Meredith v. Saul

Filing 23

MEMORANDUM AND ORDER denying Plaintiff's 15 Motion for Summary Judgment; granting Defendant's 21 Motion for Summary Judgment. Signed by Magistrate Judge Beth P. Gesner on 1/11/2022. (dass, Deputy Clerk)

Case 8:20-cv-02985-BPG Document 23 Filed 01/11/22 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
BETH P. GESNER
CHIEF UNITED STATES MAGISTRATE JUDGE
[e-mail]

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
[phone] FAX

January 11, 2022
Arjun K. Murahari, Esq.
Mignini Raab Demuth & Murahari, LLP
429 S. Main Street
Bel Air, MD 21014

Cassia W. Parson, Esq.
Social Security Administration
Altmeyer Building, Room 617
6401 Security Blvd.
Baltimore, MD 21235

Theodore A. Melanson, Esq.
Mignini Raab Demuth & Murahari, LLP
606 Baltimore Avenue, Suite 100
Towson, MD 21204

Subject:

Sharee M. v. Kilolo Kijakazi, Acting Commissioner, Social Security
Administration
Civil No.: BPG-20-2985

Dear Counsel:
Pending before this court, by the parties’ consent (ECF Nos. 3, 4), are plaintiff’s Motion
for Summary Judgment (“plaintiff’s Motion”) (ECF No. 15), defendant’s Motion for Summary
Judgment (“defendant’s Motion”) (ECF No. 21), and plaintiff’s Response to defendant’s Motion
for Summary Judgment (“plaintiff’s Reply”) (ECF No. 22). The undersigned must uphold the
Commissioner’s decision if it is supported by substantial evidence and if proper legal standards
were employed. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996), superseded by statute, 20 C.F.R. § 416.927(d)(2). I have reviewed the pleadings and the
record in this case and find that no hearing is necessary. Loc. R. 105.6. For the reasons noted
below, plaintiff’s Motion (ECF No. 15) is denied and defendant’s Motion (ECF No. 21) is granted.
I.

Background

On July 24, 2017, plaintiff filed a Title II application for a period of disability and disability
insurance benefits and a Title XVI application for supplemental security income, alleging
disability beginning on August 11, 2016. (R. at 217-34). Her claims were initially denied on
August 23, 2017 (R. at 131-36), and on reconsideration on March 23, 2018 (R. at 140-45). After
a hearing held on October 15, 2019, an Administrative Law Judge (“ALJ”) issued a decision on
November 8, 2019, denying benefits based on a determination that plaintiff was not disabled. (R.
at 12-35). The Appeals Council denied plaintiff’s request for review on August 17, 2020, making
the ALJ’s opinion the final and reviewable decision of the Commissioner. (R. at 1-6). Plaintiff
then filed the current suit, challenging the Social Security Administration’s decision on the
grounds that the ALJ failed to properly evaluate: 1) whether plaintiff’s impairments met the
requirements of any Listings at step three; and 2) whether plaintiff’s fibromyalgia was a medically
determinable impairment pursuant to Social Security Ruling (“SSR”) 12-2p.

Case 8:20-cv-02985-BPG Document 23 Filed 01/11/22 Page 2 of 4
Sharee M. v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration
Civil No.: BPG-20-2985
January 11, 2022
Page 2
II.

Discussion

First, plaintiff argues that the ALJ failed to identify specific evidence to support the finding
that plaintiff did not meet the requirements of Listings 1.02, 1.04, 5.06, or 14.07 at step three.
Plaintiff summarily states that the ALJ failed to provide this evidence for Listings 1.02, 5.06, and
14.07, and provides a specific argument regarding Listing 1.04A. (ECF No. 15-2 at 9-22). Step
three requires the ALJ to determine whether a claimant’s impairments meet or medically equal
any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of
Impairments describes “for each of the major body systems impairments that [the agency
considers] to be severe enough to prevent an individual from doing any gainful activity, regardless
of his or her age, education, or work experience.” 20 C.F.R. § 404.1525(a). Listing 1.04 covers
disorders of the spine “resulting in compression of a nerve root or the spinal cord.” 20 C.F.R. Part
404, Subpart P, Appendix 1, § 1.04. Listing 1.04 also requires the satisfaction of one of three
additional requirements identified as Requirements A–C. Id. Requirement A requires “[e]vidence
of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine) . . . .” Id. § 1.04A.
In this case, at step three, the ALJ opined that, while the requirements of Listings 1.02,
1.04, 5.06, and 14.07 were “specifically considered,” “[a]s presented in further detail with
[plaintiff’s] residual functional capacity assessment, the record does not contain clinical findings
or test results that meet the level of severity required by any of the musculoskeletal system,
digestive system, or immune system disorders listings.” (R. at 21). Plaintiff argues that, because
there was enough evidence in plaintiff’s record for the ALJ to specifically review these Listings,
the ALJ must therefore match the evidence in plaintiff’s record to these Listing requirements. In
support of her argument, plaintiff points to several records which she argues indicate that she meets
the requirements of Listing 1.04A. (ECF No. 15-2 at 18-21).
Plaintiff cites to both Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013), and Fox v. Colvin,
632 F. App’x. 750 (4th Cir. 2015) for the proposition that “insufficient legal analysis makes it
impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ’s
findings.” Radford, 734 F.3d at 295. In both Radford and Fox, however, the ALJ provided no
explanation as to why the plaintiffs in those cases did not meet a specific Listing. Instead, the
ALJs in both Radford and Fox stated they had “considered, in particular,” specific Listings with
no further elaboration. Id. at 292, Fox, 632 F. App’x at 755. The same cannot be said of the ALJ
in this case, as there is an indication from the ALJ that more information regarding the identified
Listings are “presented in further detail” in plaintiff’s RFC. (R. at 21). Specific to Listing 1.04A,
the ALJ noted plaintiff’s back pain several times in plaintiff’s RFC. (R. at 24-27). While plaintiff
argues that her diagnoses of cervical radiculopathy and cervical radicular pain could indicate nerve
root compression, a requirement of Listing 1.04A, these diagnoses were accompanied by the
observation that plaintiff’s cervical MRI showed bulging discs “without foraminal stenosis or
nerve root involvement.” (R. at 357). Accordingly, plaintiff has not provided evidence that she
experienced nerve root compression, and therefore failed to meet her burden to demonstrate that

Case 8:20-cv-02985-BPG Document 23 Filed 01/11/22 Page 3 of 4
Sharee M. v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration
Civil No.: BPG-20-2985
January 11, 2022
Page 3
her impairment met or equaled Listing 1.04A or that the ALJ’s decision was not supported by
substantial evidence. See Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986) (“To be
disabled under the Listings . . . [plaintiff] must present evidence that the impairment meets or is
medically equivalent to an impairment listed.”), Craig, 76 F.3d at 589 (“Under the Social Security
Act, we must uphold the factual findings of the Secretary if they are supported by substantial
evidence and were reached through application of the correct legal standard.”). Accordingly,
remand is not warranted on this issue.
Plaintiff’s second argument is that the ALJ failed to properly consider plaintiff’s diagnosis
of fibromyalgia pursuant to SSR 12-2p. (ECF No. 15-2 at 22-34). SSR 12-2p states the required
evidence necessary to establish whether a plaintiff has a medically determinable impairment of
fibromyalgia. SSR 12-2p, 2012 WL 3104869, at *1 (July 25, 2012). First, a licensed physician
must review a plaintiff’s medical history, conduct a physical exam, and diagnose a plaintiff with
fibromyalgia. Id. at *2. Next, one of two sets of criteria must be reviewed to establish if a
plaintiff’s fibromyalgia is a medically determinable condition: 1) the 1990 American College of
Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia, or 2) the 2010 ACR
Preliminary Diagnostic Criteria. Id. at *2-*3.
Here, the ALJ did not address plaintiff’s fibromyalgia except in passing in her RFC, where
it was noted that a medication was increased “due to suspected fibromyalgia.” (R. at 25). Yet,
there does not appear to be a valid fibromyalgia diagnosis in plaintiff’s record. “A licensed
physician (a medical or osteopathic doctor) is the only acceptable medical source who can provide
such evidence. We cannot rely upon the physician's diagnosis alone. The evidence must document
that the physician reviewed the person's medical history and conducted a physical exam.” SSR
12-2p, 2012 WL 3104869, at *2. Plaintiff argues that Peter Wei, M.D., reported that fibromyalgia
was one of plaintiff’s current diagnoses. (R. at 838). Dr. Wei noted, however, that plaintiff’s
symptoms were “likely due to fibromyalgia – but rheumatologic disorders need[] to be ruled out.”
(R. at 840). Accordingly, Dr. Wei declined to diagnose plaintiff with fibromyalgia. Plaintiff
maintains that, following this exam with Dr. Wei, plaintiff underwent extensive testing that
showed unremarkable findings, therefore effectively ruling out other disorders that could cause
her symptoms. (ECF No. 22 at 8-10). Yet, still missing from plaintiff’s record is a fibromyalgia
diagnosis by a licensed physician following a review of plaintiff’s medical history and a physical
exam. Accordingly, plaintiff does not have a valid fibromyalgia diagnosis pursuant to SSR 12-2p
and, therefore, remand is not warranted on this issue.
III.

Conclusion

For the reasons stated above, plaintiff’s Motion (ECF No. 15) is DENIED and defendant’s
Motion (ECF No. 21) is GRANTED.

Case 8:20-cv-02985-BPG Document 23 Filed 01/11/22 Page 4 of 4
Sharee M. v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration
Civil No.: BPG-20-2985
January 11, 2022
Page 4
Despite the informal nature of this letter, it will constitute an Order of the court and will be
docketed accordingly.

Very truly yours,

/s/
Beth P. Gesner
Chief United States Magistrate Judge