Cole v. Colvin

Filing 24

REPORT AND RECOMMENDATIONS re 22 MOTION for Summary Judgment filed by Carolyn W. Colvin. Signed by Magistrate Judge Stephanie A Gallagher on 2/8/2017. (c/m 2/8/17)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
HERMAN COLE

*
*
v.
*
Civil Case No. MJG-15-3927
*
COMMISSIONER, SOCIAL SECURITY
*
*
*************
REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014–01, the above-referenced case has been referred to me
for review of the Commissioner’s dispositive motion, [ECF No. 22], and to make
recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix).1 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). After reviewing the
record in this case, I find that no hearing is necessary. Local R. 105.6 (D. Md. 2016). For the
reasons set forth below, I recommend that the Commissioner’s motion be granted.
Mr. Cole applied for Disability Insurance Benefits and Supplemental Security Income on
October 18, 2011, alleging a disability onset date of April 9, 2011. (Tr. 269-80). His claims were
denied initially on January 18, 2012, and on reconsideration on May 16, 2012. (Tr. 86-109, 11235). An Administrative Law Judge (“ALJ”) held hearings on September 26, 2013 and March 18,
2014, and Mr. Cole was represented by counsel at the second hearing. (Tr. 47-85). The ALJ
subsequently wrote an opinion denying benefits to Mr. Cole. (Tr. 24-45). The Appeals Council
1

Mr. Cole was represented by counsel at the time this case was filed, but counsel withdrew his
appearance on March 9, 2016. [ECF No. 14]. After some time elapsed, this Court granted Mr. Cole 60
days to find new representation. [ECF Nos. 15, 16]. No new attorney has entered an appearance, and Mr.
Cole has not corresponded with the Court. After the Commissioner filed her motion for summary
judgment, the Court sent a Rule 12/56 letter to Mr. Cole advising him of the possible consequences of
failing to file an opposition to the motion. [ECF No. 23]. Still, no opposition has been filed, and the
deadline has now passed.

denied review, (Tr. 1-6), making the ALJ’s decision the final, reviewable decision of the
Agency.
The ALJ found that, during the relevant time frame, Mr. Cole suffered from the severe
impairments of “bipolar disorder, learning disabilities, cognitive impairment, left knee
osteophytosis, obesity, spine disorder, shoulder strain and alcohol abuse.” (Tr. 29). Despite
these impairments, the ALJ determined that Mr. Cole retained the residual functional capacity
(“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
can occasionally stoop, twist, crouch, kneel, crawl, balance and climb stairs and
ramps. He cannot climb ladders, ropes or scaffolds. He can understand,
remember, and carry out simple instructions. He can perform simple, routine and
repetitive tasks free of fast-paced production requirements with no required
reading or writing and occasional required interaction with the public, supervisors
and coworkers.
(Tr. 33). After considering testimony from a vocational expert (“VE”), the ALJ determined that
there were jobs existing in significant numbers in the national economy that Mr. Cole could
perform, and that he was not therefore disabled. (Tr. 38-39).
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.
The ALJ proceeded in accordance with applicable law at all five steps of the sequential
evaluation. At step one, the ALJ found in Mr. Cole’s favor that, although he had worked, he had
not engaged in substantial gainful activity since the alleged onset date. (Tr. 29). At step two, the
2

ALJ found the severe impairments specified above, and also considering other impairments that
the ALJ concluded were either non-severe or not medically determinable, citing to medical and
record evidence. (Tr. 29-30). Although I find no error in the ALJ’s evaluation, even if I were to
find that the ALJ erred in her evaluation of any of Mr. Cole’s impairments at step two, such error
would be harmless.

Because Mr. Cole made the threshold showing that other disorders

constituted severe impairments, the ALJ continued with the sequential evaluation process and
considered all of the impairments, both severe and non-severe, that significantly impacted Mr.
Cole’s ability to work. See 20 C.F.R. § 404.1523.
At step three, the ALJ engaged in a comprehensive analysis of Mr. Cole’s shoulder and
knee impairments with respect to Listing 1.02A, and mental health Listings 12.02, 12.04,
12.05C, and 12.09. (Tr. 31-33). The ALJ cited to the specific criteria of each of those Listings,
and addressed which of the criteria had not been established. Id. In particular, for the mental
health Listings, the ALJ used the appropriate special technique to assess whether Mr. Cole met
the “paragraph B” or “paragraph C” criteria of that Listing. Id. Citing to the evidence of record,
the ALJ found only a mild restriction in activities of daily living, moderate difficulties in social
functioning, moderate difficulties in concentration, persistence, or pace, and no episodes of
decompensation of extended duration. Id. The detailed analysis provided by the ALJ contains
substantial evidence to support her conclusion that the relevant Listings have not been met or
equaled.
At step four, the ALJ provided a summary of Mr. Cole’s testimony at the hearing. (Tr.
34). The ALJ also summarized findings from the medical evidence demonstrating that Mr.
Cole’s symptoms “improve with consistent psychiatric treatment,” (Tr. 34), and that his shoulder
and knee problems do not preclude work activity, (Tr. 35-36). In particular, the ALJ cited notes
reflecting that Mr. Cole had turned down a janitorial job because he was afraid that the number
3

of work hours would preclude his obtaining disability benefits. (Tr. 36). The ALJ also cited a
DORS evaluation suggesting that Mr. Cole would be capable of employment so long as he
received continued psychiatric care. Id.

The ALJ made an adverse credibility assessment,

supported by the inconsistency between the medical evidence and Mr. Cole’s testimony. Id.
Finally, the ALJ evaluated the opinion evidence provided by the treating physicians, Drs.
Seunarine, Coleman, and Raiker, another medical source, Mr. Akpan, and the State agency
medical consultants. (Tr. 36-37). With respect to the treating physicians, the ALJ appropriately
noted that their relatively extreme opinions conflicted with their treatment notes and other record
evidence. Id. Instead, the ALJ assigned “moderate weight” to Mr. Akpan’s conclusions, which
were generally consistent with the RFC assessment, and “significant weight” to the State agency
medical consultants. Id.
The function of this Court is not to review Mr. Cole’s claims de novo or to reweigh the
evidence of record. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) (citing 42 U.S.C. §
405(g) and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather, this Court is to
determine whether, upon review of the whole record, the Commissioner’s decision is supported
by substantial evidence and a proper application of the law. Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990); Coffman, 829 F.2d at 517; see 42 U.S.C. § 405(g). Under that standard,
and in light of the abundant evidence cited by the ALJ suggesting that Mr. Cole was capable of
substantial gainful employment with appropriate mental health treatment, I recommend that the
ALJ’s RFC assessment be affirmed.
The ALJ also appropriately completed step five of the sequential evaluation. The ALJ
took testimony from the VE regarding whether Mr. Cole could perform his past relevant work,
and determined that he could not. (Tr. 37, 81-82). The ALJ then posed a series of hypotheticals
to the VE to determine whether a person with each set of hypothetical criteria would be able to
4

find work. (Tr. 81-82). Ultimately, the ALJ determined that Mr. Cole’s RFC matched one of the
hypotheticals she had posed. (Tr. 33, 81). The VE had cited three light jobs in response to that
hypothetical, and the ALJ relied on that VE testimony in her opinion. (Tr. 37, 82). The ALJ’s
step five determination, therefore, was supported by substantial evidence. There is therefore no
basis to remand the case under sentence four of 42 U.S.C. § 405(g), because I have not found: (1)
that the Commissioner’s decision is not supported by substantial evidence; or (2) that the
Commissioner misapplied the relevant law.
CONCLUSION
For the reasons set forth above, I respectfully recommend that the Court GRANT
Defendant’s Motion for Summary Judgment, [ECF No. 22]; and order the Clerk to CLOSE this
case.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: February 8, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

5