Harris v. Astrue
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Jillyn K Schulze on 12/27/2011. (ranks, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHERYL HARRIS,
v.
MICHAEL J. ASTRUE
Commissioner of Social Security
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Civil No. JKS-09-3396
MEMORANDUM OPINION
Plaintiff Cheryl Harris brought this action pursuant to 42 U.S.C. § 405(g) for review of a
final administrative decision of the Commissioner of Social Security (Commissioner) denying
her claim for disability insurance benefits (DIB) and Supplemental Security Income (SSI) under
the Social Security Act (the Act), 41 U.S.C. §§ 401–433, and §§ 216(i) and 223(d), respectively.
Both parties’ motions for summary judgment and Harris’s alternative motion for remand are
ready for resolution and no hearing is deemed necessary. See Local Rule 105.6. For the reasons
set forth below, Harris’s motion for remand will be granted, her motion for summary judgment
will be denied, and the Commissioner’s motion for summary judgment will be denied.
1. Background.
Harris protectively applied for DIB and SSI benefits on November 13, 2006, alleging
onset of her disability on July 12, 2006. (R. 91–93, 94–96). Both applications were denied
initially and upon reconsideration. An Administrative Law Judge (ALJ) held a hearing on March
11, 2009, at which Harris was represented by counsel. (R. 17). On June 2, 2009, the ALJ found
that Harris was not disabled within the meaning of the Act, (R. 16), and on October 22, 2009, the
Appeals Council denied her request for review. (R. 1–3). Thus, the ALJ’s determination
became the Commissioner’s final decision.
2.
ALJ’s Decision.
The ALJ evaluated Harris’s claims using the five-step sequential process set forth in 20
C.F.R. § 404.1520. First, the ALJ determined that Harris had not engaged in substantial gainful
activity since July 12, 2006. (R. 11). At step two, the ALJ concluded that Harris suffered from
obesity, cervical disk disease, bilateral carpal tunnel syndrome, rheumatoid arthritis, and
osteoarthritis of the knees, all of which were severe impairments. (R. 11). At step three, the ALJ
determined that Harris did not have an impairment or combination of impairments that met or
medically equaled any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(R. 11). Further, the ALJ found that Harris had the Residual Functional Capacity (RFC) to
perform sedentary work, but that she was able to (1) lift or carry five pounds frequently and ten
pounds occasionally; (2) stand or walk for at least two hours in an eight-hour day; (3) sit for six
hours in an eight-hour day; (4) push or pull less than ten pounds with both upper extremities; (5)
occasionally climb stairs or ramps and balance, bend, stoop, crouch, and squat; and (6) grip with
the left hand and finger. (R. 13). However, the ALJ found that Harris could never climb ladders,
ropes, or scaffolds, could never kneel or crawl, and that she must avoid concentrated exposure to
hazards. (R. 13). The ALJ also found that Harris had a moderate limitation in her ability to
concentrate, maintain attention for extended periods of time, and keep up a pace due to pain and
medication side effects. (R. 13). At step four, the ALJ found that Harris was unable to perform
any past relevant work. (R. 15). At step five, the ALF found, based on testimony from a
vocational expert (VE), that jobs exist in significant numbers in the national economy that Harris
could perform. (R. 15). As a result, the ALJ ultimately determined that Harris was not disabled
within the meaning of the Act. (R. 16).
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3. Standard of Review.
The role of this court on review is to determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the correct legal standards. 42
U.S.C. ' 405(g); Pass v. Chater, 65 F.3d 1200, 1202 (4th Cir. 1995). Substantial evidence is
defined as “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla, but less than a preponderance, of
the evidence presented. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). It is such
evidence that a reasonable mind might accept to support a conclusion, and must be sufficient to
justify a refusal to direct a verdict if the case were before a jury. Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). This court cannot try the case de novo or resolve evidentiary
conflicts, but rather must affirm a decision when it is supported by substantial evidence. Id.
4. Discussion.
Harris makes two allegations of error. First, she claims that the ALJ erroneously assessed
her RFC. Second, she claims that the ALJ erroneously assessed her subjective pain complaints.
A. RFC Assessment.
RFC is the most work an individual can do for 8 hours a day, 5 days a week, despite that
individual’s determinable impairment and any related symptoms, such as pain. 20 C.F.R. §§
404.1545(a)(1) and 416.945(a)(1); SSR 96-8p, 1996 SSR Lexis 5, at *5. The ALJ must make the
RFC determination after considering all of the relevant medical and non-medical evidence in the
record. 20 C.F.R. §§ 416.920(e) and 416.945. The Social Security Regulations provide the
following guidelines outlining the way in which an ALJ should determine a claimant’s RFC:
When we assess your physical abilities, we first assess the nature and extent of
your physical limitations and then determine your residual functional capacity for
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work activity on a regular and continuing basis. A limited ability to perform
certain physical demands of work activity, such as sitting, standing, walking,
lifting, carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping or
crouching), may reduce your ability to do past work and other work.
20 C.F.R. §§ 404.1545(b) and 416.945(b). When determining an individual’s RFC, the ALJ
must perform a function-by-function assessment based upon the claimant’s functional limitations
and ability to do work-related activities. SSR 96-8p, at *3. The ALJ must address both the
exertional and non-exertional capacities of the individual. SSR 96-8p, 1996 SSR Lexis 5, at *15.
In order to do work at a given exertional level, the individual must be able to perform
substantially all of the exertional and non-exertional functions required of work at that level.
SSR 96-8p, 1996 SSR Lexis 5, at *9.
The ALJ’s evaluation also must include a narrative discussion describing how medical
facts and non-medical evidence support the ALJ’s conclusion. Fleming v. Barnhart, 284 F.
Supp. 2d 256, 271 (D. Md. 2003); SSR 96-8p, 1996 SSR Lexis 5, at *19. The RFC assessment
must “include a discussion of why reported symptom-related functional limitations and
restrictions can or cannot reasonably be accepted as consistent with the medical or other
evidence.” SSR 96-8p, 1996 SSR Lexis 5, at *20. Moreover, “in instances in which the
adjudicator has observed the individual, he or she is not free to accept or reject that individual’s
complaints solely on the basis of such personal observations.” Id.
Here, Harris contends that the ALJ failed to provide a function-by-function analysis of
her ability to perform the physical and mental demands of work. Specifically, Harris claims that
the ALJ failed to set forth a narrative discussion describing how the evidence supported each
conclusion, failed to discuss her ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis, failed to describe the maximum amount of each work-
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related activity that she could perform based in the evidence in the record, and failed to explain
how any material inconsistencies or ambiguities in the evidence were considered or resolved.
This court agrees.
The ALJ failed to perform a sufficient function-by-function analysis of Harris’s ability to
perform substantially all of the exertional and non-exertional demands of sedentary work. The
ALJ simply made a general finding that Harris was able to perform sedentary work with lifting,
push/pull, sit-stand-walk, and other movement limitations, but failed to further describe how she
would meet the requirements of that exertional level or how she would perform sustained
activities in an ordinary work setting. (R. 13).
More significantly, the ALJ also failed to set forth a narrative discussion or cite the
medical and non-medical evidence supporting his conclusion. Instead, the ALJ simply
concluded that Harris’s allegations and testimony regarding her symptoms were not consistent
with or supported by the objective medical evidence, and failed to elaborate any further. (R. 14).
Moreover, the ALJ did not specifically cite or discuss the opinions of Harris’s treating
physicians, Drs. Richard M. Cirillo and Paul H. Griffith, III, both of whom consistently
documented the multiple surgeries; back, neck and shoulder pain; hand and finger numbness;
fibromyalgia; rheumatoid arthritis; leg pain; sleep disturbances; and inability to grip about which
Harris testified at her hearing. (See R. 305–08; 311–46). The ALJ also failed to specifically
discuss the potentially aggravating effects of Harris’s obesity on her other impairments, despite
stating that he took the obesity considerations of Social Security Ruling 02-1p into account. (R.
13). Instead of engaging in the requisite analysis and discussion, it seems that the ALJ based the
entirety of his opinion on his observations of Harris at the hearing, stating simply that “her verbal
responses and overall demeanor were not suggestive of a person who is experiencing disabling
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limitations.” (R. 14). While this court acknowledges Harris’s testimony that she had not used
pain medication in the two days prior to the hearing, R. 30, and that the ALJ had the opportunity
to observe Harris at a moment when her pain symptoms should have been at their worst, the
ALJ’s observations alone were not sufficient to disregard the opinions of Harris’s treating
physicians.
B. Subjective Pain Complaints.
Harris claims that the ALJ applied an improper standard in evaluating her assertions
regarding the intensity, persistence, and limiting effects of her pain. Harris also claims that the
ALJ failed to perform a proper assessment of her credibility. When evaluating whether a person
is disabled by subjective symptoms, an ALJ must follow a two-step process. Craig v. Charter,
76 F.3d 585, 594 (4th Cir. 1996); 20 C.F.R. § 404.1529. First, the ALJ must determine that
objective evidence shows the existence of a medical impairment that could reasonably be
expected to produce the actual symptoms alleged. 20 C.F.R. § 404.1529(b). If the claimant
makes this threshold showing, the ALJ must evaluate the extent to which these symptoms limit
the claimant’s capacity to work. 20 C.F.R. § 404.1529(c)(1). At this second stage, the ALJ must
consider all the available evidence, including medical history, objective medical evidence, and
statements by the claimant. 20 C.F.R. § 404.1529(c). The ALJ must also assess the credibility
of the claimant’s statements, as symptoms can sometimes manifest at a greater level of severity
of impairment than is shown solely by objective medical evidence. SSR 96-7p. To assess
credibility, the ALJ should consider factors such as the claimant’s daily activities, treatments she
has received for her symptoms, medications, and any other factors contributing to functional
limitations. Id. The ALJ’s opinion should be given great weight upon review because he has
had the opportunity to observe the demeanor and determine the credibility of the claimant.
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Shivley, 739 F.2d at 989–90.
The ALJ found that Harris’s medically-determinable impairments could reasonably be
expected to cause the symptoms alleged, but that Harris’s statements concerning the intensity,
persistence, and limiting effects of those symptoms were not entirely credible. (R. 14). While
the ALJ was correct in finding that Harris satisfied this threshold inquiry, his conclusion that her
subjective complaints of pain were not credible is not supported by substantial evidence.
In determining Harris’s RFC, the ALJ did not even discuss the opinions of Harris’s
treating physicians, which objectively supported her subjective pain complaints. The ALJ was
obligated to evaluate and weigh medical opinions “pursuant to the following non-exclusive list:
(1) whether the physician has examined the applicant, (2) the treatment relationship between the
physician and the applicant, (3) the supportability of the physician’s opinion, (4) the consistency
of the opinion with the record, and (5) whether the physician was a specialist.” Hines v.
Barnhart, 453 F.3d 559, 563 (4th Cir. 2006) (quoting Johnson v. Barnhart, 434 F.3d 650, 654
(4th Cir. 2005)). In every one of the treating physicians’ examination reports, Drs. Griffith and
Cirillo documented Harris’s continued complaints of pain over a 34-month period, which were
not alleviated despite various forms of treatment. (R. 311–46). In addition, the physicians and
specialists to whom Harris was referred, as well as the physicians who evaluated Harris’s RFC,
also consistently documented Harris’s complaints of pain. (R. 182, 213, 217, 220, 246 283).
In disputing Harris’s credibility, the ALJ generally referred to Harris’s “activities of daily
living, the medical and other evidence on the record, and the findings of the State Agency and
consultative examiners” as evidence that Harris’s “subjective complaints and alleged limitations
[were] not fully persuasive.” (R. 14). The ALJ also concluded that Harris’s verbal responses and
overall demeanor “were not suggestive of a person who is experiencing disabling limitations,”
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and that there were no reported continuous side effects of her medication. (R. 14). However, the
ALJ disregarded the continuous documentation of pain symptoms by Harris’s treating
physicians, as well as the overall ineffectiveness of the treatments and surgeries that Harris
underwent. (R. 311–46). The ALJ also disregarded statements by Harris’s treating physicians,
as well as the physicians to whom she was referred, which explicitly stated that Harris’s
symptoms definitely interfered with her activities of daily living and her ability to return to her
work status. (R. 208, 273). One of the physicians who evaluated Harris’s RFC also admitted that
she had trouble evaluating Harris’s RFC because the examiner had never dealt with the
combination of impairments that Harris described. (R. 217). However, the fact that an RFC
examiner was unable to classify Harris’s subjective pain complaints does not negate their
existence or her credibility.
5. Conclusion.
For the foregoing reasons, Harris’s motion for remand will be granted, her motion for
summary judgment will be denied, and the Commissioner’s motion for summary judgment will
be denied.
Date: December 27, 2011
/S/_________
JILLYN K. SCHULZE
United States Magistrate Judge
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