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Whiting v. Commissioner, Social Security Administration

United States District Court, D. Maryland

November 13, 2017

Joann Whiting
v.
Commissioner, Social Security Administration;

          ORDER

          Stephanie A. Gallagher United States Magistrate Judge

         Dear Ms. Whiting and Counsel:

         On March 17, 2017, Plaintiff Joann Whiting petitioned this Court to review the Social Security Administration's final decision to deny her claims for Disability Insurance Benefits and Supplemental Security Income. [ECF No. 1]. I have considered the Commissioner's Motion for Summary Judgment, Plaintiff's reply, and the medical records Ms. Whiting filed in response, in addition to arguments made by Ms. Whiting's former attorney at the administrative level. [ECF Nos. 17, 19, 21]. 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 grant the Commissioner's motion and affirm the Commissioner's judgment pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.

         Ms. Whiting filed claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on February 8, 2011, alleging a disability onset date of March 31, 2009. (Tr. 391-404). Ms. Whiting later amended her alleged disability onset date to July 1, 2013. (Tr. 45). Her claims were denied initially and on reconsideration. (Tr. 137-58, 161-210). A hearing, at which Ms. Whiting was represented by counsel, was held on December 4, 2013, before an Administrative Law Judge (“ALJ”). (Tr. 73-136). Following that hearing, the ALJ determined that Ms. Whiting was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 213-34). The Appeals Council (“AC”) granted Ms. Whiting's request for review and remanded her claims for further proceedings. (Tr. 235-40). The ALJ held a second hearing, at which Ms. Whiting was again represented by counsel, on May 12, 2015. (Tr. 41-72). The ALJ subsequently issued a new decision, again finding that Ms. Whiting was not disabled. (Tr. 20-40). This time, the AC denied Ms. Whiting's request for review, (Tr. 8-12), so the ALJ's 2015 decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Ms. Whiting suffered from the severe impairments of “obesity, hypertension, hyperlipidemia, mitral valve prolapse, status-post hysterectomy and tubal ligation, alcohol dependence, depression, and adjustment disorder.” (Tr. 23). Despite these impairments, the ALJ determined that Ms. Whiting retained the residual functional capacity (“RFC”) to:

perform sedentary work, as defined in 20 CFR 404.1567(a) and 416.967(a), except that she can no more than occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; never climb ladders, ropes, and scaffolds; avoid concentrated exposure to extreme temperatures, excessive vibration, and hazards such as moving machinery and unprotected heights. In addition, she can only perform simple, routine, repetitive, low-stress (no strict production quotas) work involving no more than occasional interaction with supervisors, co-workers, and the general public.

(Tr. 25). After considering the testimony of a vocational expert (“VE”), the ALJ determined that, if Ms. Whiting stopped substance use, she could perform her past relevant work as a patient financial representative/insurance clerk, along with other jobs existing in significant numbers in the national economy. (Tr. 31-32). Accordingly, the ALJ determined that Ms. Whiting was not disabled. (Tr. 32).

         I have carefully reviewed the ALJ's opinion and the entire record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review of a pro se action challenging an adverse administrative decision, including: (1) examining whether the Commissioner's decision generally comports with regulations, (2) reviewing the ALJ's critical findings for compliance with the law, and (3) determining from the evidentiary record whether substantial evidence supports the ALJ's findings). For the reasons described below, substantial evidence supports the ALJ's decision.

         The ALJ proceeded in accordance with applicable law at all five steps of the sequential evaluation. The ALJ ruled in Ms. Whiting's favor at step one and determined that she has not engaged in substantial gainful activity since her amended alleged onset date of July 1, 2013. (Tr. 23); see 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the ALJ then considered the severity of each of the impairments that Ms. Whiting claimed prevented her from working. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). After finding at least one of Ms. Whiting's impairments severe, (Tr. 23), the ALJ continued with the sequential evaluation and considered, in assessing Ms. Whiting's RFC, the extent to which her impairments limited her ability to work.

         At step three, the ALJ determined that Ms. Whiting's impairments did not meet the specific requirements of, or medically equal the criteria of, any listings. (Tr. 23-25). In particular, because Ms. Whiting alleged several mental impairments, the ALJ applied the special technique for evaluation of such claims, using a five-point scale to rate a claimant's degree of limitation in the first three areas: none, mild, moderate, marked, or extreme. 20 C.F.R. § 416.920a(c)(4). In order to satisfy paragraph B, a claimant must exhibit either “marked” limitations in two of the first three areas, or “marked” limitation in one of the first three areas with repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.02. The ALJ determined that, even “including the substance use disorder, ” Ms. Whiting had only mild restriction in activities of daily living, moderate difficulties in social functioning and concentration, persistence, or pace, and no episodes of decompensation. (Tr. 24). Therefore, the mental health listings are not met. The ALJ did not identify or evaluate any physical listings. Under 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. See Huntington v. Apfel, 101 F.Supp.2d 384, 390 (D. Md. 2000) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)); see also Ketcher v. Apfel, 68 F.Supp.2d 629, 645 (D. Md. 1999) (noting that the “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”). I have carefully reviewed the record, and I agree that no listings are met in this case.

         In considering Ms. Whiting's RFC, the ALJ summarized her subjective complaints from her hearing testimony. (Tr. 25). The ALJ then engaged in a detailed review of her mental and physical medical records. (Tr. 25-29). The ALJ noted that the substantive mental health records in the file included only (1) a mental health screening with Dr. Veronica Franklin on August 24, 2011; (2) a psychiatric evaluation with Dr. Nadia Zakriya on June 5, 2012; and (3) a follow-up evaluation with Dr. Franklin on May 15, 2013. (Tr. 25-26). Dr. Franklin then issued a series of opinions about Ms. Whiting's functional capacities. (Tr. 26-27). In assessing those opinions, the ALJ noted: “In a statement dated June 3, 2015, Dr. Franklin indicated that she had seen the claimant in weekly sessions since June[, ] 2012. The undersigned notes that there is no objective clinical evidence to support this claim.” (Tr. 27). The ALJ further stated, with respect to Dr. Franklin:

In addition, she asserts a variety of diagnoses and symptoms to support her conclusions, none of which are objectively documented in the record, as there are no ongoing objective treatment notes in evidence containing the necessary clinical signs and laboratory studies. It follows that her June[, ] 2015 conclusions are afforded no more than modest weight, because the supporting facts she presents are not supported by any objective clinical treatment notes.

(Tr. 28).

         Ultimately, my review of the ALJ's decision is confined to whether substantial evidence, in the record as it was reviewed by the ALJ, supports the decision and whether correct legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 404 (1971). Even if there is other evidence that may support Ms. Whiting's position, I am not permitted to reweigh the evidence or to substitute my own judgment for that of the ALJ. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). It is the claimant's burden to produce medical records in support of her claim. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (noting that the claimant bears the burden of proof during the first four steps of the sequential evaluation). In fact, in this case, Ms. Whiting's then-attorney requested additional time to provide treatment records from Dr. Franklin, and then requested another one-week extension, but eventually produced only Dr. Franklin's unsubstantiated opinions without supporting documentation. (Tr. 44, 527). In considering the entire record, and the evidence outlined above, I cannot find error in the ALJ's conclusion that Dr. Franklin's assertions were simply unsupported by the record evidence. I note that, even in the more complete set of medical records filed in this Court by Ms. ...


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