United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge
Ms. Whiting and Counsel:
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.
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.
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).
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.
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.
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.
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.
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. ...