United States District Court, D. Maryland
5, 2016, Plaintiff Cheryl Bell petitioned this Court to
review the Social Security Administration's final
decision to deny her claim for Supplemental Security Income
(“SSI”). (ECF No. 1). I have considered the
parties' cross-motions for summary judgment. (ECF Nos.
16, 19). 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 Plaintiff's motion,
grant the Commissioner's motion, and affirm the
Commissioner's decision. This letter explains my
Bell filed her claim for SSI on February 17, 2012, alleging
that she became disabled on June 1, 1988. (Tr. 185). Ms. Bell
later amended her disability onset date to February 17, 2012.
(Tr. 204). Her claim was denied initially and on
reconsideration. (Tr. 113-116, 124-125). A hearing was held
on April 24, 2014, before an Administrative Law Judge
(“ALJ”). (Tr. 59-92). Following the hearing, on
July 11, 2014, the ALJ determined that Ms. Bell was not
disabled within the meaning of the Social Security Act during
the relevant time frame. (Tr. 18-35). On September 8, 2014,
Ms. Bell filed a request for review of the decision with the
Appeals Council (“AC”). (Tr. 271-272). The
request for review was denied. (Tr. 9-15). On March 10, 2016,
Ms. Bell again filed a request for review with the AC
following the purported receipt of an unfavorable ALJ
decision dated “January 14, 2016.” (Tr. 274-275);
see Pl.'s Mot. Ex. A. The AC attributed the
“January 14, 2016” decision to “a clerical
error, which occurred with the request for review[, ]”
confirmed “July 11, 2014” as the correct date of
the ALJ's final decision, and again denied Ms. Bell's
request for review. (Tr. 2-8). Thus, the ALJ's July 11,
2014 decision constitutes the final, reviewable decision of
found that Ms. Bell suffered from the severe impairments of
degenerative disc disease, neuropathy, HIV, diabetes, and
hypertension. (Tr. 23). Despite these impairments, the ALJ
determined that Ms. Bell 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; no
exposure to hazards such as unprotected heights.” (Tr.
24). After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Ms. Bell could
perform jobs existing in significant numbers in the national
economy, and that, therefore, she was not disabled. (Tr. 27).
Bell makes four arguments on appeal. First, Ms. Bell argues
that the ALJ's “January 14, 2016” decision
mandates a finding of disability under Medical Vocational
Grid Rule (“Grid Rule”) 202.01 as of March 10,
2015 - the date that Ms. Bell turned 55 years old. Pl.'s
Mot. 8. Second, Ms. Bell argues that testimony provided by
the VE was unsworn and therefore, under Federal Rule of
Evidence 603, fails to amount to the substantial evidence
necessary to support a denial at step 5 of the sequential
evaluation. Id. at 8-9. Third, Ms. Bell
argues that the ALJ erroneously disregarded the opinions of
treating physicians in favor of a non-treating consultative
examiner. Id. at 10. Fourth, Ms. Bell argues that
the ALJ's RFC assessment runs afoul of SSR 96-8p and
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015).
Id. at 12-14. These arguments lack merit and are
Bell argues that she met all requirements of Grid Rule 202.01
prior to the ALJ's “January 14, 2016”
decision and is therefore entitled to disability benefits
“since at least March 10, 2015, the date Ms. Bell
became of advanced age.” Pl.'s Mot. 8. Grid Rule
202.01 requires that the claimant be limited to light work;
be 55 years of age or older (“advanced age”);
have no more than a limited educational background; and have
either no past relevant work experience or past relevant work
experience limited to unskilled work. 20 C.F.R. Part 404,
Subpart P, Appendix 2. The ALJ found that Ms. Bell is limited
to light work, has a limited education, and has no past
relevant work. (Tr. 26). The ALJ further found that Ms. Bell
was born on March 10, 1960, was 51 years old on the date that
she applied for SSI, and was “closely approaching
advanced age.” Id. Ms. Bell essentially
maintains that the ALJ's age category determination is
wrong; she should have been deemed “advanced age,
” rather than “closely approaching advanced
age.” See Pl.'s Mot. 2, 8. Whether Ms.
Bell satisfied the advanced age requirement of Grid Rule
202.01 depends on her age prior to the ALJ's final
decision. See 20 C.F.R. § 404.1563(b). Although
Ms. Bell claims that the ALJ “issued … a second
unfavorable decision” on January 14, 2016, the Court
adopts the AC's explanation that a “clerical
error” arising from Ms. Bell's request for review
generated “[a]n additional, duplicate copy of the
[ALJ's] decision … in the records, but with an
incorrect date on it.” (Tr. 7). Indeed, a side-by-side
comparison reveals that the July 11, 2014 decision and the
“January 14, 2016” decision are identical, except
for the date. See (Tr. 18-28); Pl.'s Mot. at Ex.
A. Thus, the AC concluded, and this Court finds, the
ALJ's final decision “is dated correctly as July
11, 2014.” Id. Consequently, Ms. Bell was 54
years old, and not yet advanced age, on the date of the
ALJ's final decision.
while chronological age based on date of birth determines a
claimant's age category for Grid purposes, age categories
should not be applied “mechanically in a borderline
situation.” 20 C.F.R. § 404.1563(b). “If [a
claimant is] within a few days to a few months of reaching an
older age category, and using the older age category would
result in a determination or decision that [the claimant is]
disabled, [an ALJ] will consider whether to use the older age
category after evaluating the overall impact of all the
factors of [the claimant's] case. Id. Here, Ms.
Bell was eight months shy of advanced age when the ALJ issued
the final decision in this case, see (Tr. 18, 26),
and does not present a “borderline situation.”
See, e.g., Flamer v. Comm'r Social Sec. Admin.,
2015 WL 2345543 at *3 (D. Md. May 14, 2015) (denying appeal
where claimant was “a full year” away from an
older age category); Handley v. Colvin, 2014 WL
4467822 at *9 (D. Md. Sept. 8, 2014) (denying appeal where
claimant was less than six months away from an older age
category despite concluding that “[t]he borderline
range falls somewhere around six months from the older age
category.”) (citations omitted); France v.
Apfel, 87 F.Supp.2d 484, 492 (D. Md. 2000) (granting
remand where claimant was five months away from older age
category). Accordingly, the ALJ did not err by placing Ms.
Bell in the “closely approaching advanced age, ”
rather than “advanced age, ” category.
Unsworn VE Testimony
Bell maintains that the ALJ did not base her decision at step
5 of the sequential evaluation on substantial evidence
because the ALJ relied upon unsworn VE testimony, in
contravention of Federal Rule of Evidence 603. Pl.'s Mot.
8-9. Contrary to Ms. Bell's claim, the record clearly
reflects that the VE was “duly sworn” by the ALJ
prior to offering testimony in this case. (Tr. 84). Any doubt
as to the sufficiency of the VE's affirmation to testify
truthfully should end there. In addition, the ALJ “may
receive any evidence at the hearing that he or she believes
is material to the issues, even though the evidence would not
be admissible in court under the rules of evidence used by
the court.” 20 C.F.R. § 416.1450(e). See,
e.g., Richardson v. Perales, 402 U.S. 389 (permitting
admission of unsworn medical reports in spite of their
hearsay character and the absence of cross-examination).
Thus, absence of a VE's oath in the record would not
render the affected testimony inadmissible for purposes of an
SSA administrative hearing.
Medical Opinion Evidence
Bell also argues that the ALJ favored the opinion of a
non-treating, non-examining consultant over the opinions of
Ms. Bell's treating physicians. Pl.'s Mot. 9-12. A
treating physician's opinion is given controlling weight
when two conditions are met: 1) it is well-supported by
medically acceptable clinical laboratory diagnostic
techniques; and 2) it is consistent with other substantial
evidence in the record. See Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996); see also 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2). However, where a
treating source's opinion is not supported by clinical
evidence or is inconsistent with other substantial evidence,
it should be accorded significantly less weight.
Craig, 76 F.3d at 590. If the ALJ does not give a
treating source's opinion controlling weight, the ALJ
will assign weight after applying several factors, such as,
the length and nature of the treatment relationship, the
degree to which the opinion is supported by the record as a
whole, and any other factors that support or contradict the
opinion. 20 C.F.R. §§ 404.1527(c)(1)-(6),
416.927(c)(1)-(6). The ALJ must also consider, and is
entitled to rely on, opinions from non-treating doctors.
See SSR 96-6p, 1996 WL 374180 at *3 (“In
appropriate circumstances, opinions from State agency medical
and psychological consultants and other program physicians
and psychologists may be entitled to greater weight than the
opinions of treating or examining sources.”).
to Ms. Bell's assertion, the ALJ properly evaluated the
opinions of Luke Johnsen, D.O., and Ned Sacktor, M.D. The ALJ
assigned the medical opinions of Drs. Johnsen and Sacktor
“little weight” because they were inconsistent
with the medical evidence, unsupported by the objective
record, and contradicted by Ms. Bell's testimony. (Tr.
25-26). The ALJ provided several specific examples of
contradicted and unsupported statements in the medical
assessment reports authored by these physicians. Id.
Specifically, while Dr. Johnsen and Dr. Sacktor each
determined that Ms. Bell met Medical Listing 1.04 for lumbar
disc disease, the ALJ noted that these conclusions are not
supported by near-contemporaneous spinal imaging reflecting
only mild-to-moderate degenerative disc disease. Id.
(discussing Tr. 293-94, 329-30, 389-90). Moreover, as the ALJ
noted, the evidence of record fails to show that Ms. Bell
experiences nerve root compression, spinal arachnoiditis, or
lumbar spinal stenosis, as required by Listing 1.04. (Tr.
23). Furthermore, Dr. Johnsen's and Dr. Sacktor's
statements regarding Ms. Bell's left leg pain and
weakness, and Dr. Johnsen's statement that Ms. Bell
requires constant use of a rolling walker to ambulate, are
contradicted by Ms. Bell's testimony that she can walk 12
blocks, six days a week, to a methadone clinic; climb up and
down a flight of stairs, carrying her walker, three times
daily; and perform personal care tasks such as cooking, doing
laundry, and shopping. (Tr. 24-25, 66-68, 233-35). Indeed, in
February, 2014, Dr. Sacktor himself noted that, with physical
therapy, Ms. Bell had full strength in her left leg. (Tr.
354). The ALJ also noted that these opinions do not have
support in the treatment records, other evidence of record,
or medical imaging. (Tr. 25). These inconsistencies provide
sufficient justification for the ALJ's decision to accord
only “little weight” to Dr. Johnsen's and Dr.
contrast, the ALJ ascribed “great weight” to the
opinion of consultative examiner Purcell Bailey, M.D., who,
in May, 2012, reported that Ms. Bell walked unassisted and
with a normal gait, presented normal results upon
cardiovascular, physical, and visual field examinations, and
“failed to show any disabling limitations.” (Tr.
26). The ALJ concluded that Dr. Bailey's findings were
“consistent with the totality of the evidence.”
Id. See 20 C.F.R. §416.927(c)(4)
(“Generally, the more consistent an opinion is with the
record as a whole, the more weight we will give to that
opinion.”). Similarly, the ALJ gave “great
weight” to the opinion of medical consultant, Kumar