Rice v. Berryhill

Filing 21

LETTER/MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 12/12/2018. (jf3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE

6500 Cherrywood Lane
Greenbelt, Maryland 20770
Telephone: [phone]

December 12, 2018
LETTER TO COUNSEL:
RE:

Chetrick R. v. Nancy A. Berryhill, Acting Commissioner of Social Security1
Civil No. TJS-17-2802

Dear Counsel:
On September 20, 2017, Plaintiff Chetrick R.2 petitioned this Court to review the Social
Security Administration’s final decision to deny his claim for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). (ECF No. 1.) The parties have filed cross-motions for
summary judgment. (ECF Nos. 15 & 20.) These motions have been referred to the undersigned
with the parties’ consent pursuant to 28 U.S.C. § 636 and Local Rule 301.3 Having considered the
submissions of the parties, I find that no hearing is necessary. See Loc. R. 105.6. This Court must
uphold the decision of the agency if it is supported by substantial evidence and if the agency
employed the proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin, 780 F.3d
632, 634 (4th Cir. 2015). Following its review, this Court may affirm, modify, or reverse the Acting
Commissioner, with or without a remand. See 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S.
89 (1991). Under that standard, I will grant the Acting Commissioner’s motion and deny the
Plaintiff’s motion. This letter explains my rationale.
In his applications for DIB and SSI, Chetrick R. alleged a disability onset date of June 27,
2013. (Tr. 112.) His applications were denied initially and on reconsideration. (Tr. 56, 63, 74, 637.)
A hearing was held before an Administrative Law Judge (“ALJ”) on August 1, 2016 (Tr. 633-76),
and the ALJ found that Chetrick R. was not disabled under the Social Security Act (Tr. 12-29).
The Appeals Council denied Chetrick R.’s request for review (Tr. 7), making the ALJ’s decision
the final, reviewable decision of the agency.
The ALJ evaluated Chetrick R.’s claim for benefits using the five-step sequential
evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that
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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 for Operations, performing the duties
and functions not reserved to the Commissioner of Social Security.
2
On October 10, 2018, the Court’s bench adopted a local practice of using the first name
and last initial of non-government parties in Court-issued opinions in Social Security cases. This
practice is designed to shield the sensitive personal information of Social Security claimants from
public disclosure.
3
This case was originally assigned to Magistrate Judge Stephanie A. Gallagher. On
November 9, 2018, the case was reassigned to me.

Chetrick R. was not engaged in substantial gainful activity and had not been engaged in substantial
gainful activity since June 27, 2013. (Tr. 17.) At step two, the ALJ found that Chetrick R. suffered
from the following severe impairments: status post Graves’ disease/hypothyroidism, obesity,
hypertension, diabetes, substance abuse/dependence, anxiety disorder, and mood/bipolar disorder.
(Id.) At step three, the ALJ found that Chetrick R.’s impairments, separately and in combination,
failed to meet or equal in severity any listed impairment as set forth in 20 C.F.R., Chapter III, Pt.
404, Subpart P, App. 1 (“Listings”). (Tr. 18-20.) The ALJ determined that Chetrick R. retained the
residual functional capacity (“RFC”):
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl; can never climb ladders, ropes, and scaffolds; would need to avoid
concentrated exposure to extreme cold, concentrated exposure to extreme heat,
concentrated exposure to wetness, concentrated exposure to excessive vibration,
and concentrated exposure to hazardous moving machinery and unprotected
heights; could only perform simple, routine, and repetitive tasks in a low stress
work environment, with low stress defined as no strict production quotas; and can
only occasionally interact with the public, coworkers, and supervisors.
(Tr. 20.)
At step four, relying on the testimony of a vocational expert, the ALJ determined that
Chetrick R. was able to perform past relevant work as a sales attendant. (Tr. 28.) Even if Chetrick
R. was unable to perform past relevant work, the ALJ alternatively found at step five that there are
other jobs that exist in significant numbers in the national economy that he can perform, including
router, mail clerk, and merchandise marker. (Tr. 28.) Therefore, the ALJ found that Chetrick R.
was not disabled under the Social Security Act. (Tr. 29.)
Chetrick R. raises three arguments in this appeal. First, he argues that the ALJ improperly
determined that he can perform past relevant work. Second, he argues that the ALJ did not properly
evaluate his subjective complaints. Third, he argues that the ALJ failed to properly assess his RFC
and failed to adequately explain the reasons underlying the RFC determination. I will address each
of these arguments in turn.
Chetrick R. first argues that the ALJ mistakenly classified his past work as a sales attendant
as past relevant work, and therefore improperly concluded that he was not disabled at step four. In
support of this argument, he notes that his earnings from his past work as a sales attendant fell
below the amount of earnings necessary to qualify a job as substantial gainful activity in 2015, the
year that he performed this work. (ECF No. 15-1 at 4.) He also notes that he is unable to work as
a sales attendant because “the primary duty of [the] position is to provide customer service,” and
the ALJ found that he “can only occasionally interact with the public, coworkers, and supervisors.”
(Id.) Because the vocational expert’s testimony that Chetrick R. could perform this work conflicts
with the information contained in the Dictionary of Occupational Titles, and because the ALJ did
not resolve this conflict, he contends that the ALJ’s step four finding is erroneous.

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Even if the ALJ improperly determined that Chetrick R.’s past work as a sales attendant
was substantial gainful activity, and therefore past relevant work, and that Chetrick R. can perform
such work, the ALJ made a valid alternative finding at step five. Because the ALJ’s alternative
finding at step five renders any erroneous finding at step four harmless, this argument is without
merit. See Hickey v. Berryhill, No. ADC-16-3524, 2017 WL 4023095, at *4 n.3 (D. Md. Sept. 12,
2017) (collecting cases where courts have recognized the propriety of alternative step five
findings).
Chetrick R.’s second argument is that the ALJ did not properly evaluate his subjective
complaints. (ECF No. 15-1 at 5-10.) In determining a claimant’s RFC, the ALJ must evaluate the
claimant’s subjective symptoms using a two-part test. Lewis v. Berryhill, 858 F.3d 858, 866 (4th
Cir. 2017); 20 C.F.R. §§ 404.1529(a), 416.929(a). First, the ALJ must determine whether objective
evidence shows the existence of a medical impairment that could reasonably be expected to
produce the alleged symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b). Once the claimant makes
that threshold showing, the ALJ must evaluate the extent to which the symptoms limit the
claimant’s capacity to work. 20 C.F.R. §§ 404.1529(c), 416.929(c). At this second stage, the ALJ
must consider all available evidence, including medical history, objective medical evidence, and
statements by the claimant. Id. To determine the credibility of a claimant’s statements, the ALJ
must “consider all of the evidence in an individual’s record when they evaluate the intensity and
persistence of symptoms after they find that the individual has a medically determinable
impairment(s) that could reasonably be expected to produce those symptoms.” SSR 16-3p, 2016
WL 1119029 (S.S.A. March 16, 2016). An ALJ must “articulate which of a claimant’s individual
statements are credible, rather than whether the claimant is credible as a general matter.” Bostrom
v. Colvin, 134 F. Supp. 3d 952, 960 (D. Md. 2015); see also Mascio v. Colvin, 780 F.3d 632, 640
(4th Cir. 2015) (“Nowhere, however, does the ALJ explain how he decided which of [the
claimant’s] statements to believe and which to discredit, other than the vague (and circular)
boilerplate statement that he did not believe any claims of limitations beyond what he found when
considering [the claimant’s] residual functional capacity.”).
Chetrick R. claims that the ALJ rejected his subjective complaints regarding the intensity,
persistence, and limiting effects of his symptoms because they were not supported by objective
evidence. Had the ALJ relied exclusively on a lack of objective evidence, the analysis would be
flawed. See Hines v. Barnhart, 453 F.3d 559, 563-64 n.3 (4th Cir. 2006) (reiterating that while “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”) (quoting Craig v. Chater, 76 F.3d 585, 595 (4th
Cir. 1996)). Here, however, the ALJ considered the lack of objective evidence regarding Chetrick
R.’s symptoms as just one component of the assessment. The ALJ also considered Chetrick R.’s
statements about his symptoms over time, his compliance with treatment recommendations, the
degree to which his symptoms were controlled by medications when he was compliant, his alleged
daily activities, the largely normal examination results from his physicians (including his
endocrinologist, podiatrist, and neurophysiologist), and the medical opinions of record. (Tr. 2027.) Because the ALJ did not rely exclusively on objective evidence in assessing the severity of
Chetrick R.’s symptoms, this argument is without merit.
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Chetrick R. also argues that the ALJ did not explain which of Chetrick R.’s statements he
credited and which he discredited. (ECF No. 15-1 at 7-8.) ALJs are required to explain what
evidence they find credible and why. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). In the
absence of such an explanation, “if the reviewing court has no way of evaluating the basis for the
ALJ’s decision, then ‘the proper course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation.’” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)
(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Lewis v.
Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (“[T]he ALJ failed to explain in his decision what
statements by Lewis undercut her subjective evidence of pain intensity as limiting her functional
capacity.”) Here, the ALJ recited Chetrick R.’s statements and the relevant medical evidence of
record in detail. The ALJ addressed each of Chetrick R.’s alleged symptoms and evaluated his
statements in the context of the entire record to determine the severity of the symptoms. The ALJ’s
opinion makes clear which of Chetrick R.’s statements about the severity of his symptoms were
credited and which were discredited. Accordingly, because the ALJ’s decision is sufficient to allow
for this Court’s review, remand for further explanation is not required.
Chetrick R. also argues that the ALJ did not consider the extent to which he could perform
his activities of daily living. It would have been improper for the ALJ to assess the credibility of
Chetrick R.’s subjective complaints based only on his activities of daily living. Here, however, the
ALJ considered Chetrick R.’s activities as one piece of evidence among all of the evidence in the
record. The ALJ’s findings regarding Chetrick R.’s daily activities are supported by substantial
evidence and the ALJ’s explanation regarding those activities is sufficient to permit this Court’s
review.
Chetrick R.’s third argument is that the ALJ did not properly assess his RFC. (ECF No. 151 at 10-14.) Social Security Ruling 96-8p instructs that an “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. SSR 96-8p, 1996 WL
374184, at *1 (S.S.A. July 2, 1996). Further, 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).” Id. at *7.
An ALJ must “both identify evidence that supports his conclusion and build an accurate and logical
bridge from [that] evidence to his conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir.
2018) (emphasis omitted).
Contrary to his argument, the ALJ adequately assessed Chetrick R.’s RFC based on the
evidence. The ALJ summarized Chetrick R.’s complaints and statements about his symptoms, the
objective medical evidence, and the medical opinions in the record. The ALJ discussed how
Chetrick R.’s physical and mental impairments limited his ability to perform work-related
activities, and assessed his RFC based on the effects of these impairments. In doing so, the ALJ
built “an accurate and logical bridge form 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)). Having
reviewed the ALJ’s decision, the Court finds that the evidence summarized by the ALJ supports
the finding that Chetrick R. can perform the work set forth in the RFC determination. Because the
ALJ’s narrative RFC discussion and relevant citations to the record enable meaningful review of
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the ALJ’s RFC analysis, Chetrick R.’s argument is without merit. Chetrick R. may disagree with
the ALJ’s conclusions, but this Court is not permitted to reweigh the evidence or substitute its
judgment for that of the ALJ. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Chetrick R. also argues that the ALJ failed to account his limitations arising from his right
flat foot condition. (ECF No. 15-1 at 13.) However, the ALJ specifically found that “the medical
record does not support significant limitations due to this impairment.” (Tr. 18.) By finding that
Chetrick R.’s flat foot condition had no more than a minimal effect on his ability to perform basic
work activities, the ALJ determined that the condition was not severe. (Id.) Chetrick R. points to
an August 21, 2014, diagnosis and treatment plan signed by Michael Frank, DPM (Tr. 581-82).
Dr. Frank’s treatment plan was for Chetrick R. to “decrease activities to tolerance.” (Tr. 582.) The
treatment plan also reported that Dr. Frank “had a lengthy discussion with [Chetrick R.] regarding
the importance of offloading.” (Id.) Chetrick R. argues that, considering this evidence, the ALJ
should have found his flat foot condition to be a severe impairment, and should have credited
Chetrick R.’s statements that he is only capable of walking for 15 minutes and standing for 60 to
90 minutes. (ECF No. 15-1 at 13.) However, a review of Dr. Frank’s diagnosis and treatment plan
reveals that the reason for Chetrick R.’s visit was for a “diabetic podiatric evaluation,” and that he
had reported “feeling tingling and numbness.” (Tr. 581.) Although an x-ray did show a flat right
foot, Dr. Frank’s treatment plan was aimed at treating Chetrick R.’s complaints for foot problems
related to his diabetes (which the ALJ also considered in the decision (Tr. 18)), and not related to
having a flat right foot. For this reason, Chetrick R.’s argument that the ALJ failed to consider his
flat foot condition is without merit.
Finally, Chetrick R. argues that the ALJ’s use of the terms “modest” and “moderate” in
assigning weight to some of the medical opinions was “so vague so as to be meaningless.” (ECF
No. 15-1.) He argues that while the terms imply “that the[] opinions were accorded some degree
of weight,” the decision “is devoid of explanation of the amount of weight actually accorded to
these opinions.” (Id.) A review of the ALJ’s decision makes clear that he assigned certain medical
opinions only partial weight and explained his reasons for doing so. Other than his broad objection
to the imprecision of the terms used by the ALJ, Chetrick R. does not state how the ALJ’s analysis
is deficient, nor does he contend that the findings are not supported by substantial evidence.
Because the ALJ’s RFC assessment was reached through correct application of the law and is
supported by substantial evidence, this argument is also without merit.
For the reasons set forth herein, Chetrick R.’s Motion for Summary Judgment (ECF No.
15) will be DENIED, and the Acting Commissioner’s Motion for Summary Judgment (ECF No.
20) will be GRANTED. The Clerk is directed to CLOSE this case. Despite the informal nature
of this letter, it should be flagged as an opinion. An implementing Order follows.
Sincerely yours,

/s/
Timothy J. Sullivan
United States Magistrate Judge

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