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Laing v. Colvin

United States District Court, D. Maryland

February 20, 2014

Amy L. Laing
Carolyn W. Colvin, Commissioner, Social Security.

Paul R. Schlitz, Jr., Esq., Mering & Schlitz, LLC, Baltimore, Maryland.

Stacey W. Harris, Esq., Special Assistant United States Attorney Social Security Administration, Baltimore, MD.

SUSAN K. GAUVEY, Magistrate Judge.

Dear Counsel,

Plaintiff, Amy L. Laing, by her attorney, Paul R. Schlitz, Jr., 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), 1383(c)(3). This case has been referred to the undersigned by consent of the parties pursuant to 28 U.S.C. § 636(c) and Local Rule 301.

Currently pending before the Court are cross motions for summary judgment and Plaintiff's request for remand in the alternative. 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.


Plaintiff filed applications for DIB and SSI on March 5, 2009, (R. 54-55) alleging a period of disability beginning June 1, 2007, due to bipolar disorder, hepatitis C, depression, and a herniated disc. (R. 16-18). Plaintiff's applications were denied initially on July 17, 2009, (R. 59-66) and on reconsideration on July 14, 2010, (R. 73-76). Plaintiff had administrative hearings on April 19, 2011, (R. 38-53) and August 16, 2011, (R. 25-37). The Administrative Law Judge ("ALJ") issued a decision on September 23, 2011, finding that Plaintiff was not disabled. (R. 9-19). The Appeals Council denied Plaintiff's request for review on August 6, 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).


The Court has reviewed the Commissioner's Statement of Facts and, finding that it accurately represents the record, hereby adopts it. (Def.'s Mot. Summ. J., ECF No. 29-1, 2-14).


In evaluating Plaintiff's claim for disability insurance benefits, the ALJ must consider all of the evidence in the record and follow the sequential five-step evaluation process for determining disability, set forth in 20 C.F.R § 416.920(a).[1] 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 each of the required five steps, the ALJ in this case concluded that Plaintiff was not disabled as defined by the Act. (R. 19).

The first step requires that the claimant prove that he or she is not engaged in "substantial gainful activity."[2] 20 C.F.R. § 416.920(a)(4)(I). If the ALJ finds that the claimant is engaged in substantial gainful activity, he or she will not be considered disabled. Id . The ALJ in the present case found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of her period of disability, June 1, 2007. (R. 14).

At the second step, the ALJ must determine whether the claimant has a severe, medically determinable impairment or a combination of impairments that limits his or her 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 the claimant'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, March 31, 2008, Plaintiff had the following severe impairments: lumbar disc disease, status post lumbar fusion, hepatitis C, bipolar disorder, and THC/hash abuse. (R. 14).

At step three, the ALJ considers whether the claimant'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. 14). The ALJ considered Plaintiff's impairments against the LOI criteria found in Listing 2 (the musculoskeletal system) and Listing 12 (mental disorders). (R. 14-16). As to the musculoskeletal system, the ALJ found that Plaintiff's lumbar disc disease did not meet or medically equal the criteria of Listing 1.04 (disorders of the spine) or Listing 1.04A (evidence of nerve root compression). (R. 14). The ALJ based his finding on Plaintiff's failure to present "clinical evidence of significant nerve root compression, arachnoiditis, or stenosis resulting in pseudoclaudication as required by Listing 1.04." (R. 14-15). As to Listing 1.04A, the ALJ determined that Plaintiff failed to demonstrate the requisite "clinically supported evidence 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 positive straight-leg raising test (sitting and supine)." (R. 15).

To qualify as a listed impairment under Listing 12, mental disorders, a claimant must establish that his or her ailment satisfies the requirements of "paragraph A" (a set of medical findings) and causes functional limitations that are incompatible with the ability to perform gainful activity. 20 C.F.R. § 404, Subpart P, Appendix 1. Impairment-related functional limitations are adjudged pursuant to the standards enumerated in "paragraph B" and "paragraph C" of the ailments described under Listing 12. 20 C.F.R. § 404, Subpart P, Appendix 1. The claimant need only satisfy the requirements of either "paragraph B" or "paragraph C" to establish functional limitations incompatible with the ability to perform gainful activity. 20 C.F.R. § 404, Subpart P, Appendix 1.

Here, the ALJ eschewed consideration of Plaintiff's ailments as applied to the "paragraph A" criteria, because he determined that her mental impairments failed to satisfy either "paragraph B" or "paragraph C." The "paragraph B" criteria is met if the claimant experiences at least two of the following:

(1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation. 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ found that Plaintiff had "mild restriction" in activities of daily living, "mild difficulties" in social functioning, "moderate difficulties" in concentration, persistence, and pace, and had experienced no episodes of decompensation. (R. 15). These findings failed to satisfy the "paragraph B" requirements. Thus, the ALJ continued his analysis to consider whether Plaintiff's impairments met the "paragraph C" criteria.

"Paragraph C" is satisfied by evidence establishing a medically documented history of a chronic affective disorder of at least two years duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms, or signs currently attenuated by medication or psychosocial support, and one of the following: (1) repeated episodes of decompensation, each of extended duration; (2) a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or (3) current history of one or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ found that Plaintiff "presented no evidence" establishing the requisite chronic affective disorder of at least two years duration. (R. 15). Plaintiff similarly failed to meet the burden of the tripartite factors, as the ALJ determined that she suffered no episodes of decompensation, nor any indicia of decompensation, and also that she continued to function outside a highly supportive living arrangement. (Id.). Accordingly, the ALJ determined that Plaintiff did not have an impairment that meets or medically equals a listed impairment. (R. 14).

Before an ALJ advances to the fourth step, she must assess the claimant'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, 1996 WL 374184, at *1. When formulating a claimant's RFC, the ALJ must consider even those impairments that are not "severe." 20 C.F.R. § 404.1520(a)(2).

In determining a claimant's RFC, an ALJ must evaluate his or her subjective symptoms (e.g., allegations of pain) using a two-part test. Craig v. Chater , 76 F.3d 585, 594 (4th Cir. 1996) (superseded by statute on other grounds); 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). If 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 WL 374186, at *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, Claimant described her subjective symptoms as rendering her both physically and mentally unable to work. (R. 31, 34). With regard to her physical capacity, Plaintiff stated that her back pain precluded her from sitting or standing for periods longer than two hours. (R. 30, 31, 43). Plaintiff testified that her mental symptoms included rapid thoughts (R. 33), and an inability to concentrate (R. 34). Pursuant to the two-part test, the ALJ concluded that Claimant suffered from Hepatitis C, bipolar disorder, and had undergone lumbar surgery. (R. 16-17).

Evaluating the extent to which these impairments limited Plaintiff's capacity to work, the ALJ considered her prescribed medicines, the course of her physical and mental treatments, and Claimant's own statements. (R. 16). The ALJ determined that Plaintiff's mental condition "stabilized" and that, apart from a finite six to seven month period following lumbar surgery, she retained the capacity to perform light unskilled work. (Id.).

In assessing Plaintiff's credibility, the ALJ noted that her testimony stating she last worked in 2001 (R. 28) was "inaccurate by six years, " as compared against the Certified Earnings Records. (R. 16, 17). As a result, the ALJ found "her less than fully credible in describing her past work and consequently her ability to perform work after the time she said she became unable to work." (R. 16).

The ALJ concluded that Plaintiff had the RFC to perform a limited range of light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), restricted to sitting for six hours in an eight hour workday and standing or walking for two hours in an eight hour workday. (R. 16). The ALJ continued that Plaintiff is limited to lifting and carrying no more than ten to twenty pounds and, due to reduced concentration, cannot perform jobs over the SVP-2 level. (Id.). As the ALJ explained, while Plaintiff's medical impairments could be expected to cause some of her alleged symptoms, "her statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above [RFC] assessment." (R. 17).

At the fourth step, the ALJ must consider whether the claimant retains the RFC necessary to perform relevant past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ reiterated Plaintiff's lack of credibility regarding her past work as a cashier and daycare provider. (R. 16, 17). In two instances, Plaintiff offered inconsistent dates regarding her most recent employment, including 2001 (R. 28) and 2005 (R. 179, 214). Further, both dates are contradicted by her Certified Earnings Record. (R. 17).[3] Unable to rely on Plaintiff's representations, the ALJ determined that she "has no past relevant work." (R. 18).

Where, as here, the claimant lacks relevant past 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, the claimant is capable of 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 the claimant 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 the claimant's capacity to perform the job and that the job is available. Grant v. Schweiker , 699 F.2d 189, 191 (4th Cir. 1983). Before the agency may conclude that the claimant can perform alternative skilled or semi-skilled work, it must show that she possesses skills that are transferable to those alternative positions or that no such transferable skills are necessary. McLain , 715 F.2d at 869.

Based on the testimony of the vocational expert, the ALJ found that Plaintiff could perform jobs that exist in a significant number in the national economy. (R. 18). Specifically, the ALJ found that Plaintiff could successfully work as a "ticket seller" (1 million jobs nationally and 3, 800 jobs locally), "price marker" (144, 000 jobs nationally and 400 jobs ...

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