Opinion
No. 7:18-CV-145-D
07-22-2019
DEEDEE KAY HAYES, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-20, -22] pursuant to Fed. R. Civ. P. 12(c). Claimant DeeDee Kay Hayes ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and 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 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
Claimant protectively filed applications for a period of disability, DIB, and SSI on September 7, 2014, alleging disability beginning October 19, 2013. (R. 18, 203-19). Her application for SSI was denied initially for excess resources, and Claimant did not appeal that decision. (R. 101-08, 113). Her claims for a period of disability and DIB were denied initially and upon reconsideration. (R. 18, 68-100, 109-12, 114-18). A hearing before the Administrative Law Judge ("ALJ") was held on August 29, 2017, at which Claimant, represented by a non-attorney representative, and a vocational expert ("VE") appeared and testified. (R. 18, 36-59). On October 18, 2017, the ALJ issued a decision denying Claimant's request for benefits. (R. 15-35). Claimant then requested a review of the ALJ's decision by the Appeals Council (R. 201-02), and she submitted additional evidence as part of her request (R. 2). The Appeals Council determined that the additional evidence did not relate to the period at issue, and therefore it did not affect the decision. Id. The Appeals Council denied Claimant's request for review on June 8, 2018. (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. § 404.1520 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. § 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)(3).
In this case, Claimant alleges the following errors: (1) the ALJ failed to find that Claimant's impairment meets Listing 12.02, and (2) the ALJ failed to assist Claimant, who was represented by a non-attorney representative at the hearing, in the development of the record. Pl.'s Mem. [DE-21] at 6-13.
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 from October 19, 2013, the alleged onset date, to March 31, 2014, her date last insured. (R. 20). Next, the ALJ determined Claimant had the following severe impairments: post concussive syndrome, history of recurrent colitis, degenerative disc disease, and post-traumatic stress disorder ("PTSD")/adjustment disorder. Id. The ALJ also found that Claimant's fibromyalgia was not a medically determinable impairment. Id. 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. (R. 21-23). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in a mild limitation in understanding, remembering, or applying information; a moderate limitation in interacting with others; a moderate limitation in concentrating, persisting, or maintaining pace; and no limitation in adapting or managing herself. (R. 21-22).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work except that she can never climb ladders, ropes, or scaffolds; have no concentrated exposure to bright lights, loud noises, or extreme heat; have no exposure to unprotected heights and moving mechanical parts; perform and sustain simple, routine, and repetitive tasks, but not at a production rate pace; have no requirement for math computations; and have occasional superficial contact with supervisors, co-workers, and the general public. (R. 23-28). 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 and other evidence. (R. 27).
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. § 404.1567(b).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work as a retail store owner and store manager. (R. 28). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant was capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy through the date last insured. (R. 28-29).
V. DISCUSSION
A. The ALJ did not err in discussing Listing 12.02.
Claimant contends the ALJ improperly evaluated whether her impairment met Listing 12.02 because the ALJ found that her 2014 IQ scores were invalid. Pl.'s Mem. [DE-21] at 6-9. The court disagrees.
In determining whether a listing is met or equaled, an ALJ must consider all evidence in the case record about the claimant's impairments and their effects on the claimant. 20 C.F.R. § 404.1526(c). Where a claimant has a severe impairment and the record contains evidence that symptoms related to the impairment "correspond to some or all of the requirements of a listing," it is incumbent upon the ALJ to identify the listing and to compare the claimant's symptoms to each of the listing's requirements. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). While it may not always be necessary for the ALJ to perform a "step-by-step" analysis of the listing's criteria, the ALJ must evaluate the claimant's symptoms in light of the specified medical criteria and explain his rationale. Williams v. Astrue, No. 5:11-CV-409-D, 2012 WL 4321390 (E.D.N.C. Sept. 20, 2012). An ALJ's failure to compare a claimant's symptoms to the relevant listings or to explain, other than in a summary or conclusory fashion, why the claimant's impairments do not meet or equal a listing "makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013); see also Cook, 783 F.2d at 1173.
In order to meet Listing 12.02, a claimant must show a neurocognitive disorder satisfied by:
A. Medical documentation of a significant cognitive decline from a prior level of functioning in one or more of the cognitive areas:
1. Complex attention;
2. Executive function;
3. Learning and memory;
4. Language;
5. Perceptual-motor; or
6. Social cognition.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
1. Understand, remember, or apply information
2. Interact with others
3. Concentrate, persist, or maintain pace
4. Adapt or manage oneself
OR
C. Your mental disorder in this listing category is "serious and persistent;" that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.02. To meet Listing 12.02, a Claimant must satisfy paragraphs A and B, or A and C. Id.1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder; and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life.
In discussing paragraph A of Listing 12.02, "a significant cognitive decline from a prior level of functioning," the ALJ found:
In regard to Listing 12.02 and a decline in mental functioning, I find that the claimant's 2014 WAIS-IQ scores of 66, 67, and 70 are invalid and inconsistent with her more reliable MOCA Montreal Cognitive Assessment score of 21/30, provided by her treating doctor, Dr. Chandler. In addition, I find that her scores are inconsistent with Dr. Chandlers' examinations that revealed that her conversational cognition was intact, that she had 3/3 immediate recall, and that she appeared cooperative and alert (Exhibits 6F; 9F; 10F). Finally, her scores are inconsistent with her reports of being independent in performing her activities of daily living, cooking simple meals, caring for her son with ADHD, using the Internet, and performing simple chores. Further, an MRI of her brain revealed no focal encephalomalacia, hydrocephalus, and no evidence of white matter disease, masses, or suggestion of acute or sub-acute stroke or other impairment of the brain (Exhibit 14F).(R. 21). Claimant contends that the ALJ's discussion of paragraph A was inadequate because the ALJ erroneously discounted the 2014 IQ scores. Pl.'s Mem. [DE-21] at 8.
"An ALJ has the discretion to assess the validity of an IQ test result and is not required to accept it even if it is the only such result in the record." Hancock v. Astrue, 667 F.3d 470, 474 (4th Cir. 2012) (finding no error when the ALJ rejected IQ scores because the examiner did not comment on the scores' validity and the scores were inconsistent "with both the claimant's actual functioning and with the notes of treating psychiatrists"); see also Simmons v. Berryhill, No. 5:17-CV-4-D, 2018 WL 577243, at *6 (E.D.N.C. Jan. 10, 2018) (finding no error when the ALJ discounted scores because the claimant could obtain his driver's license, the claimant was independent in activities of daily living, the claimant was able to work for several years, and several doctors commented that invalid testing was possible), adopted by 2018 WL 576845 (E.D.N.C. Jan. 26, 2018). In particular, "an ALJ may discount an IQ score where it is inconsistent with other evidence of the claimant's functional abilities." Moore v. Colvin, No. 4:13-CV-254-FL, 2015 WL 789272, at *7 (E.D.N.C. Feb. 24, 2015).
The ALJ offered four reasons to discount the IQ scores. First, she found that they were inconsistent with Claimant's MoCA Montreal Cognitive Assessment score of 21/30. (R. 21). However, the ALJ did not explain how the scores were inconsistent. On the December 2014 IQ test, Claimant had a full scale score of 67, which was in the "extremely low" range. (R. 762). On the May 2014 MoCA test, Claimant scored 21/30. (R. 638). A score of 21 indicates a mild cognitive impairment, and people with Alzheimer's Disease score between 11 and 21. MoCA Clinic Data, MoCA Montreal Cognitive Assessment, https://www.mocatest.org/moca-clinic-data. Additionally, the normal control group has an average score of 27.4. Id. The ALJ did not explain how an IQ score in the "extremely low" range is inconsistent with a MoCA score indicating mild cognitive impairment or possible Alzheimer's Disease, and more than six points lower than the average score of the normal control group. It is not evident that an IQ score of 67 is inconsistent with a MoCA score of 21, so without further explanation, the court cannot trace the ALJ's reasoning with respect to her first reason to discount the 2014 IQ scores.
Second, the ALJ found the IQ scores invalid because they were inconsistent with Dr. Chandler's examinations in which he noted that Claimant's "conversational cognition was intact, that she had 3/3 immediate recall, and that she appeared cooperative and alert." (R. 21). At a September 2014 exam, Dr. Chandler wrote, "Cognition is generally good and patient is conversant." (R. 713). In December 2014—the same month as the IQ tests—Claimant had "3/3 immediate recall and 1/3 remote recall." (R. 863). Claimant reported that her memory issues had worsened over the past couple of months, and Dr. Chandler decreased her medication, which he believed would help, and recommended psychotherapy and mindfulness meditation. Id. He concluded, "hopefully she will have an improvement in memory after decreasing her Topamax," implying that her memory problems were due, at least in part, to her medications and not to a low IQ score. (R. 863). In February 2015, Dr. Chandler discontinued Topamax and adjusted Claimant's Ritalin dosage because her mother reported that she definitely noticed a difference in Claimant's cognition when she was on and off Ritalin. (R. 902). The court can trace the ALJ's reasoning with respect to her second stated reason for discounting the IQ scores—Dr. Chandler's examination notes indicate that Claimant's memory and cognition issues could be improved with medication, and he did not discuss her IQ.
Third, the ALJ discounted the IQ scores because they were inconsistent with Claimant's reported daily activities, such as cooking simple meals, caring for her son with ADHD, using the Internet, and performing simple chores. (R. 21). The extent of a claimant's activities of daily living is a logical reason to discount the IQ scores. See Simmons, 2018 WL 577243, at *6; Moore, 2015 WL 789272, at *7.
Fourth, the ALJ found that the scores were invalid because an MRI in 2016 showed mild generalized atrophy but no focal encephalomalacia, no hydrocephalus, no evidence of white matter disease or mass, and no suggestion of hemorrhage. (R. 21, 1149). However, the record does not explain how the results of the MRI might discredit the 2014 IQ scores. (R. 1149). The ALJ assumed without explanation that because Claimant has no loss of brain tissue, buildup of fluid, white matter disease, mass, or hemorrhage in her brain, the IQ scores were invalid. In making that assumption, the ALJ was impermissibly "playing doctor." See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017); Holley v. Berryhill, No. 2:17-CV-27-BO, 2018 WL 4266363, at *3 (E.D.N.C. Sept. 6, 2018); Tant v. Berryhill, No. 5:17-CV-274-D, 2018 WL 4039721, at *7 (E.D.N.C. Aug. 6, 2018) (finding error where "[t]he ALJ fails to provide an explanation of his finding that might otherwise dispel the appearance of his impermissibly playing doctor"), adopted by 2018 WL 4035950 (E.D.N.C. Aug. 23, 2018). Accordingly, the ALJ's fourth stated reason for discounting the IQ scores is insufficient.
In summary, the court can trace the ALJ's reasoning with respect to two of her four stated reasons for finding the IQ scores invalid—the scores were inconsistent with Dr. Chandler's notes and Claimant's reported activities of daily living. The other two reasons—that the scores are inconsistent with Claimant's MoCA score and her 2016 MRI—lack sufficient explanation, and the court is unable to trace the ALJ's reasoning. However, on the whole, the ALJ's decision to invalidate the IQ scores is supported by substantial evidence. See Laws, 368 F.2d at 642 (holding that substantial evidence is "more than a mere scintilla . . . and somewhat less than a preponderance."); Hancock, 667 F.3d at 474 (holding that an ALJ has the discretion to determine the validity of IQ scores).
Additionally, even if the ALJ erred in discussing the IQ scores, the error was harmless. Listing 12.02 requires the Claimant to meet the requirements of paragraph A as well as either paragraph B or C. Paragraph B requires a claimant to have an "extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; [and] adapt or manage oneself." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.02. The ALJ found that Claimant's mental impairments have resulted in a mild limitation in understanding, remembering, or applying information; a moderate limitation in interacting with others; a moderate limitation in concentrating, persisting, or maintaining pace; and no limitation in adapting or managing herself. (R. 21-22). The ALJ thereby found that Claimant does not have an extreme limitation of one or marked limitation of two of the areas of mental functioning, and Claimant makes no argument to the contrary. Because Claimant did not raise error with the ALJ's assessment of her four areas of mental functioning, Claimant has not satisfied her burden with respect to paragraph B of Listing 12.02. See Rollinson v. Astrue, No. 7:09-CV-137-FL, 2010 WL 1737690, at *7 (E.D.N.C. Apr. 9, 2010) (holding that claimant did not meet Listing 12.02 because "[e]ven assuming Claimant satisfies the first element of Listing 12.02, he has not satisfied the second element," for he did not have marked limitations in at least two of the four functional areas), adopted by 2010 WL 1737644 (E.D.N.C. Apr. 29, 2010).
Likewise, Claimant has made no argument regarding paragraph C. Paragraph C requires a claimant to show that the mental disorder is "serious and persistent," meaning that the claimant has "a medically documented history of the existence of the disorder over a period of at least 2 years." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.02. The ALJ found that Claimant did not satisfy paragraph C, (R. 22), and Claimant makes no argument to the contrary.
In conclusion, Listing 12.02 requires a claimant to satisfy either paragraph B or C, and Claimant has not challenged the ALJ's finding that she does not satisfy paragraph B or C. Accordingly, even if the ALJ erred in her discussion of paragraph A, she did not err in determining that Claimant does not satisfy Listing 12.02. See Smith v. Soc. Sec. Admin., No. 18-7226, 2019 WL 2373338, at *4 (E.D. La. Apr. 16, 2019) (upholding the ALJ's decision when the claimant's arguments centered around her IQ score and she made "no attempt to demonstrate to this Court that any of the [other] criteria of Listing 12.02 were met"), adopted by 2019 WL 2373336 (E.D. La. May 6, 2019); Stief v. Comm'r of Soc. Sec., No. 16-11923, 2017 WL 4973225, at *11 (E.D. Mich. May 23, 2017) (finding no error when the ALJ did not discuss the paragraph A criteria because the ALJ found that the claimant did not meet the paragraph B or C criteria), adopted by 2017 WL 3976617 (E.D. Mich. Sept. 11, 2017).
B. The ALJ sufficiently developed the record.
Claimant contends the ALJ did not fully develop the record consistent with her heightened duty to assist an unrepresented claimant. Pl.'s Mem. [DE-21] at 9-13. Specifically, Claimant contends that she was prejudiced by the ALJ's failure to inquire into the difference between the IQ test and the MoCA test and the differences in Claimant's condition before and after the date last insured. Id. at 12-13. The court disagrees.
1. It is unclear whether Claimant was unrepresented.
At the hearing, the ALJ questioned Claimant about a 1696 form in which she identified a representative. (R. 38). Claimant stated that she had submitted the form and identified Stephen Andrew Hoyle as her representative. (R. 39). Mr. Hoyle was present at the hearing and stated that he had "absolutely not" done disability work before. Id. It was later revealed that Mr. Hoyle is Claimant's fiancé, and he operates an Italian ice business. (R. 43, 51). The ALJ admonished Mr. Hoyle:
I want to be very clear before we proceed with you as the representative. You've
taken on the responsibility of being Ms. Hayes' [sic] representative in this case. It's not just a matter of I'm helping her with her paperwork, it's a matter of you taking on the responsibility to present her case to me. You're held to the same standard as every other representative that walks in the door, signs a 1696, and sits in that chair. Do you understand?(R. 39). Mr. Hoyle responded, "yes, ma'am." Id. Mr. Hoyle stated that he reviewed a large portion of the file, and he questioned Claimant about her memory, PTSD, and traumatic brain injury. (R. 41, 52-53). He had no questions for the VE. (R. 56-57). At the conclusion of the hearing, Mr. Hoyle informed the ALJ that additional medical records should have been faxed or emailed within the last two or three weeks, and the ALJ stated that she would look to see if she received the additional records. (R. 57-58).
Despite Mr. Hoyle's presence at and participation in the hearing, the ALJ wrote in her decision that Claimant was unrepresented, stating, "the claimant chose to appear and testify without the assistance of an attorney or other representative," and "I also note that the claimant chose to represent herself in the hearing, and was able to appear and testify without assistance." (R. 18, 28). Accordingly, it is unclear whether Claimant was represented at the hearing. Nonetheless, even assuming that Claimant was not represented and the ALJ had a heightened duty to assist her in developing the record, the ALJ did not err.
2. Even assuming Claimant was unrepresented, she was not prejudiced by the ALJ's failure to inquire into the IQ test and MoCA test.
Claimant contends that remand is appropriate because the ALJ failed to inquire into the difference between the IQ test and the MoCA test. Pl.'s Mem. [DE-21] at 12. The court disagrees.
If a "claimant is unrepresented by counsel at a hearing before an ALJ, the claimant is entitled to the sympathetic assistance of the ALJ to develop the record, to assume a more active role and to adhere to heightened duty of care and responsibility." Smith v. Barnhart, 395 F. Supp. 2d 298, 301 (E.D.N.C. 2005) (internal quotation marks omitted) (quoting Crider v. Harris, 624 F.2d 15, 16 (4th Cir. 1980)). Remand is appropriate "[w]here the ALJ fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant." Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980); see also Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980) (requiring "clear prejudice or unfairness to the [unrepresented] claimant").
As noted above, the ALJ found the IQ test inconsistent with the MoCA test, but the court was unable to follow the ALJ's reasoning. The two tests were distinct, and Claimant had low scores on both tests. More explanation was needed from the ALJ as to how the tests were inconsistent.
However, also as discussed above, if the ALJ erred in her treatment of the IQ test and MoCA test, it was not prejudicial error. The ALJ's comparison of the two tests was in her discussion of paragraph A of Listing 12.02. (R. 21). Claimant also frames her argument in the context of Listing 12.02, writing that the ALJ's failure "prejudiced the outcome in that it resulted in the failure to properly consider Listing 12.02." Pl.'s Mem. [DE-21] at 13. To meet Listing 12.02, Claimant must show that her impairment satisfies paragraph A and either paragraph B or C. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.02. The ALJ found that Claimant's impairment did not satisfy paragraphs B or C, and Claimant makes no argument to the contrary. (R. 22). Accordingly, even if the ALJ failed to develop the record with respect to paragraph A and inquire into the difference between the IQ test and the MoCA test, the failure was not prejudicial, for Claimant's impairment would still fail to meet Listing 12.02. See Edwards v. Comm'r of Soc. Sec., No. 7:17-CV-52-RN, 2018 WL 1413974, at *6 (E.D.N.C. Mar. 21, 2018) ("an ALJ's failure to adequately develop the record warrants remand only where the failure results in prejudice or unfairness to the claimant.").
3. Even assuming Claimant was unrepresented, the ALJ sufficiently developed the record regarding Claimant's date last insured.
Claimant also contends that the ALJ failed to develop the record with regard to Claimant's date last insured. Pl.'s Mem. [DE-21] at 12-13. Claimant contends that the failure was prejudicial because "there was no way to determine differences in Ms. Hayes' [sic] condition before and after the date last insured." Id. at 12.
The ALJ informed Claimant of her date last insured, March 31, 2014, at the hearing. (R. 42). The ALJ considered evidence from before Claimant's date last insured, such as her hospitalization in October 2013, her ATV accident in February 2014 and resulting hospitalization and treatment, and her abdominal pain and hospitalization in March 2014. (R. 23-24). The ALJ also considered evidence from the time period surrounding Claimant's date last insured, such as her 2014 appointments with Dr. Chandler, her 2014 treatment for colitis, and her 2014 treatment for headaches. (R. 21-22, 25). Finally, the ALJ considered evidence from after Claimant's date last insured, such as her consultative examination with Dr. Ritterspach, her further treatment from Dr. Chandler in 2015, her grief counseling and treatment for PTSD and traumatic brain injury in 2016 and 2017, her physical therapy in 2016, and her X-rays and MRI in 2016 and 2017. (R. 25-27).
"Although an unrepresented claimant is entitled to the sympathetic assistance of the ALJ to develop the record, an ALJ 'is not required to function as the claimant's substitute counsel, but only to develop a reasonably complete record.'" Little v. Colvin, No. 4:13-CV-1-BO, 2013 WL 6827751, at *2 (E.D.N.C. Dec. 23, 2013) (quoting Bell v. Chater, 57 F.3d 1065 (4th Cir.1995)) (other citations omitted). Here, the ALJ adequately developed the record with respect to Claimant's date last insured and the differences in Claimant's condition before and after that date. In the decision, the ALJ discussed the medical and other evidence from before and after Claimant's date last insured. Additionally, at the hearing, the ALJ questioned Claimant about her daily activities, educational and vocational background, symptoms, physicians, and medications and side effects. (R. 43-52). Claimant discussed her dizziness, colitis, memory issues, brain injury, and chronic pain. Id. At the hearing, the ALJ fulfilled her duty to inquire into relevant matters, and she extensively discussed the evidence in the decision. See Craig v. Chater, 76 F.3d 585, 591 (4th Cir. 1996) (holding that an ALJ fulfilled his duty to assist an unrepresented claimant when he "questioned [her] about all relevant matters" and "reviewed all of her medical records in painstaking detail"); Kaston v. Colvin, No. 5:15-CV-539-FL, 2017 WL 327484, at *11 (E.D.N.C. Jan. 3, 2017) (finding that the ALJ fulfilled his duty to assist an unrepresented claimant when the ALJ extensively questioned the claimant "about his vocational and medical backgrounds, symptoms, and treatment" and asked whether the claimant had any additional information to share), adopted by 2017 WL 325240 (E.D.N.C. Jan. 23, 2017). Cf. Walker v. Harris, 642 F.2d 712, 714 (4th Cir. 1981) (finding error when the claimant had "only four years of formal education" and was unrepresented at the hearing; "[t]he transcript reflects a barely-coherent, rambling monologue" by the claimant about cats, chickens, and other things; and the ALJ "made no effort to focus her testimony on relevant matters."). Moreover, Claimant has not indicated that there is additional evidence regarding her date last insured that would have changed the outcome of the decision, had the ALJ obtained it. See Teachey v. Colvin, No. 4:14-CV-178-BO, 2016 WL 958201, at *4 (E.D.N.C. Mar. 8, 2016), aff'd, 671 F. App'x 150 (4th Cir. 2016) ("plaintiff has not explained what the missing evidence would have shown and therefore has failed to demonstrate prejudice from its omission."). Accordingly, the ALJ did not err in her development of the record.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-20] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-22] 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 August 5, 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 by 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 22nd day of July, 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge