Green v. Colvin

Filing 19

ORDER denying 16 Motion for Summary Judgment; granting 17 Motion for Summary Judgment. Signed by Magistrate Judge Stephanie A Gallagher on 1/3/2017. (kw2s, 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]

January 3, 2017
LETTER TO COUNSEL
RE:

Amanda Beth Green v. Carolyn Colvin;
Civil No. SAG-16-759

Dear Counsel:

On March 15, 2016, Plaintiff Amanda Beth Green petitioned this Court to review the
Social Security Administration’s final decision to deny her claim for Supplemental Security
Income. (ECF No. 1). I have considered the parties’ cross-motions for summary judgment, and
Plaintiff’s response. (ECF Nos. 16, 17, 18). I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). 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 Plaintiff’s motion, 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.
Ms. Green filed a claim for Supplemental Security Income (“SSI”) on October 10, 2010.
(Tr. 13). She alleged a disability onset date of December 11, 2009. (Tr. 12). Her claim was
denied initially and on reconsideration. (Tr. 139-41, 146-47). A hearing was held on March 2,
2012, before an Administrative Law Judge (“ALJ”). (Tr. 175). Following the hearing, the ALJ
determined that Ms. Green was not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 113-129). The Appeals Council granted Ms. Green’s
request for review, (Tr.130-34), after which a second hearing was held on June 6, 2014. (Tr. 12).
The ALJ again denied benefits. (Tr. 12-25). The Appeals Council thereafter denied Ms. Green’s
request for review, (Tr. 1), so the ALJ’s 2014 decision constitutes the final, reviewable decision
of the Agency.
The ALJ found that Ms. Green suffered from the severe impairments of obesity, chronic
liver disease and cirrhosis, affective/bipolar disorder, PTSD/anxiety disorder, borderline
intellectual functioning, history of intravenous drug use. (Tr. 14). Despite these impairments,
the ALJ determined that Ms. Green retained the residual functional capacity (“RFC”):
to perform medium work as defined in 20 CFR 416.967(c) except the claimant
can never climb ladders, ropes, or scaffolding, and she is unable to tolerate
exposure to workplace hazards such as unprotected heights and moving
machinery. She can use commonsense understanding to perform detailed but
uninvolved oral or written instructions, consistent with a range of simple, routine,
and unskilled work at or below reasoning level two as those terms are defined in

Green v. Colvin
Civil No. SAG-16-759
January 3, 2017
Page 2

the Dictionary of Occupational Titles. She can work with the general public, coworkers, and supervisors occasionally. Furthermore, Ms. Green can perform lowstress jobs, defined as work that is not performed at an assembly-line pace or
production pace, with few workplace changes and little independent decision
making.
(Tr. 18). After considering the testimony of a vocational expert (“VE”), the ALJ
determined that Ms. Green could perform jobs existing in significant numbers in the
national economy and that, therefore, she was not disabled. (Tr. 24).
On appeal, Ms. Green argues that the ALJ failed to determine that she had an intellectual
disability as defined at Medical Listings 12.05(C) and 12.05(D). Pl.’s Mot. 1. This argument
lacks merit and is addressed below.
Ms. Green argues that the ALJ’s listing analysis is erroneous because “it was based on
conclusions and findings of fact which were not supported by substantial evidence and/or were
contrary to Social Security law and regulation.” Pl.’s Mot. 16, 16-26. If Ms. Green is right, the
ALJ’s listing analysis would violate the Fourth Circuit’s mandate in Fox v. Colvin, 632 Fed.
App’x. 750 (4th Cir. 2015). Step three requires the ALJ to determine whether a claimant’s
impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Listings describe each of the major body system impairments that the
Agency “consider[s] to be severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work experience.” 20 C.F.R. § 404.1525(a).
In Fox, the Fourth Circuit held that the ALJ’s listing analysis was deficient because it consisted
of conclusory statements and did not include “any ‘specific application of the pertinent legal
requirements to the record evidence.’” Id. at 754 (quoting Radford v. Colvin, 734 F.3d 288, 29192 (4th Cir. 2013)). That is, the ALJ did not apply any findings or medical evidence to the
identified disability listings and offered nothing to reveal why he was making his decision.
Radford, 734 F.3d at 295. Thus, Fox requires that an ALJ provide express analysis, with factual
support, to conclude that a listing has not been met at step three. The Fourth Circuit also rejected
the notion that failure to engage in meaningful analysis at step three could constitute harmless
error where the evidence of record otherwise demonstrated that the claimant did not meet a
listing. Fox, 632 Fed. App’x. at 755. Rather, the Fox Court emphasized that it is not this Court’s
role to “engage[ ] in an analysis that the ALJ should have done in the first instance,” or “to
speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ’s
justifications that would perhaps find support in the record.” Id. The Court noted that it could
not conduct a meaningful review “when there is nothing on which to base a review.” Id.
In the instant case, regarding his findings at step three of the sequential evaluation, the
ALJ stated that “[t]he severity of the claimant’s mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of listing[]… 12.05.” (Tr. 16). The
ALJ went on to provide a detailed explanation, with references to the evidence of record, to
support his conclusion that Ms. Green did not satisfy either Listing 12.05(C) or 12.05(D). (Tr.
16-23). For a claimant to have an intellectual disability, Listing 12.05 requires “significant[]

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Civil No. SAG-16-759
January 3, 2017
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subaverage general intellectual functioning with deficits in adaptive functioning initially
manifested during the development period … before age 22 … [demonstrated by:]
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant work-related limitation of
function; OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two
of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Pl.’s Mot. 16-17 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.05).
First, as to Listing 12.05(D), the ALJ determined that Ms. Green possessed only
moderate – not marked – difficulties in activities of daily living, maintaining social functioning,
and maintaining concentration, persistence, or pace. (Tr. 16). In reaching these findings, the
ALJ explained that “the record reflects that Ms. Green retains the capacity to take care of some
personal needs, prepare simple meals for her and her children, clean her apartment, wash
laundry, use public transportation, shop for groceries, handle her finances, maintain social
contact with her children’s father, and care for her children (Exhibits 3E and 7E), albeit at a
slower pace and while accounting for her impairment symptoms.” (Tr. 16). “[T]he record [also]
reflects that Ms. Green retains the capacity to pay bills, count change, handle a savings account,
and use a checkbook/money order (Exhibit 7E, page 5).” Id. This narrative of the functional
impact of Ms. Green’s mental impairments accounts for the only two Function Reports submitted
into evidence. See Exhibits 3E and 7E (Tr. 299-306, 324-33). In addition, though appearing
within the residual functional capacity section of the opinion, the ALJ cites to observations
regarding Ms. Green’s mental functional capacity made by consultative examiner Charles N.
Zeitler, III, Psy.D. See (Tr. 21-23). Dr. Zeitler characterized Ms. Green as “organized, logical,
and goal-directed with her thought content, and no problems with attention, concentration,
impulsivity, thought content, thought processes, homicidal ideation, or suicidal ideation were
observed (Exhibit 27F, page 9).” (Tr. 22, 734). Dr. Zeitler further commented that Ms. Green
“appeared to exaggerate or over-report [mental health] symptoms when possible.” Id. On the
basis of Ms. Green’s statements regarding her abilities, the above statements in Dr. Zeitler’s
report, and other supporting evidence in the record, the ALJ concluded that Ms. Green lacked the
“deficien[cy] [in] adaptive functioning” necessary for a determination of intellectual disability.
(Tr. 22). Further, as to episodes of decompensation,1 the ALJ found none; aside from “a history
of hospitalization as a teenager and a brief one-day admission in early 2010, during the period at
issue, there is no evidence of an extended mental health hospitalization or symptoms of extended
duration resulting in a loss of adaptive functioning.” (Tr. 16, 22).

1

“Repeated episodes of decompensation, each of extended duration, means three episodes within 1 year, or an
average of once every 4 months, each lasting for at least two weeks.” (Tr. 16).

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Civil No. SAG-16-759
January 3, 2017
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In order to meet a Listing, “every element of the listing must be satisfied.” Huntington v.
Apfel, 101 F. Supp. 2d 384, 391 (D. Md. 2000) (citing Sullivan v. Zebley, 493 U.S. 521, 531
(1990)). After failing to find marked restrictions in two or more areas of Ms. Green’s daily life
and functioning or evidence of repeated, extended episodes of decompensation, the ALJ properly
concluded that Ms. Green does not have an intellectual disability as defined at Listing 12.05(D).
(Tr. 16).
The ALJ also determined that Ms. Green did not satisfy the “full scale IQ of 60 through
70” required by both Listings 12.05(C) and 12.05(D). 20 C.F.R. Part 404, Subpart P, Appendix
1, Section 12.05. The only full scale IQ (“FSIQ”) score provided in the record comes from a
February, 2014 psychological evaluation by Dr. Zeitler. See (Tr. 726-37). Although Ms.
Green’s FSIQ score of 69 fell within the score range required by Listings 12.05(C) and 12.05(D),
Dr. Zeitler qualified this score as “somewhat limited by anxiety and likely an underestimate of
[Ms. Green’s] true potential.” (Tr. 22) (emphasis added). The ALJ credited Dr. Zeitler’s
tempering of the FSIQ score as consistent with evidence in the record that supports a greater
capacity for intellectual functioning by Ms. Green than the FSIQ score alone would suggest. (Tr.
17). Ms. Green implies that the ALJ erred in granting limited weight to Dr. Zeitler’s opinion,
Pl.’s Mot. 24-25, especially with respect to Ms. Green’s FSIQ score of 69 and to Dr. Zeitler’s
finding of “moderate to marked limitations in concentration, persistence, pace, social
functioning, performing at a consistent pace, and completing a normal workday without
interruption from psychologically based symptoms.” (Tr. 22).
A treating physician’s opinion is given controlling weight when two conditions are met:
1) it is well-supported by medically acceptable clinical laboratory diagnostic techniques; and 2)
it is consistent with other substantial evidence in the record. See Craig, 76 F.3d 585 (4th Cir.
1996); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). However, where a treating source’s
opinion is not supported by clinical evidence or is inconsistent with other substantial evidence, it
should be accorded significantly less weight. Craig, 76 F.3d at 590. If the ALJ does not give a
treating source’s opinion controlling weight, the ALJ will assign weight after applying several
factors, such as, the length and nature of the treatment relationship, the degree to which the
opinion is supported by the record as a whole, and any other factors that support or contradict the
opinion. 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). As previously noted, Dr. Zeitler
was a consultative examiner, not a treating physician and, as such, his opinion is not entitled to
controlling weight. Even so, the ALJ identified the sources in the record – including remarks
within Dr. Zeitler’s report – that contradicted Dr. Zeitler’s conclusions regarding Ms. Green’s
adaptive functioning. (Tr. 22). As such, the ALJ’s reasoning is legally sound and is entitled to
deference.
Moreover, even if Ms. Green’s FSIQ score of 69 is taken at face value, Ms. Green failed
to satisfy the other necessary elements of Listings 12.05(C) and 12.05(D). Ms. Green’s “stated
independence with caregiving [to her four children] and activities of daily living,” (Tr. 17), as
summarized above, runs contrary to showing “a physical or other mental impairment imposing
an additional and significant work-related limitation of function” required by Listing 12.05(C),
or the marked difficulties in daily and social functioning required by Listing 12.05(D). Indeed,

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January 3, 2017
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the claimant made these statements in 2010 and 2011 through the Social Security Administration
Function Reports, and again in 2014 during the psychological examination with Dr. Zeitler. See
Exhibits 3E, 7E, and 27F (Tr. 299-306, 324-33, 727-30). The ALJ appropriately weighed the
consistency of these statements over time and, in applying them to the requirements of 12.05(C)
and 12.05(D), determined that the “work-related limitation of function” prong was not met.
Ms. Green’s reliance on Branham v. Heckler, 775 F.2d 1271 (4th Cir. 1985) and Flowers
v. U.S. Department of Health and Human Services, 904 F.2d 211 (4th Cir. 1990) is misplaced
because the cases are factually distinguishable. Pl.’s Mot. 20. In Branham, the claimant had a
second grade education, was functionally illiterate, was “mildly mentally retarded,” suffered
from epilepsy since childhood, had an IQ score of 63, and had received a psychotic disorder
diagnosis of agoraphobia. Branham, 755 F.2d at 1272. In addition to greater mental limitations
than Ms. Green, the Branham claimant satisfied the “physical or other mental impairment
imposing additional and significant work-related limitation of function” prong of 12.05(C), on
the basis of a back injury that prevented him from performing past relevant work. Id. at 1273.
Similarly, the Flowers claimant had a seventh grade education, scored an FSIQ of 68, suffered
from seizures and a hip problem, and, like the Branham claimant, could not perform his past
relevant work. Flowers, 904 F.2d at 213-24. In both Branham and Flowers, the inability to
perform past relevant work was critical to the claimants meeting the “work-related limitation”
prong of 12.05(C). Id. at 214; Branham, 755 F.2d at 1273. Ms. Green, in contrast, has no past
relevant work. (Tr. 23). Moreover, neither the Branham nor Flowers claimants’ FSIQ score was
contested – meaning the FSIQ score prong of 12.05(C) was squarely met in each instance –
whereas here the ALJ cast doubt on the validity of Ms. Green’s FSIQ score and grounded his
opinion in other evidence. The ALJ explicitly addresses Ms. Green’s ninth/tenth grade
education, troubled childhood, substance abuse and related hospitalizations, brief work history,
and severe physical and mental impairments and treatment, (Tr. 14-23), but weighs Ms. Green’s
impairment symptoms against her demonstrated ability for self-care and caring for others in key
areas of daily life and ultimately concluded that the latter hinders a finding of intellectual
disability. See, e.g. (Tr. 19).
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). Although Ms. Green cites
to other evidence that could be used to support a contrary conclusion, in light of the substantial
evidence relied upon by the ALJ, the ALJ’s determination must be affirmed.
For the reasons set forth above, Ms. Green’s Motion for Summary Judgment (ECF No.
16) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 17) is GRANTED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is AFFIRMED.
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.

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Civil No. SAG-16-759
January 3, 2017
Page 6

Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

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