plaintiff had engaged in substantial gainful employment since August 30, 2012, but continued with the five-step evaluation process because the ALJ found there were periods during which she was not employed at a substantial gainful activity level. (R. 24.)
Next, the ALJ determined Plaintiff had the following severe impairments: "history of polysubstance abuse in reported remission; depression, NOS; and opioid dependence." (R. 25.) The ALJ identified the following non-severe impairments: facial reconstruction surgery, history of cervical cancer and ovarian cancer, status post partial hysterectomy and left oophorectomy, bowel problems, left knee pain, and chronic obstructive pulmonary disease. (Id.) At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (Id.)
Depression NOS is found in THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS [hereinafter DSM-IV], § 311 (Am. Psychiatric Ass'n 4th ed. 1994) as "Depressive Disorder Not Otherwise Specified." The current fifth edition ("DSM-V"), issued in May 2013, replaces the "NOS" designation with two options for clinical use: "other specified disorder" and "unspecified disorder." DSM-V at 15-16.
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant could understand, remember, and carry out instructions; she could sustain attention for simple tasks for extended periods of two-hour segments in an eight hour day; she could tolerate brief and superficial contact with others; and she could adapt as needed for simple, routine, repetitive-type, unskilled work.(R. 26.) In making this assessment, the ALJ found Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms "less than fully consistent with the evidence." (R. 31.)
At step four, the ALJ concluded Plaintiff is capable of performing past relevant work as a shirt inspector. (Id.) Notwithstanding the determination that Plaintiff is capable of performing past relevant work, the ALJ proceeded to step five of the evaluation process. At step five, the ALJ determined that other jobs exist in significant numbers in the national economy that Plaintiff could perform, including hand packager, dry cleaning aide, price marker, mailroom clerk (nonpostal), small parts assembler, garment folder, and garment bagger. (R. 32.)
IV. Review
Plaintiff contends that substantial evidence does not support the ALJ's conclusion that she is not disabled, and that the ALJ erred in reaching that conclusion.
Plaintiff also argues that she did not have sufficient quarters of coverage through December 31, 2018; however, the ALJ's finding that she was insured was not adverse to her. When the ALJ found Plaintiff was insured through December 31, 2018, she concluded that Plaintiff would be entitled to benefits under Title II of the Act if she could establish that she was disabled under the Act prior to December 31, 2018.
A. Severity of Impairments
At step two, the ALJ must evaluate the medical severity of a claimant's impairments. 20 C.F.R. §§ 416.920(a)(4)(ii), 416.920(c). A "severe" impairment is one that significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
In this case, the ALJ determined Plaintiff's physical impairments were not severe because the evidence of record did not indicate her impairments caused more than a slight limitation in her ability to work. (R. 25.) Substantial evidence supports the ALJ's determination that Plaintiff's only severe impairments were mental impairments. (R. 46.) Although Plaintiff alleged anxiety and panic attacks that prevented her from working (R. 57-58; Pl.'s Mot. J. Pldgs. at 3-4), the ALJ found that the evidence did not support the existence of a severe anxiety disorder but that her anxiety symptoms should, instead, be considered in connection with her severe impairments. (R. 25.) Plaintiff repeatedly denied anxiety or a panic disorder when asked by a mental health professional. (R. 356, 360, 364, 368, 371, 378, 383, 387, 390.) Substantial evidence supports the ALJ's findings at step two of the sequential evaluation.
B. The Listings
At step three of the sequential evaluation process, the ALJ determined that Plaintiff's impairments, taken alone or in combination, do not meet the requirements of a listing set forth in 20 C.F.R. Part 404, Subpart P, App. 1. Substantial evidence supports this determination.
In order for Plaintiff to show that an impairment meets or equals a listed impairment, "she must demonstrate that her impairment meets all the specified criteria in the relevant listing." Jones v. Berryhill, 681 F. App'x 252, 254-55 (4th Cir. 2017) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990) ("An impairment that manifests only some of [the] criteria, no matter how severely, does not qualify."). If an impairment does not meet the criteria of a listing, it may nevertheless medically equal the criteria. 20 C.F.R. § 404.1525(e)(5). To establish medical equivalence, a claimant must "present medical findings equal in severity to all the criteria" for that listing. Zebley, 493 U.S. at 531. "The [ALJ] . . . is responsible for deciding . . . whether a listing is met or equaled." SSR 96-6p, 1996 WL 374180, at *3 (Jul. 2, 1996). In determining whether a listing is met or equaled, the ALJ must "consider all evidence in [the claimant's] case record about [the] impairment(s) and its effects on [claimant] that is relevant to this finding." 20 C.F.R. §§ 404.1526(c), 416.926(c).
In this case, the ALJ thoroughly reviewed Plaintiff's medical and psychological records to determine if Plaintiff had a mental impairment that would qualify under the listings. (R. 25-31.) The ALJ reviewed Plaintiff's primary care records, hospital records, and treatment notes from March 2012 through May 2016. (Id.) The ALJ considered Listings 12.04 (Affective Disorders) and 12.09 (Substance Addiction Disorders) and concluded that the medical evidence in the record did not support a finding that Plaintiff's impairments met or equaled either of those listings. (R. 25.)
Listing 12.04 addresses such disorders as depression and bipolar disorder. See 20 C.F.R. Part 404, Subpart P, App. 1, § 12.04. This listing is met if the mental impairment satisfies both the paragraph A and paragraph B criteria or, alternatively, if the impairment satisfies the paragraph C criteria. Id.
Listing 12.09 concerns behavioral or physical changes "associated with the regular use of substances that affect the central nervous system." 20 C.F.R. Part 404, Subpart P, App. 1, § 12.09. It is a reference listing - it "does not impose independent requirements; instead, it incorporates the listing-level standards for nine different mental and physical disorders associated with substance abuse, including Listing 12.04." Harris v. Colvin, No. 1:14CV1005, 2016 WL 698083, at *6 (M.D.N.C. Feb. 19, 2016). It "only serve[s] to indicate which of the other listed mental or physical impairments must be used to evaluate the behavioral or physical changes resulting from regular use of addictive substances." 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(A).
The ALJ determined that Plaintiff's impairments do not meet or equal the "paragraph B" or "paragraph C" criteria of Listing 12.04. To satisfy the "paragraph B" criteria of this listing, a plaintiff must show that the mental impairment results in at least two of the following:
• marked restriction in activities of daily living;20 C.F.R. Part 404, Subpart P, App. 1 §§ 12.04, 12.09. Alternatively, a plaintiff may demonstrate that her impairment meets or equals Listing 12.04 based on paragraph C" criteria. "Paragraph C" requires, among other things, at least one of the following:
• marked difficulties in maintaining social functioning;
• marked difficulties in maintaining concentration, persistence or pace; or
• repeated episodes of decompensation, each of extended duration.
• repeated episodes of decompensation, each of extended duration;
• a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
• an inability to function outside a highly supportive living arrangement.
Applying the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c), 416.920a(b)-(c), the ALJ rated the degree of Plaintiff's limitations in the following functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ assessed a mild restriction in activities of daily living; mild difficulties in social functioning; moderate difficulties in concentration, persistence or pace; and two or more episodes of decompensation. (R. 25-26.)
In finding that Plaintiff had a mild restriction in activities of daily living, the ALJ noted that Plaintiff alleged difficulty performing simple household chores and spent most of the day sleeping. (R. 25, 47-48.) The ALJ contrasted this testimony, however, with Plaintiff's admission that she performed household chores at least once a week, completed the requirements for obtaining an Associate's degree, worked part-time, was a full-time homemaker, and was able to care for her children and grandchildren. (R. 25, 48, 51-54, 476.)
Plaintiff argues that the evidence does not support the ALJ's statements that she was a full-time homemaker and cared for her children and grandchildren. (Pl.'s Mot. J. Pldgs. at 3.) However, there is substantial evidence to support the ALJ's findings. Plaintiff told her mental health professional that her lawyer at the time was concerned that she was "babysitting her granddaughter during the day." (R. 476.) Plaintiff stated that she spent most of her time with her daughter while her daughter was in the hospital. (Id.) Plaintiff also told a mental health care provider that she was in charge of remodeling her house (R. 464) and testified that she cooked and cleaned (R. 47-48).
Plaintiff also argues that the ALJ erred by not finding that she fails to leave her home during the day. (Pl.'s Mot. J. Pldgs. at 3.) The ALJ concluded that such an allegation was not supported by the evidence. During the time period at issue, Plaintiff was a college student who finished her program at the top of her class with high honors (R. 51-52), completed an internship to become a counselor (R. 53), worked at levels indicative of substantial gainful activity as a shirt inspector (R. 62-63), and interviewed for a variety of jobs despite being told by her attorney to refrain from looking for positions (R. 467). The ALJ's finding is supported by substantial evidence.
In finding that Plaintiff had mild difficulties in social functioning, the ALJ found that although Plaintiff alleged that she cannot deal with crowds of people or attend family gatherings (R. 49-50, 57-58), the evidence in the record showed that she did well in college courses (R. 51-52), did not have any problems with teachers (R. 13-14), was married during the relevant period (R. 325), and had significant involvement with her family (R. 26, 52-53, 325, 467, 476). Plaintiff was voluntarily interviewed for a news television show (R. 448, 464), interviewed for jobs (R. 403, 451, 461, 464), was working towards becoming a recovery coach at the Mental Health Association (R. 448), was involved in helping her family members (R. 451, 476), and was a straight-A student (R. 444). Accordingly, substantial evidence supports the ALJ's finding that Plaintiff had mild difficulties in daily living and social functioning.
The ALJ found that Plaintiff had moderate difficulties in concentration, persistence, or pace, and considered Plaintiff's testimony that she has hobbies such as crocheting, wood burning, coloring, painting, and sewing, although she had difficulty finishing tasks. (R. 26, 48.) The ALJ noted that Plaintiff stated she has memory problems, yet completed college courses at the top of her class with the use of a computer and demonstrated minimal abnormalities on mental health examination. (R. 26, 49, 51-53, 318.) There is substantial evidence that Plaintiff's memory was "grossly intact" and her "attention span and concentration are normal" upon multiple visits to medical and mental health providers although Plaintiff demonstrated a pressured speech, a tangential thought process, and a depressed mood. (R. 346. 404, 409, 414, 418, 432, 436, 440, 445, 447, 449, 452, 455, 457, 459, 462, 465, 468, 470, 472, 477.) Substantial evidence supports the ALJ's conclusion that an individual who demonstrated minimal abnormalities on examination and completed an Associate's Degree with straight A's had no more than a moderate difficulty in concentration, persistence, or pace.
The ALJ found that Plaintiff experienced two or more episodes of decompensation between March and June of 2012 secondary to substance abuse. (R. 26.) "Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning" and may be used to meet the "paragraph B" or "paragraph C" criteria of Listing 12.04. 20 C.F.R. Part 404, Subpart P, App. 1 § 12.00. However, the term repeated episodes of decompensation is defined as "three episodes within one year, or an average of once every four months, each lasting for at least two weeks." 20 C.F.R. Part 404, Subpart P, App. 1 § 12.00.
Plaintiff contends that the ALJ failed to consider she had seven suicide attempts in one year. (R. 59; Pl.'s Letter to Judge [DE #21-1] at 2, 6.) Medical records, however, document only Plaintiff's allegation of suicide attempts and are inconsistent with Plaintiff's testimony. (R. 318, 444, 448.) Plaintiff alleges she overdosed by taking 120 tablets of Tramadol although the hospital discharge records from 2012 show Plaintiff then stated she took four tablets of Tramadol. (R. 290, 318.) Plaintiff was brought to the emergency room on March 31, 2012, stating she felt depressed and suicidal, had been using "all kinds of drugs," and wanted help. (R. 304.) She was discharged on April 11, 2012, and sought emergency room care again on April 16, 2012, at which time she denied any history of suicide attempts. (R. 297.). She was discharged again on April 19, 2012, and then admitted again on May 31, 2012, after taking four (instead of two) Tramadol. She claimed she had been "wrongfully readmitted . . . for overdose," that she "did not mean to kill herself," but simply wanted to sleep and figure everything out. (R. 289-90.)
Based upon this evidence, the ALJ found that Plaintiff had experienced two or more episodes of decompensation during the period of March 2012 to June 2012. (R. 25.) However, the ALJ correctly noted that these episodes do not meet the frequency and durational requirements under "paragraph B" and "paragraph C" of Listing 12.04.
Finally, Plaintiff contends that the ALJ should have considered her living situation in 2017. (Pl.'s Mot. J. Pldgs. at 3.) The ALJ adjudicated whether Plaintiff was disabled through the date of the decision on June 17, 2016. (R. 34.) Plaintiff's living situation after June 17, 2016, is not relevant to the ALJ's analysis. Plaintiff's argument that her living situation since September 1, 2017, should have been taken into account by the ALJ is without foundation.
Substantial evidence supports the ALJ's determination that Plaintiff does not suffer from a mental impairment that meets or medically equals Listing 12.04 or 12.09, and Plaintiff has not identified any other listing that should have been considered by the ALJ. Accordingly, the court should uphold the Commisisoner's determination as to the listings.
C. RFC
The RFC is an administrative assessment of "an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1; see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). It is based upon all relevant evidence and may include the claimant's own description of limitations from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); SSR 96-8p, 1996 WL 374184, at *5. The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." SSR 96-8p, 1996 WL 374184, at *7. The RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). In other words, the ALJ must "build an accurate and logical bridge from the evidence to his conclusion." Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). If necessary, an ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7.
In this case, the ALJ cited substantial evidence in support of the RFC. The ALJ acknowledged Plaintiff's alleged limitations, but noted that Plaintiff was able to work at a dry-cleaner as a shirt inspector. The ALJ noted that Plaintiff's substance addiction problems were ameliorated by her abstinence from illicit drugs and the efficacy of her Suboxone treatment. (R. 26-30, 54, 62-63, 318, 364, 448, 451, 454, 461.) The ALJ further explained that Plaintiff's ability to attend college and engage in family life indicated she had significant functional ability and, although the record documented difficulties with significant stressors, her symptoms improved when the acute stressors resolved. (R. 30, 458-59, 461-62, 464-65, 467-68, 467-70, 471-72, 476-77.)
There is substantial evidence of record to support the ALJ's finding that Plaintiff can perform a full range of work with the non-exertional restrictions described above. The record further reflects that the ALJ applied the correct legal standard in determining Plaintiff's RFC. Accordingly, any objection to the ALJ's RFC determination should be rejected.
D. Step Five
After concluding at step four that Plaintiff could perform her past relevant work as a shirt inspector, the ALJ made an alternative finding at step five that Plaintiff could perform other jobs that exist in significant numbers in the national economy based upon testimony elicited from the Vocational Expert ("VE"). (R. 31-32.) Plaintiff argues that the ALJ incorrectly rejected VE's responses that included additional limitations. The ALJ rejected the VE's responses to the further hypotheticals because the overall evidence did not support a basis for such limitations. (R. 33.) "While questions posed to the vocational expert must fairly set out all of the claimant's impairments, the question need only reflect those impairments supported by the record." Russell v. Barnhart, 58 F. App'x 25, 30 (4th Cir. 2003) (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)).
Here, the ALJ rejected the VE's responses to hypotheticals with additional limitations that "if an individual is off task about 25% of the workday; needs to take unscheduled breaks about two times a day away from the workstation, in addition to regularly scheduled breaks; and misses work about three to four days a month, then such limitations would preclude employment." (R. 33.) The ALJ also rejected the VE's response to a hypothetical posed by Plaintiff's attorney that "if an individual has difficulty accepting criticism or instruction from their employer, 50% of the time, where they may become upset and unable to follow through or comply with instructions, then such limitations would preclude employment." (Id.) As to both hypotheticals, the ALJ determined that the overall evidence did not support a basis for such limitations.
The ALJ found that Plaintiff did not have "work-precluding psychological condition(s)" and found Plaintiff to be a "rather able individual." (R. 29-30.) The ALJ discussed that no treating or examining source in the record had noted work-precluding limitations, other than Plaintiff's substance abuse, and that the record reflected mostly mild mental status findings that were treated conservatively and effectively. (R. 30, 318-19, 325, 334, 338, 346, 350, 356-57, 360-61, 365, 368-67, 371-72, 375, 378-79, 383-84, 387-88, 391, 404, 409, 414, 418, 432, 436, 440.) Since the additional limitations presented in the hypotheticals to the VE were not supported by the record, the ALJ did not err in rejecting the VE's responses.
Moreover, the ALJ's findings at step five were alternative findings. Given the ALJ's step-four determination that Plaintiff is capable of performing past relevant work, any error at step five would be harmless.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #21] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE #22] be GRANTED, and the Commissioner's decision be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 8, 2019, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 22nd day of January 2019.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge