Faber v. Astrue
Filing
20
LETTER OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 6/12/13. (apls, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-7780
Fax (410) 962-1812
June 12, 2013
LETTER TO COUNSEL:
RE:
John Faber v. Commissioner, Social Security Administration;
Civil No. SAG-12-1669
Dear Counsel:
On June 6, 2012, the Plaintiff, John Faber, petitioned this Court to review the Social
Security Administration’s final decision to deny his claim for Disability Insurance Benefits.
(ECF No. 1). I have considered the parties’ cross-motions for summary judgment, and Mr.
Faber’s response to the Commissioner’s motion. (ECF Nos. 15, 18, 19). I find that no hearing is
necessary. Local Rule 105.6 (D. Md. 2011). This Court must uphold the decision of the agency
if it is supported by substantial evidence and if the agency employed proper legal standards. 42
U.S.C. §§ 405(g), 1383(c)(3); see Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that
standard, I will grant the Commissioner’s motion and deny Plaintiff’s motion. This letter
explains my rationale.
Mr. Faber filed his claim on November 29, 2006. (Tr. 85-94). He alleged that he became
disabled on November 9, 2005. (Tr. 85). His claim was denied initially on February 28, 2007,
and on reconsideration on July 5, 2007. (Tr. 58-61, 65-66). A hearing was held on December
18, 2008 before an Administrative Law Judge (“ALJ”). (Tr. 18-47). Following the hearing,
January 22, 2009, the ALJ determined that Mr. Faber was not disabled. (Tr. 6-17). After the
Appeals Council denied Mr. Faber’s request for review (Tr. 1-4), Judge Grimm granted the
Commissioner’s Consent Motion to Remand for further administrative proceedings. (Tr. 65859). The Appeals Council vacated the ALJ’s decision, and remanded Mr. Faber’s claim to the
ALJ. (Tr. 660-63). On remand, the ALJ held another hearing on July 28, 2011. (Tr. 572-99).
On November 9, 2011, the ALJ again determined that Mr. Faber had not been disabled at any
time since November 9, 2005 (Tr. 554-66). The Appeals Council denied Mr. Faber’s request for
review (Tr. 540-43), so the ALJ’s 2011 decision constitutes the final, reviewable decision of the
agency.
The ALJ found that Mr. Faber suffered from several severe impairments, including reflex
sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS), obesity, and depression.
(Tr. 557). Despite these impairments, the ALJ determined that Mr. Faber retained the residual
functional capacity (“RFC”) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) except he is limited
to simple routine work and should avoid hazards.
John Faber v. Commissioner, Social Security Administration
Civil No. SAG-12-1669
June 12, 2013
Page 2
(Tr. 558). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that Mr. Faber can perform jobs that exist in significant numbers in the national economy, and
that he is therefore not disabled. (Tr. 564-65).
Mr. Faber presents four arguments on appeal. First, he contends that the ALJ failed to
identify and analyze Listing 1.04. Second, he argues that the ALJ failed to adequately evaluate
his obesity. Third, Mr. Faber argues that the ALJ improperly assigned little weight to the
opinion of Dr. Yadhati. Lastly, he contends that the ALJ afforded too much weight to the
opinions of Dr. Jensen and Dr. Hakkarinen. Each argument lacks merit.
Mr. Faber first argues that the ALJ failed to identify and analyze Listing 1.04(A). In fact,
however, the ALJ specifically compared Mr. Faber’s diagnosis and condition to “the criteria of
Section 1.00, applicable to musculoskeletal impairments.” (Tr. 557). Further, to meet Listing
1.04(A), a claimant must provide evidence of (1) nerve root compression characterized by neuroanatomic distribution of pain, (2) limitation of movement of the spine, (3) motor loss
accompanied by sensory or reflex loss, and if there is involvement of the lower back, (4) positive
straight-leg raising. “For a claimant to show that his impairment matches a listing, it must meet
all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in
original). The claimant bears the burden of demonstrating that their impairment meets or equals
a listed impairment. See Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986). Mr. Faber
has not cited, nor can this Court find, any evidence that his back impairment has caused motor
loss.1 Similarly, Mr. Faber only highlights Dr. Peimer’s report to support his argument that he
has demonstrated positive straight-leg raising. Pl. Mot. 14. However, Dr. Peimer stated that
“[s]traight leg raising is probably negative.” (Tr. 867). Dr. Jensen’s report, which was given
great weight by the ALJ, found that “straight leg raising was painless to 90 degrees bilaterally in
the seated position.” (Tr. 387). This evidence was discussed by the ALJ. (Tr. 560, 561). In
addition, Mr. Faber cites Dr. Yadhati’s report, finding that Mr. Faber cannot twist, stoop, bend,
or crouch, to support his argument that he has a limited range of motion in his spine. Pl. Mot.
14. As explained more thoroughly below, the ALJ properly assigned little weight to Dr.
Yadhati’s opinions. Also, Dr. Peimer found that Mr. Faber had a “fairly good range of motion”
in his lower back (Tr. 867), and as the ALJ consistently notes, Mr. Faber is able to complete
range of motion exercises. See, e.g., Tr. 563, 564. Mr. Faber has not cited, nor can this Court
find, any additional evidence to support his argument that he is limited in movement of his spine.
Accordingly, even if the ALJ did err by failing to specifically cite Listing 1.04 in his opinion, the
error was harmless.
Mr. Faber also contends that the ALJ failed to adequately evaluate his obesity. This
1
Moreover, the ALJ's initial 2009 opinion explained that he had considered Mr. Faber’s RDS/CRPS
under Sections 1.00, and noted that Mr. Faber failed to show “the requisite level of disorganization of
motor function necessary to meet these listings.” (Tr. 12). Although not reiterated in the 2011 opinion,
that statement demonstrates that the ALJ appropriately analyzed Listing 1.04(A). In fact, Mr. Faber
essentially concedes that the Listing “criteria may not have been precisely met.” Pl. Mot. 6. He cites no
evidence from any physician to suggest or establish that his condition medically equals the Listing in
severity.
John Faber v. Commissioner, Social Security Administration
Civil No. SAG-12-1669
June 12, 2013
Page 3
argument is erroneous because the ALJ relied on Dr. Jensen’s report in creating Mr. Faber’s RFC
(Tr. 563), and Dr. Jensen was clearly aware of Mr. Faber’s obesity upon physical examination.
(Tr. 385, 386). The ALJ also relied on the Dr. Hakkarinen’s report (Tr. 563), which limited Mr.
Faber’s RFC because of his obesity. (Tr. 393). By adopting those reports, the ALJ properly
considered Mr. Faber’s obesity. See Hynson v. Astrue, Civil Action No. TMD-10-175M, 2011
WL 2175035, at *4 (D. Md. June 2, 2011) (holding that the ALJ sufficiently considered the
claimant’s obesity by adopting a physician’s report that accounted for the claimant’s obesity). In
addition, although Mr. Faber argues that his obesity should have been considered in conjunction
with his other impairments, he does not argue that his obesity causes any specific limitations
beyond those found by the ALJ. Therefore, Mr. Faber’s argument also fails because the he has
not met his burden of demonstrating that his obesity further affects his ability to engage in workrelated activity. See George v. Astrue, Civil Action No. TMD-10-2165, 2013 WL 877120, at *4
(D. Md. Mar. 7, 2013).
Third, Mr. Faber argues that the ALJ improperly assigned little weight to the opinion of
Dr. Yadhati, his treating pain management doctor. A treating physician’s opinion is not entitled
to controlling weight if it is inconsistent with the other substantial evidence. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Dr. Yadhati opined that Mr. Faber could only work four hours a
day for four days a week. (Tr. 536). The ALJ explained that he gave little weight to Dr.
Yadhati’s opinions because they were not consistent with the relevant medical record, and were
inconsistent with Dr. Yadhati’s own treatment notes. (Tr. 563). The ALJ reasoned that Dr.
Yadhati’s notes indicate that Mr. Faber’s pain is stable with conservative treatment, he continues
to swim and exercise, and his activities of daily living have improved. Id. Moreover, the ALJ
relied on Dr. Jensen’s report, which found that Mr. Faber (1) was able to move around the
examination room without difficulty, (2) appeared to sit comfortably throughout the
examination, and (3) manifested a full range of motion in all four extremities. (Tr. 560). Dr.
Jensen further found that Mr. Faber’s left foot impairment would limit his ability to stand for
prolonged periods and to walk significant distances, but noted that standing and walking short
distances frequently would not be impossible. (Tr. 388). Accordingly, the ALJ’s assignment of
little weight to Dr. Yadhati’s opinions is supported by substantial evidence.
In a similar vein, Mr. Faber contends that the ALJ erred by assigning great weight to Drs.
Jensen and Hakkarinen. Specifically, Mr. Faber argues that the ALJ failed to cite any medical
evidence supporting the opinions of those doctors. Pl. Mot. 27. However, the ALJ fully
explained Dr. Jensen’s findings, as discussed more thoroughly above, and highlighted notes
written by Dr. Yadhati that were consistent with Dr. Jensen’s findings. (Tr. 560-61, 562, 563).
Dr. Hakkarinen expressly noted his reliance on Dr. Jensen’s opinions. (Tr. 393). Therefore, the
ALJ did not err by assigning great weight to Drs. Jensen and Hakkarinen.
For the reasons set forth herein, Plaintiff’s motion for summary judgment (ECF No. 15)
will be DENIED and the Commissioner’s motion for summary judgment (ECF No. 18) will be
GRANTED. The Clerk is directed to CLOSE this case.
John Faber v. Commissioner, Social Security Administration
Civil No. SAG-12-1669
June 12, 2013
Page 4
Despite the informal nature of this letter, it should be flagged as an opinion.
implementing Order follows.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge
An
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