United States District Court, D. Maryland
9, 2017, Plaintiff Constance Denise Perger petitioned this
Court to review the Social Security Administration's
(“SSA's”) final decision to deny her claims
for Disability Insurance Benefits and Supplemental Security
Income. [ECF No. 1]. I have considered the parties'
cross-motions for summary judgment, and Ms. Perger's
reply. [ECF Nos. 17, 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 SSA's decision in part, and remand
the case to the SSA for further consideration. This letter
explains my rationale.
Perger protectively filed her claims for benefits on June 17,
2013, alleging a disability onset date of January 16, 2012.
(Tr. 200-08). Her claims were denied initially and on
reconsideration. (Tr. 75-104, 107-38). A hearing was held on
May 23, 2016, before an Administrative Law Judge
(“ALJ”). (Tr. 37-74). Following the hearing, the
ALJ determined that Ms. Perger was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 12-36). The Appeals Council denied Ms.
Perger's request for review, (Tr. 1-5), so the ALJ's
decision constitutes the final, reviewable decision of the
found that Ms. Perger suffered from the severe impairments of
“degenerative disc disease, osteoarthritis,
fibromyalgia, migraines, major depressive disorder, and
generalized anxiety disorder.” (Tr. 17). Despite these
impairments, the ALJ determined that Ms. Perger retained the
residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a), except she is limited to occasionally lifting 10
pounds and frequently less than 10 pounds; occasionally
carrying 10 pounds and frequently less than 10 pound [sic];
standing or walking up to two hours (each); occasional
bilateral reaching overhead; occasionally climb ramps and
stairs; never climb ladders, ropes, or scaffolds;
occasionally balance, stoop, kneel, crouch, and crawl; no
work around unprotected heights or moving mechanical parts;
occasional exposure to humidity and wetness; never exposure
to temperature extremes; occasional vibration; and moderate
noise. She is also limited to perform simple, routine and
repetitive tasks but not at a production rate pace (e.g.
assembly line work); limited to simple work-related decisions
with few, if any, workplace changes meaning the same duties
are performed at the same station or location from day to
day. After 30 minutes of standing or walking would need to
sit for approximately two minutes and after 30 minutes of
sitting would need to be able to stand for approximately two
minutes but would remain on task.
(Tr. 20). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Perger
could perform jobs existing in significant numbers in the
national economy and that, therefore, she was not
disabled. (Tr. 29-30).
Perger raises three primary arguments on appeal: (1) that the
ALJ improperly evaluated Listing 1.04; (2) that the ALJ did
not consider her fibromyalgia under the appropriate
standards; and (3) that the ALJ erred at step five by
applying her actual age category. I agree that the ALJ did
not provide the required analysis of each criteria of Listing
1.04. Accordingly, remand is warranted. In remanding the case
for additional consideration, I express no opinion as to
whether the ALJ's ultimate conclusion that Ms. Perger is
not entitled to benefits is correct.
cases of Radford v. Colvin, 734 F.3d 288 (4th Cir.
2013), and Fox v. Colvin, 632 Fed.Appx. 750, 753
(4th Cir. 2015), the Fourth Circuit clarified the evidentiary
requirements needed to support an ALJ's finding of
whether a claimant's impairments meet a listing at step
three of the sequential evaluation.
Fox, regarding his findings at step three of the
sequential evaluation, the ALJ stated:
Although the claimant has ‘severe' impairments,
they do not meet the criteria of any listed impairments
described in Appendix 1 of the Regulations (20 CFR, Subpart
P, Appendix 1). No. treating or examining physician has
mentioned findings equivalent in severity to the criteria of
any listed impairment, nor does the evidence show medical
findings that are the same or equivalent to those of any
listed impairment of the Listing of Impairments. In reaching
this conclusion, the undersigned has considered, in
particular, sections 9.00(B)(5) and 11.14.
632 Fed.Appx. at 754-55. The Fourth Circuit held that the
ALJ's analysis was deficient because it consisted of
conclusory statements and did not include “any
‘specific application of the pertinent legal
requirements to the record evidence.'” Id.
at 755 (quoting Radford, 734 F.3d at 295). That is,
the ALJ did not apply any findings or medical evidence to the
disability listing and “offered nothing to reveal
why he was making his decision.” Id.
The Fourth Circuit also rejected the notion that failure to
engage in meaningful analysis at step three could constitute
harmless error where the evidence of record otherwise
demonstrated that the claimant did not meet a listing.
Id. Rather, the Fox Court emphasized that
it is not this Court's role to “engage in an
analysis that the ALJ should have done in the first instance,
” or “to speculate as to how the ALJ applied the
law to its findings or to hypothesize the ALJ's
justifications that would perhaps find support in the
record.” Id. The Court noted that it could not
conduct a meaningful review “when there is nothing on
which to base a review.” Id.
to the instant case, at step three, regarding Ms.
Perger's back impairments, the ALJ stated the following:
Listing 1.04, disorders of the spine, is not met because the
record does not demonstrate compromise of a nerve root or the
spinal cord with additional findings of: A. Evidence of nerve
root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss
accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising
test or; B. Spinal arachnoiditis or; C. Lumbar spinal
stenosis resulting in pseudoclaudication, with an inability
to ambulate effectively. As discussed in greater detail below
in Finding 5, treatment has been ...