Walls v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/29/2017. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
ARETHA WALLS,

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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 16-1290

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Aretha Walls 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 and alternative motion for
remand (ECF No. 15) and Defendant’s Motion for Summary Judgment (ECF No. 16).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, Plaintiff’s alternative motion for remand (ECF No. 15) is GRANTED.
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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.

I
Background
Plaintiff was born in 1969, has a high-school education, and previously worked as an
accounts payable clerk. R. at 22. Plaintiff protectively filed an application for DIB on August 8,
2012, alleging disability beginning on May 13, 2012 (later amended to October 1, 2012), due to
heart problems, damaged nerves, knee injury, and lung disease. R. at 14, 100-01, 146. The
Commissioner denied Plaintiff’s application initially and again on reconsideration, so Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). R. at 48-72, 75-79. On
September 8, 2014, ALJ Irving A. Pianin held a hearing at which Plaintiff and a vocational
expert (“VE”) testified. R. at 29-47. On October 15, 2014, the ALJ issued a decision finding
Plaintiff not disabled from the amended alleged onset date of disability of October 1, 2012,
through the date of the decision. R. at 11-28. Plaintiff sought review of this decision by the
Appeals Council, which denied Plaintiff’s request for review on December 22, 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 May 1, 2016, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. After the parties consented, this case was transferred to a United
States Magistrate Judge for final disposition and entry of judgment.

The case then 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 ALJ’s Decision
On October 15, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the amended alleged onset date of disability of October 1, 2012; 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 past relevant work as an accounts
payable clerk; and (5) could perform other work in the national economy, such an order clerk,
information clerk, or office clerk. R. at 16-23. The ALJ thus found that she was not disabled
from October 1, 2012, through the date of the decision. R. at 23. In so finding, the ALJ found
that Plaintiff had the residual functional capacity (“RFC”) “to perform sedentary work as defined
in 20 CFR 404.1567(a) except she can perform no more than occasional postural activity, with
no climbing, and no exposure to heights or hazards involved.” R. at 18. The ALJ found that
Plaintiff’s “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 for the reasons explained in this decision.” R.
at 19. “Primarily, the record reflects that [Plaintiff] has required only conservative treatment
with medications and injections for her back and knee impairments, thus far.” R. at 19.
III
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

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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
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

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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.
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
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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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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
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).
IV
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

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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).
V
Discussion
Plaintiff contends that remand is warranted because, although the ALJ found that her
severe impairments limited her ability to do basic work activities (R. at 17), the ALJ failed to
place any limitation upon her ability to do such basic work activities in the RFC assessment,
without explanation. Pl.’s Mem. Supp. Mot. Summ. J. 5-6, ECF No. 15-1. She further maintains
that the ALJ failed to evaluate properly pertinent evidence of her use of a cane (R. at 475). Id. at
6. Plaintiff also argues that the ALJ failed to consider the severity of her complex regional pain
syndrome. Id. at 6-7. She further contends that the ALJ failed to evaluate properly the opinions
of her treating physician’s assistant. Id. at 7-8. Plaintiff then argues that the ALJ erred in
finding few abnormal objective findings in her medical records.

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Id. at 8-9.

She further

maintains that the ALJ erroneously rejected the opinions of her treating physician’s assistant on
the basis of her conservative treatment. Id. at 9-10. Plaintiff finally asserts that the ALJ failed to
explain his assessment of her RFC. Id. at 10-11. Because inadequacy of the ALJ’s analysis
frustrates meaningful review, the Court remands this case for further proceedings.
Social Security Ruling4 96-8p explains how adjudicators should assess RFC and instructs
that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, 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.” Id. (quoting Cichocki,

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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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729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding
because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ
erroneously expressed claimant’s RFC first and then concluded that limitations caused by
claimant’s impairments were consistent with that RFC).
The Fourth Circuit in Mascio, 780 F.3d at 639-40, also found that remand was required in
light of an ALJ’s lack of explanation concerning how the ALJ decided which of the claimant’s
statements to credit.

Mascio, in other words, “requires the ALJ to articulate which of a

claimant’s individual statements are credible, rather than whether the claimant is credible as a
general matter.”

Armani v. Comm’r, Soc. Sec. Admin., No. JMC-14-CV-976, 2015 WL

2062183, at *1 (D. Md. May 1, 2015).
Here, the ALJ found that Plaintiff’s allegations of disabling limitations were less than
fully credible because she “required only conservative treatment with medications and injections
for her back and knee impairments, thus far.” R. at 19. Indeed, “it is appropriate for the ALJ to
consider the conservative nature of a plaintiff’s treatment—among other factors—in judging the
credibility of the plaintiff.” Dunn v. Colvin, 607 F. App’x 264, 273 (4th Cir. 2015). The record
reflects, however, that Plaintiff’s injections were not effective in alleviating her pain (e.g., R. at
465-66, 469-70, 474, 478-80). “Thus, although [Plaintiff’s] course of treatment . . . could be
fairly characterized as ‘conservative,’ this by itself sheds little light on the severity of [her]
symptoms . . . .” Shiplett v. Colvin, No. 5:15-CV-00055, 2016 WL 6783270, at *12 (W.D. Va.

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Nov. 16, 2016). Moreover, in August 2014, Dr. Stephen Faust, Plaintiff’s treating orthopedist,
recommended partial and total knee replacement.

R. at 465.

At the hearing, Plaintiff

acknowledged the doctor’s recommendation and that “they have to wait to see if [her] kidney or
whatever [is] well.” R. at 40. “The recommendation of surgery–an invasive form of treatment–
demonstrates the seriousness of [Plaintiff’s] impairment. It also erodes the grounds for the
ALJ’s finding that [Plaintiff’s] treatment was solely conservative.” Gregory v. Colvin, No. 4:15CV-5, 2016 WL 3072202, at *5 (W.D. Va. May 6, 2016), report and recommendation adopted,
No. 4:15-CV-00005, 2016 WL 3077935 (W.D. Va. May 31, 2016).

Thus, “the ALJ’s

designation of [Plaintiff’s] course of treatment as ‘conservative’ amounts to improperly ‘playing
doctor’ in contravention of the requirements of applicable regulations.” Lewis v. Berryhill, 858
F.3d 858, 869 (4th Cir. 2017).
The ALJ also found that Plaintiff’s described daily living activities, such as doing light
household chores, washing laundry, and grocery shopping, were consistent with at least
sedentary work. R. at 22. Plaintiff testified, however, that she stopped doing household chores
in February 2014. R. at 41-42. She also reported in November 2012 that, although she shopped
for groceries at the time, her daughters accompanied her because they needed to assist her. R. at
168. Plaintiff would take half a day to clean her house because she had to stop every twenty
minutes because of her pain. R. at 166. The VE testified that, if Plaintiff’s testimony regarding
her need to lie down four to five hours a day were accepted as credible, then there would be no
full-time work that she could perform. R. at 46. “Nowhere, however, does the ALJ explain how
he decided which of [Plaintiff’s] statements to believe and which to discredit . . . .” Mascio, 780
F.3d at 640. “The ALJ cannot reject [the claimant’s] undisputed description of [her] daily
activities simply because he thinks it is implausible.” May v. Colvin, No. 5:14CV00010, 2015

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WL 1958948, at *14 (W.D. Va. May 1, 2015) (citing, inter alia, Hines, 453 F.3d at 566).
Because the inadequacy of the ALJ’s analysis frustrates meaningful review, remand under the
fourth sentence of 42 U.S.C. § 405(g) is appropriate, see Mascio, 780 F.3d at 636, and the Court
need not address Plaintiff's remaining arguments.
VI
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 16) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 15) is GRANTED. Defendant’s final decision is
REVERSED 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: September 29, 2017

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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