Watts v. Astrue
Filing
14
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 10/14/2014. (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
SHERRI WATTS,
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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1
Defendant.
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Civil No. TMD 12-2010
MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Sherri Watts (“Plaintiff”) seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3)
of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”)
denying her applications for disability insurance benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act. Before the Court are
Plaintiff’s Motion for Summary Judgment (ECF No. 9) and Defendant’s Motion for Summary
Judgment (ECF No. 12).2 Plaintiff contends that the administrative record does not contain
substantial evidence to support the Commissioner’s decision that she is not disabled. No hearing
is necessary.
L.R. 105.6.
For the reasons that follow, Defendant’s Motion for Summary
1
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed.
R. Civ. P. 25(d).
2
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
Judgment (ECF No. 12) is GRANTED, Plaintiff’s Motion for Summary Judgment (ECF No. 9)
is DENIED, and the Commissioner’s decision is AFFIRMED.
I
Background
Plaintiff was born in 1975, has a GED, and previously worked as an office assistant,
housekeeper, stock clerk, and customer service representative. R. at 19, 30-31. Plaintiff applied
for DIB on September 3, 2009, and for SSI on February 12, 2010, alleging disability beginning
on January 1, 2009 (later amended to January 1, 2011), due to depression, arthritis, obesity,
anxiety disorder, and post-traumatic stress disorder (“PTSD”). R. at 13, 17, 112-19, 163. The
Commissioner denied Plaintiff’s applications initially and again on reconsideration;
consequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at
41-44, 54-68. On January 26, 2012, ALJ Eugene Bond held a hearing in Washington, D.C., at
which Plaintiff and a vocational expert (“VE”) testified. R. at 13, 26-40. On February 29, 2012,
the ALJ issued a decision finding Plaintiff not disabled from the amended alleged onset date of
disability of January 1, 2011, through the date of the decision. R. at 10-25. Plaintiff sought
review of this decision by the Appeals Council, which denied Plaintiff’s request for review on
May 10, 2012.
R. at 1-9.
The ALJ’s decision thus became the final decision of the
Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 10607, 120 S. Ct. 2080, 2083 (2000).
On July 6, 2012, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
2
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.
II
Summary of Evidence
A.
Opinion Evidence
On September 24, 2010, S. Boyer, Ph.D.,3 a state agency consultant, evaluated on a
psychiatric review technique form (“PRTF”) Plaintiff’s mental impairments under paragraph B
of Listings 12.04, 12.06, 12.08, and 12.09 relating to affective, anxiety-related, personality, and
substance addiction disorders.
R. at 340-53.
Dr. Boyer opined that Plaintiff’s mental
impairments caused her to experience (1) mild restriction in activities of daily living;
(2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in
maintaining concentration, persistence, or pace; and (4) one or two episodes of decompensation
of extended duration. R. at 350. Dr. Boyer did not find evidence to establish the presence of the
criteria under paragraph C of these Listings. R. at 351. Accordingly, Dr. Boyer assessed
Plaintiff’s mental residual functional capacity (“RFC”) (R. at 336-39) and opined that she was
moderately limited in her ability to (1) understand, remember, and carry out detailed instructions;
(2) maintain attention and concentration for extended periods; (3) perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances;
(4) complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods; (5) interact appropriately with the general public; and to (6) respond appropriately to
3
The Court previously noted that Dr. Boyer possesses a Ph.D. degree. See Cooper v. Colvin,
Civil No. TMD 13-2623, 2014 WL 4702280, at *2 (D. Md. Sept. 19, 2014).
3
changes in the work setting. Plaintiff otherwise was not significantly limited. R. at 336-37. Dr.
Boyer’s RFC assessment thus provided:
Understanding and memory: Intact, able to understand and follow instructions.
Sustained concentration and persistence:
[Plaintiff’s] ability to sustain attention and concentration and persist to task
completion is moderately affected by her substance abuse and combined
psychiatric disorder. She has low frustration tolerance and has difficulty with
sustained attention. [Plaintiff] is likely to function best with routine tasks that can
be completed at her own pace.
Social interaction:
[Plaintiff] has difficulty getting along with others. She is likely to function best
with tasks that do not require group cooperation or frequent interactions with
others.
Adaptation:
[Plaintiff] has a [history] of poor judgment and may function best with tasks that
require little or no independent decision making.
Fluctuations in [Plaintiff’s] functioning may be related to substance abuse.
Continued abstinence is likely a key component in achieving a positive
[treatment] response for residual psych impairments, in maintaining adequate
functioning in daily activities, and in being able to maintain the responsibilities of
[substantial gainful activity] in a reliable manner.
R. at 338.
On November 3, 2010, S.K. Najar, M.D., another state agency consultant, assessed
Plaintiff’s physical RFC. R. at 360-67. Dr. Najar opined that Plaintiff could (1) lift and/or carry
50 pounds occasionally and 25 pounds frequently; (2) stand and/or walk for a total of about six
hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and
(4) perform unlimited pushing and/or pulling. R. at 361. Plaintiff occasionally could balance,
kneel, and crawl and frequently could stoop, crouch, and climb ramps and stairs (but never
ladders, ropes, or scaffolds). R. at 362. She had no manipulative, visual, communicative, or
environmental limitations, however. R. at 363-64.
4
On May 23, 2011, Brian Kim, D.O., conducted a consultative musculoskeletal
examination of Plaintiff. R. at 374-78. Dr. Kim noted that Plaintiff’s “[g]ait is stable using a
straight point cane and a left knee brace. There were no signs of instability.” R. at 376.
“Cervical spine range of motion was minimally reduced. . . . Shoulder ranges of motion were
moderately reduced on the left side.” R. at 376. “Upper extremity examination range of motion
was minimally reduced at the left elbow and wrist. . . . Lumbar spine range of motion was mildly
reduced in full flexion.” R. at 376. “Muscle manual testing revealed 4/5 at bilateral knees due to
pain. Grip strengths were symmetrical. Left shoulder range of motion was not fully tested but
mild weakness was identified.” R. at 376.
Today’s evaluation did reveal significant limitations at various anatomical
regions. Left shoulder range of motion was moderately reduced to about 50 to 60
percent of the right side. There was some mild weakness in the knee extensor
muscles due to pain.
Otherwise, there [were] no significant joint
restrictions. . . . Regarding her function, sitting should be well tolerated without
significant limitations. Standing and walking however should be limited to 15
minutes on a continual basis. Handling and carrying objects would be limited
with the left arm. Hearing and speaking are unaffected. Spine ranges of motion
were all within functional limits. No significant restrictions are identified. Motor
examination revealed 4/5 on muscle manual testing of the knee extensor due to
pain. Left shoulder examination was not fully tested due to pain and moderately
restricted range of motion. Her gait was stable using a single point cane. Her
weight bearing appeared to favor the right side. She is in need of [a] single point
cane at this time. Patient’s mobility such as getting on and off the examination
table is stable but slow. Walking on heels and toes is normal. Squatting and
arising from squatting position is very slow. She does have some difficulty with
knee bending. Deep knee bending or deep squat was not tested and only partial
squat was tested.
R. at 376.
On June 2, 2011, another state agency consultant, E. Edmunds, Ph.D., evaluated on a
PRTF Plaintiff’s mental impairments under paragraph B of Listings 12.04, 12.06, 12.08, and
12.09. R. at 383-96. Dr. Edmunds opined that Plaintiff’s mental impairments caused her to
experience (1) mild restriction in activities of daily living; (2) moderate difficulties in
5
maintaining social functioning; (3) moderate difficulties in maintaining concentration,
persistence, or pace; and (4) one or two episodes of decompensation of extended duration. R. at
393. Because Dr. Edmunds also did not find evidence to establish the presence of the criteria
under paragraph C of these Listings (R. at 394), Dr. Edmunds assessed Plaintiff’s mental RFC
(R. at 379-82) and opined that she was moderately limited in her ability to (1) carry out detailed
instructions; (2) maintain attention and concentration for extended periods; (3) perform activities
within a schedule, maintain regular attendance, and be punctual within customary tolerances;
(4) complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods; (5) interact appropriately with the general public; and to (6) respond appropriately to
changes in the work setting. Plaintiff otherwise was not significantly limited. R. at 379-80.
Dr. Edmunds’s mental RFC assessment thus stated:
A. Understanding and memory appear grossly intact. [Plaintiff] would be able to
learn and recall both simple and more complex instructions, though she may
have difficulty at times carrying out more complex routines consistently due
to the conditions.
B. [Concentration, persistence, or pace]: Conditions combined with distractions
from physical conditions and pain will impose intermittent fluctuation of
sustained concentration and persistence, but [Plaintiff] would be able to
complete a normal workday with reasonable breaks. [Plaintiff] would be able
to complete a normal workweek without significant exacerbation of psych
symptoms.
C. Social: [Plaintiff] denies problems accepting supervision, but several sources
have noted irritability and social interactions which would affect her ability to
respond appropriately to the public.
D. Adaptability: [Plaintiff] denies problems handling changes, and she is able to
negotiate independently in the community, and care for her household.
From a mental standpoint, [Plaintiff] would be able to perform tasks on a
sustained basis.
6
R. at 381.
On June 8, 2011, J. Biddison, M.D., a state agency consultant, assessed Plaintiff’s
physical RFC (R. at 397-404) and opined that Plaintiff could (1) lift and/or carry 20 pounds
occasionally and 10 pounds frequently; (2) stand and/or walk for a total of about six hours in an
eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform
unlimited pushing and/or pulling. R. at 398. Plaintiff occasionally could climb, stoop, kneel,
crouch, and crawl and frequently could balance. R. at 399. She had no manipulative, visual,
communicative, or environmental limitations.
R. at 400-01.
In so finding, Dr. Biddison
specifically acknowledged Dr. Kim’s May 2011 findings. R. at 404.
On June 30, 2011, Gul Chablani, M.D., opined that Plaintiff could never climb, bend, or
squat. R. at 409. In an eight-hour workday with normal breaks, she could stand for one hour,
walk for one hour, and crawl for one hour; sit for two hours; and reach for four hours. R. at 409.
Plaintiff could lift at most 10 pounds frequently. R. at 409. She could be exposed occasionally
to extreme cold and heat and frequently to humidity, chemicals, dust, fumes/odors, noise, and
heights. R. at 409. Plaintiff could use her hands for repetitive action such as simple grasping,
pushing, and fine manipulation. R. at 409. Dr. Chablani noted an absence of substance abuse.
R. at 410. The doctor noted that Plaintiff suffered from PTSD and depression, causing her
moderate restriction in activities of daily living; moderate difficulties in maintaining social
functioning; difficulties often in maintaining concentration, persistence, or pace; and no episodes
of decompensation of extended duration. R. at 410.
Dr. Chablani ultimately opined that
Plaintiff’s medical condition prevented her from working from June 30, 2011, to June 30, 2012.
R. at 411.
7
B.
Plaintiff’s Testimony
In his decision, the ALJ reviewed Plaintiff’s allegations:
[Plaintiff] alleges depression, arthritis, obesity, anxiety disorder, and posttraumatic stress disorder. She states that these impairments result in short-term
memory problems, stiffness in her legs, need for pain medication that causes
drowsiness and arthritis medication that causes nausea, fatigue, forgetfulness,
difficulty dealing with other people, crying spells, anger outbursts, isolation, and
inability to hold her arms up to arrange her hair.
R. at 17. Plaintiff also stated that “she cares for her teenage children, walks a dog, prepares
simple meals, does light housework, and shops for groceries with her children.” R. at 18 (citing
R. at 154-62).
C.
VE Testimony
According to the VE, a hypothetical individual with Plaintiff’s same age, education, and
work experience who had the capacity to perform unskilled, light work4 and required a sit/stand
option at will and limited contact with the general public could work as a packer and packaging
worker, machine tender, or inspector. R. at 37-38. That individual could work as a small-parts
inserter, grading and sorting worker, or quality control worker if his or her RFC were limited
instead to only sedentary work.5 R. at 37. That individual could not perform substantial gainful
activity, however, if he or she would miss two or more days of work per month. R. at 39.
The Court reviews other portions of the record more fully in its discussion of Plaintiff’s
arguments below. See infra Part VI.
4
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Even though the
weight lifted may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and pulling of arm or
leg controls.” Id.
5
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. §§ 404.1567(a),
416.967(a).
8
III
Summary of ALJ’s Decision
On February 29, 2012, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the amended alleged onset date of disability of January 1, 2011; and (2) had
an impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform her past relevant work; but (5) could
perform other work in the national economy, such as a small-parts inserter, grading and sorting
worker, quality control worker, packer and packaging worker, machine tender, or inspector. R.
at 15-21. The ALJ accordingly found that she was not disabled from January 1, 2011, through
the date of the decision. R. at 21.
In so finding, the ALJ found that Plaintiff had the RFC “to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except she must have the option to alternate between
sitting and standing at will and is limited to unskilled work that does not involve contact with the
general public.”
R. at 17.
The ALJ considered Plaintiff’s credibility and found that her
“medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the [ALJ’s RFC]
assessment.” R. at 18. The ALJ afforded “significant weight” to the state agency consultants’
opinions and “little weight” to Dr. Chablani’s opinion. R. at 19.
9
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant 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 either in the
region where such individual lives or in several regions of the country.”
42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
10
20 C.F.R.
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).6
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
6
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
11
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
12
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security
Ruling 96-8p.7 Pl.’s Mem. Supp. Mot. Summ. J. 3-9, ECF No. 9-1 (citing, inter alia, Fleming v.
7
Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
13
Barnhart, 284 F. Supp. 2d 256, 271-72 (D. Md. 2003)). Plaintiff maintains that the ALJ failed to
perform properly a function-by-function assessment of her ability to perform the physical and
mental demands of work. Id. at 5.
Plaintiff’s assertion is without merit. In this case, the ALJ discussed in narrative form the
records and opinions of Plaintiff’s examining sources. R. at 18-19. The ALJ also considered
Plaintiff’s allegations and credibility when determining her RFC. R. at 17-18. Thus, the ALJ’s
function-by-function assessment and narrative discussion were proper. See Brown v. Astrue,
Civil Action No. TMD 09-1358, 2011 WL 3047635, at *2 (D. Md. July 22, 2011); Walter v.
Astrue, Civil No. JKS 08-639, 2009 WL 2584817, at *4 (D. Md. Aug. 19, 2009) (concluding that
ALJ’s “function by function” assessment was adequate because ALJ evaluated medical facts and
opinions, as well as claimant’s testimony and credibility, in narrative discussion). “Moreover, in
making her boilerplate argument regarding the alleged lack of a ‘function-by-function’
assessment, [Plaintiff] does not cite any particular ‘functions’ that she alleges were inadequately
addressed by the ALJ.” Livingston v. Comm’r, Soc. Sec. Admin., Civil No. SAG-10-2996, 2013
WL 674075, at *1 (D. Md. Feb. 22, 2013). Accordingly, remand is not warranted.
Plaintiff maintains, however, that the ALJ failed to evaluate properly pertinent evidence,
including a January 2011 MRI examination of her left knee (R. at 405-06). Pl.’s Mem. Supp.
Mot. Summ. J. 6, ECF No. 9-1. She further contends that the ALJ failed to include any of the
limitations opined by Dr. Kim in his May 2011 RFC assessment, including her limited ability to
handle and carry objects with her left arm, her need to use a cane, and her ability to stand and
walk for no more than 15 minutes at a time (R. at 376). Id.
While the Commissioner’s decision must contain a statement of the case, in
understandable language, setting forth a discussion of the evidence, and stating
the Commissioner’s determination and the reason or reasons upon which it is
14
based, there is no rigid requirement that the ALJ specifically refer to every piece
of evidence in his decision[.]
Reid v. Comm’r of Soc. Sec., __ F.3d __, No. 13-1480, 2014 WL 4555249, at *3 (4th Cir. Sept.
16, 2014) (citation omitted) (internal quotation marks omitted). Moreover, the burden is on the
party attacking an agency’s determination to show that prejudice resulted from the error.
Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S. Ct. 1696, 1705-06 (2009); McLeod v. Astrue,
640 F.3d 881, 887 (9th Cir. 2011) (“Where harmfulness of the error is not apparent from the
circumstances, the party seeking reversal must explain how the error caused harm.”); Ngarurih v.
Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004) (“[R]eversal is not required when the alleged
error ‘clearly had no bearing on the procedure used or the substance of [the] decision reached.’”
(quoting Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248, 84 S. Ct.
1236, 1245 (1964))). Furthermore, “a deficiency in opinion-writing is not a sufficient reason for
setting aside an administrative finding where the deficiency had no practical effect on the
outcome of the case.” Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999); see Fisher v. Bowen,
869 F.2d 1055, 1057 (7th Cir. 1989) (Posner, J.) (“No principle of administrative law or common
sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe
that the remand might lead to a different result.”). Rather, “[i]f it is predictable with great
confidence that the agency will reinstate its decision on remand because the decision is
overwhelmingly supported by the record though the agency’s original opinion failed to marshal
that support, then remanding is a waste of time.” Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.
2010) (Posner, J.); see Bishop v. Comm’r of Soc. Sec., No. 14-1042, 2014 WL 4347190, at *2
(4th Cir. Sept. 3, 2014) (per curiam).
Here, Plaintiff’s contention regarding the ALJ’s consideration of her January 2011 MRI
of her left knee is without merit, as the ALJ specifically reviewed this report in his decision. R.
15
at 18 (citing R. at 405-07). Further, providing in an RFC assessment an option to sit or stand
adequately accounts for a claimant’s significant standing and walking limitations. See Koch v.
Astrue, No. CV. 08-609 PK, 2009 WL 1743680, at *3 (D. Or. June 15, 2009). As for Plaintiff’s
use of a cane, “[e]ven assuming that Plaintiff does require a cane, there is no indication that use
of a cane would prevent Plaintiff from performing the minimal standing, walking and carrying
requirements of sedentary work,” which the ALJ found that Plaintiff could perform (R. at 20,
37). Boyd v. Astrue, C/A No. 4:10-237-CMC-TER, 2011 WL 3652299, at *2 (D.S.C. Aug. 17,
2011) (citing Grebenick v. Chater, 121 F.3d 1193 (8th Cir. 1997)); see Catterton v. Comm’r,
Soc. Sec. Admin., Civil No. SAG-11-1056, 2013 WL 2470082, at *2 (D. Md. June 6, 2013)
(“Given the RFC for sedentary work, any error in omitting the need for a hand-held assistive
device is harmless, because by definition, little standing or walking is required to perform
sedentary jobs.”).
Furthermore, although the ALJ erred in failing to address Dr. Kim’s opinion that
Plaintiff’s ability to handle and carry objects with her left arm was limited (R. at 376), the error
was harmless. Dr. Biddison, a state agency consultant, considered Dr. Kim’s May 2011 report,
and the ALJ gave “significant weight” to Dr. Biddison’s opinion regarding Plaintiff’s physical
RFC that included no manipulative limitations (R. 19, 397-404). See Bryant v. Astrue, No. 1:11CV-03083-SKG, 2013 WL 1303127, at *12 (D. Md. Mar. 28, 2013) (finding harmless error in
ALJ’s failure to discuss consultative examiner’s report because report was discussed by state
agency consultants, whose opinions were given “great weight” by ALJ, and was consistent with
medical evidence on record), aff’d per curiam sub nom. Bryant v. Colvin, 571 F. App’x 186 (4th
Cir. 2014). In any event, “[w]here the ALJ fails in his duty to fully inquire into the issues
necessary for adequate development of the record, and such failure is prejudicial to the claimant,
16
the case should be remanded.” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980). An ALJ is
not obliged to investigate a claim not presented at the time of the benefits application and not
offered at the hearing as a basis for disability, however. Meyer v. Colvin, 754 F.3d 251, 256-57
(4th Cir. 2014) (citing Halverson v. Astrue, 600 F.3d 922, 934 (8th Cir. 2010)). Plaintiff in this
case did not claim that limitations with her left arm affected her ability to work (R. at 155, 171),
and she did not testify that she had any impairment or limitations in her left shoulder (R. at 3035).
In short, Plaintiff’s contention regarding the ALJ’s discussion of these conditions is
unavailing.
Further, the ALJ found that Plaintiff had moderate difficulties with regard to social
functioning and concentration, persistence, or pace (R. at 16) and so limited her to “unskilled
work that does not involve contact with the general public” (R. at 17). Plaintiff asserts that,
despite giving “significant weight” to the state agency consultants’ opinions, the ALJ failed to
include in his RFC assessment Dr. Boyer’s opinion that Plaintiff “is likely to function best with
routine tasks that can be completed at her own pace” (R. at 19, 338). Pl.’s Mem. Supp. Mot.
Summ. J. 6, ECF No. 9-1. The ALJ’s limiting Plaintiff’s RFC to unskilled work not involving
contact with the general public, however, is consistent with Dr. Boyer’s opinion regarding
Plaintiff’s optimal functioning with completing routine tasks at her own pace. See Johns v.
Comm’r, Soc. Sec. Admin., Civil No. SAG-11-2996, 2014 WL 333552, at *2 (D. Md. Jan. 28,
2014) (“The ALJ limited [the claimant] to unskilled work with limited general public contact,
which is consistent with [the state agency physician’s] suggestion that [the claimant] ‘may
exhibit difficulties on occasion with more complex tasks and persistence’ and ‘is likely to
perform adequately in environments with limited social interactions, ability to work at their own
pace and minimal stressors.’” (citation omitted)); Bowers v. Comm’r, Soc. Sec. Admin., Civil No.
17
SAG-11-1445, 2013 WL 150023, at *2 (D. Md. Jan. 11, 2013) (“The [ALJ’s] finding of a
moderate impairment in concentration, persistence, and pace does not indicate that restrictions
other than a limitation to simple, unskilled work would be necessary.”).
Plaintiff further maintains that the ALJ failed to perform a more detailed assessment of
her capacity to perform the mental demands of work while assessing her RFC. Pl.’s Mem. Supp.
Mot. Summ. J. 9, ECF No. 9-1. She, however, “provides no analysis of how a ‘more detailed’
assessment . . . might have resulted in a different outcome.” Seifert v. Comm’r, Soc. Sec. Admin.,
Civil No. SAG-11-1051, 2013 WL 1881065, at *2 (D. Md. May 2, 2013); see Reid, 2014 WL
4555249, at *4 (“[The claimant] has failed to point to any specific piece of evidence not
considered by the Commissioner that might have changed the outcome of his disability claim.”).
Furthermore, although Plaintiff contends that the ALJ “cumulated [her] mental
impairments into a less[]detailed conclusion that [she] was limited to unskilled work that does
not involve contact with the general public,” Pl.’s Mem. Supp. Mot. Summ J. 9, ECF No. 9-1,
“the ultimate conclusion itself need not contain detail, as long as the supporting analysis is
sufficient to justify the conclusion reached.” Livingston, 2013 WL 674075, at *2. In this case,
the ALJ found that, while Plaintiff claimed that she suffered from short-term memory problems,
fatigue, and isolation (R. at 17), her noncompliance with medication suggested symptoms that
were not as severe as alleged (R. at 18, 19). “[A]n unexplained inconsistency between the
claimant’s characterization of the severity of her condition and the treatment she sought to
alleviate that condition is highly probative of the claimant’s credibility.” Mickles v. Shalala, 29
F.3d 918, 930 (4th Cir. 1994) (Luttig, J., concurring); see Hunter v. Sullivan, 993 F.2d 31, 36
(4th Cir. 1992) (per curiam) (claimant’s failure, inter alia, to sustain consistent treatment
regimen supported ALJ’s credibility determination that claimant’s pain complaints were
18
inconsistent with evidence). The ALJ further found that Plaintiff’s activities of daily living
indicated an ability to perform work-related functions (R. at 18). See Johnson, 434 F.3d at 658;
Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (per curiam); see also Lanier v. Comm’r
of Soc. Sec., 252 F. App’x 311, 314 (11th Cir. 2007) (per curiam) (affirming ALJ’s adverse
credibility determination where claimant’s description of her activities was inconsistent with her
testimony regarding pain).
Thus, the ALJ found that her statements about the intensity,
persistence, and limiting effects of her symptoms were not credible to the extent they were
inconsistent with the ALJ’s RFC assessment. R. at 18. Plaintiff does not dispute the ALJ’s
credibility determination, but, in any event, the Court finds that the ALJ’s supporting analysis is
sufficient to justify his conclusion, as he reviewed the evidence of record in determining the
degree of Plaintiff’s mental limitations. R. at 16-17, 19. Her argument accordingly is without
merit.
Plaintiff finally argues that the ALJ erroneously relied upon the VE’s testimony because
the hypothetical questions to the VE failed to include all of Plaintiff’s limitations, citing Walker
v. Bowen, 889 F.2d 47 (4th Cir. 1989). Pl.’s Mem. Supp. Mot. Summ. J. 10, ECF No. 9-1.
However, Plaintiff’s “argument that the ALJ relied upon an improper hypothetical to the VE is
also rejected. This argument is based on the same assertions discussed above with regard to
alleged errors pertaining to [Plaintiff’s] RFC. Accordingly, the argument fails for the same
reasons which need not be reiterated here.” Wilson-Brown v. Colvin, Civil Action No. TMD 1201112, 2013 WL 5272939, at *3 n.4 (D. Md. Sept. 16, 2013).
Plaintiff also maintains that the ALJ’s preclusion of contact with the general public as
stated in his RFC assessment (R. at 17) was not included in the hypothetical questions to the VE,
which related only to an individual’s “limited general public contact” (R. at 37). Pl.’s Mem.
19
Supp. Mot. Summ. J. 10-11, ECF No. 9-1. Plaintiff again fails to demonstrate prejudice from the
claimed error, however. “In order for a vocational expert’s opinion to be relevant or helpful, it
must be based upon a consideration of all other evidence in the record, and it must be in response
to proper hypothetical questions which fairly set out all of [the] claimant’s impairments.”
Walker, 889 F.2d at 50 (citation omitted). As the Commissioner points out, the jobs delineated
by the VE do not require contact with the general public, which Plaintiff has not argued to the
contrary (Def.’s Mem. Supp. Mot. Summ. J. 18-19, ECF No. 12-1 (citing Dictionary of
Occupational Titles)).
See Hartline v. Astrue, 605 F. Supp. 2d 194, 208 (D.D.C. 2009)
(“Plaintiff’s first argument [that the hypothetical question to the VE did not expressly
incorporate Plaintiff’s need for limited general public contact] fails because—as Defendant
explains and Plaintiff does not dispute—the jobs listed by the VE (router, office helper, and nonpostal mail clerk) do not require significant public contact.” (citing Dictionary of Occupational
Titles)). The Court accordingly finds that substantial evidence supports the ALJ’s determination
at step five of the sequential evaluation process.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards in this case.
Accordingly, Defendant’s Motion for Summary Judgment is
GRANTED, Plaintiff’s Motion for Summary Judgment is DENIED, and the Commissioner’s
decision is AFFIRMED.
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VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 12) is
GRANTED.
Plaintiff’s Motion for Summary Judgment (ECF No. 9) is DENIED.
Commissioner’s decision is AFFIRMED. A separate order shall issue.
Date: October 14, 2014
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
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The
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