Carroll v. Commissioner, Social Security
REPORT AND RECOMMENDATIONS re 15 MOTION for Summary Judgment filed by Commissioner, Social Security. Signed by Magistrate Judge Stephanie A Gallagher on 3/12/2018. (c/m)(hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JATIA NICOLE CARROLL
Civil Case No. RDB-17-1896
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. 15], and to make
recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). The
Plaintiff Jatia Nicole Carroll, who proceeds pro se, filed a letter regarding her case in November,
2017, but did not file a response to the Commissioner’s Motion for Summary Judgment.1 I have
considered Ms. Carroll’s letter and the Commissioner’s Motion. [ECF Nos. 14, 15]. 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 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. Carroll filed claims for Disability Insurance Benefits (“DIB”) on March 14, 2013,
and Supplemental Security Income (“SSI”) on August 28, 2013, alleging a disability onset date
of November 14, 2010. (Tr. 225-35). Her claims were denied initially and on reconsideration.
After the Commissioner filed her Motion for Summary Judgment on January 17, 2018, [ECF No. 15], a Rule 12/56
letter was mailed to Ms. Carroll, advising her of the potential consequences of failure to oppose the Commissioner’s
motion. [ECF No. 16]. The letter was returned as undeliverable, but, after Ms. Carroll filed a notice of change of
address, the letter was re-mailed on February 12, 2018. [ECF Nos. 17, 18]. Still, Ms. Carroll did not file a response
to the Commissioner’s motion.
(Tr. 111-37, 141-44). A hearing, at which Ms. Carroll was represented by counsel, was held on
August 13, 2015, before an Administrative Law Judge (“ALJ”). (Tr. 39-69). At that proceeding,
the ALJ decided to hold open the record to obtain additional medical records and to order a
psychiatric consultative examination. (Tr. 66-68). After those items were procured, on April 6,
2016, a second hearing was held before a new ALJ, since the original ALJ had then left the
office. (Tr. 70-110). Ms. Carroll was again represented by counsel. Id. Following the hearing,
the ALJ determined that Ms. Carroll was not disabled within the meaning of the Social Security
Act during the relevant time frame. (Tr. 13-28). The Appeals Council denied Ms. Carroll’s
request for review, (Tr. 1-5), so the ALJ’s 2016 decision constitutes the final, reviewable
decision of the Agency.
The ALJ found that Ms. Carroll suffered from the severe impairments of “asthma; major
depressive disorder; bipolar disorder with psychotic features; and anxiety disorder.” (Tr. 15).
Despite these impairments, the ALJ determined that Ms. Carroll retained the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except lift
and carry 20 pounds occasionally and 10 pounds frequently; stand and walk for 6
hours in an 8 hour day; sit for 6 hours in an 8 hour day; can have no concentrated
exposure to dust, odors, fumes, or pulmonary irritants; occasional exposure to
weather, extreme cold or heat, and humidity and wetness; is limited to performing
simple, routine, repetitive tasks, but not those done at a production rate pace, as in
an assembly line where each task must be completed within a fixed time; is
limited to making simple work related decisions, with only occasional changes in
the routine work setting; can have occasional interaction with supervisors,
coworkers, and the public; and time off task can be accommodated by normal
(Tr. 18). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Carroll could perform several jobs existing in significant numbers in the national economy
and that, therefore, she was not disabled. (Tr. 26-27).
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). I have also considered all of
the arguments raised by Ms. Carroll’s prior attorney in his August 16, 2016 letter to the Appeals
Council. (Tr. 342-43). For the reasons described below, substantial evidence supports the ALJ’s
The ALJ proceeded in accordance with applicable law at all five steps of the sequential
evaluation. The ALJ ruled in Ms. Carroll’s favor at step one and determined that she had not
engaged in substantial gainful activity since her alleged onset date. (Tr. 15); see 20 C.F.R. §
416.920(a)(4)(i). At step two, the ALJ then considered the severity of each of the impairments
that Ms. Carroll claimed prevented her from working.
See 20 C.F.R. § 416.920(a)(4)(ii).
Notably, the ALJ found that Ms. Carroll’s iron deficiency anemia and “cannabis abuse,
unspecified” were non-severe, because the medical evidence did not support a finding that those
impairments would cause more than a minimal limitation on her ability to work. (Tr. 15-16).
However, after finding several of Ms. Carroll’s impairments to be severe, id., the ALJ continued
with the sequential evaluation and considered, in assessing Ms. Carroll’s RFC, the extent to
which all of her impairments limited her ability to work.
At step three, the ALJ determined that Ms. Carroll’s severe impairments did not meet, or
medically equal, the criteria of any listings. (Tr. 16-18). In particular, the ALJ considered the
specific requirements of Listing 3.03 (asthma), Listing 12.04 (affective disorders), and Listing
12.06 (anxiety related disorders). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 3.03, 12.04, 12.06.
For Listing 3.03, the ALJ noted no evidence of the frequency of asthmatic attacks required to
satisfy the listing. (Tr. 16). For the two mental health listings, the ALJ concluded that Ms.
Carroll had mild restriction in activities of daily living, moderate difficulties in social functioning
and concentration, persistence, or pace, and no episodes of decompensation of extended duration,
given that none of her three hospitalizations have lasted two weeks or longer. (Tr. 16-17). The
ALJ supported those assessments with citations to the evidence of record. Id. Under each of the
two mental health listings, a claimant would need to show at least two areas of marked difficulty,
or repeated episodes of decompensation, to meet the listing criteria. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1, §§ 12.04, 12.06. Accordingly, the ALJ did not err in his conclusion that the
listings were not met.
In considering Ms. Carroll’s RFC, the ALJ summarized her subjective complaints from
her hearing testimony. (Tr. 19). The ALJ then engaged in a detailed review of Ms. Carroll’s
medical records and testing. (Tr. 19-21). Regarding asthma, the ALJ noted that Ms. Carroll had
experienced “primarily routine and conservative” treatment, had some periods without any
asthma activity, and continued to smoke cigarettes during at least part of the period in question.
(Tr. 21). The ALJ further noted that Ms. Carroll’s only asthma-related hospitalization was “in
the context of the flu and pregnancy.” Id. Accordingly, and in light of Ms. Carroll’s activities of
daily living including caring for a small child with special needs without assistance, the ALJ
discounted the opinion of Ms. Carroll’s treating pulmonologist, Dr. Pygros, who opined that Ms.
Carroll’s asthma caused frequent and incapacitating limitations. (Tr. 22-23).
Turning to the mental impairments, the ALJ again summarized the medical treatment and
noted the significant improvement of symptoms when Ms. Carroll consistently took her
prescribed medication. (Tr. 20-22). The ALJ noted that, prior to each of Ms. Carroll’s mental
health-related hospitalizations, she was not taking any psychotropic medications, but her
condition improved each time with treatment. (Tr. 22).
The ALJ then reviewed Ms. Carroll’s self-reported activities of daily living, which
include caring for her two small children, including one with special needs who does not attend
daycare or school. Id. The ALJ also evaluated the opinion evidence pertaining to Ms. Carroll’s
medical condition, assigning only “little weight” to the opinions of the non-examining State
agency physicians who believed there was either insufficient evidence to evaluate the claim or a
non-severe mental impairment. (Tr. 25). The ALJ afforded “some weight” to the opinion
rendered by the consultative psychological examiner, Dr. Phillips, although the ALJ concluded
that the record as a whole did not substantiate the degree of concentration issues Dr. Phillips
found. Id. The ALJ assigned “partial weight” to the August 10, 2015 opinion of a treating
physician, Dr. Ahon, finding that most of his opinion comported with the record. (Tr. 24-25).
However, the ALJ found that Dr. Ahon’s suggestions that Ms. Carroll had a marked limitation in
ability to perform at a consistent pace with regular breaks and would be absent two times per
month were at odds with the record suggesting that Ms. Carroll’s symptoms could be controlled
with medication. (Tr. 25). Finally, the ALJ assigned “little weight” to the opinions from another
treating physician, Dr. Millam, whose opinions describing significant limitations were
contradicted by Ms. Carroll’s activities of daily living and Dr. Millam’s own treatment notes.
(Tr. 24). A later opinion from Dr. Millam that Ms. Carroll would be temporarily incapacitated
by mental health symptoms from May 22, 2014 to July 31, 2014 was also assigned little weight,
since disability is an issue reserved to the Commissioner and Dr. Millam’s note only established
a limitation less than twelve months in duration. Id.
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. Carroll’s position, I am not permitted to reweigh the
evidence or to substitute my own judgment for that of the ALJ. See Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). In considering the entire record, and given the evidence outlined
above, I find the ALJ’s RFC determination was supported by substantial evidence.
Next, the ALJ determined that Ms. Carroll had past relevant work as a mail handler, but
that she would be unable to perform that work based on her RFC. (Tr. 26). Accordingly, the
ALJ proceeded to step five, where he considered the impact of Ms. Carroll’s age, level of
education, and RFC on her ability to adjust to new work. (Tr. 26-27). In doing so, the ALJ cited
the VE’s testimony that a person with Ms. Carroll’s RFC would be capable of performing the
jobs of “mail sorter, non-government,” “sorter,” and “housekeeper.” (Tr. 27). Based on the
VE’s testimony, the ALJ concluded that Ms. Carroll was capable of successfully adjusting to
other jobs that exist in significant numbers in the national economy. Id. Ms. Carroll’s prior
attorney argued that the ALJ posed a flawed hypothetical question to the VE, because the RFC
did not adequately account for Ms. Carroll’s moderate limitations in concentration, persistence or
pace. (Tr. 342) (citing Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015)). However, the ALJ
included a restriction to work that is not “done at a production rate pace, as in an assembly line
where each task must be completed within a fixed time.” (Tr. 18). This Court has repeatedly
held that such a restriction satisfies the requirement in Mascio. See, e.g., Reinhardt v. Comm’r,
Soc. Sec. Admin., Civil No. SAG-16-3227, 2017 WL 2274948, at *2 (D. Md. May 24, 2017);
Davis v. Comm’r, Soc. Sec. Admin., Civil No. SAG-15-2699, 2016 WL 3814929, at *2 (D. Md.
July 12, 2016); Raeke v. Comm’r, Soc. Sec., Civil No. GLR-15-1726, 2016 WL 892856, at *3
(D. Md. Mar. 9, 2016). Accordingly, the hypothetical was proper, and the ALJ’s reliance on the
VE’s testimony constitutes substantial evidence supporting his conclusion.
I note that, in the letter she submitted to the Court, Ms. Carroll provided a report from her
clinical therapist dated August 8, 2017, which suggests that she would be unable to work
between August, 2017 and August, 2018. [ECF No. 14 at 2]. In the context of this appeal, this
Court cannot consider evidence that was not presented before the Commissioner, except under
very limited circumstances where the evidence is both new and material. See Smith v. Chater, 99
F.3d 635, 638 n.5 (4th Cir. 1996). The report Ms. Carroll now submits is new, but to establish
that the evidence is material, Ms. Carroll would have to show that the evidence might reasonably
have changed the decision of the Commissioner. See Wilkins v. Sec’y, Dep’t of Health and
Human Servs., 953 F.2d 93, 96 (4th Cir. 1991); 42 U.S.C. § 405(g). Here, the Commissioner’s
decision was rendered in May of 2016, and the newly submitted evidence discusses Ms. Carroll’s
mental state more than one year later, in August of 2017. [ECF No. 14 at 2]. Accordingly, the
new evidence does not have any relevance to the time pre-dating the ALJ’s opinion, and cannot
be deemed material. The evidence would only be relevant to the Commissioner’s consideration
of a subsequent application for benefits.
For the reasons set forth above, I respectfully recommend that the Court GRANT
Defendant’s Motion for Summary Judgment, [ECF No. 15]; 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: March 12, 2018
Stephanie A. Gallagher
United States Magistrate Judge
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