Arjun K. Murahari, Esq., Mignini, Raab and Demuth LLP, Bel Air, MD, Frederick A. Raab, Esq., Mignini and Raab LLP, Towson, MD, Stacey Irene Cole, Esq., Special Assistant United States Attorney Social Security Administration, Baltimore, MD.
SUSAN K. GAUVEY, Magistrate Judge.
Plaintiff, Michelle Harris, by her attorneys, Arjun K. Murahari and Frederick A. Raab, filed this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), who denied plaintiff's claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act") and Supplemental Security Income ("SSI") under Title XVI of the Act. 42 U.S.C. § 405(g) and 42 U.S.C. § 1383b(a). This case has been referred to the undersigned magistrate judge by consent of the parties pursuant to 28 U.S.C. § 636(c) and Local Rule 301. (ECF No. 5; ECF No. 7; ECF No. 8).
Currently pending before the Court are cross motions for summary judgment. (ECF No. 15; ECF No. 17). No hearing is necessary. Local Rule 105.6. For the reasons that follow, the Court hereby DENIES plaintiff's motion for summary judgment and GRANTS defendant's motion for summary judgment.
I. PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on March 5, 2009 (R. 154-167) alleging a period of disability beginning June 20, 2006 due to uterine fibroid tumors. (R. 188). Plaintiff's applications were denied initially on May 8, 2009 (R. 81) and on reconsideration on January 11, 2010. (R. 89; R. 91). The plaintiff had an administrative hearing on November 19, 2010. (R. 35-76). The ALJ issued a decision on February 9, 2011, finding that plaintiff was not disabled. (R. 15-34). The Appeals Council denied plaintiff's request for review on October 24, 2012. (R. 1-5). The ALJ's opinion is therefore the final decision of the agency. Plaintiff filed this action seeking review of that final decision pursuant to 42 U.S.C. § 405 (g) on December 6, 2012. (ECF No. 1).
II. FACTUAL BACKGROUND
The Court has reviewed the Commissioner's Statement of Facts and, finding that it accurately represents the record, hereby adopts it. (ECF No. 17-1).
III. ALJ'S FINDINGS
In evaluating plaintiff's claim for disability insurance benefits, the ALJ was required to consider all of the evidence in the record and to follow the sequential five-step evaluation process for determining disability, set forth in 20 C.F.R § 416.920(a). If the agency can make a disability determination at any point in the sequential analysis, it does not review the claim further. 20 C.F.R. § 1520(a). After proceeding through all five steps, the ALJ in this case concluded that plaintiff was not disabled as defined by the Act.
The first step requires plaintiff to prove that she is not engaged in "substantial gainful activity." 20 C.F.R. § 416.920(a)(4)(I). If the ALJ finds that plaintiff is engaged in substantial gainful activity, plaintiff will not be considered disabled. Id. The ALJ in the present case found that plaintiff did not engage in substantial gainful activity since the alleged onset date of her period of disability, June 20, 2006. (R. 20).
At the second step, the ALJ must determine whether plaintiff has a severe, medically determinable impairment or a combination of impairments that limit plaintiff's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c); see also 20 C.F.R. §§ 404.1521, 416.921. There is also a durational requirement that plaintiff's impairment last or be expected to last for at least 12 months. 20 C.F.R. § 416.909. Here, the ALJ found that through the date last insured, plaintiff had the following severe impairments: morbid obesity, status post broken right ankle, and depression. (R. 20).
At step three, the ALJ considers whether plaintiff's impairments, either individually or in combination, meet or equal an impairment enumerated in the "Listing of Impairments" ("LOI") in 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920(a)(4)(iii). Here, the ALJ found that plaintiff did not have an impairment that meets or medically equals one of the listed impairments. (R. 21).
Before an ALJ advances to the fourth step, she must assess plaintiff's "residual functional capacity" ("RFC"), which is then used at the fourth and fifth steps. 20 C.F.R. § 404.1520(a)(4)(e). RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. SSR 96-8p. The ALJ must consider even those impairments that are not "severe." 20 C.F.R. § 404.1520(a)(2).
In determining a plaintiff's RFC, ALJs must evaluate the plaintiff's subjective symptoms ( e.g., allegations of pain) using a two-part test. Craig v. Chater , 76 F.3d 585, 594 (4th Cir. 1996); 20 C.F.R. § 404.152. First, the ALJ must determine whether objective evidence shows the existence of a medical impairment that could reasonably be expected to produce the actual alleged symptoms. 20 C.F.R. § 404.1529(b). Once the claimant makes that threshold showing, the ALJ must evaluate the extent to which the symptoms limit the claimant's capacity to work. 20 C.F.R. § 404.1529(c)(1). At this second stage, the ALJ must consider all the available evidence, including medical history, objective medical evidence, and statements by the claimant. 20 C.F.R. § 404.1529(c). The ALJ must assess the credibility of the claimant's statements, as symptoms can sometimes manifest at a greater level of severity of impairment than is shown by solely objective medical evidence. SSR 96-7p, 1996 SSR LEXIS 4. To assess credibility, the ALJ should consider factors such as the claimant's daily activities, treatments she has received for her symptoms, medications, and any other factors contributing to functional limitations. Id.
Here, the ALJ found that plaintiff had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), restricted to sitting for six hours in an eight hour workday and standing or walking for two hours in an eight hour workday. (R. 24). The ALJ found that plaintiff is limited to work with only occasional balancing, stooping, kneeling, crouching, crawling, or stair/ramp climbing requirements; plaintiff may never climb ladders, ropes, or scaffolds; and plaintiff is to avoid concentrated exposure to temperature extremes, hazards, and pulmonary irritants. (Id.). The ALJ also noted that plaintiff ambulates with a cane. (Id.).
At the fourth step, the ALJ must consider whether plaintiff retains the RFC necessary to perform past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ noted that past work as a fast food worker would exceed plaintiff's current residual functional capacity. (R. 28). Therefore, plaintiff was unable to perform any of her past relevant work. (Id.).
Where, as here, plaintiff is unable to resume her past relevant work, the ALJ must proceed to the fifth and final step. This step requires consideration of whether, in light of vocational factors such as age, education, work experience, and RFC, plaintiff is capable of other work in the national economy. See 20 C.F.R. §§ 404.1520(f), 416.920(f). At this step, the burden of proof shifts to the agency to establish that plaintiff retains the RFC to engage in an alternative job which exists in the national economy. McLain v. Schweiker , 715 F.2d 866, 868-69 (4th Cir. 1983); Wilson v. Califano , 617 F.2d 1050, 1053 (4th Cir. 1980). The agency must prove both plaintiff's capacity to perform the job and that the job is available. Grant v. Schweiker , 699 F.2d 189, 191 (4th Cir. 1983). Here the ALJ found that plaintiff was capable of making a successful adjustment to work currently existing in the national economy. (R. 29). Specifically, the ALJ found that plaintiff could successfully work as an unskilled order clerk and security monitor. (Id.).
The ALJ therefore found that the plaintiff was not under a disability at any time from June 20, 2006 through February 9, 2001, the date of the decision. (R. 30).
IV. STANDARD OF REVIEW
The function of this Court on review is to leave the findings of fact to the agency and to determine upon the whole record whether the agency's decision is supported by substantial evidence-not to try plaintiff's claim de novo. King v. Califano , 599 F.2d 597, 598 (4th Cir. 1979). This Court must uphold the Commissioner's decision if it is supported by substantial evidence and if the ALJ employed the proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3) (2001); Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen , 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence "consists of more than a scintilla of evidence but may be somewhat less than a preponderance." Laws v. Celebrezze , 368 F.2d 640, 642 (4th Cir. 1966). It is "such relevant evidence as a reasonable mind might accept to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971) (internal quotations omitted).
In reviewing the decision, this Court will not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Craig , 76 F.3d at 589; Hayes v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990). The Commissioner, as fact finder, is responsible for resolving conflicts in the evidence. Snyder v. Ribicoff , 307 F.2d 518, 520 (4th Cir. 1962). If the Commissioner's findings are supported ...