Potter v. Berryhill ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CLIFFORD P., * * Plaintiff, * * Civil No. TMD 18-2223 v. * * * ANDREW M. SAUL, * Commissioner of Social Security, * * Defendant.1 * ************ MEMORANDUM OPINION GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR REMAND Plaintiff Clifford P. 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 his application for Supplemental Security Income (“SSI”) under Title XVI 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. 18).2 Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner’s decision that he is not disabled. No hearing is necessary. L.R. 1 On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security. He is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 2 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. 105.6. For the reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 14) is GRANTED. I Background Plaintiff was born in 1997. R. at 17. On October 22, 2014, Plaintiff’s mother protectively filed an application for SSI on Plaintiff’s behalf when he was under the age of 18, which the Commissioner denied initially and on reconsideration. R. at 13, 51-78, 83-94, 165-73. Upon request, Administrative Law Judge (“ALJ”) Anne-Marie A. Ofori-Acquaah held a hearing on May 30, 2017, in Raleigh, North Carolina, where Plaintiff and a vocational expert (“VE”) testified. R. at 34-50, 95-98. The ALJ thereafter found on August 22, 2017, that Plaintiff was not disabled before attaining the age of 18. R. at 17-25. In so finding, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the filing date of the application; and (2) had the severe impairment of Fabry disease; but (3) did not have an impairment or a combination of impairments meeting, medically equaling, or functionally equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P, app. 1. R. at 17-25. The ALJ found that Plaintiff’s impairments did not functionally equal a listed impairment because he did not have an impairment or combination of impairments that resulted in either “marked” limitations in two out of six domains of functioning or “extreme” limitation in one domain of functioning. R. at 25. Rather, the ALJ found that he had less than marked limitation in moving about and manipulating objects. R. at 22-23. The ALJ also found that Plaintiff had no limitations in acquiring and using information, in attending and completing tasks, in interacting and relating with others, and in the ability to care for himself. R. at 20-24. The ALJ found, however, that Plaintiff had marked limitation in health and physical well-being. R. at 24. The ALJ also found that Plaintiff was not disabled from the day Plaintiff attained the age of 18 through the date of the ALJ’s decision. R. at 28. In so finding, the ALJ found that, since attaining age 18, Plaintiff (1) had not developed any new impairment or impairments and (2) continued to have a severe impairment or combination of impairments; but (3) did not have an impairment or combination of impairments that met or medically equaled a listed impairment; and (4) had the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 CFR 416.967(a) except he can only occasionally use his bilateral lower extremities to operate foot controls; frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; and should avoid concentrated exposure to heat and humidity. He needs to elevate his legs during the workday but this can be accommodated by normal morning, lunch, and afternoon breaks. R. at 25.3 In light of this RFC and the VE’s testimony, the ALJ found that, since attaining age 18, Plaintiff could work as an order clerk, food checker, or charge account clerk. R at 27-28. The ALJ thus found that Plaintiff was not disabled from the day Plaintiff attained the age of 18 through August 22, 2017. R. at 28-29. After the Appeals Council denied Plaintiff’s request for review, Plaintiff filed on July 20, 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. 3 “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. § 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. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” Id. II Disability Determinations and Burden of Proof A. Child SSI An individual under the age of 18 shall be considered disabled “if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i); see 20 C.F.R. § 416.906. To determine whether a child has a disability within the meaning of the Social Security Act, the Commissioner follows a three-step sequential evaluation process. 20 C.F.R. §§ 416.924, 416.926a. The first step is a determination whether the child is engaged in substantial gainful activity. Id. § 416.924(b). If so, benefits are denied; if not, the evaluation continues to the next step. The second step involves a determination whether a claimant’s impairment or combination of impairments is severe, i.e., more than a slight abnormality that causes no more than minimal functional limitations. Id. § 416.924(c). If not, benefits are denied; if so, the evaluation continues. The third step involves a determination whether the child has an impairment or impairments that meet, medically equal, or functionally equal in severity a listed impairment. Id. § 416.924(d). If so, and if the duration requirement is met, benefits are awarded; if not, benefits are denied. “A child’s functioning is determined by looking at six broad areas, or ‘domains,’ in an attempt to evaluate ‘all of what a child can or cannot do.’” Woodhouse ex rel. Taylor v. Astrue, 696 F. Supp. 2d 521, 527 (D. Md. 2010) (quoting 20 C.F.R. § 416.926a(b)(1)). In the domain of “acquiring and using information,” the Commissioner considers how well a child acquires or learns information, and how well the child uses the learned information. 20 C.F.R. § 416.926a(g). In the domain of “attending and completing tasks,” the Commissioner considers how well a child is able to focus and maintain attention and how well the child begins, carries through, and finishes activities. Id. § 416.926a(h). In the domain of “interacting and relating with others,” the Commissioner considers how well a child initiates and sustains emotional connections with others, develops and uses the language of the child’s community, cooperates with others, complies with rules, responds to criticism, and respects and takes care of others’ possessions. Id. § 416.926a(i). In the domain of “moving about and manipulating objects,” relating to a child’s gross and fine motor skills, the Commissioner considers how the child moves his or her body from one place to another and how the child moves and manipulates things. Id. § 416.926a(j). In the domain of “caring for yourself,” the Commissioner considers how well a child maintains a healthy emotional and physical state, including how well the child gets his or her physical and emotional wants and needs met in appropriate ways, how the child copes with stress and changes in the environment, and whether the child takes care of his or her own health, possessions, and living area. Id. § 416.926a(k). Impairments “functionally equal listing-level severity when they produce an ‘extreme’ limitation in a child applicant’s functioning in one domain or ‘marked’ limitations in functioning in two domains.” Woodhouse, 696 F. Supp. 2d at 527 (citing 20 C.F.R. § 416.926a(d)). A “marked” limitation in a domain is one that “interferes seriously with [the claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). “It is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.” Id. An “extreme” limitation in a domain is one that “interferes very seriously with [the claimant’s] ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3)(i). “It is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least three standard deviations below the mean.” Id. B. Adult SSI 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. § 1382c(a)(3)(A); 20 C.F.R. § 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. § 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. § 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. § 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. 20 C.F.R. § 416.920(a)(4)(i). 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. §§ 416.920(c), 416.922(a).4 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. §§ 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. §§ 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. § 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 consultative examination(s) if necessary, and making every reasonable 4 The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.922(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. § 416.922(b)(1)-(6); see Yuckert, 482 U.S. at 141, 107 S. Ct. at 2291. effort to help [the claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 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. § 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. § 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. § 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 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 his RFC contrary to Social Security Ruling5 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 4-9, ECF No. 14-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function assessment of his ability to perform the physical and mental demands of work. Id. at 6. In 5 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. particular, Plaintiff contends that the ALJ failed to explain how the RFC assessment reflected her finding that his Fabry disease seriously interfered with his ability to initiate, sustain, or complete activities independently. Id. at 7. Plaintiff further argues that, despite finding that he was limited to performing sedentary work since attaining the age of 18, the ALJ failed to explain how he was capable of frequently climbing ramps and stairs. Id. at 7-8. Plaintiff also maintains that the ALJ failed to address adequately his potential absenteeism. Id. at 8-9. Plaintiff finally argues that the ALJ erroneously evaluated his subjective complaints. Id. at 9-10. For the following reasons, the Court remands this case for further proceedings. Plaintiff maintains that remand is necessary for the ALJ to explain her determination that he had the RFC since attaining the age of 18 to climb ramps and stairs frequently if he was also limited to sedentary work. As Defendant points out, however, the jobs listed in the Dictionary of Occupational Titles6 (the “DOT”) and identified by the VE at the hearing (R. at 28, 49) do not require climbing. See DOT 209.567-014, 1991 WL 671794 (listed as “order clerk, food and beverage”); DOT 211.482-014, 1991 WL 671856 (listed as “food checker”); DOT 205.367-014, 1991 WL 671715 (listed as “charge-account clerk”). Absent prejudice, any error by the ALJ in limiting Plaintiff’s RFC to sedentary work with frequent climbing of ramps and stairs thus was harmless. See Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S. Ct. 1696, 1705-06 (2009). Plaintiff testified, however, that he underwent biweekly enzyme replacement therapy for about “four hours in and out.” R. at 39-40, 46. The ALJ found that, before attaining the age of 6 “The Social Security Administration has taken administrative notice of the Dictionary of Occupational Titles, which is published by the Department of Labor and gives detailed physical requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007); see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d 148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 416.966(d)(1). “Information contained in the [Dictionary of Occupational Titles] is not conclusive evidence of the existence of jobs in the national economy; however, it can be used to establish a rebuttable presumption.” English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993). 18, Plaintiff had marked limitation in health and physical well-being because, among other things, he began receiving biweekly infusions for Fabry disease in September 2014. R. at 24. The VE testified that two absences per month from work would preclude an individual’s employment. R. at 49-50. Remand is warranted for the ALJ to explain how, despite Plaintiff’s impairments, he would not be absent from work more than one day per month. See Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019) (“[I]n formulating the second hypothetical for the VE, [the ALJ] incorporated the express functional limitation of a person able to perform simple and repetitive tasks also being off-task 20% of the time or otherwise requiring two unscheduled absences per month. The VE opined that a person so limited would lack the functional capacity to sustain any employment. But the ALJ failed to incorporate this opinion anywhere in the RFC, leaving the RFC altogether uninformed by considerations of off-task time or unplanned leave.”). The ALJ “must both identify evidence that supports [her] conclusion and ‘build an accurate and logical bridge from [that] evidence to [her] conclusion.’” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (second alteration in original) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). An ALJ’s failure to do so constitutes reversible error. Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017). In short, because “meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion,” the Court remands this case for further explanation regarding Plaintiff’s RFC. Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods, 888 F.3d at 694). Because the Court remands this case on these grounds, it need not address Plaintiff’s remaining arguments. In any event, when evaluating Plaintiff’s subjective complaints, the ALJ should consider the type of activities he can perform, the extent to which he can perform them, and how his activities show that he can persist through an eight-hour workday. See Woods, 888 F.3d at 694-95; Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017). V Conclusion For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 18) 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: January 24, 2020 /s/ Thomas M. DiGirolamo United States Magistrate Judge