United States District Court, D. Maryland
WILLIAM M. KRAUSE, JR.
COMMISSIONER, SOCIAL SECURITY
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
to Standing 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered
the parties' cross-motions for summary judgment and Mr.
Krause's reply. [ECF Nos. 25, 26, 27]. I find that no
hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). This Court must uphold the decision of the Agency if
it is supported by substantial evidence and if the Agency
employed proper legal standards. 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). For the reasons set forth below, I
recommend that both motions be denied, that the
Commissioner's decision be reversed in part pursuant to
sentence four, and that the case be remanded to the
Commissioner for further proceedings in accordance with this
Report and Recommendations.
Krause filed his application for Disability Insurance
Benefits (“DIB”) in November, 2014, alleging a
disability onset date of September 15, 2014. (Tr. 184-99). His
application was denied initially and on reconsideration. (Tr.
92-102, 104-13). An Administrative Law Judge
(“ALJ”) held a hearing on October 31, 2015, at
which Mr. Krause testified and was represented by counsel.
(Tr. 68-91). Following the hearing, the ALJ determined that
Mr. Krause was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 51-67). The
Appeals Council (“AC”) denied Mr. Krause's
request for review, (Tr. 2-8), so the ALJ's decision
constitutes the final, reviewable decision of the Agency.
found that Mr. Krause suffered from the severe impairments of
“coronary artery disease, history of myocardial
infarction, diabetes mellitus with neuropathy, and
obesity.” (Tr. 56). Despite this impairment, the ALJ
determined that Mr. Krause retained the residual functional
capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a). The
claimant is able to climb ramps, stairs, ladders, ropes, or
scaffolds occasionally. The claimant is able to balance,
stoop, kneel, crouch, and crawl occasionally. The claimant is
able to perform frequent handling and fingering bilaterally.
The claimant should avoid concentrated exposure to extreme
cold, extreme heat, wetness, humidity, vibration, irritants
such as fumes, odors, dust, gases, and poorly ventilated
areas, and the operational control of moving machinery and
57). After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Mr. Krause could
perform work existing in significant numbers in the national
economy and that, therefore, he was not disabled. (Tr.
Krause raises four primary arguments on appeal: (1) that the
ALJ failed to find Mr. Krause's alleged major depression
to be a severe impairment; (2) that the ALJ lacked sufficient
evidence to support his RFC assessment; (3) that the ALJ
failed to properly evaluate Mr. Krause's credibility; and
(4) that the AC erroneously declined to remand the case for
new and material evidence. I agree that the ALJ failed to
evaluate Mr. Krause's depression at Step Two.
Accordingly, I recommend remand for additional explanation.
In so recommending, I express no opinion as to whether the
ALJ's ultimate conclusion that Mr. Krause is not entitled
to benefits is correct or incorrect.
Mr. Krause contends that the ALJ failed to consider his
“major depression” at Step Two. Pl. Mot. 10-12.
An ALJ is required to discuss each diagnosis that is
supported by objective medical evidence in the claimant's
record. See Boston v. Barnhart, 332 F.Supp.2d 879,
885 (D. Md. 2004); Albert v. Astrue, 2011 WL
3417109, at *2 (D. Md. July 29, 2011). In this case, on
December 19, 2012, a consultative psychologist, Dr. David
O'Connell, diagnosed Mr. Krause with major depressive
disorder. (Tr. 405-06). Notably, Dr. O'Connell noted that
Mr. Krause reported ongoing suicidal thoughts, (Tr. 406),
observed that Mr. Krause's affect was appropriate to
ideation with constricted range, (Tr. 405), and assigned Mr.
Krause a GAF score of 35, (Tr. 406). However, the ALJ did not
evaluate Mr. Krause's mental diagnosis at Step Two. This
Court has held that an ALJ's failure to consider the
severity of a diagnosis at Step Two is harmless where the ALJ
corrects his or her error by “fully consider[ing] the
impact” of the neglected evidence when determining the
claimant's RFC. See Burroughs v. Comm'r,
Soc. Sec. Admin., 2015 WL 540719, at *1 (D. Md. Feb. 9,
2015). However, the ALJ did not consider the impact of Mr.
Krause's mental issues anywhere in his RFC assessment.
The ALJ is required to consider all of a claimant's
impairments, both severe and non-severe, in assessing the
claimant's RFC. See 20 C.F.R. §
404.1545(a)(2). The ALJ did not address Mr. Krause's
alleged mental impairments, either to make credibility
findings regarding those allegations or to make any reference
to the medical records from Dr. O'Connell. Accordingly,
the ALJ entirely failed to consider Mr. Krause's mental
diagnosis, and remand is required as a result. See Copes
v. Comm'r, Soc. Sec. Admin., Civ.
No. SAG-14-3010, 2015 WL 9412521, at *2 (D. Md. Dec. 21,
to the unsuccessful arguments, Mr. Krause next argues that
the ALJ erred in his RFC assessment. Pl. Mot. 12-15.
Specifically, Mr. Krause contends that the ALJ improperly
determined that he was able to perform sedentary
work. Id. Contrary to Mr. Krause's
assertion, the ALJ properly determined that Mr. Krause was
able to perform sedentary work, and supported his conclusions
with substantial evidence. Most significantly, the ALJ noted
that “[Mr. Krause's] allegations regarding the
limiting effects of his alleged conditions are not fully
credible.” (Tr. 60). For example, the ALJ noted that
Mr. Krause was “able to lift twenty pounds frequently
and carry twenty pounds occasionally, ” (Tr. 59), was
able to “perform everyday activities, ” (Tr. 60),
and had “normal” reflexes and “5/5 strength
in his upper and lower extremities, ” id. The
ALJ also noted Dr. Cotton's determination that
“[Mr. Krause's] angina appears stable, ” that
“[his] extremities were without clubbing, cyanosis, or
edema, ” and that he “was in no acute
distress.” (Tr. 59). Moreover, the ALJ cited Dr.
Boatwright's finding that Mr. Krause could “climb
stairs and ramps, balance, stoop, and crouch occasionally,
” and “operate a motor vehicle, ” (Tr. 59).
Accordingly, the ALJ found that “[w]hile [Mr.
Krause's] cardiac symptoms and diabetic neuropathy limit
his ability to stand and walk during a workday, the medical
evidence of record and his activities of daily living
indicate that he is able to perform work at the sedentary
exertional level.” (Tr. 60). Regardless, Mr. Krause
points this Court to other records, including those from Dr.
Boatwright, which he believes corroborate his allegations
regarding his impairments. However, even in light of that
other evidence, this Court's role is not to reweigh the
evidence or to substitute its judgment for that of the ALJ,
but simply to adjudicate whether the ALJ's decision was
supported by substantial evidence. See Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In light
of that standard and the substantial evidence the ALJ cited
in support of his assessment, the RFC assessment provides no
basis for remand.
Mr. Krause argues that the ALJ failed to properly evaluate
his credibility. Pl. Mot. 17-21. Specifically, Mr. Krause
contends that the ALJ failed to properly evaluate the
severity of his subjective complaints regarding his pain.
Id. Social Security regulations provide a two-step
framework for considering subjective complaints. First, the
ALJ determines whether “medical signs or laboratory
findings show that a medically determinable impairment(s) is
present.” 20 C.F.R. §§ 404.1529(b),
416.929(b). The ALJ then evaluates the intensity and
persistence of the claimant's symptoms by considering the
record of evidence in its entirety. Id. at
§§ 404.1529(c), 416.929(c). In doing so, the ALJ
considers the objective medical evidence, as well as other
evidence including the claimant's daily activities, the
frequency and intensity of pain and other symptoms,
precipitating and aggravating factors, the effectiveness of
medication and other treatment methods, and other factors
regarding functional limitations or restrictions due to pain
or other symptoms. Id.
the ALJ properly evaluated Mr. Krause's subjective
complaints. Specifically, the ALJ cited Mr. Krause's
hearing testimony, and noted Mr. Krause's allegations of
disabling pain, including his “difficulty walking with
pain in his feet due to neuropathy.” (Tr. 58) (citing
(Tr. 68-91)). The ALJ also cited Mr. Krause's Adult
Function Reports, and noted Mr. Krause's
“difficulty squatting, bending, standing, reaching,
kneeling, concentrating, and completing tasks.”
Id. (citing (Tr. 293-301)). However, the ALJ cited
multiple medical records to support his conclusion that
“[Mr. Krause's] allegations regarding the limiting
effects of his alleged conditions are not fully
credible.” (Tr. 60). Specifically, the ALJ noted that
“[Mr. Krause] presented with a normal gait, ” and
exhibited “5/5 strength in his upper and lower
extremities.” (Tr. 58). The ALJ also noted that Mr.
Krause was “able to lift and carry ten pounds
frequently, ” “climb stairs and ramps, balance,
stoop, and crouch occasionally, ” and “operate a
motor vehicle.” (Tr. 59). Moreover, the ALJ noted Mr.
Krause's testimony that “he was unable to exert
himself at high levels due to angina but is able to perform
everyday activities, ” and noted Mr. Krause's
ability to care for his “personal care needs, walk his
dog, clean, drive, and grocery shop.” (Tr. 60) (citing
(Tr. 293-301, 803-04)). While Mr. Krause correctly notes that
his ability to perform these activities is not determinative
of his ability to sustain work in an 8-hour workday, the ALJ
properly considered them in the evaluation of Mr.
Krause's credibility. Accordingly, the ALJ found that Mr.
Krause's allegations were not fully credible. While Mr.
Krause disagrees with the ALJ's finding, it is clear that
the ALJ reviewed all of the evidence of record in weighing
Mr. Krause's credibility and addressed the evidence
pursuant to the applicable Social Security regulations.
Mr. Krause argues that the AC erroneously declined to remand
the case for new and material evidence. Pl. Mot. 8-9.
Specifically, Mr. Krause contends that the AC failed to
consider hospitalization records from December 2015
documenting Mr. Krause's “suicide attempt from
acute Tylenol overdose.” Id. The AC is
required to consider additional evidence submitted by a
claimant only where it is (1) new, (2) material, and (3)
relates to the period on or before the date of the ALJ
hearing decision. 20 C.F.R. §§ 404.970(b);
416.1470(b). Evidence is new where “it is not
duplicative or cumulative[, ]” and is material where
there is “a reasonable possibility that the new
evidence would have changed the outcome.” Meyer v.
Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (quoting
Wilkins v. Sec'y, Dep't of
Health & Human Servs., 953 F.2d 93, 96 (4th Cir.
1991) (en banc)). Moreover, “[m]aterial evidence is
evidence that relates to the claimant's condition for the
time period for which benefits were denied, and not to
after-acquired conditions or post-decision deterioration of a
pre-existing condition.” Eidoen v. Apfel, 221
F.3d 1342 (8th Cir. 2000). “[T]he regulatory scheme
does not require the [AC] to do anything more
than…‘consider new and material
evidence…in deciding whether to grant
review.'” Meyer v. Astrue, 662 F.3d 700,
706 (4th Cir. 2011). The AC is not required to take any
specific action in response to new and material evidence, and
is not required to provide a detailed explanation of its
evaluation where it denies review. Id. In this case,
Mr. Krause concedes that he submitted evidence that was dated
after the date of the ALJ's decision. Pl. Mot. 9. Indeed,
the AC decision specified that it had considered the
hospitalization records, in addition to the other new records
submitted at the appellate level, but concluded that the
additional evidence was “about a later time” and
“[t]herefore, it [did] not affect the decision about
whether [he] [was] disabled[.]” (Tr. 3). Accordingly,
the AC fulfilled its legal obligation to consider the
evidence in deciding whether to grant review. Presumably,
however, the evidence of the 2015 hospitalization will be
considered along with Mr. Krause's other mental health
records on remand.
reasons set forth above, I ...