Cash v. Colvin

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/19/2015. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
LISA CASH,

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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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Defendant.
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************

Civil No. TMD 14-325

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Lisa Cash (“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 or Alternative Motion for Remand (ECF No. 11) and
Defendant’s Motion for Summary Judgment (ECF No. 13).1

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, Plaintiff’s Alternative Motion for Remand (ECF No. 11) is GRANTED.

1

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.

I
Background
Plaintiff was born in 1964, has a college education, and previously worked as a program
director/account manager, public health analyst, project manager/senior research analyst,
consultant, and director of research and education. R. at 25, 214. Plaintiff applied for DIB
protectively on September 8, 2011, and for SSI on September 10, 2011, alleging disability
beginning on May 24, 2011, due to lumbar and cervical spinal stenosis, lumbar degenerative disc
disease, and facet arthritis.

R. at 17, 179-89, 213.

The Commissioner denied Plaintiff’s

applications initially and again on reconsideration, so Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. at 56-111. On June 18, 2013, ALJ Eugene Bond held a
hearing at which Plaintiff pro se and a vocational expert (“VE”) testified. R. at 32-55. On July
25, 2013, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of
disability of May 24, 2011, through the date of the decision. R. at 14-31. Plaintiff sought review
of this decision by the Appeals Council, which denied Plaintiff’s request for review on
December 5, 2013. R. at 1-13. 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 February 2, 2014, 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.

The case subsequently was

reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.

2

II
Summary of Evidence
A.

Opinion Evidence
The ALJ noted in his decision:
In September 2011, [Plaintiff] was involved in a motor vehicle accident
where she injured her right forearm. [Plaintiff] complained of right forearm
burning and pain. [Plaintiff] was the driver of the vehicle, and there was front
impact and the air bags deployed. She reported that she had pain in her neck,
arms to her shoulder blades, low back, and legs to her buttocks. Lumbosacral
spine films noted spondylolisthesis at the L4-5 level, Degenerative [sic] disc
disease was seen at L5-S1 and facet degenerative changes were noted in the low
lumbar spine as well. [Plaintiff] was diagnosed with cervical and lumbosacral
spine strains superimposed upon her chronic cervical and lumbosacral pain.

R. at 23 (citations omitted); see R. at 341, 346, 357, 359-60.
The ALJ also noted:
In November 2011, [Plaintiff] reported that she was still getting neck pain,
at least 4/10, and 3/10 with medications. [An] MRI of the thoracic pain [sic]
revealed mild upper thoracic disk bulging. Surgery was recommended to
[Plaintiff] in December 2011. In January 2013, [Plaintiff] underwent L4-5
laminectomy and posterior fusion extending from L3 to S1.
R. at 23 (citations omitted); see R. at 373, 441, 470.
As the ALJ also noted in his decision, on May 15, 2012, Plaintiff’s treating physician,
Birgitta Miller, M.D.,
noted that [Plaintiff] was diagnosed with back pain with radiation to left leg since
2004. [Dr. Miller] opined that [Plaintiff] could stand for 5-45 minutes and walk
for 10 yards. [Dr. Miller] opined that [Plaintiff] could lift 5 pounds frequently, 10
pounds occasionally. [Dr. Miller] opined that [Plaintiff] could not climb ladders,
or crawl up stairs. [Dr. Miller] opined that [Plaintiff’s] prognosis for
improvement was fair, and that her aging would likely exacerbate chronic
conditions.
R. at 23 (citations and footnote omitted); see R. at 446.
In August 2011, Dr. Babak Arvanaghi, [Plaintiff’s] treating physician,
opined that [Plaintiff] was disabled by her condition, which restricts her activities
3

and provides limitations to her abilities. He opined that these limitations were
permanent, and precluded her from engaging in any gainful employment
opportunities. In December 2012, Dr. Babak Arvanaghi[] opined that [Plaintiff]
has become disabled by her condition, which restricts her activities and provides
permanent limitations in her abilities that preclude her from engaging in any
gainful employment opportunities. He noted that these limitations and her level
of have [sic] increased since a September 2011 car accident. He opined that
based on the underlying cause of [Plaintiff’s] condition is [sic] degenerative disc
disease, her condition will only continue to worsen over time.
R. at 23-24 (citations omitted); see R. at 460, 494.
On December 19, 2011, a state agency medical consultant, E. Nakhuda, M.D., assessed
Plaintiff’s physical residual functional capacity (“RFC”). R. at 62-63, 70-71. Dr. Nakhuda
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 two 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 62, 70.
Plaintiff occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but
never ladders, ropes, or scaffolds).

R. at 63, 71.

Plaintiff had no manipulative, visual,

communicative, or environmental limitations. R. at 63, 71. On July 17, 2012, Gurcharan Singh,
M.D., another state agency consultant, affirmed Dr. Nakhuda’s opinion. R. at 82-83, 92-93.
In May 2013, Dr. Arvanaghi noted that
[Plaintiff] recently underwent two surgical treatments. In January 2013, an
anterior cervical discectomy and fusion was [sic] performed to decompress her
spinal cord at the C3-4 level. This was followed in March 2013 by a posterior
laminectomy and instrumentation fusion from L3-S1 to treat radiculopathy from
her lumbar spine that was causing intolerable pain in her legs. Since the
surgeries, the leg pain has been completely relieved; however, the chronic low
back pain persists. In addition, [Plaintiff] continues to have pain in the neck and
shoulders which radiates into the right arm.
R. at 492.

4

B.

Plaintiff’s Testimony
At the hearing, Plaintiff read her opening statement:
Since my neck fusion on January 16, 2013, I now have more muscle tension and
spasms on the back sides of my neck and across the top of my shoulders, and I’ve
been having more migraine headaches, about one per week. When I get one I feel
nauseous and I’m sensitive to light and noise. If I can take my medication within
the first 30 minutes of a migraine coming on, within about two hours I get relief.
Otherwise I have to take a second dose and wait another one to two hours before
I’m able to resume any activity.
Since the first surgery, I’ve also had a constant feeling of a pinched nerve
in my right shoulder and arm, and my right hand is sometimes weak and unable to
write, hold cooking utensils firmly or open jars or medicine bottles. Five months
after the surgery, it is still painful for me to turn my neck past a certain point from
left to right, so I turn my torso to be able to see when driving or to be able to
check for oncoming traffic when crossing the street. My vocal [cords] are also
still weak, and it is tiresome for me to talk at times, and I often struggle to speak
loud enough to be easily heard.
Since the lumbar fusion on 3/1/13, the radiating pain down the back of my
legs that had become so debilitating has been relieved. However, I continue to
have constant low back pain and have more muscle spasms in my back. I also
now have the constant feeling of pins and needles in my very lower back,
buttocks and hips that I did not have before the surgery.
....
Since the two hardware fusion surgeries, the resulting decreased range of
motion has made it more difficult and painful for me to move—to get out of bed,
to bathe, to comb my hair, to get dressed, to go up and down stairs, to get in and
out of chairs, to cook, to reach for things overhead, to bend down, to get in and
out of cars, to walk. Anything that requires me to move my body hurts, so I move
very slowly now.
It is also more difficult for me to be upright standing or walking because
of the added pressure it puts on my low back and hips. Even when I’m being
still—leaning against a counter, sitting in a chair or lying down on the couch or
bed—I still hurt and cannot stay in one position for very long.
....
If I’m just having a bad day physically I limit my activity by cutting out
some ADLs and trying to move as little as possible. Once my pain level reaches a
six out of ten, if I do not start taking the Norco and Soma I will not be able to get
5

a handle on the pain and will not be able to get it back down to something that I
can tolerate comfortably.
In addition, the Neurontin makes it more difficult for me to read, and all
three of these medications make it difficult for me to concentrate and think
clearly. The other medication I am on regularly is Valium, which I take only at
bedtime. Without it, I am unable to sleep through the night because of the pain.
Since the surgeries, my priorities in terms of my activities have been
narrowed down to being able to take care of personal hygiene on a daily basis, to
prepare at least two meals per day for myself and my children and to keep up with
the laundry and grocery shopping on a weekly basis. I spend my days trying to do
these things and in physical therapy or working on my home exercises to improve
my function.
There are five to six other levels in my neck and back that are badly
degenerated and that my doctors have advised will need to be surgically treated to
prevent permanent functional deficits. However, because I am a single parent of
relatively young children, the logistics of the surgery and recovery time are just
not manageable, so my hope is to delay additional surgery for [as] long as
possible.
R. at 36-39.
Plaintiff also testified that she last worked as a project manager and account manager for
a Fortune 100 company in its research department, but was laid off because of budget cuts. R. at
40-41. When driving an automobile, she cannot turn her neck to see, so she turns her body to do
so. R. at 41. She also stated that her medications prevented her from driving, but there were no
restrictions on her driver’s license. R. at 41. Plaintiff cooked at home, but her family and friends
helped with housecleaning, and she shopped for groceries with her children. R. at 41-42. In the
mornings, she prepared breakfast for her children if she felt up to it, and she did her stretching
exercises. R. at 42. Plaintiff attended physical therapy every other day or exercised at home,
and she took her children to and from their activities while she was completing her degree. R. at
42. During her physical therapy sessions that lasted about two and half hours, Plaintiff spent

6

fifteen minutes on an elliptical bicycle and performed squats and exercises to strengthen her legs,
back, and arms. R. at 42-43.
Plaintiff testified that, in addition to physical therapy, she attended church and visited her
family. R. at 44. She walked with a cane regardless of the distance traveled. R. at 44. Her
medication for her back pain “will help to bring [her] pain level back down to [her] baseline
level of pain which [she] can tolerate without medication, which is about a four out of ten.” R. at
44-45. Her medication for her neck pain “helps to some extent,” but the “pinched nerve feeling”
in her neck, shoulder, and arm “is not relieved by any medication.” R. at 45. Because of her
surgeries, she cannot take any anti-inflammatory medication for arthritis. R. at 45. Her migraine
headaches are “debilitating for at least a couple of hours, depending on how soon [she is] able to
treat them,” but admitted that her medication that she took once a week helped. R. at 46.
In her function report completed in October 2011, Plaintiff reported that she could lift up
to 30 pounds while sitting down with her back supported or 20 pounds while standing and
bending her knees to lift. R. at 248. On a “good day” she could stand for 30 minutes, but only
five to ten minutes on a “bad day.” R. at 248. Plaintiff reported that reaching overhead was
painful. R. at 248. Plaintiff also reported:
On a good day I can walk for maybe 30-40 minutes without a cane if I take
frequent breaks. On a bad day I have difficulty walking at all without a cane and
even then still have to take frequent breaks. . . . I can sit for maybe 10-15 minutes
without needing to change positions. On a bad day, sitting for even 5 minutes is
painful and I spend most of my time laying [sic] down. I avoid climbing stairs,
but can climb maybe up to 15 stairs without a break if I have to. On bad days, I
go up the 13 stairs in my house on my hands and knees to minimize the pain.
When I experience numbness or tingling in my hands, I have a difficult time
holding things—toothbrush, hairbrush, curling iron, cooking utensils, pen.
R. at 248.

7

C.

VE Testimony
The ALJ asked the VE at the hearing whether jobs existed in the national economy for an

individual with Plaintiff’s age, education, work experience, and RFC as outlined below in Part
III. R. at 48-49. The VE testified that, given all of these factors, the individual would be able to
perform unskilled, light2 occupations such as office helper, mail room clerk, and unarmed
security guard. R. at 49. The VE’s testimony about a sit-stand option is based on his experience
and not on the Dictionary of Occupational Titles.3 R. at 50. An individual whose limitations due
to pain and side effects of medication limited performance to less than 80% of an employer’s
requirements would not be able to perform any work. R. at 50-52.
III
Summary of ALJ’s Decision
On July 25, 2013, the ALJ found that Plaintiff (1) had not engaged in substantial gainful
activity since the alleged onset date of disability of May 24, 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,
2

“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.
3

“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see DeLoatche v. Heckler, 715 F.2d 148, 151 n.2 (4th Cir. 1983); 20 C.F.R. §§ 404.1566(d)(1),
416.966(d)(1). “Information contained in the [Dictionary of Occupational Titles] is not
conclusive evidence of the existence of jobs in the national economy; however, it can be used to
establish a rebuttable presumption.” English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
8

app. 1; and (4) was unable to perform her past relevant work; but (5) could perform other work
in the national economy. R. at 19-27. The ALJ thus found that she was not disabled from May
24, 2011, through the date of the decision. R. at 27.
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 a sit-stand option at will. [Plaintiff] frequently has a requirement
for hand-held medically assistive devices namely a cane, which is needed for
standing, walking, and balancing. [Plaintiff] can engage in occasional reaching,
handling, fingering and feeling with the right hand. She has the ability to
understand, remember, and carry out instructions, which are for simple, routine
and repetitive tasks. She has the ability to frequently interact with supervisors,
co-workers, and the general public. She has the ability to frequently make simple
decisions. She has the ability to deal with changes in a routine work setting in
which the changes are simple work-related decisions. She has the ability to
perform work that does not require satisfaction of a production pace. She has the
ability to perform work at low stress by avoiding changes generally.
R. at 21.
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
entirely credible.” R. at 21.
While the evidence of record demonstrated that [Plaintiff] has sustained
limitations from . . . Disorders of the Back and Arthritis, the record does not
corroborate [Plaintiff’s] allegations of totally disabling physical symptoms and its
[sic] accompanying limitations.
The undersigned notes that [Plaintiff’s]
allegations about [her] symptoms and limitations are only partially credible,
largely due to the lack of objective medical evidence, treatment history, and
inconsistent statements.
These facts in the record do not dispute that [Plaintiff] has conditions,
which singly or in combination, may cause [her] limitations. What these pieces of
evidence suggest is that [Plaintiff’s] symptoms may not be accurately reported,
may not exist at the level of severity assumed by [Plaintiff’s] testimony at [the]
hearing and may have other mitigating factors against their negative impact on
[Plaintiff’s] ability to engage in work activity. The above [RFC], as determined
by the undersigned, gives adequate weight to as [sic] determined credible.
9

R. at 21-22.
As for the weight given to the opinion evidence, the ALJ found that
[Plaintiff’s] treating physician opinion regarding [Plaintiff’s] physical limitations
has not been provided substantial or controlling weight because it is based
primarily on [Plaintiff’s] subjective allegations and is not supported by her
objective findings nor those of any other medical source. The doctor apparently
relied quite heavily on the subjective report of symptoms and limitations provided
by [Plaintiff], and seemed to uncritically accept as true most, if not all, of what
[Plaintiff] reported. Yet, as explained elsewhere in this decision, there exist good
reasons for questioning the reliability of [Plaintiff’s] subjective complaints. His
opinion is not supported by his objective findings or by those of any other treating
or examining medical source. Therefore, it is given no weight.
R. at 24. The ALJ gave “substantial weight” to the opinions of the state agency consultants to
the extent that they were consistent with the ALJ’s RFC assessment that Plaintiff was not
disabled. R. at 24.
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.”
§§ 423(d)(2)(A), 1382c(a)(3)(B).

10

42 U.S.C.

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.

20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
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).4
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,
4

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

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
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

12

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
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.

13

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
A.

ALJ’s Duty to Develop Record
Plaintiff contends that the ALJ failed to develop properly the administrative record by

failing to obtain pertinent medical records. Pl.’s Mem. Supp. Mot. Summ. J. 3-5, ECF No. 11-1.
Plaintiff maintains that
[t]he administrative record does not contain the hospitalization records from [her]
surgeries, the operative reports, or any documentation from any of [her] treating
health care providers regarding her post-surgical condition. Moreover, the [ALJ]
failed to discuss or evaluate the evidence that [she] had had two major surgical
procedures in the six months prior to her administrative hearing.
In failing to obtain records from [her] treating health care providers
regarding [her] surgical procedures and post-surgical status, the [ALJ] has failed
in his duty to develop the administrative record, and to scrupulously and
conscientiously probe into, inquire of, and explore for the relevant facts.
Id. at 5.
“[T]he ALJ has a duty to explore all relevant facts and inquire into the issues necessary
for adequate development of the record, and cannot rely only on the evidence submitted by the
claimant when that evidence is inadequate.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir.
1986). “Although [Plaintiff] was not represented by counsel, this is not in itself reason to upset
the [Commissioner’s] decision, for the [Commissioner] has no duty to insist that [Plaintiff] have
counsel.” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980). “[I]n pro se cases, Administrative
Law Judges have a duty to assume a more active role in helping claimants develop the record.”
Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); see Craig, 76 F.3d at 591; Fleming v. Barnhart,
14

284 F. Supp. 2d 256, 272-73 (D. Md. 2003). On the other hand, “the ALJ is not required to
function as the claimant’s substitute counsel, but only to develop a reasonably complete record.”
Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994); see Lehman v. Astrue, 931 F. Supp. 2d
682, 693 (D. Md. 2013). In cases where the claimant is not represented by counsel, “[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, the case should be remanded.” Marsh, 632
F.2d at 300.
Here, Plaintiff has neither argued nor shown prejudice warranting remand. Plaintiff
stated at the hearing that she had been informed that the Social Security Administration had all
the information she had submitted, although she did not review before the hearing the exhibits in
her file, and that she did not object to the exhibits. R. at 35. The ALJ also accepted Plaintiff’s
submission of her records from her physical therapist, surgeon, and pain management doctor. R.
at 39. Plaintiff presented testimony at the hearing of her functional status after her surgeries in
January and March 2013. R. at 35-39. At the conclusion of the hearing, the ALJ kept the record
open for a month for Plaintiff to submit additional evidence. R. at 52-54.
Although Plaintiff complains that the ALJ “failed to discuss or evaluate the evidence that
[she] had had two major surgical procedures in the six months prior to her administrative
hearing,” Pl.’s Mem. Supp. Mot. Summ. J. 5, ECF No. 11-1, “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., 769 F.3d 861, 865 (4th Cir. 2014). “The Commissioner, through the ALJ and Appeals
Council, stated that the whole record was considered, and, absent evidence to the contrary, we
take her at her word.”

Id.

The ALJ did note in his decision that Plaintiff underwent a

laminectomy and posterior fusion in January 2013. R. at 23 (citing R. at 470). The record also

15

contains MRI findings after Plaintiff’s surgeries (R. at 469-70, 473-74) and shows that Plaintiff’s
surgeries in 2013 relieved her leg pain but not her low back pain (R. at 492). Even if the ALJ
had erred “[i]n failing to obtain records from the Plaintiff’s treating health care providers
regarding [her] surgical procedures and post-surgical status,” Pl.’s Mem. Supp. Mot. Summ. J. 5,
ECF No. 11-1, Plaintiff “has failed to point to any specific piece of evidence not considered by
the Commissioner that might have changed the outcome of [her] disability claim.” Reid, 769
F.3d at 865; see Boyd v. Astrue, Civil Action No. BPG-09-0150, 2010 WL 3369362, at *4 (D.
Md. Aug. 23, 2010) (“[O]n review, a district court considers not whether the medical record
before the ALJ was exhaustive, but whether the record was complete enough to allow the ALJ to
make all necessary determinations based upon substantial evidence, and whether any gaps in the
record led to unfairness or prejudice for the claimant.”); 20 C.F.R. §§ 404.1513(e), 416.913(e).
In any event, there is no indication that Plaintiff “has ever tried to obtain the medical records
[she] claims the ALJ should have obtained, which casts considerable doubt on the relevance of
the evidence and existence of any prejudice [she] may have suffered from the ALJ’s not
obtaining it.” Hanson v. Apfel, 173 F.3d 863, No. 98-5127, 1999 WL 160821, at *2 (10th Cir.
Mar. 24, 1999) (unpublished table decision) (citing Hawkins v. Chater, 113 F.3d 1162, 1169
(10th Cir. 1997)). Because Plaintiff does not show how any purported gaps in the record have
led to unfairness or prejudice, her argument that the ALJ failed to develop the record is
unavailing.

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B.

ALJ’s RFC Assessment
Plaintiff next contends that the ALJ erroneously assessed her RFC contrary to Social

Security Ruling 96-8p.5 Pl.’s Mem. Supp. Mot. Summ. J. 5-12, ECF No. 11-1 (citing, inter alia,
Fleming, 284 F. Supp. 2d at 271-72). 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 8. In particular, Plaintiff asserts that the ALJ
did not evaluate [the state agency] physicians’ opinions that [she] was only
capable of standing and/or walking for two hours in an eight-hour workday, and
did not include any postural limitations in his [RFC] assessment. Moreover, he
did not explain his determination that [she] required a sit/stand option, required a
hand-held assistive device, was limited to no more than occasional reaching,
handling, fingering, and feeling with her right hand, was limited to simple,
routine, repetitive tasks, was capable of frequently interacting with coworkers,
supervisors and the general public, could not satisfy production pace, and required
low stress work.
Id. at 8-9.
The burden is on the party attacking an agency’s determination to show that prejudice
resulted from the error, however. Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S. Ct. 1696,
1705-06 (2009). “Where harmfulness of the error is not apparent from the circumstances, the
party seeking reversal must explain how the error caused harm.” McLeod v. Astrue, 640 F.3d
881, 887 (9th Cir. 2011). “[R]eversal is not required when the alleged error ‘clearly had no
bearing on the procedure used or the substance of [the] decision reached.’” Ngarurih v. Ashcroft,
371 F.3d 182, 190 n.8 (4th Cir. 2004) (quoting Mass. Trs. of E. Gas & Fuel Assocs. v. United

5

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.
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States, 377 U.S. 235, 248, 84 S. Ct. 1236, 1245 (1964)). Furthermore, “a deficiency in opinionwriting 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., 583 F. App’x 65,
67 (4th Cir. 2014) (per curiam).
Plaintiff “provides no analysis of how a ‘more detailed’ assessment . . . might have
resulted in a different outcome” or how the inclusion of the state agency consultants’ exertional
or postural limitations omitted from the ALJ’s RFC assessment would have altered the outcome
of the case. Seifert v. Comm’r, Soc. Sec. Admin., Civil No. SAG-11-1051, 2013 WL 1881065, at
*2 (D. Md. May 2, 2013). Plaintiff’s contention in this regard thus is unavailing.
Plaintiff then maintains that the ALJ’s “decision is based upon an inaccurate portrayal of
the evidence.” Pl.’s Mem. Supp. Mot. Summ. J. 9, ECF No. 11-1. Plaintiff contends that the
ALJ erroneously characterized the treatment for her impairments, including her lumbar and
cervical fusions, as “routine and/or conservative in nature” (R. at 24). Indeed, her lumbar and
cervical fusions are not conservative measures. See, e.g., Lapeirre-Gutt v. Astrue, 382 F. App’x
662, 664 (9th Cir. 2010); Jones v. Heckler, 702 F.2d 950, 951 (11th Cir. 1983); Cuthrell v.
Celebrezze, 330 F.2d 48, 51 (4th Cir. 1964). Moreover, as Plaintiff points out, the fact that she

18

was laid off from work in 2009 before her alleged onset date of disability of May 24, 2011, is
irrelevant to her claim of disability.
Plaintiff maintains, however, that the ALJ inaccurately stated in his decision that the
“treating physician opinion regarding [her] physical limitations has not been provided substantial
or controlling weight because it is based primarily on [Plaintiff’s] subjective allegations and is
not supported by her objective findings nor those of any other medical source.” R. at 24. She
asserts that this statement “is a generality, with no citation to the actual evidence of record.”
Pl.’s Mem. Supp. Mot. Summ. J. 10, ECF No. 11-1.
“[A] treating physician’s opinion is to be accorded comparatively less weight if it is
based on the physician’s limited knowledge of the applicant’s condition or conflicts with the
weight of the evidence.” Meyer v. Colvin, 754 F.3d 251, 256 (4th Cir. 2014) (citing Craig, 76
F.3d at 590; 20 C.F.R. § 404.1527(c)). “Under such circumstances, the ALJ holds the discretion
to give less weight to the testimony of a treating physician in the face of persuasive contrary
evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). An ALJ may reject a treating
physician’s opinion in its entirety and afford it no weight if the ALJ gives specific and legitimate
reasons for doing so. See Bishop, 583 F. App’x at 67.
Here, as noted in Part III above, the ALJ found that
[Plaintiff’s] treating physician opinion regarding [Plaintiff’s] physical limitations
has not been provided substantial or controlling weight because it is based
primarily on [Plaintiff’s] subjective allegations and is not supported by her
objective findings nor those of any other medical source. The doctor apparently
relied quite heavily on the subjective report of symptoms and limitations provided
by [Plaintiff], and seemed to uncritically accept as true most, if not all, of what
[Plaintiff] reported. Yet, as explained elsewhere in this decision, there exist good
reasons for questioning the reliability of [Plaintiff’s] subjective complaints. His
opinion is not supported by his objective findings or by those of any other treating
or examining medical source. Therefore, it is given no weight.
R. at 24 (emphasis added).
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The ALJ’s reference to the treating physicians’ opinions here confounds their analysis by
the ALJ. It is not clear here what the ALJ meant in his consideration of the treating physicians’
opinions, as the ALJ mentioned neither Dr. Miller nor Dr. Arvanaghi by name here and even
confused Dr. Miller’s gender when referring in the decision previously to the doctor’s medical
source statement on May 15, 2012. Compare R. at 23 with R. at 446-52. The lack of clarity in
this regard frustrates meaningful review by the Court. See Gordon v. Schweiker, 725 F.2d 231,
235 (4th Cir. 1984) (“We cannot determine if findings are unsupported by substantial evidence
unless the [Commissioner] explicitly indicates the weight given to all of the relevant evidence.”).
The ALJ also provided no basis for his finding that (presumably) Dr. Miller’s opinion primarily
was based on Plaintiff’s unquestioned self-reporting rather than on her clinical observations.
Remand may be appropriate “where an ALJ fails to assess a claimant’s capacity to
perform relevant functions, despite contradictory evidence in the record, or where other
inadequacies in the ALJ’s analysis frustrate meaningful review.” Mascio v. Colvin, __ F.3d __,
No. 13-2088, 2015 WL 1219530, at *3 (4th Cir. Mar. 18, 2015) (emphasis added) (quoting
Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)).

Because the Court

“remain[s] uncertain as to what the ALJ intended,” id. at *4, remand is warranted in this case.

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VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 13) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 11) is DENIED. Plaintiff’s
Alternative Motion for Remand (ECF No. 11) is GRANTED. A separate order shall issue.

Date: March 19, 2015

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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