Sevens v. Commissioner, Social Security

Filing 27

ORDER granting 20 Motion for Summary Judgment. Signed by Magistrate Judge Stephanie A Gallagher on 5/19/2015. (c/m 5/19/2015 ca2s, 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]

May 19, 2015
Kyle Perryn Sevens
11805 Old Frederick Road
Marriottsville, MD 21104
Amy C. Rigney
Social Security Administration
Altmeyer Building
6401 Security Blvd Rm 617
Baltimore, MD 21235
RE:

Kyle Perryn Sevens v. Commissioner, Social Security Administration;
Civil No. SAG-14-1900

Dear Mr. Sevens and Counsel:
On June 12, 2014, Plaintiff Kyle Perryn Sevens 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 Commissioner’s Motion for Summary Judgment and and the
Commissioner’s supplemental brief in support of her motion.1 (ECF Nos. 20, 26). Mr. Sevens,
who appears pro se, has not filed a response.2 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 grant the Commissioner’s motion and affirm the Commissioner’s judgment pursuant to
sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.

1

Pursuant to this Court’s March 24, 2015, Order, the Commissioner was permitted to file supplemental briefing
addressing apparent issues that arose as a result of the Fourth Circuit’s March 18, 2015, opinion in Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015). (ECF No. 25).
2

After the Commissioner filed her Motion for Summary Judgment on February 9, 2015, a Rule 12/56 letter was
mailed to Mr. Sevens, advising him of the potential consequences of failure to oppose the Commissioner’s motion.
(ECF No. 22).

Kyle Perryn Sevens v. Commissioner, Social Security Administration
Civil No. SAG-14-1900
May 19, 2015
Page 2
Mr. Sevens filed an application for Disability Insurance Benefits (“DIB”) on March 15,
2011.3 (Tr. 73, 164-65). In his application, he alleged a disability onset date of March 1, 2011.
(Tr. 164). His claim was denied initially, on June 27, 2011. (Tr. 62-78). A hearing was held on
November 1, 2012, before an Administrative Law Judge (“ALJ”). (Tr. 32-61). Following the
hearing, the ALJ determined that Mr. Sevens was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 15-29). The Appeals Council denied Mr.
Sevens’s request for review, (Tr. 1-5), so the ALJ’s decision constitutes the final, reviewable
decision of the agency.
The ALJ found that Mr. Sevens suffered from the severe impairments of demyelinating
disease with tremor in voice and dominant right hand and hepatitis C. (Tr. 20). Despite these
impairments, the ALJ determined that Mr. Sevens retained the residual functional capacity
(“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) subject to
the following. He requires a sit/stand option at will. He is limited to occasional
stairs, balancing, stooping, kneeling, crouching, and crawling. He should not
climb ladders. He is limited to occasional handling and fingering with the
dominant right hand. He should avoid concentrated exposure to hazards. He is
limited to simple, routine, repetitive tasks in a work environment free from fastpaced production involving only simple work-related decisions with few, if any,
workplace changes.
(Tr. 21). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Sevens could perform jobs existing in significant numbers in the national economy and that,
therefore, he was not disabled. (Tr. 25-26).
I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart,
386 F. Supp. 2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review
of a pro se action challenging an adverse administrative decision, including: (1) examining
whether the Commissioner’s decision generally comports with regulations, (2) reviewing the
ALJ’s critical findings for compliance with the law, and (3) determining from the evidentiary
record whether substantial evidence supports the ALJ’s findings). For the reasons described
below, substantial evidence supports the ALJ’s decision.

3

Both the ALJ’s opinion and the Commissioner’s Motion for Summary Judgment indicate that Mr. Sevens applied
for Supplemental Security Income (“SSI”) in addition to DIB. (Tr. 18); Def. Mem. 1. However, the record contains
only documents referencing Mr. Sevens’s DIB application. The date cited by the ALJ and the Commissioner, on
which Mr. Sevens allegedly applied for SSI benefits, August 19, 2012, occurred after the date on which his SSI
application appears to have been initially denied, June 27, 2011. Accordingly, I will assume that the reference to
Mr. Sevens’s SSI application was in error. However, if Mr. Sevens also applied for SSI, because the disability
inquiry is the same, the analysis herein would also apply to the ALJ’s evaluation of his SSI claim.

Kyle Perryn Sevens v. Commissioner, Social Security Administration
Civil No. SAG-14-1900
May 19, 2015
Page 3
The ALJ proceeded in accordance with applicable law at all five steps of the sequential
evaluation. The ALJ ruled in Mr. Sevens’s favor at step one and determined that he has not
engaged in substantial gainful activity since his alleged onset date. (Tr. 20); see 20 C.F.R. §
404.1520(a)(4)(i). At step two, the ALJ then considered the severity of each of the impairments
that Mr. Sevens claimed prevented him from working. See 20 C.F.R. § 404.1520(a)(4)(ii). As
noted above, the ALJ concluded that several of Mr. Sevens’s impairments were severe. (Tr. 20).
After finding at least one severe impairment, the ALJ continued with the sequential evaluation
process and considered all of the impairments, both severe and non-severe, that significantly
impacted Mr. Sevens’s ability to work. See 20 C.F.R. § 404.1523. For example, the ALJ
included non-exertional mental limitations, such as “a work environment free from fast-paced
production,” to accommodate Mr. Sevens’s attention deficit disorder, which the ALJ determined
to be a non-severe impairment. (Tr. 21). Accordingly, I find no basis for remand.
At step three, the ALJ determined that Mr. Sevens’s impairments did not meet the
specific requirements of, or medically equal the criteria of, any listings. (Tr. 21). The ALJ
considered Listing 11.09, which pertains to multiple sclerosis, and the listings referenced therein.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.09. Although the ALJ did not discuss the specific
criteria of Listing 11.09, an ALJ is required to discuss listed impairments and compare them
individually to listing criteria only when there is “ample evidence in the record to support a
determination that the claimant’s impairment meets or equals one of the listed impairments.”
Ketcher v. Apfel, 68 F. Supp. 2d 629, 645 (D. Md. 1999). In this case, there is not ample
evidence to support a determination that Mr. Sevens’s impairment meets or equals Listing 11.09.
Notably, Mr. Sevens did not argue before the agency, where he was represented by counsel, that
he met or equaled any listings. I have carefully reviewed the record, and I agree that no listings
are met.
Before proceeding to steps four and five, the ALJ assessed Mr. Sevens’s RFC. The ALJ
first summarized Mr. Sevens’s subjective complaints, including his right hand and voice tremors,
fatigue, visual problems, imbalance, and cognitive difficulties. (Tr. 22). In assessing the
credibility of Mr. Sevens’s subjective complaints, the ALJ employed the problematic boilerplate
language that the Fourth Circuit recently determined warranted remand in Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015). In this case, however, the ALJ’s use of that language does not require
remand because the ALJ properly analyzed Mr. Sevens’s credibility elsewhere. Id. at 639
(indicating that an ALJ’s use of the problematic boilerplate would be harmless if he properly
analyzed credibility elsewhere). For example, the ALJ found Mr. Sevens’s statement that he is
“‘in the process’ of learning to write with his left hand” inconsistent with the fact that “he
completed extensive written forms in early 2011 using his left hand that are very legible.” (Tr.
24) (comparing (Tr. 36) with (Tr. 196-203)). In reference to the discrepancies in Mr. Sevens’s
reported activities of daily living over time, the ALJ noted that there was “no evidence of
significant worsening to support why [Mr. Sevens] is now more limited.” (Tr. 24). Thus,
consistent with the Fourth Circuit’s opinion in Mascio, the ALJ explained how he decided which
of Mr. Sevens’s statements to believe, and which to discredit. 780 F.3d at 640.

Kyle Perryn Sevens v. Commissioner, Social Security Administration
Civil No. SAG-14-1900
May 19, 2015
Page 4
In formulating Mr. Sevens’s RFC, the ALJ also reviewed the medical records and
considered all of the opinion evidence in the record. (Tr. 22-25). After summarizing each
opinion, the ALJ explained: “[t]he established residual functional capacity is generally consistent
with or more restrictive than the medical opinions except for the lifting, postural and
environmental restrictions from Dr. Cherry.” (Tr. 24). Although the ALJ did not explicitly
articulate an assignment of weight to each medical opinion, it is clear that the ALJ assigned the
opinions some, but not controlling, weight. The ALJ went on to provide evidentiary support for
his departure from Dr. Cherry’s opinion, and I can readily ascertain how the ALJ arrived at his
conclusions concerning Mr. Sevens’s ability to occasionally lift up to 20 pounds and perform
handling and fingering. See Mascio, 780 F.3d at 637 (finding remand necessary when the ALJ
did not explain the weight he assigned a medical opinion because it left the court to guess about
how the ALJ arrived at his conclusions on the claimant’s ability to perform relevant functions).
My review of the ALJ’s decision is confined to whether substantial evidence, in the record as it
was reviewed by the ALJ, supports the decision and whether correct legal standards were
applied. Richardson v. Perales, 402 U.S. 389, 390, 404 (1971). Even if there is other evidence
that may support Plaintiff’s position, I am not permitted to reweigh the evidence or to substitute
my own judgment for that of the ALJ. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In
considering the entire record, I find the ALJ’s RFC determination was supported by substantial
evidence.
Next, at step four, the ALJ determined that, pursuant to his RFC assessment, Mr. Sevens
was unable to perform his past relevant work as a machine operator, paint line operator, door
maker, short order cook, dishwasher, or sales clerk. (Tr. 25). Accordingly, the ALJ proceeded
to step five, where he considered the impact of Mr. Sevens’s age and level of education on his
ability to adjust to new work. (Tr. 25-26). Relying on the Medical-Vocational Guidelines, 20
C.F.R. Pt. 404, Subpt. P, App. 2 § 202.18, the ALJ correctly found that a younger individual with
limited or less education and an RFC to perform light work is not disabled per se. (Tr. 25).
Since Plaintiff’s RFC assessment contained additional limitations which impeded his ability to
perform all or substantially all of the requirements of light work, however, the ALJ asked the VE
whether jobs exited in the national economy that were suited to Mr. Sevens’s particular
assessment. (Tr. 51-53). The VE testified that a person with Mr. Sevens’s RFC would be
capable of performing the job of conveyor line bakery worker. Id. Based on the VE’s testimony,
the ALJ concluded that Mr. Sevens is capable of successfully adjusting to other work that exists
in significant numbers in the national economy. (Tr. 26). I find that the ALJ’s determination
was supported by substantial evidence.
For the reasons set forth herein, Defendant’s Motion for Summary Judgment (ECF No.
20) is GRANTED. The Commissioner’s judgment is AFFIRMED pursuant to sentence four of
42 U.S.C. § 405(g). The Clerk is directed to CLOSE this case.

Kyle Perryn Sevens v. Commissioner, Social Security Administration
Civil No. SAG-14-1900
May 19, 2015
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