United States District Court, D. Maryland
December 23, 2015, Plaintiff Hombre Scott petitioned this
Court to review the Social Security Administration's
final decision to deny his claims for Supplemental Security
Income. (ECF No. 1). I have considered the parties'
cross-motions for summary judgment. (ECF Nos. 17, 18). 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 Plaintiffs motion, grant the Commissioner's motion,
and affirm the Commissioner's judgment pursuant to
sentence four of 42 U.S.C. § 405(g). This letter
explains my rationale.
Scott filed claim for Supplemental Security Income
("SSI") on June 13, 2012. (Tr. 61). He alleged a
disability onset date of April 11, 2012. Id. His
claim was denied initially and on reconsideration. (Tr.
95-100). A hearing was held on July 1, 2014, before an
Administrative Law Judge ("ALJ"). (Tr. 25-53).
Following the hearing, the ALJ determined that Mr. Scott was
not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 9-24). The Appeals
Council denied Mr. Scott's request for review, (Tr. 1-5),
so the ALJ's decision constitutes the final, reviewable
decision of the Agency.
found that Mr. Scott suffered from the severe impairments of
degenerative disc disease and neuropathy. (Tr. 14). Despite
these impairments, the ALJ determined that Mr. Scott retained
the residual functional capacity ("RFC") "to
perform light work as defined in 20 CFR 416.967(b) except no
climbing of ladders, ropes, or scaffolds; occasional climbing
of stairs or ramps; occasional stooping, crouching, crawling
or kneeling; and no exposure to hazards such as unprotected
heights." (Tr. 16). After considering the testimony of a
vocational expert ("VE"), the ALJ determined that
Mr. Scott could perform jobs existing in significant numbers
in the national economy and that, therefore, he was not
disabled. (Tr. 19-20).
Scott raises four primary arguments on appeal: (1) that the
ALJ erred by not finding Mr. Scott's "major
depression" to be a severe impairment; (2) that the ALJ
failed to determine that Mr. Scott met a Medical Listing; (3)
that the ALJ failed to make a function-by-function assessment
of mental RFC consistent with SSR 96-8p; and (4) that the ALJ
improperly weighed the opinion of Mr. Scott's treating
physician. PL's Mot. 21-22. Each argument lacks merit and
is addressed below.
Severe Impairment Issue
Scott argues that the ALJ erred by not determining that his
"major depression" constitutes a severe impairment.
PL's Mot. 12-13. An impairment is considered
"severe" if it significantly limits the
claimant's ability to work. See 20 C.F.R. §
404.1521(a). The claimant bears the burden of proving that
his impairment is severe. See Johnson v. Astrue,
2012 WL 203397, at *2 (D. Md. Jan. 23, 2012) (citing Pass
v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995)).
Here, the ALJ thoroughly considered Mr. Scott's
depression at step two. (Tr. 14-15). The ALJ noted that Mr.
Scott demonstrated no mental impairments in activities of
daily living, has had no episodes of decompensation, and
suffers only mild difficulties in the areas of social
functioning and concentration, persistence or pace. (Tr. 15).
The ALJ cited to evidence in the record to support her
conclusions regarding the paragraph B criteria. Id.
The ALJ also clearly stated the basis of her finding that Mr.
Scott's depression was non-severe - namely, because
"mild" limitations in two of the four functional
areas did not limit Mr. Scott's ability to work.
Id. Accordingly, the ALJ fairly concluded that the
impairment had no more than a de minimis effect on
Mr. Scott's ability to work. Id. Moreover, even
if the ALJ had erred in her evaluation of Mr. Scott's
depression at step two, such error would be harmless. Because
Mr. Scott made the threshold showing that his degenerative
disc disease and neuropathy constituted severe impairments,
the ALJ continued with the sequential evaluation process and
properly considered all of the impairments, both severe and
non-severe, that significantly impacted Mr. Scott's
ability to work. See 20 C.F.R. §§
404.1523, 416.923. Any step two error, then, does not
Medical Listing Issue
Scott suggests that the ALJ's medical listing analysis
violated the Fourth Circuit's mandate in Fox v.
Colvin, 632 Fed.App'x. 750 (4th Cir. 2015). PL's
Mot. 14-16. 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 "considers] 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 Fourth Circuit held that the ALJ's
medical listing analysis was deficient because it consisted
of conclusory statements and did not include "any
'specific application of the pertinent legal requirements
to the record evidence.'" Id. at 754
(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. Thus, Fox
requires that an ALJ provide express analysis, with factual
support, to conclude that a medical listing has not been met
at step three. The Fourth Circuit also rejected the notion
that failure to engage in meaningful analysis at step three
could constitute harmless error where the evidence of record
otherwise demonstrated that the claimant did not meet a
listing. Fox, 632 Fed.App'x. at 755.
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.
The Court noted that it could not conduct a meaningful review
"when there is nothing on which to base a review."
instant case, regarding her findings at step three of the
sequential evaluation, the ALJ stated, in relevant part:
Specifically, I have considered listing 1.04 related to
disorders of the spine or the spinal cord. The claimant's
medical evidence of record indicates that, despite the
presence of degenerative disc disease, the claimant does not
have evidence of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis present, and
therefore does not meet the criteria of this listing
(Tr. 15). Medical Listing 1.04 is defined as, "Disorders
of the spine ... resulting in compromise of a nerve root ...
or the spinal cord. With A. Evidence of nerve root
compression ... OR B. Spinal arachnoiditis ... OR C. Lumbar
spinal stenosis. 20 C.F.R. Part 404, Subpart P, Appendix 1,
Section 1.04. In order to meet a Medical Listing, "every
element of the listing must be satisfied."
Huntington v. Apfel, 101 F.Supp.2d 384, 391 (D. Md.
2000) (citing Sullivan v. Zebley, 493 U.S. 521, 531
(1990)). The ALJ's analysis of Medical Listing 1.04 does
not run afoul of Fox. The ALJ expressly considered
the listing's legal requirements of nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis,
applied these requirements to the record evidence, and
concluded that Mr. Scott had not supplied evidence satisfying
the criteria of this listing.
contrary to Mr. Scott's allegation that the ALJ
"failed to address the [June, 2014] MRI of Mr.
Scott's lumbar spine in Exhibits 15F and 19F, " the
ALJ both considered and cited to Exhibit 15F, which is an
exact duplicate of Exhibit 19F. PL's Mot. 14; (Tr. 17,
424, 435). Nor do Exhibits 15F and 19F contain any findings
that refute the ALJ's conclusion with respect to Listing
1.04. Mr. Scott's suggestion that the ALJ did not mention
the October, 2013 x-rays of his lumbar spine and thoracic
spine is also incorrect. PL's Mot. 14. The ALJ made
several references to the information contained at Exhibit
13F, including Mr. Scott's thoracic spine examination,
and noted its results were "within normal limits other
than questionable left-sided trachea compression." (Tr.
17, 393-422). Mr. Scott also posits that the ALJ failed to
discuss the opinion of Cynthia Corbin, CRNP, regarding
whether Mr. Scott met the criteria of Medical Listing 1.04A.
PL's Mot. 14. However, the ALJ expressly discusses this
point and ascribed little weight ...