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Bevan v. Commissioner, Social Security

United States District Court, D. Maryland

July 1, 2016

WILLIAM BEVAN
v.
COMMISSIONER, SOCIAL SECURITY

          REPORT AND RECOMMENDATIONS

          STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.

         Pursuant to Standing Order 2014-01, the above-referenced case has been referred to me for review of 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 both parties' filings, which include Mr. Bevan's motion for summary judgment (attaching a letter his prior attorney wrote to the Appeals Council addressing issues in his case), the Commissioner's motion for summary judgment, and Mr. Bevan's opposition. [ECF Nos. 17, 21, 25]. This Court must uphold the Commissioner's decision if it is supported by substantial evidence and if proper legal standards were employed. 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). I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2014). For the reasons set forth below, I recommend that the Commissioner's motion be granted.

         Mr. Bevan protectively filed his application for Disability Insurance Benefits ("DIB") on June 9, 2011, alleging a disability onset date of July 2, 2010. (Tr. 161-63). His application was denied initially and on reconsideration. (Tr. 86-89, 97-98). After a hearing on January 22, 2014, an Administrative Law Judge ("ALJ") issued an opinion awarding benefits as of May 25, 2011, but denying benefits prior to that date. (Tr. 18-37, 38-59). Mr. Bevan appealed the decision, alleging that benefits should have been awarded beginning July 2, 2010. (Tr. 14). The Appeals Council denied review, making the ALJ's decision the final, reviewable decision of the Agency. (Tr. 1-6).

         In relevant part, the ALJ found that, before May 25, 2011, Mr. Bevan suffered from the severe impairments of obesity, cervical degenerative disc disease, cervicalgia, cervical disc displacement without myelopathy, C4-5 and C6-7 disc herniations with foraminal stenosis, and lumbar degenerative disc disease with radiculopathy, facet arthropathy, and disc desiccation. (Tr. 24). Despite these impairments, the ALJ determined that, prior to May 25, 2011, Mr. Bevan retained the residual functional capacity ("RFC") to

perform light work as defined in 20 CFR 404.1567(b) except: the claimant can occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk about 6 hours in an 8-hour workday; sit for a total of about 6 hours in an 8-hour workday; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; he must avoid even moderate exposure to hazards; he requires the ability to alternate between sitting and standing at will; and he requires the use of a cane while walking.

(Tr. 26). The ALJ further determined that Mr. Bevan was not capable of performing his past relevant work as a computer technician, but that he had readily transferable skills to light work which would allow him to perform the jobs of computer operator, computer systems manager, and information systems. (Tr. 31). Alternatively, the ALJ found that Mr. Bevan could perform other jobs existing in the national economy. (Tr. 31-32). Accordingly, the ALJ concluded that Mr. Bevan was not disabled until May 25, 2011. (Tr. 32).

         Because Mr. Bevan appears pro se, I have carefully reviewed the ALJ's opinion and the entire record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review of a pro se action challenging an adverse administrative decision, including: (1) examining whether the Commissioner's decision generally comports with regulations, (2) reviewing the ALJ's critical findings for compliance with the law, and (3) determining from the evidentiary record whether substantial evidence supports the ALJ's findings). I have particularly considered the arguments Mr. Bevan raised in his filings, which include the letter brief that his former counsel submitted to the Appeals Council on his behalf. [ECF Nos. 17, 25].[1]

         The function of this Court is not to review Mr. Bevan's claims de novo or to reweigh the evidence of record. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) (citing 42 U.S.C. § 405(g) and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather, this Court is to determine whether, upon review of the whole record, the Commissioner's decision is supported by substantial evidence and a proper application of the law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Coffman, 829 F.2d at 517; see also 42 U.S.C. § 405(g). While there may be substantial evidence in the record that would support a finding of disability, in addition to substantial evidence refuting such a finding, this Court should not disturb the ALJ's conclusion so long as it is one of the conclusions supported by substantial evidence. For the reasons described below, substantial evidence supports the ALJ's decision.

         The ALJ proceeded in accordance with applicable law at all five steps of the sequential evaluation. The ALJ ruled in Mr. Bevan's favor at step one, and determined that he did not engage in substantial gainful activity after his alleged onset date of July 2, 2010. (Tr. 24); see 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ considered the severity of each of the impairments that Mr. Bevan claimed prevented him from working. See 20 C.F.R. § 404.1520(a)(4)(ii). As noted above, the ALJ concluded that several of Mr. Bevan's alleged impairments were severe. (Tr. 24-26). The ALJ further determined that Mr. Bevan's diabetes, sleep apnea, and hypertension were non-severe prior to May 25, 2011, although they became severe on and after that date. (Tr. 25). The ALJ also found attention deficit disorder, restless leg syndrome, a staph infection, hyperlipidemia, erectile dysfunction, hypogonadism, wrist pain, and chronic pain disorder to be non-severe. (Tr. 25-26). The ALJ appropriately considered all of Mr. Bevan's impairments, both severe and non-severe, in the RFC assessment.

         At step three, the ALJ determined that, prior to May 25, 2011, Mr. Bevan's impairments did not meet the specific requirements of, or medically equal the criteria of, any listings. (Tr. 26). The ALJ specifically identified Listing 1.04 (disorders of the spine), and cited to record evidence to support his conclusions that Mr. Bevan did not meet at least one of the criteria for each subsection of that listing. Id.

         In considering Mr. Bevan's RFC assessment prior to May 25, 2011, the ALJ summarized his subjective complaints of disabling back and neck pain, in the context of his activities of daily living and medical records during that time frame. (Tr. 27-29). The ALJ determined that Mr. Bevan's subjective complaints were not entirely credible. (Tr. 27). The ALJ acknowledged that Mr. Bevan's strong work history bolstered his credibility, but noted that he had not tried and failed lighter work. (Tr. 27). The ALJ also noted that the record was replete with indications that conservative treatment measures had been helpful for Mr. Bevan and that he repeatedly considered returning to work prior to May 25, 2011. Id. The ALJ also cited the fact that medical records, prior to May 25, 2011, note activities such as international travel, exercise, and participation in recreational activities. (Tr. 28-29); see, e.g. (Tr. 342) (Mr. Bevan reporting on March 23, 2011 that he "has been out of the country again and this has limited further treatment."). The ALJ thus provided a thorough credibility analysis, explaining his reasons for discounting Mr. Bevan's complaints of disability prior to May 25, 2011.

         It is further worth noting that the record provides an evidentiary basis for the selection of May 25, 2011 as the onset date. Mr. Bevan saw his treating nurse practitioner, Kathleen Prussian, on that date, and reported increased neck and back pain after an unspecified "fall." (Tr. 333-34). Mr. Bevan noted that he is "unable to work, perform household chores, shop, socialize, participate in recreational activities and exercise, " Id., which was a change from earlier reports in which he reported being "able to go to work." See, e.g., (Tr. 337, 339, 341). Nurse Prussian also noted, for the first time on May 25, 2011, that Mr. Bevan suffered from "lower extremity edema which appears to be venous stasis." Id. Thus, the ALJ chose a date on which the record evidenced a marked change in Mr. Bevan's medical condition.

         In assessing Mr. Bevan's RFC, prior to May 25, 2011, the ALJ considered all of the opinion evidence in the record, providing substantial evidence in support of the weight he accorded each opinion. The ALJ assigned "little weight" to the opinion of the physical therapist who completed a functional capacity examination in November, 2011, since the report noted "sub-maximal effort, inconsistent behaviors, and out of proportion complaints." (Tr. 29). The ALJ also assigned "little weight" to the October, 2013 opinion rendered by Dr. Glenn Babus, Mr. Bevan's pain management provider, who stated that Mr. Bevan was totally disabled "at this time." (Tr. 29). The ALJ did not err in assigning little weight to that opinion as it pertained to the period prior to May 25, 2011, since the opinion makes no reference to the duration of the disability. The ALJ also assigned "great weight" to the consultative examiner who saw Mr. Bevan in May, 2012 and to the opinions of the State agency medical consultants. (Tr. 29). The ALJ's RFC assessment essentially mirrored the opinions of those physicians, although the ALJ also credited Mr. Bevan's testimony that he required use of a cane during that time frame. Id.

         Ultimately, my review of the ALJ's decision is confined to whether substantial evidence, in the record as it was reviewed by the ALJ, supports the decision and whether correct legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 404 (1971). Even if there is other evidence that may support Mr. Bevan's position, I am not permitted to reweigh the evidence or to substitute my own judgment for that of the ALJ. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Although some of the opinion evidence supporting disability came from Mr. Bevan's treating sources, the ALJ provided a thorough explanation of the reasons for assigning those opinions lesser weight. Moreover, while State agency physicians submitted their opinions before the entire record was complete, the timing does not diminish the value of those opinions, since they were submitted after the date in question in this appeal, May 25, 2011, and reflected a full consideration of all records in existence prior to that date. After reviewing the entire record, I find that the ALJ's RFC ...


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