United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
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
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).
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).
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].
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.
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
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
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.
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
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.
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