Fountain v. Astrue
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 1/10/2013. (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
WILLIAM R. FOUNTAIN
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
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Civil Action No. CBD-11-1884
MEMORANDUM OPINION
William R. Fountain, (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”), denying Plaintiff’s claim for a period of Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Before the Court are
Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 20) and
Commissioner’s Motion for Summary Judgment (“Commissioner’s Motion”) (ECF No. 26).
The Court has reviewed the motions, related memoranda, and the applicable law. No hearing is
deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court
hereby DENIES Plaintiff’s Motion, and GRANTS Commissioner’s Motion.
PROCEDURAL BACKGROUND
Plaintiff filed for disability benefits on August 10, 2009. R. 124. The Commissioner
denied Plaintiff’s claim on first review on December 23, 2009, R. 59-61, and on reconsideration
on June 17, 2010, R. 66-67. A hearing was held before an Administrative Law Judge (“ALJ”) on
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February 10, 2011. R. 25-56. On March 5, 2011, the ALJ issued a written decision concluding
that Plaintiff was not disabled under the Social Security Act. R. 12-21.
The ALJ evaluated Plaintiff’s claim using the five-step sequential process set forth in 20
C.F.R. § 404.1520 (2010), and further explained below. At the first step, the ALJ determined
that Plaintiff has not engaged in substantial gainful activity since July 1, 2008, the alleged onset
date. R. 14. At the second step, the ALJ determined that Plaintiff has two severe impairments,
hepatitis C and arthritis. Id. The ALJ did not discuss Plaintiff’s cirrhosis as a separate condition
from his hepatitis C, and also determined that Plaintiff’s pinched nerve does not qualify as a
severe impairment. Id. At the third step, the ALJ determined that Plaintiff “does not have an
impairment or combination of impairments that meets or medically equals” a listing. R. 15. The
ALJ stated that she considered the relevant listings although Plaintiff did not contend that he met
or equaled a listing. Id. At the fourth step, the ALJ determined that Plaintiff retained the
residual functional capacity to perform light work, except that he is limited to simple, unskilled
work with occasional postural limitations and no climbing of ropes, ladders, or scaffolds. R. 1520. The ALJ found that Plaintiff is unable to perform any of his past relevant work as a
carpenter or construction laborer. R. 20. At the fifth step, the ALJ determined that considering
Plaintiff’s residual functional capacity, age, education, and work experience, “there are jobs that
exist in significant numbers in the national economy that the claimant can perform,” including
inspector, packer, and mail clerk. R. 20-21. As a result, the ALJ concluded that Plaintiff has not
been under a disability, as defined in the Social Security Act, from the alleged onset date of July
1, 2008 through the date of the decision. R. 21.
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Plaintiff subsequently requested review of the ALJ’s decision by the Appeals Council. R.
7-8. The Appeals Council denied Plaintiff’s request on June 16, 2011, making the ALJ’s
decision final and appealable. R. 1-4.
STANDARD OF REVIEW
On appeal, the Court has the power to affirm, modify, or reverse the decision of the ALJ
“with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (2006). The Court
must affirm the ALJ’s decision if it is supported by substantial evidence and the ALJ applied the
correct law. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.”); see also Russell v. Comm'r of
Soc. Sec., 440 F. App'x 163, 164 (4th Cir. 2011); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Substantial evidence is “more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) (internal quotation marks omitted);
see also Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks omitted) (“It consists of more than a
mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence
to justify a refusal to direct a verdict were the case before a jury, then there is substantial
evidence.”).
The Court does not review the evidence presented below de novo, nor does the Court
“determine the weight of the evidence” or “substitute its judgment for that of the Secretary if his
decision is supported by substantial evidence.” Hays, 907 F.2d at 1456; Schweiker, 795 F.2d at
345. The ALJ, not the Court, has the responsibility to make findings of fact and resolve
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evidentiary conflicts. Hays, 907 F.2d at 1456. If the ALJ’s factual finding, however, “was
reached by means of an improper standard or misapplication of the law,” then that finding is not
binding on the Court. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
A person is deemed legally disabled if she is unable “to do 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.” 20 C.F.R. § 404.1505(a) (2011). The Code of Federal Regulations
outlines a five-step process that the Commissioner must follow to determine if a claimant meets
this definition:
1) Determine whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If she is doing such
activity, she is not disabled.
2) If she is not doing such activity, determine whether she has a
“severe medically determinable physical or mental impairment
that meets the duration requirement in § 416.909, or a
combination of impairments that is severe and meets the
duration requirement.” 20 C.F.R. § 404.1520(a)(4)(ii). If she
does not have such impairment or combination of impairments,
she is not disabled.
3) If she does have such impairment or combination of
impairments, determine whether she has an impairment that
“meets or equals one of [the C.F.R.’s] listings in appendix 1 of
this subpart and meets the duration requirement.” 20 C.F.R. §
404.1520(a)(4)(iii). If she does have such impairment, she is
disabled.
4) If she does not, considering her residual functional capacity,
determine whether she can do her “past relevant work.” 20
C.F.R. § 404.1520(a)(4)(iv). If she can do such work, she is
not disabled.
5) If she cannot do such work, considering her residual functional
capacity, age, education, and work experience, determine
whether she can perform other work. 20 C.F.R. §
404.1520(a)(4)(v). If she can perform other work, she is not
disabled, and if she cannot, she is disabled.
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Plaintiff has the burden to prove that she is disabled at steps one through four, and
Defendant has the burden to prove that Plaintiff is not disabled at step five. Pass v. Chater, 65
F.3d 1200, 1203 (4th Cir. 1995) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)).
ANALYSIS
On appeal, Plaintiff argues that the Court should reverse the Commissioner’s decision or
remand the case for additional consideration and evaluation of Plaintiff’s condition. Pl.’s Br. 6.
Plaintiff makes only one argument, which is that the ALJ did not address whether his cirrhosis is
a severe impairment at step two of the disability determination sequential analysis. Id. at 5. The
Court finds that even if this argument is meritorious, it is not an adequate basis for remand
because Plaintiff has not suffered any prejudice from the ALJ’s omission. See Ellis v. Astrue,
No. 10-1020M, 2011 WL 5877215, at *2 (D. Md. Nov. 22, 2011). The ALJ sufficiently
considered Plaintiff’s cirrhosis when assessing the effects of his liver ailments at the subsequent
steps of the sequential analysis. Therefore, the Court grants Commissioner’s Motion.
An ALJ’s failure to characterize a claimant’s condition as severe at step two of the
disability determination process does not always warrant remand, even when erroneous. Step
two is a threshold determination of whether claimants have a severe impairment (or combination
of impairments) that meets the twelve-month duration requirement and significantly limits their
ability to do basic work activities. 20 C.F.R. §§ 404.1520-404.1523 (2011). If the
Commissioner finds no severe impairments, the claimant is not disabled and the analysis does
not proceed to the other steps. 20 C.F.R. § 404.1520. However, if a claimant does have a severe
impairment or combination of impairments, the ALJ must consider the effects of both the severe
and non-severe impairments at the subsequent steps of the process, including the determination
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of residual functional capacity. See 20 C.F.R. § 404.1523; Social Security Ruling (“SSR”) 968p, 1996 WL 374184, at * 5 (1996); SSR 86-8, 1986 WL 68636, at *5 (1986).1
When an ALJ erroneously finds an impairment to be non-severe at step two, there is no
prejudice to the claimant if the ALJ sufficiently considers the effects of that impairment at
subsequent steps. In Ellis v. Astrue, the ALJ found that the claimant’s hepatitis C was not a
severe impairment. No. 10-1020M, 2011 WL 5877215, at *2 (D. Md. Nov. 22, 2011).
Nonetheless, the ALJ continued to assess whether the claimant met the relevant listing, and
whether his hepatitis affected his residual functional capacity. Id. Therefore, this Court found
that the claimant was not prejudiced and declined to remand the case. Id. Similarly, the United
States District Court for the District of Columbia has held that an alleged error at step two does
not require remand where there is no indication that the allegedly severe impairments would
have met a listing, and where the ALJ properly considered them in evaluating the plaintiff's
residual functional capacity (“RFC”). Hicks v. Astrue, 718 F. Supp. 2d 1, 12-14 (D.D.C. 2010).
Other circuits follow this approach as well. See, e.g., Brescia v. Astrue, 287 F. App'x 626, 629
(10th Cir. 2008); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); Maziarz v. Sec’y of Health
and Human Servs., 837 F.2d 240, 244 (6th Cir.1987).
An error at step two may require reversal and remand where the ALJ improperly
discounts or ignores evidence of the allegedly severe impairment at the other steps of the
sequential analysis. For this reason, this Court has stated that “[e]rroneous findings at step two
usually infect the entire decision, since all of a claimant's impairments must be considered in
combination at steps three, four and five.” Schoofield v. Barnhart, 220 F. Supp. 2d 512, 518 (D.
Md. 2002). However, in that case the ALJ had failed to credit uncontroverted medical evidence
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Although not required by statute, the Commissioner publishes the Social Security Rulings which are
binding on all components of the Social Security Administration. They represent precedent, final opinions, and
statements of policy which the Commissioner has adopted. 20 C.F.R. § 402.35(b)(1) (2011).
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of the plaintiff’s irritable bowel syndrome at step two, and then did not consider it in
combination with his other severe impairments at the remaining steps. Id. at 518, 521. Plaintiff
cites this Court’s decision in Albert v. Astrue, No. 10-2071, 2011 WL 3417109 (D. Md. July 29,
2011). There, the ALJ failed to discuss the claimant’s alleged foot impairment at step two or at
any subsequent steps. Id. at *2; see also Boston v. Barnhart, 332 F. Supp. 2d 879, 885 (D. Md.
2004) (remanding where the ALJ had failed to mention a plaintiff’s obesity at step two or at any
other point in the sequential analysis). Therefore, the court must determine whether the ALJ
sufficiently considered the allegedly severe impairment, or whether an erroneous conclusion
“infected” the other steps.
Here, Plaintiff alleges that the ALJ erred by failing to find that his cirrhosis was a severe
impairment at step two. Pl.’s Br. 5. The ALJ did not mention cirrhosis at step two but did find
that Plaintiff’s hepatitis C was a severe impairment. R. 14. Cirrhosis is a chronic liver disease
characterized by inflammation and degeneration. Stedman’s Medical Dictionary 384 (28th ed.
2006). Hepatitis C is an inflammation of the liver due to viral infection. Id. at 875-76. At step
three, the ALJ did not explain her findings in detail because Plaintiff did not contend that he met
a listing. R. 15. Nonetheless, the ALJ stated that she “carefully considered” the relevant listings.
Id. At step five, the ALJ discussed Plaintiff’s cirrhosis on two occasions: while assessing the
report of consultative examiner Dr. Christian Jensen and while reviewing the ultrasound
performed by treating physician Dr. Volkan Taskin. R. 16. The ALJ thoroughly discussed
Plaintiff’s overall liver disease and assessed the severity of symptoms such as jaundice, ascites,
tenderness, enlargement, and infections. R. 18. The ALJ provided detailed reasons for rejecting
some of Plaintiff’s assertions that his hepatitis interferes with his ability to work. R. 15-18.
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Plaintiff suffered no prejudice at step three from the ALJ’s failure to identify cirrhosis as
a severe impairment. Plaintiff did not argue below that he meets a listing for cirrhosis and does
not so argue here. R. 15; Pl.’s Br. 5-6. Nonetheless, Plaintiff could not have been prejudiced at
step three because the same listing applies to both hepatitis C and cirrhosis. Listing 5.05 is met
when a claimant has “chronic liver disease” in conjunction with other specific symptomology;
chronic liver disease includes both hepatitis and cirrhosis. 20 C.F.R. Part 404 Subpart P, App. 1
§§ 5.00(D)(1)-(2), 5.05 (2011). Therefore, regardless of whether the ALJ characterized
Plaintiff’s severe impairments as including both cirrhosis and hepatitis C or only the latter, the
same symptomology would be required to meet the listing. Id.
The ALJ adequately considered Plaintiff’s cirrhosis and overall liver disease in assessing
his residual functional capacity at step five. The ALJ extensively evaluated the effects of
Plaintiff’s hepatitis and liver disease and made several references to his cirrhosis specifically. R.
15-18. Therefore, this case is analogous to Ellis and Hicks, where the ALJs properly considered
the claimants’ severe and non-severe impairments in formulating their RFC. This case is
distinguishable from Schoofield, where the ALJ had discounted uncontradicted medical evidence
of irritable bowel syndrome and failed to consider it at subsequent steps. 220 F. Supp. 2d at 518,
521. Here, the ALJ did not discount the evidence of Plaintiff’s cirrhosis, but rather accepted it
and considered it is as part of his overall liver condition and hepatitis. This case is also
distinguishable from Albert and Boston, where the ALJs failed to discuss the allegedly severe
impairments at all at subsequent steps. Finally, Plaintiff has not provided any evidence to
suggest that his cirrhosis causes him functional and work-related limitations distinct from those
caused by his hepatitis C. Given the ALJ’s thorough assessment of the limitations caused by
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Plaintiff’s chronic liver disease, her failure to identify cirrhosis as a separate severe impairment
from hepatitis C did not prejudice Plaintiff and does not warrant remand.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff's Motion and GRANTS
Commissioner's Motion.
January 10, 2013
/s/
Charles B. Day
United States Magistrate Judge
CBD/ISA
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