Thyme v Berryhill

Filing 37

REPORT AND RECOMMENDATIONS. Signed by Magistrate Judge Stephanie A Gallagher on 8/20/2018. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
COREEN I. THYME

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v.
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COMMISSIONER, SOCIAL SECURITY
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Civil Case No. PJM-17-2260

REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-captioned case has been referred to me to
review the parties’ dispositive motions and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF No. 6]. I have considered the parties’ crossdispositive motions, and Ms. Thyme’s reply.2 [ECF Nos. 22, 32, 34]. I find that no hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). This Court must uphold the decision of the Social
Security Administration (“SSA”) if it is supported by substantial evidence and if the Agency
employed proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). For the reasons
set forth below, I recommend that both motions be denied, that the SSA’s decision be reversed in
part, and that the case be remanded to the SSA for further analysis.
After a prior denial of benefits, Ms. Thyme protectively filed an application for
Supplemental Security Income on August 28, 2013, alleging a disability onset that same day.
(Tr. 91-100). Her application was denied initially and on reconsideration. (Tr. 52-61, 63-72).
An Administrative Law Judge (“ALJ”) held a hearing on June 29, 2016, at which Ms. Thyme
was represented by counsel. (Tr. 28-51). Following the hearing, the ALJ determined that Ms.
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Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are
fulfilled by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not
reserved to the Commissioner of Social Security.
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An identical version of the SSA’s motion, without the table of contents, was filed as ECF No. 31. Ms. Thyme’s
reply was filed as a response to that original version.

Thyme was not disabled within the meaning of the Social Security Act during the relevant time
frame. (Tr. 10-27). The Appeals Council denied Ms. Thyme’s request for review, (Tr. 1-6), so
the ALJ’s decision constitutes the final, reviewable decision of the SSA.
The ALJ found that Ms. Thyme suffered from the following medically determinable
impairments:
mild levoscoliosis, probable T9-10 herniation, disc displacement, disc disorder,
arthropathy, congenital pes planus, diabetic neuropathy/peripheral neuropathy,
peripheral edema, elevated alkaline phosphate, elevated blood protein, elevated
creatinine, diabetes, mild diabetic retinopathy, glaucoma suspect, morbid obesity,
dyslipidemia/hyperlipidemia, gastro esophageal reflux disease (GERD), gastritis,
helicobacter (H Pylori) infection, vitamin D deficiency, hypertension, skin lesion,
acute right flank pain, low back pain, back pain, chronic low back pain, lumbago,
chronic pain, right elbow pain, left knee pain and dysphagia/throat trouble.
(Tr. 15). The ALJ next concluded, however, that Ms. Thyme did not have a severe impairment
or combination of impairments. (Tr. 16). Accordingly, the ALJ concluded that Ms. Thyme was
not disabled. (Tr. 22-23).
Ms. Thyme disagrees.

Among other arguments, Ms. Thyme argues that the ALJ

improperly applied the standard for finding a severe impairment and improperly assessed her
subjective assertions of disabling pain. I agree.
Ms. Thyme’s various arguments can be condensed to her one primary position: that the
ALJ incorrectly deemed all of her various medically determinable impairments to be nonsevere.
Importantly, a claimant’s burden of showing a severe impairment at step two is only a “de
minimis screening device used to dispose of groundless claims.” Taylor v. Astrue, Civil No.
BPG-11-032, 2012 WL 294532, at *8 (D. Md. Jan. 31, 2012) (quoting Webb v. Barnhart, 433
F.3d 683, 687 (9th Cir. 2005) (emphasis added)); see also Felton-Miller v. Astrue, 459 F. App’x
226, 230 (4th Cir. 2011) (“Step two of the sequential evaluation is a threshold question with a de
minimis severity requirement.”). Accordingly, any doubt or ambiguity in the evidence at step
two should be resolved in the claimant’s favor, and the ALJ should continue with the sequential
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evaluation. See SSR 85-28, 1985 WL 56856 (S.S.A. Jan. 1, 1985).
Here, as Ms. Thyme points out and the SSA largely concedes, the ALJ’s evaluation
contains numerous inaccuracies and contradictory statements. See, e.g., Def. Mot. 4 (“Defendant
acknowledges that the ALJ’s decision in this case is not a model of clarity.”); id. at 7 (“As
Plaintiff notes, the ALJ also incorrectly stated that the record did not contain a diagnosis of
‘arthritis’ by a medically acceptable source.”); id. at 12-13 (“Defendant acknowledges that the
ALJ incorrectly stated that laboratory imaging did not establish an elbow impairment.”). For
example, the ALJ made an express finding that Ms. Thyme had 31 “medically determinable
impairments,” (Tr. 15), but then subsequently asserted that many of those same diagnoses did not
constitute “medically determinable impairments,” (Tr. 19).

The ALJ’s analysis applied

inaccurate legal standards. For example, the ALJ found that “[p]ain and the other subjective
complaints are not medically determinable impairments,” id., and that such subjective complaints
cannot “support the finding of disability without demonstrated medically acceptable signs or
laboratory findings to support the same,” id. However, the ALJ went on to cite to medically
acceptable signs and laboratory findings which could evidence back impairments capable of
causing pain, particularly in connection with Ms. Thyme’s obesity (a body-mass index regularly
exceeding 35).

See id. (noting MRI results showing degenerative changes in spine and

examination results reflecting “positive facet loading, limited range of motion related to pain,
spasm and subjective tenderness and pain”). Diagnostic imaging also established bone spurs on
Ms. Thyme’s right elbow. (Tr. 497).
The ALJ appears to conclude that none of those objective test results would cause the
degree of limitations Ms. Thyme alleges. However, the ALJ’s reliance exclusively on the
objective test results to evaluate Ms. Thyme’s allegations of disabling pain is problematic. The
regulations prohibit an ALJ from rejecting “your statements about the intensity and persistence

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of your pain or other symptoms or about the effect your symptoms have on your ability to work
solely because the available objective medical evidence does not substantiate your statements.”
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).

Thus, the ALJ’s apparent view that the

degenerative changes, probable herniated disc, and bone spurs reflected in the objective testing
could not justify Ms. Thyme’s subjective allegations of pain intensity contravenes the applicable
legal standard.
Moreover, although the ALJ attempts to suggest that Ms. Thyme’s activity level belies
her allegations of disabling pain, the ALJ’s recitation of her activities actually seems to
substantiate some significant limitations. See, e.g., (Tr. 22) (“She goes shopping but uses a
motorized cart.”); id. (“She gets five hours of sleep that can be interrupted by burning sensation
in her feet and aches and pains in her body.”). The ALJ failed to explain what statements by Ms.
Thyme actually undercut her subjective evidence of pain intensity. See Radford v. Colvin, 734
F.3d 288, 295 (4th Cir. 2013) (“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.”); see also SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (“The RFC
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).”). Here, the ALJ’s apparent determination that objective
medical evidence alone had to establish Ms. Thyme’s degree of pain intensity improperly
increased her burden of proof. See 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
Next, the ALJ’s evaluation of the opinion of Ms. Thyme’s treating nurse practitioner is
flawed. Pursuant to the regulations:
Because symptoms, such as pain, are subjective and difficult to quantify, any
symptom-related functional limitations and restrictions that your medical
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sources or nonmedical sources report, which can reasonably be accepted as
consistent with the objective medical evidence and other evidence, will be taken
into account as explained in [20 C.F.R. § 404.1529(c)(4) and § 416.929(c)(4)] in
reaching a conclusion as to whether you are disabled.
Id. §§ 404.1529(c)(3), 916.929(c)(3). Under that standard, the ALJ’s rejection of the medical
statement from Ms. Thyme’s nurse practitioner, Chrinma Njoka, is unpersuasive. Without
citation, the ALJ asserts that Ms. Njoka’s position is “internally inconsistent” because it finds
Ms. Thyme capable of some sitting and standing, but no stooping. The ALJ posits that because
stooping is the motion required to sit and stand, Ms. Njoka is taking contradictory positions. (Tr.
21).

However, if the functional capacity for “stooping” in a vocational context were

synonymous with an ability to sit down or stand up, stooping would not be considered as a
separate postural limitation. Clearly, the assessment of a claimant’s ability to “stoop” looks at
repeated stooping in the course of performing a task, and not simply the motion required to
change positions from sitting to standing. Additionally, the ALJ suggests that Ms. Njoka’s
treatment notes contain “completely normal longitudinal objective findings” when, in fact, the
findings vary from appointment to appointment. See, e.g., (Tr. 229-30) (September 9, 2013
appointment notes reflecting paresthesia of the distal extremities and tenderness in the lower
extremity); (Tr. 288) (November 14, 2013 examination notes showing tenderness in the shoulder
and knee/patella); (Tr. 308, 313) (appointment notes from various dates in 2014 addressing back
pain); (Tr. 405) (appointment notes to check on back pain after a hospital visit, noting “scan was
positive for pressure on bone”). The ALJ appears to have discounted Ms. Njoka’s opinion, in
large part, for the same reasons she discounted Ms. Thyme’s subjective assertions of pain: a
perceived assessment that the objective testing did not substantiate the alleged degree of
impairment. However, as addressed above, the ALJ’s rationale was flawed.
The ALJ’s analysis cannot be salvaged by her reliance on the opinions of the State
agency medical consultants, who also determined in early 2014 that Ms. Thyme’s physical
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impairments were not severe. (Tr. 59-60, 69-70).

The ALJ’s opinion was written more than

two years later and after many intervening medical tests and findings, which would be likely to
alter an analysis of the effect of Ms. Thyme’s medical conditions on her ability to perform work
functions. Thus, although the ALJ is certainly entitled to cite and rely upon the earlier opinions
from the non-examining consultants, those opinions alone cannot justify or correct the improper
analysis of Ms. Thyme’s later diagnoses and treatment.
Ultimately, the ALJ has not provided substantial evidence to justify a determination that
Ms. Thyme’s many and varied impairments, resulting in several years of regular medical
treatment and a significant number of prescription medications, failed to meet even the de
minimis standard of severity at step two. I therefore recommend remand so that the ALJ can
either provide substantial evidence to justify that position, or complete the sequential evaluation.
In so recommending, I express no opinion as to whether the ALJ’s ultimate conclusion that Ms.
Thyme is not entitled to benefits is correct. Moreover, although the ALJ’s decision is replete
with factual errors and the application of incorrect legal standards, I do not agree with Ms.
Thyme that the ALJ’s opinion exhibits particular bias against her claim.

CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment [ECF No. 32];
2. the Court DENY Ms. Thyme’s Motion for Summary Judgment [ECF No. 22];
3. the Court REVERSE IN PART due to inadequate analysis the SSA’s judgment
pursuant to sentence four of 42 U.S.C. § 405(g);
4. the Court REMAND this case to the SSA for further proceedings in accordance with
this opinion; and
5. the Court close this case.
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Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: August 20, 2018

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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