United States District Court, D. Maryland
PAUL FRANKLIN SMICK, SR.
COMMISSIONER, SOCIAL SECURITY
AMENDED REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
to Standing Order 2014-01, the above-referenced case was
referred to me to review the parties' cross-motions for
summary judgment and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF
No. 5]. On November 30, 2017, I issued a Report and
Recommendations. [ECF No. 22]. On December 14, 2017, the
Commissioner filed an objection to the Report and
Recommendations. [ECF No. 23]. As a result, Judge Hollander
recommitted the matter to me with instructions to consider
the objection and to make any changes required. [ECF No. 24].
This Amended Report and Recommendations supersedes the
original Report and Recommendations. I have considered the
parties' cross-motions for summary judgment. [ECF Nos.
18, 21]. This Court must uphold the Commissioner's
decision if it is supported by substantial evidence and if
proper legal standards were employed. 42 U.S.C. §
405(g); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987). I find that no hearing is necessary. See
Local Rule 105.6 (D. Md. 2016). For the reasons set forth
below, I recommend that Mr. Smick's motion be denied,
that the Commissioner's motion be granted, and that the
Commissioner's judgment be affirmed pursuant to sentence
four of 42 U.S.C. § 405(g).
Smick applied for Disability Insurance Benefits
(“DIB”) on January 25, 2011, alleging a
disability onset date of September 5, 2008. (Tr. 144-45). His
claim was denied initially and on reconsideration. (Tr.
94-97, 101-02). An Administrative Law Judge
(“ALJ”) held a hearing on January 30, 2013, (Tr.
29-69), and subsequently denied benefits to Mr. Smick in a
written opinion dated April 22, 2013, (Tr. 7-28). The Appeals
Council declined review of that 2013 opinion. (Tr. 1-6). The
supplementary material added to the original transcript
reflects that this Court remanded Mr. Smick's case to the
Commissioner for further review on July 27, 2015, due to
deficiencies in the ALJ's 2013 opinion. (Tr. 704-09). A
different ALJ held a new hearing on March 23, 2016, (Tr.
633-56), and issued an order again denying benefits on April
5, 2016. (Tr. 610-22). The Appeals Council declined review,
(Tr. 601-06), making the ALJ's 2016 decision the final,
reviewable decision of the Agency.
found that Mr. Smick suffered from the severe impairments of
“degenerative disc disease of the lumbar spine;
osteoarthritis of the hips and knees; bilateral shoulder
impingement; and depression.” (Tr. 612). Despite these
impairments, the ALJ determined that, through his date last
insured of December 31, 2013, Mr. Smick had retained the
residual functional capacity to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except he could occasionally climb ramps and stairs, but
never ladders, ropes, or scaffolds; could occasionally
balance, stoop, kneel, crouch, and crawl; required the option
to sit/stand at will while remaining on task; with both arms
could occasionally reach overhead, frequently reach in all
other directions, and frequently push/pull; could have
occasional exposure to extreme cold, vibration, and hazards;
and could perform simple, unskilled tasks, that required no
fast pace or strict production requirements, with occasional
changes in the work-setting, occasional decision-making, and
occasional interaction with co-workers and the public.
(Tr. 615). After considering the testimony from a vocational
expert (“VE”), the ALJ determined that, between
his alleged onset date and his date last insured, Mr. Smick
was capable of performing several jobs existing in
significant numbers in the national economy, and that,
therefore, he was not disabled. (Tr. 621-22).
Smick raises several arguments on appeal, but focuses on the
inadequacy of the ALJ's determination that his impairment
did not meet or equal the criteria set forth in Listing
12.04. I disagree, because the ALJ's 2016 opinion
contains substantial evidence to support the conclusions
assessing mental health listings at step three, an ALJ
applies the special technique for evaluating mental
impairments. See 20 C.F.R. § 404.1520a. The ALJ
“must first evaluate [the claimant's] pertinent
symptoms, signs, and laboratory findings to determine whether
[he or she] ha[s] a medically determinable mental
impairment(s).” Id. § 404.1520a(b)(1).
The ALJ must “then rate the degree of functional
limitation resulting from the impairment(s)” in four
broad functional areas. Id. §§
404.1520a(b)(2), 404.1520a(c). The ALJ must document the
application of the technique in the hearing decision,
incorporating pertinent findings and conclusions, and
documenting the significant history and functional
limitations that were considered. Id. §
the 2013 opinion in Mr. Smick's case contained an
inadequate evaluation of Listing 12.04, the error was
rectified in the 2016 opinion. The ALJ cited to each of the
relevant functional areas, assigned an appropriate level of
restriction for each area, and provided supporting analysis
including citation to evidence of record. (Tr. 613-14). The
ALJ concluded that Mr. Smick suffered only mild restriction
in activities of daily living, and moderate difficulties in
the areas of social functioning and concentration,
persistence, or pace. (Tr. 614). Mr. Smick's primary
contention is that he had more significant social functioning
issues that warranted “marked limitations, ” as
evidenced by the deterioration of his marriage. Pl. Mot.
12-13. Even if that were true and Mr. Smick were more limited
in social functioning, Mr. Smick would not be found disabled
unless the ALJ also discerned marked limitations in another
functional area, and the record evidence simply does not
support that level of restriction. Accordingly, given the
evidence cited by the ALJ in his analysis of Listing 12.04,
there is no basis for remand.
Smick makes several other arguments, including an argument
that the ALJ failed to afford appropriate weight to the
“opinions of Dr. Yu, the Claimant's treating
psychiatrist.” Pl. Mot. 10-11. The record, however,
does not reflect that Dr. Yu ever issued any opinions
regarding Mr. Smick's functional capacity or his ability
to work. Mr. Smick's argument appears to pertain to the
GAF score that Dr. Yu assigned during his initial evaluation
on September 29, 2011. Id. at 11. However, “a
GAF score is not determinative of whether a person is
disabled. Rather, the Social Security Administration does not
endorse the use of the GAF in Social Security and SSI
disability programs, and it does not directly correlate to
the severity requirements in the mental disorders
listings.” Melgarejo v. Astrue, No. JKS
08-3140, 2009 WL 5030706, at *2 (D. Md. Dec. 15, 2009)
(citing Revised Medical Criteria for Evaluating Mental
Disorders and Traumatic Brain Injury, 65 Fed. Reg.
50746, 50764-65 (Aug. 21, 2000)). Moreover, the GAF score
assigned in that initial evaluation does not reflect a
longitudinal assessment of Mr. Smick's condition and does
not take into account the medication and therapy Dr. Yu
prescribed to improve Mr. Smick's symptoms. The ALJ fully
considered the GAF score and cited substantial evidence to
support the assignment of “no weight.” (Tr. 619).
I thus find no error in that assessment.
Smick also contends that the ALJ cited to some treatment
notes without mentioning all of the information contained
therein. Pl. Mot. 10. However, this Court's role is not
to reweigh the evidence or to substitute its judgment for
that of the ALJ, but simply to adjudicate whether the
ALJ's decision was supported by substantial evidence.
See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Even though Mr. Smick might be able to point to pieces
of evidence to support his viewpoint, this Court may not
credit certain evidence over the substantial evidence relied
upon by the ALJ. Moreover, the ALJ need not discuss all
evidence in reaching his conclusion. See Murphy v.
Barnhart, 417 F.Supp.2d 965, 970 (N.D. Ill. 2006);
see also Brown ex rel. Brown v. Comm'r of Soc.
Sec., 311 F.Supp.2d 1151, 1160 (D. Kan. 2004).
reasons set forth above, I respectfully recommend that:
Court GRANT Defendant's Motion for Summary ...