Simms v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/27/2017. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES ELLIS SIMMS,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Civil No. TMD 15-2156
Plaintiff James Ellis Simms seeks judicial review under 42 U.S.C. § 405(g) of a final
decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying
his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 15) and Defendant’s
Motion for Summary Judgment (ECF No. 18).2 Plaintiff contends that the administrative record
does not contain substantial evidence to support the Commissioner’s decision that he is not
disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion
for Summary Judgment (ECF No. 18) is DENIED, Plaintiff’s Motion for Summary Judgment
On January 23, 2017, Nancy A. Berryhill 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.
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.
(ECF No. 15) is DENIED, and this matter is REMANDED under the fourth sentence of 42
U.S.C. § 405(g).
Plaintiff was born in 1960, has an eleventh-grade education, and previously worked as a
janitor/custodian, groundskeeper, and truck loader. R. at 19, 219, 224. Plaintiff protectively
filed an application for DIB on December 19, 2011, alleging disability beginning on April 3,
2008, due to rheumatoid arthritis and gout. R. at 11, 167-68, 218. The Commissioner denied
Plaintiff’s application initially and again on reconsideration, so Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). R. at 76-95, 104-07, 110-13. On March 5, 2014,
ALJ Jennifer M. Long held a hearing in Washington, D.C., at which Plaintiff and a vocational
expert (“VE”) testified. R. at 27-73. At the hearing, Plaintiff amended his alleged onset date of
disability to February 18, 2010. R. at 29, 185. On April 22, 2014, the ALJ issued a decision
finding Plaintiff not disabled from April 3, 2008, through the date last insured of December 31,
2013. R. at 8-26. Plaintiff sought review of this decision by the Appeals Council, which denied
Plaintiff’s request for review on June 9, 2015. R. at 1-7. The ALJ’s decision thus became the
final decision of the Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S.
103, 106-07, 120 S. Ct. 2080, 2083 (2000).
On July 23, 2015, 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
Summary of Evidence
State Agency Medical Consultants
On May 16, 2012, a state agency medical consultant, Navjeet Singh, M.D., assessed
Plaintiff’s physical residual functional capacity (“RFC”). R. at 79-81. Dr. Singh opined that
Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten 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 80.
Plaintiff occasionally could climb, stoop, kneel, crouch, and crawl. R. at 80. He frequently
could balance. R. at 80. Plaintiff’s reaching with his left upper extremity was limited to “very
occasional reaching” in front, laterally, and overhead because his left shoulder’s range of motion
was significantly limited. R. at 80-81. Plaintiff had no visual, communicative, or environmental
limitations. R. at 81. On December 10, 2012, another state agency consultant, W. Hakkarinen,
M.D., concurred with Dr. Singh’s opinion regarding Plaintiff’s physical RFC. R. at 90-92.
The ALJ reviewed Plaintiff’s testimony in her decision:
[Plaintiff] testified that he lives with a female friend and grandchildren.
He reported that he drives the children to school daily and that the bus brings
them back home. [Plaintiff] stated that he stopped working in April 2008 at
Prince Georges [sic] County Schools due to back pain. He stated that he
underwent knee surgery and subsequently went on disability. [Plaintiff] reported
that he suffers from gouty arthritis, which affects his elbows, knees, feet and
hands. He explained that his hands swell, and he experiences tightness in the
hands. [Plaintiff] reported that he has problems with his feet, stating that his
Achilles tendons swell up. He reported that he was previously a heavy drinker,
and alleged he had not consumed alcohol in two to three years.
R. at 14; see R. at 33-68.
The VE testified that a hypothetical person with Plaintiff’s same age, education, and
work experience who had the RFC outlined in Part III below could not perform Plaintiff’s past
work but could perform the unskilled, light jobs of counter clerk, router, or non-postal mail
clerk.3 R. at 69-70. The VE’s testimony was consistent with the Dictionary of Occupational
Titles.4 R. at 70.
Summary of ALJ’s Decision
On April 22, 2014, the ALJ found that, through the date last insured of December 31,
2013, Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of
disability of April 3, 2008; 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 his
past relevant work; but (5) could perform other work in the national economy, such as a counter
“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). “Light work involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up
to 10 pounds.” Id. § 404.1567(b).
“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 Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 404.1566(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).
clerk, router, or non-postal mail clerk. R. at 13-20. The ALJ thus found that he was not disabled
from April 3, 2008, through the date last insured of December 31, 2013. R. at 21.
In so finding, the ALJ considered Listings 1.02 for major dysfunction of a joint and 14.09
for inflammatory arthritis, but she found that, through the date last insured, the severity of
Plaintiff’s impairments did not meet or equal any section of the Listings (R. at 14). See 20
C.F.R. pt. 404, subpt. P, app. 1 §§ 1.02, 14.09. The ALJ then found that, through the date last
insured, Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] is
limited to lifting and carrying twenty pounds occasionally and ten pounds
frequently. [Plaintiff] can sit for six hours in an eight-hour workday and stand
and walk for six hours in . . . an eight-hour workday. [Plaintiff] can push and pull
is unlimited, except as shown for the ability to lift and carry. He can frequently
balance, occasionally climb, crawl, crouch, kneel, and stoop, and he [can]
occasionally reach with the left upper extremity.
R. at 14.
The ALJ also considered Plaintiff’s credibility and found that his “medically
determinable impairments could reasonably be expected to cause symptoms; however, [his]
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” R. at 15.
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).
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).
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).5
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
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
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
§§ 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),
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
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.
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
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).
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.
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).
Plaintiff maintains that the ALJ erred in not finding that he met or medically equaled
Listing 14.09, “despite the overwhelming evidence of the severity of [his] gouty arthritis, which
required numerous surgeries to his knees and elbows.” Pl.’s Mem. Supp. Mot. Summ. J. 28,
ECF No. 15-1. Defendant contends, however, that Plaintiff failed to satisfy his burden that he
meets or equals Listing 14.09, and she points to the ALJ’s consideration of Plaintiff’s subjective
complaints. Def.’s Mem. Supp. Mot. Summ. J. 9-10, ECF No. 18-1.
The Court remands this case for further proceedings. At step three of the sequential
evaluation process, the ALJ merely stated: “The undersigned considered Social Security Listings
1.02 for major dysfunction of a joint and 14.09 for inflammatory arthritis. The undersigned finds
that the severity of [Plaintiff’s] impairments did not meet or equal any section of the Social
Security listings.” R. at 14. The Fourth Circuit has “held that ‘[a] necessary predicate to
engaging in substantial evidence review is a record of the basis for the ALJ’s ruling,’ including
‘a discussion of which evidence the ALJ found credible and why, and specific application of the
pertinent legal requirements to the record evidence.’” Monroe v. Colvin, 826 F.3d 176, 189 (4th
Cir. 2016) (alteration in original) (quoting Radford, 734 F.3d at 295). Here, “the ALJ did not
apply findings to the disability listing. Rather, the ALJ engaged in the same conclusory analysis
that [the Fourth Circuit] found to be unacceptable in Radford.” Fox v. Colvin, 632 F. App’x 750,
755 (4th Cir. 2015) (per curiam). “As in Radford, where the ALJ stated that he had ‘reach[ed]
this conclusion’ after he ‘considered, in particular,’ the listings, in this case, the ALJ’s analysis
was likewise perfunctory and offered nothing to reveal why [she] was making [her] decision.”
Id. (first alteration in original) (quoting Radford, 734 F.3d at 295). “Nor was there any ‘specific
application of the pertinent legal requirements to the record evidence.’” Id. (quoting same).
It is not the Court’s “role to speculate as to how the ALJ applied the law to its findings or
to hypothesize the ALJ’s justifications that would perhaps find support in the record.” Id. The
Court’s resolution of Plaintiff’s step-three issue would invite the Court “to review the medical
record de novo to discover facts to support or refute the ALJ’s finding at Step Three,” which the
Court may not do. Brown v. Colvin, 639 F. App’x 921, 923 (4th Cir. 2016) (per curiam). As
noted above, the Court does not reweigh conflicting evidence. Because “the ALJ’s failure to
adequately explain [her] reasoning precludes [the Court] from undertaking a ‘meaningful review’
of the finding that [Plaintiff] did not satisfy Listing [14.09],” Radford, 734 F.3d at 296, remand is
appropriate, and the Court need not address Plaintiff’s remaining arguments. See Brown, 639 F.
App’x at 923.
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 18) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. Defendant’s
final decision is REVERSED IN PART under the fourth sentence of 42 U.S.C. § 405(g). This
matter is REMANDED for further proceedings consistent with this opinion. A separate order
Date: March 27, 2017
Thomas M. DiGirolamo
United States Magistrate Judge
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