Avery v. Commissioner, Social Security
REPORT AND RECOMMENDATIONS re 13 MOTION for Summary Judgment filed by Commissioner, Social Security. Signed by Magistrate Judge Stephanie A Gallagher on 11/28/2017. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHARLENE H. AVERY
Civil Case No. JKB-17-1064
COMMISSIONER, SOCIAL SECURITY
REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014–01, the above-referenced case has been referred to me
for review of the Commissioner’s dispositive motion, [ECF No. 3], and to make
recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). The
Plaintiff, Charlene H. Avery, who is appearing pro se, did not file a motion for summary
judgment and did not respond to the Commissioner’s Motion for Summary Judgment.1 [ECF
No. 13]. I have considered the Commissioner’s Motion. 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 recommend that the Court grant the Commissioner’s motion and affirm the
Commissioner’s judgment pursuant to sentence four of 42 U.S.C. § 405(g).
Ms. Avery filed a claim for Supplemental Security Income (“SSI”) on April 26, 2013,
alleging a disability onset date of June 16, 2012. (Tr. 155-60). Her claim was denied initially
and on reconsideration. (Tr. 50-55, 57-66). A hearing, at which Ms. Avery proceeded pro se,
was held on March 30, 2016, before an Administrative Law Judge (“ALJ”).
On October 25, 2017, a Rule 12/56 letter was mailed to Ms. Avery advising her of the potential consequences of
failure to oppose the Commissioner’s motion. [ECF No. 14]. Ms. Avery has not filed anything in response.
Following the hearing, the ALJ determined that Ms. Avery was not disabled within the meaning
of the Social Security Act during the relevant time frame. (Tr. 5-24). The Appeals Council
(“AC”) denied Ms. Avery’s request for review, (Tr. 1-3), so the ALJ’s decision constitutes the
final, reviewable decision of the Agency.
The ALJ found that Ms. Avery suffered from the severe impairments of “degenerative
disc disease (DDD) [and] degenerative joint disease (DJD).”
impairments, the ALJ determined that Ms. Avery retained the residual functional capacity
perform work that involves lifting and carrying 10 pounds frequently; sitting up to
6 hours; standing and walking up to 2 hours; occasional climbing of ramps or
stairs; occasional balancing; occasional kneeling; no crouching or crawling;
frequent stooping; simple, routine, repetitive tasks consistent with unskilled work;
no climbing of ladders, ropes or scaffolds; and use of a cane for ambulation.
(Tr. 13). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Cross could perform jobs existing in significant numbers in the national economy and that,
therefore, she was not disabled. (Tr. 19-20).
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.
At step one, the ALJ found in Ms. Avery’s favor that she had not engaged in substantial
gainful activity since her SSI application date. (Tr. 10). At step two, the ALJ found the severe
impairments listed above. Id. At step three, the ALJ determined that Ms. Avery’s severe
impairments did not meet, or medically equal, the criteria of any listings. (Tr. 13). In particular,
the ALJ considered the specific requirements of Listing 1.02 (“[m]ajor dysfunction of a joint”)
and 1.04 (“disorders of the spine”). Listing 1.02 requires “chronic joint pain and stiffness with
signs of limitation of motion” and an “inability to ambulate effectively” or “inability to perform
fine and gross movements effectively.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02. Analyzing
Listing 1.02, the ALJ concluded that the record failed to demonstrate that Ms. Avery was
“unable to ambulate effectively” or that she was “unable to perform fine and gross movements
effectively.” (Tr. 13). Regarding Listing 1.04, the ALJ determined that Ms. Avery failed to
satisfy the criteria of compromise of a nerve root or the spinal cord accompanied by: (a) evidence
of nerve root compression; (b) spinal arachnoiditis; or (c) lumbar spinal stenosis.
Specifically, to support his conclusion that Ms. Avery failed to satisfy a Listing, the ALJ cited to
the reports of State Agency Medical Consultants and Exhibits 2F/1, 9F/13, 32, and 11F/2. Id. I
have carefully reviewed the record, and I agree that no listings are met.
In considering the appropriate RFC assessment, the ALJ analyzed the medical evidence
derived from subjective allegations, treatment notes, and consultative examinations, including
the results of objective testing. (Tr. 13-18). Specifically, the ALJ noted Ms. Avery’s medical
records: (1) from JAI Medical Center, which demonstrated that she had “full (5/5) muscle
strength of the bilateral upper and lower extremities and grip, normal sensation and gait, no
lumbar tenderness to palpation, and no neurological deficits[;]” (2) from her primary care
physician, Dr. Gregg, which demonstrated that her “back and leg pain” was controllable with
pain medication; and (3) from her consultative physical examination with Dr. Reza Sajadi on
January 6, 2014, which indicated “no significant findings regarding pulmonary function, normal
gait and station . . . normal active and passive motion of the joints, and grossly unremarkable
neurological findings.” (Tr. 15). In addition, despite Ms. Avery’s alleged limited active range of
motion of the lumbar spine and reduced lower extremity strength, her limitations did not “require
continued skilled physical therapy, as she was discharged on September 30, 2014 due to noncompliance.” (Tr. 16). While the ALJ conceded that Ms. Avery’s back pain was legitimate (as
an April 24, 2013 MRI scan of her lumbar spine revealed evidence of a diffuse disc bulge), (Tr.
14-15), he determined that the evidence, as a whole, supported a finding that Ms. Avery was able
to perform the “range of sedentary work within the limitations noted in” her RFC, (Tr. 18).
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. Avery’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 1453,
1456 (4th Cir. 1990). In considering the entire record, I find the ALJ’s RFC determination was
supported by substantial evidence.
Continuing at step four, the ALJ found that Ms. Avery was unable to perform her past
relevant work as a warehouse worker, housekeeping cleaner, deliverer, and floor waxer/buffer.
(Tr. 18). At step five, the ALJ posed hypotheticals to the VE to determine whether a person with
each set of hypothetical criteria would be able to find work. (Tr. 19, 40-46). Ultimately, the
ALJ relied upon the VE’s testimony that an individual of Ms. Avery’s age, education, work
experience and RFC would be able to perform jobs such as a final assembler, eyeglass frames
polisher, and dowel inspector. (Tr. 19). Because such jobs exist in significant numbers in the
national economy, the ALJ found that Ms. Avery was not disabled within the meaning of the
Accordingly, I find that the ALJ’s determination was supported by substantial
For the reasons set forth above, I respectfully recommend that the Court GRANT
Defendant’s Motion for Summary Judgment, [ECF No. 13], and order the Clerk to CLOSE this
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b)(2) and Local Rule
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.
Dated: November 28, 2017
Stephanie A. Gallagher
United States Magistrate Judge
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