WILLIAM CONNELLY, Magistrate Judge.
Plaintiff Randy Melton ("Mr. Melton" or "Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his claim for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. The parties consented to a referral to a United States Magistrate Judge for all proceedings and final disposition. See ECF Nos. 2, 5-6. Pending and ready for resolution are Plaintiff's Motion for Summary Judgment or, in the Alternative, Motion for Remand (ECF No. 14) and Defendant's Motion for Summary Judgment (ECF No. 16). No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons set forth below, Plaintiff's Motion for Summary Judgment or, in the Alternative, Motion for Remand will be denied and Defendant's Motion for Summary Judgment will be granted.
On September 24, 2004 Mr. Melton filed an application for Disability Insurance Benefits ("DIB"). R. at 48-52. In the letter of October 1, 2004 the Social Security Administration notified Mr. Melton that he does not qualify for disability benefits because he has not worked long enough under Social Security. R. at 53-55. Subsequently on February 2, 2005 Mr. Melton filed another application for DIB. R. at 56-60. In the letter of February 7, 2005 the Social Security Administration once again notified Mr. Melton that he does not qualify for disability benefits because he has not worked long enough under Social Security. R. at 61-63. There is no record of Mr. Melton appealing these determinations.
On January 31, 2005 Mr. Melton filed an application for SSI alleging a disability onset date of July 1, 2004 due to a bad back and left hip and left foot. See R. at 64-68, 83-92. Mr. Melton's SSI application was denied on June 2, 2005. R. at 29-31. On June 14, 2005 Mr. Melton requested reconsideration, R. at 32, and on October 4, 2005 his application for SSI was denied again. R. at 34-35. Thereafter on October 17, 2005 Mr. Melton requested a hearing before an Administrative Law Judge ("ALJ"). R. at 36-37. On August 8, 2006 an ALJ convened a hearing. Mr. Melton was represented by counsel at the hearing. Mr. Melton amended his date of onset to June 20, 2005 at the hearing. See R. at 266-67, 312. The ALJ obtained testimony from Mr. Melton and a vocational expert ("VE"). R. at 260-89. In the November 15, 2006 decision the ALJ found Mr. Melton has not been under a disability as defined in the Social Security Act since the date of his application, January 31, 2005. R. at 24. On November 27, 2006 Mr. Melton requested a review of the hearing decision. R. at 12-13. On November 14, 2007 the Appeals Council denied Mr. Melton's request for review, R. at 4-6, thus making the ALJ's determination the Commissioner's final decision.
On January 11, 2008 Mr. Melton filed a civil action in this court. See Melton v. Astrue, JKS-08-CV-92, ECF No. 1. Subsequently, on March 10, 2010, the Commissioner moved for a remand of the case pursuant to the Social Security Act, Sentence Four, of 42 U.S.C. § 405(g), with the consent of Mr. Melton. Id., ECF No. 38. The following day the court granted the motion, remanding the case to the Commissioner for further administrative proceedings. Id., ECF No. 39.
On July 28, 2010 the Appeals Council remanded the case to the ALJ, stating:
The U.S. District Court for the District of Maryland (Civil Action Number 8:08-CV-00092-PJM) has remanded this case to the Commissioner of Social Security for further administrative proceedings in accordance with the fourth sentence of section 205(g) of the Social Security Act.
The Appeals Council hereby vacates the final decision of the Commissioner of Social Security and remands this case to an Administrative Law Judge for resolution of the following issues:
§ The hearing decision, finding # 3, states that the claimant has a severe impairment of residuals of a foot injury. However, the decision does not evaluate the severity and effects of this impairment at step 3 of the sequential evaluation. Moreover, the decision does not discuss any medical evidence as to the nature of this impairment.
§ The hearing decision, Tr. 21/4, states that the claimant's statements concerning the intensity, duration, and limiting effects of subject symptoms are not generally credible but does not consider the following factors in evaluating the intensity, persistence and limiting effects of the alleged symptoms: objective medical evidence; daily activities; the location, duration, frequency and intensity of pain or other symptoms; precipitating and aggravating factors and the type, dosage, effectiveness and side effects of medication.
Upon remand, the Administrative Law Judge will:
§ Evaluate the claimant's left foot injury.
§ Further evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR 416.929) and Social Security Ruling 96-7p.
§ Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 416.945 and Social Security Ruling 96-8p).
§ If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-12). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
In compliance with the above, the Administrative Law Judge will offer the claimant the opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision.
R. at 309-10.
A supplemental hearing was held on October 6, 2010 in accordance with the Appeals Council's Remand. Mr. Melton was again represented by counsel. At the hearing Mr. Melton amended his date of onset to November 10, 2008. See R. at 331, 366. The ALJ obtained testimony from Mr. Melton and a VE. R. at 360-86. In the February 25, 2011 decision the ALJ found Mr. Melton has not been under a disability, as defined in the Social Security Act, since November 10, 2008, the amended alleged onset date. R. at 306. In a letter of March 21, 2011 the Social Security Administration acknowledged receiving the March 7, 2011 letter from Mr. Melton's counsel "requesting more time to send us written exceptions explaining the reasons you disagree with the Administrative Law Judge's decision dated February 25, 2011." R. at 290. Mr. Melton's counsel was granted more time and directed to submit exceptions within 30 days of receiving the letter. Those exceptions were never submitted. "If no exceptions are filed and the Appeals Council does not assume jurisdiction of your case, the decision of the administrative law judge becomes the final decision of the Commissioner after remand." 20 C.F.R. § 416.1484(d) (2010).
2. ALJ's Decision
In the November 15, 2006 decision, the ALJ evaluated Mr. Melton's claim for SSI using the sequential evaluation process set forth in 20 C.F.R. § 416.920 (2006). Mr. Melton bears the burden of demonstrating his disability as to the first four steps. At step five the burden shifts to the Commissioner. If Mr. Melton's claim fails at any step of the process, the ALJ does not advance to the subsequent steps. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
At step one the ALJ found Mr. Melton has not engaged in substantial gainful activity since June 20, 2005, the alleged date of onset. R. at 19. The ALJ concluded at step two that Mr. Melton has the following severe impairments: "a back disorder and residuals of a foot injury." Id. (citations omitted). The ALJ further found at step two that although one of Mr. Melton's treating physicians listed a diagnosis of asthma and although Mr. Melton may have a severe impairment of asthma, "the medical evidence of record does not support a finding." R. at 20 n.3.
At step three the ALJ determined Mr. Melton did not have an impairment or combination of impairments which meets or medically equals one of the listed impairments described in 20 C.F.R. Part 404, Subpart A, Appendix 1. The ALJ specifically considered Listing 1.04, Disorders of the spine. "The claimant does not have the requisite neuroanatomical findings to qualify for this listing." R. at 20.
Next the ALJ determined Mr. Melton's residual functional capacity ("RFC"). The ALJ found Mr. Melton can perform the exertional demands of light and sedentary work; however, Mr. Melton's occupational base is restricted due to the following non-exertional limitations:
The claimant cannot climb ladders, ropes or scaffolds, be exposed to hazardous heights or hazardous moving machinery, or be exposed to extreme temperature changes. The claimant requires a low stress routine (i.e., work requiring no more than moderate attention, concentration, persistence and pace for prolonged periods) due to limited education and the effects of pain. The claimant retains the ability to occasionally climb stairs and ramps, to balance, to stoop and to crouch, but does not retain the ability to perform work involving kneeling or crawling. The claimant must avoid concentrated exposure to excessive vibration, humidity or wetness. The claimant should not push or pull controls with the legs and must not lift or carry objects above shoulder height. The claimant has moderate pain and moderate limitations as to performing activities within a schedule and maintaining regular attendance for reliability purposes, and being punctual within customary tolerances, and as to completing a normal work day or work week without an unreasonable length and number of rest periods.
At step four the ALJ considered Mr. Melton's past relevant work at a warehouse. "Because he currently does not retain the residual functional capacity to lift and carry objects above shoulder height, he can no longer perform this work." R. at 22. Finally, at step five the ALJ considered Mr. Melton's age (44 years old as of the date of the decision, categorized as a younger individual [18-44]), education (marginal; sixth grade and able to communicate in English), past work experience (transferability of job skills is not material) and his RFC (light and sedentary work with limitations). The ALJ found the Social Security Administration met its burden of proving Mr. Melton is capable of performing other work that exists in significant numbers in the national economy, relying on the testimony of the VE. R. at 24, 287-88. Accordingly, the ALJ concluded Mr. Melton is not under a disability since January 31, 2005, the date the SSI application was filed, as defined in the Social Security Act. R. at 24.
After the supplemental hearing on October 6, 2010, the ALJ re-evaluated Mr. Melton's SSI claim using the sequential evaluation process set forth in 20 C.F.R. § 416.920 (2010). At step one the ALJ determined Mr. Melton has not engaged in substantial gainful activity since November 10, 2008, the amended alleged date of onset. R. at 297. At step two the ALJ found Mr. Melton has two severe impairments: chronic back pain and residuals of fracture of left foot. Id. At this step the ALJ also noted other impairments listed in Mr. Melton's medical records. Samuel Alleyne, M.D. diagnosed chronic obstructive pulmonary disease ("COPD") and asthma. "Outside of prescriptions listed in the medical records, there are no reports of treatment in the record such as pulmonary function studies. The undersigned concludes that COPD and asthma are non-severe impairments because they produce no more than a slight abnormality or combination of slight abnormalities that has no more than a minimal effect on the claimant's ability to perform basic work activities however they were, as a precautionary measure given consideration in presenting different hypotheticals to the vocational expert." R. at 299-300. The ALJ also considered other impairments listed in Mr. Melton's medical records. "The claimant has also alleged residuals of the fractured left femur and the fractured left wrist from the accident in November 2008 as functionally limiting impairments. However, the only evidence in the record of those conditions is contained in the hospital emergency room report with the attached x-ray report." R. at 300 (citation omitted).
At step three the ALJ found Mr. Melton does not have an impairment or combination of impairments which meets or medically equals one of the listed impairments described in 20 C.F.R. Part 404, Subpart A, Appendix 1. Regarding Mr. Melton's chronic back pain, the ALJ considered Listing 1.04, Disorders of the spine, and found the required level of severity is not met because
[T]here is no evidence of herniated nucleus pulposus, spinal stenosis, or degenerative disc disease resulting in compromise of a nerve root or the spinal cord. There is no evidence of spinal arachnoiditis or lumbar spinal stenosis resulting in pseudoclaudication and an inability to ambulate effectively. "Inability to ambulate effectively" means an extreme limitation of the ability to walk; that is, having insufficient lower extremity functioning to permit independent ambulation without the use of devices such as a walker, two crutches, or two canes (Section 1.00B2b(1)).
R. at 302.
The ALJ then considered Mr. Melton's residuals of fracture of left foot in light of Listing 1.02A, Major dysfunction of a joint(s) and found "no evidence of gross anatomical deformity and chronic joint pain and stiffness, with signs of limitation of motion or other abnormal motion of the affected joints, and findings of joint space narrowing, bony destruction, or ankylosis, with involvement of one major peripheral ...