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Ellentuck v. Commissioner, Social Security Administration

United States District Court, D. Maryland

October 30, 2017

Robert Ellentuck
v.
Commissioner, Social Security Administration

         Dear Counsel:

         On December 3, 2016, Plaintiff Robert Ellentuck petitioned this Court to review the Social Security Administration's final decision to deny his claim for Disability Insurance Benefits (“DIB”). [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 Mr. Ellentuck's motion, grant the Commissioner's motion, and affirm the Commissioner's judgment pursuant to sentence four of 42 U.S.C. § 405. This letter explains my rationale.

         Mr. Ellentuck filed his claim for DIB on September 24, 2012. (Tr. 188-89). He alleged a disability onset date of June 30, 2010. Id. His claim was denied initially and on reconsideration. (Tr. 120-27). A hearing was held on June 4, 2015, before an Administrative Law Judge (“ALJ”). (Tr. 47-88). Following the hearing, the ALJ determined that Mr. Ellentuck was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 13-40). Thereafter, Mr. Ellentuck requested that the Appeals Council review the ALJ's decision. (Tr. 41-43). The Appeals Council denied Mr. Ellentuck's request for review, so the ALJ's 2015 decision constitutes the final, reviewable decision of the Agency. (Tr. 1-4).

         The ALJ found that Mr. Ellentuck suffered from the severe impairments of “sleep related breathing disorders, peripheral neuropathy, degenerative disc disease, fibromyalgia, and affective disorders not otherwise specified (20 CFR 404.1520(c)).” (Tr. 22). Despite these impairments, the ALJ determined that Mr. Ellentuck retained the residual functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 404.1567(b) except the claimant could occasionally lift and or carry 20 pounds and frequently lift and or carry 10 pounds; stand or walk for a total of 6 hours in an 8-hour workday; sit for a total of 6 hours in an 8-hour workday; push and/or pull as much as he can lift and or carry; and never climb ladders, ropes, or scaffolds. The claimant has no limits on climbing ramps or stairs and no limits on balancing, stooping, kneeling, crouching, and crawling. The claimant is limited to occasional exposure to hazards such as moving mechanical parts and unprotected heights; frequent interaction with coworkers and supervisors; and occasional interaction with the public. He can constantly understand, remember, and carry out instructions concerning simple, routine tasks; occasionally understand, remember, and carry out instructions concerning complex tasks; constantly make simple decisions; and occasionally make complex decisions.

(Tr. 24). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Mr. Ellentuck could perform jobs existing in significant numbers in the national economy, and that, therefore, he was not disabled. (Tr. 32).

         Mr. Ellentuck raises two arguments on appeal: (1) that the ALJ failed to apply the proper legal standard in discrediting his credibility and subjective evidence of pain; and (2) that the ALJ erroneously assessed his RFC. [ECF No. 13-1, 3, 5]. These arguments are addressed below.

         I. The ALJ's Credibility Finding

         Mr. Ellentuck argues that the ALJ, in finding him “not entirely credible, ” erred by “fail[ing] to provide any assessment of which of [his] statements he found to be credible, and which he did not.” (Tr. 26); [ECF No. 13-1, 3]. Specifically, Mr. Ellentuck relies on Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985); Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017); and Bostrom v. Colvin, 134 F.Supp.3d 952, 960 (D. Md. 2016), which require the ALJ to “refer specifically to the evidence informing the ALJ's conclusion” in making a credibility determination and to ‘“articulate which of a claimant's individual statements are credible, rather than [analyzing] whether the claimant is credible as a general matter.”' [ECF No. 13-1, 3-5].

         As background, in Lewis, the United States Court of Appeals for 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 his 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 his decision what statements by [the claimant] undercut [the] subjective evidence…as limiting [the claimant's] functional capacity.” Lewis, 858 F.3d at 866. Accordingly, the Lewis Court remanded because the ALJ failed to cite sufficient evidence of the claimant's own statements to discredit her credibility. Likewise, Mr. Ellentuck contends the ALJ “failed to identify the statements” he made that the ALJ “found to be not entirely credible.” [ECF No. 13-1, 5].

         The Commissioner, meanwhile, contends that, pursuant to SSR 96-7p, 1996 WL 3741186 (S.S.A. July 2, 1996), the ALJ properly evaluated Mr. Ellentuck's credibility. [ECF No. 14-1, 8-10]. In effect at the time of the ALJ's decision, SSR 96-7p provides that, in assessing a claimant's credibility, “the adjudicator must consider the entire case record, including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record.” SSR 96-7P (S.S.A. July 2, 1996). Defendant argues that the ALJ complied with this standard by citing Mr. Ellentuck's medical records, medical history, daily activities, treatment regimen, and reports of treating and examining practitioners. [ECF No. 14-1, 9-10].

         I disagree that the ALJ erred in finding that Mr. Ellentuck was “not entirely credible.” (Tr. 26). First, the scope of the Lewis ruling need not be determined in the instant case because the ALJ, in discounting Mr. Ellentuck's credibility, expressly cited sufficient evidence of his own statements that were inconsistent with his allegations of symptoms. For example, the ALJ cited Mr. Ellentuck's Neurology Center medical records, which demonstrated that, from September to August of 2013, he “did not have any significant complaints, ” despite having ulnar neuropathy. (Tr. 25-26). Further, the ALJ noted Mr. Ellentuck's admissions that his pain-management medications were somewhat effective, effective at controlling his worst symptoms, and that he experienced a 30% improvement in pain symptoms after receiving cervical steroidal injections and radiofrequency ablation. (Tr. 27). Finally, the ALJ considered Mr. Ellentuck's statements that on a typical day, he is able to dress, bathe, attend doctor's appointments, drive an automobile, feed himself, and that his sleep quality has improved. (Tr. 25, 27). Thus, the ALJ adequately “explain[ed] in [his] decision what statements by [Mr. Ellentuck] undercut [the] subjective evidence…as limiting [his] functional capacity.” Lewis, 858 F.3d at 866. Moreover, the ALJ provided substantial objective record evidence to support his conclusion. See (Tr. 14-19); see also SSR 96-7p, 1996 WL 374186, at *6 (noting that “the absence of objective medical evidence supporting an individual's statements about the intensity and persistence of pain or other symptoms is [] one factor that the adjudicator must consider in assessing an individual's credibility.”); see Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir. 2006) (citation omitted). Accordingly, the ALJ, by considering Mr. Ellentuck's “objective medical evidence, . . . daily activities, . . . [and subjective] description[s] of pain, ” properly assessed his credibility. Bostic v. Astrue, 474 F. App'x 952, 954 (4th Cir. 2012). Remand on this basis is therefore unwarranted.

         II. Residual Functional Capacity (“RFC”) Issue

         Mr. Ellentuck next argues that the ALJ erroneously assessed his RFC by: (a) failing to include his moderate limitations with regard to concentration, persistence, or pace in his RFC assessment in violation of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015); and (b) failing to provide an adequate narrative discussion (citing Mascio, 780 F.3d at 636 (stating that the RFC “assessment must include a narrative discussion describing how the evidence supports each conclusion, citing ...


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