Jones v. Commissioner of Social Security
Filing
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MEMORANDUM Signed by Magistrate Judge Paul W. Grimm on 9/12/2011. (aos, 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
September 12, 2011
Brain Douglas Bennett, Esq.
Law Offices of Turziu and Bennett
2211 Eastern Blvd.
Baltimore, MD 21220
Alex S. Gordon, AUSA
36 South Charles Street
4th Floor
Baltimore, MD 21201
Re: Sandra Edith Jones v. Michael J. Astrue, Commissioner
of Social Security, PWG-09-2838
Dear Counsel:
Pending before this Court, by the parties’ consent, are
Cross-Motions for Summary Judgment concerning the Commissioner’s
decision denying Ms. Jones’ claim for Supplemental Security
Income (“SSI”). (ECF Nos. 18,24,26).
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 DENIES the Plaintiff’s Motion and GRANTS the
Commissioner’s Motion.
Ms. Jones (sometimes referred to as “Claimant”) filed an
application for Supplemental Security Income (“SSI”) on November
29, 2005, alleging that she became disabled on November 1, 2005,
due to hepatitis B&C, arthritis in her back and shoulders and
knee problems. (Tr. 60, 91). After her claim was denied
initially and on reconsideration, a hearing was held before an
Administrative Law Judge (“ALJ”), the Honorable Robert W. Young.
(Tr. 24-25,190-213). In a decision dated July 25, 2008, the ALJ
denied Ms. Jones’ claim. (Tr. 13-19). The ALJ found that Ms.
Jones’ chronic liver disease and left shoulder arthritis
constituted “severe” impairments as defined in the Regulations.
However, the ALJ also found theses impairments did not meet or
medically equal a Listing. (Tr. 15). The ALJ next found that
Claimant retained the residual functional capacity (“RFC”) to
perform a limited range of light work1, and that based on her RFC
she was precluded from performing any past relevant work
(“PRW”). After receiving testimony from a vocational expert,
(“VE”), the ALJ determined that there was work available in
significant numbers in the local and national economies that Ms.
Jones could perform. Accordingly, the ALJ found she was not
disabled within the meaning of the Act. (Tr. 13-19). On October
22, 2009, the Appeals Council denied Ms. Jones’ request for
review, making the ALJ’s decision the final, reviewable decision
of the Commissioner. (Tr. 4-6). This appeal followed.
The Commissioner’s decision must be upheld if supported by
substantial evidence which is more than a scintilla, but less
than a preponderance, and sufficient to support a conclusion in
a reasonable mind. See 42 U.S.C. §405(g) (1998); see also King
v. Califano, 599 F.2d 597 (4th Cir. 1979); Teague v. Califano,
560 F.2d 615 (4th Cir. 1977); Laws v. Celebrezze, 368 F.2d 640
(4th Cir. 1966). This Court may not weigh conflicting evidence,
determine credibility, or substitute its judgment for the
Commissioner’s. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). Although deferential, this standard of review does
not require acceptance of a determination by the Commissioner
which applies an improper standard, or misapplies the law.
See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
Following its review this Court may affirm, modify or reverse
the Commissioner, with or without a remand. See 42
U.S.C.§405(g); Melkonyan v. Sullivan, 501 U.S. 89 (1991).
Claimant presents two primary arguments in support of her
contention that the ALJ’s decision is not supported by
substantial evidence. For the reasons that follow, I disagree
and AFFIRM the ALJ’s decision.
First, Claimant argues that the ALJ erred at step three of
the sequential evaluation in failing to find that she met
Listing 5.052. The Commissioner responds that while there is no
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Judge Young found Ms. Jones’ ability to perform light exertional
work was diminished by the following nonexertional limitations:
She could not climb any ladders, ropes, or scaffolds. She could
perform no more than limited overhead reaching on the left side.
(Tr. 16).
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Counsel for Claimant fails to identify which section(s) of
Listing 5.05 Claimant contends were met. This vagueness hampers
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dispute that Ms. Jones previously met Listing 5.05(F)(3),
pursuant to a 1999 ALJ decision3, the ALJ in this case properly
found that she did not qualify for benefits because the previous
award for benefits is not dispositive of her 2005 application.
(Tr. 31). See Defendant’s Memorandum pp. 14-16.
After careful review of the entire record, I find that the
ALJ applied the appropriate standard concerning digestive
disorders.
The version of Listing 5.05 in effect at the time of the ALJ’s
decision4 required:
Chronic liver disease, with:
F. Hepatic encephalopathy as described in 5.00D10,
with 1 and either 2 or 3:
3: One of the following occurring on at least two
evaluations at least 60 days apart within the same
consecutive 6-month period as in F1:
a. Asterixis or other fluctuating physical
neurological abnormalities; or
b. Electroencephalogram(EEG)demonstrating triphasic
slow wave activity; or
c. serum albumin of 3.0 g/dl or less; or
d. International Normalized Ratio (INR)of 1.5 or
greater.
Claimant bears the burden of production and proof through
the first four steps of the evaluation process. Pass v. Chater,
65 F.3d 1200 (4th Cir. 1995). After careful review of the
record in this case I find that Claimant failed to meet her
burden, and that the ALJ’s decision that she is not disabled is
supported by substantial evidence.
For example, the Claimant’s
treatment records for the relevant time period are in the
record, and the treatments Claimant sought were for knee and
shoulder pain. Furthermore, there was a consultative examination
conducted by Dr. Purcell Bailey for evaluation of Ms. Jones’
review by the Court, inasmuch as there are numerous subsections
of Listing 5.05 regarding digestive disorders.
3
Ms. Jones benefits were terminated sometime around 2003. See
Plaintiff’s Mem. p.1. This termination was apparently never
appealed, and is not an issue in this case.
4
Listing 5.05 was substantially revised effective December 18,
2007. 72 Fed. Reg. 59398(October 19, 2007).
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hepatitis B&C. The examiner’s report reveals that Claimant was
a well-developed, well-nourished female with appropriate affect
and that her bowel sounds were normal and active. The evaluation
also found no tenderness, palpitation masses or organomegaly.
(Tr. 133). These findings seriously undermine her allegation
that she meets Listing 5.05.
Next Ms. Jones argues that the ALJ erred in determining her
RFC by failing to adequately consider her claims of physical
limitations due to her liver disease. Specifically, she contends
that the ALJ was required to order a consultative
examination(“CE”). For the reasons that follow, I find her
arguments are without merit.
The ALJ is vested with discretionary power in determining
whether a consultative examination is necessary. 20 C.F.R.
§416.919a(b) sets forth the standard when it may be appropriate
for a CE to be ordered: “when the evidence as a whole, both
medical and nonmedical is not sufficient to support a decision
on your claim.” Additional situations when a CE may be required
are identified:
[(1)] The additional evidence needed is not contained
in the records of your medical sources;
(2) The evidence that may have been available from
your treating or other medical sources cannot be
obtained for reasons beyond your control, such as
death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence
that we need is not available from your treating or
other medical sources;
(4) A conflict, inconsistency, ambiguity or
insufficiency in the evidence must be resolved, and we
are unable to do so by recontacting your medical
source; or
(5) There is an indication of a change in your
condition that is likely to affect your ability to
work, but the current severity of your condition is
not established.
20 C.F.R. §416.919a(b).(emphasis added).
In the present case, the record does not reflect any of the
foregoing circumstances requiring a CE. Ms. Jones’ medical
records were part of the record and there is no evidence that
there was difficulty in obtaining them, or that they were
incomplete. For example, Exhibit 6F documents her various
hospital emergency room visits for medical treatment with
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primary complaints of low back pain secondary to a slip and
fall, left shoulder and knee pain. (Tr. 148-189). Finally, as
stated previously, a consultative examination was ordered in
2006 by the Agency, during which Ms. Jones’ hepatitis B&C were
considered.
After review of the record and the ALJ’s decision,
I therefore find that the ALJ did not need to order an
additional examination, and that his decision is supported by
substantial evidence.
Therefore, I am DENYING Plaintiff’s Motion for Summary
Judgment, and GRANTING Defendant’s Motion for Summary Judgment.
A separate Order shall issue.
DATED: 9/12/11
___/s/____________________
Paul W. Grimm
United States Magistrate Judge
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