United States District Court, D. Maryland
Martin G. Haiber
Commissioner, Social Security Administration;
October 11, 2016, Plaintiff Martin G. Haiber petitioned this
Court to review the Social Security Administration's
final decision to deny his claims for Disability Insurance
Benefits and Supplemental Security Income. [ECF No. 1]. I
have considered the parties' cross-motions for summary
judgment and the Plaintiff's reply. [ECF Nos. 21, 25,
28]. In addition, I have reviewed the parties'
supplemental briefing regarding the impact of the Fourth
Circuit's recent decision in Lewis v. Berryhill,
858 F.3d 858 (4th Cir. 2017). [ECF Nos. 23, 24]. 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 both motions, reverse the judgment of the Commissioner,
and remand the case to the Commissioner for further analysis
pursuant to sentence four of 42 U.S.C. § 405(g). This
letter explains my rationale.
Haiber filed claims for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on July 24, 2012. (Tr. 195-98, 199-207).
He alleged a disability onset date of September 1, 2007. (Tr.
195). His claims were denied initially and on
reconsideration. (Tr. 52-67, 70-85). A hearing was held on
January 22, 2015, before an Administrative Law Judge
(“ALJ”). (Tr. 26-51). Following the hearing, the
ALJ determined that Mr. Haiber was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 11-21). The Appeals Council (“AC”)
denied Mr. Haiber's request for review, (Tr. 1-5), so the
ALJ's decision constitutes the final, reviewable decision
of the Agency.
found that Mr. Haiber suffered from the severe impairments of
“congestive heart failure, cardiomyopathy, asthma,
gastritis, and osteoarthritis.” (Tr. 13). Despite these
impairments, the ALJ determined that Mr. Haiber retained the
residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he can frequently climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl; can occasionally
climb ropes, ladders, and scaffolds; can frequently reach
overhead and in all directions with his right upper
extremity; can perform frequent handling with his right upper
extremity; and must avoid concentrated exposure to extreme
cold, fumes, odors, dusts, and gases.
(Tr. 16). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Haiber
could perform jobs existing in significant numbers in the
national economy and therefore was not disabled. (Tr. 20-21).
Haiber raises two arguments on appeal: (1) that the ALJ
erroneously failed to assess whether his impairments met or
equaled the criteria of Listing 1.04A, and (2) that the
ALJ's decision runs afoul of the Fourth Circuit's
decision in Lewis. I agree that the ALJ should have
performed a Listing 1.04A analysis, and I therefore remand
the case. In remanding for additional explanation, I express
no opinion as to whether the ALJ's ultimate conclusion
that Mr. Haiber is not entitled to benefits is correct.
Mr. Haiber argues that the ALJ erred at the third step of the
sequential evaluation by failing to assess whether his
impairments met or equaled the criteria set forth in Listing
1.04A. Pl. Mot. Summ. J. 9-17. Specifically, Mr. Haiber
contends that the ALJ was obligated to consider Listing
1.04A, because Mr. Haiber “undoubtedly established all
four symptoms of nerve compression required by [Listing]
1.04A and that he suffered or was expected to suffer from
such nerve compression continuously for at least twelve (12)
months.” Id. at 17. As an initial matter, the
ALJ's “duty of identification of relevant listed
impairments and comparison of symptoms to Listing criteria is
only triggered if there is ample evidence in the record to
support a determination that the claimant's impairment
meets or equals one of the listed impairments.”
Ketcher v. Apfel, 68 F.Supp.2d 629, 645 (D. Md.
1999) (citing Cook v. Heckler, 783 F.2d 1168,
1172-73 (4th Cir. 1986)); see also Kosisky v. Comm'r,
Soc. Sec. Admin., Civil No. SAG-15-2403, 2016 WL
2588164, at *5 (D. Md. May 4, 2016) (“[U]nder existing
Fourth Circuit law, an ALJ only has to identify a listing and
compare the evidence to the listing requirements where there
is ample evidence to suggest that the listing is met.”)
(citations omitted). The claimant “bears the burden of
demonstrating that his impairment meets or equals a listed
impairment.” Krouse v. Comm'r, Soc. Sec.
Admin., Civil No. SAG-16-128, 2017 WL 532278, at *2 (D.
Md. Feb. 9, 2017) (citing Kellough v. Heckler, 785
F.2d 1147, 1152 (4th Cir. 1986)).
to the instant case, Listing 1.04A governs disorders of the
spine “resulting in compromise of a nerve root  or
the spinal cord.” 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 1.04A. To demonstrate that his impairments meet or
equal the Listing 1.04A criteria, the claimant must offer
“[e]vidence of nerve root compression characterized by
 neuro-anatomic distribution of pain,  limitation of
motion of the spine,  motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and,  if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine)[.]” Id. Listing 1.04A requires that
“each of the symptoms are [sic] present, and that the
claimant has suffered or can be expected to suffer from nerve
root compression continuously for at least 12 months.”
Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013)
instant case, the ALJ erroneously failed to assess whether
Mr. Haiber's impairments met or equaled the criteria set
forth in Listing 1.04A. Most notably, many of the Listing
1.04A criteria appear to have been present in Mr.
Haiber's case during the relevant time frame, including
neuro-anatomic distribution of pain in his cervical spine
that “radiate[s] or spread[s] . . . [and] “tends
to travel into [sic] from neck up into head, ” (Tr.
361), “reduced right shoulder range of motion, [and]
reduced cervical range of motion, ” (Tr. 18, 301-03),
“reduced right upper extremity strength at 4/5, and
slightly reduced right grip strength at 4 to 5/5” with
decreased sensation on his right side, id., and a
positive straight-leg raising test, (Tr. 303). See Weems
v. Comm'r, Soc. Sec., SAG-12-2993, 2013 WL 4784124,
at *2 (D. Md. Sept. 5, 2013). Indeed, it appears that the ALJ
intended to assess Mr. Haiber's impairments under a
listing related to “disorders of the spine, ” but
instead inexplicably applied the Listing 1.02 criteria
related to “[m]ajor dysfunction of a joint[.]”
See (Tr. 14) (noting that “the undersigned
evaluated the claimant's impairments under Section 1.02
(disorders of the spine)”); see also 20 C.F.R.
Pt. 404, Subpt. P, App. 1 §§ 1.02, 1.04. Given that
Mr. Haiber had no impairment implicating significant joint
dysfunction, it seems clear that the ALJ simply evaluated the
wrong listing. Accordingly, the ALJ failed to evaluate
whether Mr. Haiber's impairments met or equaled the
criteria set forth in Listing 1.04A, as required. Remand is
to the next argument, Mr. Haiber argues that the ALJ's
decision runs afoul of the Fourth Circuit's decision in
Lewis because the ALJ “failed to apply the
proper legal standard in discrediting [his] subjective
limitations of fatigue and pain.” Pl.'s Suppl. Br.
3. Specifically, Mr. Haiber contends that the ALJ “did
not adequately discuss why [his] complaints of disabling pain
were not fully credited.” Id. at 5. In
Lewis, 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. 858
F.3d at 866. Social Security regulations do not permit an ALJ
to “reject [a claimant's] statements about the
intensity and persistence of [his] pain or other symptoms or
about the effect [his] symptoms have on [his] ability to work
solely because the available objective medical evidence does
not substantiate [his] statements.” Id.
(citing 20 C.F.R. §§ 404.1529(c)(2),
416.929(c)(2)); see also SSR 96-7p, 1996 WL 374186,
at *5 (“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.”). To
determine the credibility of the claimant's statements,
the ALJ should also “consider factors such as the
claimant's daily activities, treatments she has received
for her symptoms, medications, and any other factors
contributing to functional limitations.” Hardy v.
Berryhill, Civil Action No. ADC-16-3709, 2017 WL
3917010, at *3 (D. Md. Sept. 6, 2017) (citation omitted).
the ALJ properly evaluated Mr. Haiber's credibility.
First, the ALJ found that Mr. Haiber's own testimony
undermined his subjective complaints of alleged physical
symptoms. The ALJ noted that Mr. Haiber testified that he
could regularly perform a wide range of activities, including
“clean his room, drive, read a newspaper, write, count
change, bathe without assistance, dress himself, prepare his
meals, mop his room, go to the laundromat to do laundry, shop
for groceries, watch television, and care for his pet
cat.” (Tr. 19). The ALJ concluded that “[t]hese
activities reveal a significantly greater physical functional
capacity than alleged.” Id. Moreover, the ALJ
opined that Mr. Haber “has sought and received only
minimal routine and conservative treatment[, ] . . . [and]
has not received any surgery, used a TENS unit or brace,
utilized an assistive device, or attended physical
therapy.” (Tr. 18-19). The ALJ also noted that the
record revealed “only a couple of appointments with a
pain management specialist, ” and that Mr. Haiber has
managed his symptoms through medication. Id. The ALJ
concluded that the conservative nature of Mr. Haiber's
treatment further undercut the alleged severity of the
claimant's symptoms. Id; see Dunn v. Colvin, 607
F. App'x 264, 273 (4th Cir. 2015) (recognizing that
“it is appropriate for the ALJ to consider the
conservative nature of a plaintiffs treatment-among other
factors-in judging the credibility of the plaintiff).
Finally, the ALJ cited to Mr. Haiber's medical records,
which revealed a “normal gait, normal left grip
strength, normal left upper extremity strength, normal left
shoulder range of motion, normal lumbar range of motion, and
normal deep tendon reflexes.” (Tr. 18); see
also (Tr. 302-03). Accordingly, the ALJ properly
assessed Mr. Haiber's credibility on the record, and
remand is not warranted on this basis.
reasons set forth herein, Plaintiffs Motion for Summary
Judgment, (ECF No. 21), is DENIED, and the Defendant's
Motion for Summary Judgment, (ECF No. 25), is DENIED.
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