Workman v. Colvin
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/31/2017. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DENISE ANN WORKMAN,
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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 15-2547
MEMORANDUM OPINION
Plaintiff Denise Ann Workman seeks judicial review under 42 U.S.C. § 405(g) of a final
decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying
her application for disability insurance benefits under Title II of the Social Security Act. Before
the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 15), Defendant’s Motion for
Summary Judgment (ECF No. 18), and Plaintiff’s Response to Defendant’s Motion for Summary
Judgment (ECF No. 20).2 Plaintiff contends that the administrative record does not contain
substantial evidence to support the Commissioner’s decision that she is not disabled. No hearing
is necessary.
L.R. 105.6.
For the reasons that follow, Defendant’s Motion for Summary
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On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
25(d).
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The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
Judgment (ECF No. 18) is DENIED, Plaintiff's Motion for Summary Judgment (ECF No. 15) is
DENIED, and this matter is REMANDED under the fourth sentence of 42 U.S.C. § 405(g).
I
Background
On August 28, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.
II
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”
42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
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S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).3
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
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The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
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Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). Residual functional capacity (“RFC”) is a measurement of the
most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th
Cir. 2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for
providing evidence the Commissioner will use to make a finding as to the claimant’s RFC, but
the Commissioner is responsible for developing the claimant’s “complete medical history,
including arranging for a consultative examination(s) if necessary, and making every reasonable
effort to help [the claimant] get medical reports from [the claimant’s] own medical sources.” 20
C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain nonmedical evidence and other evidence listed in the regulations. See id. If a claimant retains the
RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
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numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
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differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
IV
Discussion
Plaintiff contends that substantial evidence does not support the ALJ’s decision because
the ALJ failed to evaluate her severe fibromyalgia under Social Security Ruling4 (“SSR”) 12-2p,
2012 WL 3104869 (July 25, 2012). SSR 12-2p “provides guidance on how [the Commissioner]
develop[s] evidence to establish that a person has a medically determinable impairment . . . of
fibromyalgia . . . , and how [the Commissioner] evaluate[s] [fibromyalgia] in disability claims
and continuing disability reviews under Titles II and XVI of the Social Security Act.” SSR 122p, 2012 WL 3104869, at *1. Under the ruling, when making the RFC assessment, the ALJ
“will consider a longitudinal record whenever possible because the symptoms of [fibromyalgia]
can wax and wane so that a person may have ‘bad days and good days.’” Id. at *6. At steps four
and five of the sequential evaluation, the ALJ will consider the claimant’s symptoms, such as
widespread pain and fatigue, in determining whether exertional limitations, non-exertional
physical or mental limitations, or environmental restrictions are warranted. Id.
Defendant concedes that the ALJ did not specifically acknowledge SSR 12-2p in her
decision. She contends, however, that the omission was harmless because Plaintiff has not
demonstrated that her fibromyalgia required additional work-related limitations in the ALJ’s
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Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
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RFC assessment for the period before January 1, 2003. However, “the Fourth Circuit has
declined to find harmless error where an error or omission precludes meaningful review.”
Jeffries ex rel. J.J.J. v. Comm’r, Soc. Sec., No. JKB-15-1727, 2016 WL 3162800, at *2 (D. Md.
June 7, 2016). Because the inadequacy of the ALJ’s analysis frustrates meaningful review,
remand under the fourth sentence of 42 U.S.C. § 405(g) is appropriate for the ALJ to consider
and evaluate Plaintiff’s severe fibromyalgia under SSR 12-2p, and the Court need not address
Plaintiff’s remaining arguments.
V
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 18) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. Defendant's
final decision is REVERSED IN PART under the fourth sentence of 42 U.S.C. § 405(g). This
matter is REMANDED for further proceedings consistent with this opinion. A separate order
will issue.
Date: March 31, 2017
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
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