United States District Court, D. Maryland
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
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).
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).
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.
The ALJ's Credibility Finding
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].
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].
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].
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.
Residual Functional Capacity (“RFC”)
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 ...