Opinion
7:20-CV-120-M
02-27-2022
DELFIE LOCKLEAR, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-23, -27] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Delfie Locklear (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). Both parties submitted memoranda in support of their respective motions. [DE-24, -27]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be upheld.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on January 30, 2017, alleging disability beginning January 25, 2017. Transcript of Proceedings (“Tr.”) 837-41. Her claim was denied initially. Tr. 720. Plaintiff filed a request for reconsideration (Tr. 764) and was denied upon reconsideration on October 10, 2017 (Tr. 765-72). On October 26, 2017, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 773-74. A hearing before the ALJ was held on April 1, 2019, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 689-719. On June 12, 2019, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 450-75.
On June 12, 2019, Plaintiff requested a review of the ALJ's decision by the Appeals Council (Tr. 835-36) and submitted additional evidence as part of her request (Tr. 16-449, 476-688). After reviewing the additional evidence, the Appeals Council denied Plaintiff's request for review on May 22, 2020. Tr. 1-7. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., 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). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “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 v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, “the court must ‘review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'” Felts v. Astrue, No. 1:11-CV-00054, 2012 WL 1836280, at *1 (W.D. Va. May 19, 2012) (quoting Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”], ” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which 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). 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): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and, adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 469.
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since January 30, 2017, the alleged onset date. Tr. 456. Next, at step two, the ALJ determined Plaintiff had the following severe impairments: ischemic heart disease (with coronary artery disease and status post stenting); obesity; hypertension; diabetes mellitus (with neuropathy); thyroid adenoma (status post (s/p) thyroidectomy); irritable bowel syndrome; degenerative disc disease; and anxiety. Tr. 456. The ALJ also found Plaintiff had a non-severe impairment of gastroesophogeal reflux disease. Tr. 456. However, at step three, the ALJ concluded these 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, Appendix 1. Tr. 457.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing oneself. Tr. 458-59.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform sedentary work, with the following limitations:
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
she can push and/or pull as much as she can lift and/or carry. She can occasionally operate foot controls bilaterally. She can occasionally climb ramps and stairs, stoop, kneel, crouch and crawl. She can frequently balance. She can never climb ladders, ropes or scaffolds, work at unprotected heights, nor work with moving mechanical parts. She can tolerate occasional exposure to humidity, wetness, dust, odors, fumes and pulmonary irritants. She must have no exposure to extreme cold or extreme heat. She can perform simple, routine and repetitive tasks, make simple-work related decisions and tolerate few changes in a routine work setting defined as performing the same duties at the same station or location, day-to-day.Tr. 459-60. In making this assessment, the ALJ found Plaintiff's statements about her limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 460.
At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of her past relevant work as a companion. Tr. 467. Nonetheless, at step five, upon considering
Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 467.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to incorporate non-exertional limitations on the ability to stay on task where the ALJ first finds Plaintiff was moderately impaired in the maintenance of concentration, persistence, or pace (“CPP”); (2) failing to follow the rules for evaluating medical opinions and by failing to give the opinions proper weight; (3) failing to discuss facts in evidence that contradicted the ALJ's conclusion; and (4) failing to evaluate symptoms, including pain, and the extent to which these symptoms can be accepted as consistent with the objective medical evidence and other evidence. Pl.'s Mem. [DE-24] at 4-5. Each will be discussed below.
All page citations herein are to the page numbers assigned by the court's CM/ECF electronic filing system.
VI. DISCUSSION
A. Limitations accounting for Plaintiff's moderate impairment in CPP
Plaintiff contends that the ALJ erred by failing to incorporate non-exertional limitations on the ability to stay on task where the ALJ first finds that Plaintiff was moderately impaired in the maintenance of CPP. Pl.'s Mem. [DE-24] at 4. At issue, is whether the ALJ adequately accounts for Plaintiff's impairment in CPP in the RFC. Id. at 9-14. Plaintiff argues that the ALJ fails to either include RFC limitations that account for her moderate CPP impairment or explain why no additional limitations were necessary, as required by the Fourth Circuit in Mascio. Id. The court disagrees.
“A Social Security claimant's RFC represents ‘the most [she] can still do despite [her] limitations.'” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). It 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.” Brooks v. Berryhill, No. 2:16-CV-80-FL(2), 2018 WL 944382, at *3 (E.D. N.C. Jan. 23, 2018) (quoting S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). In making this assessment, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)). Further, an RFC assessment must be “based on all of the relevant medical and other evidence.” Ward v. Colvin, 90 F.Supp.3d 510, 513 (E.D. N.C. 2015) (citing 20 C.F.R. § 404.1545(a)(3)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “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, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Where a court is “left to guess about how the ALJ arrived at his conclusions on [claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
In Mascio v. Colvin, the Fourth Circuit joins other circuits in holding “that an ALJ does not account ‘for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). The court finds that “the ability to perform simple tasks differs from the ability to stay on task[, ]” and “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Mascio, 780 F.3d at 638. However, the Fourth Circuit does “not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC.” Shinaberry, 952 F.3d at 121. Instead, the Fourth Circuit states “that ‘an ALJ can explain why [a claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation' in the claimant's RFC.” Id. (quoting Mascio, 780 F.3d at 638) (alteration in original). “For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect [the claimant's] ability to work, in which case it would [be] appropriate to exclude it from the hypothetical tendered to the vocational expert.” Id. (alterations in original). Yet, without such explanation by the ALJ, remand is required. Williams v. Saul, No. 4:20-CV-92-FL, 2021 WL 3399820, at *4 (E.D. N.C. June 16, 2021) (citing Mascio, 780 F.3d at 638; Shinaberry, 952 F.3d at 122; Iva K. v. Soc. Sec. Admin., No. 1:19-cv-02954-JMC, 2020 WL 3060752, at *4 (D. Md. June 9, 2020)).
Here, at step three of the sequential evaluation process, the ALJ determines that Plaintiff suffers from a moderate limitation in CPP. Tr. 459. Supporting this finding, the ALJ states:
With regard to concentrating, persisting, or maintaining pace, the claimant has a moderate limitation. [Plaintiff] testified to having problems focusing. Her history of panic attacks, heart palpitations and nervousness, but her logical thought processes at examinations and ability to follow book plots and drive supports that she has moderate limitations in concentrating, persisting or maintaining pace (Ex. 7F/3; 8F/2; 9F/2; 10F/6; 11F/4; 12F/3; Hearing Testimony).Tr. 459. Subsequently, in the RFC the ALJ limits Plaintiff to sedentary work, with additional mental limitations that Plaintiff can only “perform simple, routine and repetitive tasks, make simple-work related [sic] decisions and tolerate few changes in a routine work setting defined as performing the same duties at the same station or location, day-to-day.” Tr. 460.
To note, Plaintiff's impairment in CPP appears to be only based on Plaintiff's difficulty in concentrating and focusing only. No. mention is made of Plaintiff's inability to either persist or maintain pace at Step Two of the disability evaluation process or in the RFC. See Tr. 459 (discussing only that Plaintiff “testified to having problems focusing, ” but not mentioning her ability to persist or maintain pace).
Under Mascio, because the ALJ determined at step three that Plaintiff suffered from a moderate impairment in CPP, the ALJ was required to either include an RFC limitation to account for these limitations or explain why no such RFC limitation was required. See Shinaberry, 952 F.3d at 121; Mascio, 780 F.3d at 638; see also Futch v. Saul, No. 5:19-CV-286-D, 2020 WL 5351603, at *4 (E.D. N.C. Aug. 17, 2020). Plaintiff contends that the ALJ failed to do so, and thus, remand is required. Pl.'s Mem. [DE-24] at 9-14.
Contrary to Plaintiff's assertion, the ALJ here does account for Plaintiff's moderate CPP impairment in the RFC. Unlike in Mascio, the ALJ does not simply limit Plaintiff to performing simple, routine, and repetitive tasks without further discussion. Rather, in addition to limiting Plaintiff to performing simple, routine, and repetitive tasks, the ALJ also limits Plaintiff to only “mak[ing] simple-work related [sic] decisions and tolerat[ing] few changes in a routine work setting defined as performing the same duties at the same station or location, day-to-day.” Tr. 460. More importantly, however, the ALJ's subsequent narrative discussion supports that such limitations account for Plaintiff's moderate impairment in C P P.
For example, the ALJ notes that inclusion of these mental limitations are consistent with the opinion of state agency consultant Natasha Temple. In discussing Dr. Temple's opinion, the ALJ states:
. . . Dr. Temple's opinion that [Plaintiff] could perform simple, repetitive and routine tasks is consistent with her history of panic attacks, heart palpitations, problems concentrating and focusing, intact memory skills, intact cognitive functioning, and logical thought processes, which would reasonably limit her to performing simple, routine and repetitive tasks, making simple work-related decisions and tolerating few changes in a routine work setting (Ex. 7F/3; 8F/2; 9F/2; 10F/6; 11F/4; 12F/3; 23F/1; Hearing Testimony.Tr. 464 (emphasis added).
The ALJ then notes that the mental limitations provided in the RFC are similarly consistent with the opinions of two state agency psychological consultants: April Strobel-Nuss, Psy.D. and Pauline Hightower, PSy.D. Tr. 466. The ALJ states that both consultants opine that Plaintiff had “moderate limitations in concentrating, persisting or maintaining pace.” Tr. 466. Ye t, despite these impairments, the consultants find that Plaintiff “could understand and remember simple, one-step instructions, sustain concentration to carry out simple, two-step tasks and maintain a regular work schedule.” Tr. 466. The ALJ further discusses that these “opinions are mostly consistent with [Plaintiff's] subjective complaints, the relatively benign mental status examination findings of record and her conservative and limited course of mental health treatment.” Tr. 466. It is further noted that while Plaintiff “reported problems focusing, panic attacks, anxiety related heart palpitations and nervousness, ” she also had “intact memory skills, intact cognitive functioning, logical thought processes and ability to drive and follow a line of questioning at the hearing . . . .” Tr. 466.
In fact, the ALJ assigns only “partial weight” to the opinions of Dr. Strobel-Nuss and Dr. Hightower, as she finds limitations to two-step tasks and a regular work schedule to be not restrictive enough. Tr. 466. The ALJ finds that the opinions:
d[o] not fully address that [Plaintiff's] anxiety and panic attacks would also restrict her to making simple work-related decisions and tolerating few changes in a routine work-setting, defined as performing the same duties at the same station or location, day-to-day, as she does not possess the stress tolerance levels to manage complex decision making or regularly changing assignments during the course of a normal workday (Ex. 7F/3; 8F/2; 10F/6; 11F/4; 12F/3; Hearing Testimony).Tr. 466. In so doing, the ALJ attempts to fashion more restrictive limitations than those provided by the state agency consultants, to ensure that Plaintiff's mental limitations, including those in CPP, are fully accounted for.
Notably, other courts have found that similar restrictions adequately account for a claimant's moderate impairment in CPP, consistent with Mascio. Sills v. Kijakazi, No. 5:20-CV-00109-FL, 2021 WL 3205426, at *4-5 (E.D. N.C. July 12, 2021) (finding a limitation to “simple, routine, repetitive tasks involving no more than short, simple instruction and mak[ing] simple, work-related decisions with few workplace changes” to adequately account for a moderate impairment in CPP in light of the ALJ's explanation and its consistency with the opinions of psychological consultants); see also Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. 2017) (rejecting the plaintiff's argument under Mascio where ALJ relied on opinions of consultative examiner and state agency psychologist that, despite moderate deficit in CPP, the plaintiff could sustain attention sufficiently to perform SRRTs); Sheri S. v. Saul, No. 1:19-CV-01924-GLS, 2020 WL 4579871, at *5 (D. Md. Aug. 7, 2020) (RFC limiting plaintiff to simple, routine, repetitive tasks and simple, work-related decisions accounted for her moderate limitations in concentration, persistence, or pace and ALJ's narrative adequately explained the facts supporting the mental functional limitation); Davis v. Berryhill, No. 1:17-CV-432, 2018 WL 3942089, at *6 (M.D. N.C. Aug. 16, 2018) (ALJ adequately explained why restrictions to simple, routine tasks involving simple, short instructions, and simple, work-related decisions with few work place changes and occasional interactions sufficiently accounted for plaintiff's moderate limitation in CPP).
In sum, the ALJ here adequately accounts for Plaintiff's moderate impairment in CPP in the RFC. Accordingly, the undersigned recommends that this issue does not require remand.
B. Consideration of Dr. Matthew Block's medical opinion
Next, Plaintiff contends that the ALJ erred by failing to follow the rules for evaluating medical opinions and by failing to give the opinions proper weight. Pl.'s Mem. [DE-24] at 4 (citing 20 C.F.R. § 404.1527). Specifically, at issue is whether the ALJ erred by failing to properly consider the opinions of cardiologist Dr. Matthew Block. Id. at 15. Plaintiff alleges that the ALJ did err, as she assigned the opinions little weight, but “failed to properly consider all of the factors for evaluating medical opinions . . . .” Id. The court disagrees.
Because Plaintiff filed her claims on January 30, 2017 (Tr. 837-41), the applicable regulations regarding the evaluation of medical source opinions are 20 C.F.R. §§ 404.1527(c) and 416.927(c), each entitled “Evaluating opinion evidence for claims filed before March 27, 2017.” Sections 404.1527 and 416.927 instruct that “[r]egardless of its source, [the ALJ] will evaluate every medical opinion [it] receive[s].” 20 C.F.R. §§ 404.1527(c), 416.927(c) (emphasis added). Medical opinions are defined as “statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [their] symptoms, diagnosis and prognosis, what [they] can still do despite impairment(s), and [their] physical or mental restrictions.” Id. §§ 404.1527(a)(1), 416.927(a)(1). An “‘[a]cceptable medical source' is defined by regulation and includes only licensed physicians, licensed or certified psychologists for purposes of establishing intellectual disability and intellectual functioning levels, licensed optometrists for purposes of establishing visual disorders, licensed podiatrists, and qualified speech-language pathologists.” Braswell v. Saul, No. 5:19-CV-336-KS, 2020 WL 4937509, at *3 (E.D. N.C. Aug. 24, 2020) (citing 20 C.F.R. §§ 404.1513(a), 416.913(a) (effective until Mar. 27, 2017)). In evaluating medical opinions, the ALJ must “always consider the medical opinions in [a] case record together with the rest of the relevant evidence [it] receive[s].” Id. §§ 404.1527(b), 416.927(b) (citing 20 C.F.R. § 404.1520b).
In general, the ALJ should assign more weight to the medical opinion of a source who has examined the claimant than to the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more weight is generally given to the opinion of a treating source, rather than non-treating sources, such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2); see also Warren v. Berryhill, No. 4:16-CV-77-FL, 2017 WL 3326978, at *3 (E.D. N.C. July 10, 2017); Moore v. Colvin, No. 4:12-CV-189-FL, 2013 WL 5434052, at *4 (E.D. N.C. Sept. 27, 2013). Controlling weight will be given “to a treating physician's opinion on the nature and severity of [a] claimant's impairment if that opinion is (1) ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques' and (2) ‘not inconsistent with the other substantial evidence' in the record.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106 (4th Cir. 2020) (quoting 20 C.F.R. § 404.1527(c)(2)).
“Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such case, we will consider the acceptable medical source to be a nontreating source.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
“If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all the medical opinions of record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, (5) whether the physician is a specialist, and (6) any other relevant factors.” McCormick v. Colvin, No. 7:13-CV-00234-RJ, 2015 WL 1471269, at *7 (E.D. N.C. Mar. 31, 2015) (citing Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citation omitted); Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D. N.C. Dec. 20, 2012) (unpublished) (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)). The ALJ is not required, however, to discuss all of these factors. McCormick, 2015 WL 1471269, at *7 (citing Wa r e , 2012 WL 6645000, at *2).
Yet, an ALJ “must give ‘good reasons' for the weight assigned to a treating physician's opinion.” White v. Colvin, No. 5:13-CV-853-FL, 2015 WL 545447, at *7 (E.D. N.C. Feb. 10, 2015) (quoting Wa r e , 2012 WL 6645000, at *3). And, while an ALJ is not obligated to accept any medical opinion, the ALJ is, however, required to explain the weight given to each opinion. McCormick, 2015 WL 1471269, at *7 (citing Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W. D . Va. Sept. 5, 2006) (unpublished)); see also Lamb v. Berryhill, No. 7:16-CV-397-BO, 2017 WL 5509998, at *3 (E.D. N.C. Nov. 17, 2017) (citing Mastro, 270 F.3d at 178). “Without . . . specific explanation of the ALJ's reasons for the differing weights he assigned various medical opinions, neither [the court of appeals] nor the district court can undertake meaningful substantial-evidence review.” David v. Berryhill, No. 7:17-CV-157-FL, 2018 WL 4664129, at *3 (E.D. N.C. Sept. 28, 2018) (quoting Monroe v. Colvin, 826 F.3d at 191) (alterations in original).
Here, the ALJ's summary of Dr. Block's opinions appears in the RFC as follows:
The ALJ additionally refers to the treatment notes of Dr. Block on numerous occasions when discussing the medical evidence in the RFC. See Tr. 460-63.
In October 2018, Dr. Block reported that [Plaintiff] was incapable of even low stress work. She could walk less than one city block without rest or severe pain. During the course of an eight-hour workday, she could sit, stand and/or walk for less than two hours. She needed to shift positions at will from sitting, standing or walking. She would need to take unscheduled breaks during the course of an eight-hour workday. She could lift and carry less than ten pounds occasionally and ten pounds rarely. She could never lift and carry over twenty pounds. She could never crouch, squat and climb ladders. [Plaintiff] could rarely twist, stoop and climb stairs. [Plaintiff] needed to avoid concentrated exposure to perfumes. She needed to avoid even moderate exposure to wetness, cigarette smoke, and dust. She needed to avoid all exposure to temperature extremes, high humidity, soldering fluxes, solvents/cleaners, fumes, odors, gases and chemicals. She would be off-task more
than twenty-percent of the workday and absent from work more than four days per month (Ex. 22F; 26F).Tr. 464.
In evaluating and assigning Dr. Block's opinions “little weight, ” the ALJ states:
Little weight is assigned to the opinion of Dr. Block even though he regularly treated the claimant's cardiac issues, as his assessment is inconsistent with the overall evidence of record and the claimant's longitudinal medical progress. First, the undersigned notes that as a cardiologist, Dr. Block is not qualified to comment on the claimant's mental health or mental limitations. His opinions that the claimant would be off-task twenty-five percent of the workday and absent from work more than four days per month is not supported by his own examination records where he determined that the claimant's cardiac condition stabilized after stent placement and her shortness of breath was not be [sic] cardiac related (Ex. 7F/3; 21F/10, 15, 18). Additionally, those portions of his opinion are also not supported by the claimant's conservative treatment history, as a person in as much distress as Dr. Block alleged would be expected to seek more significant treatment besides her regular follow-up visits. Her regular heart rate and rhythm, clear lungs, normal gait, normal range of extremity motion, normal extremity sensations and normal coordination at most examinations fails to support the extreme sitting, postural and environmental limitations he purported (Ex. 6F/6; 8F/2; 9F/2; 12F/4; 21F/1, 3, 9, 12, 15, 21; 23; 25F/10; 29F/187; 30F/1; 34F/2, 8; 36F/4, 16). The undersigned notes that while Dr. Block stated that the claimant would need to elevate her legs during the course of a normal workday due to edema, the medical evidence of record seems to support that her leg swelling had decreased. Furthermore at the claimant's February 2017, July 2017, August 2017, September 2017, December 2017, March 2018, April 2018 and October 2018 visits with Dr. Block, she presented with no edema (Ex. 8F/2; 12F/3-4; 21F/1, 3, 7, 9, 12, 21). Therefore, the medical evidence of record does not support Dr. Block's assertion that Ms. Locklear would need to elevate her legs for fifty percent of the workday.Tr. 464-65. Finally, the ALJ notes that she “affords little weight to the disability statements of . . .Dr. Block as a disability determination is reserved to the Commissioner pursuant to 20 CFR 404.1527(d)(1)[, ] . . . [and] such disability statements provide little insight into [Plaintiff's] function-by-function work-related limitations.” Tr. 466-67.
Contrary to Plaintiff's assertions, the ALJ did properly evaluate the medical opinions of Dr. Block. First, the ALJ justified not assigning Dr. Block's opinions “controlling weight.” While the ALJ does acknowledge that Dr. Block regularly treated Plaintiff for cardiac issues, she properly discredits Dr. Block's opinions as a treating physician as “inconsistent with the overall evidence of record and the claimant's longitudinal medical progress.” Tr. 464-65; see Arakas, 983 F.3d at 106 (stating that controlling weight will only be given to a treating physician's opinion that is “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence” in the record) (quoting 20 C.F.R. § 404.1527(c)(2)).
Next, finding that Dr. Block's opinions were not entitled to controlling weight, the ALJ analyzed the opinions considering the relevant factors. See McCormick, 2015 WL 1471269, at *7. For example, in addition to finding the opinions inconsistent with the overall evidence of record (see Tr. 465 (citing Ex. 6F/6; 8F/2; 9F/2; 12F/4; 21F/1, 3, 9, 12, 15, 21; 23; 25F/10; 29F/187; 30F/1; 34F/2, 8; 36F/4, 16)), the ALJ also notes that Dr. Block's opinions were not supported by Plaintiff's conservative treatment history (Tr. 465). Nor were they consistent with Dr. Block's own examination records, which indicated that Plaintiff's cardiac condition stabilized at least to some extent following stent placement. Tr. 465 (citing Ex. 7F/3; 21F/10, 15, 18). Further, the ALJ explains in the written decision that she discounts Dr. Block's opinions relating to Plaintiff's mental health limitations because, in addition to the aforementioned reasons, Dr. Block is a cardiologist and not a mental health specialist. Tr. 465; see also Carter v. Berryhill, No. 5:17-CV-60-RJ, 2018 WL 732904, at *6 (E.D. N.C. Feb. 6, 2018) (citing Perdue v. Comm'r, Soc. Sec. Admin., C I V. S A G -11-3408, 2013 WL 1942160, at *2 (D. Md. May 7, 2013) (pursuant to 20 C.F.R. §§ 404.1527(c)(5) and 416.927(c)(5), “it is proper for the ALJ to cite the fact that [the doctor] is not a specialist in the field of mental health in order to discount her opinion regarding [the claimant's] mental impairments[, ]” but only as “one factor in the analysis”). Finally, the ALJ properly considers and affords less weight to Dr. Block's opinions about Plaintiff's overall disability status, “as a disability determination is reserved to the Commissioner pursuant to 20 CFR 404.1527(d)(1)” and the “statements provide little insight into [Plaintiff's] function-by-function work-related limitations.” Tr. 466-67; see also Holley v. Saul, No. 2:19-CV-00032-D, 2021 WL 609092, at *5, *9 (E.D. N.C. Jan. 13, 2021).
While Plaintiff alleges that “the ALJ failed to properly consider all of the factors for evaluation medical opinions, ” she provides no argument that the ALJ failed to consider any particular factor. Pl.'s Mem. [DE-24] at 16. And, the regulations do not require that an ALJ discuss each and every factor. McCormick, 2015 WL 1471269, at *7. Whereas here, the ALJ provides “good reasons” for the weight assigned to medical opinions (White, 2015 WL 545447, at *7) and adequately explains the weight given to each opinion (McCormick, 2015 WL 1471269, at *7), the court's review is satisfied.
Accordingly, the undersigned recommends that this issue does not require remand.
C. Evaluation of Plaintiff's symptoms, including pain
Next, Plaintiff contends that the ALJ erred by failing to evaluate symptoms, including pain, and the extent to which these symptoms can be accepted as consistent with the objective medical evidence and other evidence. Pl.'s Mem. [DE-24] at 5 (citing 20 C.F.R. § 404.1529). Specifically, at issue is whether the ALJ evaluated Plaintiff's symptoms, including pain, using the two-step evaluation process provided for in 20 C.F.R. § 404.1529. Id. at 21-22. Plaintiff argues that the ALJ did not, as “the ALJ completely fails to consider the type and dosage of two medications prescribed for [Plaintiff's] pain . . . .” Id. The court disagrees.
The regulations provide a two-step framework for “[e]valuating the intensity and persistence of [a claimant's] symptoms, such as pain, and determining the extent to which [the claimant's] symptoms limit [their] capacity to work.” 20 C.F.R. §§ 404.1529(c), 416.929(c); see also S.S.R. 16-3p, 2017 WL 5180304 (Oct. 25, 2017). First, the ALJ must look to see whether “the medical signs or laboratory findings show that [the claimant has] a medically determinable impairment(s) that could reasonably be expected to produce [their] symptoms, such as pain . . . .” Id. §§ 404.1529(c)(1), 416.929(c)(1). If so, the ALJ “must then evaluate the intensity and persistence of [the claimant's] symptoms so that [the ALJ] can determine how [the] symptoms limit [the claimant's] capacity for work.” Id.
At step two, “[b]ecause symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, [the ALJ] will carefully consider any other information [the claimant] may submit about [their] symptoms.” Id. §§ 404.1529(c)(3), 416.929(c)(3). One factor that an ALJ must consider that is relevant to a claimant's symptoms, such as pain, is “[t]he type, dosage, effectiveness, and side effects of any medication [the claimant] take[s] or ha[s] taken to alleviate [their] pain or other symptoms . . . .” Id. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv). Y e t, w hile the ALJ is required to consider this factor, the “ALJ is not required to discuss every piece of evidence contained in the record.” Scott v. Colvin, No. 7:12-CV-276-FL, 2014 WL 29458, at *8 (E.D. N.C. Jan. 3, 2014) (citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); Kozel v. Astrue, No. JKS-10-2180, 2012 WL 2951554, at *3 (D. Md. July 18, 2012)); see also Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014).
Here, following a review of the evidence, the ALJ “finds that [Plaintiff's] medically determinable impairments could reasonably be expected to cause some of [her] alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record . . . .” Tr. 460. In evaluating Plaintiff's symptoms, the ALJ expressly states that she “has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 16-3p.” Tr. 460. Nevertheless, Plaintiff maintains that the ALJ “fails to consider the type and dosage of two medications prescribed for [Plaintiff's] pain: oxycodone, oxycodone-acetaminophen, and nitroglycerin (sublingual).” Pl.'s Mem. [DE-24] at 21.
“Oxycodone-acetaminophen” is also referred to as the brand name “Percocet.” Both names are referred to throughout Plaintiff's medical records. See, e.g., Tr. 1822.
Contrary to Plaintiff's assertions, the court finds that the ALJ did properly consider Plaintiff's prescribed medications in evaluating Plaintiff's pain and symptoms. The record makes clear that the ALJ was aware of and considered that Plaintiff was prescribed both medications referenced by Plaintiff. For example, at the hearing before the ALJ on April 1, 2019, the ALJ specifically questioned Plaintiff about her medications and discussed the medications with Plaintiff. Regarding Plaintiff's prescription for nitroglycerine and her potential heart palpitations, the ALJ engaged in the following exchange with Plaintiff:
[ALJ:] Okay. And what do you do when it happens?
[Plaintiff:] Sometimes I have to take one of the heart pills and place up under my tongue. I can't pronounce it, nitroglycerine.
[ALJ:] Yes.
[Plaintiff:] Yeah.
[ALJ:] Okay. How often do you have to take a nitroglycerine?
[Plaintiff:] Well, my heart doctor told me as soon as I feel the like bricks is on my chest, tightness and stuff. He told me take one. I might have to take on every day, every other day. It just all depends on when I feel that on top of my chest.
[ALJ:] Okay. So do you -- have you been taking nitroglycerine every day?
[Plaintiff:] Sometime, no, not every day.
[ALJ:] Okay. Other than taking nitroglycerine, what other kind of medication or treatment do you have for your heart?
Tr. 701 (emphasis added).
The ALJ then engaged in the following exchange with Plaintiff regarding her prescription for oxycodone-acetaminophen, or Percocet:
[ALJ:] Okay. All right. Are there any other reasons that you feel you cannot work?
[Plaintiff:] I do have back problems. I don't know if you got a list of all my medicine. But I'm on Percocet 10, 325. I have to take one every eight hours. My tail bone is out of place. I got no -- at all. I've got a bulging disc, and I have arthritis.
[ALJ:] Okay. What kind of treatment have you had for your back?
[Plaintiff:] What kind of what, ma'am?
[ALJ:] Treatment have you had for your back other than the medication?Tr. 703 (emphasis added).
The ALJ further questioned Plaintiff regarding any potential side effects of her medications. Specifically, the ALJ asked Plaintiff if she “suffer[s] any side effects from any of the medications that you take?” Tr. 702. To which, Plaintiff responded: “No, ma'am.” Tr. 702. Finally, in fashioning Plaintiff's physical limitations in the RFC - in particular, those relating to Plaintiff's inability to “climb ladders, ropes or scaffolds, work at unprotected heights []or work with moving mechanical parts” - the ALJ refers specifically to Plaintiff's “prescription medication regimen” as being a factor supporting the included limitations. Tr. 465.
While the ALJ may not have explicitly referred to each of Plaintiff's prescriptions in assessing Plaintiff's symptoms in the RFC, there was no such requirement that the ALJ do so.
Scott, 2014 WL 29458, at *8 (discussing the ALJ's evaluation of a plaintiff's prescription medications and side effects and stating that “an ALJ is not required to discuss every piece of evidence contained in the record”); see also Reid, 769 F.3d at 865. In light of the record, it is clear that the ALJ was fully aware of and acknowledged both of Plaintiff 's prescribed pain medications. And, Plaintiff offers no support for her assertion that the ALJ “failed to consider” such medications in assessing Plaintiff's symptoms. Pl.'s Mem. [DE-24] at 22.
Accordingly, the undersigned recommends that this issue does not require remand.
D. Appeals Council's evaluation of “additional evidence”
Finally, Plaintiff contends that the ALJ erred by failing to discuss facts in evidence that contract the ALJ's conclusion, as these facts should be noted and the ALJ should have included a discussion as to whether to allocate weight to these facts. Pl.'s Mem. [DE-24] at 5. In support of her argument, Plaintiff cites to two pieces of evidence that the ALJ purportedly failed to discuss, both of which Plaintiff contends are inconsistent with the RFC findings. Plaintiff states that “[i]f [this evidence was] considered, with the rest of the record, [Plaintiff's] RFC may have been found much more severely limited than the ALJ found in the decision.” Pl.'s Mem. [DE-24] at 20-21. The first piece of evidence cited to by Plaintiff is a treatment note by Dr. Block relating to a June 3, 2019 visit. Id. at 20 (citing Tr. 465). The second piece of evidence is a treatment note by Dr. Block relating to a March 1, 2019 visit. Pl.'s Mem. [DE-24] at 20 (citing Tr. 560-61).
Plaintiff's argument here is factually incorrect. While Plaintiff argues that the ALJ failed to consider these two pieces of allegedly contradictory evidence, neither treatment note was submitted to the ALJ. Instead, the two treatment notes were submitted to the Appeals Council as “additional evidence” after the ALJ had already evaluated Plaintiff's RFC and issued her written decision. See Tr. 2 (stating that “medical records from Scotland Cardiology dated January 23, 2019 through June 3, 2019” were submitted to the Appeals Council as “additional evidence”).Thus, the ALJ cannot have erred by failing to evaluate purportedly contradictory evidence that was not included in the record before her. Nonetheless, to the extent that Plaintiff intended to argue that the Appeals Council's treatment of these records was an error, the court disagrees.
At the hearing before the ALJ, the ALJ informed Plaintiff's counsel that she would admit medical record exhibits 1F through 38F into the record. Tr. 693. Plaintiff's counsel did not object to these exhibits being admitted to the record, and further stated that while there was an outstanding record from an emergency room visit, he didn't “think it's anything that we need to hold the record open for.” Tr. 693. The ALJ then closed the record, as all evidence had been submitted. Tr. 693. The ALJ subsequently allowed the hospital record to be submitted as part of the record as exhibit 39F, but no additional records were submitted to the ALJ. Tr. 453-54. Neither treatment note by Dr. Block at issue here is included in exhibits 1F through 39F.
Indeed, Plaintiff appears to acknowledge this fact earlier in her memorandum in regard to at least one of the pieces of evidence, as she states that “[t]he stress test [from March 1, 2019] and Dr. Block's accompanying opinion were not available to the ALJ, but were submitted and considered by the Appeals Council . . . .” Pl.'s Mem. [DE-24] at 18.
The regulations provide that the Appeals Council will review a case if it “receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5). “Evidence is new ‘if it is not duplicative or cumulative' and is material if there is ‘a reasonable probability that the new evidence would have changed the outcome.'” Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (quoting Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). “[T]he Appeals Council must consider new and material evidence relating to that period prior to the ALJ decision in determining whether to grant review, even though it may ultimately decline review.” Anderson v. Berryhill, No. 5:17-CV-00143-D, 2018 WL 3750972, at *4 (E.D. N.C. July 5, 2018) (alteration in original) (quoting Wilkins, 953 F.2d at 95). “Only if the Appeals Council grants a request for review and issues its own decision on the merits is the Appeals Council required to make findings of fact and explain its reasoning.” Ellison v. Berryhill, No. 7:18-CV-82-FL, 2019 WL 2970851, at *3 (E.D. N.C. Apr. 9, 2019) (emphasis in original) (quoting Meyer, 662 F.3d at 705).
In denying Plaintiff's request for review, the ALJ determined that Dr. Block's two additional treatment records “do[] not show a reasonable probability that [they] would change the outcome of the decision.” Tr. 2. Because the Appeals Council denied Plaintiff's request for review, it was not required to explain its determination regarding the two contested treatment records. See Ellison, 2019 WL 2970851, at *3 (finding that “the Appeals Council was not required to make findings of fact or explain its reasoning in determining that the new evidence would not change the outcome of the decision”); Sutton v. Berryhill, No. 5:17-CV-48-FL, 2017 WL 7053966, at *2 (E.D. N.C. Dec. 19, 2017) (finding that because “the Appeals Council did not grant review, [] therefore, it was not required to explain its reasoning for determining that the evidence submitted after the ALJ's decision did not warrant changing the ALJ's decision”). Nevertheless, the court must still consider whether Dr. Block's additional records are “new, material, and relate[] to the period on or before the date of the ALJ's decision and whether there is a reasonable probability that the additional evidence would change the outcome of the decision.” Randall v. Saul, No. 2:19-CV-7-FL, 2020 WL 1046766, at *4 (E.D. N.C. Feb. 4, 2020) (citing Wilkins, 953 F.2d at 95; Coleman v. Berryhill, No. 6:17-CV-2613-TMC, 2019 WL 850902, at *3 (D.S.C. Feb. 22, 2019); Kiro v. Berryhill, No. CV 18-89 SCY, 2019 WL 1331903, at *5 (D.N.M. Mar. 25-2019)).
Here, the court finds that the new evidence is not material, as there is not a reasonable probability that it would have changed the outcome of the decision. Neither record cited to by Plaintiff is inconsistent with Dr. Block's prior medical records or findings, which were properly evaluated and discussed by the ALJ in the RFC. Additionally, neither record supports that Plaintiff was further limited than the ALJ found her to be in the RFC.
The first piece of evidence cited to by Plaintiff is a June 3, 2019 treatment note by Dr. Block. Plaintiff contends that while the “ALJ claims that Dr. Block said that [Plaintiff's] cardiac condition stabilized after stent placement, ” this note evinces that “well after stent placement, Dr. Block concluded that [Plaintiff] had a variety of limitations with shortness of breath and atypical chest pain, which were related to [Plaintiff's] heart condition.” Pl.'s Mem. [DE-24] at 20 (citing Tr. 563). Contrary to Plaintiff's assertion, Plaintiff's symptoms and diagnoses at this visit were not substantially different from those in Dr. Block's previous treatment notes considered by the ALJ. For example, the ALJ notes in the RFC that as of January 2019, following stent placement, Plaintiff “complained to Dr. Block of heart racing, right-sided chest pain at rest, exertional dyspnea and chest pressure.” Tr. 463. The ALJ also notes that “Dr. Block diagnosed [Plaintiff] with palpitations, chest pain, chronic ischemic heart disease, ventricular premature depolarization and obesity[, ]” again following stent placement. Tr. 463. Both statements undermine Plaintiff's assertion that the ALJ was unaware of, or did not consider that, Plaintiff's symptoms had returned following stent placement. Additionally, while it is noted in the June 3rd treatment note that Plaintiff had “highly symptatic [sic] heart dsiease [sic] with 4 stents and frequent PVC's, ” Dr. Block does not opine that any further limitations were warranted as a result of Plaintiff's heart conditions, as argued by Plaintiff. Tr. 563.
“Dyspnea, also known as shortness of breath, is a patient's perceived difficulty to breathe.” Madhu Badireddy, et al., Dyspnea on Exertion, Nat'l Ctr. for Biotechnology Info., U.S. Nat'l Libr. of Med. (Aug. 21, 2021), https://www.ncbi.nlm.nih.gov/books/NBK499847/.
The second piece of evidence cited to by Plaintiff is a March 1, 2019 treatment note again by Dr. Block. Plaintiff contends that following a stress test, “Dr. Block noted ‘very poor exertional capacity of just 3 minutes due to dyspnea and obesity and leg pains. . . . considered cardiovascularly disabled due to multivessel CAD, symptomatic PVC's, morbid obesity, and severe diabetes.'” Pl.'s Mem. [DE-24] at 20 (citing Tr. 560-61). Plaintiff contends that if considered with the remainder of the evidence, the ALJ may have found Plaintiff more severely limited in light of these statements. Pl.'s Mem [DE-24] at 20-21. Once again, contrary to Plaintiff's assertions, this treatment note is not inconsistent with prior treatment notes of Dr. Block considered by the ALJ. For example, in the RFC, the ALJ cites to D r. Block's prior records noting that Plaintiff suffers from “exertional dyspnea, ” evincing that the ALJ was already aware of Plaintiff's poor exertional capacity. Tr. 463. There is also no reasonable probability that the ALJ would afford the statement that Plaintiff is “cardiovascularly disabled” any substantial amount of weight. The ALJ previously failed to adopt similar statements by Dr. Block concerning Plaintiff's disability status, noting that the ultimate “disability determination is reserved to the Commissioner pursuant to 20 CFR 404.1527(d)(1).” Tr. 466.
Moreover, the objective findings in both additional pieces of evidence are consistent with the findings in Dr. Block's prior records, previously evaluated by the ALJ. For example, in the RFC the ALJ notes that Plaintiff was in “no acute distress” and “had a regular heart rate and rhythm, no murmurs, rubs or gallops, clear lungs, no edema and a normal gait.” Tr. 463. Similarly, in both additional records, Plaintiff was again noted as being “in no acute distress” and having a “regular rate and rhythm, S1, S2 normal, no murmurs, no S3, S4, S1, S2 normal no murmurs, rubs, gallops.” Tr. 560, 563. Of note, the ALJ previously assigned Dr. Block's findings and opinions “little weight, ” because, amongst other reasons, they are “inconsistent with the overall evidence of record and [Plaintiff's] longitudinal medical progress.” Tr. 464-65. Plaintiff provides no evidence that the ALJ would not similarly discredit Dr. Block's newly submitted opinions for the same reasons.
In sum, the ALJ did not fail to cite to allegedly contradictory evidence, as the evidence was never submitted to the ALJ. Furthermore, because the additional evidence submitted to the Appeals Council was not material, the Appeals Council was under no obligation to consider it. Accordingly, the undersigned recommends that this issue does not require remand.
VII. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-23] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-27] be ALLOWED, and the final decision of the Commissioner be UPHELD.
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 March 11, 2022 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his 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. Any response to objections shall be filed by March 21, 2022.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will 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).