Stuart v. Berryhill

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/22/2019. (jrs, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
CONNIE S.,

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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 17-1375

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Connie S. seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a
final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”)
denying her application for Supplemental Security Income under Title XVI of the Social
Security Act.

Before the Court are Plaintiff’s Motion for Summary Judgment and alternative

motion for remand (ECF No. 14) and Defendant’s Motion for Summary Judgment (ECF No.
17).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.

1

On April 17, 2018, Nancy A. Berryhill became the Acting Commissioner of Social Security.
See 5 U.S.C. § 3346(a)(2); Patterson v. Berryhill, No. 2:18-cv-00193-DWA, slip op. at 2 (W.D.
Pa. June 14, 2018).
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.
2

105.6.

For the reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 14) is

GRANTED.
I
Background
On February 12, 2016, Administrative Law Judge (“ALJ”) Michael A. Krasnow held a
hearing in Washington, D.C., where Plaintiff and a vocational expert (“VE”) testified. R. at 3360.

The ALJ thereafter found on March 9, 2016, that Plaintiff was not disabled since the

application date of November 30, 2012. R. at 14-32. In so finding, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”)
to perform light work as defined in 20 CFR 416.967(b) except she can stand and
walk a total of four hours in an eight hour day; sit up to six hours; occasionally
climb ramps and stairs, but never climb ladders, ropes, ladders [sic], and
scaffolds; occasionally balance, stoop, kneel, and crouch, but never crawl. She
can frequently handle and finger with the left upper extremity; and must avoid
concentrated exposure to wetness and vibration, and moderate exposure to
hazards, such as moving machinery and unprotected heights.
R. at 22. In light of this RFC and the VE’s testimony, the ALJ found that Plaintiff was capable
of performing work in the national economy such as a pre-assembler for printed circuit boards,
inspector, or router. R at 26-27. The ALJ thus found that Plaintiff was not disabled since the
application date of November 30, 2012. R. at 27.
After the Appeals Council denied Plaintiff’s request for review, Plaintiff filed on May 18,
2017, 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 then was reassigned to the undersigned. The parties
have briefed the issues, and the matter is now fully submitted.

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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
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.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

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20 C.F.R.

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.
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.
416.920(a)(4)(iv), 416.945(a)(4).
his or her limitations.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),

RFC is a measurement of the most a claimant can do despite

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
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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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).

20 C.F.R.

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).
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.
416.920(a)(4)(v).

See Walls,

296

F.3d

at 290; 20 C.F.R. §§ 404.1520(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).
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

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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.”
U.S.C. § 405(g).

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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).
IV
Discussion
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security
Ruling4 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-9,

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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ECF No. 14-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of her ability to perform the physical and mental demands of work.

Id. at 5. In

particular, she contends that substantial evidence does not support the ALJ’s assessment of her
RFC to a range of light work.

Id. at 5-7. Plaintiff then asserts that the ALJ failed to address

previous ALJs’ decisions under Acquiescence Ruling 00-1(4), 2000 WL 43774 (Jan. 12, 2000).
Id. at 7-9. She also argues that the ALJ erroneously evaluated her subjective complaints. Id. at
9-11. For the reasons discussed below, the Court remands this case for further proceedings.
The Court first turns to the ALJ’s assessment of Plaintiff’s RFC. SSR 96-8p, 1996 WL
374184 (July 2, 1996), 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,

729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was

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“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).
Plaintiff contends that, in light of opinion evidence in the record, substantial evidence
does not support the ALJ’s determination that she can perform a range of light work. Pl.’s Mem.
Supp. Mot. Summ. J. 6-7, ECF No. 14-1. “Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”

20 C.F.R.

§ 416.967(b). “Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls.” Id.

“[T]he full range of light work requires

standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.”
SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983).
The ALJ here found that Plaintiff had the RFC to perform light work except she could
stand and walk for a total of four hours and sit up to six hours in an eight-hour workday. R. at
22. The VE testified that, “[b]ecause of the standing and walking only up to four hours, it’s kind
of like putting in a sit-stand option there for the light jobs.” R. at 55.

Plaintiff maintains that

substantial evidence does not support the ALJ’s RFC assessment because one of the state agency
medical consultants, M. Lowen, M.D., opined that she was capable of (1) lifting and/or carrying
up to ten pounds occasionally and less than ten pounds frequently, (2) standing and/or walking

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for a total of two hours, (3) sitting for a total of about six hours in an eight-hour workday; and
(4) performing sedentary work.

The ALJ gave “little weight to Dr. Lowen’s

R. at 93-97.

opinion because the medical evidence of record does not support the degree of limitation with
respect to standing and walking to two hours and never crouching.” R. at 24. The ALJ then
reviewed the relevant medical evidence, including, among other things, treatment of Plaintiff’s
pain by medication prescribed by her primary care provider and examinations revealing intact
lower extremity range of motion and strength. R. at 24.
Plaintiff also contends that the ALJ erred in considering the opinion of Dr. Gerald Lee,
the consultative examiner who reported that she had an antalgic, slow gait and that her ability to
bear weight was limited, secondary to low back pain.

R. at 333, 335-36. Dr. Lee opined,

however, that Plaintiff did not need to use a cane and appeared to be exaggerating an antalgic
gait. R. at 75. Dr. Lee opined that Plaintiff was “able to perform work-related activities such as
walking, standing, sitting, handling objects, hearing, speaking, and traveling.
experience difficulties with climbing, bending, and heavy lifting.”

R. at 336.

She would
Dr. Lee also

opined to a state agency medical consultant that Plaintiff would have no problem standing and
walking during an eight-hour workday with intermittent sitting.

R. at 24, 75.

The ALJ gave

significant weight to Dr. Lee’s opinion because it was consistent with his examination findings
and observations. R. at 24-25.

Plaintiff further asserts that the ALJ erred in giving little weight

to the opinion of her primary care physician, N. Jayanthan, M.D., who opined, among other
things, that she could lift and/or carry no more than ten pounds, stand and/or walk for less than
an hour, and sit for fifteen to twenty minutes at a time in an eight-hour workday. R. at 25, 435.
Although the ALJ here found that Plaintiff had the RFC to perform light work, he did not
explain his conclusion that, on the basis of the evidence in the record, Plaintiff could actually

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perform the tasks required by light work, such as lifting no more than 20 pounds at a time and
frequently lifting or carrying up to 10 pounds. See SSR 83-10, 1983 WL 31251, at *5-6 (Jan. 1,
1983); see also Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018). The ALJ “must both
identify evidence that supports his conclusion and ‘build an accurate and logical bridge from
[that] evidence to his conclusion.’”

Woods, 888 F.3d at 694 (alteration in original) (quoting

Monroe, 826 F.3d at 189). An ALJ’s failure to do so constitutes reversible error.

Lewis v.

Berryhill, 858 F.3d 858, 868 (4th Cir. 2017). Because “meaningful review is frustrated when an
ALJ goes straight from listing evidence to stating a conclusion,” the Court remands this case for
further explanation as to Plaintiff’s RFC to perform light work. Thomas v. Berryhill, 916 F.3d
307, 311 (4th Cir. 2019) (citing Woods, 888 F.3d at 694).
Plaintiff also maintains that the ALJ failed to address previous ALJs’ decisions under
Acquiescence Ruling 00-1(4), 2000 WL 43774 (Jan. 12, 2000), and erroneously evaluated her
subjective complaints. Pl.’s Mem. Supp. Mot. Summ. J. 7-11, ECF No. 14-1. Because remand
is granted on other grounds, the Court does not address Plaintiff’s remaining arguments.

See

Testamark v. Berryhill, 736 F. App’x 395, 399 n.2 (4th Cir. 2018) (per curiam); Boone v.
Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003). In any event, the ALJ also should address
these other deficiencies identified by Plaintiff. See Hancock v. Barnhart, 206 F. Supp. 2d 757,
763 n.3 (W.D. Va. 2002) (on remand, ALJ’s prior decision has no preclusive effect as it is
vacated and new hearing is conducted de novo).
V
Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 17)
is DENIED.

Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiff’s

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alternative motion for remand (ECF No. 14) 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: March 22, 2019

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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