Silverman v. Colvin

Filing 12

REPORT AND RECOMMENDATIONS re 9 MOTION by plaintiff for Summary Judgment 11 MOTION by defendant for Summary Judgment. Objections to R&R due by 3/10/2014. Signed by Magistrate Judge Stephanie A Gallagher on 2/19/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TAMAR SILVERMAN

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v.
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Civil Case No. WMN-13-1388
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COMMISSIONER, SOCIAL SECURITY
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2013-06, the above-referenced case was referred to me to
review the parties’ cross-motions for summary judgment and to make recommendations pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ motions.
ECF Nos. 9, 11. This Court must uphold the Commissioner’s decision if it is supported by
substantial evidence and if proper legal standards were employed. 42 U.S.C. § 405(g); Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
I find that no hearing is necessary. Local R. 105.6 (D. Md. 2011). For the reasons set forth
below, I recommend that the Commissioner’s motion be granted and that Ms. Silverman’s
motion be denied.
Ms. Silverman applied for Disability Insurance Benefits on January 5, 2010 alleging a
disability onset date of March 2, 2009. (Tr. 135-36). Her claim was denied initially on May 4,
2010 and on reconsideration on September 13, 2010. (Tr. 49-51, 57-58). An Administrative
Law Judge (“ALJ”) held a hearing on February 10, 2012 (Tr. 24-46), and subsequently denied
benefits to Ms. Silverman in a written opinion dated April 10, 2012 (Tr. 12-20). The Appeals
Council declined review, (Tr. 1-3), making the ALJ’s decision the final, reviewable decision of
the agency.
The ALJ found that Ms. Silverman suffered from the severe impairments of myofascial

pain, degenerative disc disease of the cervical and lumbar spines, carpal tunnel syndrome, and
history of right rotator cuff tear status-post operation. (Tr. 14). Despite these impairments, the
ALJ determined that Ms. Silverman retained the residual functional capacity (“RFC”) to
“perform light work as defined in 20 CFR 404.1567(b) except can use the right upper extremity
only occasionally, no overhead lifting and occasional grasping, handling, pushing/pulling, and
fingering. The left upper extremity would be unimpaired, can lift up to twenty pounds, but only
ten pounds with the right upper extremity.” (Tr. 15). After considering testimony from a
vocational expert (“VE”), the ALJ determined that there were jobs existing in significant
numbers in the national economy that Ms. Silverman could perform, and that she was not
therefore disabled. (Tr. 19-20).
Ms. Silverman’s primary argument on appeal is that the ALJ erroneously assessed her
RFC by failing to conduct a function-by-function analysis. Pl.’s Mot. 4-10. As part of her
argument, Ms. Silverman raises several sub-arguments. First, she contends that the ALJ failed to
include any limitation on her ability to reach in the RFC assessment. Id. at 6-7. Second, she
argues that the ALJ failed to conclude that her arm impairments were bilateral, despite the fact
that her medical evidence of record demonstrated bilateral limitations. Id. at 7. Third, Ms.
Silverman argues that the ALJ failed to indicate in his RFC assessment whether the limitations
imposed for her right upper extremity related to her dominant or non-dominant arm. Id. at 9.
Finally, as an extension of her RFC argument, Ms. Silverman contends that the questions posed
by the ALJ to the VE were erroneous, because they relied on a deficient RFC assessment. Id. at
9-10. Each argument lacks merit and is addressed in turn.
Ms. Silverman argues that the ALJ selectively included certain limitations in the RFC
assessment, while ignoring others, which were supported by the medical evidence of record.

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Pl.’s Mot. 6-7. She notes that although the ALJ accorded “great weight” to the opinion of Dr.
Hakkarinen, a state agency medical consultant, the ALJ failed to include all of Dr. Hakkarinen’s
recommended limitations. Specifically, both Dr. Hakkarinen and another state agency medical
consultant, Dr. Reddy, indicated that Ms. Silverman was “significantly limited in reaching all
directions” with the right arm, and that the limitations were “expected frequently.” (Tr. 265,
310). The Social Security Administration defines “frequent” as “occurring from one-third to
two-thirds of the time.”

SSR 83-10, 1983 WL 312151, at *6 (Jan. 1, 1983).

The RFC

assessment limited Ms. Silverman to “occasional” use of her right upper extremity, which is
defined as “occurring from very little up to one-third of the time.” Id. at *5. Thus, the ALJ
found that Ms. Silverman can perform work, which requires the use of her right upper extremity
no more than one-third of the time. This finding is supported by substantial evidence, as it
comports with the physical RFC assessments performed by Dr. Hakkarinen and Dr. Reddy.
Indeed, the ALJ’s RFC assessment is arguably more restrictive than what the medical evidence
dictates. The ALJ’s RFC assessment included limitations for “occasional grasping, handling,
pushing/pulling, and fingering,” (Tr. 15), despite findings by both state agency medical
consultants that Ms. Silverman had “unlimited” abilities in those areas. See (Tr. 265, 310).
Second, Ms. Silverman contends that her medical record evidences impairments of both
arms, and that the RFC assessment should have included left-arm restrictions. Pl.’s Mot. 7-9.
While Ms. Silverman’s record contains some evidence of left-arm impairments, see (Tr. 338,
340) (noting “moderate right and mild left median nerve compression at the wrist” and
recommending bilateral wrist splints); see also (Tr. 271-72) (noting numbness of left and right
hands), the record also contains evidence of normal left-arm functioning. In June, 2010, Ms.
Silverman had “normal motion in her left shoulder.” (Tr. 271, 351). In January, 2011, tinel sign

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was positive at the right elbow and wrist, but negative on the left. (Tr. 340). In March, 2011, the
left-shoulder was “non-tender” and the range of motion was noted as “full” and “pain-free.” (Tr.
336). An ALJ is not required to address every piece of evidence in the record, so long as a
reviewing court can determine from the opinion “what the ALJ did and why he did it.” Piney
Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999) (citing Lane Hollow Coal
Co. v. Dir., Office of Workers’ Comp. Programs, 137 F.3d 799, 803 (4th Cir. 1998)); see also
Melgarejo v. Astrue, No. JKS-08-3140, 2009 WL 5030706, at *4 (D. Md. Dec. 15, 2009) (all
holding that an ALJ's duty to explain his findings and conclusions on all material issues of fact or
law is satisfied when a reviewing court can determine, from an ALJ's opinion and the evidence
of record, how he reached his conclusion). Thus, the ALJ in this case cited to the evidence of
adequate left-arm functioning, see (Tr. 16) (noting Plaintiff’s testimony that she uses her left
hand as much as possible to perform chores at home); (Tr. 17) (noting Plaintiff’s full range of
motion for her left shoulder and elbow, and a grip strength of 5/5), and substantial evidence
exists to support his determination that the medical evidence did not warrant a left-arm
restriction in the RFC assessment.
Third, Ms. Silverman asserts that the ALJ failed to indicate in the RFC assessment that
the limitations imposed upon her right upper-extremity related to her dominant arm. Pl.’s Mot.
9. Ms. Silverman testified at her hearing that she is right-handed. See (Tr. 34). She is correct
that the ALJ failed to specify in his opinion that her right arm is her dominant arm. However,
Ms. Silverman has pointed to no prejudice as a result of this omission. Moreover, it appears that
in the VE’s calculation of potential jobs available to Ms. Silverman, the VE expressly considered
that Ms. Silverman’s left arm, and not her right arm, would be used frequently. (Tr. 45) (“And
all of those jobs may require reaching, handling, and fingering at a frequent level with the left

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upper extremity.”). Therefore, the ALJ’s failure to articulate her right-arm dominance in the
written opinion had no effect on his finding that Ms. Silverman was not disabled during the
relevant time frame.
Finally, Ms. Silverman takes issue with the ALJ’s hypothetical to the VE. She contends
that the hypothetical posed to the VE is incorrect because it was based on a deficient RFC
assessment. However, the ALJ “has great latitude in posing hypothetical questions and is free to
accept or reject suggested restrictions so long as there is substantial evidence to support the
ultimate question.” Koonce v. Apfel, No. 98–1144, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999)
(citing Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986)). As discussed above, the ALJ’s
RFC assessment was based on substantial evidence, and the hypothetical corresponded to the
RFC assessment. Given that the RFC assessment was not in error, Ms. Silverman’s argument
fails.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court GRANT Defendant’s Motion for Summary Judgment, (ECF No. 11); and
2. the Court DENY Plaintiff’s Motion for Summary Judgment, (ECF No. 9); and
CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b) and Local Rule 301.5.b.

Dated: February 19, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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