United States District Court, D. Maryland
Sharon A. Whitfill
Commissioner, Social Security Administration;
pending is Plaintiff Sharon A. Whitfill's Motion to
Reconsider the Court's May 26, 2017 Letter Order, which,
inter alia, granted the Motion for Summary Judgment
filed by Defendant Social Security Administration (“the
Commissioner”). [ECF No. 23]. I have also reviewed the
Commissioner's opposition. [ECF No. 24]. In her motion,
Ms. Whitfill reiterates her assertion that the ALJ failed to
properly apply the special technique for evaluating mental
impairments under Patterson v. Commissioner, Soc. Sec.
Admin., 632 F. App'x 750 (4th Cir. 2015).
[ECF No. 23]. In addition, Ms. Whitfill contends that the ALJ
failed to properly assess her credibility in light of the
Fourth Circuit's intervening decision in Lewis v.
Berryhill, 858 F.3d 858 (4th Cir. 2017). Although I
still conclude that the ALJ's error under
Patterson was harmless, I agree that the ALJ failed
to properly assess Ms. Whitfill's credibility under
Lewis. No hearing is necessary. See Local
Rule 105.6 (D. Md. 2016). For the reasons set forth below,
Ms. Whitfill's motion is GRANTED.
with the successful argument, in Lewis, the Fourth
Circuit determined that remand was required, in part, because
“[t]he ALJ's decision applied an improper legal
standard to discredit [the claimant's]
[credibility].” Lewis, 858 F.3d at 870.
Specifically, the Fourth Circuit held that the ALJ improperly
discounted the claimant's subjective complaints
“based solely on the lack of objective evidence”
supporting the claimant's assertions. Id. at
866. Social Security regulations do not permit an ALJ to
“reject [a claimant's] statements about the
intensity and persistence of  pain or other symptoms or
about the effect [those] symptoms have on [a claimant's]
ability to work solely because the available objective
medical evidence does not substantiate [his or her]
statements.” Id. (citing 20 C.F.R.
§§ 404.1529(c)(2), 416.929(c)(2)) (emphasis added);
see SSR 96-7p, 1996 WL 374186, at *1 (“An
individual's statements about the intensity and
persistence of pain or other symptoms or about the effect the
symptoms have on her or her ability to work may not be
disregarded solely because they are not substantiated by
objective medical evidence.”). Rather, the Fourth
Circuit emphasized that the ALJ failed to “explain in
her decision what statements by [the claimant] undercut [the]
subjective evidence of pain as limiting [the claimant's]
functional capacity.” Lewis, 858 F.3d at 866.
Accordingly, the Lewis Court determined that remand
case, the ALJ found that Ms. Whitfill's statements
regarding her symptoms were “not entirely
credible.” (Tr. 17). Ms. Whitfill argues that the ALJ
failed to “explain in his decision what statements by
[Ms. Whitfill] undercut her subjective evidence of pain,
” and that, therefore, remand is warranted. [ECF No.
23, p. 9]. However, the Commissioner contends that
Lewis does not require an ALJ to support an adverse
credibility finding with evidence of a claimant's own
subjective statements. [ECF No. 24, p. 4]. Instead, the
Commissioner argues that the support of other non-objective
evidence, such as medical opinion evidence and treatment
records, independently satisfies the Fourth Circuit's
mandate in Lewis. Id. at p. 5 (arguing that
“Lewis has no bearing on this case
because…[t]he ALJ identified other proper rationale,
” and citing Plaintiff's daily activities and
conservative treatment records.).
the precise scope of the Lewis ruling need not be
determined in the instant case, the ALJ here failed to
support her adverse credibility finding with sufficient
evidence. Notably, in Lewis, the ALJ cited some
non-objective evidence to support his credibility finding.
For example, the ALJ in Lewis noted that “the
claimant reported significant but transient relief of her
pain symptoms.” Lewis, 858 F.3d 858 at (Tr.
25). The ALJ also noted that “the claimant stated that
her left upper extremity shakes but noted no other problems
with the functioning of her arms or legs.” Id.
at (Tr. 26). The ALJ further noted that, although “the
claimant reported ongoing pain that was 10/10 in severity,
” she “denied numbness, tingling, or
weakness.” Id. Moreover, the ALJ noted that
“the claimant reported significant [post-operative]
improvement in her symptoms within 24 hours, ” conceded
“that the numbness and tingling of her hand was gone,
” and admitted “occasional help with offered
injections.” Id. at (Tr. 27). Furthermore, the
ALJ noted that, “[i]n spite of her ongoing pain,
” the claimant admitted that she “retain[ed] the
capacity to take care of most personal needs, drive short
distances of up to 30 miles, shop for groceries with the
assistance of her mother or roommate, handle her finances,
and watch television.” Id. at (Tr. 28).
Nevertheless, the Fourth Circuit deemed the ALJ's opinion
instant case, the ALJ provided even less evidence in support
of his credibility finding than the ALJ in Lewis.
The ALJ failed to cite any “statements by [Ms.
Whitfill] undercut[ting] [the] subjective evidence of pain
intensity[.]” Lewis, 858 F.3d at 866. Instead,
the ALJ noted that Ms. Whitfill consistently alleged
disabling pain since her disability onset date in 2010, and
“continually sought treatment for her
complaints.” (Tr. 17); see Id. (noting that
the record indicates that [Ms. Whitfill] continued to
complain of constant pain, rating it between four to eight on
a scale of one to ten[.]”). The Commissioner contends
that the ALJ's discussion of Ms. Whitfill's daily
activities and “conservative” treatment history
provide sufficient non-objective evidence to support an
adverse credibility determination. However, the ALJ failed to
explain how Ms. Whitfill's statements regarding her daily
activities were inconsistent with her allegations of pain.
(Tr. 18). Additionally, although the ALJ notes that Ms.
Whitfill's “conservative” treatment history
belies her allegations of pain, the ALJ concedes that
“this treatment did not alleviate [Ms. Whitfill's]
symptoms[.]” (Tr. 17). Moreover, in discounting Ms.
Whitfill's credibility, the ALJ repeatedly and
exclusively emphasized the absence of objective evidence
supporting the subjective evidence of pain, in direct
contravention of Lewis. See, e.g.,
(Tr. 17) (noting that although Ms. Whitfill “complained
of pain in her right hand and left knee…[x]-rays were
taken and revealed normal findings in the right hand, with no
evidence of fracture or other osseous or soft tissue
abnormality, ” and “[x]-rays also revealed normal
findings in the left knee, with no evidence of a fracture or
dislocation[.]”); id. (noting that,
“[e]ven though [Ms. Whitfill] continued to complain of
symptoms from this incident, physical examinations showed
largely normal findings, with pain on palpitation of the
right hand and slight muscle wasting noted on the right hand,
but also normal (and sometimes excellent) range of motion and
normal gait and station.”); id. (noting that,
although Ms. Whitfill claimed her “treatment did not
alleviate [her] symptoms…objective findings remained
mild. This suggests that [her] complaints of pain are not as
intense as alleged.”); (Tr. 18) (noting that
“recent diagnostic imaging also suggests that [Ms.
Whitfill's] complaints of pain are not as severe as
claimed, ” and citing the absence of “fractures,
” “dislocations, ” and “arthritic
changes” on x-ray images). Considering the facts of
this case, including Ms. Whitfill's consistent
allegations of pain, the absence of non-objective evidence
supporting the ALJ's credibility finding, and the
ALJ's reliance on objective evidence to discount Ms.
Whitfill's subjective complaints, the ALJ failed to
properly assess Ms. Whitfill's credibility under
Lewis. Remand on this basis is therefore warranted.
In remanding for additional explanation, I express no opinion
as to whether the ALJ's ultimate determination that Ms.
Whitfill was not entitled to benefits was correct or
Whitfill also argues that this Court erred by concluding that
the ALJ's failure to evaluate the conclusions of two
non-examining State agency physicians, who found that she
suffered “moderate” difficulties, instead of
“mild” difficulties, in the area of
concentration, persistence, or pace constituted harmless
error under Patterson. [ECF No. 23, pp. 4-5] (citing
(Tr. 80, 93, 107, 119)). Specifically, Ms. Whitfill contends
that, had the ALJ evaluated this opinion evidence, he would
have found “moderate difficulties” in
concentration, persistence, or pace, and therefore his
holding would have run afoul of the Fourth Circuit's
decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th
Cir. 2015). However, Ms. Whitfill's contention requires
several layers of speculation: first as to the result of the
ALJ's evaluation of the opinions, and second as to the
RFC assessment that would have been reached if the opinions
had been considered. Regardless, while this deficiency may
not warrant remand on its own, since the case is being
remanded on other grounds, the ALJ should, on remand,
evaluate the opinions of the State agency physicians and
consider the appropriate level of limitation in the area of
concentration, persistence, or pace.
reasons set forth herein, Ms. Whitfill's Motion to
Reconsider, (ECF No. 23), is GRANTED. Pursuant to sentence
four of 42 U.S.C. § 405(g), the Commissioner's
judgment is REVERSED IN PART due to inadequate analysis. The
case is REMANDED for further proceedings in accordance with
this opinion. The Clerk is directed to CLOSE this case.
the informal nature of this letter, it should be flagged as
an opinion and docketed as an order.
Stephanie A. Gallagher United States Magistrate Judge.
 Social Security regulations define
“objective medical evidence” as “medical
signs, laboratory findings, or both.” 20 C.F.R.
§§ 404.1502(f), 416.902(k). The regulations
note that “other evidence” includes a
claimant's statements, medical and non-medical source
opinions, medication histories, treatment records, and