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Stitely v. Commissioner, Social Security Administration

United States District Court, District of Maryland, Southern Division

November 10, 2014

Richard E. Stitely
v.
Commissioner, Social Security Administration;

LETTER TO COUNSEL

STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE

Dear Counsel:

On January 17, 2014, Plaintiff Richard Stitely petitioned this Court to review the Social Security Administration’s final decision to deny his claims for Disability Insurance Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties’ cross-motions for summary judgment and Plaintiff’s reply memorandum. (ECF Nos. 14, 17, 18). I find that no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). This Court must uphold the decision of the agency if it is supported by substantial evidence and if the agency employed proper legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I will deny Plaintiff’s motion and grant the Commissioner’s motion. This letter explains my rationale.

Mr. Stitely filed a claim for Disability Insurance Benefits (“DIB”) on September 20, 2010. (Tr. 96). He protectively filed a claim for Supplemental Security Income (“SSI”) on August 30, 2010. (Tr. 355). He alleged a disability onset date of March 1, 2008 for both claims. (Tr. 96–99, 355). Both claims were denied initially, and his DIB claim was denied on reconsideration. (Tr. 25–35, 37–49, 356–366). His SSI claim was not considered at the reconsideration level, but it was escalated to the hearing level due to common issues with his DIB claim. (Tr. 14, 60). A hearing was held on June 14, 2013, before an Administrative Law Judge (“ALJ”). (Tr. 373–405). Following the hearing, the ALJ determined that Mr. Stitely was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 11–24). The Appeals Council denied Mr. Stitely’s request for review, (Tr. 5–7), so the ALJ’s decision constitutes the final, reviewable decision of the agency.

The ALJ found that Mr. Stitely suffered from the severe impairments of asthma, chronic obstructive pulmonary disease, degenerative osteoarthritis of the bilateral knees, and degenerative disc disease of the lumbar spine. (Tr. 16). Despite these impairments, the ALJ determined that Mr. Stitely retained the residual functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can stand and walk for only two hours total in an eight-hour workday. He can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps and stairs and crawl. He is able to frequently balance, stoop, kneel, and crouch. He must avoid concentrated exposure to extreme cold, wetness, and hazards and must avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation. He will be off task approximately ten percent of the workday.

(Tr. 19). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Mr. Stitely could perform jobs existing in significant numbers in the national economy and that therefore he was not disabled. (Tr. 23–24).

Mr. Stitely raises fourteen arguments on appeal. He claims: (1) that the ALJ should have determined that he would be off task for twenty percent of the day, rather than ten percent, and that the ALJ should have concluded he was limited to sedentary, rather than light work; (2) that the ALJ erred in determining that his right hand impairments are not severe; (3) that the ALJ failed to address whether his non-severe impairments impacted his RFC; (4) that the consultative examination of his treating physician was inadequate and should not have been considered; (5) that the ALJ erred in ordering a consultative examination from a non-treating physician; (6) that the ALJ failed to provide a rationale for why Mr. Stitely’s hand and arm impairments are not severe; (7) that the ALJ completely failed to discuss several of his medically determinable impairments; (8) that the ALJ erred in determining that his obesity is not severe; (9) that the ALJ failed to obtain the treatment records from his treating pulmonologist and rheumatologist; (10) that the ALJ’s explanation regarding Mr. Stitely’s RFC was inadequate; (11) that the ALJ erroneously applied legal standard in assessing his credibility; (12) that the ALJ failed to consider material evidence in assessing his credibility; (13) that the ALJ failed to consider several required factors in assessing his credibility; and (14) that the ALJ erred in failing to consider the fact that he was unable to afford medical treatment. After careful consideration, I find that each of Mr. Stitely’s arguments is without merit. Because many of Mr. Stitely’s arguments overlap, I have combined their analysis where appropriate.

Mr. Stitely first claims that the ALJ’s conclusion that he would be off task 10% of the workday was not supported by substantial evidence, and that the ALJ should have instead determined that he would be off task 20% of the workday. Pl.’s Mem. 7–9. Specifically, Mr. Stitely argues that the ALJ failed to take into account the time he would be off task due to his frequent use of nebulizer treatments. Pl.’s Mem. 8. Mr. Stitely claims that he uses a nebulizer 4 to 10 times per day, for 10 to 15 minutes per treatment. Id. However, the treatment notes and testimony to which Mr. Stitely cites do not support the frequency with which he claims to use nebulizer treatments. See (Tr. 146 (4 times daily), 153 (4 times daily), 186 (no frequency specified), 240 (every 4 to 6 hours), 241 (no frequency specified), 394–95 (6 times daily)). Rather, the record indicates that Mr. Stitely requires a nebulizer treatment, at most, once every 4 hours, which, at 10 to 15 minutes each, would occupy 20 to 30 minutes (approximately 4% to 6%) of an 8 hour work day. Moreover, the ALJ specifically stated in the hypothetical that Mr. Stitely would be off task 10 percent of the day “because of his symptoms, particularly the ones related to his shortness of breath and coughing.” Presumably, Mr. Stitely’s use of nebulizer treatments is one of those symptoms. Thus, Mr. Stitely’s argument that the ALJ failed to take into account the time he would need to be off task due to those treatments is unpersuasive, as is his argument that they would occupy 20% of his work day. Mr. Stitely also claims that the ALJ failed to take into account his frequent absenteeism due to doctor’s appointments. Pl.’s Mem. 8. However, Mr. Stitely points to no evidence on the record indicating how often he would need to miss work for doctor’s appointments. Because Mr. Stitely bore the burden of proof regarding his functional limitations, it was not error for the ALJ to fail to speculate as to limitations for which Mr. Stitely offered no evidence. I thus find that the ALJ’s determination that Mr. Stitely would be off task 10 percent of the workday was supported by substantial evidence.

Mr. Stitely also repeatedly contends that because the jobs the VE testified Mr. Stitely was capable of performing were all sedentary jobs, he is accordingly limited to only sedentary work. Pl.’s Mem. 7–8, 29; Pl.’s Reply Mem. 4–5. He claims that the ALJ’s conclusion at Step Five that he could perform jobs existing in significant numbers in the national economy was therefore not supported by substantial evidence. Id. Mr. Stitely’s argument is without merit. A VE’s testimony provides examples of jobs in the national economy a claimant is capable of performing, which allows an ALJ to determine whether a claimant is disabled. The jobs identified by the VE are not necessarily the only jobs a claimant is capable of performing. Importantly, if a claimant can perform light work, pursuant to Social Security regulations, the claimant is also generally capable of performing sedentary work. 20 C.F.R. §§ 404.1567(b), 416.967(b). The conclusion that Mr. Stitely is not capable of performing light work thus does not follow from the fact that the VE identified only sedentary jobs in response to the ALJ’s hypothetical. Mr. Stitely has not identified any evidence undermining the ALJ’s conclusion that he is capable of the exertional requirements of a limited range of light work.

Mr. Stitely’s second, third, sixth, and eighth arguments raise similar claims pertaining to the ALJ’s evaluation of his hand, arm, and obesity impairments. Mr. Stitely raises two separate, repetitive arguments that the ALJ should have determined that his hand and arm impairments were severe at Step Two. Pl.’s Mot. 9–12, 20–23. Step Two of the disability evaluation process is a threshold determination of whether a claimant is suffering from a severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S. 137, 147–48 (1987) (upholding the severity threshold because, “if a claimant is unable to show that he has a medically severe impairment . . . there is no reason for the Secretary to consider the claimant’s age, education, and work experience”). If a claimant is not suffering from a “severe medically determinable physical or mental impairment that meets the durational requirement, ” he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Thus, in order for an impairment to satisfy Step Two, it must: (1) be severe-cause a significant limitation to the claimant’s ability to do basic work activities, (2) be medically determinable, and (3) meet the durational requirement-have lasted or be expected to last for 12 months. See Id . §§ 404.1521, 416.921, 404.1509, 416.909.

Mr. Stitely contends that the ALJ’s explanation for why his hand and arm impairments were non-severe was “conclusory.” However, Mr. Stitely does not point to any evidence on the record indicating that Mr. Stitely’s alleged hand and arm impairments caused any limitation in his ability to do work activities. Moreover, the ALJ indicated that he had reviewed the medical evidence and considered Mr. Stitely’s complaints, but he noted that Mr. Stitely’s symptoms were intermittent and that he exhibited good shoulder and elbow range of motion. (Tr. 17). It is arguably unclear whether the ALJ concluded Mr. Stitely’s hand and arm impairments did not satisfy Step Two because (1) they were not severe, (2) did not meet the durational requirement, or (3) both. (Tr. 17). Mr. Stitely contends that the ALJ thus improperly combined “three separate required findings into one.” Pl.’s Mem. 10, 24. However, Mr. Stitely misunderstands the requirements of Step Two. An impairment can fail to satisfy Step Two because it does not satisfy any one-or a combination-of its requirements. Even if the ALJ’s Step Two analysis of Mr. Stitely’s hand and arm impairments was unclear, in light of the fact that Mr. Stitely has not identified any evidence on the record indicating that his hand and arm impairments satisfied the severity requirement or the duration requirement, the ambiguity cannot be resolved in his favor. Accordingly, I find the ALJ’s conclusion that Mr. Stitely’s hand and arm impairments did not meet the requirements of Step Two was supported by substantial evidence, and that, in the alternative, any error is harmless.

Mr. Stitely also claims that the ALJ erred in finding his obesity to be non-severe at Step Two. Pl.’s Mot. 24–26. Social Security Regulation 02–1p[1] explains that

[o]besity is a severe impairment when, alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual’s physical or mental ability to do basic work activities . . . [t]here is no specific level of weight or BMI that equates with a ‘severe’ or ‘not severe’ impairment. Neither do descriptive terms for levels of obesity (e.g., ‘severe, ’ ‘extreme, ’ or ‘morbid’ obesity) establish whether obesity is or is not a severe impairment for disability program purposes. Rather [the ...

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