Redmon v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CASE NO. 1:23-CV-338-MR-DCK

RACHEL REDMON, )

)

Plaintiff, ) MEMORANDUM AND

) RECOMMENDATION

v. )

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

)

THIS MATTER IS BEFORE THE COURT on “Plaintiff’s Social Security Brief”

(Document No. 10) and “Defendant’s Brief” (Document No. 12). This case has been referred to

the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b). After careful consideration of

the written arguments, the administrative record, and applicable authority, the undersigned will

respectfully recommend that the Commissioner’s decision be affirmed.

BACKGROUND

Rachael Redmon (“Plaintiff” of “Redmon”), through counsel, seeks judicial review of an

unfavorable administrative decision on an application for disability benefits. (Document No. 1).

Plaintiff filed applications for a period of disability and disability insurance benefits (“DIB”) on

or about May 17, 2021, under Title II of the Social Security Act, 42 U.S.C. § 405, and for

supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1383, both

alleging an inability to work due to a disabling condition beginning January 28, 2018. (Transcript

of the Record of Proceedings (“Tr.”) 17). Plaintiff later amended the alleged disability onset date

to February 6, 2020. (Tr. 18, 38, 43-44).

The Commissioner of Social Security (the “Commissioner” or “Defendant”) denied

Plaintiff’s application initially on or about December 19, 2021, and again after reconsideration on

or about August 24, 2022. (Tr. 17, 107, 112, 128, 132). In its “Notice of Reconsideration,” the

Social Security Administration (“SSA”) included the following explanation of its decision:

Your condition results in some limitations in your ability to perform

work related activities. We have determined that your condition is

not severe enough to keep you from working. We considered the

medical and other information and work experience in determining

how your condition affects your ability to work. We do not have

sufficient vocational information to determine whether you can

perform any of your past relevant work. However, based on the

evidence in file, we have determined that you can adjust to other

work.

(Tr. 134).

Plaintiff filed a timely written request for a hearing on or about October 18, 2022. (Tr. 17,

135). On March 2, 2023, Plaintiff appeared and testified at a telephone hearing before

Administrative Law Judge William L. Hogan (the “ALJ”). (Tr. 17, 31-59). In addition, Brenda

Dumas, a vocational expert (“VE”), and Holly Jane Fairbairn (“Fairbairn”), Plaintiff’s attorney,

appeared at the hearing. Id.

The ALJ issued an unfavorable decision on April 19, 2023, denying Plaintiff’s claim. (Tr.

17-26). On June 14, 2023, Plaintiff filed a request for review of the ALJ’s decision, which was

denied by the Appeals Council on September 27, 2023. (Tr. 1-2, 7-10, 200-201). The Appeals

Council noted that it had received

additional evidence that you show is new, material, and relates to

the period on or before the date of the hearing decision. You must

also show there is a reasonable probability that the additional

evidence would change the outcome of the decision. You must

show good cause for why you missed informing us about or

submitting it earlier.

(Tr. 2).

The Appeals Council “found no reason under our rules to review the Administrative Law Judge's

decision.” (Tr. 1). The ALJ’s decision became the final decision of the Commissioner when the

Appeals Council denied Plaintiff’s review request. Id.

Plaintiff’s “Complaint” seeking a reversal of the ALJ’s determination was filed in this

Court on November 20, 2023. (Document No. 1). On December 1, 2023, the undersigned was

assigned to this case as the referral Magistrate Judge.

“Plaintiff’s Social Security Brief” (Document No. 10) was filed May 20, 2024; and

“Defendant’s Brief” (Document No. 12) was filed July 8, 2024. Plaintiff declined to file a reply

brief, and the time to do so has lapsed. See Local Rule 7.2 (e).

This matter is ripe for disposition, and therefore, a memorandum and recommendation to

the Honorable Martin Reidinger is now appropriate.

STANDARD OF REVIEW

The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court’s review

of a final decision of the Commissioner to: (1) whether substantial evidence supports the

Commissioner’s decision; and (2) whether the Commissioner applied the correct legal standards.

Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.

1990).

The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the

evidence or to substitute its judgment for that of the Commissioner – so long as that decision is

supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir. 1990); see also, Smith v.

Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.

2012). “Substantial evidence has been defined as ‘more than a scintilla and [it] must do more than

create a suspicion of the existence of a fact to be established. It means such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.’” Smith v. Heckler, 782 F.2d

1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).

Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and

to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599

(4th Cir. 1979) (“This court does not find facts or try the case de novo when reviewing disability

determinations.”); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that

it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistences in the

medical evidence, and that it is the claimant who bears the risk of nonpersuasion.”). “[A]

reviewing court must uphold the determination when an ALJ has applied correct legal standards

and the ALJ’s factual findings are supported by substantial evidence.” Peace v. Berryhill, 2019

WL 2406626, at *1 (4th Cir. June 7, 2019) (quoting Brown v. Comm’r Soc. Sec. Admin., 873 F.3d

251, 267 (4th Cir. 2017)). Indeed, so long as the Commissioner’s decision is supported by

substantial evidence, it must be affirmed even if the reviewing court disagrees with the final

outcome. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).

DISCUSSION

The question before the ALJ was whether Plaintiff was under a “disability” as that term of

art is defined for Social Security purposes, between February 6, 2020, and the date of the decision.1

(Tr. 18). To establish entitlement to benefits, Plaintiff has the burden of proving disability within

the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

1 Under the Social Security Act, 42 U.S.C. § 301, the term “disability” is defined as an: inability to engage

in any substantial gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (quoting 42 U.S.C.

§ 423(d)(1)(A)).

The Social Security Administration has established a five-step sequential evaluation

process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:

(1) whether claimant is engaged in substantial gainful activity -

if yes, not disabled;

(2) whether claimant has a severe medically determinable

physical or mental impairment, or combination of

impairments that meet the duration requirement in §

404.1509 - if no, not disabled;

(3) whether claimant has an impairment or combination of

impairments that meets or medically equals one of the

listings in appendix 1, and meets the duration requirement -

if yes, disabled;

(4) whether claimant has the residual functional capacity

(“RFC”) to perform her/his past relevant work - if yes, not

disabled; and

(5) whether considering claimant’s RFC, age, education, and

work experience he/she can make an adjustment to other

work - if yes, not disabled.

20 C.F.R. § 404.1520(a)(4)(i-v).

The burden of production and proof rests with the claimant during the first four steps; if

claimant is able to carry this burden, then the burden shifts to the Commissioner at the fifth step to

show that work the claimant could perform is available in the national economy. Pass, 65 F.3d at

1203. In this case, the ALJ determined at the fourth and fifth steps that Plaintiff was not disabled.

(Tr. 25-26).

First, the ALJ determined that Plaintiff had not engaged in any substantial gainful activity

since February 6, 2020, the alleged disability onset date. (Tr. 20). At the second step, the ALJ

found that Plaintiff “has the following severe impairments: depressive disorder; anxiety disorder;

obsessive-compulsive disorder; bilateral glaucoma of the eyes; PTSD; borderline personality

disorder.”2 (Tr. 20). At the third step, the ALJ determined that Plaintiff did not have an impairment

or combination of impairments that met or medically equaled one of the impairments listed in 20

C.F.R. 404, Subpart P, Appendix 1. (Tr. 20).

Next, the ALJ assessed Plaintiff’s RFC and found that Plaintiff

has the residual functional capacity to perform a full range of work

at all exertional levels but with the following nonexertional

limitations: she can understand, remember and carry out simple

instructions; she can interact appropriately with supervisors and

coworkers occasionally; she is limited to no interaction with the

general public; she can respond appropriately to changes in a

routine work setting; she can make judgments on simple work-

related decisions; she is limited to no reading fine print (defined as

print smaller than normal size newspaper/magazine print) or tasks

requiring fine discrimination.

(Tr. 22). In making this finding, the ALJ “considered all symptoms and the extent to which these

symptoms can reasonably be accepted as consistent with the objective medical evidence and other

evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p.” Id.

At the fourth step, the ALJ held that Plaintiff “is capable of performing past relevant work

as a cook helper.” (Tr. 25). In addition, at the fifth and final step, the ALJ made the alternative

finding that “other jobs exist in significant numbers in the national economy that the claimant also

can perform.” Id. The ALJ noted that Plaintiff “was 35 years old, which is defined as a younger

individual age 18-49, on the alleged disability onset date.” Id.

The ALJ concluded based on the testimony of the VE and “[c]onsidering the claimant’s

age, education, work experience, and residual functional capacity” that jobs existed in significant

numbers in the national economy that Plaintiff could perform. (Tr.26). Specifically, the VE

testified that according to the factors given by the ALJ, occupations claimant could perform

2 The determination at the second step as to whether an impairment is “severe” under the regulations is a

de minimis test, intended to weed out clearly unmeritorious claims at an early stage. See Bowen v. Yuckert,

482 U.S. 137 (1987).

included a linen room attendant, a dishwasher, and a poultry hanger. Id. Therefore, the ALJ

concluded that Plaintiff was not under a “disability,” as defined by the Social Security Act,

between February 6, 2020, and the date of the decision, April 19, 2023. (Tr. 26).

On appeal to this Court, Plaintiff alleges that the ALJ erred “by failing to admit and

evaluate the opinion evidence from Gerri Foley, M.Ed, LCAS-A.” (Document No. 10, p. 3). The

undersigned will address this allegation below.

Gerri Foley Opinion Evidence

Based on this sole assignment of error, Plaintiff argues that this case must be remanded for

further proceedings. (Document No. 10, pp. 3-7). Plaintiff notes that Gerri Foley, M.Ed, LCAS-

A (“Foley”) indicated in the completed “Mental Capacity Questionnaire that “Redmon is suffering

with PTSD, borderline personality disorder, and major depression, she is compliant with her

treatment, and she is not a malingerer.” (Document No. 10, pp. 3-4) (citing Document No. 10-1,

p. 1). “Ultimately, Ms. Foley opined that Ms. Redmon would require unscheduled breaks in

addition to normal work breaks, and she would likely miss more than four days of work per month

due to her symptoms and need for treatment.” (Document No. 10, p. 4) (citing Document No. 10-

1, p. 7). Plaintiff contends this is “notable because the vocational expert (“VE”) who testified at

Ms. Redmon’s hearing indicated that just five unscheduled breaks per week outside of normal

breaks would eliminate unskilled work.” Id. (citing Tr. 57).

Plaintiff goes on to explain that Foley’s “opinion was not generated until February 23,

2023,” and that “it appears that Ms. Redmon’s administrative attorney, Ms. Holly Fairbairn, did

not become awa[re] of this opinion until it was in hand just prior to the hearing.” (Document No.

10, p. 4) (citing Tr. 35). The ALJ indicated that the Foley opinion was not submitted until March

1, 2023, one (1) day before the hearing. Id. (citing Tr. 17). Plaintiff notes that her administrative

and hearing counsel, Ms. Fairbairn, had provided a form to Plaintiff on or about January 23, 2023,

to “take to her provider for a possible medical opinion” and Ms. Fairbairn was, therefore, aware

“that such evidence could come into existence.” Id. (citing Tr. 17-18).

Plaintiff contends that attorney Fairbairn’s failure to “notify the ALJ within 5 business days

about the ‘possibility’ of this evidence being generated is the ALJ’s sole basis for declining to

admit this evidence into the record.” (Document No. 10, pp. 4-5) (citing Tr. 17-18, 35-36).

Plaintiff then argues that “there does not appear to be any basis in the regulations to support the

ALJ’s assertion that he may refuse to admit obviously probative evidence because the claimant’s

representative did not alert him to the possibility that such evidence could one day exist.”

(Document No. 10, p. 5).

According to Plaintiff, “[t]he regulations plainly state that the claimant and her

representative ‘must inform [the Agency] about or submit all evidence known to [them].’” Id.

(quoting 20 C.F.R. § 404.1512). Plaintiff argues that there is no requirement that an “attorney

notify the ALJ about evidence which may or may not be generated in the future or that the attorney

does not know to exist.” Id. However, Plaintiff acknowledges that in “a recent ruling, the Agency

clarified that ‘[a]t the hearing level, a claimant generally must submit or inform us about written

evidence at least 5 business days before the date of his or her scheduled hearing.’” Id. (quoting

SSR 17-4p).

Plaintiff asserts that Ms. Fairbairn acted in accordance with the regulations by submitting

the disputed evidence to the ALJ once she knew it existed, and that the ALJ erred by excluding

that evidence. (Document No. 10, p. 5) (citing 20 C.F.R. § 404.1512). Plaintiff further suggests

that the ALJ was required to explain his consideration of “the supportability and consistency

factors for a medical source’s medical opinions or prior administrative medical findings.”

(Document No. 10, p. 6) (quoting 20 C.F.R. § 404.1520c(b)). Plaintiff then cites to several cases

that apparently address the failure to consider “a physician’s opinion (particularly a treating

physician).”3 Id.

In conclusion, Plaintiff states that it “must be apparent from the decision that the ALJ has

evaluated the medical opinion and meaningfully considered the criteria in accordance with the

regulations and Fourth Circuit precedent.” (Document No. 10, p. 7).

In response, Defendant first notes that the “Notice Of Hearing” sent to Plaintiff on or about

December 15, 2022, gave specific notice of the “5-day rule” regarding the submission of evidence.

(Document No. 12, p. 2) (citing Tr. 184). The ALJ’s “Notice…” advised as follows:

Submitting More Evidence and Reviewing Your File

You must inform us about or submit all evidence known to you

that relates to whether or not you are blind or disabled. Your

representative must help you submit information and evidence

to us. If you know about or have more evidence, such as recent

medical records, reports, or evaluations, you must inform me

about it or give it to me no later than 5 business days before the

date of your hearing. If you miss this deadline, I may not

consider the evidence when I decide your case.

(Tr. 184); see also (Document No. 12, p. 2) (quoting Tr. 184).

Next, Defendant quotes from the hearing transcript regarding the Foley opinion.

(Document No. 12, pp. 2-3) (quoting Tr. 35-37). In pertinent part, the exchange between the ALJ

and attorney Fairbairn reveals: (1) Fairbairn did not know the ALJ had just received the evidence

(“the fact that it just came in is actually news to me and [] perhaps [Plaintiff] can explain the reason

for the delay”); (2) the Foley opinion is on a form prepared by Fairbairn and provided to Plaintiff

3 Gerri Foley is not alleged to be a physician; rather, she appears to be a licensed clinical addiction

specialist. See (Document No. 10, p. 2).

on or about January 23, 2023; and (3) Fairbairn stated that the failure to submit a five day letter

“must have just been an oversight.” Id.

Defendant further notes that the ALJ opined that Plaintiff “did not submit or inform the

Administrative Law Judge about all written evidence at least five business days before the date of

the claimant’s scheduled hearing (20 CFR 404.935(a) and 416.1435(a)).” See (Document No. 12,

pp. 3-4). Defendant also provides the following instructive summary of legal authority:

When a claimant submits a request for a hearing, the claimant must

submit information or evidence as required by 20 C.F.R. §§

404.1512, 416.912 or any summary of evidence to the ALJ. See 20

C.FR. §§ 404.935(a), 416.1435(a). Pursuant to these regulations,

“[e]ach party must make every effort to ensure that the [ALJ]

receives all of the evidence and must inform the [ALJ] about or

submit any written evidence, as required in [§§ 404.1512, 416.912]

no later than 5 business days before the date of the scheduled

hearing” (the five-day rule). Id. If a claimant fails to comply with

his requirement, the ALJ “[m]ay decline to consider or obtain

the evidence, unless the circumstances described in paragraph

(b) of this section apply.” Id.

(Document No. 12, pp. 8-9) (emphasis added).

Defendant contends that while there are circumstances under which an ALJ can accept

evidence less than five business days before a scheduled hearing, those circumstances do not apply

here. (Document No. 12, pp. 4 and 9) (citing Tr. 17 and 20 C.F.R. §§ 404.935(b), 416.935(b)).

Defendant acknowledges some flexibility in the regulations, but goes on to argue that

“[u]ltimately, it [is] Plaintiff’s responsibility to demonstrate an exceptional reason why she failed

to timely produce the medical statements, including whether she actively and diligently sought the

late-filed evidence.” (Document No. 12, p. 9) (quoting Kline v. Berryhill, No. 3:18-CV-180-FDW,

2019 WL 1782133, at *4 (W.D.N.C. Apr. 23, 2019)).

Again, Defendant’s brief is instructive on relevant legal authority:

Here, the ALJ considered the explanation by Plaintiff’s

representative, but determined that it did not fall within one of the

exceptions to the five-day rule (Tr. 17-18). It was Plaintiff’s

responsibility to demonstrate an exceptional reason why she failed

to timely produce Ms. Foley’s opinion form. She did not meet that

burden here. She failed to show a circumstance, which was out of

the ordinary or unavoidable, or beyond her control, which prevented

her from timely informing the ALJ about this evidence earlier. As

stated above, it was foreseeable that such evidence might be coming

in, as Plaintiff’s representative appeared to have acknowledged (Tr.

36-37). Therefore, consistent with the regulations the ALJ

appropriately decided not to exhibit or consider the late-produced

opinion form from Ms. Foley. See Burrell v. Saul, No. 2:18-cv-

02560- JMC-MGB, 2020 WL 2476974, at *10 (D.S.C. Jan. 15,

2020), adopted, No. 2:18-cv-02560-JMC, 2020 WL 1270673

(D.S.C. Mar. 17, 2020) (affirming an ALJ’s decision not to consider

a physician’s opinion submitted two days before the hearing because

it was unclear why the claimant did not notify the ALJ of the

anticipated opinion prior to the five-day deadline when she was the

one who had given the form earlier to her doctor); Bartley v. Saul,

No. 2:18cv00023, 2019 WL 6709538, at *7 (W.D.Va. Oct. 25,

2019), adopted, No. 2:18CV00023, 2019 WL 6702554 (W.D.Va.

Dec. 9, 2019) (noting that although claimant’s attorney took full

responsibility for the oversight in not timely submitting a

psychological report, the ALJ did not err in refusing to accept the

report because the claimant failed to demonstrate that “unforeseen

or unavoidable circumstances beyond [her] control prevented her

from timely submitting [the] psychological report as required under

§ 404.935(a) and § 404.1512.”) (emphasis added); Midkiff v.

Berryhill No. 2:18-cv-00338, 2018 WL 8620562 (Dec. 10, 2018) at

*11, adopted, No. 2:18-cv-00338, 2019 WL 1258845 (Mar. 19,

2019) (affirming an ALJ’s refusal to accept an opinion from

claimant’s treating psychiatrist because although it did not exist

until two days prior to the hearing, “[t]he fact that the opinion was

not prepared until the last minute does not, in and of itself

demonstrate a circumstance outside of Claimant’s control.”).

(Document No. 12, pp. 10-11) (footnote omitted).

Defendant argues that contrary to Plaintiff’s position that “compliance with the 5-day rule

was not required…,” the “Regulation clearly states that claimants “must inform us about or submit

any written evidence . . . no later than 5 business days before the date of the scheduled hearing.”

(Document No. 12, pp. 11-12 (quoting 20 C.F.R. §§ 404.935(a), 416.1435(a)).

Defendant also presents a persuasive argument that even though the ALJ did not consider

Foley’s opinion/questionnaire, the ALJ had sufficient evidence, including regarding mental

capacity, to make a decision about Plaintiff’s alleged disability.” (Document No. 12, p. 9, 12-13).

“This evidence included mental health treatment records with generally unremarkable mental

status exam findings, reports of efficacy of treatment with medications, and Plaintiff’s subjective

statements regarding her abilities and limitations” (Document No. 12, pp. 12-13) (citing Tr. 44,

47-48, 370, 378, 382, 386, 394, 402, 461, 478, 511, 515, 519, 522)). Defendant contends that “the

ALJ did not discount that Plaintiff had some mental limitations and he appropriately accounted for

them in the RFC finding to the extent they were credibly supported by the evidence.” (Document

No. 12, p. 13); see also (Tr. 22).

The undersigned finds Defendant’s arguments and legal authority persuasive.

At the outset of the underlying decision, the ALJ explicitly addresses the issue now before

the Court. The ALJ explained as follows:

The claimant did not submit or inform the Administrative Law

Judge about all written evidence at least five business days before

the date of the claimant’s scheduled hearing (20 CFR 404.935(a)

and 416.1435(a)). Here, the representative submitted an opinion

from Dr. Foley on March 1, 2023. However, the undersigned finds

no good cause to exhibit or consider this opinion. First, the

claimant’s representative conceded that she was aware at least one

month prior to the hearing that the claimant had asked Dr. Foley to

complete the opinion form and, thus, was aware of the possibility

the opinion would be submitted late. However, the representative

did not submit a five-day letter to cover that possibility. The

undersigned will not exhibit or consider the opinion in this decision.

(Tr. 17-18).

The crux of Plaintiff’s argument on appeal to this Court seems to be that the “ALJ’s actions

find no support in the regulations.” (Document No. 10, p. 2). Plaintiff contends that “there does

not appear to be any basis in the regulations to support the ALJ’s assertion that he may refuse to

admit obviously probative evidence because the claimant’s representative did not alert him to the

possibility that such evidence could one day exist.” (Document No. 10, p. 5).

Contrary to Plaintiff’s position, both Defendant’s brief and the ALJ’s decision cite to

regulations that support a finding that Plaintiff must submit or inform the ALJ about all written

evidence at least five days before the date of the claimant’s scheduled hearing. See (Tr. 17-18)

and (Document No. 12, p. 8) (citing 20 CFR 404.935(a) and 416.1435(a)). The cited regulations

state:

Each party must make every effort to ensure that the administrative

law judge receives all of the evidence and must inform us about or

submit any written evidence, as required in § 404.1512, no later

than 5 business days before the date of the scheduled hearing. If

you do not comply with this requirement, the administrative law

judge may decline to consider or obtain the evidence, unless the

circumstances described in paragraph (b) of this section apply.

20 C.F.R. § 404.935(a) and 416.1435(a) (emphasis added). Moreover, as noted above, the

Commissioner explained this requirement in the “Notice Of Hearing” issued on or about December

15, 2022. See (Tr. 184).

Notably, Plaintiff has declined filed a reply brief addressing Defendant’s arguments or

legal authority.

The undersigned finds the ALJ’s decision to be thorough, well-reasoned, and supported by

substantial evidence. (Tr. 17-26). The ALJ’s decision recognizes the same impairments that Ms.

Foley identifies in the disputed opinion. Compare (Tr. 20) and (Document No. 10-1, p. 1). The

ALJ then discusses Plaintiff’s mental impairments and treatment in some detail, and cites to

medical evidence in the record, including from October Road, which appears to be the same clinic

where Ms. Foley worked. See (Tr. 23-25) (citing Tr. 364-436, 447-499, 505-530).

In addition, the ALJ’s RFC limitations account for Plaintiff’s mental impairments. (Tr.

22). As noted above, the ALJ also remarked that Plaintiff is a younger individual on the alleged

disability onset date, capable of “a full range of work at all exertional levels” and who could

perform her past relevant work and/or other work that exists in significant numbers in the national

economy. See (Tr. 22, 23-26).

Next, the undersigned is persuaded that the great weight of legal authority identified by

Defendant and reviewed by the undersigned supports the ALJ’s decision not to consider the Foley

opinion. The undersigned finds the following cases, inter alia, to be instructive. Grant v. Kijakazi,

2022 WL 595135, at *9 (M.D.N.C. Feb. 28, 2022), adopted by 2022 WL 981118 (M.D.N.C. Mar.

31, 2022) (“Plaintiff did not inform the ALJ (or the SSA) about the disputed Salem Neurological

evidence in compliance with the 5-day rule. Id. The ALJ thus did not err in excluding the disputed

evidence.”); Mullis v. Comm’r of Soc. Sec., No. 5:23-CV-020-FDW, 2024 WL 1056029, at *4

(W.D.N.C. Mar. 11, 2024) (“Claimant has not demonstrated good cause under Section 404.970(b)

for her failure to inform the ALJ about or to submit to the ALJ the VE report at least five business

days prior to the ALJ’s hearing. As such, the Appeals Council did not err in rejecting the VE

report.”); Sharlene A. o/b/o D.A.C. v. Comm’r of Soc. Sec., 2024 WL 1743098, at *4 (W.D.N.Y.

Apr. 23, 2024) (“the ALJ reasonably exercised his discretion to exclude the records on the basis

that they were not included in the five-day letter. . . . Section 416.1435(a) requires the claimant

to either “submit” or “inform [the agency] about” any outstanding evidence.”); Becerra v. Comm’r

of Soc. Sec., 2024 WL 1253850, at *4 (E.D. Cal. Mar. 25, 2024) (“a claimant has the burden to

show why evidence should be considered under one of three exceptions under paragraph (b).”);

and Kline v. Berryhill, No. 3:18-CV-180-FDW, 2019 WL 1782133, at *3 (W.D.N.C. Apr. 23,

2019) (“the plain meaning of the regulation and the SSA’s guidance illustrates that the claimant

must make some showing that an event, which was out of the ordinary or unavoidable and was

also outside of the claimant's control, prevented the claimant from informing the ALJ or submitting

the proposed evidence within five days of the hearing.”).

Based on the foregoing, the undersigned is not persuaded that remand is appropriate here.

CONCLUSION

The undersigned finds that there is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion,” and thus substantial evidence supports the

Commissioner’s decision. Richardson v. Perales, 402 U.S. 389, 401 (1971); Johnson v. Barnhart,

434 F.3d 650, 653 (4th Cir. 2005). As such, the undersigned will recommend that the

Commissioner’s decision be affirmed.

RECOMMENDATION

FOR THE FOREGOING REASONS, the undersigned respectfully recommends that the

Commissioner’s determination be AFFIRMED.

TIME FOR OBJECTIONS

The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of

the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,

conclusions of law, and recommendation contained herein may be filed within fourteen (14) days

of service of same. Responses to objections may be filed within fourteen (14) days after service

of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and

Recommendation with the District Court constitutes a waiver of the right to de novo review by the

District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.

Benton, 523 F.3d 424, 428 (4th Cir. 208). Moreover, failure to file timely objections will preclude

the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue

in a magistrate judge’s report, a party must object to the finding or recommendation on that issue

with sufficient specificity so as reasonably to alert the district court of the true ground for the

objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,

478 F.3d 616, 622 (4th Cir. 2007)).

IT ISSO RECOMMENDED.

Signed: February 24, 2025

DiC pe

David C. Keesler “ey

United States Magistrate Judge get

16