Whitfill v. Colvin
Filing
25
MEMORANDUM AND ORDER GRANTING 23 Motion for Reconsideration; REVERSING IN PART the Commissioner's judgment and REMANDING case for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 7/24/2017. (hmls, 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
(410) 962-7780
Fax (410) 962-1812
July 24, 2017
LETTER TO COUNSEL
RE:
Sharon A. Whitfill v. Commissioner, Social Security Administration;
Civil No. SAG-16-1996
Dear Counsel:
Presently pending is Plaintiff Sharon A. Whitfill’s Motion to Reconsider the Court’s May
26, 2017 Letter Order, which, inter alia, granted the Motion for Summary Judgment filed by
Defendant Social Security Administration (“the Commissioner”). [ECF No. 23]. I have also
reviewed the Commissioner’s opposition. [ECF No. 24]. In her motion, Ms. Whitfill reiterates
her assertion that the ALJ failed to properly apply the special technique for evaluating mental
impairments under Patterson v. Commissioner, Soc. Sec. Admin., 632 F. App’x 750 (4th Cir.
2015). [ECF No. 23]. In addition, Ms. Whitfill contends that the ALJ failed to properly assess
her credibility in light of the Fourth Circuit’s intervening decision in Lewis v. Berryhill, 858 F.3d
858 (4th Cir. 2017). Although I still conclude that the ALJ’s error under Patterson was
harmless, I agree that the ALJ failed to properly assess Ms. Whitfill’s credibility under Lewis.
No hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below,
Ms. Whitfill’s motion is GRANTED.
Beginning with the successful argument, in Lewis, the Fourth Circuit determined that
remand was required, in part, because “[t]he ALJ’s decision applied an improper legal standard
to discredit [the claimant’s] [credibility].” Lewis, 858 F.3d at 870. Specifically, the Fourth
Circuit held that the ALJ improperly discounted the claimant’s subjective complaints “based
solely on the lack of objective evidence” supporting the claimant’s assertions. Id. at 866. Social
Security regulations do not permit an ALJ to “reject [a claimant’s] statements about the intensity
and persistence of [] pain or other symptoms or about the effect [those] symptoms have on [a
claimant’s] ability to work solely because the available objective medical evidence does not
substantiate [his or her] statements.” Id. (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2))
(emphasis added); see SSR 96-7p, 1996 WL 374186, at *1 (“An individual’s statements about
the intensity and persistence of pain or other symptoms or about the effect the symptoms have on
her or her ability to work may not be disregarded solely because they are not substantiated by
objective medical evidence.”). Rather, the Fourth Circuit emphasized that the ALJ failed to
“explain in her decision what statements by [the claimant] undercut [the] subjective evidence of
pain as limiting [the claimant’s] functional capacity.” Lewis, 858 F.3d at 866. Accordingly, the
Lewis Court determined that remand was necessary.
In this case, the ALJ found that Ms. Whitfill’s statements regarding her symptoms were
“not entirely credible.” (Tr. 17). Ms. Whitfill argues that the ALJ failed to “explain in his
Sharon A. Whitfill v. Commissioner, Social Security Administration
Civil No. SAG-16-1996
July 24, 2017
decision what statements by [Ms. Whitfill] undercut her subjective evidence of pain,” and that,
therefore, remand is warranted. [ECF No. 23, p. 9]. However, the Commissioner contends that
Lewis does not require an ALJ to support an adverse credibility finding with evidence of a
claimant’s own subjective statements. [ECF No. 24, p. 4]. Instead, the Commissioner argues
that the support of other non-objective evidence, such as medical opinion evidence and treatment
records, independently satisfies the Fourth Circuit’s mandate in Lewis.1 Id. at p. 5 (arguing that
“Lewis has no bearing on this case because…[t]he ALJ identified other proper rationale,” and
citing Plaintiff’s daily activities and conservative treatment records.).
Although the precise scope of the Lewis ruling need not be determined in the instant case,
the ALJ here failed to support her adverse credibility finding with sufficient evidence. Notably,
in Lewis, the ALJ cited some non-objective evidence to support his credibility finding. For
example, the ALJ in Lewis noted that “the claimant reported significant but transient relief of her
pain symptoms.” Lewis, 858 F.3d 858 at (Tr. 25). The ALJ also noted that “the claimant stated
that her left upper extremity shakes but noted no other problems with the functioning of her arms
or legs.” Id. at (Tr. 26). The ALJ further noted that, although “the claimant reported ongoing
pain that was 10/10 in severity,” she “denied numbness, tingling, or weakness.” Id. Moreover,
the ALJ noted that “the claimant reported significant [post-operative] improvement in her
symptoms within 24 hours,” conceded “that the numbness and tingling of her hand was gone,”
and admitted “occasional help with offered injections.” Id. at (Tr. 27). Furthermore, the ALJ
noted that, “[i]n spite of her ongoing pain,” the claimant admitted that she “retain[ed] the
capacity to take care of most personal needs, drive short distances of up to 30 miles, shop for
groceries with the assistance of her mother or roommate, handle her finances, and watch
television.” Id. at (Tr. 28). Nevertheless, the Fourth Circuit deemed the ALJ’s opinion deficient.
In the instant case, the ALJ provided even less evidence in support of his credibility
finding than the ALJ in Lewis. The ALJ failed to cite any “statements by [Ms. Whitfill]
undercut[ting] [the] subjective evidence of pain intensity[.]” Lewis, 858 F.3d at 866. Instead,
the ALJ noted that Ms. Whitfill consistently alleged disabling pain since her disability onset date
in 2010, and “continually sought treatment for her complaints.” (Tr. 17); see id. (noting that the
record indicates that [Ms. Whitfill] continued to complain of constant pain, rating it between four
to eight on a scale of one to ten[.]”). The Commissioner contends that the ALJ’s discussion of
Ms. Whitfill’s daily activities and “conservative” treatment history provide sufficient nonobjective evidence to support an adverse credibility determination. However, the ALJ failed to
explain how Ms. Whitfill’s statements regarding her daily activities were inconsistent with her
allegations of pain. (Tr. 18). Additionally, although the ALJ notes that Ms. Whitfill’s
“conservative” treatment history belies her allegations of pain, the ALJ concedes that “this
treatment did not alleviate [Ms. Whitfill’s] symptoms[.]” (Tr. 17). Moreover, in discounting
Ms. Whitfill’s credibility, the ALJ repeatedly and exclusively emphasized the absence of
objective evidence supporting the subjective evidence of pain, in direct contravention of Lewis.
See, e.g., (Tr. 17) (noting that although Ms. Whitfill “complained of pain in her right hand and
1
Social Security regulations define “objective medical evidence” as “medical signs, laboratory findings, or both.”
20 C.F.R. §§ 404.1502(f), 416.902(k). The regulations note that “other evidence” includes a claimant’s statements,
medical and non-medical source opinions, medication histories, treatment records, and admitted daily activities. 20
C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
2
Sharon A. Whitfill v. Commissioner, Social Security Administration
Civil No. SAG-16-1996
July 24, 2017
left knee…[x]-rays were taken and revealed normal findings in the right hand, with no evidence
of fracture or other osseous or soft tissue abnormality,” and “[x]-rays also revealed normal
findings in the left knee, with no evidence of a fracture or dislocation[.]”); id. (noting that,
“[e]ven though [Ms. Whitfill] continued to complain of symptoms from this incident, physical
examinations showed largely normal findings, with pain on palpitation of the right hand and
slight muscle wasting noted on the right hand, but also normal (and sometimes excellent) range
of motion and normal gait and station.”); id. (noting that, although Ms. Whitfill claimed her
“treatment did not alleviate [her] symptoms…objective findings remained mild. This suggests
that [her] complaints of pain are not as intense as alleged.”); (Tr. 18) (noting that “recent
diagnostic imaging also suggests that [Ms. Whitfill’s] complaints of pain are not as severe as
claimed,” and citing the absence of “fractures,” “dislocations,” and “arthritic changes” on x-ray
images). Considering the facts of this case, including Ms. Whitfill’s consistent allegations of
pain, the absence of non-objective evidence supporting the ALJ’s credibility finding, and the
ALJ’s reliance on objective evidence to discount Ms. Whitfill’s subjective complaints, the ALJ
failed to properly assess Ms. Whitfill’s credibility under Lewis. Remand on this basis is
therefore warranted. In remanding for additional explanation, I express no opinion as to whether
the ALJ’s ultimate determination that Ms. Whitfill was not entitled to benefits was correct or
incorrect.
Ms. Whitfill also argues that this Court erred by concluding that the ALJ’s failure to
evaluate the conclusions of two non-examining State agency physicians, who found that she
suffered “moderate” difficulties, instead of “mild” difficulties, in the area of concentration,
persistence, or pace constituted harmless error under Patterson. [ECF No. 23, pp. 4-5] (citing
(Tr. 80, 93, 107, 119)). Specifically, Ms. Whitfill contends that, had the ALJ evaluated this
opinion evidence, he would have found “moderate difficulties” in concentration, persistence, or
pace, and therefore his holding would have run afoul of the Fourth Circuit’s decision in Mascio
v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015). However, Ms. Whitfill’s contention requires several
layers of speculation: first as to the result of the ALJ’s evaluation of the opinions, and second as
to the RFC assessment that would have been reached if the opinions had been considered.
Regardless, while this deficiency may not warrant remand on its own, since the case is being
remanded on other grounds, the ALJ should, on remand, evaluate the opinions of the State
agency physicians and consider the appropriate level of limitation in the area of concentration,
persistence, or pace.
For the reasons set forth herein, Ms. Whitfill’s Motion to Reconsider, (ECF No. 23), is
GRANTED. Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is
REVERSED IN PART due to inadequate analysis. The case is REMANDED for further
proceedings in accordance with this opinion. 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.
3
Sharon A. Whitfill v. Commissioner, Social Security Administration
Civil No. SAG-16-1996
July 24, 2017
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?