United States District Court, W.D. Virginia, Lynchburg Division
REPORT AND RECOMMENDATION
ROBERT S. BALLOU, Magistrate Judge.
Plaintiff, Silas Eric McDaniel ("McDaniel"), filed this action challenging the final decision of the Commissioner of Social Security ("Commissioner") determining that he was not disabled and therefore not eligible for supplemental security income ("SSI") under the Social Security Act ("Act"). 42 U.S.C. §§ 1381-1383f. Specifically, McDaniel alleges that the Administrative Law Judge ("ALJ") failed to develop the record and that his decision is not supported by substantial evidence. I conclude that substantial evidence supports the ALJ's decision as a whole. Accordingly, I RECOMMEND DENYING McDaniel's Motion for Summary Judgment (Dkt. No. 13), and GRANTING the Commissioner's Motion for Summary Judgment. Dkt. No. 15.
STANDARD OF REVIEW
This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that McDaniel failed to demonstrate that he was disabled under the Act. Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
McDaniel protectively filed for SSI on December 8, 2010, claiming that his disability began on January 1, 2008. R. 134-41. The Commissioner denied his application at the initial and reconsideration levels of administrative review. R. 55-61, 62-72. On July 26, 2012, ALJ Brian B. Rippel held a hearing to consider McDaniel's disability claim. R. 27-54. McDaniel was represented by an attorney at the hearing, which included testimony from McDaniel and vocational expert ("VE") Dr. Barry Steven Hensley. R. 27-54.
On August 16, 2012, the ALJ entered his decision analyzing McDaniel's claim under the familiar five-step process and denying McDaniel's claim for benefits. R. 11-26. The ALJ found that McDaniel suffered from the severe impairments of spine disorder (mild degenerative disc disease) and obesity. R. 16. The ALJ found that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 16-17. The ALJ further found that McDaniel retained the RFC to perform light work,  except he is "limited to occasional stooping, crawling and climbing of ladders/ropes/scaffolds, frequent climbing of stairs/ramps and must avoid concentrated exposure to vibrations and hazards." R. 17. The ALJ determined that McDaniel could not return to his past relevant work as a tractor trailer long distance hauler (R. 21), but that McDaniel could work at jobs that exist in significant numbers in the national economy such as truck driver, non-postal mail clerk, production inspector, or cashier. R. 22. Thus, the ALJ concluded that McDaniel was not disabled. R. 23. On September 10, 2013, the Appeals Council denied McDaniel's request for review (R. 1-5), and this appeal followed.
McDaniel argues that the ALJ erred by failing to develop the record for his right arm impairment and that substantial evidence does not support the ALJ's decision.
Duty to Develop the Record
McDaniel claims that the ALJ failed to fully develop the record by rejecting McDaniel's request for a consultative examination, or alternatively a supplemental hearing with a medical expert, for his right arm impairment. Dkt. No. 13, p. 4-5. I find that the ALJ's decision was based on an adequately developed record.
A consultative examination is generally obtained to resolve any conflicts or ambiguities within the record, as well as "to secure needed medical evidence, such as clinical findings, laboratory tests, a diagnosis or prognosis." 20 C.F.R. §§ 404.1519a(b), 416.919a(a). A consultative examination must be ordered when the evidence as a whole, both medical and non-medical, is not sufficient to support a decision on the claim. 20 C.F.R. §§ 404.1519a(b), 416.919a(b). The ALJ has the discretion to determine when a consultative examination is necessary. 20 C.F.R. §§ 404.1519a(a), 416.919a(a). In this case, the ALJ was within his discretion not to order a consultative examination with regard to McDaniel's alleged right arm impairment. At the time of application, McDaniel did not claim a disability as a result of any limitations in his right arm. R. 157 (filing for disability for his conditions of ruptured disc, nerve damage, and back and leg problems). Moreover, the ALJ kept the record open for seven days after his hearing to accept treatment records from UVA Hospital East, which allowed McDaniel to enter records relating to his right arm impairment. R. 30. The additional records submitted following the hearing provided sufficient information about McDaniel's right arm. At the hearing before the ALJ, McDaniel's counsel claimed that UVA Hospital East's treatment records "are going to indicate that he has significant limitation in the use of his right arm, dominant arm." R. 53. With the newly admitted treatment records providing clinical findings about McDaniel's right arm impairment, the ALJ had sufficient information to support a decision and was not required to order a consultative examination.
McDaniel further contends that regardless of the reasonableness of the ALJ's decision not to order a consultative examination, the ALJ failed to rule on McDaniel's request and his claim should be remanded to determine the justification for his denial. As neither party knew whether an ALJ is required to address the request for an examination, the court instructed the parties to submit supplemental briefs addressing whether an ALJ has an obligation to address the request on the record or in his opinion. Dkt. No. 18. McDaniel chose not to submit a brief supporting his position. The Commissioner submitted a supplemental memorandum asserting that "she is unaware of any legal authority that requires an administrative law judge (ALJ) to formally respond to a claimant's counsel's oral request at a hearing for the ALJ to schedule a consultative examination." Dkt. No. 20, p. 1. The Commissioner bolstered her argument by contending that McDaniel needed to demonstrate actual prejudice and explain what a fully developed record could have shown (Dkt. No. 20, p. 2-3); she claimed McDaniel had done neither in his briefing nor at oral argument. Dkt. No. 20, p. 2-3. The Commissioner also suggested McDaniel's lack of new evidence to this court suggested the ALJ's indecision was not prejudicial. Dkt. No. 20, p. 3 (citing Hall v. Secretary of Health, Educ., & Welfare, 602 F.2d 1372, 1378 (9th Cir. 1981).
The court has not found Fourth Circuit law addressing whether an ALJ must rule on a request for a consultative examination. However, the Tenth Circuit has held that an ALJ is not required to rule on such a request. See Harlan v. Astrue, 510 F.Appx. 708, 712 (10th Cir. 2013) ("Without a statute, regulation, or case requiring an ALJ to rule on a request for a consultative examination or to provide reasons for the ALJ's ruling, the appropriate inquiry continues to be whether the ALJ met his responsibility to ensure the record was sufficiently developed to decide the issues presented at the hearing."); see also Lundgren v. Colvin, 512 F.Appx. 875, 878-79 (10th Cir. 2013) (holding that an ALJ does not have to provide a reason for denying a consultative examination). Rather than remanding solely on an ALJ's decision not to explicitly rule on a request for a consultative examination, the Tenth Circuit focuses its fact-intensive inquiry on whether the ALJ's indecision affected his duty to fully develop the record. See Warner v. ...