Susan M.N. v. Frank Bisignano, Commissioner of Social Security

• Court: District Court, M.D. North Carolina
• Decided: April 27, 2026
• Docket: 1:25-cv-00375
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA SUSAN M.N.,

Plaintiff,

v. 1:25CV375

FRANK BISIGNANO, Commissioner of Social Security,

Defendant. ORDER AND MEMORANDUM OPINION OF UNITED STATES MAGISTRATE JUDGE

The plaintiff Susan M.N. (“Susan”) period of disability in January of has sought review of a final decision of 2022, alleging a disability onset date the Commissioner of Social Security of June 3, 2021. (Tr. 153-54.) The denying her claim for disability applications were denied initially and insurance benefits and a period of upon reconsideration. (Tr. 92-93, 98- disability.1 The Court has considered 100.) After a hearing, the ALJ the certified administrative record determined on April 3, 2024 that and dispositive briefs from each party. Susan was not disabled under the Act. Because the Administrative Law (Tr. 17-45.) The Appeals Council Judge’s (“ALJ”) decision is legally denied a request for review, making correct, supported by substantial the ALJ’s decision the final decision evidence, and susceptible to judicial for review. (Tr. 1-6.) review, the Court affirms the decision of the ALJ, as set forth below. II. STANDARD OF REVIEW I. PROCEDURAL HISTORY While Section 405(g) of Title 42 of the United States Code “authorizes Susan filed an application for judicial review of the Social Security disability insurance benefits and a Commissioner’s denial of social

1 Transcript citations refer to the in this case pursuant 28 U.S.C. § 636(c). Administrative Transcript of Record filed Docket Entry 15. manually with the Commissioner’s Answer. Docket Entry 5. By Order of Reference, this matter was referred to the Undersigned to conduct all proceedings security benefits,” see Hines v. sequence, whether the Barnhart, 453 F.3d 559, 561 (4th Cir. claimant: (1) worked during the 2006), the scope of that review is alleged period of disability; (2) specific and narrow, see Smith v. had a severe impairment; (3) Schweiker, 795 F.2d 343, 345 (4th had an impairment that met or Cir. 1986). Specifically, review is equaled the requirements of a limited to determining if there is listed impairment; (4) could substantial evidence in the record to return to her [or his] past support the Commissioner’s decision. relevant work; and (5) if not, 42 U.S.C. § 405(g); Hunter v. could perform any other work Sullivan, 993 F.2d 31, 34 (4th Cir. in the national economy. 1992); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In Id. at 472. A finding adverse to the reviewing for substantial evidence, claimant at any of several points in the Court does not re-weigh this five-step sequence forecloses a conflicting evidence, make credibility disability designation and ends the determinations, or substitute its inquiry. Id. at 473. “Through the judgment for that of the fourth step, the burden of production Commissioner. Craig v. Chater, 76 and proof is on the claimant. If the F.3d 585, 589 (4th Cir. 1996). Put claimant reaches step five, the burden simply: the issue before the Court is shifts to the Secretary to produce not whether Susan is disabled but evidence that other jobs exist in the whether the finding that she is not national economy that the claimant disabled is supported by substantial can perform considering his age, evidence and based upon a correct education, and work experience.” application of the relevant law. Id. Hunter, 993 F.2d at 35 (internal citations omitted). III. THE ALJ’S DECISION Here, the ALJ determined at step one The ALJ followed the correct process, that Susan had not engaged in set forth in 20 C.F.R. § 404.1520, to substantial gainful activity since the determine disability. See Albright v. alleged onset date of June 3, 2021. Comm’r of Soc. Sec. Admin., 174 F.3d (Tr. 19.) The ALJ next found the 473, 475 n.2 (4th Cir. 1999). following severe impairments at step two: Lyme disease, cerebral “The Commissioner uses a five-step edema/encephalitis, degenerative process to evaluate disability claims.” disc disease of the cervical spine, and Hancock v. Astrue, 667 F.3d 470, 472 cognitive impairment. (Tr. 19.) At (4th Cir. 2012) (citing 20 C.F.R. §§ step three, the ALJ found that Susan 416.920(a)(4), 404.1520(a)(4)). did not have an impairment or combination of impairments listed in, Under this process, the or medically equal to one listed in, Commissioner asks, in Appendix 1. (Tr. 20.) 2 The ALJ next set forth Susan’s in the national economy that Susan Residual Functional Capacity (“RFC”) could perform. (Tr. 25.) and determined that she could perform a reduced range of light work IV. DISCUSSION with the following exceptions: In her appeal, Susan asserts only that She can lift or carry 25 pounds “[t]he ALJ erred by not scheduling a occasionally and 20 pounds consultative examination.” Docket frequently. She can sit, stand, Entry 8 at 5. The record demonstrates or walk for 6 hours during an 8- otherwise, as set forth below. hour workday. She can “[T]he ALJ has a duty to explore all frequently balance, stoop, relevant facts and inquire into the kneel, crouch, and crawl. She issues necessary for adequate can frequently climb stairs, development of the record, and ramps, ropes, ladders, or cannot rely only on the evidence scaffolds. She can perform submitted by the claimant when that simple, routine, repetitive evidence is inadequate.” Cook v. tasks. She can follow 1- to 3- Heckler, 783 F.2d 1168, 1173 (4th Cir. step instructions. She is limited 1986) (citations omitted). The ALJ to low-stress work discharges the duty to develop the environments. She is limited to record where “the record is adequate performing work at a non- to make a determination regarding a production pace. She can disability claim.” France v. Apfel, 87 frequently interact with F. Supp. 2d 484, 490 (D. Md. 2000); coworkers and supervisors. She accord. Kersey v. Astrue, 614 F. Supp. can occasionally interact with 2d 679, 693-94 (W.D. Va. 2009). To the public. She is limited to demonstrate that the ALJ failed to work environments that develop the record, a claimant must undergo no more than show that “evidentiary gaps” existed occasional changes in routines. that prejudiced his or her rights, She can concentrate on tasks Blankenship v. Astrue, No. 3:11-CV-5, for two-hour intervals. She can 2012 WL 259952, at *13 (S.D.W. Va. follow written instructions for Jan. 27. 2012) (citing Marsh v. the performance of job duties. Harris, 632 F.2d 296, 300 (4th Cir. She can frequently perform 1980)), and that he or she “could and tasks requiring near visual would have adduced evidence that acuity. might have altered the result,’” id. (Tr. 21.) At the fourth step, the ALJ (quoting Carey v. Apfel, 230 F.3d 131, determined that Susan was unable to 142 (5th Cir. 2000)). perform her past relevant work. (Tr. Importantly though, claimants are “in 25.) Last, at step five, the ALJ a better position to provide concluded that there were other jobs 3 information about [their] own decision on [the] claim.” 20 C.F.R. § medical condition[s].” Bowen v. 404.1519a(b). Yuckert, 482 U.S. 137, 146 n.5 (1987). “‘[T]he ALJ is not required to function Some examples of when a as the [plaintiff’s] substitute counsel, consultative examination may be but only to develop a reasonably appropriate include when: complete record.’” Gregory v. Saul, (1) [t]he additional evidence No. 3:19cv84, 2019 WL 5280968, *8 needed is not contained in (E.D. Va. Sept. 3, 2019) (quoting the records of [the Clark v. Shalala, 28 F.3d 828, 830-31 claimant’s] medical sources; (8th Cir. 1994)). Furthermore, the

ALJ also does not have a duty to “‘go (2) [t]he evidence that may to inordinate lengths to develop a have been available from [plaintiff’s] case.’” Gregory, 2019 WL [the claimant’s] treating or 5280968, *8 (quoting Thompson v. other medical sources Califano, 556 F.2d 616, 618 (1st Cir. cannot be obtained for 1977)). reasons beyond [the ALJs may order consultative exams claimant’s] control, such as and have the discretion to decide death or noncooperation of whether one is necessary. 20 C.F.R § a medical source; 416.919a; Cooke v. Berryhill, 767 F. App’x 539, 540 (4th Cir. 2019) (3) [h]ighly technical or (unpublished) (citation omitted); specialized medical Bishop v. Barnhart, 78 F. App’x 265, evidence that [is] need[ed] 268 (4th Cir. 2003) (unpublished). is not available from [the “[T]he decision to order a consultative claimant’s] treating or other examination is committed to the medical sources; or discretion of the ALJ, and where the record as a whole provides sufficient, (4) [t]here is an indication of a unambiguous, and non-conflicting change in [the claimant’s] evidence to support the ALJ’s condition that is likely to decision, a consultative examination affect [the claimant’s] ability is not required.” Zook v. Comm’r of to work, but the current Soc. Sec., No. 2:09cvl09, 2010 WL severity of [the claimant’s] 1039456, at *6 (E.D. Va. Feb. 25, impairment is not 2010) (citation omitted). The ALJ established. may order a consultative examination “to try to resolve an inconsistency in Id. § 404.1519a(b)(1)-(4). the evidence, or when the evidence as Last, when evidence is incomplete, a whole is insufficient to allow [the insufficient, or inconsistent, the ALJ ALJ] to make a determination or has a choice between recontacting a 4 medical source for clarification, The claimant has a normal gait. She requesting additional existing walks at a normal pace. She is able to evidence, asking the claimant to stand on her toes, stand on her heels, undergo a consultative examination, stand on one foot at a time, squat all or asking the claimant or others for the way down to the floor and rise, do more information. 20 C.F.R. § tandem walk and heel-to-shin 404.1520b(b)(2)(i)-(iv). maneuver.”), 562 (8/30/22 normal gait).) Here, the administrative record in this case (which exceeds 600 pages) is Second, the ALJ noted that despite adequate, substantial evidence that alleged vision issues, Susan’s supports the RFC, and the ALJ had no ophthalmologist concluded that with duty to develop the record further. As corrective lenses she did not have any demonstrated in the hundreds of visual limitations. (Tr. 22, 568.) pages of medical records, the evidence Third, the ALJ noted that Susan could showed that Susan underwent still perform common manipulative treatment for a variety of conditions activities despite alleging a cervical over several years. (See generally Tr. impairment that caused frequent 299-628.) The record also contains numbing in her left fingers. (Tr. 22, the medical opinions of two 527, 532, 573, 575, 580, 582.) consultative examiners. (Tr. 572-76, 586-92). The ALJ summarized the Fourth, the ALJ acknowledged that record and found both severe physical Susan’s autoimmune encephalitis and mental impairments. (Tr. 19-25.) impaired her cognition and her ability There was sufficient evidence for the to express herself to some degree and ALJ to determine if Susan was that she demonstrated below average disabled without requiring the ALJ to concentration, but the ALJ also further develop the record by ordering pointed to average functioning on a third consultative evaluation or examination in immediate retention, performing some other act. delayed recall, recent memory, remote memory, and fund of More specifically, first, the ALJ noted information, as well as average that despite Susan’s alleged intellectual functioning. (Tr. 23, 580, impairment in balance, the medical 582, 589-91.) evidence did not show that either her gait or coordination was significantly Fifth, the ALJ considered the prior impaired on a chronic basis. (Tr. 22, administrative findings and opinion 532 (9/2/2021 “Coordination: Intact evidence. For example, the ALJ found FTN, and RAM in bilateral upper persuasive a June 2, 2021 decision he extremities. HTS intact. Normal had previously issued addressing one casual gait. Mild difficulty with of Susan’s older disability claims from tandem gait.”), 574 (10/8/2022 a prior period, which concluded that “COORDINATION/STATION/GAIT: Susan could perform a reduced range 5 of light work. (Tr. 23-24, 49-59.) In Susan could perform a reduced range support, the ALJ pointed out that of medium work with postural both Susan’s prior and her instant limitations. (Tr. 24, 572, 576.) The disability claims were substantially ALJ concluded that the opinion was similar, the status of her autoimmune persuasive because it was supported encephalitis had remained largely the by the findings of the examination, same between claims, and the and because it was consistent with findings of the prior decision were not Susan’s medical history. (Tr. 24.) The stale because it was issued the day ALJ also found mostly persuasive before the alleged onset date of non-examining state agency disability in the present claim. (Tr. 23- physician Dr. Lillian Horne’s 24, 49-59.) administrative medical finding that Susan could perform the full range of Finally, the ALJ thoroughly medium work. (Tr. 24, 69-70.) The considered the opinions of multiple ALJ explained that the administrative medical professionals as follows: medical finding was only mostly persuasive because it did not account Dr. Frank Virgili, M.D.: The ALJ for Susan’s need for postural found mostly persuasive the opinion limitations. (Tr. 24.) of this non-examining state agency physician, who concluded that Susan Dr. Christoper Eckstein, M.D.: Next, could perform a reduced range of the ALJ found this medical opinion medium work with postural, slightly persuasive. (Tr. 24.) Dr. communicative, and environmental Eckstein identified Susan’s cognitive limitations. (Tr. 24, 80-81.) The ALJ and speech issues, as well as her lack explained that it was only mostly of coordination in her left hand, and persuasive because it did not also concluded that Susan would need adequately account for Susan’s left- two or more unscheduled breaks a day hand limitations. (Tr. 24, 80-81.) due to fatigue and cognitive problems. Nevertheless, the opinion was (Tr. 24, 627-28.) However, the ALJ consistent with other medical pointed out that the supporting evidence showing Susan’s muscle evidence for the unscheduled breaks strength remained intact, as well was unclear in that Dr. Eckstein’s evidence of her activities of daily treatment notes did not document living, which included caring for pets that Susan complained of chronic (a dog, a cat, and chickens), cooking, fatigue, and her fiancé, who saw and doing craft projects. (Tr. 24, 80- Susan on a daily basis, did not 81, 575, 588, 572.) mention fatigue in his third-party function report. (Tr. 24, 627-28, 211- Dr. Agustin Flore: The ALJ also 18.) considered this consultative examiner’s October 2022 physical Dr. April Strobel-Nuss: The ALJ assessment which concluded that found the opinion of this non- 6 examining psychologist persuasive. greater detail above. (Tr. 24.) In light (Tr. 24.) Dr. Strobel-Nuss concluded of this, the ALJ limited Susan to the that Susan could perform simple, performance of light work with the routine tasks; that she could interact numerous additional mental, appropriately with coworkers and postural, communicative, and supervisors; and that her adaptive environmental limitations set forth functioning was sufficient for above in the RFC. (Tr. 21.) performing simple tasks. (Tr. 24, 70- 72.) The ALJ noted that a second non- As demonstrated at length above, the examining psychologist, Dr. Kristin ALJ provided a thorough review of the Wiltrout, Ph.D., reached similar medical record (and other evidence) conclusions. (Tr. 24, 82-84.) The ALJ and analysis of Susan’s impairments. concluded that these assessments He also sufficiently explained his RFC were consistent with a prior mental determination, having considered status examination, with Susan’s evidence that included (but was not fiancé’s assessment of her ability to limited to) Susan’s medical records follow written instructions and adapt, repeatedly showing normal or with her statement that she could relatively normal physical and mental manage her psychological symptoms examinations, testimony, and without medication, and with her extensive activities of daily living. The activities of daily living, including ALJ supported each determination shopping online, managing her with multiple citations to the record finances, and doing crafts. (Tr. 24-25, and an explanation as to how he came 216-17, 589-91, 587, 214, 588.) to his decision. Thus, the ALJ also reasonably exercised his discretion in Michelle Rich: The ALJ also not ordering a third consultative exam considered the opinion of this second and did not err in deciding not to do consultative examiner, a licensed so. psychological associate. (Tr. 25.) Ms. Rich found that while Susan could Finally, Susan has not identified why understand and follow directions and another consultative examination relate to others, she may have might yield a different result in this difficulty with retention and case. She does not actually contest any performing simple, routine, and of the findings made above by the repetitive tasks, and may have ALJ. Instead, she asserts that the difficulty with day-to-day work “ALJ’s own statements at the hearing activity due to easily being establish his concern that the record overwhelmed. (Tr. 25, 591.) However, was inadequate, and that the claimant the ALJ only found Ms. Rich’s opinion most likely would not be able to somewhat persuasive because it was obtain a sufficient medical source inconsistent with the functional statement[.]” Docket Entry 8 at 11. assessments written by Drs. Strobel- As explained below, however, a closer Nuss and Wiltrout, described in 7 examination of the administrative whatever you have to say, but hearing testimony does not bear this I’m not seeing anything that out. It instead shows the following sort of jumps out at me and exchange between the ALJ and says, yeah, that’s the direction Susan’s counsel: that we need to go. Particularly in light of the consultative exam ALJ: [T]he medical records by Dr. Flores. You know, it’s a seem to indicate that the status consultative exam, so it is what has been essentially as it was at it is, but he kind of implies the time of the last decision, somewhere between light and which I made – the day before medium, with 50 pounds her alleged onset date on this occasionally, 25 pounds application was June 2nd of frequently, sitting, standing, 2021, when I signed that and walking all for six out of decision. And the medical eight hours. records seem to indicate that her presentation is the same on … imaging and in visits with the doctor. Is there a chance of So, as I look at this case, I see getting a treating source two potential paths forward. statement, do you think? One is we go fishing in the same creek. Another is that there’s … some treating source statement that shows some limitation that ATTY: The only thing I would would either get her to less than say really has changed since the sedentary based on, I don’t last hearing is just the age know, degeneration of balance category she’s in now. and the ability to stand up or something similar, or maybe ALJ: Yeah. Okay. Well, I mean, some visual degeneration that the last decision put her – and would preclude her from work. frankly, the major impairment I mean, I – it’s not my place as was, and I think continues to a doctor to sort of speculate as be, with the encephalitis and to what’s going on, because I’m the demyelinating disease. So, I not a doctor. But I – that’s why mean, I think I put her at less I’m thinking maybe a treating than the full range of light on source statement. that basis. I don’t know that I see anything that would make And I know doctors, me think that she would be particularly doctors at Duke, reduced to sedentary on the don’t like giving treating source basis of physical functioning. statements. They like to just Obviously, I’m open to have their word taken for it that 8 their patients are unable to that’ll give me a better picture work. But if we could maybe of how your condition has send the standard form along changed since the last decision and say, hey, you know, the I made on your last application judge really needs this two years ago. So, I think that evaluated in this context, of, we’re going to stop taking you know, how much sitting, testimony at this point, and standing, and walking, how your lawyer can talk to you much concentration difficulties more about what the next steps she’ll have, how much balance are going to be in terms of difficulty she’ll have, something getting that. Okay? like that might give me something I could hang my hat CLMT: Okay. Thank you. on with a little more certainty. (Tr. 41-45.) ATTY: Yeah. I could certainly As shown above, the ALJ did not send something out, Your “identify inadequacies in the record” Honor. as Susan is alleging. Docket Entry 8 at ALJ: Okay. Do we want to 5. In fact, the evidence—which continue to take testimony then included an October 2022 physical today, or do we want to come consultative exam from Dr. Flores back after we’ve got something? (Tr. 572-76) and an Oct0ber 2022 Assuming we get something, psychological consultative exam from and if not, I mean, maybe we Ms. Rich, a licensed psychological can talk about what the next associate (Tr. 586-92)—was sufficient step might be if we can’t get a for the ALJ to make a finding that treating source statement. You Susan was not disabled. know, I don’t know that The ALJ essentially explained that the another consultative exam is evidence presented supported this going to add much we don’t finding. (Tr. 41-43.) For example, the already have. ALJ informed Susan and her counsel … that the evidence presented did not appear to support a greater limitation Well, let’s put a pin in it for than the previous ALJ decision of now, and if we need to June 2, 2021, where she was not reconvene after I’ve got some found to be disabled. (Tr. 41.) Susan’s additional records, we can do counsel in fact actually noted that that. Ms. Nelson, I appreciate “[t]he only thing [he] would say really your testimony today. I think has changed since the last hearing what I really need in this case is [was] the age category she’s in now.” an assessment from a doctor (Tr. 42.) Consequently, the ALJ 9 encouraged Susan’s counsel to obtain preliminary assessment. Additional a medical source statement, not medical opinion evidence was then because the evidence was insufficient, submitted. The ALJ then weighed it but to provide Susan with a further along with all the other evidence opportunity to demonstrate her (which already included two disability. consultative examination opinions), found it slightly persuasive, and Moreover, the ALJ did review concluded that Susan was not additional medical opinion evidence disabled under the Act.3 Susan’s that Susan submitted after the June counsel also had ample opportunity to 2023 hearing, a “Physical Capacities present any additional evidence, Evaluation” provided by Dr. Chris request additional time to obtain Eckstein, M.D. in July 0f 2023. (Tr. evidence, or to request the ALJ’s 32, 625-628).2 As explained above, assistance in obtaining evidence. But the ALJ only found this opinion he did not. slightly persuasive because of a lack of supporting evidence regarding the Susan acknowledges that it is “rare” purported need for additional breaks for a court in the Fourth Circuit to find in Dr. Eckstein’s treatment notes and error for failure to order a because a third-party function report consultative examination and a from Susan’s fiancé did not mention “tough row to hoe” for a claimant to fatigue. (Tr. 24.) Susan has not establish such an error. Docket Entry specifically challenged this finding. 8 at 4, 10. This is not one of those rare cases and Susan has not pointed to In short, when considered in context, any such error. the ALJ did not state that the record was inadequate to render a decision. The record does not demonstrate that Instead, the ALJ told Susan and her the ALJ abused his discretion or counsel at the administrative hearing somehow erred by not ordering a that additional medical opinion third consultative examination or evidence might strengthen her taking some other remedial action. disability claim, which otherwise See French v. Berryhill, No. EDCV 17- appeared to be insufficient to support 0566-KS, 2018 WL 1322106, at *4 a finding of disability based upon his (C.D. Cal. Mar. 13, 2018) (“[E]vidence

2 Susan asserts that Dr. Eckstein’s demonstrated any likelihood that a third opinion was “a conclusory, unsupported consultative examination would warrant (per the ALJ) statement from a physician a different outcome in this matter. that did not assist in clarifying the record that the ALJ acknowledged was 3 Because he did not take testimony from insufficient.” Docket Entry 8 at 3. the vocational expert (“VE”) at the However, the record was not insufficient hearing, the ALJ relied upon a set of here, the RFC is supported by substantial vocational interrogatories later taken evidence, and Susan has not from the VE. (Tr. 283-92.) 10 of the conditions that existed at the V. CONCLUSION time of the consultative examination, as well as evidence of the conditions After careful consideration of the that were diagnosed after the evidence of record, the Court finds examination, is insufficient for the that the Commissioner’s decision is Court to conclude that the ALJ’s legally correct, supported by failure to order a second consultative substantial evidence, and susceptible examination was unreasonable. Other to judicial review. Accordingly, IT IS courts have similarly concluded that HEREBY ORDERED that the final an ALJ’s reasoned judgment in this decision of the Commissioner is regard should be _ respected.”) upheld. (collecting circuit and district court cases). Susan’s remaining objections are not persuasive. She contends that the ALJ JdAhna Gibsofl McFadden erred by not ordering a third Umited States Magistrate Judge consultative examination (or taking 5 some other remedial action) and April 27, 2026 erred further by not justifying his Darhan NC failure to do so. Docket Entry 8 at 9. , But here, the record is sufficiently clear here why the ALJ appropriately resolved Susan’s disability application on the record before him, as supplemented after the hearing. The remainder of Susan’s_ objections involve discussions of 20 C.F.R. 8§ 404.1519a(b) and 404.1520b(b). Docket Entry 8 at 9-11. However, those objections are not based upon the medical record and_ other evidence, but instead upon Susan’s mistaken insistence that the ALJ conceded at the administrative hearing that the record here was inadequate, which is not the case. Because the record was adequate to render a decision, 20 C.F.R. §§ 404.1519a(b) and/or 404.1520b(b) do not warrant a different outcome here. None of Susan’s objections have any merit. 11