Madden v. Berryhill

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 4/15/2019. (jrs, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
TIFFANY M.,

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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 18-1766

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Tiffany M. 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 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.
14) and Defendant’s Motion for Summary Judgment (ECF No. 15).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. 14) is GRANTED.
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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).
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.
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I
Background
On April 14, 2017, Administrative Law Judge (“ALJ”) Theodore W. Annos held a
hearing where Plaintiff and a vocational expert (“VE”) testified. R. at 30-54. The ALJ thereafter
found on June 1, 2017, that Plaintiff was not disabled from the alleged onset date of disability of
April 13, 2014, through the date of the ALJ’s decision. R. at 11-29. 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
never crawl or climb ladders, ropes, or scaffolds; occasionally balance, stoop,
kneel, crouch, and climb ramps or stairs; occasionally push and pull with the
upper and lower extremities; occasionally reach overhead and frequently reach in
all other directions; occasional exposure to vibration and work hazards (such as
unprotected heights, moving mechanical parts and motor vehicles); must work in
a moderate noise intensity level or quieter and where the levels of illumination are
no brighter than that found in a typical office setting; and requires the use of a
cane.
R. at 18. In light of this RFC and the VE’s testimony, the ALJ determined that, although
Plaintiff could not perform her past relevant work as a photo technician, shampoo girl, and
cashier, she was capable of performing other work, such as an order clerk or telephone quotation
clerk. R at 23-24. The ALJ thus found that Plaintiff was not disabled from April 13, 2014,
through June 1, 2017. R. at 24.
After the Appeals Council denied Plaintiff’s request for review, Plaintiff filed on June 14,
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
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
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. 3-8,

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 5-6. In
particular, she contends that the ALJ failed to evaluate properly her migraine headaches, which
the ALJ found to be a severe impairment (R. at 16). Id. at 6-8. She also argues that the ALJ
erroneously evaluated her subjective complaints. Id. at 8-11. 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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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).
Here, the ALJ’s assessment of Plaintiff’s RFC included “occasional exposure to vibration
and work hazards” and a limitation to working “in a moderate noise intensity level or quieter and
where the levels of illumination are no brighter than that found in a typical office setting.” R. at
18. The ALJ found that Plaintiff’s “headaches are accommodated by less than the full range of
sedentary exertion with [these] environmental limitations.” R. at 21. The ALJ also found,
among other things, that Plaintiff’s activities of daily living belied her allegation of total
disability. R. at 21. The VE testified, however, that, to maintain employment, an individual at
work needed to be routinely “on task” at least 85% of the time and not be absent more than one
day a month. R. at 51. Plaintiff also reported that she sometimes would wake up with a
headache and she tended to have one every day. R. at 722. Although the ALJ reviewed
Plaintiff’s history of headaches in his decision (R. at 21), Plaintiff maintains that, despite the
VE’s testimony, the ALJ failed to address the frequency and duration of these headaches and
erred in evaluating her subjective complaints. Pl.’s Mem. Supp. Mot. Summ. J. 6-11, ECF No.
14-1.
The Court agrees. The ALJ failed to explain how, despite Plaintiff’s migraine headaches,
she could remain on task for at 85% of an eight-hour workday and not miss more than one day of
work per month. The ALJ “must both identify evidence that supports his conclusion and ‘build

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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). In
particular, the ALJ “must build a logical bridge between the limitations he finds and the VE
evidence relied upon to carry the Commissioner’s burden at step five in finding that there are a
significant number of jobs available to a claimant.” Brent v. Astrue, 879 F. Supp. 2d 941, 953
(N.D. Ill. 2012). An ALJ’s failure to do so constitutes reversible error. See Lewis v. Berryhill,
858 F.3d 858, 868 (4th Cir. 2017). Because the ALJ’s “analysis is incomplete and precludes
meaningful review,” remand is appropriate. Monroe, 826 F.3d at 191; see Ashcraft v. Colvin,
No. 3:13-cv-00417-RLV-DCK, 2015 WL 9304561, at *11 (W.D.N.C. Dec. 21, 2015)
(remanding under fourth sentence of 42 U.S.C. § 405(g) because court was unable to review
meaningfully ALJ’s decision that failed to explain exclusion from RFC assessment an additional
limitation of being 20% off task that VE testified would preclude employment).
In this regard, Defendant contends that Plaintiff’s activities of daily living, among other
things, provide substantial evidence to support the ALJ’s decision. Def.’s Mem. Supp. Mot.
Summ. J. 9, ECF No. 15-1. The ALJ noted that Plaintiff “drove to and from New York and
Virginia. She engaged in housework, including dishes, laundry, and trash upkeep. [Plaintiff]
prepared meals, went out alone, shopped in stores, and visited her grandparents multiple times
per week[.]” R. at 21 (citation omitted). She “continued to drive multiple times per week, leave
the house independently, and spend a significant amount of time in front of a screen, watching
television or using social media.” R. at 21. As Plaintiff points out, however, “[a]n 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 v. Comm’r Soc. Sec.
Admin., 873 F.3d 251, 263 (4th Cir. 2017)). She testified that she needed to rest after performing

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a task for 20 minutes and that she need to take intermittent breaks when doing laundry. R. at 46.
Plaintiff also reported that taking care of laundry took her “a day or two every two weeks” and
that she needed help. R. at 193. She prepared meals, such as sandwiches, frozen dinners, and
canned food, “once in a while” and “every other week” while taking “a lot of breaks.” R. at 193,
219. Washing dishes took her 20 minutes a few times each week. R. at 193. She also shopped
once a month for two hours while using a wheelchair. R. at 194. According to Plaintiff, her
parents did “most if not almost all of the shopping and cooking.” R. at 224. Defendant contends
that any error by the ALJ in considering Plaintiff’s daily living activities is harmless. Def.’s
Mem. Supp. Mot. Summ. J. 9, ECF No. 15-1. “The Court cannot classify the error as harmless
because the ALJ’s written decision is insufficient to permit adequate review,” however. Lawson
v. Berryhill, Civil No. TJS-17-0486, 2018 WL 1135641, at *5 (D. Md. Mar. 1, 2018). Rather,
the ALJ should explain on remand how Plaintiff’s activities show that she could persist through
an eight-hour workday and sustain a full-time job. See Brown, 873 F.3d at 263, 269-70. In sum,
the inadequacy of the ALJ’s analysis frustrates meaningful review. The Court thus remands this
case under the fourth sentence of 42 U.S.C. § 405(g).

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V
Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 15)
is DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiff’s
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: April 15, 2019

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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