Bell v. Colvin

Filing 20

ORDER denying 16 Ms. Bell's Motion for Summary Judgment; granting 19 Defendant's Motion for Summary Judgment; affirming the Commissioner's judgment; and directing Clerk to close the case. Signed by Magistrate Judge Stephanie A Gallagher on 6/2/2017. (bmhs, 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]

June 2, 2017
LETTER TO COUNSEL
RE:

Cheryl Bell v. Commissioner, Social Security Administration;
Civil No. SAG-16-1351

Dear Counsel:

On May 5, 2016, Plaintiff Cheryl Bell petitioned this Court to review the Social Security
Administration’s final decision to deny her claim for Supplemental Security Income (“SSI”).
(ECF No. 1). I have considered the parties’ cross-motions for summary judgment. (ECF Nos.
16, 19). 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 decision. This letter explains my
rationale.
Ms. Bell filed her claim for SSI on February 17, 2012, alleging that she became disabled
on June 1, 1988. (Tr. 185). Ms. Bell later amended her disability onset date to February 17,
2012. (Tr. 204). Her claim was denied initially and on reconsideration. (Tr. 113-116, 124-125).
A hearing was held on April 24, 2014, before an Administrative Law Judge (“ALJ”). (Tr. 5992). Following the hearing, on July 11, 2014, the ALJ determined that Ms. Bell was not disabled
within the meaning of the Social Security Act during the relevant time frame. (Tr. 18-35). On
September 8, 2014, Ms. Bell filed a request for review of the decision with the Appeals Council
(“AC”). (Tr. 271-272). The request for review was denied. (Tr. 9-15). On March 10, 2016, Ms.
Bell again filed a request for review with the AC following the purported receipt of an
unfavorable ALJ decision dated “January 14, 2016.” (Tr. 274-275); see Pl.’s Mot. Ex. A. The
AC attributed the “January 14, 2016” decision to “a clerical error, which occurred with the
request for review[,]” confirmed “July 11, 2014” as the correct date of the ALJ’s final decision,
and again denied Ms. Bell’s request for review. (Tr. 2-8). Thus, the ALJ’s July 11, 2014
decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Ms. Bell suffered from the severe impairments of degenerative disc
disease, neuropathy, HIV, diabetes, and hypertension. (Tr. 23). Despite these impairments, the
ALJ determined that Ms. Bell retained the residual functional capacity (“RFC”) “to perform light
work as defined in 20 CFR 416.967(b) except no climbing of ladders, ropes, or scaffolds;
occasional climbing of stairs or ramps; occasional stooping, crouching, crawling or kneeling; no
exposure to hazards such as unprotected heights.” (Tr. 24). After considering the testimony of a

Bell v. Commissioner
Civil No. SAG-16-1351
June 2, 2017
Page 2

vocational expert (“VE”), the ALJ determined that Ms. Bell could perform jobs existing in
significant numbers in the national economy, and that, therefore, she was not disabled. (Tr. 27).
Ms. Bell makes four arguments on appeal. First, Ms. Bell argues that the ALJ’s “January
14, 2016” decision mandates a finding of disability under Medical Vocational Grid Rule (“Grid
Rule”) 202.01 as of March 10, 2015 – the date that Ms. Bell turned 55 years old. Pl.’s Mot. 8.
Second, Ms. Bell argues that testimony provided by the VE was unsworn and therefore, under
Federal Rule of Evidence 603, fails to amount to the substantial evidence necessary to support a
denial at step 5 of the sequential evaluation.1 Id. at 8-9. Third, Ms. Bell argues that the ALJ
erroneously disregarded the opinions of treating physicians in favor of a non-treating
consultative examiner. Id. at 10. Fourth, Ms. Bell argues that the ALJ’s RFC assessment runs
afoul of SSR 96-8p and Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Id. at 12-14. These
arguments lack merit and are addressed below.
I.

Grid Rule

Ms. Bell argues that she met all requirements of Grid Rule 202.01 prior to the ALJ’s
“January 14, 2016” decision and is therefore entitled to disability benefits “since at least March
10, 2015, the date Ms. Bell became of advanced age.” Pl.’s Mot. 8. Grid Rule 202.01 requires
that the claimant be limited to light work; be 55 years of age or older (“advanced age”); have no
more than a limited educational background; and have either no past relevant work experience or
past relevant work experience limited to unskilled work. 20 C.F.R. Part 404, Subpart P,
Appendix 2. The ALJ found that Ms. Bell is limited to light work, has a limited education, and
has no past relevant work. (Tr. 26). The ALJ further found that Ms. Bell was born on March 10,
1960, was 51 years old on the date that she applied for SSI, and was “closely approaching
advanced age.” Id. Ms. Bell essentially maintains that the ALJ’s age category determination is
wrong; she should have been deemed “advanced age,” rather than “closely approaching
advanced age.” See Pl.’s Mot. 2, 8. Whether Ms. Bell satisfied the advanced age requirement of
Grid Rule 202.01 depends on her age prior to the ALJ’s final decision. See 20 C.F.R. §
404.1563(b). Although Ms. Bell claims that the ALJ “issued … a second unfavorable decision”
on January 14, 2016, the Court adopts the AC’s explanation that a “clerical error” arising from
Ms. Bell’s request for review generated “[a]n additional, duplicate copy of the [ALJ’s] decision
… in the records, but with an incorrect date on it.” (Tr. 7). Indeed, a side-by-side comparison
reveals that the July 11, 2014 decision and the “January 14, 2016” decision are identical, except
for the date. See (Tr. 18-28); Pl.’s Mot. at Ex. A. Thus, the AC concluded, and this Court finds,
the ALJ’s final decision “is dated correctly as July 11, 2014.” Id. Consequently, Ms. Bell was
54 years old, and not yet advanced age, on the date of the ALJ’s final decision.
Nevertheless, while chronological age based on date of birth determines a claimant’s age
category for Grid purposes, age categories should not be applied “mechanically in a borderline
situation.” 20 C.F.R. § 404.1563(b). “If [a claimant is] within a few days to a few months of

1

Ms. Bell also avers that her own testimony was unsworn, but does not argue that her testimony was erroneously
relied upon by the VE or the ALJ. Pl.’s Mot. 8.

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Bell v. Commissioner
Civil No. SAG-16-1351
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Page 3

reaching an older age category, and using the older age category would result in a determination
or decision that [the claimant is] disabled, [an ALJ] will consider whether to use the older age
category after evaluating the overall impact of all the factors of [the claimant’s] case. Id. Here,
Ms. Bell was eight months shy of advanced age when the ALJ issued the final decision in this
case, see (Tr. 18, 26), and does not present a “borderline situation.” See, e.g., Flamer v. Comm’r
Social Sec. Admin., 2015 WL 2345543 at *3 (D. Md. May 14, 2015) (denying appeal where
claimant was “a full year” away from an older age category); Handley v. Colvin, 2014 WL
4467822 at *9 (D. Md. Sept. 8, 2014) (denying appeal where claimant was less than six months
away from an older age category despite concluding that “[t]he borderline range falls somewhere
around six months from the older age category.”) (citations omitted); France v. Apfel, 87 F.
Supp. 2d 484, 492 (D. Md. 2000) (granting remand where claimant was five months away from
older age category). Accordingly, the ALJ did not err by placing Ms. Bell in the “closely
approaching advanced age,” rather than “advanced age,” category.
II.

Unsworn VE Testimony

Ms. Bell maintains that the ALJ did not base her decision at step 5 of the sequential
evaluation on substantial evidence because the ALJ relied upon unsworn VE testimony, in
contravention of Federal Rule of Evidence 603. Pl.’s Mot. 8-9. Contrary to Ms. Bell’s claim,
the record clearly reflects that the VE was “duly sworn” by the ALJ prior to offering testimony
in this case. (Tr. 84). Any doubt as to the sufficiency of the VE’s affirmation to testify truthfully
should end there. In addition, the ALJ “may receive any evidence at the hearing that he or she
believes is material to the issues, even though the evidence would not be admissible in court
under the rules of evidence used by the court.” 20 C.F.R. § 416.1450(e). See, e.g., Richardson
v. Perales, 402 U.S. 389 (permitting admission of unsworn medical reports in spite of their
hearsay character and the absence of cross-examination). Thus, absence of a VE’s oath in the
record would not render the affected testimony inadmissible for purposes of an SSA
administrative hearing.
III.

Medical Opinion Evidence

Ms. Bell also argues that the ALJ favored the opinion of a non-treating, non-examining
consultant over the opinions of Ms. Bell’s treating physicians. Pl.’s Mot. 9-12. A treating
physician’s opinion is given controlling weight when two conditions are met: 1) it is wellsupported by medically acceptable clinical laboratory diagnostic techniques; and 2) it is
consistent with other substantial evidence in the record. See Craig v. Chater, 76 F.3d 585, 589
(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). The ALJ must also consider,
and is entitled to rely on, opinions from non-treating doctors. See SSR 96-6p, 1996 WL 374180

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at *3 (“In appropriate circumstances, opinions from State agency medical and psychological
consultants and other program physicians and psychologists may be entitled to greater weight
than the opinions of treating or examining sources.”).
Contrary to Ms. Bell’s assertion, the ALJ properly evaluated the opinions of Luke
Johnsen, D.O., and Ned Sacktor, M.D. The ALJ assigned the medical opinions of Drs. Johnsen
and Sacktor “little weight” because they were inconsistent with the medical evidence,
unsupported by the objective record, and contradicted by Ms. Bell’s testimony. (Tr. 25-26). The
ALJ provided several specific examples of contradicted and unsupported statements in the
medical assessment reports authored by these physicians. Id. Specifically, while Dr. Johnsen
and Dr. Sacktor each determined that Ms. Bell met Medical Listing 1.04 for lumbar disc disease,
the ALJ noted that these conclusions are not supported by near-contemporaneous spinal imaging
reflecting only mild-to-moderate degenerative disc disease. Id. (discussing Tr. 293-94, 329-30,
389-90). Moreover, as the ALJ noted, the evidence of record fails to show that Ms. Bell
experiences nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis, as required
by Listing 1.04. (Tr. 23). Furthermore, Dr. Johnsen’s and Dr. Sacktor’s statements regarding
Ms. Bell’s left leg pain and weakness, and Dr. Johnsen’s statement that Ms. Bell requires
constant use of a rolling walker to ambulate, are contradicted by Ms. Bell’s testimony that she
can walk 12 blocks, six days a week, to a methadone clinic; climb up and down a flight of stairs,
carrying her walker, three times daily; and perform personal care tasks such as cooking, doing
laundry, and shopping. (Tr. 24-25, 66-68, 233-35). Indeed, in February, 2014, Dr. Sacktor
himself noted that, with physical therapy, Ms. Bell had full strength in her left leg. (Tr. 354).
The ALJ also noted that these opinions do not have support in the treatment records, other
evidence of record, or medical imaging. (Tr. 25). These inconsistencies provide sufficient
justification for the ALJ’s decision to accord only “little weight” to Dr. Johnsen’s and Dr.
Sacktor’s opinions.
In contrast, the ALJ ascribed “great weight” to the opinion of consultative examiner
Purcell Bailey, M.D., who, in May, 2012, reported that Ms. Bell walked unassisted and with a
normal gait, presented normal results upon cardiovascular, physical, and visual field
examinations, and “failed to show any disabling limitations.” (Tr. 26). The ALJ concluded that
Dr. Bailey’s findings were “consistent with the totality of the evidence.” Id. See 20 C.F.R.
§416.927(c)(4) (“Generally, the more consistent an opinion is with the record as a whole, the
more weight we will give to that opinion.”). Similarly, the ALJ gave “great weight” to the
opinion of medical consultant, Kumar Swami, M.D., who found that Ms. Bell could perform
light work. (Tr. 26, 108-109). The ALJ’s reasoning is legally sound, is based on a careful
assessment of the entire record, and is entitled to deference.
IV.

Mascio

Ms. Bell argues that the ALJ did not satisfy the narrative discussion requirement of SSR
96-8p because she failed to provide a function-by-function analysis of Ms. Bell’s physical RFC.
Pl.’s Mot. 12-14 (citing Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015) (holding that
“remand may be appropriate … where an ALJ fails to assess a claimant’s capacity to perform

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relevant functions, despite contradictory evidence in the record, or where other inadequacies in
the ALJ’s analysis frustrate meaningful review”)). I disagree.
Social Security regulations require an ALJ to include “a narrative discussion of [the]
claimant’s symptoms and medical source opinions.” Thomas v. Comm’r, Soc. Sec., 2011 WL
6130605, at *4 (D. Md. Dec. 7, 2011). In doing so, an ALJ must “build an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000),
as amended (Dec. 13, 2000). With respect to physical RFC, “[e]xertional capacity addresses an
individual’s limitations and restrictions of physical strength and defines the individual’s
remaining abilities to perform each of seven strength demands: [s]itting, standing, walking,
lifting, carrying, pushing, and pulling.” SSR 96-8p, 1996 WL 374184, at *5. Here, in addition to
evidence in the record cited by the ALJ in her discussion of Ms. Bell’s RFC more broadly, both
of the medical opinions given “great weight” by the ALJ explicitly discuss Ms. Bell’s functionby-function exertional limitations and support the ALJ’s RFC determination. Specifically, Dr.
Swami opined that Ms. Bell could occasionally lift and/or carry 20 pounds; frequently lift and/or
carry 10 pounds; stand, sit, and/or walk for a total of about 6 hours in an 8-hour workday; and
push and/or pull an unlimited amount in a day, subject to the above exertional limitations. (Tr.
106). Moreover, both Dr. Swami and Dr. Bailey observed that Ms. Bell had a normal gait and
walked unassisted (Tr. 108, 278). These opinions fully support the ALJ’s finding that Ms. Bell
can perform “light work,” defined in the regulations as “lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.” SSR 83-10, 1983 WL
31251, at *5. Ultimately, after considering the above function-by-function opinion and other
medical evidence, the ALJ set out restrictions on Ms. Bell’s ability to climb ladders, ropes,
scaffolds, stairs, and ramps, restricted the frequency of postural activities, and accounted for
environmental hazards consistent with Ms. Bell’s credible and evidence-supported functional
limitations. Because the ALJ’s narrative RFC discussion and relevant citations to the record
enable meaningful review of the ALJ’s physical RFC analysis, remand is not required.
For the reasons set forth above, Ms. Bell’s Motion for Summary Judgment (ECF No. 16)
is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 19) 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.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

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