United States District Court, D. Maryland
Stephanie A. Gallagher, United States Magistrate Judge.
January 5, 2017, Plaintiff Michael Bruce Agent petitioned
this Court to review the Social Security Administration's
final decision to deny his claims for benefits. [ECF No. 1].
I have considered the parties' cross-motions for summary
judgment and Plaintiff's reply. [ECF Nos. 14, 18, 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 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.
Agent protectively filed claims for Supplemental Security
Income (“SSI”) on May 28, 2013, (Tr. 203-08), and
Disability Insurance Benefits (“DIB”) on May 29,
2013, (Tr. 201-02). He alleged a disability onset date of
June 1, 2012. (Tr. 41, 201). His claims were denied initially
and on reconsideration. (Tr. 65-71, 73-79, 81-87, 89-95). A
hearing was held on July 6, 2016, before an Administrative
Law Judge (“ALJ”). (Tr. 39-63). Following the
hearing, the ALJ determined that Mr. Agent was not disabled
within the meaning of the Social Security Act during the
relevant time frame. (Tr. 22-33). The Appeals Council
(“AC”) denied Mr. Agent's request for further
review, (Tr. 1-6), so the ALJ's decision constitutes the
final, reviewable decision of the Agency.
found that Mr. Agent suffered from the severe impairments of
“migraine headaches; and depressive disorder not
otherwise specified.” (Tr. 24). Despite these
impairments, the ALJ determined that Mr. Agent would retain
the residual functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but
with the following nonexertional limitations: he cannot
negotiate ladders, ropes, or scaffolding. He cannot interact
with heights or dangerous machinery. He requires ten minutes
of rest every two hours. He will be off task eight percent of
the time, and will miss 11 days of work per year. He can
occasionally interact with peers, the public, and supervisor.
(Tr. 27). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Agent
could perform several jobs existing in the national economy
and therefore was not disabled. (Tr. 31-32).
Agent raises three arguments on appeal: (1) that the ALJ
failed to provide jobs at medium work that Mr. Agent could
perform, given his limitations and advanced age; (2) that the
ALJ improperly determined that Mr. Agent's back pain and
right knee pain do not constitute severe impairments; and (3)
that the ALJ improperly discarded Mr. Agent's treating
physician's opinions without substantial evidence. Pl.
Mot. Summ. J. 8-13. I agree that the ALJ's decision is
not supported by substantial evidence, 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. Agent is not entitled to benefits is correct.
with the successful argument, Mr. Agent contends that the ALJ
erred in determining that his back pain and right knee pain
do not constitute severe impairments. Pl. Mot. 10-11.
Specifically, Mr. Agent argues that the ALJ “has
presented no evidence that Mr. Agent's impairments [of
back pain and right knee pain] are nonsevere.”
Id. at 11. At step two of the sequential evaluation,
the ALJ must determine whether the claimant has a severe
impairment. See 20 C.F.R. § 404.1520(c) (2012).
An impairment is considered “severe” if it
significantly limits the claimant's ability to work.
See 20 C.F.R. § 404.1521(a) (1985) (amended by
20 C.F.R. § 404.1522(a) (2017)). Notably, “[s]tep
two does not present a high threshold to meet.”
Albert v. Astrue, CBD-10-2071, 2011 WL 341709, at *3
(D. Md. July 29, 2011). In light of this minimal threshold,
the ALJ's “finding that an impairment is not severe
enough to proceed to step three requires a careful analysis
of the medical findings and an informed judgment about the
impairment's limiting effect on an individual's
physical and mental abilities to perform basic work
activities.” Id. (citing SSR 85-28, 1985 WL
instant case, the ALJ did not properly evaluate whether Mr.
Agent's back pain and right knee pain constituted severe
impairments, because he failed to provide any meaningful
analysis to support his conclusion. (Tr. 25). Most notably,
the ALJ failed entirely to discuss the impact of Mr.
Agent's back pain and right knee pain on his physical
abilities, and failed to evaluate Mr. Agent's subjective
assertions of disabling pain. Cf. Shaffer v. Comm'r,
Soc. Sec., SAG-10-1962, 2012 WL 707098, at *3 (D. Md.
March 2, 2012) (holding that the ALJ provided adequate
support for her finding that the claimant's Crohn's
disease was not a severe impairment when the ALJ observed
that “Claimant worked for many years with Crohn's
disease and reported only occasional
‘flares'”) (citation omitted). Instead, the
ALJ merely cited the objective medical evidence, noting an
x-ray of the lumbar spine “show[ing] just a minimal
retrolisthesis of L2 on L3, ” (Tr. 24), and an x-ray of
the joint “show[ing] mild narrowing of the medical
compartment, ” (Tr. 25). The ALJ also found that Mr.
Agent's examinations were otherwise “normal”
and “unremarkable, ” without providing
substantial evidentiary support. (Tr. 24-25). Following his
brief recitation, the ALJ made the conclusory finding that
Mr. Agent's back pain and right knee pain do not impose
“more than minimal restriction on his ability to
perform work activities.” Id. See White v.
Comm'r, Soc. Sec. Admin., SAG-16-506, 2017 WL
1102719, at *2 (D. Md. March 23, 2017) (holding that the ALJ
erred by determining that the claimant's foot conditions
were not severe impairments when the “ALJ conclusorily
stated that [the claimant's] ‘foot conditions [do]
not cause more than a minimal impact on her ability to
perform basic work activities and are not severe'”)
(citation omitted). Finally, the ALJ included no discussion
of Mr. Agent's back and knee pain in his RFC assessment,
even assuming it is a non-severe impairment. See 20
C.F.R. § 404.1523. Accordingly, the ALJ failed to
adequately evaluate Mr. Agent's back pain and right knee
pain, and remand is therefore required.
Social Security regulations provide that the RFC assessment
“must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence
(e.g., daily activities, observations).” Monroe v.
Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting SSR
96-8P (S.S.A.), 1996 WL 374184 (1996)). In doing so, the ALJ
must “build an accurate and logical bridge from the
evidence to his conclusion.” Id. (quoting
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000). Here, the ALJ failed to provide an accurate and
logical bridge between Mr. Agent's limitations and the
RFC determination. Most significantly, in formulating the RFC
assessment, the ALJ noted that Mr. Agent “will be off
task eight percent of the time, and will miss 11 days of work
per year.” (Tr. 27). To support his conclusion, the ALJ
found that Mr. Agent “has not demonstrated any deficits
in attention or concentration during appointments, and he is
able to perform activities like preparing simple meals,
taking care of his ailing mother, renovating a house, and
shopping, that require him to demonstrate good task
persistence[.]” (Tr. 30). The ALJ, however, failed to
explain how these findings translate into the conclusion that
Mr. Agent would remain off task for eight percent of the day,
rather than nine or ten percent, or that he would be absent
exactly eleven days per year. An explanation of how that
percentage was calculated is significant in the instant case,
because a relatively small increase could preclude
competitive employment. See Schlossnagle v. Colvin,
Civil No. TMD 15-935, 2016 WL 4077672, at *4 (D. Md. Aug. 1,
2016) (“Being ‘off task' more than 10% of the
time during an eight-hour workday would preclude all
competitive employment.”). Without further explanation,
I am unable to ascertain how the ALJ assessed Mr. Agent's
percentage of time off task. On remand, the ALJ should
consider the impact of Mr. Agent's limitations on the RFC
determination and explain the reasons for that finding,
citing substantial evidence.
Agent further contends that the ALJ failed to give proper
weight to the opinion of his treating physician, Dr.
Kirtikant Desai. 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, 76
F.3d at 590 (citation omitted); see also 20 C.F.R.
§ 404.1527(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). I agree that the ALJ's
evaluation of the medical opinions concerning Mr. Agent's
impairments were cursory, at best. Notably, in trying to
undermine Dr. Desai's opinions, the ALJ made multiple
references to Mr. Agent's statement that he was
renovating his mother's house. See (Tr. 28, 29,
30). However, it remains unclear from the record whether, and
to what extent, Mr. Agent was personally involved in the
house renovations. See (Tr. 374) (stating only that
Mr. Agent was “working on rehabbing deceased
mother's home”). Although this deficiency might not
warrant remand standing alone, because the case is being
remanded on other grounds, the ALJ should evaluate Dr.
Desai's opinions more thoroughly.
to the less persuasive argument, Mr. Agent contends that the
ALJ tried to circumvent the grids by stating he could perform
jobs at any exertional level, yet only identifying light
jobs. Id. at 8-10. At the fifth and last step of the
sequential evaluation, the Commissioner “must show that
the claimant retains the capacity to perform an alternative
work activity and that this specific type of job exists in
the national economy.” Grant v. Schweiker, 699
F.2d 189, 191 (4th Cir. 1983) (citation omitted). To make
this determination, the Commissioner may consider the
regulations' grids, which “take administrative
notice of the availability of job types in the national
economy for persons having certain characteristics, namely
age, education, previous work experience, and residual
functional capacity.” Id. at 191-92. Social
Security regulations, however, “provide that[, ] where
the claimant's impairment is nonexertional[, ] . . . the
grids' Rules are not conclusive, and full individualized
consideration must be given to all relevant facts of the
case.” Id. at 192 (citation omitted).
Essentially, in Mr. Agent's view, if he is only capable
of light work, he would be deemed disabled under the grids.
response, the Commissioner cites Anderson v. Commissioner
of Social Security, 406 F. App'x 32 (6th Cir. 2010)
(unpublished decision). In Anderson, the claimant
argued that the “job descriptions offered by the VE
were indicative of sedentary work, not light work [as
provided in the claimant's RFC], and that as a result,
the ALJ should have found that Anderson could perform only
sedentary work.” 406 F. App'x at 34 (citation
omitted). The Sixth Circuit rejected this argument,
concluding that “the VE's testimony depends upon
the RFC and not the other way around.” Id. at
36. See also Foxworth v. Colvin, 249 F.Supp.3d 585,
589-90 (D. Mass. 2017) (concluding that the “RFC is
determined prior to a vocational expert's testimony
concerning nonexertional limitations and does not change
because of it”). I concur with the reasoning in those
decisions. A VE does not have to identify positions at the
maximum exertional capacity in the RFC, so long as the jobs
fall within the RFC assessment. Here, the ALJ posed a
hypothetical that adequately set forth all of Mr. Agent's
nonexertional limitations, see (Tr. 58, 60), and
considered the VE's testimony that Mr. Agent could
perform several jobs existing in the national economy to
accommodate his RFC, ...