Delgado-Ortiz v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/31/2017. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
MARIA DELGADO-ORTIZ,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 15-3694

MEMORANDUM OPINION
Plaintiff Maria Delgado-Ortiz 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
her application for disability insurance benefits under Title II of the Social Security Act. Before
the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 14) 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 she is not disabled. No
hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion for Summary

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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.
25(d).
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The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.

Judgment (ECF No. 18) is DENIED, Plaintiff’s Motion for Summary Judgment (ECF No. 14) is
DENIED, and this matter is REMANDED under the fourth sentence of 42 U.S.C. § 405(g).
I
Background
On December 2, 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
submitted.
II
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.

§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”

42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124

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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).3
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.

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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.
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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). Residual functional capacity (“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 nonmedical evidence and other evidence listed in the regulations. See id. If a claimant retains the
RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.

See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant

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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).
III
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

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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).
IV
Discussion
Among Plaintiff’s arguments is her contention that remand is warranted because the ALJ
erred in his consideration of the 2012 opinion of Ernest Akpaka, Ph.D., a consultative
psychological examiner, who opined:
From observations and as reflected on the test data, [Plaintiff] is capable of
understanding and responding to directions and performing simple repetitive tasks
and routine. Her mental ability to perform tasks that require sustained
concentration and persistence and tolerate the stress associated with day-to-day
regular work activity is significantly limited by her mood symptoms and her
estimated below average intellectual functioning.
R. at 258. In his decision, however, the ALJ found that Plaintiff had no more than mild
limitation in the area of concentration, persistence, or pace. R. at 16. The ALJ gave “little to no
weight” to Dr. Akpaka’s opinion because it was “based primarily on [Plaintiff’s] subjective
complaints, which are not supported by the overall evidence.” R. at 20.
“The findings of a consultative examination cannot be disregarded solely on the ground
that they are based on a claimant’s subjective complaints unless the record contains evidence
suggesting that the examiner actually relied on such complaints to the detriment of objective
clinical observations.” Hux v. Astrue, Civil Action No. 11-1306, 2012 WL 4498845, at *8 (W.D.
Pa. Aug. 27, 2012) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199-1200 (9th Cir.
2008)), report and recommendation adopted, Civil Action No. 11-1306, 2012 WL 4507067
(W.D. Pa. Sept. 28, 2012). “Every medical examination of a conscious patient ‘necessarily
involves a subjective element.’”

Bennett v. Astrue, Civil Action No. 11-1077, 2012 WL

2974662, at *8 (W.D. Pa. Apr. 27, 2012) (quoting Gossett v. Bowen, 862 F.2d 802, 806 (10th
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Cir. 1988)), report and recommendation adopted, Civil Action No. 11-1077, 2012 WL 2974911
(W.D. Pa. July 20, 2012). Here, because Dr. Akpaka specifically based his opinion on his
observations, test data, and her estimated below-average intellectual functioning, substantial
evidence does not support the weight given by the ALJ to Dr. Akpaka’s opinion on the basis of
Plaintiff’s subjective complaints. Because “the ALJ ‘must build an accurate and logical bridge
from the evidence to his conclusion,’” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)
(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)), remand is warranted, and the
Court need not address Plaintiff’s remaining arguments.
V
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 18) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 14) 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
will issue.

Date: March 31, 2017

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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