Bell v. Berryhill

Filing 23

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
ROITA T. B.,

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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 18-33

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Roita T. B. 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 applications for disability insurance benefits and Supplemental Security Income
under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff’s Motion for
Summary Judgment and alternative motion for remand (ECF No. 18), Defendant’s Motion for
Summary Judgment (ECF No. 21), and Plaintiff’s “Reply” (ECF No. 22).2 Plaintiff contends
that the administrative record does not contain substantial evidence to support the

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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).
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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.

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. 18) is GRANTED.
I
Background
On December 14, 2016, Administrative Law Judge (“ALJ”) William Wallis held a
hearing where Plaintiff and a vocational expert (“VE”) testified. R. at 86-120. The ALJ
thereafter found on February 15, 2017, that Plaintiff was not disabled from her alleged onset date
of disability of September 2, 2010, through the date of the ALJ’s decision. R. at 63-85. In so
finding, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) “to lift, carry,
push, and pull 10 pounds occasionally and 10 pounds frequently; can stand and/or walk for two
hours in an eight-hour workday; and can sit for six hours in an eight-hour workday. She can
frequently balance and occasionally climb, stoop, kneel, crouch, and crawl.” R. at 71. “These
limitations are based on a reduction of the State agency consultants’ assessment at [R. at 123-38,
152].” R. at 71. In light of this RFC and the VE’s testimony, the ALJ found that Plaintiff was
capable of performing her past relevant work as a customer service representative, scheduler, and
receptionist. R at 75-76. The ALJ thus found that Plaintiff was not disabled from September 2,
2010, through February 15, 2017. R. at 76.
After the Appeals Council denied Plaintiff’s request for review, Plaintiff filed on January
4, 2018, 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.

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
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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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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).
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).
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.” 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.
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
Among Plaintiff’s arguments is her contention that the ALJ erroneously assessed her
RFC contrary to Social Security Ruling4 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s

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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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Mem. Supp. Mot. Summ. J. 16-17, ECF No. 18-1. According to Plaintiff, the ALJ failed to
explain how he determined that she should be limited to sedentary work.5 Id. at 16. For the
reasons discussed below, the Court remands this case for further proceedings.
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
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform

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“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),
416.967(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.” Id. “Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are met.” Id.
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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 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) (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).
Although “[t]he ALJ concluded that [Plaintiff] could perform [sedentary work] and summarized
evidence that he found credible, useful, and consistent,” the ALJ “never explained how he
concluded—based on this evidence—that [Plaintiff] could actually perform the tasks required
by” sedentary work. Woods, 888 F.3d at 694; see SSR 83-10, 1983 WL 31251, at *5 (Jan. 1,
1983). “The ALJ therefore failed to build an ‘accurate and logical bridge’ from the evidence he
recounted to his conclusion about [Plaintiff’s RFC].” Woods, 888 F.3d at 694. Remand is
warranted in this case for the ALJ to include a narrative discussion describing how the evidence
supports the ALJ’s conclusion in this regard. See Monroe, 826 F.3d at 191.
On remand the ALJ also should explain how Plaintiff’s activities show that she can
persist through an eight-hour workday. See Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251,
263 (4th Cir. 2017).

The ALJ found that Plaintiff “has reported socializing, performing

household chores such as cleaning, dusting, and washing laundry, having few limitations caring
for her personal needs, shopping, preparing meals, and helping care for pets.” R. at 73. Plaintiff

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testified, however, that in 2012 she “could barely wash . . . dishes because of the pain.” R. at
102. She reported in May 2014 that household chores took longer to perform because of pain
and that she needed to stop an activity three to five times because of pain. R. at 382-83. She
also reported that she could stand for five to fifteen minutes at a time and sit for one to two hours
at a time. R. at 383. Although she cared for pets, she reported that she did not walk them
because they remained outside in her yard. R. at 397. Plaintiff reported that, although she
cooked four days a week for one to two hours at a time, she had to sit down to take breaks from
standing. R. at 398. “An ALJ may not consider the type of activities a claimant can perform
without also considering the extent to which she can perform them.” Woods, 888 F.3d at 694
(citing Brown, 873 F.3d at 263). On remand the ALJ should consider not just the type of
Plaintiff’s daily activities, but also the extent to which she can perform them in assessing her
credibility.
The ALJ also considered the third-party reports from Plaintiff’s friend and son. R. at 7475, 436-37. The ALJ found that, “[b]y virtue of the relationship with [Plaintiff], each cannot be
considered a disinterested third-party witness whose reports would not tend to be colored by
affection for [Plaintiff] and a natural tendency to agree with the symptoms and limitations
[Plaintiff] alleges.”

R. at 75.

However, “if family members’ evidence was automatically

worthless, it would be an odd exercise in futility to even allow them to fill out questionnaires and
submit them into evidence.” Morgan v. Barnhart, 142 F. App’x 716, 731 (4th Cir. 2005)
(Gregory, J., concurring in part and dissenting in part). “Lay testimony as to a claimant's
symptoms is competent evidence that an ALJ must take into account, unless he or she expressly
determines to disregard such testimony and gives reasons germane to each witness for doing so.”
Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017) (quoting Lewis v. Apfel, 236 F.3d 503,

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511 (9th Cir. 2001)). The personal relationship of a lay witness with the claimant “is not a valid
reason to discount his observations. To do so ‘contradicts our insistence that, regardless of
whether they are interested parties, friends and family members in a position to observe a
claimant’s symptoms and daily activities are competent to testify as to his or her condition.’” Id.
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)). “The fact
that a lay witness is a family member cannot be a ground for rejecting his or her testimony. To
the contrary, testimony from lay witnesses who see the claimant every day is of particular
value . . . .” Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). The close relationship of the
third-party witnesses in this case thus is not a germane reason to discount the weight of their
observations. See Diedrich, 874 F.3d at 640.
A lack of support from the overall medical evidence is also not a proper basis for
disregarding the observations of these witnesses. Id. “The fact that lay testimony and third-party
function reports may offer a different perspective than medical records alone is precisely why
such evidence is valuable at a hearing.” Id. (citing Smolen, 80 F.3d at 1289). Thus, “[a] lack of
support from medical records is not a germane reason to give ‘little weight’ to those
observations.” Id. On remand, the ALJ should provide reasons germane to each witness for
disregarding his or her testimony.
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).

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V
Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 21)
is DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 18) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 18) 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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