Gross v. Astrue
Filing
17
MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 4/25/13. (hmls, 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
April 25, 2013
LETTER TO COUNSEL:
RE: Brenda D. Gross v. Commissioner, Social Security Administration
Civil No. SAG-12-2555
Dear Counsel:
On August 27, 2012, the Plaintiff, Brenda Gross, petitioned this Court to review the
Social Security Administration’s final decision to deny her claim for Disability Insurance
Benefits and Supplemental Security Income Benefits. I have considered the parties’ crossmotions for summary judgment. (ECF Nos. 15, 16). I find that no hearing is necessary. See
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 those
standards, I will grant the Commissioner’s motion and deny the Plaintiff’s motion. This letter
explains my rationale.
Ms. Gross filed her claim in January 2009. (Tr. 84-85). She initially claimed that she
had been disabled since February 1, 2006, due to a back injury, arthritis in her left shoulder and
hips, and breathing problems. (Tr. 172, 197). Ms. Gross subsequently amended her alleged
onset date to April 22, 2008. (Tr. 191; see also Tr. 26-27). The Commissioner denied the
applications both initially and on reconsideration. (Tr. 94-101, 104-107). A hearing was held
on January 6, 2011, before an Administrative Law Judge (“ALJ”). (Tr. 22-81). On January 28,
2011, the ALJ issued an opinion finding that Ms. Gross was not disabled under the Social
Security Act. (Tr. 7-21). The Appeals Council denied Ms. Gross’s request for a review (Tr. 14), so the ALJ’s decision constitutes the final, reviewable decision of the agency.
The ALJ found that Ms. Gross suffered from the severe impairments of degenerative disc
disease/scoliosis lumbar spine, adhesive capsulitis/frozen left shoulder, diabetes mellitus,
obesity, asthma, and mood disorder. (Tr. 12). She further found, however, that these
impairments, either singly or in combination, do not meet or equal one of the impairments listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13). Further, the ALJ found that Ms. Gross
has a residual functional capacity to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except,
with her dominant right upper extremity, the claimant can lift up to 20 pounds
occasionally, and lift and carry up to 10 pounds frequently. She is able to lift only
10 pounds occasionally with her nondominant left upper extremity. She can
stand, walk and sit, each, for approximately 6 hours, in an 8-hour workday. She is
Brenda D. Gross v. Commissioner, Social Security Administration
Civil No. SAG-12-2555
April 25, 2013
Page 2
limited to no more than occasional climbing ramps and stairs, balancing, stooping,
crouching, kneeling, and crawling. The claimant is precluded from working at
unprotected heights and climbing ladders, ropes, or scaffolds. She must avoid
concentrated exposure to poorly ventilated areas and to irritants such as fumes,
odors, dusts, and gases. The claimant is limited to unskilled work with routine
and repetitive tasks, simple work related decisions, and occasional, if any, work
place changes.
(Tr. 16). After hearing the testimony of a vocational expert (“VE”), the ALJ concluded that jobs
exist in significant numbers in the national economy that Ms. Gross can perform. (Tr. 20-21).
On appeal, Ms. Gross raises the following issues: (1) that the ALJ had an insufficient
basis to evaluate her left shoulder impairment; (2) that the ALJ had an insufficient evidentiary
basis to evaluate the severity of her mental impairment; and (3) that the ALJ did not include the
complete statement of the orthopedic consultative examiner.
The ALJ recognized that Ms. Gross had limited range of motion in her left shoulder, and
that she was limited by left upper extremity pain in June and July of 2008. (Tr. 17; see Tr. 33031). However, the ALJ found, as evidenced by the report of Amit Bhargava, M.D., that Ms.
Gross had a full and painless range of motion of the left shoulder, normal strength, and no
sensory deficit in May 2009. (Tr. 17; see Tr. 495). Moreover, as noted by the ALJ, Ms. Gross
reported to Dr. Bhargava that she can lift 10 to 15 pounds and carry 10 pounds. (Tr. 496). The
ALJ’s finding that Ms. Gross could only occasionally lift up to 10 pounds is actually more
restrictive than the opinions offered by L. Robbins, M.D. and A. Serpick, M.D., two State agency
medical consultants. (See Tr. 498-505, 541-48). Although a nurse practitioner, Amy Lewis,
opined that Ms. Gross could not lift or carry any weight whatsoever (Tr. 668), other medical
evidence and Ms. Gross’s own testimony concerning her activities provided substantial evidence
for the ALJ to discount the opinion of Ms. Lewis. Accordingly, the ALJ based her decision
about Ms. Gross’s left shoulder impairment on substantial evidence in the record.1
Substantial evidence also supported the ALJ’s finding that Ms. Gross’s mood disorder,
although a severe impairment, was not itself disabling. When Ms. Gross applied for benefits, she
did not allege disability due to any mental impairment. (Tr. 197). Moreover, when she
requested reconsideration of the agency’s initial determinations, she did not identify any mental
impairment that affected her ability to perform work-related activities. (Tr. 238-43). It was not
until January 2010 that Ms. Gross, in connection with her request for reconsideration, noted that
she saw a therapist for anxiety and mood swings. (Tr. 252). The agency then asked Ms. Gross
1
Ms. Gross further contends that the ALJ’s hypothetical to the VE was inadequate because the ALJ did
not define the term “occasionally.” Neither the VE nor Ms. Gross’s counsel requested clarification at the
hearing. It is reasonable to assume that the VE considered “occasionally” to mean something consistent
with the wide range in the agency’s definition, which is “occurring from very little up to one third of the
time.” SSR 83-10, 1983 WL 31251, at *5.
Brenda D. Gross v. Commissioner, Social Security Administration
Civil No. SAG-12-2555
April 25, 2013
Page 3
to attend a psychiatric conference with Mikhael Taller, M.D. (Tr. 550). Although Dr. Taller
noted that Ms. Gross had poor eye contact, that her affect was a bit irritable, that she could recall
only one out of three words after five minutes, and that she could not abstract a proverb, he
observed that she was cooperative, alert, and oriented, that her thought processes were goaldirected and coherent, and that she had fair insight and judgment. (Tr. 552). His diagnostic
impressions were that she had a mood disorder, not otherwise specified, that her mood disorder
was not due to a medical condition, and that she did not suffer from a major depressive disorder.
(Id.). Thereafter, Dr. Shapiro, a State agency psychological consultant, reviewed Ms. Gross’s
objective complaints and Dr. Taller’s report. (See Tr. 559-76). He concluded that Ms. Gross had
no significant cognitive impairment and that, although adaption might at times be limited due to
mood fluctuations, Ms. Gross demonstrated the ability to interact appropriately in a professional
setting. (Tr. 575). The notes from Total Healthcare, submitted by Ms. Gross, did not contradict
these findings. (Tr. 768-87). These notes reflected that, although Ms. Gross did suffer from
mood swings, her symptoms were moderate in nature. Id. The ALJ’s RFC determination, which
limited Ms. Gross to unskilled work with routine and repetitive tasks, only simple work-related
decisions, and occasional, if any, workplace changes, adequately took Ms. Gross’s mood
disorder into account. (Tr. 16).
Ms. Gross’s final contention is that the ALJ failed to consider the opinion of Amit
Bhargava, M.D., that Ms. Gross required breaks in order to stand for six hours, sit for six hours,
and walk for six hours during an eight-hour day. Aside from the fact that “breaks” are not
uncommon in the workplace, Ms. Gross’s contention fails because Dr. Bhargava never expressed
that opinion but merely reported what Ms. Gross herself had told him. (See Tr. 496).
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. 16) will be
GRANTED. The Clerk is directed to CLOSE this case.
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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