Swoboda v. Astrue
Filing
19
LETTER OPINION. Signed by Magistrate Judge Susan K. Gauvey on 9/11/2013. (aos, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
101 WEST LOMBARD STREET
SUSAN K. GAUVEY
BALTIMORE, MARYLAND 21201
U.S. MAGISTRATE JUDGE
MDD_skgchambers@mdd.uscourts.gov
(410) 962-4953
(410) 962-2985 - Fax
September 11, 2013
W. James Nicoll, Esq.
Jenkins, Block & Associates, P.C.
1040 Park Avenue, Suite 206
Baltimore, MD 21201
Alex S. Gordon, Esq.
Office of the United States Attorney
36 S. Charles Street, Fourth Floor
Baltimore, MD 21201
Re:
Christine Ellen Swoboda v. Carolyn W. Colvin
Civil Action No. SKG-10-2478
Dear Counsel:
Plaintiff, Christine Ellen Swoboda, by her attorney,
William James Nicoll, filed this action seeking judicial review
pursuant to 42 U.S.C. § 405(g) of the final decision of the
Commissioner of the Social Security Administration (“the
Commissioner”), who denied her claim for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under
sections 205(g) and 1631(c)(3) of the Social Security Act (“the
Act”).
This case has been referred to the undersigned
magistrate judge by consent of the parties pursuant to 28 U.S.C.
1
§ 636(c) and Local Rule 301.
No hearing is necessary. Local
Rule 105.6.
Currently pending before the Court are cross motions for
summary judgment and plaintiff’s request for remand in the
alternative.
The Court acknowledges that Ms. Swoboda has a
serious medical history and has faced many personal
difficulties.
However, the Court has concluded that under the
applicable law, she is not entitled to disability.
For the
reasons that follow, the Court hereby DENIES plaintiff’s motion
for summary judgment, GRANTS defendant’s motion for summary
judgment, and AFFIRMS the decision of the Commissioner.
I.
Procedural History
On March 16, 2007, plaintiff applied for DIB and SSI
benefits, alleging that she had become unable to work beginning
February 20, 2007 due to physical and mental illness.
(R. 20,
128, 136).
Plaintiff’s applications for DIB and SSI were denied
initially on May 31, 2007 and upon reconsideration on January 4,
2008.
(R. 44).
On January 25, 2008, the plaintiff filed a
request for a hearing by an Administrative Law Judge (“ALJ”).
(R. 44).
On January 9, 2009, ALJ Judith A. Showalter held a
hearing.
(R. 44).
On April 24, 2009, the ALJ issued an
2
unfavorable written decision that plaintiff was not disabled
within the meaning of the Act.
(R. 44).
On November 2, 2010, this Court ordered a remand under
Sentence Six of the Social Security Act, 42 U.S.C. §§ 405(g) and
1383(c)(3), based on consent of the parties, because the January
2009 hearing recording could not be located and a certified
administrative record could not be prepared.
(R. 71-73).
Pursuant to the remand order, the Appeals Council ordered a de
novo hearing.
(R. 44).
second hearing.
(R. 20).
On February 10, 2011, the ALJ held a
On March 11, 2011, the ALJ issued an
unfavorable written decision that plaintiff was not disabled
within the meaning of the Act.
(R. 17).
The Appeals Council denied plaintiff’s request for review,
making the ALJ’s decision the final decision of the agency.
7).
(R.
Plaintiff now seeks review of that decision pursuant to 42
U.S.C. § 405(g).
II.
(ECF No. 16).
Factual History
The Court has reviewed the Commissioner’s Statement of
Facts and, finding that it accurately represents the record in
all material respects, hereby adopts it.
(ECF No. 18-2, 2-14).
III. ALJ Findings
In reviewing a claimant’s eligibility for DIB and SSI, an
ALJ must consider all of the evidence in the record and follow
3
the sequential five-step analysis set forth in the regulations
to determine whether the claimant is disabled as defined by the
Act.
20 C.F.R § 416.920(a).1
If the agency can make a
disability determination at any point in the sequential
analysis, it does not review the claim further.
404.1520(a)(4).
20 C.F.R. §
After proceeding through each of the required
steps, the ALJ in this case concluded that Ms. Swoboda was not
disabled as defined by the Act.
(R. 21).
At the first step, the claimant must prove that he or she
is not engaged in “substantial gainful activity.”2
416.920(a)(4)(i).
20 C.F.R. §
If the ALJ finds that the claimant is engaged
in “substantial gainful activity,” he or she will not be
considered disabled.
(Id.).
Here, the ALJ found that Ms.
Swoboda has not engaged in substantial gainful activity since
February 20, 2007.
(R. 12).
At the second step, the ALJ must determine whether the
claimant has a severe, medically determinable impairment or a
combination of impairments that limit her ability to perform
1
Disability is defined in the Act as the “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 has lasted
or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 416(i)(1)(A).
2
Substantial gainful activity is defined as “work activity that is both
substantial and gainful.” 20 C.F.R. § 416.972. Work activity is substantial
if it involves significant physical or mental activities and even if it is
part time or if plaintiff is doing less, being paid less, or has fewer
responsibilities than when she worked before. 20 C.F.R. § 416.972(b).
Substantial gainful activity does not include activities such as household
tasks, taking care of oneself, social programs, or therapy. 20 C.F.R. §
416.972(c).
4
basic work activities.
20 C.F.R. §§ 404.1520(c), 416.920(c);
see also 20 C.F.R. §§ 404.1521, 416.921.
In addition, there is
a durational requirement that the claimant’s impairment last or
be expected to last for at least 12 months.
416.909.
20 C.F.R. §
Here, the ALJ found that Ms. Swoboda suffered from
several severe impairments.
(R. 23).
She found that Ms.
Swoboda suffers from cervical and lumbar spine degenerative disc
disease, left shoulder partial rotator cuff tear with adhesive
capsulitis, status post surgeries, obesity, depression, and
posttraumatic stress disorder.
(Id.).
The ALJ found that Ms.
Swoboda’s carpal tunnel syndrome is non-severe because the
record reflects medical improvement post-surgery.
(R. 24).
She
also found that Ms. Swoboda’s asthma is non-severe because it is
controlled with medication and there is minimal evidence to
support a finding of significant vocational impact.
(Id.).
At the third step, the ALJ considers whether the claimant’s
impairments, either individually or in combination, meet or
equal an impairment enumerated in the “Listing of Impairments”
in 20 C.F.R. § 404, Subpart P, Appendix 1.
416.920(a)(4)(iii).
20 C.F.R. §
If one of the Listings is met, disability
will be found without consideration of age, education, or work
experience.
20 C.F.R. § § 404.1520(d), 416.920(d).
Here, the
ALJ found that Ms. Swoboda does not have an impairment or
5
combination of impairments that meets or equals an impairment
enumerated in the “Listing of Impairments.”
(R. 24).
Before an ALJ advances to the fourth step of the sequential
analysis, he must assess the claimant’s “residual functional
capacity” (“RFC”), which is then used at the fourth and fifth
steps of the analysis.
20 C.F.R. § 404.1520(e).
RFC is an
assessment of an individual’s ability to do sustained workrelated physical and mental activities in a work setting on a
regular and continuing basis.
8p.
Social Security Ruling (SSR) 96-
The ALJ must consider even those impairments that are not
“severe.”
20 C.F.R. § 404.1545(a)(2).
In determining a claimant’s RFC, an ALJ evaluates the
claimant’s subjective symptoms (e.g., allegations of pain) using
a two-part test.
Craig v. Chater, 76 F.3d 585, 594 (4th Cir.
1996); 20 C.F.R. § 404.1529.
First, the ALJ must determine
whether objective evidence shows the existence of a medical
impairment that could reasonably be expected to produce the
actual alleged symptoms.
20 C.F.R. § 404.1529(b).
Once the
claimant makes that threshold showing, the ALJ must evaluate the
extent to which the symptoms limit the claimant's capacity to
work.
20 C.F.R. § 404.1529(c)(1).
At this second stage, the
ALJ must consider all the available evidence, including medical
history, objective medical evidence, and statements by the
claimant.
20 C.F.R. § 404.1529(c).
6
The ALJ must assess the
credibility of the claimant's statements, as symptoms can
sometimes manifest at a greater level of severity of impairment
than is shown by solely objective medical evidence.
SSR 96-7p.
To assess credibility, the ALJ should consider factors such as
the claimant’s daily activities, treatments she has received for
her symptoms, medications, and any other factors contributing to
functional limitations.
(Id.).
Here, the ALJ determined that Ms. Swoboda has the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b).
(R. 26).
The ALJ further found Ms.
Swoboda can do no climbing of ladders, ropes, or scaffolds, can
perform all other postural activities occasionally, must avoid
working overhead with both arms and avoid pushing/pulling with
the left upper extremity, must avoid concentrated exposure to
hazards, odors, dust, gases, poor ventilation, and fumes, and
can perform simple, unskilled work which is essentially
isolated, defined as only occasional supervision and contact
with coworkers, and low stress work, defined as only occasional
need to make decisions or use judgment.
(Id.).
After considering the evidence, the ALJ determined that Ms.
Swoboda’s medically determinable impairments, including her
neck, back, shoulder, extremity, and mental issues, could
reasonably be expected to cause the alleged symptoms.
(R. 28).
However, the ALJ found that Ms. Swoboda’s testimony concerning
7
the intensity, persistence, and limiting effects of the symptoms
were not credible as they were inconsistent with the functional
capacity reflected in the record.
(Id.).
In making this
determination, the ALJ relied upon treatment notes, MRIs, Xrays, and Ms. Swoboda’s own statements to her doctors, which did
not support the allegations of significant or persistent
disabling pain and stiffness.
(Id.).
The ALJ also noted that
treatment records, X-rays, and Ms. Swoboda’s statements to her
doctors indicated improvement and lack of abnormalities in Ms.
Swoboda’s shoulder.
(R. 29).
The ALJ reviewed Ms. Swoboda’s
mental health history, including treatment records, GAF scores,
and progress notes, which reflected stability and improvement,
despite instances of hospitalization for treatment.
(R. 30-31).
Finally, the ALJ relied upon opinion evidence from Ms. Swoboda’s
physicians and the findings of the state agency consultants in
reaching her final conclusions about Ms. Swoboda’s RFC.
(R. 31-
33).
At the fourth step of the sequential analysis, the ALJ must
consider whether the claimant retains the RFC necessary to
perform past relevant work.
416.920(e).
20 C.F.R. §§ 404.1520(e),
The ALJ found that Ms. Swoboda’s RFC precludes her
past work as a cashier and a cook.
(R. 33).
The ALJ therefore
concluded that Ms. Swoboda is unable to perform any past
relevant work.
(Id.).
8
Where, as here, the claimant is unable to resume her past
relevant work, the ALJ proceeds to the fifth and final step of
the sequential analysis.
This step requires consideration of
whether, in light of vocational factors such as age, education,
work experience, and RFC, the claimant is capable of other work
in the national economy.
20 C.F.R. §§ 404.1520(g), 416.920(g).
At this step, the burden of proof shifts to the agency to
establish that the claimant retains the RFC to engage in an
alternative job which exists in the national economy.
McLain v.
Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Wilson v.
Califano, 617 F.2d 1050, 1053 (4th Cir. 1980).
The agency must
prove both the claimant’s capacity to perform the job and that
the job is available.
(4th Cir. 1983).
Grant v. Schweiker, 699 F.2d 189, 191
Before the agency may conclude that the
claimant can perform alternative skilled or semi-skilled work,
it must show that she possesses skills that are transferable to
those alternative positions or that no such transferable skills
are necessary.
McLain, 715 F.2d at 869.
In this case, the ALJ found that although Ms. Swoboda is
unable to perform her past relevant work, given her age,
education, work experience, and RFC, jobs exist in significant
numbers in the national economy that she can perform.
(R. 34).
Based on the testimony of the vocational expert (VE), the ALJ
determined that Ms. Swoboda could perform the requirements of
9
representative occupations such as cafeteria attendant (85,000
jobs nationally, 400 jobs locally), general office helper
(125,000 jobs nationally, 400 jobs locally), machine tender
(65,000 jobs nationally, 150 jobs locally), and addresser
(75,000 jobs nationally, 175 jobs locally).
IV.
(Id.).
Standard of Review
The function of this Court on review is to leave the
findings of fact to the agency and to determine upon the whole
record whether the agency’s decision is supported by substantial
evidence, not to try plaintiff’s claim de novo.
Califano, 599 F.2d 597, 598 (4th Cir. 1979).
King v.
This Court must
uphold the Commissioner’s decision if it is supported by
substantial evidence and if the ALJ employed the proper legal
standards.
42 U.S.C. §§ 405(g), 1383(c)(3) (2001); Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987).
Substantial evidence “consists
of more than a scintilla of evidence but may be somewhat less
than a preponderance.”
(4th Cir. 1966).
Laws v. Celebrezze, 368 F.2d 640, 642
It is “such relevant evidence as a reasonable
mind might accept to support a conclusion.”
Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotations omitted).
In reviewing the decision, this Court will not re-weigh
conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner.
10
Craig, 76
F.3d at 589; Hayes v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990).
The Commissioner, as fact finder, is responsible for
resolving conflicts in the evidence.
F.2d 518, 520 (4th Cir. 1962).
Snyder v. Ribicoff, 307
If the Commissioner’s findings
are supported by substantial evidence, this Court is bound to
accept them.
1962).
Underwood v. Ribicoff, 298 F.2d 850 (4th Cir.
However, despite deference to the Commissioner’s
findings of fact, “a factual finding by the ALJ is not binding
if it was reached by means of an improper standard or
misapplication of the law.”
Coffman, 829 F.2d at 517.
The
Court has authority under 42 U.S.C. § 405(g) to affirm, modify,
or reverse the decision of the agency “with or without remanding
the case for a rehearing.”
Melkonyan v. Sullivan, 501 U.S. 89,
98 (1991).
V.
Discussion
Plaintiff makes three arguments on appeal.
First,
plaintiff argues that the ALJ’s mental RFC finding is erroneous
due to a failure to include all of plaintiff’s mentally related
work limitations.
Second, plaintiff argues that the ALJ’s
mental RFC finding is not supported by substantial evidence.
Third, plaintiff argues that the ALJ’s physical RFC finding is
not supported by substantial evidence.
each argument in turn.
11
The Court shall consider
A. The ALJ Did Not Err in Her Formulation of Plaintiff’s
Mental RFC.
Plaintiff argues that the ALJ failed to include all of her
mentally related work limitations in her mental RFC finding and
that the limitation to “simple, unskilled” work was legally
insufficient.
(ECF No. 16-1, 9).
More specifically, plaintiff
contends that since the ALJ failed to specify plaintiff’s
limitations with understanding and memory, sustained
concentration and persistence, social interaction, and
adaptation, the ALJ’s mental RFC finding and related questioning
of the VE were erroneous.
(Id.).
Defendant counters that the ALJ’s mental RFC determination
incorporated more limitations than just “simple, unskilled
work.”
(ECF No. 18-2, 19).
More specifically, defendant argues
that the ALJ’s determination sufficiently addressed limitations
for social interaction and adaptation.
(Id.).
Finally,
defendant asserts that a limitation to simple, unskilled work
would have been sufficient under existing precedent.
The Fourth Circuit, in Fisher v. Barnhart, noted that
“unskilled work” is a “term of art defined by regulation as
‘work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time.’”
181 F.
App’x 359, 364 (4th Cir. 2006) (citing 20 C.F.R. § 404.1568(a)).
12
The court found that the ALJ’s mental RFC finding was supported
by substantial evidence and that the use of the terms “simple”
and “unskilled work” in the mental RFC and VE questioning was
proper.
Id.
The Court further emphasized that a hypothetical
question to a VE is “unimpeachable if it ‘adequately reflect[s]’
a residual functional capacity for which the ALJ had sufficient
evidence.”
Fisher v. Barnhart, 181 Fed Appx. 359, 364 (4th Cir.
2006)(citing Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir.
2005)).
In Bentley v. Chater, the Fourth Circuit similarly held
that an ALJ properly limited a claimant with significant
difficulties in pace, concentration, or persistence to
“unskilled work of a simple, routine and repetitive nature[.]”
No. 96-1782, 1997 U.S. App. LEXIS 10559, at *3 (4th Cir. 1997).
Several cases from this Court provide similar factual situations
and further illustrate the sufficiency of the ALJ’s formulation
of the plaintiff’s mental RFC finding.
See, e.g., Bowers v.
Comm'r, Soc. Sec. Admin., CIV. SAG-11-1445, 2013 WL 150023, at
*2 (D. Md. Jan. 11, 2013) (“The finding of a moderate impairment
in concentration, persistence, and pace does not indicate that
restrictions other than a limitation to simple, unskilled work
would be necessary.”); Taylor v. Astrue, CIV.A. BPG-11-0032,
2012 WL 294532, at *2 (D. Md. Jan. 31, 2012) (finding that a
limitation to unskilled work was sufficient to accommodate mild13
to-moderate limitations stemming from a mental impairment);
Carter v. Astrue, CIV.A. CBD-10-1882, 2011 WL 3273060, at *10-11
(D. Md. July 27, 2011) (finding that the hypothetical limitation
of “routine, repetitive simple tasks with minimal interaction
with others” was adequate for a VE, when plaintiff alleged a
lack of specificity in addressing plaintiff’s various
limitations); Melgarejo v. Astrue, CIV. JKS 08-3140, 2009 WL
5030706, at *2 (D. Md. Dec. 15, 2009) (finding that a limitation
to unskilled work was sufficient where mental impairments caused
at most mild-to-moderate limitations on plaintiff’s daily living
activities, social functioning, and concentration, persistence
and pace);
Bell v. Astrue, No. 8:07–cv–00924–JKS, slip op. at
*9 (D.Md. Mar. 12, 2008) (“Even a finding of moderate impairment
in a particular broad functioning area does not automatically
indicate that a claimant's condition will significantly impact
his or her ability to perform work-related functions.”)
Here, the ALJ states, in pertinent part, that plaintiff is
limited to “simple, unskilled work which is essentially
isolated, defined as only occasional supervision and contact
with coworkers, and low stress work, defined as only occasional
need to make decisions or use judgment.”
(R. 26).
The
hypothetical question posed to the VE used consistent language.
(R. 826).
14
The Court finds that the ALJ’s mental RFC finding was not
legally insufficient.
First, in making her argument, plaintiff
primarily relies upon a passage from Ashley v. Astrue, which
reads:
…the ALJ stated, in a rather conclusory
fashion, that Ms. Ashley could perform
“simple, routine, unskilled jobs with as
little as possible interaction with the
general public, co-workers, and
supervisors.” (Tr. 19). This was not an
adequate assessment. Hilton v. Barnhart
2006 WL 4046076 (D. Kan.) citing Wiederholt
v. Barnhart, 121 Fed. Appx. 833 (10th Cir.
2005) (the relatively broad unspecified
nature of the description “simple” and
“unskilled” does not adequately incorporate
the more specific findings required). All
limits on work related activities resulting
from the mental impairment must be described
in the mental RFC assessment. SSR 85–16
Residual Functional Capacity for Mental
Impairments (1985 WL 56855, *2) (S.S.A).
Ashley v. Astrue, PWG-10-1014, 2012 WL 5568799, at *2 (D. Md.
Nov. 14, 2012).
While this passage is seemingly applicable,
plaintiff omits key language distinguishing Ashley from the case
at hand.
The sentence immediately preceding the cited passage
reads, “…the ALJ's RFC analysis did not include any of the
required detailed findings.”
Ashley, 2012 WL 5568799, at *2
(emphasis added).
Indeed, Ashley was a case in which the ALJ performed no
analysis of plaintiff’s limitations in the mental RFC
assessment.
Ashley, 2012 WL 5568799, at *2.
15
Rather, the ALJ
simply documented his findings as to plaintiff’s limitations at
the second and third step of the sequential evaluation.
Id.
The ALJ’s discussion of Ms. Ashley's mental limitations at steps
two and three “was not an RFC assessment, and did not satisfy the
ALJ's duties at step 4...‘[T]he limitations identified in the
“paragraph B” and “paragraph C” criteria are not an RFC
assessment...The mental RFC assessment used at steps 4 and
5...require[s] a more detailed assessment by itemizing various
functions...’”
Id. (quoting SSR 96–8p (1996 WL 374184, *4
(S.S.A.)).
Here, the ALJ did not commit the error found in Ashley.
Where in Ashley the ALJ failed to perform a mental RFC
assessment beyond his conclusory finding, the ALJ in the case at
hand performed a thorough assessment of plaintiff’s limitations
at the RFC phase.
The ALJ itemized plaintiff’s various
limitations, taking into account the state agency RFC assessment
and categorizing plaintiff’s limitations as to their severity.
(R. 33).
The ALJ addressed plaintiff’s limitations with regard
to concentration, persistence, or pace; social functioning;
activities of daily living; ability to understand, remember and
carry out detailed instructions; ability to maintain attention
and concentration for extended periods; ability to complete a
normal workday and work week; and ability to perform at a
consistent pace without unreasonable rest periods.
16
(Id.).
The
ALJ found these limitations to be mostly moderate, with a mild
restriction for activities of daily living.
(Id.).
The ALJ
provided an explanation whenever she accepted or rejected a
given RFC finding from the state agency.
(Id.).
The ALJ also
extensively reviewed plaintiff’s mental health record in making
her findings.
(R. 26-33).
It is apparent that the ALJ accounted for plaintiff’s
limitations in the final mental RFC.
The ALJ included
plaintiff’s limitations with social interaction, restricting her
to isolated work with “only occasional supervision and contact
with coworkers.”
(R. 26).
Further, the ALJ addressed
plaintiff’s limitations with adaptation, limiting her to “low
stress work, defined as only occasional need to make decisions
or use judgment.”
(Id.) (emphasis added).
These restrictions,
as well as the restriction to “simple, unskilled work” encompass
plaintiff’s limitations with understanding and memory and
sustained concentration and persistence.
(Id.).
Even if the ALJ had only limited plaintiff to simple,
unskilled work, this would not necessarily have been erroneous
under existing precedent.
moderate or mild.
Plaintiff’s other limitations were
(R. 33).
A limitation to unskilled work is
“sufficient to accommodate mild-to-moderate limitations stemming
from a mental impairment.”
Taylor, 2012 WL 294532, at *7.
Moreover, “[e]ven a finding of moderate impairment in a
17
particular broad functioning area does not automatically
indicate that a claimant’s condition will significantly impact
his or her ability to perform work-related functions.”
Bell v.
Astrue, No. 8:07–cv–00924–JKS, slip op. at *9 (D.Md. Mar. 12,
2008).
See also, Bowers, 2013 WL 150023, at *2 (“The finding of
a moderate impairment in concentration, persistence, and pace
does not indicate that restrictions other than a limitation to
simple, unskilled work would be necessary.”).
The ALJ performed a detailed mental RFC assessment and
formulated a finding based on this assessment.
Even if she had
provided fewer restrictions in her final mental RFC, she still
likely would not have committed reversible error.
Accordingly,
the Court finds the ALJ’s mental RFC legally sufficient.
B. The ALJ’s Mental RFC Finding Was Supported by Substantial
Evidence
Plaintiff argues that the ALJ’s mental RFC determination is
not supported by substantial evidence because the ALJ failed to
address plaintiff’s history of sexual abuse.
(ECF No. 16-1, 9).
Therefore, plaintiff contends, the ALJ’s summaries of her mental
health reports “do not reflect the true content of the reports.”
(Id.).
Defendant counters that the ALJ’s duty is to determine the
functional implications of a claimant’s impairments and that
plaintiff fails to show how her history of sexual abuse “affects
18
her ability to meet the mental requirements of work or shows
that she cannot work.”
(ECF No. 18-2, 20).
Defendant also
contends that the ALJ considered the impact of plaintiff’s
sexual abuse in considering her mental health impairments and
her functional limitations.
(Id.)
In determining a claimant’s mental RFC, it is the
responsibility of the ALJ “to identify the pertinent evidence
from medical and nonmedical reports and to make findings as to
the individual's ability to perform work-related activities
(RFC).”
SSR 85-16.
Medical evidence is “critical to
determinations of disability” because “[i]t provides medical
history, test results, examination findings, and observations,
as well as conclusions of medical sources trained and
knowledgeable in the diagnosis and treatment of diseases and
disorders.”
Id.
Here, the ALJ extensively reviewed the mental health
evidence of record in making her RFC determination.
She began
by summarizing plaintiff’s testimony at the disability hearing.
(R. 27-28).
She then compared this testimony to plaintiff’s
mental health history, examining treatment notes from
plaintiff’s therapist Marge Boone and psychiatrist Dr. Martha
Clevenger, M.D. at Marshy Hope Family Services from the period
of December 2008 through February 2010.
(R. 30).
The ALJ next
considered plaintiff’s consultative mental examination with Dr.
19
Alan Peck, M.D.
(R. 30-31).
She subsequently attributed
limited weight to Dr. Peck’s opinion for its inconsistency with
his own mental status examination and the record as a whole.
(R. 32).
The ALJ then discussed plaintiff’s hospitalization in
March 2010 for suicidal ideation and plan, and followed with a
chronological review of plaintiff’s post-hospitalization mental
health.
(R. 31).
She based this review on 2010 treatment
records from the same therapist and psychiatrist plaintiff had
been seeing at Marshy Hope Family services.
(R. 31).
The ALJ
also discussed the opinions of state agency medical consultants
regarding plaintiff’s mental health, accepting and rejecting
specific findings in making her determination.
(R. 33).
The Court finds that the ALJ’s mental RFC finding was
supported by substantial evidence.
The ALJ’s failure to
explicitly discuss plaintiff’s sexual abuse does not undermine
the adequacy of the evidence here.
An ALJ’s focus is the
claimant’s “ability to perform work-related activities” and the
“effects of impairment.”
SSR 85-16 (emphasis added).
In this
case, the ALJ thoroughly examined plaintiff’s mental impairments
in relation to plaintiff’s functional capacity.
Indeed, the
physicians’ reports the ALJ relied upon largely focused on the
status of plaintiff’s mental impairments, their impact on
plaintiff’s life, and plaintiff’s treatment progress.
618; 773-783).
The underlying events that caused the
20
(R. 598-
impairments, while relevant, do not themselves constitute mental
impairments.
Nor do they alone reveal how plaintiff’s mental
ability to work has been affected.
Moreover, the medical
reports the ALJ relied upon encompassed these events in their
focus on plaintiff’s resulting mental impairments.
Accordingly,
the Court finds that the ALJ’s mental RFC was supported by
substantial evidence.
C. The ALJ’s Physical RFC Finding Was Supported by
Substantial Evidence
Plaintiff argues that the ALJ’s physical RFC finding is not
supported by substantial evidence because the ALJ’s finding on
remand differs from her initial finding.
(ECF No. 16-1, 10).
Plaintiff argues it was unreasonable to conclude that, having
previously been limited to sedentary work, she could perform at
the higher exertional level of light work after undergoing
additional shoulder surgery with residual pain and limitations.
(Id. at 11).
Plaintiff contends that the ALJ at step two
acknowledged plaintiff’s condition had worsened since the prior
decision, thus contradicting the RFC finding that plaintiff
could perform at a higher level of work.
(Id. at 10).
Finally,
plaintiff notes that, as of her fiftieth birthday (which
occurred while this matter was pending before the Appeals
Council), a limitation to sedentary work would have resulted in
21
a favorable decision under GRID Rule 201.12.20 C.F.R Part 404,
Subpart P, Appendix 2, Table No. 1.
(Id. at 3).
Defendant counters that the physical RFC was supported by
substantial evidence from the medical record.
22).
(ECF No. 18-2,
Defendant also notes that the substantial evidence
standard permits the possibility of drawing different
conclusions from the evidence.
(Id. at 25).
Further, defendant
argues that the ALJ’s step two finding does not contradict the
RFC finding because of the different criteria used at each step.
(Id. at 26).
Finally, defendant argues that a limitation to
sedentary work still would not have resulted in a finding of
disability because plaintiff was only 49 years old at the time
of the ALJ’s decision.
(Id. at 21).
As noted above, in reviewing the administrative decision,
this Court will not re-weigh conflicting evidence, make
credibility determinations, or substitute its judgment for that
of the Commissioner.
Craig, 76 F.3d at 589; Hayes v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990).
The Commissioner, as fact
finder, is responsible for resolving conflicts in the evidence.
Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
If the
Commissioner’s findings are supported by substantial evidence,
this Court is bound to accept them.
F.2d 850 (4th Cir. 1962).
22
Underwood v. Ribicoff, 298
The parties agree that substantial evidence is “such
relevant evidence as a reasonable mind might accept to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal quotations omitted).
The issue here is whether the
ALJ’s decision met this standard, i.e., whether the ALJ’s
findings based on the evidence were ones that a “reasonable mind
might accept,” given her determination in a previous hearing.
The Court finds that the ALJ’s physical RFC finding is
supported by substantial evidence.
Plaintiff argues that the
ALJ could not reasonably find that plaintiff could perform light
work after previously limiting her to sedentary work.
argument is unavailing.
This
As a preliminary issue, it is important
to note that a judgment vacated on appeal generally has no
preclusive effect.
See, e.g, S-1 By and Through P-1 v. State
Bd. of Educ., 6 F.3d 160, 169 (4th Cir.1993) (Wilkinson, J.,
dissenting), vacated, 21 F.3d 49 (4th Cir.), cert. denied, 513
U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994); Baltimore
Luggage Co. v. Samsonite Corp., 727 F. Supp. 202, 208 (D. Md.
1989); Zeneca Ltd. v. Novopharm Ltd., 919 F. Supp. 193, 196 (D.
Md. 1996); See also United States v. Munsingwear, 340 U.S. 36,
40, 71 S.Ct. 104, 107, 95 L.Ed. 36 (1950).
Here, the ALJ’s
previous decision was vacated, and the claim was remanded for a
de novo hearing.
(R. 77).
Therefore, the ALJ was not bound by
23
her previous decision nor precluded from making different
findings on remand.
Moreover, the substantial evidence standard provides for
“the possibility of drawing two inconsistent conclusions from
the evidence,” and this “does not prevent an administrative
agency's finding from being supported by substantial evidence.”
Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S. Ct. 1018,
1026, 16 L. Ed. 2d 131 (1966) (citing National Labor Relations
Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62
S.Ct. 960, 961, 86 L.Ed. 1305); See Also Lane v. Union Carbide
Corp., 105 F.3d 166 (4th Cir. 1997) (In a black lung benefits
case subject to substantial evidence review, a prior decision
awarding benefits to a miner, which had been vacated and
remanded by the Benefits Review Board, did not preclude ALJ from
reconsidering relevant evidence and denying benefits on remand).
The ALJ’s finding was not inherently unreasonable by virtue of
being different from the vacated finding and did not require
additional justification.
Even so, the ALJ’s finding on remand was supported by
substantial evidence.
First, the ALJ summarized plaintiff’s
testimony as to plaintiff’s physical impairments at the remand
hearing.
(R. 26-27).
Next, the ALJ compared this testimony
with the medical record and concluded the record did “not
disclose significant or persistent findings consistent with the
24
claimant’s allegations of disabling neck, back, and upper
extremity pain and stiffness.”
(R. 28).
The ALJ ultimately
determined that plaintiff could perform light work.
(R. 26).
The ALJ first noted a lack of significant neurological
abnormalities reported in the record.
(Id.).
She then cited a
November 2007 report from the Maryland Spine Center showing pain
on palpation in the lumbar spine, but no muscle spasm.
(Id.).
The ALJ noted that plaintiff denied any particular weakness and
reported having significant relief from lumbar epidural steroid
injections.
(Id.).
The ALJ also found the report reflected
plaintiff’s motor, sensation, and reflexes were normal.
(Id.).
Neural tension sign was positive on the right but negative on
the left.
(Id.).
An MRI reflected hemangioma and disc
dessication, but no disc herniation.
(Id.).
The ALJ found no further mention of lower back complaints
until plaintiff was involved in a motor vehicle accident in
February 2009.
An emergency room X-ray of the lumbar spine from
that month showed “tiny scattered marginal osteophytes in the
lower thoracic spine and early sclerotic degenerative changes of
the L5-S1 facet joints.”
(R. 28).
There was no evidence of
spondylolysis or spondylolisthesis.
that the disc spaces were preserved.
(Id.).
(Id.).
The ALJ also found
Plaintiff
underwent physical therapy for her back from March to May 2009
and was discharged for a home exercise program, after which
25
there was no more evidence of lower back treatment or reported
lower back symptoms.
(Id.).
With regard to plaintiff’s left shoulder pain, the ALJ
cited the 2007 Maryland Spine Center report noting resolving
cervical radiculopathy that was expected to improve.
(R. 28).
Plaintiff did not undergo treatment for her shoulder until
November 2008, when Dr. Ward, plaintiff’s orthopedic surgeon,
recommended and performed arthroscopic decompression.
(R. 29).
Plaintiff complained of increasing pain and limitation after the
surgery.
(Id.).
Physical examination revealed limited range of
motion but no instability.
(Id.).
Subsequently, plaintiff
continued physical therapy at the recommendation of Dr. Ward and
told him in January 2009 that her pain and limitation had
lessened.
(Id.).
Her range of motion and abduction had
improved since her previous examination.
(Id.).
Further, the
ALJ found, physical therapy notes from Cambridge Physical
Therapy and Sports Care document improvement in range of motion,
mobility, and strength.
(Id.).
Emergency room X-rays from
February 2009 and March 2010 showed no abnormalities, and
physical examination of the shoulder was normal.
(Id.).
The
ALJ cited a Dr. Ward report from June 2009 stating that
plaintiff’s left side strength was 95% of her opposite side, and
that plaintiff only complained of dull pain with less stiffness,
despite no longer participating in physical therapy.
26
(Id.).
The ALJ next turned to the October 2009 consultative
musculoskeletal examination of Dr. Mohammed Zamani, M.D.
Physical examination revealed restricted range of motion in the
neck and back, but full ranges of motion in the shoulders,
elbows, wrists, fingers, hips, knees, feet, and ankles.
29).
(R.
The ALJ noted slight reduction in straight leg-raising to
80 degrees.
(Id.).
The ALJ also found that plaintiff ambulated
with a normal gait, that plaintiff could walk on her tiptoe and
heel, and that plaintiff could squat three-quarters down and get
up, although with back pain.
(Id.).
Muscle strength in the
upper and lower extremities was full, and there was no evidence
of rotator cuff tear, instability, or impingement of the
shoulder.
(Id.).
The ALJ noted that Dr. Zamani opined that
plaintiff could perform light work.
(R. 32).
Finally, the ALJ reviewed records from Choptank Community
Health System concerning plaintiff’s allegations of leg pain.
The ALJ noted an “unremarkable” physical examination.
(R. 30).
While plaintiff was diagnosed with causalgia of the lower limb
and leg edema due to inactivity, there was no further mention of
these leg issues in the medical records or at the hearing.
(Id.).
The ALJ concluded with a detailed discussion of the
weight she gave the physicians’ and medical consultants’
opinions, as well as the weight she gave the state agency RFC
assessments.
(R. 31-33).
27
There is clearly substantial evidence to support the ALJ’s
finding.
The above discussion is only a summary of the evidence
the ALJ reviewed.
greater detail.
The ALJ’s actual analysis contains even
Plaintiff’s argument ignores the possibility
that the ALJ could find overall improvement in plaintiff’s RFC
or that the ALJ could reconsider plaintiff’s credibility.
Indeed, a full two years separated the initial hearing from the
remand hearing (R. 20, 44), and it was certainly not
unreasonable that new evidence be taken into consideration.
Plaintiff’s contention that the ALJ’s step two finding
contradicts the RFC finding is also unavailing.
At step two,
the ALJ found that, in addition to her older impairments,
plaintiff’s left shoulder impairment was severe.
(R. 23).
However, these two steps do not use the same standard or method
of analysis.
Step two of the sequential evaluation is a
threshold question with a de minimis severity requirement.
See
Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96
L.Ed.2d 119 (1987); SSR 88–3c, 1988 WL 236022.
A finding that
an impairment is severe at step two does not compel a finding of
a certain RFC limitation.
See, e.g., Felton-Miller v. Astrue,
459 F. App'x 226, 230 (4th Cir. 2011) (“[T]he ALJ's finding that
Felton–Miller's degenerative disc disorder was a severe
impairment at step two of the sequential evaluation does not
contradict the ALJ's conclusion that the disorder's impact on
28
her functioning was mild.”).
Moreover, as discussed, the ALJ
reheard the case de novo two years after the first hearing and
reweighed the entire record, including new evidence.
The ALJ’s
findings are not necessarily inconsistent as plaintiff contends.
Finally, plaintiff’s assertion that a favorable decision
would necessarily have been rendered had she been limited to
sedentary work is unpersuasive.
As noted, the ALJ was under no
obligation to find plaintiff limited to sedentary work, and it
was not unreasonable that she did not.
Even if the ALJ had
limited plaintiff to sedentary work, however, the GRID Rule
plaintiff cites is inapplicable.
GRID Rule 201.12.20 C.F.R Part
404, Subpart P, Appendix 2, Table No. 1.
A requisite factor in
this rule is that a claimant be closely approaching advanced age
(age 50-54).
Id.
Plaintiff was neither fifty years old at the
time of the initial hearing nor at the time of the remand
hearing.3
VI.
Hence, plaintiff’s claim is unavailing.
Conclusion
For the reasons set forth above, the Court finds that the
the ALJ’s mental RFC finding is legally sufficient and supported
by substantial evidence.
The Court also finds that the ALJ’s
physical RFC finding is supported by substantial evidence.
3
Plaintiff was born on January 17, 1962. (R. 166). She attained the
critical age of fifty for disability purposes on January 16, 2012. (Id.).
The two hearings took place on January 9, 2009 and March 11, 2011. (R. 17,
20).
29
Accordingly, the Court DENIES plaintiff’s motion for summary
judgment (ECF No. 16), GRANTS defendant’s motion for summary
judgment (ECF No. 18-2), and AFFIRMS the final decision of the
Commissioner.
Date: 09/11/13_
/s/
Susan K. Gauvey
United States Magistrate Judge
30
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