Thompson v. Colvin

Filing 23

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 2/7/2018. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
MELVIN THOMPSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration
Defendant.

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Civil Action No. CBD-16-3867

MEMORANDUM OPINION
Melvin Thompson (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) seeking
judicial review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”). The Commissioner denied Plaintiff’s claim for Supplemental Security
Income Benefits (“SSI”) under Title XVI of the Social Security Act. Before the Court are
Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 18) and
Commissioner’s Motion for Summary Judgment (“Commissioner’s Motion”) (ECF No. 19).
The Court has reviewed the motions, related memoranda, and the applicable law. No hearing is
deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court
hereby REVERSES and REMANDS the matter for further clarification.
I.

Procedural Background
On November 18, 2013, Plaintiff filed for SSI under Title XVI, alleging disability

beginning November 4, 2013. R. 22, 204–09. Plaintiff’s application was initially denied on
March 28, 2014. R. 78–86. Thereafter, Plaintiff filed for reconsideration, and on August 18,

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2014, Defendant affirmed the initial decision denying Plaintiff’s application. R. 110–12, 87–97.
An administrative video hearing was held on June 16, 2016, R. 36-64, and on June 28, 2016, the
claim was denied. R. 19. Plaintiff sought review by the Appeals Council, which concluded on
October 18, 2016, that there was no basis for granting the Request for Review. R. 1-7.
II.

Standard of Review
On appeal, the Court has the power to affirm, modify, or reverse the decision of the

ALJ “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (2015).
The Court must affirm the ALJ’s decision if it is supported by substantial evidence and the
ALJ applied the correct law. Id. (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive.”); see also Russell v.
Comm’r of Soc. Sec., 440 F. App’x 163, 164 (4th Cir. 2011) (citing Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990)). “In other words, if the ALJ has done his or her job
correctly and supported the decision reached with substantial evidence, this Court cannot
overturn the decision, even if it would have reached a contrary result on the same evidence.”
Schoofield v. Barnhart, 220 F. Supp. 2d 512, 515 (D. Md. 2002). Substantial evidence is
“more than a mere scintilla.” Russell, 440 F. App’x, at 164. “It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Hays, 907 F.2d, at 1456
(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks
omitted) (“It consists of more than a mere scintilla of evidence but may be somewhat less
than a preponderance. If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”).

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The Court does not review the evidence presented below de novo, nor does the Court
“determine the weight of the evidence” or “substitute its judgment for that of the Secretary
if his decision is supported by substantial evidence.” Hays, 907 F.2d at 1456 (citations
omitted); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (“[T]he
language of § 205(g) precludes a de novo judicial proceeding and requires that the court
uphold the Secretary's decision even should the court disagree with such decision as long as
it is supported by ‘substantial evidence.’ ”). The ALJ, not the Court, has the responsibility
to make findings of fact and resolve evidentiary conflicts. Hays, 907 F.2d, at 1456
(citations omitted). If the ALJ’s factual finding, however, “was reached by means of an
improper standard or misapplication of the law,” then that finding is not binding on the
Court. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (citations omitted).
The Court shall find a person legally disabled under Title II and Title XVI if she is unable
“to do any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a),
416.905(a) (2012). The Code of Federal Regulations outlines a five-step process that the
Commissioner must follow to determine if a claimant meets this definition:
1) Determine whether the plaintiff is “doing substantial gainful activity.” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i) (2012). If she is doing such activity, she is not
disabled. If she is not doing such activity, proceed to step two.
2) Determine whether the plaintiff has a “severe medically determinable physical or mental
impairment that meets the duration requirement in § [404.1509/416.909], or a
combination of impairments that is severe and meets the duration requirement.” 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (2012). If she does not have such
impairment or combination of impairments, she is not disabled. If she does meet these
requirements, proceed to step three.

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3) Determine whether the plaintiff has an impairment that “meets or equals one of [the
C.F.R.’s] listings in appendix 1 of this subpart and meets the duration requirement.” 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) (2012). If she does have such
impairment, she is disabled. If she does not, proceed to step four.
4) Determine whether the plaintiff retains the “residual functional capacity” (“RFC”) to
perform “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (2012).
If she can perform such work, she is not disabled. If she cannot, proceed to step five.
5) Determine whether the plaintiff can perform other work, considering her RFC, age,
education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v)
(2012). If she can perform other work, she is not disabled. If she cannot, she is disabled.
Plaintiff has the burden to prove that she is disabled at steps one through four, and
Commissioner has the burden to prove that Plaintiff is not disabled at step five. Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
The RFC is an assessment that represents the most a claimant can still do despite any
physical and mental limitations on a “regular and continuing basis.” 20 C.F.R. §§ 404.1545(b)(c), 416.945(b)-(c). In making this assessment, the ALJ must consider all relevant evidence of
the claimant’s impairments and any related symptoms. See 20 C.F.R. §§ 404.1545(a),
416.945(a). The ALJ must present a “narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence
(e.g. daily activities, observations),” and must then “explain how any material inconsistencies or
ambiguities in the evidence in the case record were considered and resolved.” SSR 96-8p, 1996
WL 374184 at *7 (S.S.A.). “Ultimately, it is the duty of the [ALJ] reviewing the case, and not
the responsibility of the courts, to make findings of fact and to resolve conflicts of evidence.”
Hays, 907 F.2d at 1456 (citing King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)).
III.

Analysis
The ALJ evaluated Plaintiff’s claim using the five-step sequential evaluation process. R.

22–31. At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful
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activity since November 18, 2013. R. 24. At step two, under 20 C.F.R. § 416.920(c), the ALJ
determined that Plaintiff has the following severe impairments: obesity, degenerative disc
disease of the lumbar spine, and diabetes mellitus. Id. The ALJ stated that the “medically
determinable impairments are severe, because they have more than a minimal effect on the
claimant’s ability to do basic work activities.” Id. In step three, the ALJ determined that
Plaintiff does not have an impairment or a combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. §§ 416.920(d), 416.925 and
416.926. R. 25. At step four, the ALJ determined that Plaintiff has the RFC to perform light
work as defined in 20 C.F.R. § 416.967(b) except frequently balancing, stooping, kneeling,
crouching and crawl; occasionally climbing ramps and stairs; never climbing ladders, ropes or
scaffolds. Id. At step five, the ALJ determined that Plaintiff is capable of performing his past
relevant work as a barber. R. 30. The ALJ then concluded that Plaintiff is not disabled within
the meaning of the Social Security Act. R. 31.
On appeal, Plaintiff argues that the Court should enter judgment as a matter of law in his
favor, or in the alternative, remand this matter to the Social Security Administration for a new
administrative hearing, alleging that the ALJ’s final decision is not supported by substantial
evidence. Pl.’s Mot. 1, 3. For the reasons set forth below, the Court reverses and remands the
ALJ’s decision.
A. The ALJ failed to consider all relevant evidence in making his decision.
Plaintiff alleges that the ALJ erred in his decision finding that Plaintiff does not have an
impairment or combination of impairments that meet the severity of one of the listed
impairments in 20 C.F.R. §§ 416.920(d), 416.925, and 416.926 (“the Listings”). Pl. Mot. 8–18.
As Plaintiff aptly states in his Response to Defendant’s Motion, this Court has stated that “it

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would be unfair to allow the Commissioner to rely on the absence of relevant information within
treatment notes that cannot be deciphered.” White v. Comm’r, Soc. Sec., 2014 WL 1024002, at
*2. (D. Md. Mar. 13, 2014). While the Court is persuaded by Defendant’s argument that the ALJ
provided sufficient evidence in his decision for why Plaintiff’s impairments fail to meet an
impairment included in the Listings, the Court must abide by the Rulings set forth by the Social
Security Administration. In SSR 96-5p, the Ruling states that:
The adjudicator is required to evaluate all evidence in the case record that may
have a bearing on the determination or decision of disability. . . Because treating
source evidence (including opinion evidence) is important, if the evidence does
not support a treating source's opinion on any issue reserved to the Commissioner
and the adjudicator cannot ascertain the basis of the opinion from the case record,
the adjudicator must make “every reasonable effort” to recontact the source for
clarification of the reasons for the opinion.
SSR 96-5p, 1996 WL 374183, at *3, *6. (S.S.A.). Here, the ALJ failed to evaluate all relevant
evidence in the case record, or reach out to Plaintiff’s treating physician for clarification of his
illegible visit notes. R. 30. As the ALJ stated in his decision, the ALJ did not “find [Dr.
Khalil’s] office visit notes legible enough to determine if he includes [positive straight leg raises
bilaterally] in his office visit notes.” Id. As such, the ALJ’s decision did not adequately address
all relevant evidence related to Plaintiff’s impairments. Accordingly, the case is REVERSED
and REMANDED with specific instructions for the ALJ to consider all relevant evidence,
specifically instances of sensory loss, and to clarify any relevant information which may be
material to Plaintiff’s claims.
B. The ALJ did not erroneously evaluate Plaintiff’s subjective complaints.
Plaintiff alleges that the ALJ erroneously evaluated Plaintiff’s subjective complaints. Pl.
Mot. 19. After considering the evidence presented, the ALJ determined that some of the alleged
symptoms could have reasonably been caused by Plaintiff’s impairments, but Plaintiff’s

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“statements concerning the intensity, persistence and limiting effects of these symptoms are not
consistent with the medical evidence.” R. 26. Plaintiff claims that the ALJ’s determination was
flawed in that it was only supported by “objective medical evidence,” which can not be the sole
basis for discrediting subjective allegations. Pl. Mot. 19–20. For the following reasons, the
Court is not persuaded that the ALJ erred in finding that Plaintiff’s statements were not credible
in regards to their intensity, persistence, and limiting effects.
Pursuant to 20 C.F.R. § 416.929, in evaluating a claimant’s subjective complaints, the
ALJ is required to follow a two-step process: (1) the ALJ must find that objective medical
evidence is present to show that a claimant has a medical impairment which could reasonably be
expected to produce the symptoms alleged; and (2) the ALJ must determine whether statements
about the intensity and persistence of a claimant’s symptoms are consistent with the objective
medical evidence. R. 25–26. The ALJ found that based on the objective medical evidence,
Plaintiff’s impairments could “reasonably be expected to cause some of the alleged symptoms.”
R. 26. The ALJ then considered relevant evidence presented in his determination that Plaintiff’s
statements lacked credibility, including Plaintiff’s conservative treatment, infrequent doctor
visits, and contradicting medical exams. R. 26–28. Specifically, the ALJ notes that the record
reflects visits to Plaintiff’s treating physician “only a handful of times” over the course of four
years, indicating that Plaintiff’s subjective claims were not as severe as alleged. R. 26–27.
While the Court does not suggest that a conservative course of treatment dismisses a claimant’s
subjective allegations, the Court finds that the ALJ used substantial evidence in making his
determination. Indeed, the ALJ relied heavily upon contradicting medical visits, specifically
noting that Plaintiff’s medical records show an inconsistent pattern of pain, sensory loss, and
medication usage.

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The ALJ provided sufficient explanation for why he did not give Plaintiff’s treating
physician controlling weight. “The ALJ is required to give ‘controlling weight’ to opinions
proffered by a claimant’s treating physician so long as the opinion is ‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant’s] case record.” Lewis v. Berryhill, 858 F.3d 858,
867 (4th Cir. 2017) (citing to 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)). Plaintiff relies on
Lewis in alleging that the ALJ erred by not giving controlling weight to Plaintiff’s treating
physician. Pl. Mot. 22–23. However, the decision in Lewis is not representative of the facts of
this case. The court in Lewis noted that “the ALJ’s rejection of Lewis’ treating physician sources
[was] perfunctory;” indeed finding that “all of the medical professionals who examined Lewis
provided opinions consistent with her treating physicians.” Id. at 868. In the present case, the
ALJ’s decision reflects contradicting opinions from the State agency medical consultants, Dr.
Martinek, and Dr. Khalil, Plaintiff’s treating physician. R. 29–30. Indeed, the facts of this case
more closely resemble the facts in McDonald v. Berryhill, which differentiated Lewis in stating
that “the Court held that the ‘ALJ’s analysis span[ned] only four lines and overlook[ed] critical
aspects of [the plaintiff’s] medical treatment history.” 2017 WL 6403861, at *5 (M.D. N.C.
2017) (citing Lewis, 858 F.3d at 868). Instead, the court in McDonald found that “the ALJ’s
analysis was more than a ‘perfunctory’ rejection; he noted a category of evidence – [treating
physician’s] own treatment notes – that the ALJ found to be inconsistent with [treating
physician’s] opinion.” Id. at *5. Similarly, this Court has previously determined that “the ALJ
satisfied his burden to produce substantial evidence contradicting [treating physician’s] opinions
by drawing on [treating physician’s] own treatment records.” Skinner v. Berryhill, 2017 WL
5624950, at *10 (D. Md. 2017). In the present case, the ALJ entitled Dr. Khalil limited weight

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based on his own treatment notes. R. 29. Indeed, the ALJ stated that Dr. Khalil’s treatment
notes are inconsistent with what he opined on multiple occasions. Id. The Court is convinced
that the ALJ did not err in assigning the appropriate weight to medical opinions.
IV.

Conclusion
Based on the foregoing, the Court REVERSES and REMANDS with instruction for the

ALJ to further review all relevant evidence presented on the record before making further
determinations.

February 7, 2018

/s/
Charles B. Day
United States Magistrate Judge

CBD/gbc

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