Baqir v Astrue
Filing
26
MEMORANDUM OPINION. Signed by Magistrate Judge Paul W. Grimm on 7/6/11. (mps, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
PAUL W. GRIMM
CHIEF UNITED STATES MAGISTRATE JUDGE
101 W. LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-4560
(410) 962-3630 FAX
July 6, 2011
Frederick A. Raab, Esq.
Mignini & Raab, LLP
606 Baltimore Avenue, Ste. 100
Towson, MD
21204
Alex Gordon, AUSA
36 S. Charles Street
4th Floor
Baltimore, MD 21201
Re: Patricia Baqir v. Michael J. Astrue, Commissioner of
Social Security, PWG-09-1245
Dear Counsel:
Pending before this Court, by the parties’ consent, are
Cross-Motions for Summary Judgment concerning the Commissioner’s
decision denying Patricia Baqir’s claim for Disability Insurance
Benefits(“DIB”). (ECF Nos. 8,13,24).
Plaintiff also filed a
response in opposition to Defendant’s Motion (ECF No. 25). This
Court must uphold the Commissioner’s decision if it is supported
by substantial evidence and if proper legal standards were
employed. 42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987). A hearing is unnecessary.
Local Rule 105.6.
For the
reasons that follow, this Court GRANTS the Commissioner’s Motion
and DENIES the Plaintiff’s Motion.
Patricia Baqir (“Claimant”), applied for DIB on November
20, 2005, alleging that she has been disabled since September 2,
2001, due to chronic fatigue due to hypotension, anemia,
obstructive sleep apnea, hypothyroidism, and depression. (Tr.
46,
69).
Her
claim
was
denied
initially
and
upon
reconsideration. (Tr. 27-30). After a hearing before an
Administrative Law Judge (“ALJ”), the Honorable Price Dodson, on
May 16, 2007, the ALJ denied her claim in a decision dated June
26, 2007. (Tr. 13-21).
The ALJ found that Claimant met the
insured status requirements through December 30, 2002 and that
she had not engaged in any substantial gainful activity (“SGA”)
since her alleged onset date of September 2, 2001. (Tr. 15).
The ALJ then found that although Claimant’s obstructive sleep
apnea, depression and hypothyroidism were “severe” impairments,
they did not meet or medically equal any of the listed
impairments in the Regulations.
The ALJ also found that
Claimant retained the residual functional capacity (“RFC”) to
perform a limited range of light work1. (Tr. 16). Based on her
RFC and after receiving testimony from a vocational expert
(“VE”) the ALJ determined that Claimant was able to perform her
past relevant work (“PRW”) as a food service worker. (Tr. 326327).
Accordingly, the ALJ found that she was not disabled.
(Tr. 21). On March 25, 2009, the Appeals Council denied her
request for review, making her case ready for judicial review.
(Tr. 4-7).
The Claimant presents several arguments in support of her
contention that the Commissioner’s final decision is not
supported by substantial evidence.
First, she argues that the ALJ was required, but failed, to
explain “the seriousness of the date last insured(“DLI”) issue”
to Claimant who was not represented by counsel at the
administrative hearing. See Plaintiff’s Mem. pp. 11-17.
In order to obtain disability benefits, a claimant must
demonstrate that he or she was disabled prior to his or her last
insured date. The claimant must prove that she was either
permanently disabled or subject to a condition which became so
severe as to disable her prior to the date upon which her
disability insured status expired which, in this case is
December 30, 2002. After careful review of the record, I find
the ALJ adequately explained the issue of DLI to Claimant. At
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The ALJ found Claimant’s ability to perform light work was
limited by the following: she could perform tasks that do not
require the ability to carry out complex, detailed activities.
(Tr. 16).
2
the hearing the ALJ stated:
ALJ: [I]n addition, you have another issue before today that I want to make sure you understand. It's
called date last insured. When you're working and
they're taking all those deductions out of your
paycheck you earn what they call orders[sic] of
coverage. Once you have enough of these orders [sic]
of coverage you're insured for disability insurance
policy, if you stop working then eventually your -it's
like not paying the premium, eventually your coverage
lapses. Our records show that you were last insured
for disability insurance benefits purposes on December
31, 2002. So in order to be eligible based upon the
application we're dealing here today you have to show
that you were disabled on or before December 31, 2002
and that the disability has been established.(Tr.
313)(emphasis added).
Contrary to Claimant’s argument, the ALJ more than adequately
explained the issue of DLI to her. The ALJ also asked Ms.
Baqir, on at least two different occasions during the hearing,
whether she wished to proceed without representation. The
Claimant stated she wanted to proceed. (Tr. 310, 314).
Claimant’s counsel also attached additional evidence to the
Memorandum filed with this Court to support her claim that the
ALJ failed to explain the DLI issue and develop the record.
This evidence was created two years after the date of the ALJ’s
decision and was never previously submitted to the Commissioner.
Claimant argues that this additional evidence warrants a remand
for additional proceedings as it constitutes “new and material
evidence” and that “good cause” exists for her failure to supply
this information previously.
With respect to the additional evidence, the Court can only
consider it if it is new, material and Claimant has established
good cause for failure to submit it previously. The failure to
satisfy any one of these elements prevents this court from
remanding for reconsideration based upon the new evidence.
Wilkins v. Secretary, 953 F.2d 93, 96 (4th Cir. 1991); 42 U.S.C.
§405(g). Evidence is considered new if it is “not duplicative
or cumulative.” Evidence is material if “there is a reasonable
possibility that [it] would have changed the outcome.” Id. When
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Congress added the element requiring a showing of good cause for
failure to introduce the evidence earlier in the process, a
floor manager of the bill explained that it was to “speed up the
judicial process so that these cases would not just go on and on
and on.” Melkonyan v. Sullivan, 501 U.S. 89, 101, 111 S.Ct.
2157, 115 L.Ed.2d 78 (1991). The burden of showing the
requirements of 405(g) have been met rests with the claimant.
Fagg v. Chater, 106 F.3d 390 (Table), *2 (4th Cir. Feb.3, 1997).
The evidence attached to Claimant’s Memorandum includes:
A letter Mark Walsh M.D. dated May 17, 2009; a letter from Amy
Walsh M.D. dated May 14, 2009; and a Psychiatric Review
Technique Form & Mental Residual Functional Capacity Assessment
Form completed by Mark Walsh M.D., on May 17, 2009.
Even if I were to assume, arguendo, that these items were
new and material, the Court would not be permitted to remand
this case as plaintiff has not met her burden to show good cause
for failure to incorporate the evidence into the record in the
prior proceeding. Dr. Mark Walsh was her treating physician at
the time period in question i.e., in late 2002, and at the time
of her hearing. Dr. Amy Walsh also was treating Claimant at the
time of the hearing. Both of these physicians’ treatment
records were considered and discussed by the ALJ, and there is
nothing to indicate that the opinions rendered by these
physicians in May 2009 -–2 years after the ALJ’s decision in
this case--were based on medical evidence that was not available
during the administrative proceedings.
Claimant also argues that the ALJ failed to consider
properly her chronic fatigue syndrome (“CFS”)as a severe
impairment pursuant to Social Security Ruling (“SSR”)99-2p.
However the ALJ did not simply ignore her complaints of fatigue.
The ALJ noted, and the Claimant testified, that she was not
diagnosed with CFS until 2005. More importantly the ALJ
considered her complaints of fatigue and concluded that many of
her ailments that were diagnosed prior to the expiration of her
date last insured resulted in fatigue, such as her depression,
thyroid disorder and her depression which were severe. (Tr. 20).
Claimant also argues that the ALJ erred in evaluating her
credibility and that there is no basis for finding that she
could perform a limited range of light work. However, after
4
careful review of the entire record, I disagree. The ALJ fully
and adequately explained his credibility determination. See SSR
96-7.
In determining Claimant’s credibility and the impact
that her alleged impairments had on her ability to work, the ALJ
stated that he considered the reports from Drs. Harkhani,
Snitzer, Pinkstaff, and Lewis. The records from her visits to
Johns Hopkins hospital were also evaluated by the ALJ as well as
the opinions of the state agency reviewing physicians. (Tr. 1920). The ALJ also explained in sufficient detail why he found
her subjective complaints less than wholly credible. (Tr. 20).
In sum, these factors, coupled with Ms. Baqir’s testimony
regarding her activities, were appropriately considered,2 and
they provide substantial support for the ALJ’s conclusion. (Tr.
163-165, 328-331).
Thus, for the reasons given, this Court GRANTS the
Commissioner’s Motion for Summary Judgment and DENIES Claimant’s
Motion. A separate Order shall issue.
Sincerely,
/s/
Paul W. Grimm
United States Magistrate Judge
2
SSR 96-7p also provides: the adjudicator must consider
certain factors “in addition to the objective medical evidence
when assessing the credibility of an individuals statements”:
Those factors include 1. The individual’s daily activities; 2.
The location, duration, frequency, and intensity of the
individual’s pain or other symptoms; 3. Factors that precipitate
and aggravate the symptoms; 4. The type, dosage, effectiveness,
and side effects of any medication the individual takes or has
taken to alleviate pain or other symptoms; 5. Treatment, other
than medication, the individual receives or has received for
relief of pain or other symptoms; 6. Any measures other than
treatment the individual uses or has used to relieve pain or
other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board ); and
7. Any other factors concerning the individuals functional
limitations and restrictions due to pain or other symptoms.
SSR 96-7p(1996 WL 374186, *2 (S.S.A.))
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