Willett v. Colvin, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 7/5/2016. (bus, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE

6500 Cherrywood Lane
Greenbelt, Maryland 20770
Telephone: [phone]
[e-mail]

July 5, 2016
LETTER TO COUNSEL:
RE:

David W. Willett v. Carolyn W. Colvin, Acting Commissioner of Social Security
Civil No. TJS-15-1953

Dear Counsel:
On July 1, 2015, the Plaintiff, David Willett (“Mr. Willett”), petitioned this Court to
review the Social Security Administration’s final decision to deny his claims for Disability
Insurance Benefits (“DIB”). (ECF No. 1.) The parties have filed cross-motions for summary
judgment. (ECF Nos. 15 & 16.) These motions have been referred to the undersigned with the
parties’ consent pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF Nos. 4 & 9.) I find that
no hearing is necessary. See Loc. R. 105.6. This Court must uphold the decision of the agency if
it is supported by substantial evidence and if the agency employed the proper legal standards. 42
U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015). Following its
review, this Court may affirm, modify, or reverse the Commissioner, with or without a remand.
See 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89 (1991). Under that standard, I will
grant the Acting Commissioner’s motion and deny the Plaintiff’s motion. This letter explains my
rationale.
Mr. Willett filed his application for DIB on July 24, 2012. (Tr. 43-52.) He alleged
disability beginning on February 1, 2007. (Tr. 175-76.) The claim was denied initially and on
reconsideration. (Tr. 115-37.) A hearing was held before an Administrative Law Judge (“ALJ”)
on March 25, 2014. (Tr. 73-93.) On April 24, 2014, the ALJ determined that Mr. Willett was not
disabled under the Social Security Act before June 30, 2012, but that he became disabled under
the Social Security Act as of June 30, 2012. (Tr. 28-43.) On June 23, 2014, the Appeals Council
notified Mr. Willett that it believed the ALJ’s decision was not supported by substantial
evidence, and that it “plan[ned] to make a decision [that Mr. Willett] was not disabled through
June 30, 2012.” (Tr. 171.) Upon review of additional evidence submitted by Mr. Willett, the
Appeals Council issued a new decision on March 17, 2015. (Tr. 6-10.) In this decision, the
Appeals Council found that Mr. Willett was not disabled under the Social Security Act at any
time through June 30, 2012, Mr. Willett’s date last insured. The decision of the Appeals Council
dated March 17, 2015 is the final, reviewable decision of the agency. See 42 U.S.C. § 405(g).
Because the Appeals Council adopted many of the factual findings of the ALJ, I will first
discuss the ALJ’s findings. The ALJ evaluated Mr. Willett’s claim for benefits using the fivestep sequential evaluation process set forth in 20 C.F.R. § 404.1520. At step one, the ALJ found
that Mr. Willett was not engaged in substantial gainful activity, and had not been engaged in

substantial gainful activity since June 17, 2010. (Tr. 35.) At step two, the ALJ found that Mr.
Willett suffered from the severe impairments of “cervical radiculopathy, lumbar radiculopathy,
and carpal tunnel syndrome.” (Id.) Also at step two, the ALJ found that beginning on June 30,
2012, Mr. Willett suffered from the additional severe impairment of diabetic neuropathy. (Id.) At
step three, the ALJ found that Mr. Willett’s impairments, separately and in combination, failed to
meet or equal in severity any listed impairment as set forth in 20 C.F.R., Chapter III, Pt. 404,
Subpart P, App. 1 (“Listings”) (Tr. 36.) The ALJ discussed Mr. Willett’s RFC for two time
periods: the period before June 30, 2012 and the period beginning June 30, 2012. (Tr. 36-40.)
Prior to June 30, 2012, the ALJ determined that Mr. Willett retained the RFC
to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except he can
perform no more than occasional bending, stooping, kneeling, and squatting. He
must avoid ladders and scaffolding. He can perform no more than occasional
gripping and feeling with either hand.
(Tr. 36.)
Beginning on June 30, 2012, however, the ALJ determined that Mr. Willett’s RFC was
more limited:
Beginning on June 30, 2012, the claimant has the [RFC] to perform sedentary
work as defined in 20 C.F.R. § 404.1567(a), except he can perform no more than
occasional bending, stooping, kneeling, and squatting. He must avoid ladders and
scaffolding. He can perform no more than occasional gripping and feeling with
either hand. In addition, he requires frequent unscheduled breaks, resulting in him
being off task greater than 15% of the workday.
(Tr. 39.)
At step four, the ALJ determined that Mr. Willett has been unable to perform any past
relevant work since June 17, 2010. (Tr. 40.) At step five, the ALJ determined that prior to June
30, 2012, considering Mr. Willett’s age, education, work experience, and RFC, there were jobs
that exist in significant numbers in the national economy that he could have performed. (Tr. 41.)
Beginning on June 30, 2012, however, the ALJ found that there were no jobs that exist in
significant numbers in the national economy that he could perform because, from that date
onward, he would require “frequent unscheduled breaks, resulting in him being off task greater
than 15% of the workday.” (Tr. 39, 42.)
The Appeals Council adopted the ALJ’s “statements regarding . . . the issues in the case,
and the evidentiary facts,” but did not adopt the “findings or conclusions regarding whether the
claimant is disabled.” (Tr. 18-23.) Specifically, the Appeals Council agreed with the ALJ’s
findings under steps 1, 2, 3, and 4 of the sequential evaluation, but rejected the finding that
beginning on June 30, 2012, there were no jobs existing in significant numbers in the national
economy that Mr. Willett could perform. (Id.)

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The parties do not dispute the ALJ’s findings related to the time period leading up to June
30, 2012, which were adopted by the Appeals Council. The only issue in dispute is whether the
Appeals Council was correct to conclude that Mr. Willett’s medical condition did not
significantly deteriorate on or before June 30, 2012.
The Appeals Council found that the ALJ’s RFC restriction that, beginning on June 30,
2012, Mr. Willett “required frequent unscheduled breaks, which result[] in him being off task
greater than 15 percent of the workday” is not supported by substantial evidence. (Tr. 19.) In
considering the ALJ’s finding that Mr. Willett would be off task greater than 15 percent of the
workday beginning on June 30, 2012, the Appeals Council discussed the objective medical
evidence of record. First, the Appeals Council summarized a neurological treatment note dated
July 13, 2012, approximately two weeks after the date upon which Mr. Willett was deemed by
the ALJ to have become disabled. (Tr. 19.) In this treatment note, Mr. Willett’s treating
physician, Michael K. Greenberg, M.D., stated that he had not seen Mr. Willett for about one
year prior to the date of the examination. (Tr. 303.) Dr. Greenberg noted that Mr. Willett
“complain[ed] of numbness of hands and feet” and that his legs, hands, and feet “demonstrate[d]
[decreased] light touch sensation.” (Tr. 303-4.) Dr. Greenberg’s impression was that Mr. Willett
suffered from polyneuropathy in diabetes. (Id.) Notably, Dr. Greenberg’s treatment note “does
not indicate significantly decreased sensation on or before” June 30, 2012. (Tr. 19.) The Appeals
Council also noted that “further review of the record just before and shortly after [June 30, 2012]
did not reveal any significant changes on examination that could be related back to the period
through June 30, 2012.” (Id.)
The Appeals Council also considered a treatment note from an examination conducted by
Dr. Greenberg on October 1, 2012. (Tr. 19, 373-75.) At this examination “for follow-up of
diabetic neuropathy,” Dr. Greenberg found that overall Mr. Willett’s condition had improved.
(Tr. 373.) Dr. Greenberg opined that Mr. Willett’s medication had helped to control Mr. Willett’s
neuropathy. (Id.) The Appeals Council also considered the new medical evidence submitted by
Mr. Willett in response to its June 23, 2014 notice. (Id.) It found that this evidence was not
material to the question of whether Mr. Willett was disabled on or before June 30, 2012, because
the evidence concerns his treatment in October 2014 and January 2015, several years after his
date last insured. (Tr. 19-20.)
Mr. Willett disputes Appeals Council’s finding that “the record does not indicate
significant decreased sensation on or before the claimant’s date last insured” (Tr. 19). (ECF No.
15-1 at 7.) In support of this argument, he points to medical evidence that demonstrates that he
had experienced decreased sensation before June 30, 2012. (Id.) For example, in November
2007, Mr. Willett sought medical treatment for “decreased sensation that affects all limbs.” (Tr.
270.) In July 2008 and September 2008, he reported “numbness and weakness in his arms and
legs.” (Tr. 278, 280.) Mr. Willett argues that these records constitute substantial evidence that he
experienced decreased sensation as much as six years before his date last insured. (ECF No. 15-1
at 7.)
The Commissioner does not dispute that Mr. Willett had “decreased sensation affecting
all limbs dating back to 2007.” (ECF No. 16-1 at 6.) However, the Commissioner argues, the
issue is not whether Mr. Willett had decreased sensation sometime before the date last insured,
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but whether there was a significant change in his condition on or before June 30, 2012 that would
require the inclusion of additional limitations in his RFC. (Id.) The ALJ’s consideration of the
evidence for the time period leading up to June 30, 2012 is discussed throughout his opinion, and
his findings were adopted by the Appeals Council. These findings—the essence of which is that
Mr. Willett was not disabled before June 30, 2012—are supported by substantial evidence. While
Mr. Willett may have experienced decreased sensation in the years leading up to 2012, the
treatment he sought was limited. As the ALJ noted, Mr. Willett saw his neurologist on only two
occasions between July 2010 and June 2012. (Tr. 38-39.) In addition, the treatment he received
was conservative. His condition was treated with medication only and he did not require any
inpatient hospitalizations or emergency room visits during the time period.
Mr. Willett also cites to other medical evidence but none of it supports a finding that his
condition worsened in late June 2012. With respect to his visits with Dr. Greenberg, Mr. Willett
argues that the medical problems that began in 2007 continued through June 30, 2012, as is
evidenced by his visits to Dr. Greenberg beginning in July 2012. (ECF No. 15-1 at 7-8.) Even
assuming, arguendo, that Mr. Willett’s medical condition persisted through these years, there is
no evidence of a deterioration of his condition beginning on June 30, 2012. While his visit with
Dr. Greenberg on July 13, 2012 may demonstrate a worsening of his condition, Dr. Greenberg’s
treatment does not make any reference to the onset of this change taking place before June 30,
2012.
Mr. Willett points to Dr. Jariwala’s July 13, 2012 medical source statement, which states
that he cannot persist at physical activity for an eight-hour workday and that his condition has
persisted since “at least 2004.” (Tr. 383-85.) The ALJ properly assigned this medical source
statement “little weight” in his initial analysis. (Tr. 38.) Dr. Jariwala’s statement is “extremely
restrictive, when considered in connection with the objective findings from the claimant’s
neurologist. . . . [and is] also inconsistent with Dr. Jariwala’s own treatment notes.” (Tr. 38-39.)
The ALJ’s reversal on the weight due to this report beginning on June 30, 2012 is not supported
by substantial evidence. As the Appeals Council found, the evidence in the record does not
establish a worsening of Mr. Willett’s condition through June 30, 2012. The ALJ’s initial
rejection of the report was well reasoned, but his later acceptance of the report is not supported
by the evidence.
The same goes for the third party function report completed by Mr. Willett’s father in
August 2012. (Tr. 231-38) Initially, the ALJ found that the report was excessively restrictive in
light of the objective evidence and Mr. Willett’s limited treatment. (Tr. 39.) This finding is
supported by substantial evidence. The ALJ’s finding that the report is entitled to greater weight
starting on June 30, 2012, however, is not supported by substantial evidence. The same is true for
the medical source opinions made by the non-examining State consultants. As with the ALJ’s reweighing of the other evidence in this case beginning on June 30, 2012, there is no evidence that
supports a finding that Mr. Willett’s condition worsened on June 30, 2012. The Appeals
Council’s rejection of the ALJ’s finding in this regard is well reasoned and supported by
substantial evidence.
In findings that were adopted by the Appeals Council, the ALJ noted that Mr. Willett’s
“statements concerning the intensity, persistence and limiting effects” of his symptoms were not
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entirely credible prior to June 30, 2012. (Tr. 38.) As discussed above, the ALJ found that in the
years prior to June 30, 2012, Mr. Willett was seen be his treating neurologist on just two
occasions. While he did exhibit some “objective abnormalities” during this time, his treatment
was conservative, consisting of medication only. Mr. Willett “did not have any emergency room
visits or inpatient hospitalizations for pain” during this time. (Tr. 38.) At Mr. Willett’s visits with
this primary care provider during this period, he was “mainly treated for diabetes” and his
“physical examinations were often generally normal.” (Id.) Taking this information into account,
the ALJ determined that—prior to June 30, 2012—“a sedentary level of work with postural and
manipulative restrictions would fully accommodate” his functional limitations.
The ALJ’s RFC finding for the time prior to June 30, 2012 is well-reasoned and
supported by substantial evidence. The ALJ’s finding for the time period beginning on June 30,
2012, however, is not supported by substantial evidence. There is simply no evidence in the
record that indicates that Mr. Willett’s condition worsened at the end of June 2012. Because
there is no evidence in the record to support the ALJ’s finding that his condition worsened, there
is no logical justification for the ALJ’s finding that Mr. Willett’s RFC was any different
beginning June 30, 2012 than it was before to that date.
For the reasons set forth herein, Mr. Willett’s Motion for Summary Judgment (ECF No.
15) will be DENIED, and the Acting Commissioner’s Motion for Summary Judgment (ECF No.
16) will be GRANTED. The clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion. An
implementing Order follows.
Sincerely yours,

/s/
Timothy J. Sullivan
United States Magistrate Judge

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