United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge.
October 29, 2015, Plaintiff Carlos Torres petitioned this
Court to review the Social Security Administration's
final decision to deny his claim for Disability Insurance
Benefits. (ECF No. 1). I have considered the parties'
cross-motions for summary judgment. (ECF Nos. 13, 14). 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. 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 both motions, reverse the Commissioner's decision in
part, and remand the case to the Commissioner for further
consideration. This letter explains my rationale.
Torres filed a claim for Disability Insurance Benefits
(“DIB”) on August 18, 2011. (Tr. 202). He alleged
a disability onset date of January 1, 1996. Id. His
claim was denied initially and on reconsideration. (Tr.
141-44, 148-49). A video hearing was held on December 16,
2013, before an Administrative Law Judge (“ALJ”).
(Tr. 97-125). Following the hearing, the ALJ determined that
Mr. Torres was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 79-90). The
Appeals Council denied Mr. Torres's request for review,
(Tr. 1-5), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Torres suffered from the severe impairments of
“myofascial pain dysfunction, tension headaches,
migraine headaches, right Temporaomandibular Joint Disorders
(TMJ) capsulitis, low back pain, and osteoarthritis of the
right TMJ.” (Tr. 84). Despite these impairments, the
ALJ determined that Mr. Torres retained the residual
functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) except he
could walk or stand 2 out of 8 hours and sit 6 out of 8
hours. He needed a cane for balance. He required a sit-stand
option with the option to get up every 15 to 30 minutes to
stretch without leaving the workplace. He needed to avoid
concentrated exposure to all lung irritants. He could only
occasionally climb ramps and stairs, but never ladders, ropes
or scaffolds. He could only occasionally bend and stoop, but
could never kneel, crouch, or crawl. He was limited to
simple, routine repetitive tasks one to three steps. He could
have only occasional social interaction with others, and no
jobs involving confrontation or negotiation or interacting
with large numbers of the public.
(Tr. 85-86). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Torres
could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled.
Torres raises three arguments on appeal: (1) that the ALJ
failed to properly evaluate his impairments at step three of
the sequential evaluation process; (2) that the ALJ
erroneously assessed his RFC; and (3) that the ALJ failed to
properly develop the administrative record. Each argument is
addressed below. In addition to Mr. Torres's arguments, I
have also reviewed the ALJ's assessment of Mr.
Torres's neurogenic bladder at step two and find that
remand is warranted. In remanding for additional explanation,
I express no opinion as to whether the ALJ's ultimate
conclusion that Mr. Carroll is not entitled to benefits is
correct or incorrect.
the Fourth Circuit's holdings in Fox v. Colvin,
652 F. App'x 750 (4th Cir. 2015) (per curiam),
and Radford v. Colvin, 734 F.3d 288, 292 (4th Cir.
2013), Mr. Torres first asserts that the ALJ's step three
analysis warrants remand because the ALJ failed to
“reference any Impairment Listing, or . . . compare any
of the medical evidence to any criteria of any Listing,
” and thus “failed to provide any meaningful
discussion which applied findings to the Listing of
Impairments.” Pl. Mem. at 5. In Fox, the
Fourth Circuit clarified the evidentiary requirements needed
to support an ALJ's finding at step three of the
sequential evaluation. Step three requires the ALJ to
determine whether a claimant's impairments meet or
medically equal any of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. Listings
describe each of the major body system impairments that the
Agency “consider[s] to be severe enough to prevent an
individual from doing any gainful activity, regardless of his
or her age, education, or work experience.” 20 C.F.R.
§§ 404.1525(a). In Fox, the ALJ's
listing analysis stated:
Although the claimant has ‘severe' impairments,
they do not meet the criteria of any listed impairments
described in Appendix 1 of the Regulations. (20 CFR, Subpart
P, Appendix 1). No treating or examining physician
has mentioned findings equivalent in severity to the criteria
of any listed impairment, nor does the evidence show medical
findings that are equivalent to those of any listed
impairment of the Listing of Impairments. In reaching this
conclusion, the undersigned has considered, in particular,
sections 9.00(B)(5) and 11.14.
2015 WL 9204287, at *4.
Fourth Circuit held that the ALJ's analysis was deficient
in Fox because it consisted of conclusory statements
and did not include “any ‘specific application of
the pertinent legal requirements to the record
evidence.'” Id. (quoting Radford v.
Colvin, 734 F.3d 288, 291-92 (4th Cir. 2013)). That is,
the ALJ did not apply any findings or medical evidence to the
identified disability listings and “offered nothing to
reveal why he was making his decision.”
Radford, 734 F.3d at 295 (emphasis in original). The
Fourth Circuit also rejected the notion that failure to
engage in meaningful analysis at step three could constitute
harmless error, even where the evidence of record otherwise
demonstrated that the claimant did not meet a listing.
Fox, 2015 WL 9204287, at *4. Rather, the
Fox Court emphasized that it is not this Court's
role to “engage[ ] in an analysis that the ALJ should
have done in the first instance, ” or “to
speculate as to how the ALJ applied the law to its findings
or to hypothesize the ALJ's justifications that would
perhaps find support in the record.” Id. at
*4-*5. The Court noted that it could not conduct a meaningful
review “when there is nothing on which to base a
review.” Id. at *4.
instant case is distinguishable. As this Court has noted,
under existing Fourth Circuit law, an ALJ only has to
identify a listing and compare the evidence to the listing
requirements where there is ample evidence to suggest that
the listing is met. See Sterrette v. Comm'r, Soc.
Sec. Admin., 2016 WL 953225, at *2 (D. Md. Mar. 11,
2016) (citing Huntington v. Apfel, 101 F.Supp.2d
384, 390 (D. Md. 2000)) (citing Cook v. Heckler, 783
F.2d 1168, 1172 (4th Cir. 1986)); see also Ketcher v.
Apfel, 68 F.Supp.2d 629, 645 (D. Md. 1999 (noting that
the “duty of identification of relevant listed
impairments and comparison of symptoms to Listing criteria is
only triggered if there is ample evidence in the record to
support a determination that the claimant's impairment
meets or equals one of the listed impairments”). While
Fox provided a new standard for the analysis that
must be present after a listing has been identified, it did
not alter existing law with respect to the criteria for
identifying a listing in the first instance. Here, the record
does not contain ample evidence to suggest that any listing
has been met. Indeed, Mr. Torres fails to cite record
evidence to argue otherwise. Similarly absent from his motion
is any suggestion of which listings should have been
discussed, or any assertion that he met their criteria. Thus,
the ALJ's step three analysis was proper, and remand on
this basis is not warranted.
Mr. Torres argues that the ALJ erroneously assessed his RFC.
Pl. Mem. at 7. Specifically, he contends that the ALJ failed
to “set forth a narrative discussion” explaining
her conclusions with “specific medical facts and
nonmedical evidence.” Id. at 8; SSR 96-8p,
1996 WL 374184, at *7. Critically, SSR 96-8P requires an ALJ
to consider the record on a function-by-function basis, but
“does not require [her] to produce such a detailed
statement in writing.” Taylor v. Astrue, 2012
WL 294532, at *6 (D. Md. Jan. 31, 2012). Instead, an RFC
assessment is adequate if it includes “a narrative
discussion of [the] claimant's symptoms and medical
source opinions.” Id. (quoting Thomas v.
Comm'r, Soc. Sec., 2011 WL 6130605, at *4 (D. Md.
Dec. 7, 2011) (alterations in original).
with the exception of her failure to discuss Mr. Torres's
neurogenic bladder, addressed below, I find that the
ALJ's RFC analysis was sufficient. Specifically, the ALJ
noted Mr. Torres's testimony regarding his physical
symptoms, including his “back pain, migraines, and
problems with fainting, ” as well as his past records
of “jaw pain and a diagnosis of disequilibrium.”
(Tr. 86-87). The ALJ also examined records documenting Mr.
Torres's mental impairments, including his major
depression and posttraumatic stress syndrome. Id.
However, the ALJ cited substantial support from the clinical
record and medical opinion evidence that belied the nature
and severity of Mr. Torres's limitations. Most
significantly, the ALJ noted that “[Mr. Torres's]
myofascial pain was stable” with medication, and that
his physical examinations revealed adequate strength in his
lower extremities “and normal posture.”
Id. In addition, the ALJ acknowledged Mr.
Torres's reports of his ongoing difficulty with sleeping,
nightmares, and paranoia, but also assessed a GAF score of
55, “which is consistent with only moderate
symptoms or moderate difficulties in social, occupational, or
school functioning.” (Tr. 88) (emphasis in original).
Moreover, the ALJ noted that Mr. Torres's asthma severity
level was “consistent with mild paroxysms of
asthmatic type breathing . . . occurring several times a year
with no clinical findings between attacks.” (Tr. 87)
(emphasis in original). Regarding Mr. Torres's mental
limitations, the ALJ noted that during medical visits Mr.
Torres “did not seem to be severely depressed, ”
and also that his treatment records show on multiple
occasions that “[his] depression was stable.”
Id. The ALJ also considered evidence of Mr.
Torres's posttraumatic stress syndrome, including the
medical opinion evidence of Mr. Torres's examining
psychiatrist, but found that the record failed to “show
a diagnosis of PTSD prior to the date last insured.”
Id. Indeed, the ALJ noted that Mr. Torres's
psychiatrist, Dr. Peebles, reported that Mr. Torres was
performing all activities of daily living, (Tr. 736), and was
“able to exercise and lose weight, ” (Tr. 701).
Importantly, my review of the ALJ's decision is confined