Flamer v. Colvin

Filing 15

ORDER denying 13 Motion of plaintiff for Summary Judgment; granting 14 Motion of defendant for Summary Judgment; Affirming Commissioner's judgment. Signed by Magistrate Judge Stephanie A Gallagher on 5/14/2015. (jnls, 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 14, 2015
LETTER TO COUNSEL
RE:

Devery M. Flamer v. Commissioner, Social Security Administration;
Civil No. SAG-14-2260

Dear Counsel:
On July 16, 2014, Plaintiff Devery Flamer petitioned this Court to review the Social
Security Administration’s final decision to deny his claim for Supplemental Security Income.
(ECF No. 1). I have considered the parties’ cross-motions for summary judgment. (ECF Nos.
13, 14). 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 Mr. Flamer’s motion, grant the
Commissioner’s motion, and affirm the judgment of the Commissioner pursuant to 42 U.S.C. §
405(g). This letter explains my rationale.
Mr. Flamer protectively filed a claim for Supplemental Security Income (“SSI”) on
March 2, 2011. (Tr. 74, 148-54). He alleged a disability onset date of February 1, 2011. (Tr.
148). His claim was denied initially and on reconsideration. (Tr. 107-10, 123-25). A hearing
was held on May 13, 2013, before an Administrative Law Judge (“ALJ”). (Tr. 25-48).
Following the hearing, the ALJ determined that Mr. Flamer was not disabled within the meaning
of the Social Security Act during the relevant time frame. (Tr. 8-24). The Appeals Council
denied Mr. Flamer’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. Flamer suffered from the severe impairments of degenerative
disc disease of the lumbar spine and advance end-stage glaucoma. (Tr. 13). Despite these
impairments, the ALJ determined that Mr. Flamer retained the residual functional capacity
(“RFC”) to:
perform sedentary work as defined in 20 CFR 416.967(a) except he is limited to
performing postural activities occasionally. Additionally, his vision is 20/20, but
he has a limited field of vision on both sides; however, he is limited to positions
that do not require good depth perception. He should avoid concentrated
exposure to extreme temperatures, both cold and heat; concentrated exposure to
dust, fumes, odors and other pulmonary irritants; and avoid hazards.

Devery M. Flamer v. Commissioner, Social Security Administration
Civil No. SAG-14-2260
May 14, 2015
Page 2
(Tr. 14). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Flamer could perform jobs existing in significant numbers in the national economy and that,
therefore, he was not disabled. (Tr. 19-20).
Mr. Flamer raises three arguments on appeal: (1) that the ALJ erred in assessing the
severity of and the functional limitations caused by several of Mr. Flamer’s impairments; (2) that
the ALJ erred in assessing Mr. Flamer’s credibility; and (3) that the ALJ failed to consider the
effect of Mr. Flamer’s age subsequent to the hearing. Each argument lacks merit and is
addressed below.
First, Mr. Flamer claims that the ALJ erred at step two of the sequential evaluation by
determining that his hypertension, chronic renal failure, and umbilical hernia are non-severe
impairments. Mr. Flamer further contends that the ALJ’s error was prejudicial because, at step
four of the sequential evaluation, the ALJ did not properly account for the functional limitations
caused by those impairments. 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), he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If a claimant is found to be suffering from a severe impairment(s), the analysis
simply proceeds to the next step. Id.
With respect to his hypertension, Mr. Flamer argues that the ALJ’s statement that his
hypertension was well controlled by medication is not supported by substantial evidence. Pl.
Mem. 13. In support of his argument, Mr. Flamer cites his own statement that he didn’t “see the
medications [he takes] as doing any good,” (Tr. 279), and a diagnosis by Dr. Jensen of “poorly
controlled” hypertension, (Tr. 282). However, in support of his statement, the ALJ cited Dr.
Frank’s September 2012 report that Mr. Flamer “has a history of hypertension controlled with
medications,” (Tr. 341), and a subsequent blood pressure reading of 120/80 in December 2012,
(Tr. 357). Importantly, this Court’s role is not to reweigh the evidence or to substitute its
judgment for that of the ALJ, but simply to adjudicate whether the ALJ’s decision was supported
by substantial evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In this case,
the ALJ cited substantial evidence in support of his determination that Mr. Flamer’s hypertension
was well controlled. The fact that there is a single reference in the record to poorly controlled
hypertension—which appears to be based solely on Mr. Flamer’s own report, rather than
objective medical testing—does not undermine the ALJ’s determination. Moreover, Mr. Flamer
has not identified specific evidence undermining the ALJ’s determination that his chronic renal
failure and umbilical hernia are non-severe impairments, nor has he identified evidence of any
functional limitations resulting therefrom. As explained below, the ALJ limited Mr. Flamer to a
restricted range of sedentary work, assessing exertional limitations well beyond those opined by
any physician. Accordingly, I find that the ALJ’s evaluation of Mr. Flamer’s hypertension,
chronic renal failure, and umbilical hernia is supported by substantial evidence.

Devery M. Flamer v. Commissioner, Social Security Administration
Civil No. SAG-14-2260
May 14, 2015
Page 3
Mr. Flamer next argues that the ALJ failed to properly evaluate both the credibility of his
complaints of pain and how his pain impacts his RFC. Pl. Mem. 14-16. However, Mr. Flamer
asserts that, had the ALJ properly analyzed his credibility, the ALJ would have limited Mr.
Flamer to “less than the full range of sedentary work”—precisely the limitation found by the
ALJ in his RFC assessment. Pl. Mem. 16. Moreover, after reviewing the ALJ’s decision, it is
clear that while the ALJ did not fully credit Mr. Flamer’s credibility with respect to all of his
complaints, the ALJ does appear to have given Mr. Flamer the benefit of the doubt regarding his
allegations of pain. For example, after commenting on the relative absence of treatment notes
documenting Mr. Flamer’s “back pain and overall lumbosacral condition,” and noting the
opinions of multiple physicians stating that Mr. Flamer was capable of lifting 25 or even 50
pounds, the ALJ stated he “view[ed] the overall record evidence in the light most favorable to
[Mr. Flamer], and considering factors such as his chronic low back pain and physical stature,”
the ALJ found that Mr. Flamer was “limited to less than a full range of sedentary work.” (Tr. 1617). In light of the fact that the ALJ apparently credited Mr. Flamer’s complaints concerning his
pain, and then set forth an RFC assessment consistent with that now espoused by Mr. Flamer, it
is unclear why Mr. Flamer takes issue with the ALJ’s analysis.
Finally, Mr. Flamer argues that the ALJ failed to consider the effect of the fact that he
turned 50 years old on June 14, 2014, in determining whether a finding of disabled was directed
pursuant to the Medical Vocational Rules (“Grids”). Pl. Mem. 16. The Grids allow an ALJ to
evaluate a claimant’s capability to do other work at step five of the sequential evaluation process.
20 C.F.R. Pt. 404, Subpt. P, Appx. 2 § 200.00. The Grids consider a claimant’s RFC, age,
education, and work experience, and direct a decision of “disabled” or “not disabled” based on
whether there are jobs that exist in significant numbers in the national economy that a claimant
can perform. The period relevant to the ALJ’s determination in this case was that between Mr.
Flamer’s alleged onset date, February 1, 2011, and the date of the ALJ’s decision, June 27, 2013.
Mr. Flamer was born on June 20, 1964. (Tr. 148). Thus, on his alleged onset date, he was 46
years old, and on the date of the ALJ’s decision, he had just turned 49 years old.
Social Security regulations define a “younger individual” as a person age 18 through 49,
and an individual “closely approaching advanced age” as a person age 50 through 54. 20 C.F.R.
§ 416.963. In this case, the ALJ evaluated Mr. Flamer’s claim under section 201.21 of the Grids,
which directs a finding of “not disabled” for younger individuals age 45 to 49, who have a high
school diploma or more and no transferrable job skills. 20 C.F.R. Pt. 404, Subpt. P, Appx. 2 §
201.21. Mr. Flamer argues that the ALJ should have instead considered section 201.14 of the
Grids, which applies to individuals closely approaching advanced age, who have a high school
diploma or more and no transferrable job skills. 20 C.F.R. Pt. 404, Subpt. P, Appx. 2 § 201.14. I
am unpersuaded. Although Social Security regulations instruct that the age categories should not
be applied “mechanically in a borderline situation,” they go on to define a borderline situation as
when a claimant is “within a few days to a few months of reaching an older age category.” 20
C.F.R. § 416.963(b). Mr. Flamer was not, however, within a few days or months of reaching an
older age category during the relevant time. Instead, on the date of the ALJ’s decision, he was a
full year from turning 50. Accordingly, the ALJ did not err by applying the Grid rule applicable
to individuals age 45 to 49, rather than that applicable to individuals age 50 to 54.

Devery M. Flamer v. Commissioner, Social Security Administration
Civil No. SAG-14-2260
May 14, 2015
Page 4

For the reasons set forth herein, Mr. Flamer’s Motion for Summary Judgment (ECF No.
13) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 14) 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.
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