Clites v. Berryhill
MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 3/9/2018. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ERIN PATRICIA CLITES,
NANCY A. BERRYHILL,
Social Security Administration
Civil Action No. CBD-17-0295
Erin Patricia Clites (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) and 42
U.S.C. § 1383(c)(3), seeking judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”). The Commissioner denied Plaintiff’s claim
for a period of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act
and 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. 19) and Commissioner’s Motion for Summary Judgment (“Commissioner’s Motion”) (ECF
No. 20). 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.
On February 6, 2013, Plaintiff filed for DIB under Title II and SSI under Title XVI,
alleging disability beginning March 3, 2011. R. 194–201; R. 185–93. Plaintiff alleged disability
due to plantar fasciitis and reconstructive surgery of the left foot. R. 22. Plaintiff’s claims were
initially denied on September 12, 2013. R. 74–99. Subsequently, Plaintifff filed for
reconsideration on November 6, 2013, and Defendant affirmed her initial determination on
February 19, 2014. R. 133; R. 100–25. An administrative hearing was held on September 30,
2015, R. 17–35, and on December 11, 2015, the claim was denied. R. 15–16. Plaintiff sought
review by the Appeals Council, which concluded on December 7, 2016, that there was no basis
for granting the Request for Review. R. 1–6.
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.”).
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.
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 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)).
The ALJ evaluated Plaintiff’s claim using the five-step sequential evaluation process. R.
21–30. At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful
activity since March 3, 2011. R. 22. At step two, under 20 C.F.R. §§ 404.1520(c) and
416.920(c), the ALJ determined that Plaintiff has the following severe impairments: plantar
fasciitis and reconstructive surgery of the left foot. R. 22–23. The ALJ stated that “when
considered in the aggregate, [the record] support[s] a conclusion that the above impairments
cause significant limitation on the claimant’s ability to perform basic work activities during the
period being adjudicated.” R. 23. 1 At step three, the ALJ determined that Plaintiff does not have
an impairment or a combination of impairments that meet or medically equal the severity of one
of the listed impairments in 20 C.F.R. § 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926. R. 24. At step four, the ALJ determined that Plaintiff has the RFC to perform
sedentary work as defined in 20 C.F.R. §§404.1567(c) and 416.967(c) except that Plaintiff can
occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds. Id. The ALJ further
determined that Plaintiff can occasionally balance, stoop, kneel, crouch, and crawl; Plaintiff can
have occasional exposure to extreme cold and no exposure to hazards. Id. At step five, the ALJ
determined that Plaintiff is unable to perform any past relevant work as a forklift/industrial truck
operator. R. 28–29. However, the ALJ then concluded that there are jobs that exist in significant
numbers in the national economy that accommodate Plaintiff’s known limitations, and
accordingly, Plaintiff is not disabled within the meaning of the Social Security Act. R. 29–30.
The ALJ also noted that Plaintiff’s bipolar disorder, mood disorder and/or opioid dependence
do not “impose any significant restrictions on the claimant’s ability to perform basic work
activities.” R. 23. The ALJ supported this assertion after considering the “four broad
foundational areas set out in the disability regulations for evaluation mental disorders. Id.
On appeal, Plaintiff argues that the Court should enter judgment as a matter of law in her
favor, or in the alternative, remand this matter to the Social Security Administration for a new
administrative hearing, alleging that the ALJ failed to support his final decision with substantial
evidence. Pl.’s Mot. 3, 16. For the reasons set forth below, the Court reverses and remands the
As discussed earlier, at step three of the five step process, the ALJ made the
determination that Plaintiff did not have an impairment or combination of impairments that met
the severity of one of the listed impairments, specifically finding that Plaintiff’s impairments did
not meet listing 1.03. R. 24. The ALJ reasoned that Plaintiff did not meet listing 1.03 because
“she is able to ambulate effectively and effective ambulation occurred within 12 months,” while
referencing nine documents from Plaintiff’s medical records. Id. However, the ALJ failed to
provide sufficient explanation for his finding, and while Defendant attempts to identify sufficient
evidence from the record supporting the ALJ’s findings, the “primary function of this Court on
review. . . is not to try plaintiff’s claim de novo, but rather to leave the findings of fact to the
agency and to determine upon the whole record whether the agency’s decision is supported by
substantial evidence.” Schoofield v. Barnhart, 220 F. Supp. 2d 512, 515 (4th Cir. 2002).
Additionally, “although it is clear that the ultimate responsibility for deciding whether a
claimant’s impairments meet or equal any in the LOI is reserved to the Commissioner, it is also
clear that an ALJ has a duty to explain the basis for his decision.” Id. at 519.
While this Court is required to accept the ALJ’s factual findings if they are supported by
substantial evidence with the application of the correct legal standard, it cannot affirm findings in
the absence of substantial evidence. Owens v. Comm’r, Soc. Sec., Civ. Case No. MJG-17-829,
2017 WL 6621107 at *1 (D. Md. Dec. 28, 2017) (citing 42 U.S.C. §§ 405(g), 1383(c)(3); Craig
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987)). This Court, and the Fourth Circuit, has made it clear that upon a finding that a
claimant’s impairments do not meet the requirements of a specific listing, the ALJ must support
that finding with more than a conclusory statement. See Schoofield, 220 F. Supp. 2d, at 519. In
the instant case, the Court is unable to make a determination on whether the ALJ’s decision is
supported by substantial evidence, as the ALJ’s decision rests solely on his conclusory statement
that “the claimant does not meet listing 1.03 because she is able to ambulate effectively and
effective ambulation occurred within 12 months.” R. 24. The Court is persuaded by Plaintiff’s
objections that accepting Defendant’s arguments, not raised by the ALJ is his decision, would
cause the Court to take on the role of fact finder. Instead, the Court must look to the ALJ’s
decision and the specific references to the evidence presented, or lack thereof, in making its
In his finding that Plaintiff’s impairments did not meet or equal the requirements of
listing 1.03, the ALJ made specific reference to nine pages presented in three exhibits: Ex. 1F at
p. 2, 3F at p. 8, 19, 24, 29, 33, 43, and 69, and 8F at p. 25. The Court finds that the evidence
referenced supports the ALJ’s finding that effective ambulation occurred within 12 months.
Specifically, the ALJ makes reference to medical records presented as evidence that Plaintiff’s
gait was determined to be normal on August 24, 2010 (Ex. 1F, p. 2), April 24, 2013 (Ex. 3F, p. 8,
19, 24, 29, 33, 43 and 69), and January 24, 2014 (Ex. 8F, p. 25). However, the Court is
persuaded that contradictory evidence is also present in the record. See, e.g., R. 786 (noting that
Plaintiff suffered from “gait dysfunction” in November, 2013.); R. 1361 (indicating that Plaintiff
suffered from impairments related to gait and weight-bearing in October, 2014). While
Defendant attempts to contend that this evidence does not contradict the ALJ’s decision, the ALJ
did not address this evidence in his decision. As such, the Court finds that the ALJ failed to
provide sufficient explanation for her conclusion in the face of contradictory evidence. Indeed,
“when faced with evidence in the record contradicting his conclusion, the ALJ must
affirmatively reject that contradictory evidence and explain his rationale for doing so.”
Schoofield, 220 F. Supp. 2d, at 519; citing to Director, OWCP v. Congleton, 743 F.2d 428, 430
(6th Cir. 1984) (finding that an ALJ’s “conclusory opinion, which does not encompass a
discussion of the evidence contrary to his findings, does not warrant affirmance.”). After
reviewing Plaintiff’s Motion, Defendant’s Motion and the record, the Court is convinced that
remand is warranted for the ALJ to address contradictory evidence present in the record.
The Court finds that the ALJ failed to provide sufficient explanation as to why
contradictory evidence was rejected. Without guidance from the ALJ about why this
contradictory evidence was not considered, the Court is left to speculate. The Court remands the
case back to the ALJ with the specific instruction to develop the record by providing an
explanation addressing the contradictory evidence presented.
Based on the foregoing, the Court REVERSES and REMANDS this matter for further
March 9, 2018
Charles B. Day
United States Magistrate Judge
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