Booker v. Commissioner of Social Security

Filing 22

OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 10/10/13. (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
[phone]
Fax [phone]

October 10, 2013
LETTER TO COUNSEL:
RE:

Keith Booker v. Commissioner, Social Security Administration;
Civil No. SAG-13-315

Dear Counsel:
On January 29, 2013, the Plaintiff, Keith Booker, petitioned this Court to review the
Social Security Administration’s final decision to deny his claims for Disability Insurance
Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties’ crossmotions for summary judgment, and Mr. Booker’s reply. (ECF Nos. 19-21). 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1996) (superseded by statute on other grounds). Under that standard, I will grant the
Commissioner’s motion and deny Plaintiff’s motion. This letter explains my rationale.
Mr. Booker filed his claims in 2009, alleging disability beginning on January 31, 2009.
(Tr. 175-82). His claims were denied initially on November 20, 2009, and on reconsideration on
July 1, 2010. (Tr. 85-92, 97-100). A hearing was held on April 20, 2011 before an
Administrative Law Judge (“ALJ”). (Tr. 39-79). Following the hearing, on July 25, 2011, the
ALJ determined that Mr. Booker was not disabled during the relevant time frame. (Tr. 20-38).
The Appeals Council denied Mr. Booker’s request for review, (Tr. 1-6), so the ALJ’s decision
constitutes the final, reviewable decision of the agency.
The ALJ found that Mr. Booker suffered from the severe impairments of diabetes
mellitus and status-post right shoulder surgery. (Tr. 23). Despite these impairments, the ALJ
determined that Mr. Booker retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except that
he is further limited to frequently reaching with his non-dominant right shoulder;
occasionally climbing ramps or stairs (never ladders, ropes or scaffolds),
balancing, stooping, kneeling, crouching and crawling; and avoiding even
moderate exposure to workplace hazards.
(Tr. 25). Without considering the testimony of a vocational expert (“VE”), the ALJ determined
that, “[a] finding of ‘not disabled’ is . . . appropriate under the framework of” MedicalVocational Rule 202.21 (“Grid Rule 202.21”), and, in addition, that there were jobs listed in the
Dictionary of Occupational Titles (DOT) that Mr. Booker could perform. (Tr. 32-33).

Keith Booker v. Commissioner, Social Security Administration
Civil No. SAG-13-315
October 10, 2013
Page 2
Mr. Booker argues on appeal that the ALJ neither considered testimony from a
vocational expert nor made a finding pursuant to the Medical-Vocational Rules (“the Grids”),
and therefore that the agency failed to sustain its burden of establishing the existence of jobs that
Mr. Booker could perform. See Pl. Mot. 5 (citing Bruton v. Massanari, 268 F.3d 824, 827 n.1).
I disagree.
Section 10 of the ALJ’s opinion is poorly constructed, thus causing Mr. Booker’s
confusion about its contents. The ALJ first noted that application of Grid Rule 202.21 would be
appropriate if Mr. Booker had the RFC to perform the full range of light work. (Tr. 33). She
further noted that Mr. Booker’s additional, nonexertional limitations “do not significantly erode
the occupational base for a full range of unskilled, light work.” Id. Inexplicably, she then
engaged in an intervening and erroneous discussion of information contained in the DOT, before
concluding that, “[a] finding of ‘not disabled’ is therefore appropriate under the framework of
this rule.” Id. Although the discussion of the DOT renders the opinion somewhat unclear,
because that paragraph contains no reference to any other rule, I conclude that the ALJ in fact
made a determination that Grid Rule 202.21 applied to Mr. Booker’s case.1
I also find no error in the ALJ’s reliance on Grid Rule 202.21 to decide Mr. Booker’s
case. Following her detailed, seven-page analysis of the evidence of record to formulate Mr.
Booker’s RFC, (Tr. 25-32), the ALJ found three categories of nonexertional limitations: (1) the
limitation to frequent reaching with the non-dominant shoulder; (2) the limitation to only
occasional posturals; and (3) the limitation precluding “even moderate exposure to workplace
hazards.” (Tr. 25). None of those limitations cause significant erosion in the occupational base
for light work. With respect to reaching restrictions, courts have permitted use of the Grids even
with more stringent limitations than Mr. Booker’s. See, e.g., Ramirez v. Astrue, No.
1:09cv01508 DLB, 2010 WL 3734002, at *12 (E.D. Cal. Sept. 21, 2010) (noting that limitation
to occasional overhead reaching with right upper extremity “suggests that Plaintiff is capable of
occasional overhead reaching with her right upper extremity and frequent overhead reaching
with her left upper extremity. With these capabilities, there is no indication that her limitation
represents a significant non-exertional impairment requiring the use of VE testimony.”);
Summers v. Comm. of Soc. Security, No. S-08-1309-CMK, 2009 WL 2051633 at *22-23 (E.D.
Cal. July 10, 2009) (upholding reliance on the Grids with an RFC precluding frequent overhead
reaching with the left upper extremity). I do not find that Mr. Booker’s RFC, which precludes
only constant reaching with the non-dominant hand and permits constant reaching with the
dominant hand, constitutes a “significant limitation” as contemplated by SSR 85-15. Moreover,
Mr. Booker’s postural limitations have repeatedly been deemed to be within the purview of the
Grids. See, e.g., SSR 83-14, 1983 WL 31254, at *5 (Jan. 1, 1983) (“[T]here are nonexertional
1

  I concur with Mr. Booker’s argument that the ALJ erred by conducting her own analysis of the DOT’s
requirements for various positions, instead of using VE testimony to meet her burden. Pl. Mot. 5.
However, the Commissioner can establish that there are significant jobs in the national economy that the
claimant can perform in one of two ways: (1) by the testimony of a VE, or (2) by reference to the Grids.
See Heckler v. Campbell, 461 U.S. 458, 461-62 (1983); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir.
1999). Because the ALJ made an appropriate alternative finding that Mr. Booker was “not disabled”
pursuant to the Grids, her erroneous DOT analysis is immaterial and the error is harmless.

Keith Booker v. Commissioner, Social Security Administration
Civil No. SAG-13-315
October 10, 2013
Page 3
limitations which have little or no effect on the unskilled light occupational base.”). Finally, the
restriction to “no moderate exposure to workplace hazards” also does not significantly erode the
occupational base, as again, more stringent limitations have been deemed to permit application
of the Grids. See, e.g., Beard v. Astrue, No. BPG-10-2378, 2011 WL 3880417, at *3 (D. Md.
Aug. 31, 2011) (upholding use of grids in case involving “an inability to work around hazards”);
Gonzalez v. Astrue, No. 06-cv-5403 (DLI), 2008 WL 4453166, at *9 (E.D.N.Y. Sept. 30, 2008)
(permitting reliance on the Grids with an RFC including a need to avoid various hazards).
Because none of Mr. Booker’s nonexertional limitations remove his case from the purview of the
Grids, remand is unwarranted.
For the reasons set forth herein, Plaintiff’s motion for summary judgment, (ECF No. 19),
will be DENIED, and the Commissioner’s motion for summary judgment, (ECF No. 20), 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

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