Kitts v. Colvin

Filing 18

MEMORANDUM AND ORDER DENYING 15 Motion of Plaintiff for Summary Judgment; DENYING 17 Motion of Defendant for Summary Judgment; REMANDING case for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 12/15/2014. (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]

December 15, 2014
LETTER TO COUNSEL
RE:

Jamie Kitts v. Commissioner, Social Security Administration;
Civil No. SAG-14-826

Dear Counsel:
On March 18, 2014, Plaintiff Jamie Kitts 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’ cross-motions for
summary judgment. (ECF Nos. 15, 17). I find that no hearing is necessary. See Loc. R. 105.6
(D. Md. 2014). This Court must uphold the decision of the agency if it is supported by
substantial evidence and if the agency employed proper legal standards. See 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I
will deny both parties’ motions, vacate the opinion of the Administrative Law Judge, and remand
the case to the Commissioner. This letter explains my rationale.
Mr. Kitts protectively filed claims for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income on November 16 and 30, 2010, respectively. (Tr. 93, 94, 206–
21). He initially alleged a disability onset date of August 15, 2006, which he later amended to
March 31, 2008, his date last insured.1 (Tr. 206, 213, 65–66). His claims were denied initially
and on reconsideration. (Tr. 104–11, 116–21). A hearing was held on January 8, 2013, before
an Administrative Law Judge (“ALJ”). (Tr. 63–92). Following the hearing, the ALJ determined
that Mr. Kitts was not disabled within the meaning of the Social Security Act during the relevant
time frame. (Tr. 47–59). The Appeals Council denied Mr. Kitts’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. Kitts suffered from the severe impairment of traumatic fracture
of the spine with postoperative complications including infection. (Tr. 52). Despite this

1

The period of time relevant to Mr. Kitts’s DIB claim is that between his alleged onset date and his date last
insured, which are both March 31, 2008. 42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. §§ 404.101(a), 404.131(a).
Accordingly, for Mr. Kitts to establish that he is entitled to DIB, he must demonstrate that he was disabled on March
31, 2008. Medical evidence between Mr. Kitts’s November 30, 2010, SSI application date and the date of the ALJ’s
January 29, 2013, opinion is relevant only to Mr. Kitts’s SSI claim. Evidence from the period between Mr. Kitts’s
date last insured and his SSI application date is only relevant to the extent it could establish disability during one of
the two relevant periods. See Bird v. Comm’r Social Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012) (citing
Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987).

Jamie Kitts v. Commissioner, Social Security Administration
Civil No. SAG-14-826
December 15, 2014
Page 2

impairment, the ALJ determined that Mr. Plaintiff retained the residual functional capacity
(“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant must sit at hourly intervals for brief period in place: can understand
remember and carry out simple instructions. Additionally, the claimant is limited
to occasional bend at waist, occasional push/pull and occasional squat, crawl,
kneel stoop or crouch only.
(Tr. 53). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Kitts could perform jobs existing in significant numbers in the national economy and that
therefore he was not disabled. (Tr. 57–58).
Mr. Kitts raises two arguments on appeal. First, Mr. Kitts argues that the ALJ should
have determined that his chest pain was a severe impairment. Second, Mr. Kitts argues that the
ALJ should have found his statements regarding his back pain to be fully credible. Although I
find that the ALJ’s analysis of Mr. Kitts’s chest pain was supported by substantial evidence,
because I agree that the ALJ erred in evaluating Mr. Kitts’s credibility, remand is appropriate. In
so holding, I express no opinion as to whether the ALJ’s ultimate conclusion that Mr. Kitts is not
entitled to benefits is correct or incorrect.
Beginning with the unsuccessful argument, Mr. Kitts contends that the ALJ erred in
determining that his chest pain was not severe at step two. Step two is a threshold determination
of whether a claimant is suffering from a severe impairment or combination of impairments. See
Bowen v. Yuckert, 482 U.S. 137, 147–48 (1987) (upholding the severity threshold because, “if a
claimant is unable to show that he has a medically severe impairment . . . there is no reason for
the Secretary to consider the claimant’s age, education, and work experience”). If a claimant is
not suffering from any severe impairment(s), she is not disabled.
20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step two, the claimant bears the burden of production
and proof. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (citing Hunter v. Sullivan, 993
F.2d 31, 35 (4th Cir. 1992). If a claimant is found to be suffering from a severe impairment(s),
the analysis simply proceeds to the next step. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
The ALJ’s conclusion that Mr. Kitts’s chest pain was non-severe was supported by
substantial evidence. In support of his argument that his chest pain was severe, Mr. Kitts claims
that the ALJ gave insufficient consideration to the fact that there had been a screw penetrating
his aorta. Pl.’s Mem. 7–9. However, before determining that Mr. Kitts’s chest pain was not
severe, the ALJ thoroughly reviewed the medical evidence on the record pertaining to Mr. Kitts’s
chest pain, including Mr. Kitts’s own testimony that his chest pain slows him down but does not
stop him from doing the things that he wants to do, and his testimony that since his last stent
implantation six months prior, he has had only two severe episodes of chest pain. (Tr. 53).
Moreover, Mr. Kitts does not assert any work-related limitations stemming from his chest pain.
Indeed, there is nothing in the record to indicate that Mr. Kitts’s chest pain significantly limited
his ability to do basic work activities during the relevant time period. Accordingly, I find that

Jamie Kitts v. Commissioner, Social Security Administration
Civil No. SAG-14-826
December 15, 2014
Page 3

the ALJ’s determination that Mr. Kitts’s chest pain is not severe is supported by substantial
evidence.
Mr. Kitts next claims that the ALJ’s analysis of his credibility was inadequate.
Specifically, he argues that Mr. Kitts’s claims concerning his back pain are corroborated by the
report of the consultative examiner, Dr. Young. The Fourth Circuit has developed a two-part test
for evaluating a claimant’s subjective complaints. Craig, 76 F.3d at 594. First, there must be
objective medical evidence of a medical impairment reasonably likely to cause the symptoms
alleged by the claimant. Id. After the claimant meets this threshold obligation, the ALJ must
evaluate “the intensity and persistence of the claimant’s [symptoms], and the extent to which it
affects her ability to work.” Id. at 595. In this case, the ALJ found that Mr. Kitts’s impairment
could reasonably be expected to cause his alleged symptoms, but that Mr. Kitts’s statements
concerning the intensity, persistence, and limiting effects of his symptoms were not entirely
credible. (Tr. 54–55).
Mr. Kitts suffered a work-related fall off of a roof in 1998, for which he underwent spinal
fusion surgery in 2001. (Tr. 294–304). By at least 2005, the incision from that surgery began to
leak. (Tr. 306–16). However, Mr. Kitts did not undergo an additional surgery to remove the
infected hardware from his spine until December 2011. (Tr. 396–97). Mr. Kitts testified that his
back pain substantially improved as a result of that second surgery. (Tr. 73) (describing his back
pain as 10/10 in 2008 and 5/10 currently); (Tr. 83) (stating that prior to the surgery he
experienced pain 24–7, but that he now experiences “bad days” approximately three times per
month). This significant improvement is corroborated by comparing the consultative
examination report of Dr. Young, and other treatment notes from prior to the second surgery,
with treatment notes from after the surgery. On March 3, 2011, Dr. Young performed a
consultative examination and reported that Mr. Kitts’s initial spinal surgery “left him with
chronic persisting unrelenting pain.” (Tr. 322). Upon physical examination, Mr. Kitts displayed
reduced spinal flexion, a positive straight leg test, and he walked with an abnormal gait. (Tr.
323). In his assessment, Dr. Young opined that Mr. Kitts’s pain level was “quite severe.” Id. In
a “new patient evaluation” completed prior to Mr. Kitts’s hardware removal surgery, Mr. Kitts
rated his pain as 8/10, and reported that his back and leg pain had worsened over the past few
years. (Tr. 399–400).
Mr. Kitts’s had his second surgery on December 20, 2011. At his two-week follow-up
appointment, Dr. Gelb described Mr. Kitts as “doing well,” and stated that “his back pain is
under good control.” (Tr. 395). At his six-week follow up appointment, Dr. Gelb stated that Mr.
Kitts was once again “doing well” with “no further wound drainage,” and that “his pain is under
good control” with “no pain medication.” (Tr. 394). However, despite the corroborative
evidence and counsel’s request at the hearing that the ALJ consider a closed period of disability
ending upon recovery from the second surgery, (Tr. 89–90), it does not appear from the ALJ’s
opinion that he did so, nor did the ALJ explain why a closed period of disability was
inappropriate. Although the ALJ provided substantial evidence for his conclusion that Mr. Kitts
was not disabled subsequent to the second surgery, I find that the ALJ did not provide substantial

Jamie Kitts v. Commissioner, Social Security Administration
Civil No. SAG-14-826
December 15, 2014
Page 4

evidence in support of his conclusion that Mr. Kitts was not disabled for some period of time
prior to that surgery.
In support of his credibility analysis, the ALJ discussed Mr. Kitts’s activities of daily
living, the fact that Mr. Kitts stopped working because his company went out of business rather
than because of his allegedly disabling impairment, the fact that Mr. Kitts only took Advil for his
pain, and the fact that in 2005, he rated the pain from his infection as a 5/10. However, the ALJ
failed to mention that Mr. Kitts also testified that while working for that company, subsequent to
his initial surgery, he was missing as many as two days per week due to his leaking wound, and
that his employer only tolerated his absence because he did not want Mr. Kitts on the job when it
was draining. (Tr. 89–90). The ALJ also failed to note that Mr. Kitts took Advil for his pain
because, although he had been prescribed Percocet, he ceased taking it because he was allergic.
(Tr. 74). The ALJ similarly ignored the fact that immediately prior to his second surgery, Mr.
Kitts rated his pain as 8/10. (Tr. 399). Finally, it is unclear from treatment notes whether the
extent of the infection was known to Mr. Kitts’s physicians prior to the hardware removal
surgery and whether knowledge of the infection would have impacted the determination of the
State agency physicians, who opined that Mr. Kitts was capable of performing light work. It is
not the province of this Court to reweigh the evidence or to substitute its judgment for that of the
ALJ. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Moreover, where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls to the ALJ. Mastro v. Apfel, 270 F.3d 171, 179 (4th Cir.
2001) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). However, the ALJ must
provide substantial evidence to support his credibility analysis for the entire relevant period, and
I find that he has not done so for the time prior to Mr. Kitts’s second surgery. The case is
therefore remanded for the ALJ to fulfill his duty of explanation.
Finally, it appears from the record and the hearing transcript that Mr. Kitts previously
applied for both DIB and SSI benefits, and that those claims were denied at the initial level on
February 12, 2010. (Tr. 65, 228–229). Mr. Kitts’s prior claim presumably included his DLI,
which is the amended onset date—and entire relevant period—for his DIB claim in this case. If
so, res judicata may bar Mr. Kitts from reasserting his DIB claim in this case. Although this
ambiguity might not merit remand standing alone, because I am remanding on other grounds, the
Commissioner should clarify any impact that Mr. Kitts’s prior DIB claim has on his DIB claim
in this case.
For the reasons set forth herein, the Commissioner’s Motion for Summary Judgment
(ECF No. 17) and Mr. Kitts’s Motion for Summary Judgment (ECF No. 15) are DENIED. The
ALJ’s opinion is VACATED and the case is REMANDED for further proceedings. The clerk is
directed to CLOSE this case.

Jamie Kitts v. Commissioner, Social Security Administration
Civil No. SAG-14-826
December 15, 2014
Page 5

Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge