Chase v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 5/29/14. (am2s)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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KOWANNA M. CHASE,

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Plaintiff,

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Civil Action No.: CBD-13-1385

v.

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CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.

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******

MEMORANDUM OPINION
Kowana Chase (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff’s claims for a period of Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401–434. Before the Court are
Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 17) and Defendant’s
Motion for Summary Judgment (“Defendant’s Motion”) (ECF No. 19). The Court has reviewed
the motions, related memoranda, and applicable law. No hearing is deemed necessary. See
Local Rule 105.6 (D. Md.). For the reasons presented below, the Court hereby DENIES
Plaintiff’s Motion, DENIES Defendant’s Motion, and REMANDS this matter to the Social
Security Administration for further proceedings consistent with this opinion.
I.

Procedural Background

Plaintiff filed her application for DIB on March 7, 2007 and claimed disability from the
onset date of August 1, 2005 through the date last insured of December 31, 2009, as a result of
the late effects of musculoskeketal connective tissue injury, status post cervical fusion, and

obesity. R. at 13–14, 17, 137–40, 168. The Commissioner denied Plaintiff’s claim on first
review on July 12, 2007 and upon reconsideration on January 10, 2008. R. at 97–99, 104–05.
Plaintiff appeared and testified at a hearing held on December 15, 2009 before an Administrative
Law Judge (“ALJ”). R. at 43–60. On January 6, 2010, the ALJ issued a written decision
concluding Plaintiff was not entitled to DIB payments. R. at 79–88. Plaintiff requested review
of the ALJ’s decision by the Appeals Council, which vacated and remanded Plaintiff’s claim for
review and a new hearing. R. at 91–93. A second hearing was held before an ALJ on September
13, 2011, and the ALJ issued a decision denying Plaintiff’s claim on October 19, 2011. R. at 10–
26, 61–75. On March 15, 2013, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision final and appealable. R. at 1–4.
II.

Standard of Review
On appeal, the Court has the power to affirm, modify, or reverse the decision of the ALJ

“with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (2012). The Court
must affirm the ALJ’s decision if it is supported by substantial evidence and the ALJ applied the
correct law. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.”); see also Russell v.
Commissioner of Soc. Sec., 440 F. App’x 163, 164 (4th Cir. 2011); Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Substantial
evidence is “more than a mere scintilla. It means 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)) (internal quotation
marks omitted); see also Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks omitted) (“It consists of

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more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there
is evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.”).
The Court does not review the evidence presented below de novo, nor does the Court
“determine the weight of the evidence” or “substitute its judgment for that of the Secretary if his
decision is supported by substantial evidence.” Hays, 907 F.2d at 1456; Schweiker, 795 F.2d at
345. The ALJ, not the Court, has the responsibility to make findings of fact and resolve
evidentiary conflicts. Hays, 907 F.2d at 1456. If the ALJ’s factual finding, however, “was
reached by means of an improper standard or misapplication of the law,” then that finding is not
binding on the Court. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
The Court shall find a person legally disabled if she is unable “to do 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.” 20 C.F.R. §§ 404.1505(a), 416.905(a) (2014). The Code of
Federal Regulations outlines a sequential, five-step process that the Commissioner must follow
to determine if a plaintiff meets this definition:
Step 1) Determine whether the plaintiff is “doing substantial gainful activity.”
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If she is doing such
activity, she is not disabled. If she is not doing such activity, proceed to
step two.
Step 2) Determine whether the plaintiff has a “severe medically determinable
physical or mental impairment that meets the duration requirement in
§ 404.1509, or a combination of impairments that is severe and meets
the duration requirement.” 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If she does not have such impairment or combination
of impairments, she is not disabled. If she does meet these requirements,
proceed to step three.
Step 3) Determine whether the plaintiff has an impairment that “meets or equals
one of [the C.F.R.’s] listings in appendix 1 of this subpart and meets the
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duration requirement.” 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If she does have such impairment, she is disabled. If
she does not, proceed to step four.
Step 4) Determine whether the plaintiff retains the “residual functional capacity”
to perform “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If she can perform such work, she is not disabled. If
she cannot, proceed to step five.
Step 5) Determine whether the plaintiff can perform other work, considering her
residual functional capacity, age, education, and work experience. 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If she can perform other
work, she is not disabled. If she cannot, she is disabled.
Plaintiff has the burden to prove that she is disabled at steps one through four, and
Defendant has the burden to prove that Plaintiff is not disabled at step five. Pass v. Chater, 65
F.3d 1200, 1203 (4th Cir. 1995) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)).
III.

Analysis
In the ALJ’s October 19, 2011 decision, he evaluated Plaintiff’s claims using the five-

step sequential process set forth in 20 C.F.R. § 404.1520. R. at 16–26. At the first step, the ALJ
determined that Plaintiff did not engage in substantial gainful activity during the claim period
from her alleged onset date through her date last insured. R. at 17. At the second step, the ALJ
determined that Plaintiff suffered from severe impairments due to the late effects of
musculoskeketal connective tissue injury, status post cervical fusion, and obesity. R. at 17–18.
At the third step, the ALJ determined that Plaintiff “did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments.” R.
at 18–19. Before proceeding to step four of the sequential evaluation, the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to perform light unskilled work with
an option to sit/stand at will and which accommodates her limited dominant hand usage. R. at
19–24. At step four, the ALJ compared the physical and mental demands of Plaintiff’s past
relevant work as a store clerk with her assessed RFC, and found that Plaintiff was not capable of

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performing her past relevant work. R. at 24. At step five, the ALJ compared Plaintiff’s RFC,
age, education, and work experience to the demands required of other work in the national
economy, and found that Plaintiff was capable of successfully adjusting to other work such as
router, counter clerk, and gate guard. R. at 4–26. As a result, the ALJ concluded that Plaintiff
“was not under a disability, as defined in the Social Security Act,” during the claim period from
the alleged onset date of August 1, 2005 through the date last insured of December 31, 2009. R.
at 26.
On appeal, Plaintiff argues that the Court should reverse the Commissioner’s decision or
remand the case for additional consideration and evaluation of Plaintiff’s conditions. Pl. Mot. 1.
Plaintiff alleges the ALJ (1) improperly discounted new and material evidence, (2) neglected to
consider all Plaintiff’s impairments in his RFC determination, and (3) failed to give the opinion
of Plaintiff’s treating physician appropriate deference. Id. at 2. For the reasons set forth below,
both the Plaintiff’s Motion and the Defendant’s Motion are denied and the matter is remanded
for further proceedings consistent with this opinion.
A. Plaintiff Has Met Her Burden of Proving the Requirements for New and
Material Evidence
Plaintiff alleges that treatment records from Dr. Patrick Sheehan constitute new and
material evidence which warrant remand. Pl. Mot. 3–4. Defendant argues that Plaintiff failed to
meet her burden of demonstrating either the relevance of Dr. Sheehan’s report or how the ALJ’s
decision might have been different had this evidence been before him. Dr. Sheehan first saw
Plaintiff on May 1, 2013, in order evaluate Plaintiff for her workers’ compensation case. Pl.
Mot. Ex. 1 at 2. Dr. Sheehan’s treatment notes support a finding that Plaintiff fits the criteria for
affective disorder as outlined in the regulations, and his evaluation concludes that Plaintiff’s

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work accident in March 2002 was the proximate cause of her depressive disorder and panic
disorder. Pl. Mot. 4, Ex. 1 at 2.
A remand is warranted “upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding.” See 42 U.S.C. § 405(g). In order to justify a remand to consider newly submitted
medical evidence, the evidence must meet the requirements of 42 U.S.C. § 405(g) and Borders v.
Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by statute 42 U.S.C. § 405(g), as
recognized in Wilkins v. Sec’y, Dept. Health & Human Servs., 925 F.2d 769 (4th Cir. 1991). A
reviewing court may remand a Social Security case to the Secretary on the basis of newly
discovered evidence if the following prerequisites are met: (1) the evidence must be relevant to
the determination of disability at the time the application was first filed; (2) the evidence must be
material to the extent that the Commissioner’s decision might reasonably have been different had
the new evidence been before her; (3) there must be good cause for the claimant’s failure to
submit the evidence when the claim was before the Commissioner; and (4) the claimant must
make at least a general showing of the nature of the new evidence to the reviewing court. Miller
v. Barnhart, 64 F. App’x 858, 859–60 (4th Cir. 2003) (citing Borders, 777 F.2d 954, 955 (4th
Cir. 1985)). Plaintiff bears the burden of proving that these requirements are satisfied. Brown v.
Astrue, No. TMD-11-1063, 2013 WL 360259, at *3 (D. Md. Jan. 29, 2013).
Plaintiff has made the requisite showing for all four prerequisites of the Borders test.
First, Plaintiff demonstrates that the evidence was relevant to the disability determination at the
time of filing by summarizing Dr. Sheehan’s findings. Pl. Mot. 4. Second, it is possible that the
evidence might reasonably have changed the Commissioner’s decision, because Dr. Sheehan was
a treating physician entitled to deference. Id.; see infra Part III.C.1 (discussing the appropriate

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weight to be attributed to the opinion of a treating physician). Third, Plaintiff met the “good
cause” requirement of § 405(g) by noting that “Dr. Sheehan’s records were not available at the
time of the ALJ decision.” Pl. Mot. 4. Fourth, Plaintiff accounted for the nature of the new
evidence by providing copies of Dr. Sheehan’s findings to the Court. Pl. Mot. Ex 1, 2. Where,
as here, Plaintiff has produced new and material evidence that satisfies the Borders test, the case
should be remanded for a new administrative determination.
B. ALJ Neglected to Consider All Plaintiff’s Impairments in RFC Determination
Plaintiff maintains that the ALJ erred at step four of the sequential analysis and
inaccurately assessed Plaintiff’s RFC, by failing to consider all of Plaintiff’s relevant
impairments such as her carpal tunnel syndrome, second cervical fusion surgery, or headaches.
Defendant contends that the ALJ’s decision is supported by substantial evidence and that, where
he may have erred, it was harmless. Pl. Mot. 4–5.
A claimant’s residual functional capacity is an assessment regarding what she can do
despite her physical or mental limitations. See SSR 96-8p, 1996 WL 374184, at *2 (July 2,
1996); 20 C.F.R. §§ 404.1546(c), 416.946(c) (2014). To determine a claimant’s RFC, the ALJ
will consider all of her impairments, including those that are not severe. 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2) (2014). The RFC assessment is based on all the relevant evidence
in the record. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). In determining a claimant’s RFC, the
ALJ must identify her functional limitations or restrictions and assess the claimant’s workrelated abilities on a function-by-function basis. SSR 96-8p, 1996 WL 374184, at *3. The
ALJ’s assessment must include a narrative discussion detailing how the evidence in the record
supports his or her conclusion. Id. at 7; see also Finlay v. Astrue, No. SAG-10-2020, 2012 WL
5267084, at *1 (D. Md. Oct. 19, 2012).

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The ALJ appropriately addressed the records pertaining to the alleged carpal tunnel
conditions, committed harmless error regarding Plaintiff’s second cervical fusion, and committed
remandable error regarding Plaintiff’s allegation of debilitating headaches. First, the ALJ not
only addressed Plaintiff’s carpal tunnel condition throughout his decision, specifically regarding
bilateral strength in her upper extremities and a normal range of wrist motion, but actually found
that Plaintiff had limited dominant hand usage. R. at 18–21. This assessment is consistent with
x-rays of Plaintiff’s hands from September of 2008. R. at 215. Second, the ALJ did not
specifically articulate that Plaintiff had undergone two fusion surgeries, but instead spoke
generally about the effect of cervical fusion surgery on Plaintiff’s recovery. Nonetheless,
Plaintiff failed to demonstrate prejudice resulting from the ALJ’s error. In the absence of any
argument that the ALJ’s failure to specifically mention both surgeries could have affected the
outcome of the ALJ’s analysis, any error in failing to consider the second fusion surgery is
harmless error. See, e.g., Wilson-Brown v. Colvin, No. TMD-12-1112, 2013 WL 5272939, at *3
(D. Md. Sept. 16, 2013); Costley v. Commissioner, No. SAG-12-2670, 2013 WL 4836102, at *1
(D. Md. Sept. 9, 2013); Parker v. Colvin, No. JKS-11-2170, 2013 WL 4551821, at *3 (D. Md.
Aug. 27, 2013).
Finally, the Court cannot find harmless error where the ALJ neglects to address an
impairment that previous reports found important enough to categorize as severe. The ALJ’s
first decision on January 6, 2010, listed headaches as a severe impairment supported by
documentation. R. at 49–51, 64, 67–68, 84, 212, 216. However, the ALJ’s second decision on
October 19, 2011, stated that Plaintiff’s impairments include only “musculoskeletal connective
tissue injury, status post cervical fusion, and obesity.” R. at 17. Plaintiff’s debilitating
headaches are not addressed in the second assessment at all, either as a severe or non-severe

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impairment. R. at 13–26. By failing to consider all of Plaintiff’s impairments when considering
her ability to work, the ALJ based his determination on incomplete and inaccurate information.
The case, therefore, should be remanded for a new administrative determination.
C. ALJ Attributed Appropriate Weight to Treating Physician Evidence and
Properly Evaluated Evidence in Record
Plaintiff asserts that the ALJ erred at step four of the sequential analysis by not attributing
appropriate deference to the opinion of Plaintiff’s treating physician and by not properly
evaluating the evidence in the record. Pl. Mot. 5–7. First, Plaintiff contends the ALJ violated
the “treating physician rule” by disregarding the opinion of Plaintiff’s treating physician Dr.
Leonid Selya. Pl. Mot. 6. Second, Plaintiff alleges the ALJ erroneously based his credibility
determination on his RFC determination instead of the evidence in the record. Pl. Mot. 6–7.
Third, Plaintiff challenges the ALJ’s sufficiency of explanation, claiming he used only
boilerplate language to support his conclusions. Id. The ALJ did not err on any challenge
asserted.
1. ALJ Attributed Appropriate Weight to Opinion of Plaintiff’s Treating Physician
Plaintiff alleges that the ALJ improperly weighed the medical opinion evidence of
Plaintiff’s treating physician Dr. Selya in reaching his conclusion. Pl. Mot. 6. Plaintiff cites this
Court’s decision in Thomas v. Astrue, No. CBD-11-2960, 2012 WL 5363448 (D. Md. Oct. 26,
2012), for the proposition that “[a] treating physician’s opinion should be given complete
deference absent contradicting opinions, and significant weight even where contradicted.” Pl.
Mot. 6. This is a bold mischaracterization of the Court’s holding, which simply states “good
reasons” are required to reject the opinion of a treating physician. Thomas, 2012 WL 5363448,
at *5 (citing Russell v. Comm’r of Soc. Sec., 440 F. App’x 163, 164 (4th Cir. 2011)). The Court

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finds that the ALJ’s analysis provided good reason in compliance with all relevant rulings and
regulations.
To determine the weight assigned to medical opinions, the Commissioner considers six
factors: (1) the examining relationship between the source and the claimant; (2) the length,
nature, and extent of the treatment relationship between the source and the claimant; (3) the
supportability of the source’s opinions; (4) the consistency of the source’s opinions with the
record as a whole; (5) any specialized expertise of the source; and (6) other factors which the
claimant may bring to the Commissioner’s attention. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2) (2014). The regulations state a preference for medical sources who have a
treatment relationship with the claimant, because they are “most able to provide a detailed,
longitudinal picture” and “may bring a unique perspective to the medical evidence.” 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). When the adjudicator does not give controlling weight to a
treating source, that decision must be justified in the notice of decision by an application of the
factors listed above. Id. For medical sources who have not examined or treated the claimant, the
adjudicator must assign weight depending on the degree to which they provide supporting
explanations for their opinions. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
Fourth Circuit precedent does not require that a treating physician’s testimony be given
controlling weight. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); see also Craig, 76 F.3d
at 590 (“By negative implication, if a physician’s opinion is not supported by clinical evidence or
if it is inconsistent with other substantial evidence, it should be accorded significantly less
weight”). The Commissioner must give controlling weight to an opinion from a treating source
if it “is well supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in [the] case record.” 20 C.F.R. §§

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404.1527(c)(2), 416.927(c)(2) (2014); see also Craig, 76 F.3d at 590. Certain determinations,
however, are always reserved to the Commissioner because they are administrative findings and
are dispositive of the case. 20 C.F.R. §§ 404.1527(d), 416.927(d) (2014). These include
opinions that a claimant is disabled, whether an impairment meets or equals a listing, a
claimant’s RFC, and the application of vocational factors. Id.; see also SSR 96-5p, 1996 WL
374183, *2 (July 2, 1996) (stating that giving controlling weight to such opinions “would be an
abdication of the Commissioner’s statutory responsibility to determine whether an individual is
disabled”).
According to Dr. Selya’s records, Plaintiff began to exhibit pain in her neck and
numbness down her left arm as a result of a slip and fall in 2002. R. at 313. Symptoms persisted
and after failing to improve with conservative management, including physical therapy and
nonsterodial anti-inflammatory drugs (“NSAIDs”), Plaintiff underwent anterior decompression
and anterior fusion surgery at C5-C6. Id. The surgery was unsuccessful and Plaintiff’s pain
worsened. Id. On May 3, 2007, Dr. Selya concluded Plaintiff was “totally disabled” and would
“not be able to enjoy any productive employment considering the severity of pain, loss of
cervical motions, and risk of addrevation of the pseudoarthrosis.” R. at 310. Contrariwise, on
September 13, 2007 Dr. Selya also concluded that Plaintiff was able to walk with upright gait
with some apprehension and revealed only mild cervical and sacrococcygeal junctional pain. R.
at 307. On November 13, 2007, Plaintiff underwent a second surgery, posterior cervical fusion
at C5-C7. R. at 314. In Plaintiff’s first postsurgical follow-up on November 29, 2007, Dr. Selya
reported Plaintiff was “doing reasonably well” and exhibited improvement in her upper
extremities and in the severity of her back pain. R. at 306.

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The ALJ determined that Dr. Selya’s opinion that Plaintiff was “totally disabled” before
the second surgery was not entitled to controlling weight because it was not supported by
medical evidence in the record and was inconsistent with other substantial evidence in the case
record. See Pusey v. Astrue, No. SKG-09-3410, 2011 WL 666046, at *7 (D. Md. Feb. 14, 2011).
The ALJ’s bolstered his statement regarding the inconsistencies in Dr. Selya’s assessment with
factual comparisons. First, the ALJ noted contradictions between Dr. Selya’s opinion and that of
examining physician Dr. Ajit Kurup. Dr. Selya concluded in his September 13, 2007 assessment
that Plaintiff could not sit straight, could not tolerate toe and heel walking, and would “not be
able to enjoy any productive employment.” R. at 307. Dr. Kurup reported in his June 26, 2007
assessment that Plaintiff had mild to moderate pain, normal range of motion, no significant
problems with bending and flexion, normal motor strength and deep reflexes, and no difficulty
getting on and off the examination table. R. at 20; 291–97. Dr. Kurup stated that Plaintiff had
mild limitations of the cervical spine and neck, but “no significant limitations” that would
prevent Plaintiff from performing work-related activities. Id.
Second, the ALJ identified instances where Dr. Selya’s own treatment records were
inconsistent with his finding that Plaintiff was disabled. R. at 23–24, 306–08. Dr. Selya’s
treatment notes on September 13, 2007 indicated that Plaintiff was able to walk with upright gait
with some apprehension and revealed only mild cervical and sacrococcygeal junctional pain. R.
at 307. At that time, Dr. Selya recommended only “[a]ggressive physical therapy,” NSAIDs, a
sitting doughnut, and muscle relaxants. R. at 24, 307. The ALJ properly concluded that Dr.
Selya’s statement that Plaintiff was “totally disabled” on May 3, 2007, only four months prior
and before her second surgery, was inconsistent with the record and Dr. Selya’s own factual
comparisons. R. at 23–24, 310.

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Finally, the ALJ noted that Dr. Selya’s statement that Plaintiff was “totally disabled” on
May 3, 2007 was a determination reserved to the Commissioner as an administrative finding
dispositive of the case. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Plaintiff has not identified any evidence in the record, beyond her own subjective
complaints, that would indicate she was disabled after the second surgery on November 13,
2007, including the opinion of her treating physician Dr. Selya. See R. at 306 (stating that
Plaintiff walked with a normal gait, displayed normal upper and lower extremity strength, and
experienced only mild to moderate pain in her cervical spine during her first postsurgical followup visit after C5-C7 posterior cervical fusion). Furthermore, the Court is satisfied that the ALJ’s
decision to accord “little weight” to Dr. Selya’s opinion, that Plaintiff was “totally disabled”
before her second surgery, is supported by substantial evidence. Though a more thorough
analysis may be required in some cases, Plaintiff fails to demonstrate how any additional
discussion could have produced a different result. Thus, it appears that the ALJ did not err, and
if he did, the error was harmless. See Thornsberry v. Astrue, No. 4:08-4075-HMH-TER, 2010
WL 146483, at *5 (D.S.C. Jan.12, 2010) (finding that “while the ALJ could have been more
explicit” in his discussion of the combined effect of the plaintiff’s multiple impairments, his
overall findings adequately evaluated the plaintiff’s impairments, and thus any error in failing to
use explicit language was “harmless”); Robinson v. Astrue, No. 2:10-185-DCN, 2011 WL
4368396, at *6 (D.S.C. Sept.19, 2011); Williams v. Astrue, No. 4:10-CV-2966-TER, 2012 WL
694038, at *5 (D.S.C. Mar. 5, 2012).
2. ALJ Properly Made Credibility Determination Based on the Evidence in the
Record
Plaintiff contends that the ALJ failed to support his credibility determination with
substantial evidence, instead basing his decision on an erroneously predetermined RFC.

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“[S]ubjective claims of pain must be supported by objective medical evidence showing the
existence of a medical impairment which could reasonably be expected to produce the actual
pain, in the amount and degree, alleged by the claimant.” Johnson v. Barnhart, 434 F.3d 650,
657 (4th Cir. 2005) (citing Craig, 76 F.3d at 591); see also 20 C.F.R. §§ 404.1529(b), 416.929(b)
(2014). In evaluating disability claims, the Commissioner “is required to make credibility
determinations—and therefore sometimes must make negative determinations—about
allegations of pain or other nonexertional disabilities.” Hammond v. Heckler, 765 F.2d 424, 426
(4th Cir. 1985).
Contrary to Plaintiff’s assertions, the ALJ thoroughly reviewed the evidence to determine
her credibility and subjective allegations, dedicating six pages of his 14-page decision to the
topic, and determined that her statements concerning her impairments and their impact on her
ability to work were not entirely credible in light of the overall evidence of record. See R. at 19–
24. Importantly, the ALJ noted that Dr. Ajit Kurup reported Plaintiff was in no acute distress
and had no significant limitations, that Dr. Leonid Selya stated Plaintiff was able to walk with a
normal gait and displayed normal muscle strength, that Dr. Michael Franchetti noted Plaintiff
was under no active care for her injuries and experienced only mild limitations in her range of
motion in her spine and shoulder, and that Dr. William Lander diagnosed Plaintiff with having
mild cervical radiculopathy and mild bilateral carpal tunnel syndrome. R. at 20–21. The ALJ
determined Plaintiff to be “less than credible” because the medical evidence of record showed
that her medical condition was improving and that she did not exhibit her alleged symptoms to
the degree that would limit her ability to perform work-related activities. R. at 21. The ALJ’s
narrative includes substantial evidence to support his adverse credibility finding, thus remand is
not warranted on this basis.

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3. ALJ Sufficiently Supported Template Language with Evidence from the Record
Plaintiff contends that the ALJ used “boilerplate language” to support his conclusions,
thus failing to support his decision “in any meaningful or reviewable way.” R. at 6–7. Plaintiff
also argues that the ALJ applied the incorrect legal standard in weighing her credibility because
the decision contains template language criticized by the United States Court of Appeals for the
Seventh Circuit in Bjornson v. Astrue, 671 F.3d 640, 645–46 (7th Cir. 2012). R. at 6–7. The
Court need not reach this second issue and the Seventh Circuit’s interpretation of template
language, because the Fourth Circuit and this Court have ruled on this issue.
In assessing Plaintiff’s RFC, an ALJ performs a function-by-function assessment and
must provide a narrative discussion “describing how the evidence supports each conclusion,
citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” SSR 96-8p, 1996 WL 374184, at *3, 7 (July 2, 1996). The
Administrative Procedure Act (“APA”), which applies to all federal administrative agencies,
requires ALJs to state their “findings and conclusions, and the reasons or basis therefor, on all
the material issues of fact, law, or discretion presented on the record.” 5 U.S.C. § 557(c)(3)(A)
(2012); see also Brown ex rel. McCurdy v. Apfel, 11 F. App’x 58, 59 (4th Cir. 2001) (stating that
the Social Security Act and the APA require ALJs to “include an explanation of what evidence,
or inferences drawn therefrom, were relied on in arriving at a decision”). However, “‘an RFC
assessment is sufficient if it includes a narrative discussion of the claimant’s symptoms and
medical source opinions.’” Bowers v. Comm’r, Soc. Sec. Admin., No. SAG-11-1445, 2013 WL
150023, at *2 (D. Md. Jan. 11, 2013) (internal quotation marks omitted).
A review of the ALJ’s decision, particularly the three pages of analysis regarding
Plaintiff’s credibility, demonstrates his compliance with the regulations. See R. at 20–23. The

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ALJ did not rely on the template language alone to explain why he found Plaintiff’s subjective
complaints less than fully credible, but thoroughly discussed the lack of objective medical
evidence to support Plaintiff’s allegations of disabling neck and shoulder pain. R. at 20–21. The
ALJ specified which statements were credible and which were not, and explained why by
reference to all pertinent factors set forth in the regulations. When analyzed in context, it is
evident that the ALJ included sufficient explanatory language after each use of template
language to overcome any claims of vagueness. See Pl. Mot. 6; R. at 23. The use of template
language in the ALJ’s adverse credibility determination is innocuous when, as here, the language
is followed by an explanation for rejecting the claimant’s testimony.
IV.

Conclusion
Based on the foregoing, the Court DENIES Plaintiff’s Motion and DENIES Defendant’s

Motion and REMANDS this matter to the Social Security Administration for further proceedings
consistent with this opinion.

May 29, 2014

/s/
Charles B. Day
United States Magistrate Judge

CBD/slr

16