Jackson v. Colvin

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/6/2017. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
SHELL JACKSON,

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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 15-3829

MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Shell Jackson 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 (“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 she is not
disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion

1

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).
2

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.

for Summary Judgment (ECF No. 18) is GRANTED, Plaintiff’s Motion for Summary Judgment
(ECF No. 15) is DENIED, and the Commissioner’s final decision is AFFIRMED.
I
Background
Plaintiff was born in 1962, has a high-school education, and previously worked as a
program management analyst and payroll clerk. R. at 20-21. Plaintiff protectively filed an
application for DIB on February 3, 2012, alleging disability beginning on August 1, 2008, due to,
among other things, fibromyalgia, sleep apnea, diabetes, pain, high blood pressure, liver
disorder, and fatigue.

R. at 14, 136-39, 160, 172.

The Commissioner denied Plaintiff’s

application initially and again on reconsideration, so Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. at 43-66, 69-72. On April 22, 2014, ALJ Jeffrey M.
Jordan held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 23-42.
On May 29, 2014, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset
date of disability of August 1, 2008, through the date last insured of December 31, 2013. R. at
11-22. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s
request for review on October 16, 2015. R. at 1-10. 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 December 16, 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.

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II
Summary of Evidence
The Court reviews here and in Part VI below Plaintiff’s relevant medical evidence.
A.

State Agency Medical Consultants
On April 11, 2012, a state agency medical consultant, S.K. Najar, M.D., assessed

Plaintiff’s physical residual functional capacity (“RFC”). R. at 48-49. Dr. Najar 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 48.
Plaintiff frequently could balance, and she occasionally could climb, stoop, kneel, crouch, and
crawl.

R. at 48-49.

Although Plaintiff had no manipulative, visual, or communicative

limitations, she was to avoid even moderate exposure to hazards such as machinery and heights.
R. at 49. On October 3, 2012, another state agency consultant, W. Hakkarinen, M.D., expressed
the same opinion about Plaintiff’s physical RFC. R. at 58-60.
B.

Hearing Testimony
1.

Plaintiff’s Testimony

The ALJ reviewed Plaintiff’s testimony in his decision:
[Plaintiff] alleges that she is unable to work, due to her physical
impairments. [Plaintiff] testified that she stopped working, due to pain from
fibromyalgia and she alleged that this caused her to miss one to two days of work
per week. She also testified that she cannot hold her 11-pound grandchild, and
she experiences swelling two to three times per week. [Plaintiff] contended that
she experiences two bad days per week, where she just lies in bed.
R. at 18; see R. at 27-38.

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2.

VE Testimony

The VE testified that a hypothetical individual with Plaintiff’s same age, education, and
work experience with the RFC outlined below in Part III could perform Plaintiff’s past relevant
work and also could perform the sedentary jobs of appointment clerk, information clerk, and
service dispatcher.3 R. at 39-40. With the exception of her testimony regarding a sit-stand
option, the VE’s testimony was consistent with the Dictionary of Occupational Titles.4 R. at 40.
According to the VE, a 20% reduction in productivity or absenteeism of four days per month
would preclude all work. R. at 41.
III
Summary of ALJ’s Decision
On May 29, 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 August 1, 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 able to perform her
3

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). “Although
a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.” Id.
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“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).
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past relevant work as a program management analyst and payroll clerk; and (5) could perform
other work in the national economy, such as an appointment clerk, information clerk, or service
dispatcher. R. at 16-22. The ALJ thus found that she was not disabled from August 1, 2008,
through the date last insured of December 31, 2013. R. at 22.
In so finding, the ALJ found that, through the date last insured, Plaintiff had the RFC
to perform less than a full range of light work as defined in 20 CFR 404.1567(b).
[Plaintiff] was able to lift, carry, push, and pull up to 20 pounds occasionally and
10 pounds frequently from waist to chest level. [Plaintiff] had to avoid overhead
work activity. [Plaintiff] could stand/walk six hours and sit six hours within an
eight-hour workday, but she could sit/stand no longer than 15-30 minutes at a
time before changing positions for a few minutes. [Plaintiff], furthermore, had to
avoid crawling, kneeling, and climbing ladders, ropes, and scaffolds, but she
could perform other postural movements on an occasional basis. [Plaintiff] had to
avoid constant grasping, handling, fingering, and reaching. Additionally,
[Plaintiff] had to avoid concentrated exposure to respiratory irritants, extreme
temperatures, and humidity. Finally, [Plaintiff] had to avoid working around
hazards such as moving machinery and unprotected heights.
R. at 17.
The ALJ also considered Plaintiff’s credibility and found that her “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [her] allegations of debilitating subjective symptoms and limited functional ability are
credible only to the extent of the established residual functional capacity assessment.” R. at 18.
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
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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
S. Ct. 376, 379-80 (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).5

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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
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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.”

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).

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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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
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.

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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).
VI
Discussion
Plaintiff maintains that the ALJ erred in assessing the credibility of her subjective
allegations. Pl.’s Mem. Supp. Mot. Summ. J. 3-8, ECF No. 15-1. She first contends that the
ALJ erred in determining her RFC before assessing her credibility. Id. at 5. Indeed, the ALJ’s
finding in his decision that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [her] allegations of debilitating subjective
symptoms and limited functional ability are credible only to the extent of the established residual
functional capacity assessment” (R. at 18) “‘gets things backwards’ by implying ‘that ability to
work is determined first and is then used to determine the claimant’s credibility.’” Mascio v.
Colvin, 780 F.3d 632, 639 (4th Cir. 2015) (quoting Bjornson v. Astrue, 671 F.3d 640, 645 (7th
Cir. 2012) (Posner, J.)). Rather, the ALJ should compare the claimant’s alleged functional
limitations from pain to the other evidence in the record, not to the claimant’s RFC. See id. “[A]

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claimant’s pain and residual functional capacity are not separate assessments to be compared
with each other. Rather, an ALJ is required to consider a claimant’s pain as part of his analysis
of residual functional capacity.” Id.
The ALJ’s use of the problematic boilerplate language would not require remand,
however, if the ALJ “properly analyzed [Plaintiff’s] credibility elsewhere.” Id.; see, e.g., Sharp
v. Colvin, 660 F. App’x 251, 258-59 (4th Cir. 2016). Here, the ALJ found that objective medical
evidence did not support Plaintiff’s allegations. R. at 18-20. The ALJ found, among other
things, that in May 2013 records showed that Plaintiff had normal musculoskeletal range of
motion without tenderness and normal strength. R. at 19, 620. After her date last insured,
treatment records in February 2014 showed that Plaintiff did not have pain in her muscles or
joints and that she experienced no limitation in range of motion. R. at 18, 765. Substantial
evidence thus supports the ALJ’s finding that “the objective medical evidence, physical findings,
sleep study, x-ray, ECG, EKG, and EGD do not support her allegations. [R. at 317, 382, 439,
445, 460, 469.] In addition, the testimony is not consistent with [Plaintiff’s] denial of complaints
in review of symptoms” (R. at 18). See Craig, 76 F.3d at 595; Young v. Colvin, Civil Action No.
WGC-15-3295, 2016 WL 6433181, at *7-9 (D. Md. Oct. 31, 2016). Plaintiff’s conservative
course of treatment and non-compliance with her prescribed diabetic medication were also
appropriate factors for the ALJ to consider in discounting her credibility (R. at 20). See Dunn v.
Colvin, 607 F. App’x 264, 271-75 (4th Cir. 2015).
Plaintiff maintains, however, that the ALJ erred in evaluating her pain because she “need
not provide objective evidence to substantiate the intensity, persistence, and limiting effects of
her pain.” Pl.’s Mem. Supp. Mot. Summ. J. 8, ECF No. 15-1. Whether “a person is disabled by
pain or other symptoms is a two-step process. First, there must be objective medical evidence

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showing the existence of a medical impairment(s) which results from anatomical, physiological,
or psychological abnormalities and which could reasonably be expected to produce the pain or
other symptoms alleged.” Dunn, 607 F. App’x at 272 (quoting Craig, 76 F.3d at 594). “At this
stage of the inquiry, the pain claimed is not directly at issue; the focus is instead on establishing a
determinable underlying impairment—a statutory requirement for entitlement to benefits—which
could reasonably be expected to be the cause of the disabling pain asserted by the claimant.” Id.
at 272-73 (quoting Craig, 76 F.3d at 594). Second, after the first inquiry is complete, the ALJ
must evaluate “the intensity and persistence of the claimant’s pain, and the extent to which it
affects her ability to work.”

Craig, 76 F.3d at 595; see 20 C.F.R. §§ 404.1529(c)(1),

416.929(c)(1). “[T]his evaluation must take into account not only the claimant’s statements
about her pain, but also ‘all the available evidence,’ including the claimant’s medical history,
medical signs, and laboratory findings, any objective medical evidence of pain (such as evidence
of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.) . . . .” Craig, 76 F.3d
at 595 (citation omitted); see 20 C.F.R. §§ 404.1529(c)(1)-(2), 416.929(c)(1)-(2). The ALJ must
also take into account “any other evidence relevant to the severity of the impairment, such as
evidence of the claimant’s daily activities, specific descriptions of the pain, and any medical
treatment taken to alleviate it.”

Craig, 76 F.3d at 595; see 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3); see Social Security Ruling6 16-3p, 2016 WL 1119029, at *7 (Mar. 28, 2016).

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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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Thus, contrary to Plaintiff’s assertion,
[a]lthough a claimant’s allegations about her pain may not be discredited solely
because they are not substantiated by objective evidence of the pain itself or its
severity, they need not be accepted to the extent they are inconsistent with the
available evidence, including objective evidence of the underlying impairment,
and the extent to which that impairment can reasonably be expected to cause the
pain the claimant alleges she suffers[.]
Craig, 76 F.3d at 595; see Hines, 453 F.3d at 565 n.3. Here, the ALJ found that, although
Plaintiff’s medically determinable impairments reasonably could be expected to cause her
alleged symptoms, the objective medical evidence did not support the extent to which the
symptoms allegedly limited her functioning. Because “[t]he lack of objective medical evidence
can serve as a partial basis in the credibility finding, provided it is not the sole basis for a
credibility finding,” Young, 2016 WL 6433181, at *7, Plaintiff’s contention in this regard is
unavailing.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards here.

Thus, Defendant’s Motion for Summary Judgment is GRANTED,

Plaintiff’s Motion for Summary Judgment is DENIED, and the Commissioner’s final decision is
AFFIRMED.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 18) is
GRANTED.

Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. The

Commissioner’s final decision is AFFIRMED. A separate order shall issue.

Date: March 6, 2017

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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