Beachy v. Berryhill
Filing
22
ORDER DENYING 17 Motion for Summary Judgment; DENYING 20 Motion for Summary Judgment; REVERSING the Commissioner's judgment and REMANDING case for further consideration. Signed by Magistrate Judge Beth P. Gesner on 10/29/2018. (hmls, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
BETH P. GESNER
CHIEF UNITED STATES MAGISTRATE JUDGE
MDD_BPGchambers@mdd.uscourts.gov
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-4288
(410) 962-3844 FAX
October 29, 2018
Lawrence P. Demuth, Esq.
Mignini, Raab & Demuth, LLP
429 S. Main St.
Bel Air, MD 21014
Cassia Weiner Parson, Esq.
Social Security Administration
6401 Security Blvd., Rm. 617
Baltimore, MD 21235
Theodore A. Melanson, Esq.
Mignini, Raab & Demuth, LLP
606 Baltimore Ave., Ste. 100
Towson, MD 21204
Subject:
Janice B. v. Commissioner, Social Security Administration, Civil No.: BPG17-2456 1
Dear Counsel:
Pending before this court, by the parties’ consent (ECF Nos. 3, 7), are Plaintiff’s Motion
for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 17), Defendant’s Motion for Summary
Judgment (“Defendant’s Motion”) (ECF No. 20), and Plaintiff’s Response to Defendant’s
Motion for Summary Judgment (“Reply”) (ECF No. 21). The undersigned must uphold the
Commissioner’s decision if it is supported by substantial evidence and if proper legal standards
were employed. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996), superseded by statute, 20 C.F.R. § 416.927(d)(2). I have reviewed the pleadings and the
record in this case and find that no hearing is necessary. Loc. R. 105.6. For the reasons noted
below, Plaintiff’s Motion (ECF No. 17) and Defendant’s Motion (ECF No. 20) are denied, the
Commissioner’s decision is reversed, and the case is remanded to the Commissioner for further
consideration in accordance with this opinion.
I.
Background
On July 23, 2014, plaintiff filed a Title II application for a period of disability and
disability insurance benefits, alleging disability beginning on December 31, 2013. (R. at 53,
130). Her claim was initially denied on October 29, 2014 (R. at 59), and on reconsideration on
March 19, 2015 (R. at 69). After a hearing held on June 14, 2016, an Administrative Law Judge
(“ALJ”) issued a decision on August 3, 2016, denying benefits based on a determination that
plaintiff was not disabled. (R. at 22–29). The Appeals Council denied plaintiff’s request for
review on July 21, 2017, making the ALJ’s opinion the final and reviewable decision of the
Commissioner. (R. at 1–4). Plaintiff challenges the Commissioner’s decision on the following
grounds that: (1) the ALJ failed to consider plaintiff’s obesity as a medically determinable,
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.
Janice B. v. Berryhill
Civil No.: BPG-17-2456
October 29, 2018
Page 2
severe impairment pursuant to Social Security Ruling (“SSR”) 02-1p, (2) the ALJ’s Step Three
determination is unsupported by substantial evidence, and (3) the ALJ’s adverse credibility
determination is unsupported by substantial evidence.
II.
Discussion
Plaintiff first contends that the ALJ “failed to consider Plaintiff’s obesity as a medically
determinable, severe impairment pursuant to SSR 02-1p, which infected each step in the
sequential evaluation process, rendering the decision unsupported by substantial evidence.”
(ECF No. 17-1 at 9.) According to SSR 02-1p, “the combined effects of obesity with other
impairments can be greater than the effects of each of the impairments considered separately.”
SSR 02-1p, 2002 WL 34686281, at *1 (Sept. 12, 2002). Accordingly, SSR 02-1p instructs the
ALJ to “consider the effects of obesity . . . when assessing a claim at other steps of the sequential
evaluation process, including when assessing an individual’s residual functional capacity.” Id.
Plaintiff was diagnosed with obesity by Dr. Kheder Ashker on November 18, 2014. (R.
at 518–20). Accordingly, the ALJ was required to consider obesity in determining whether
plaintiff had: (1) a medically determinable impairment; (2) a severe impairment; (3) an
impairment that meets or equals the requirements of a listed impairment in the listings; and (4)
an impairment that prevents her from doing past relevant work and other work that exists in
significant numbers in the national economy. SSR 02-1p, 2002 WL 34686281, at *3. Here,
however, the ALJ makes no mention of plaintiff’s obesity in his opinion. Thus, the court has no
basis upon which to determine whether the ALJ properly considered plaintiff’s obesity. See
Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“A necessary predicate to engaging in
substantial evidence review is a record of the basis for the ALJ's ruling [including] specific
application of the pertinent legal requirements to the record evidence.”) Accordingly, the court
concludes that the ALJ’s evaluation of plaintiff’s obesity is not supported by substantial evidence
and thus, remand is appropriate on this issue.
Plaintiff next argues that the ALJ’s Step Three determination is unsupported by
substantial evidence due to the ALJ’s failure to evaluate plaintiff’s musculoskeletal impairments
under Listing 1.04. 2 (ECF No. 17-2 at 12). Step Three requires the ALJ to determine whether a
claimant’s impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. The Listing of Impairments describes “for each of the major body
systems impairments that [the agency considers] to be severe enough to prevent an individual
from doing any gainful activity, regardless of his or her age, education, or work experience.” 20
C.F.R. §§ 404.1525(a), 416.925(a). In Fox v. Colvin, 652 F. App’x 750 (4th Cir. 2015) (per
curiam), the Fourth Circuit held that the ALJ’s medical Listing analysis was deficient because it
consisted of conclusory statements that lacked “any ‘specific application of the pertinent legal
requirements to the record evidence.’” 652 F. App’x at 754 (quoting Radford v. Colvin, 734
2
Plaintiff also argues that the ALJ failed to consider the combined effects of plaintiff’s obesity with her severe
musculoskeletal impairments. (ECF No. 17-2 at 12). As discussed above, on remand, the ALJ must consider
plaintiff’s obesity when determining whether plaintiff has an impairment that meets or equals the requirements of a
listed impairment.
Janice B. v. Berryhill
Civil No.: BPG-17-2456
October 29, 2018
Page 3
F.3d 288, 291–92 (4th Cir. 2013)). Thus, Fox requires that the ALJ provide express analysis,
with factual support, to conclude that a medical Listing has not been met at Step Three.
Here, the ALJ “considered the claimant’s physical impairments under Section 1.01, et
seq. (musculoskeletal), specifically listing 1.02 (major dysfunction of a joint(s) (due to any
cause))” and found that “the evidence fails to establish an impairment or combination of
impairments that is accompanied by the signs reflective of listing level severity.” (R. at 25). The
ALJ did not, however, specifically discuss Listing 1.04, which is defined as: “Disorders of the
spine . . . resulting in compromise of a nerve root . . . or the spinal cord. With A. Evidence of
nerve root compression . . . OR B. Spinal arachnoiditis . . . OR C. Lumbar spinal stenosis.” 20
C.F.R. Pt. 404, Subpt. P, App.1, § 1.04. In September of 2014, plaintiff was diagnosed with
spinal stenosis. (R. at 512). There is also evidence in the record that plaintiff had a compression
fracture and scoliosis. (R. at 430, 512–13). Accordingly, the ALJ should have “evaluated
whether [plaintiff’s] impairments meet, or constitute the medical equivalent of, the criteria of
Listing 1.04.” Weems v. Comm’r, Soc. Sec. Admin., No. SAG-12-2993, 2013 WL 4784124 at
*2 (D. Md. Sept. 15, 2013) (holding that the ALJ erred by failing to consider plaintiff’s
impairments under Listing 1.04 when plaintiff presented with many of the criteria in Listing
1.04A).
Here, the ALJ’s Step Three analysis clearly does not comport with the Fourth Circuit’s
mandate in Fox. Despite evidence of plaintiff’s spinal disorders, the ALJ did not identify any of
the requirements of Listing 1.04, did not apply any findings or medical evidence to the identified
Listing. Defendant argues that the ALJ considered all of the listings, including Listing 1.04A,
pointing to the ALJ’s statement that “the evidence fails to establish an impairment or
combination of impairments that is accompanied by the signs reflective of listing level severity.”
(ECF No. 20-1 at 9). This type of conclusory analysis, however, was found unacceptable in both
Fox and Radford. See Fox, 632 F. App’x at 755; Radford, 734 F.3d at 295. Given the ALJ’s
cursory conclusion, this court is unable to perform a meaningful review of the ALJ’s analysis. In
order to find the ALJ’s conclusion to be supported by substantial evidence, this court would have
to engage in the same “fact-finding expedition” that the Fourth Circuit found inappropriate in
Fox.
The Commissioner here makes the same argument that was rejected in Fox, that is,
because substantial evidence exists to support the ALJ’s finding, any error committed by the ALJ
was harmless. (ECF No. 20-1 at 12). As the Fourth Circuit made clear in Fox, it is not the
reviewing court’s role “to speculate as to how the ALJ applied the law to its findings or to
hypothesize the ALJ’s justifications that would perhaps find support in the record.” Fox, 632 F.
App’x at 755. In this case, the ALJ failed to explain why he did not evaluate plaintiff’s spinal
disorder under Listing 1.04 or why he found that plaintiff did not meet that Listing’s
requirements. This court cannot conduct a meaningful review “when there is nothing on which
to base a review.” Fox, 652 F. App’x at 755. Accordingly, remand is necessary for the ALJ to
consider, analyze, and articulate whether the medical evidence supports a conclusion that
plaintiff’s impairments met or medically equaled any of the listed impairments in 20 C.F.R Pt.
404, Subpt. P, App. 1.
Janice B. v. Berryhill
Civil No.: BPG-17-2456
October 29, 2018
Page 4
Finally, plaintiff argues that the ALJ’s adverse credibility determination is unsupported
by substantial evidence. (ECF No. 17-2 at 18). The Social Security regulations provide a twostep framework for considering subjective complaints. First, the ALJ determines whether
“medical signs or laboratory findings show that a medically determinable impairment(s) is
present.” 20 C.F.R. §§ 404.1529(b), 416.929(b). Second, the ALJ evaluates the intensity and
persistence of the claimant’s symptoms by considering the evidence of record in its entirety. Id.
§§ 404.1529(c), 416.929(c). At this second step, the ALJ considers the objective medical
evidence, as well as other evidence including the claimant’s daily activities, the frequency and
intensity of pain and other symptoms, precipitating and aggravating factors, the effectiveness of
medication and other treatment methods, and other factors regarding functional limitations or
restrictions due to pain or other symptoms. Id. Further, the ALJ should also consider
inconsistencies in the available evidence to ascertain whether a claimant’s subjective claims of
pain and its related symptoms can reasonably be accepted. 20 C.F.R. §§ 404.1529(c)(4),
416.929(c)(4). “An ALJ, however, cannot rely exclusively on objective evidence to undermine a
claimant's subjective assertions of disabling pain.” Hinton v. Berryhill, No. SAG-16-4043, 2017
WL 4404441, at *3 (D. Md. Oct. 4, 2017) (citing Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir.
2017) (holding that the ALJ improperly discounted the claimant's subjective complaints “based
solely on the lack of objective evidence” supporting the claimant's assertions)).
At the first step, the ALJ here found that plaintiff's medically determinable impairments
could reasonably be expected to cause his alleged symptoms. (R. at 27). At the second step, the
ALJ then, however, determined that plaintiff's “statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical evidence and
other evidence in the record . . . .” Id. The ALJ primarily cited to objective evidence to discount
plaintiff’s subjective complaints, noting that the records showed routine and conservative
treatment, and that the records as a whole showed normal coordination. (R. at 27). With respect
to non-objective evidence, the ALJ merely found that “evidence of record showing the
claimant’s ability to perform a broad range of normal daily activities . . . suggest that symptoms
of the claimant’s impairments are not as limiting as alleged in connection with this application
and appeal.” Id. The ALJ did not, however, “acknowledge the extent of those activities as
described by [plaintiff]” or explain how these activities “showed that [plaintiff] could persist
through an eight-hour workday.” Brown v. Comm’r, Soc. Sec. Admin., 873 F.3d 251, 263, 269–
70 (4th Cir. 2017) (finding that “the ALJ did not ‘build an accurate and logical bridge from the
evidence to his conclusion’ that [plaintiff’s] testimony was not credible” when plaintiff merely
testified to “‘minimal daily activities’ that neither established that she was ‘capable of engaging
in substantial physical activity’ nor ‘contradicted her claim of disabling pain’” (quoting Clifford
v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Here, while plaintiff testified that she lived alone,
shopped, prepared meals, listened to music, and birdwatched, but also testified that she was only
able to perform such activities with accommodations, such as sitting in a stool while cooking and
laying down on the buggy while shopping. (ECF No. 21 at 9, R. at 45–46). Accordingly,
remand is appropriate for the ALJ to properly evaluate plaintiff’s subjective complaints.
Janice B. v. Berryhill
Civil No.: BPG-17-2456
October 29, 2018
Page 5
III.
Conclusion
For the reasons stated above, Plaintiff’s Motion (ECF No. 17) and Defendant’s Motion
(ECF No. 18) are DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g), the
Commissioner’s judgment is REVERSED due to inadequate analysis. The case is REMANDED
for further consideration in accordance with this opinion.
Despite the informal nature of this letter, it will constitute an Order of the court and will
be docketed accordingly.
.
Very truly yours,
/s/
Beth P. Gesner
Chief United States Magistrate Judge
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