Opinion
No. 5:18-CV-293-FL
08-06-2019
FLESUIA W. THOMAS, Plaintiff/Claimant, v. SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-21, -23] pursuant to Fed. R. Civ. P. 12(c). Claimant Flesuia Thomas ("Claimant"), proceeding pro se, 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 Supplemental Security Income ("SSI") payments. The pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's motion be denied, Defendant's motion be allowed, and the final decision of the Commissioner be affirmed.
The Commissioner denominated the motion as one for summary judgment despite the court's order that the action proceed by motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). [DE-19]. The Commissioner's motion relies solely on the administrative record, raises no matters outside the pleadings, and will be treated as one for judgment on the pleadings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI benefits on October 9, 2014, alleging disability beginning June 10, 2002. (R. 253-58). The claim was denied initially and upon reconsideration. (R. 148-80). A hearing before an Administrative Law Judge ("ALJ") was held on February 9, 2017, at which Claimant, represented by a non-attorney representative, and a vocational expert ("VE") appeared and testified. (R. 118-47). On April 20, 2017, the ALJ issued a decision denying Claimant's request for benefits. (R. 8-30). On April 24, 2018, the Appeals Council denied Claimant's request for review. (R. 1-7). Claimant 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).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
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 [in severity] 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 . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 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. § 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): understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).
In this case, Claimant contends she needed an "SSA Medical Doctor" to diagnose her failing condition and that a document erroneously indicated she declined to be seen by SSA medical staff. Compl. [DE-5]; Pl.'s Mot. [DE-21].
Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since the application date. (R. 13). Next, the ALJ determined Claimant had the following severe impairments: degenerative disc disease, degenerative joint disease, valvular heart disease, chronic renal failure, hypertension, limited visual acuity, major depressive disorder, borderline intellectual functioning, a specific learning disorder in reading, and generalized anxiety disorder. Id. At step three, the ALJ concluded Claimant'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, Appendix 1. (R. 13-16). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 14).
Prior to proceeding to step four, the ALJ assessed Claimant's residual functional capacity ("RFC"), finding that Claimant had the ability to perform light work with the following restrictions:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 416.967(b).
she can never climb ladders, ropes or scaffolds; she can occasionally climb ramps/stairs and balance; she can frequently stoop and crouch. She can perform work that requires occasional far acuity; she must avoid concentrated exposure to pulmonary irritants such as fumes, odors, dusts, gases and poor ventilation and to hazards such as dangerous machinery and unprotected heights. She can understand and remember very short and simple instructions; she can sustain the attention and concentration necessary to carry out those instructions, consistent with a reasoning level of 1 or 2 in the Dictionary of Occupational Titles. She can have occasional interaction with the general public, coworkers and supervisors; and she can be able to adapt to routine changes in the work environment.(R. 16-23). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of her symptoms were "not entirely consistent with the medical evidence and other evidence in the record . . . ." (R. 20). At step four, the ALJ concluded Claimant was unable to perform any past relevant work. (R. 23). At step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Claimant can perform. (R. 23-24).
V. DISCUSSION
A. The Need for an SSA Medical Doctor
Claimant contends she needed an SSA medical doctor to diagnose her failing condition and that a document erroneously indicates she declined to be seen by SSA medical staff. Compl. [DE-5]; Pl.'s Mot. [DE-21]. The Commissioner contends the ALJ's decision is supported by substantial evidence. Def.'s Mem. [DE-24] at 3-28.
The ALJ may order a consultative examination to resolve an inconsistency in the evidence or when the evidence is insufficient to make a disability determination. 20 C.F.R. § 416.919a(b). The decision to order a consultative examination is within the discretion of the ALJ. See Bishop v. Barnhart, 78 F. App'x 265, 268 (4th Cir. 2003) (citing 20 C.F.R. § 404.1519a). The record indicates Claimant was referred by NCDDS for both mental and physical consultative examinations, and the ALJ did not abuse her discretion by failing to order an additional examination.
On July 16, 2013, Dr. Akpaka, a licensed psychologist, conducted a mental status examination of Claimant on referral from NCDDS. (R. 367-69). Dr. Akpaka observed that Claimant was accompanied by her social worker, who drove her to the appointment; she had good posture, normal gait, and no unusual physical features; she had constricted affect and depressed mood; she was moderately anxious; and she was tearful but polite and cooperative and responded well to the interview. (R. 367). Dr. Akpaka also noted on examination that Claimant had good contact with reality; was alert and responsive to the assessment; had normal speech, thought process, and orientation; reported her mood as "very sad"; had fair recent and remote memory and judgment; had below average immediate retention and recall, fund of information, ability to perform calculations, abstract thinking, and intelligence; and had good insight. (R. 369). Dr. Akpaka concluded that Claimant had clinically significant mood symptoms suggestive of major depressive disorder but that she was capable of understanding, retaining, and following simple instructions and sustaining enough attention to perform simple age-appropriate tasks and routine, and she was fairly capable of relating to other including coworkers and supervisors. Id. Dr. Akpaka also concluded that Claimant's mental capacity to function in the areas of learning, communication, and socialization was significantly limited by her mood symptoms; Claimant had below average intellectual functioning; and Claimant did not appear capable of managing her benefits due to her lack of basic addition and subtraction skills. Id.
On July 18, 2013, Dr. Clark conducted a physical examination of Claimant on referral from NCDDS. (R. 371-74). Dr. Clark noted Claimant's diagnoses of chronic kidney disease stage III, hypertension, heart disease with some valve problems, hyperparathyroidism, and vitamin D deficiency and explained he only had one clinic record and that Claimant was not the best historian. (R. 371). Claimant reported experiencing headache; dizziness; double vision; blurred vision; frequent urination; chest pain; irregular heartbeat; shortness of breath; abdominal cramps; diarrhea; swelling of her feet; cramps in her legs; pain in her legs, knees, ankles, shoulders, and hands; pain in her neck, the right side in particular; and pain in her right hand. (R. 372). Claimant also reported performing limited daily activities, including doing minimal laundry, attending church watching television, and taking walks (limited to walking from her door to the mailbox and back). Id. Claimant did not cook, clean bathrooms, mop, or sweep; did only light shopping and short-distance driving; and did not work or visit friends. Id. Claimant could stand for fifteen minutes, sit without much difficulty, lie down, and dress herself but could not squat, walk more than a half block, carry a bag of groceries, read, or write. Id.
On examination Claimant was somewhat slow in thinking and reacting, her cervical spine lacked about 30 degrees of rotation to the right and left, she experienced pain when she rotated to the right side of the neck, her reflexes were 1+ in the upper extremities, her shoulder range of motion was somewhat limited, she experienced some tenderness to palpation in the right trapezius, she had a very loud systolic heart murmur, and her lower extremity exam was normal but her tandem gait was very slow and somewhat labored. (R. 373-74). Dr. Clark assessed Claimant with hypertension; anemia of chronic disease from her kidney insufficiency (although he noted he did not know what her last hemoglobin was), renal insufficiency (although he noted he did not know the status), and suspected aortic stenosis (although he noted she was due to get an echocardiogram later in the month that would help evaluate the severity of her cardiac disease). (R. 374).
Dr. Clark performed a second consultative examination of Claimant on referral from NCDDS on December 22, 2014. (R. 433-36). Dr. Clark noted that Claimant stated her problems as essentially identical to what they were in July 2013—hypertension; renal insufficiency; cardiac problems; shortness of breath, sweats, and chills; anxiety, depression, and nervousness; muscle spasms in her neck bilaterally; and intermittent abscesses to her axilla and buttock. (R. 433-34). Claimant was positive for headache, dizziness, sore throat, frequent cold, occasional chest pain, irregular heartbeat, shortness of breath, liver problems, swelling of her feet, and pain in her legs and knees. (R. 434). Claimant reported doing some cooking, laundry, bathroom cleaning, mopping, and sweeping, all in short increments, but her daughter did many of the chores. Id. Claimant also reported she could drive (not far), shop, attend church, watch television, and walk (not far) but did not work or visit friends. Id. Claimant could stand for five minutes, sit for long periods, lie down, dress herself, walk half a block or half a mile (she reported both), carry a bag of groceries, and read but could not fully squat or write. Id.
On physical examination Claimant's blood pressure was elevated to 200/100; she had reduced lateral rotation of the cervical spine, 4/5 motor strength in the left upper extremity and 5/5 in the left, full station and range of motion in the upper extremities, a 3/6 systolic ejection murmur in the pulmonic area, and 4..5/5 muscle strength in the left lower extremity and 5/5 in the right; she had normal lumbar range of motion and normal tandem gait; she could partially bend at the waist and lumbar spine; her gait demonstrated a slight limp to the left side; and her affect was normal. (R. 435). Dr. Clark's assessment was as follows:
This is a 50-year-old with history of hypertension, obviously need a better control with a blood pressure of 200/100. She has renal insufficiency. She has frequent
panic attacks, apparently has had a psychiatric admission in the past. She has pain to the lumbar spine[,] rather constant nausea, muscle spasms, tobacco abuse, question of congestive heart failure. As a cardiac exam, but I failed to mention shows regular rhythm, but about 3/6 systolic ejection murmur at the pulmonic area in the left lower sternal border [sic]. I suspect she has significant pulmonary valve and possibly mitral valve pathology. She also has radiated murmur or carotid bruit on the left side. She can only do very short increments of work. She did not get dyspneic in the course of our valuation.(R. 436).
Dr. Akpaka performed a second consultative examination of Claimant on January 26, 2015 on referral from NCDDS. (R. 441-43). On this visit, Claimant was unaccompanied and drove herself to the appointment. (R. 441). Dr. Akpaka observed Claimant had good posture, normal gait, no unusual physical features, constricted affect, and moderately depressed mood but was polite and cooperative, and she responded well to the interview. Id. Claimant reported minimal hobbies or interests and described her current daily activities as resting, caring for her flowers and plants, watching television, and talking to her family. (R. 442). She indicated her medications made her dizzy and sleepy but that she adequately performed self-care activities and a few household chores, such as doing laundry and tidying her home with frequent breaks. Id. On examination, Claimant was alert and responsive with normal speech, thought process, content, and orientation; below average immediate retention and recall, fund of knowledge, ability to calculate, abstract thinking, judgment, and intelligence; fair recent and remote memory; and good insight. (R. 442-43). Dr. Akpaka concluded that Claimant had clinically significant depressive symptoms suggestive of recurrent major depressive disorder; she was capable of understanding and following simple instructions, performing simple, repetitive tasks and routine, and relating to others; her depression may cause her to withdraw from social interactions; she reported having concentration problems and may have trouble performing tasks that require sustained concentration and persistence; her mood symptoms may decrease her frustration tolerance and limit her ability to tolerate the stress associated with day-to-day regular work activity; and she would likely need external supervision to manage any benefits. (R. 443).
On March 23, 2015, on referral from NCDDS, Claimant underwent a third consultative psychological evaluation, which was performed by Ms. DeLarosa, a licensed psychological associate, and Dr. Burgess, a licensed psychologist. (R. 445-49). The purpose of the evaluation was to assess Claimant's complaints of depression, anxiety, and learning difficulties. (R. 445). The evaluators made the following observations during the interview: Claimant was alert and responsive, oriented to all spheres of concern, and a fair historian; her mood was "sluggish," she appeared to be tired during the evaluation, and there was evidence of some mild psychomotor retardation; her eye contact was fairly good; she was generally pleasant and cooperative; her speech was goal-directed, coherent, and spontaneous; she spoke at a normal volume, though the rate of her speech was somewhat slow; her thought processes were goal-directed; there was no evidence of preoccupations, obsessions, delusions, or ideas of reference; she denied suicidal ideation, homicidal ideation, and paranoia; she endorsed occasional auditory hallucinations but did not appear to be responding to internal stimuli during the evaluation; she was able to recall what she ate for breakfast on the day of the evaluation and also what she did the day prior; she was able to repeat 3/3 words immediately after presentation but was only able to recall one of those words after a five-minute delay and was able to recall another word with cues; when asked to name three large cities in the United States, she stated "New York, Ohio, and California;" she was unable to state the capital of North Carolina; she was able to name the current President and the two prior Presidents; her math skills were generally poor; she spelled the word "world" as "worn" and would not attempt to spell it backwards; her abstract thinking was generally concrete, and she was unable to interpret common proverbs; she appeared to have fairly good insight into her mental health problems and acknowledged that she would benefit from treatment; and her judgment appeared to be below average. (R. 447-48).
The Wechsler Adult Intelligence Scale - IV Edition was administered, and Claimant's scores were
Verbal Comprehension Index = 70(R. 448). During the test session, she was noted to appear very tired and often needed instructions repeated, as she appeared to have difficulties concentrating and sustaining focus; she made multiple careless errors and worked quite slowly on subtest items; and it was felt that the results were likely an underestimate of her current level of functioning. (R. 448).
Perceptual Reasoning Index= 67
Working Memory Index = 60
Processing Speed Index= 50
Full-Scale IQ= 57
Claimant was diagnosed with major depressive disorder, moderate, with anxious distress. Id. It was noted that Claimant was not currently in any mental health treatment and was not prescribed any psychotropic medications. (R. 449). The evaluators concluded that Claimant was experiencing symptoms of depression that were negatively impacting her daily activities and that with appropriate treatment her symptoms would likely improve along with her ability to function in a work setting. Id. It was also thought that Claimant had below average cognitive functioning but that the results were an underestimate of her current level of functioning and that she was likely functioning within the borderline range of intelligence overall. Id. The evaluators thought that in a work setting Claimant would likely be able to understand, retain, and follow simple instructions and perform simple repetitive tasks but that she may have difficulty keeping up with the pace of her peers and would work best in a limited production setting. Id. It was also thought that she had adequate ability to relate to others, though her symptoms of depression might cause her to withdraw from social interaction, and she appeared to have mild-to-moderate limitation in her ability to tolerate the stress and pressures associated with day-to-day work activity. Id. Finally, they believed Claimant could manage any benefits. Id.
On March 24, 2015, Dr. Clark performed a third consultative physical examination of Claimant, who indicated nothing had changed since the prior examination in December 2014. (R. 451-54). Dr. Clark's examination of Claimant was largely consistent with those prior, and he reviewed a chest x-ray, lumbar spine x-ray, and EKG. (R. 452-58). Dr. Clark assessed Claimant as follows:
Her chest x-ray done here today I believe is normal. To my preliminary interpretation, her lumbosacral spine film shows degenerative changes, multilevel, and her EKG shows changes consistent with left ventricular hypertrophy with repolarization abnormality. No evidence of any obvious acute process. She does have significant ST depressions, but thought to be more due to LVH. She is having no chest pain, no shortness of breath, no symptoms of any sort at this point in time.(R. 454).
50-year-old with hypertension, renal insufficiency, obvious valvular problems with holosystolic murmurs, left upper sternal border, left lower sternal border, aortic area. There is some mention of congestive heart failure. I do not have records to support that. She does get shortness of breath. She does get anxiety attacks. She has had depression in the past. Panic attacks, some sort of a psychiatric admission in her teenage years, muscle spasms to her neck, intermittent abscesses to her axilla and buttock. Despite this, on the questionnaire she states she can walk half of a mile, can sit without any difficulties, can stand for one to two hours. Did not see any dyspnea in the course of this visit. I do not know the status of her renal insufficiency.
The record also contains mental health treatment notes and assessments (R. 353-65, 470- 86), emergency department treatment notes related to lower leg pain from a possible ruptured blood vessel (R. 376-406) and a fall from a possible syncopal/presyncopal episode (R. 487-502); medical clinic treatment notes related to routine complaints, hypertension, and medication management (R. 419-30); pulmonary test results (R. 460-64); a doctor's note regarding Claimant's kidney test and need for blood pressure control (R. 466); medical source statements regarding Claimant's limitations related to her mental impairments and treatment (R. 468-69, 542); and family practice treatment notes related to her hypertension and renal issues (R. 503-40).
Here, there was no need for additional consultative examinations because the record contained no apparent conflicts to be resolved and there was sufficient evidence for the ALJ to make a disability determination. See Carpenter v. Colvin, No. 5:14-CV-858-FL, 2016 WL 1254568, at *9 (E.D.N.C. Feb. 8, 2016) (finding no need for a psychological consultative examination because the record contained sufficient evidence from which to make a disability determination) (citing White v. Colvin, No. 5:13-CV-757-RN, 2015 WL 1438747, at *10 (E.D.N.C. Mar. 27, 2015)), adopted by 2016 WL 1258467 (E.D.N.C. Mar. 30, 2016).
Regarding Claimant's mental impairments, the ALJ determined Claimant's depression, anxiety, borderline intellectual functioning, and learning disorder in reading were severe impairments that moderately limited her ability to understand, remember, and apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage herself. (R. 13-14). The ALJ determined Claimant had the capacity to understand and remember very short and simple instructions, to sustain the attention and concentration necessary to carry out those instructions, and to adapt to routine changes when limited to occasional interaction with the general public, coworkers and supervisors. (R. 16). In doing so, the ALJ discussed Claimant's testimony, her mental health treatment, and the consultative examiners' evaluations and IQ testing. (R. 15-18, 20-21). The ALJ also weighed the consultative examiners' opinions, the medical source statement related to Claimant's mental impairments, and the state agency reviewers' opinions, and explained the weight afforded to those opinions. (R. 21-23).
Claimant has not demonstrated that an additional consultative psychological examination was necessary. There was no apparent inconsistency in the record, and there was sufficient evidence in the record regarding Claimant's mental impairments, including three consultative psychological evaluations, for the ALJ to make a disability determination. See Bishop, 78 F. App'x at 268 (finding no error in ALJ's failure to order a consultative examination where the evidence as a whole was sufficient to support a decision). Accordingly, the ALJ did not err by failing to seek an additional psychological consultative examination.
Regarding Claimant's physical impairments, the ALJ determined Claimant's degenerative disc and joint disease, valvular heart disease, chronic renal failure, hypertension, and limited visual acuity were severe impairments. (R. 13). The ALJ found that, despite these impairments, Claimant could perform light work with postural and non-exertional limitations. (R. 16). In reaching this conclusion, the ALJ discussed the Claimant's testimony, the consultative physical examinations, and the treatment notes from her health care providers. (R. 18-20). The ALJ weighed the consultative examiner's opinions and the state agency reviewers' opinions, and explained the weight afforded to these opinions. (R. 21-22). The ALJ explained that Claimant's degenerative disc and joint disease had not resulted in anatomical structural deformities; had not required aggressive treatment, such as steroids, a TENS unit, physical therapy, or pain management; and the medical evidence did not indicate any physical changes of the type one would expect from a person whose activities are markedly restricted. (R. 21). The ALJ noted that while Claimant's blood pressure was often elevated, treatment notes indicated a pattern of noncompliance with medication. (R. 18). The ALJ noted that Claimant was advised to increase her water intake and avoid NSAIDS for her renal insufficiency, and Claimant was also counseled that controlling her hypertension was important to avoid dialysis. (R. 19, 533). With respect to Claimant's valvular heart disease, the ALJ noted that during the March 2015 consultative examination Claimant denied chest pain, shortness of breath, or symptoms of any sort related to her heart problem at that point in time, and during a December 2016 routine visit with her primary care provider Claimant denied chest pain, shortness of breath, edema, syncope, change in vision, or change in urination. (R. 18-19, 454, 533). Records presented to the Appeals Council, and therefore not considered by the ALJ, indicate Claimant continued to be monitored by cardiology and her primary care physician. (R. 37-117). The Appeals Council determined these records either did not show a reasonable probability that they would change the outcome of the decision or did not relate to the period at issue. (R. 2).
The ALJ noted that, on August 9, 2013, Claimant reported she had been off her medication due to her Medicaid running out. (R 18, 383). However, the emergency room treatment note also indicated her Medicaid had been reinstated and she would restart her medication (R. 383), and other instances of noncompliance do not indicate cost was a factor (R 428, 424, 492, 503). --------
Claimant has not demonstrated that an additional physical examination was necessary. There was no apparent inconsistency in the record, and there was sufficient evidence in the record, including three consultative physical examinations and treatment records from her treatment providers, regarding each of Claimant's physical impairments for the ALJ to make a disability determination. See Bishop, 78 F. App'x at 268. Accordingly, the ALJ did not err by failing to seek an additional consultative physical examination.
Finally, Claimant contends a document erroneously indicated that she declined to be seen by SSA medical staff. Pl.'s Mot. [DE-21]. It is not clear to which record Claimant refers, but the ALJ did not mention it in her decision. Therefore, the alleged error in the record does not appear to have affected the ALJ's decision and is thus harmless. See Garner v. Astrue, 436 F. App'x 224, 226 (4th Cir. 2011) (noting the claimant failed to show he was harmed by the ALJ's error) (citing Shinseki v. Sanders, 556 U.S. 396 (2009) (stating party attacking agency determination bears the burden of showing that an error was harmful)).
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings be denied [DE-21], Defendant's Motion for Judgment on the Pleadings be allowed [DE-23], and the final decision of the Commissioner 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 August 20, 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. Any response to objections shall be filed within 14 days of the filing of the objections.
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).
SUBMITTED, the 6th day of August, 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge