Whiting v. Commissioner, Social Security

Filing 22

ORDER granting 17 Defendant's Motion for Summary Judgment; affirming the Commissioner's judgment; directing Clerk to close this case. Signed by Magistrate Judge Stephanie A Gallagher on 11/13/2017. (c/m 11/14/17) (krs, 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]

November 13, 2017
Joann Whiting
1332 N. Woodyear Street
Baltimore, MD 21217
Aparna V. Srinivasan
Social Security Administration
6401 Security Boulevard Room 617
Baltimore, MD 21235
RE:

Joann Whiting v. Commissioner, Social Security Administration;
Civil No. SAG-17-737

Dear Ms. Whiting and Counsel:
On March 17, 2017, Plaintiff Joann Whiting petitioned this Court to review the Social
Security Administration’s final decision to deny her claims for Disability Insurance Benefits and
Supplemental Security Income. [ECF No. 1]. I have considered the Commissioner’s Motion for
Summary Judgment, Plaintiff’s reply, and the medical records Ms. Whiting filed in response, in
addition to arguments made by Ms. Whiting’s former attorney at the administrative level. [ECF
Nos. 17, 19, 21]. 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 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. Whiting filed claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on February 8, 2011, alleging a disability onset date of March 31, 2009.
(Tr. 391-404). Ms. Whiting later amended her alleged disability onset date to July 1, 2013. (Tr.
45). Her claims were denied initially and on reconsideration. (Tr. 137-58, 161-210). A hearing,
at which Ms. Whiting was represented by counsel, was held on December 4, 2013, before an
Administrative Law Judge (“ALJ”). (Tr. 73-136). Following that hearing, the ALJ determined
that Ms. Whiting was not disabled within the meaning of the Social Security Act during the
relevant time frame. (Tr. 213-34). The Appeals Council (“AC”) granted Ms. Whiting’s request
for review and remanded her claims for further proceedings. (Tr. 235-40). The ALJ held a
second hearing, at which Ms. Whiting was again represented by counsel, on May 12, 2015. (Tr.
41-72). The ALJ subsequently issued a new decision, again finding that Ms. Whiting was not

Joann Whiting v. Commissioner, Social Security Administration
Civil No. SAG-17-737
November 13, 2017
Page 2
disabled. (Tr. 20-40). This time, the AC denied Ms. Whiting’s request for review, (Tr. 8-12), so
the ALJ’s 2015 decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Ms. Whiting suffered from the severe impairments of “obesity,
hypertension, hyperlipidemia, mitral valve prolapse, status-post hysterectomy and tubal ligation,
alcohol dependence, depression, and adjustment disorder.” (Tr. 23). Despite these impairments,
the ALJ determined that Ms. Whiting retained the residual functional capacity (“RFC”) to:
perform sedentary work, as defined in 20 CFR 404.1567(a) and 416.967(a),
except that she can no more than occasionally balance, stoop, kneel, crouch,
crawl, and climb ramps and stairs; never climb ladders, ropes, and scaffolds;
avoid concentrated exposure to extreme temperatures, excessive vibration, and
hazards such as moving machinery and unprotected heights. In addition, she can
only perform simple, routine, repetitive, low-stress (no strict production quotas)
work involving no more than occasional interaction with supervisors, co-workers,
and the general public.
(Tr. 25). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that, if Ms. Whiting stopped substance use, she could perform her past relevant work as a patient
financial representative/insurance clerk, along with other jobs existing in significant numbers in
the national economy. (Tr. 31-32). Accordingly, the ALJ determined that Ms. Whiting was not
disabled. (Tr. 32).
I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart,
386 F. Supp. 2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review
of a pro se action challenging an adverse administrative decision, including: (1) examining
whether the Commissioner’s decision generally comports with regulations, (2) reviewing the
ALJ’s critical findings for compliance with the law, and (3) determining from the evidentiary
record whether substantial evidence supports the ALJ’s findings). For the reasons described
below, substantial evidence supports the ALJ’s decision.
The ALJ proceeded in accordance with applicable law at all five steps of the sequential
evaluation. The ALJ ruled in Ms. Whiting’s favor at step one and determined that she has not
engaged in substantial gainful activity since her amended alleged onset date of July 1, 2013. (Tr.
23); see 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the ALJ then considered
the severity of each of the impairments that Ms. Whiting claimed prevented her from working.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). After finding at least one of Ms.
Whiting’s impairments severe, (Tr. 23), the ALJ continued with the sequential evaluation and
considered, in assessing Ms. Whiting’s RFC, the extent to which her impairments limited her
ability to work.
At step three, the ALJ determined that Ms. Whiting’s impairments did not meet the
specific requirements of, or medically equal the criteria of, any listings. (Tr. 23-25). In
particular, because Ms. Whiting alleged several mental impairments, the ALJ applied the special

Joann Whiting v. Commissioner, Social Security Administration
Civil No. SAG-17-737
November 13, 2017
Page 3
technique for evaluation of such claims, using a five-point scale to rate a claimant’s degree of
limitation in the first three areas: none, mild, moderate, marked, or extreme. 20 C.F.R. §
416.920a(c)(4). In order to satisfy paragraph B, a claimant must exhibit either “marked”
limitations in two of the first three areas, or “marked” limitation in one of the first three areas
with repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.02. The ALJ determined that, even “including the substance use disorder,” Ms. Whiting had
only mild restriction in activities of daily living, moderate difficulties in social functioning and
concentration, persistence, or pace, and no episodes of decompensation. (Tr. 24). Therefore, the
mental health listings are not met. The ALJ did not identify or evaluate any physical listings.
Under existing Fourth Circuit law, an ALJ only has to identify a listing and compare the
evidence to the listing requirements where there is ample evidence to suggest that the listing is
met. See Huntington v. Apfel, 101 F. Supp. 2d 384, 390 (D. Md. 2000) (citing Cook v. Heckler,
783 F.2d 1168, 1172 (4th Cir. 1986)); see also Ketcher v. Apfel, 68 F. Supp. 2d 629, 645 (D. Md.
1999) (noting that the “duty of identification of relevant listed impairments and comparison of
symptoms to Listing criteria is only triggered if there is ample evidence in the record to support a
determination that the claimant’s impairment meets or equals one of the listed impairments”). I
have carefully reviewed the record, and I agree that no listings are met in this case.
In considering Ms. Whiting’s RFC, the ALJ summarized her subjective complaints from
her hearing testimony. (Tr. 25). The ALJ then engaged in a detailed review of her mental and
physical medical records. (Tr. 25-29). The ALJ noted that the substantive mental health records
in the file included only (1) a mental health screening with Dr. Veronica Franklin on August 24,
2011; (2) a psychiatric evaluation with Dr. Nadia Zakriya on June 5, 2012; and (3) a follow-up
evaluation with Dr. Franklin on May 15, 2013. (Tr. 25-26). Dr. Franklin then issued a series of
opinions about Ms. Whiting’s functional capacities. (Tr. 26-27). In assessing those opinions, the
ALJ noted: “In a statement dated June 3, 2015, Dr. Franklin indicated that she had seen the
claimant in weekly sessions since June[,] 2012. The undersigned notes that there is no objective
clinical evidence to support this claim.” (Tr. 27). The ALJ further stated, with respect to Dr.
Franklin:
In addition, she asserts a variety of diagnoses and symptoms to support her
conclusions, none of which are objectively documented in the record, as there are
no ongoing objective treatment notes in evidence containing the necessary clinical
signs and laboratory studies. It follows that her June[,] 2015 conclusions are
afforded no more than modest weight, because the supporting facts she presents
are not supported by any objective clinical treatment notes.
(Tr. 28).
Ultimately, my review of the ALJ’s decision is confined to whether substantial
evidence, in the record as it was reviewed by the ALJ, supports the decision and whether correct
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 404 (1971). Even if
there is other evidence that may support Ms. Whiting’s position, I am not permitted to reweigh
the evidence or to substitute my own judgment for that of the ALJ. Hays v. Sullivan, 907 F.2d

Joann Whiting v. Commissioner, Social Security Administration
Civil No. SAG-17-737
November 13, 2017
Page 4
1453, 1456 (4th Cir. 1990). It is the claimant’s burden to produce medical records in support of
her claim. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (noting that the claimant bears
the burden of proof during the first four steps of the sequential evaluation). In fact, in this case,
Ms. Whiting’s then-attorney requested additional time to provide treatment records from Dr.
Franklin, and then requested another one-week extension, but eventually produced only Dr.
Franklin’s unsubstantiated opinions without supporting documentation. (Tr. 44, 527). In
considering the entire record, and the evidence outlined above, I cannot find error in the ALJ’s
conclusion that Dr. Franklin’s assertions were simply unsupported by the record evidence. I note
that, even in the more complete set of medical records filed in this Court by Ms. Whiting, there
are no additional treatment notes from her sessions with Dr. Franklin, although there is a
summary document appearing to corroborate the fact that weekly appointments were held.
Without the contemporaneous treatment notes to substantiate Dr. Franklin’s opinions, the ALJ
appropriately assigned those opinions less weight.
Next, the ALJ determined that, if Ms. Whiting stopped all substance use, a person with
her RFC would be capable of performing her past relevant work as a patient financial
representative/insurance clerk, in addition to other sedentary work existing in significant
numbers in the national economy. (Tr. 31-32). Ms. Whiting challenges the suggestion that
alcohol use is impacting her mental condition, and the record seems to substantiate that Ms.
Whiting stopped consuming alcohol some time ago (although the precise end date is not clear
from the medical evidence). However, again, without treatment records from Dr. Franklin to
depict Ms. Whiting’s mental state after she stopped using alcohol, the ALJ justifiably based his
conclusions on the few records available to him (which were written during Ms. Whiting’s
period of alcohol use). Accordingly, I find that the ALJ’s determination was supported by
substantial evidence on the record presented to him.
In support of her request for remand, Ms. Whiting filed two large envelopes of medical
records, which I have reviewed in full. [ECF No. 21]. Many of the records are already
contained within the administrative file reviewed by the ALJ.1 There are three new categories of
items: (1) one new document showing, in summary format, the dates of Ms. Whiting’s medical
appointments at True Health Center (“THC”), including her weekly visits with Dr. Franklin; (2)
a folder of cardiology records from Union Memorial; and (3) medical records post-dating the
ALJ’s opinion (from the years 2016 and 2017). Because those items were not provided to the
Commissioner in the underlying proceedings, they can only be considered under sentence six of
42 U.S.C. § 405(g), which provides:

1

In addition, one set of documents filed by Ms. Whiting includes Family and Medical Leave Act documentation
from her employment in the 2005-2007 time frame, a statement from the Faculty and Staff Assistance Program
describing supportive sessions in 2003 and 2006, and a toxicology test result from 1997. Although those documents
evidence that Ms. Whiting had medical concerns going back to those early dates, some of the documents are already
contained in the administrative record, and even those that were not do not constitute “new and material evidence”
that might materially impact the ALJ’s determination as to whether Ms. Whiting was disabled on or after her
amended alleged onset date of July 1, 2013. See 42 U.S.C. § 405(g).

Joann Whiting v. Commissioner, Social Security Administration
Civil No. SAG-17-737
November 13, 2017
Page 5
The court may . . . at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding[.]
42 U.S.C. § 405(g). When invoking sentence six, a court does not either affirm or reverse the
Commissioner’s decision. See Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). “Rather, the
court remands because new evidence has come to light that was not available to the claimant at
the time of the administrative proceeding and that evidence might have changed the outcome of
the prior proceeding.” Id.
Importantly, a reviewing court must find that four prerequisites are met before a case can
be remanded to the Commissioner on the basis of new evidence:
the evidence is relevant to the determination of disability at the time the
application was first filed; (2) the evidence is material to the extent that the
Commissioner’s decision might reasonably have been different had the new
evidence been before him; (3) there is good cause for the claimant’s failure to
submit the evidence when the claim was before the Commissioner; and (4) the
claimant made at least a general showing of the nature of the new evidence to the
reviewing court.
Blair ex rel. J.D.S. v. Astrue, Civil No. 1–10cv–1476–RMG–JDA, 2012 WL 1016633, at *4
(D.S.C. Feb. 29, 2012) (citing Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985)). See also
42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983). In this case, the
summary report from THC simply evidences that Dr. Franklin indeed saw Ms. Whiting on a
weekly basis (or close thereto). In assessing Dr. Franklin’s opinions, the ALJ had noted “that
there is no objective clinical evidence to support” the assertion that Ms. Whiting had weekly
sessions with Dr. Franklin. (Tr. 27). While the summary report is certainly objective evidence
of the visits, it is not “clinical.” In fact, as discussed above, neither the administrative record nor
the records submitted by Ms. Whiting contain Dr. Franklin’s treatment notes (other than the
intake visit and a single additional visit in May of 2013).
Ms. Whiting’s filing also contains cardiology records from MedStar Medical Group at
Union Memorial, both from the 2014-2015 time frame before the ALJ’s December 8, 2015
opinion, and from 2016. None of those documents became part of the administrative record
below. With respect to the 2014-2015 records, Ms. Whiting has failed to show (1) good cause
for not submitting the evidence when the claim was before the Commissioner, and (2) how the
Commissioner’s decision might reasonably have been different if the new evidence were
considered. As noted above, the burden of producing medical records rests with the claimant
and her counsel at the administrative proceedings. See Pass, 65 F.3d at 1203. Moreover, the
2014-2015 cardiac records seem largely consistent with the earlier records reflecting “only mild,
at most, reduction in cardiac function.” (Tr. 28). The records at that time indicated that Ms.
Whiting’s cardiac symptoms were well-controlled on flecainide. In light of the ALJ’s reduction

Joann Whiting v. Commissioner, Social Security Administration
Civil No. SAG-17-737
November 13, 2017
Page 6
of Ms. Whiting’s exertional capacity to sedentary to account for her cardiac symptoms, the
additional 2014-2015 cardiac records do not indicate that the Commissioner’s decision would
have differed had the records been considered.
With respect to the cardiac records Ms. Whiting submitted from 2016, those records do
not clearly relate to the time frame predating the ALJ’s opinion. The records reflect that a Holter
monitor showed that Ms. Whiting had some cardiac symptoms as of January 16, 2016, but that
Ms. Whiting “remains active and is exercising regularly without difficulty.” See Office Visit
Note from April 12, 2016. Although the records reflected increased fatigue developing later in
2016, see Office Visit Note from June 16, 2016, and October 18, 2016, those records would only
be relevant to a subsequent application for disability benefits. Similarly, Ms. Whiting has
submitted newer records from her primary care physician from 2016 and 2017, reflecting some
joint pain and back pain, and a medical record from June 22, 2017, showing that Ms. Whiting
was diagnosed with “carpal tunnel syndrome of right wrist.” In the absence of any evidence
showing the duration or severity of those conditions, the records do not constitute “new and
material evidence” showing that the ALJ’s decision on December 8, 2015 was erroneous. See 42
U.S.C. § 405(g). Those records also would only be relevant to a new application for benefits
incorporating the 2016-2017 timeframe.
For the reasons set forth herein, Defendant’s Motion for Summary Judgment, (ECF No.
17), is GRANTED. The Commissioner’s judgment is AFFIRMED pursuant to sentence four of
42 U.S.C. § 405(g). 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