Whittlesey v. Berryhill

Filing 16

MEMORANDUM OPINION/ORDER denying 12 Plaintiff's Motion for Summary Judgment; Denying 14 Defendant's Motion for Summary Judgment; Reversing in Part Social Security Administration's Judgment; and Remanding case for further proceedings in accordance with the Opinion. Signed by Magistrate Judge Gina L Simms on 3/6/2019. (jf3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
(SOUTHERN DIVISION)
CHAMBERS OF
THE HONORABLE GINA L. SIMMS
UNITED STATES MAGISTRATE JUDGE
[e-mail]

6500 CHERRYWOOD LANE
GREENBELT, MARYLAND 20770
[phone] PHONE
[phone] FAX

March 6, 2019
Stephen F. Shea, Esq.
Elkind & Shea
801 Roeder Rd., Suite 550
Silver Spring, MD 20910

Subject:

Amy C. Rigney, Esq.
Special Assistant United States Attorney
Social Security Administration
6401 Security Blvd, Rm 617
Baltimore, MD 21235-6401

Virginia W. v. Berryhill1
Civil No.: 8:17-cv-02403-GLS

Dear Counsel:
Pending before this Court, by the parties’ consent, are Plaintiff’s Motion for Summary
Judgment and Defendant’s Motion for Summary Judgment. (ECF Nos. 12, 14). The Court must
uphold the Social Security Administration’s (“SSA” or “Agency”) decision 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) (2016); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The substantial evidence rule
“consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.”
Craig, 76 F.3d at 589. This Court shall not “re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment” for that of the SSA. Id. Upon review of the pleadings
and the record, the Court finds that no hearing is necessary. Local Rule (“L.R.”) 105.6. For the
reasons set forth below, I will deny both parties’ motions, reverse the judgment in part, and remand
for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
I.

BACKGROUND

Plaintiff filed a Title II Application for Disability Insurance Benefits on May 14, 2013,
alleging that disability began March 14, 2013. (Tr. 15). This claim was initially denied on January
31, 2014, and upon reconsideration, denied again on June 5, 2014. (Tr. 88-90). Plaintiff’s request for
a hearing was granted and the hearing was conducted on May 6, 2016 by an Administrative Law
Judge (“ALJ”). (Tr. 20). On August 3, 2016, the ALJ found that Plaintiff was not disabled under §§
216(i) and 223(d) of the Social Security Act and denied Plaintiff’s claims. (Tr. 15). On June 20,
2017, the Appeals Council denied Plaintiff’s request for review, and the ALJ’s decision became the
1

Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are
fulfilled by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved
to the Commissioner of Social Security.

Virginia W. v. Berryhill
GLS-17-2403
March 6, 2019
final and reviewable decision of the SSA. (Tr. 1–3). Pursuant to 42 U.S.C. § 405(g), Plaintiff has a
right of further review after the ALJ’s decision becomes final and thus, filed her claim in this Court.
(ECF No. 1).
II.

ANALYSIS TO BE PEFORMED BY THE ADMINISTRATIVE LAW JUDGE

The Social Security Act defines disability as the “inability to engage in 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.” 42 U.S.C. § 423(d)(1)(A). An individual is deemed to have a disability if
their “physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work . . . which exists in significant numbers in the region where
such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).
To determine whether a person has a disability, the ALJ engages in the five-step sequential
evaluation process as set forth in 20 C.F.R. §§ 415.1520(a)(4)(i)-(v); 416.920. See e.g., Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987); Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). The
steps used by the ALJ are as follows: step one, assesses whether a claimant engaged in substantial
gainful activity since the alleged disability onset date; step two, determine whether a claimant’s
impairments meet the severity and durations requirements found in the regulations; step three,
ascertain whether a claimant’s medical impairment meets or equals an impairment listed in the
regulations (“the Listings”). If the first three steps are not conclusive, the ALJ assesses the claimant’s
residual functional capacity (“RFC”), i.e., the most a claimant could do despite their limitations,
through consideration of Plaintiff’s “‘medically determinable impairments of which [the ALJ is]
aware’, including those not labeled severe at step two.” Mascio, 780 F.3d at 635 (quoting 20 C.F.R.
§ 416.945(a)). At step four, the ALJ analyzes whether a claimant could perform past work, given the
limitations caused by her impairments; and at step five, the ALJ analyzes whether a claimant could
perform any work. At steps one through four, it is the claimant’s burden to show that they are
disabled. See Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016). If the ALJ’s evaluation moves
to step five, the burden then shifts to the SSA to prove that a claimant has the ability to perform work
and therefore, is not disabled. Id. at 180.
Here, the ALJ determined that Plaintiff suffered from the following severe impairments:
lumbar degenerative disc disease, asthma, and fibromyalgia. (Tr. 17). Despite these impairments, the
ALJ determined that Plaintiff retained the RFC:
to perform light work as defined in 20 CFR 404.1567(b) except that she is limited to
lifting and carrying up to 20lbs. occasionally and up to 10lbs. frequently; she can stand
or walk for approximately six hours in an eight hour workday; she can sit for
approximately six hours in an eight hour work day; she requires normal breaks; she
can occasionally climb ladders, ropes, or scaffolds; she can occasionally balance or
stoop; she can frequently kneel, crouch, or crawl; she must avoid concentrated
exposure to extreme cold, extreme heat, wetness, and humidity; she must avoid
moderate exposure to irritants such as fumes, odors, dust, and gases; and she must
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avoid concentrated exposure to workplace hazards such as unprotected machinery and
unprotected heights.
(Tr. 18). Following the testimony of the vocational expert (“VE”), and based on Plaintiff’s RFC, the
ALJ presented hypotheticals that mirrored Plaintiff’s impairments and concluded that Plaintiff had
the ability to perform her past work as an administrative assistant and scheduler; therefore, Plaintiff
was not disabled. (Tr. 20).
The issue before this Court is not whether the Plaintiff is disabled, but whether the ALJ's
finding that she is not disabled is supported by substantial evidence. Craig, 76 F.3d at 589; 42 U.S.C.
§ 405(g). On appeal Plaintiff raises two arguments. Plaintiff first argues that the ALJ failed to set
forth sufficient narrative to support his conclusion regarding her RFC. (ECF No. 12-1 at 5). Second,
Plaintiff argues that the ALJ failed to properly evaluate Plaintiff’s subjective complaints. (Id. at 6).
Defendant counters that there is no genuine issue as to any material fact and that the SSA’s final
decision is supported by substantial evidence. (ECF No. 14-1 at 1).
III.

DISCUSSION

Plaintiff argues that the ALJ failed to provide an adequate explanation to support his decision
regarding her RFC. (ECF No. 12-1 at 5; 9). Specifically, Plaintiff avers that, although the ALJ cited
to her testimony and medical evidence, the ALJ’s narrative does not logically link or tie the evidence
to his RFC findings. (Id.). Thus, it is unclear how the ALJ came up with the limitations in Plaintiff’s
RFC. The SSA argues that, contrary to Plaintiff’s argument, the ALJ properly evaluated Plaintiff’s
RFC and that substantial evidence exists within the record to support the ALJ’s findings. (ECF No.
14-1, at 4-5).
When assessing a claimant’s RFC, the law requires an ALJ to consider all of the claimant’s
medically determinable impairments, including any medically determinable impairments that are not
“severe.” 20 C.F.R. § 416.925(a)(2). The ALJ considers any inconsistencies in the evidence and the
extent to which there are any conflicts between a claimant’s statements and the rest of the
evidence. 20 C.F.R. § 404.1529(c)(4). An ALJ will determine if a claimant’s symptoms will diminish
his or her capacity for basic work activities, subject to them being consistent with the objective
medical evidence and other evidence. Id. An ALJ’s RFC determination should include a “narrative
discussion describing how the evidence supports each conclusion citing specific medical facts . . . and
nonmedical evidence.” Social Security Ruling (“SSR”) 96–8p, 1996 WL 374184, at *7 (July 2, 1996).
The Fourth Circuit has recently held that a “proper RFC analysis has three components: (1) evidence,
(2) logical explanation, and (3) conclusion. The second component, the ALJ’s logical explanation, is
just as important as the other two.” Thomas v. Berryhill, ___ F.3d ___, 2019 WL 193948, at *3 (4th
Cir. Feb. 22, 2019). See also Petry v. Comm’r, Soc. Sec. Admin., No. 16-464, 2017 WL 680379, at
*2 (D. Md. Feb. 21, 2017) (ALJ should build “an accurate and logical bridge from the evidence to his
conclusion.”).
Here, the ALJ considered all opinion evidence and all symptoms, including the extent of those
symptoms, which were reasonably acceptable as consistent with objective medical evidence and other
evidence. (Tr. 18). Indeed, the evidence considered by the ALJ included two residual functional
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capacity assessments by state agency consultants, to which the ALJ assigned “great weight.” (Tr. 20;
62-70; 72-80). Consistent with the ALJ’s RFC determination, each state agency consultant concluded
that Plaintiff could occasionally lift 20 pounds, and frequently lift 10 pounds. (Tr. 62-70; 76-80).
The consultants each found that Plaintiff could stand or walk for approximately six hours out of an
eight-hour workday, as well as sit for the same durational period while only requiring normal breaks.
(Id.). Each consultant determined that Plaintiff could occasionally climb ladders/ropes/scaffolds;
occasionally balance or stoop; and she could frequently kneel, crouch or crawl. (Id.). As for
environmental limitations, each consultant found that Plaintiff should avoid concentrated exposure to
extreme cold, heat, wetness and humidity. (Id.). Plaintiff was to avoid moderate exposure to fumes,
odors, dusts, and gases; as well as avoid concentrated exposure to hazards, such as machinery and
heights. (Id.).
As the SSA rightfully argues, generally, “‘an ALJ may satisfy the function-by-function
analysis requirement by referencing a properly conducted analysis of state agency consultants.’”
Schlossnagle v. Colvin, TMD-15-935, 2016 WL 4077672, at *8 (D.Md. Aug. 1, 2016) (quoting
Herren v. Colvin, No. 1:15-cv-00002-MOC, 2015 WL 5725903, at *5 (W.D.N.C. Sept. 30, 2015)).
This is “[b]ecause [an] ALJ [can] base[] his RFC finding, in part, on the function-by function analysis
of the [s]tate agency consultant.” (Id.) (citation omitted). Here, it is clear that the ALJ aligned
Plaintiff’s RFC to the assessments of the two state medical consultants. (Tr. 18; 20). However, the
ALJ said that he took into consideration Plaintiff’s lumbar degenerative disc disease, asthma, and
fibromyalgia, as well as Plaintiff’s November 2015 diagnosis of fatigue, sleep disturbance, migraines,
irritable bowel syndrome, TMJ symptoms and very impressive tender points. (Tr. 19-20; 312). And,
the ALJ also noted that he “added significant limitations to the residual functional capacity assessment
to account for any limitations arising from [Plaintiff’s] multiple health impairments.” (Tr. 20).
Yet, after reviewing Plaintiff’s RFC, I am unable to determine what significant limitations
were actually added. With the exception of citing to Plaintiff’s medical record from her November
2015 examination, the ALJ does not explain what other medical or non-medical evidence he credited,
nor does he explain why he found Plaintiff’s November 2015 medical record to support some
“additional limitations” that he never described. See Thomas v. Berryhill, ___ F.3d ___, 2019 WL
193948, at *3 (4th Cir. Feb. 22, 2019) (noting importance of explanation component). In addition,
the ALJ failed to explain what effect any of the unexplained additional limitations may have had on
Plaintiff’s RFC assessment, if at all, including her ability to perform sustained work activities eighthours per day, for five days a week, or an equivalent schedule. See SSR 96-8P, 1996 WL 374184, at
*7 (July 2, 1996). Without a proper explanation as to how the facts and evidence led to the
conclusions made by the ALJ, this Court is unable to complete its meaningful review. See Woods v.
Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (remand necessary where the ALJ fails to explain how
evidence supports conclusion).
In urging against remand, the Agency contends that any deficiency in the ALJ’s explanation
is a harmless error. (ECF No. 14-1, at 7). Relying on Shinseki v. Sanders, 556 U.S. 396, 409-10,
(2009), the Agency avers that the onus is on Plaintiff to explain how the ruling caused her harm, i.e.,
what additional limitations should have been incorporated in the RFC, which she failed to do. (Id.).
For an error to be harmless, it must not have prejudiced the claimant. Thompson v. Colvin,
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No. TMD-13-3450, 2015 WL 1393562, at *8 (D.Md Mar. 24, 2015) (“[R]eversal is not required when
the alleged error ‘clearly had no bearing on the procedure used or the substance of the decision to be
reached.’” (quoting Ngarurih v. Ashcroft, 371 F.3d 182, 190 n. 8 (4th Cir. 2004)). Thus, an error will
prejudice a claimant if, absent the error, there is a realistic possibility that the ALJ would have reached
a different conclusion. Id.
I find that the Agency’s argument is unavailing. Although it is conceivable that the ALJ’s
omission of the additional limitations could be harmless error, this Court’s ability to effectively
engage in substantial evidence review requires a record basis for the ALJ’s ruling. This undoubtedly
must include those additional limitations. See Thomas v. Berryhill, ___ F.3d ___, 2019 WL 193948,
at *3 (4th Cir. Feb. 22, 2019) (ability to conduct a “meaningful review is frustrated when an ALJ goes
straight from listing evidence to stating a conclusion.”). On remand, the ALJ should not only include
the significant limitations it added, but also provide a proper narrative discussion describing how the
evidence supports the decision and build an accurate and logical bridge from the evidence to the
conclusion.
Given that the case is being remanded on other grounds, this Court will not address Plaintiff’s
contention that the ALJ failed to perform any real assessment of the Plaintiff’s credibility related to
her subjective complaints. (ECF No. 12-1, at 6). On remand, the ALJ should consider to what extent
Plaintiff’s subjective complaints have on her credibility assessment and ensure that this explanation
is contained within the record.
Despite remanding the case for further findings consistent with this opinion, I express no
opinion as to whether the ALJ’s ultimate finding that Plaintiff is not disabled, and therefore, not
entitled to benefits, is correct.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment, (ECF No. 12), is
DENIED and Defendant’s Motion for Summary Judgment, (ECF No. 14), is DENIED. This case is
REMANDED for further proceedings in accordance with this opinion. 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,
/s/
The Honorable Gina L. Simms
United States Magistrate Judge

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