United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF No. 4]. I have
considered the parties' cross-motions for summary
judgment, and Mr. McNair's Response. [ECF Nos. 18, 21,
22]. I find that no hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). This Court must uphold the decision
of the Social Security Administration (“SSA”) if
it is supported by substantial evidence and if the SSA
employed proper legal standards. 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). For the reasons set forth below, I
recommend that the Court deny Mr. McNair's motion, grant
the SSA's motion, and affirm the SSA's judgment
pursuant to sentence four of 42 U.S.C. § 405(g).
McNair applied for Disability Insurance Benefits
(“DIB”) on January 9, 2013, alleging a disability
onset date of May 6, 2011. (Tr. 180-86). His application was
denied initially and on reconsideration. (Tr. 67-79, 81-92,
96-100, 102-03). An Administrative Law Judge
(“ALJ”) held a hearing on December 17, 2015, at
which Mr. McNair was represented by counsel. (Tr. 27-66).
Following the hearing, the ALJ determined that Mr. McNair was
not disabled within the meaning of the Social Security Act.
(Tr. 6-26). The Appeals Council (“AC”) denied Mr.
McNair's request for further review, (Tr. 1-5), so the
ALJ's decision constitutes the final, reviewable decision
of the Agency.
found that Mr. McNair suffered from the severe impairments of
“spine disorders, diabetes mellitus, disorders of the
parathyroid gland, major joint dysfunction, obesity,
affective disorder, and post-traumatic stress
disorder.” (Tr. 11). Despite these impairments, the ALJ
determined that Mr. McNair retained the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) except he
can stand for up to one hour and sit for up to one hour and
can alternate between the two positions throughout the
workday. The claimant can occasionally climb ramps or stairs;
occasionally climb ladders, ropes, scaffolds; occasionally
balance; and frequently stoop, kneel, crouch, and crawl. He
can frequently reach with his left, dominant upper extremity;
he can never reach overhead with his left upper extremity. He
can have occasional exposure to extreme cold and extreme
heat, and occasional exposure to hazards such as moving
machinery and unprotected heights. He is limited to simple,
routine, and repetitive tasks in a work environment free of
fast paced production requirements, involving only simple,
work-related decisions with few, if any, work-place changes.
(Tr. 14). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. McNair
could perform jobs existing in significant numbers in the
national economy, and that, therefore, he was not disabled.
appeal, Mr. McNair raises several arguments, including that:
(1) the ALJ failed to properly consider the effects of his
obesity in the Listing analysis; (2) the ALJ failed to
properly consider the effects of his obesity in his RFC
assessment; (3) the ALJ erred in his determination that Mr.
McNair's affective disorder did not meet or equal the
criteria of any Listing; and (4) the ALJ erroneously
determined that Mr. McNair's testimony was not credible.
These arguments lack merit for the following reasons.
Mr. McNair argues that the ALJ failed to properly consider
the effects of morbid obesity in his Listing analysis and RFC
assessment. Pl. Mot. 5-7. Social Security Regulation 02-1p
(“SSR 02-1p”) provides that the ALJ will consider
obesity in determining whether the claimant has a medically
determinable impairment, whether the claimant's
impairment is severe, whether the claimant's impairment
meets or equals the criteria of any listings, and whether the
claimant's impairment prevent him from doing past
relevant work or other work existing in significant numbers
in the national economy. SSR 02-1p, 2002 WL 34686281, *3
(S.S.A. Sept. 12, 2002). Importantly, the claimant bears the
burden to provide evidence of the functional limitations
caused by his severe impairments, including obesity.
Hancock v. Astrue, 667 F.3d 470, 471-72 (4th Cir.
2012) (citing Hunter v. Sullivan, 993 F.2d 31, 35
(4th Cir. 1992) (per curiam)); see also Thompson v.
Comm'r of Soc. Sec., No. TJS-12-3331, 2014 WL
992528, at *2 (D. Md. Mar. 12, 2014) (“The claimant
carries the burden of showing how his obesity affects his
ability to perform work-related functions.”) (citing
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995)).
instant case, the ALJ adequately assessed Mr. McNair's
obesity during the Listing analysis and RFC assessment. In
the Listing analysis, the ALJ began by noting that Mr. McNair
“has been diagnosed with obesity with a BMI of
49.39.” (Tr. 12). He then explained that he
“considered the combination of the claimant's
obesity with the other impairments, pursuant to [SSR] 02-01p.
. . . [and] considered the added impact the claimant's
obesity has on his symptoms.” Id. The ALJ
concluded that he “d[id] not find that the added effect
causes the claimant's impairments to meet or equal a
listing.” Id. In doing so, the ALJ cited to
Mr. McNair's medical records describing Mr. McNair's
mental status as “[a]lert, ” his general
appearance as “[w]ell groomed, ” his orientation
as “[o]riented X3, ” and his build and nutrition
as “[w]ell nourished and [w]ell developed.” (Tr.
683). The records cited by the ALJ also reveal that Mr.
McNair exhibited no negative symptoms related to his
respiratory, cardiovascular, gastrointestinal,
musculoskeletal, or neurological health. Id.
the ALJ cited to medical records and discussed the effects of
obesity on Mr. McNair's RFC elsewhere in the decision.
See (Tr. 15-20). The ALJ, for example, included a
sit-stand option in Mr. McNair's RFC “to account
for the limitations the claimant alleged due to his knee and
obesity issues . . . .” (Tr. 20). Notably, Mr. McNair
has not identified or cited to evidence of any particular
limitations that are caused by his obesity. See McNeill
v. Comm'r, Soc. Sec. Admin., Civil No. SAG-14-2307,
2015 WL 5157493, at *2 (D. Md. Aug. 31, 2015) (holding that
the ALJ adequately discussed the effects of the
claimant's obesity in part because there is “no
indication in the record that [the claimant's] obesity
would medically equal any other listing”); see also
Brown v. Astrue, Civil No. JKS-09-1792, 2011 WL 129006,
at *2 (D. Md. Jan. 14, 2011) (denying remand where the
claimant failed to identify any evidence suggesting that his
obesity caused greater limitations than the ALJ assigned).
Accordingly, the ALJ properly evaluated Mr. McNair's
obesity in the Listing analysis and the RFC assessment.
Mr. McNair contends that the ALJ erred in his conclusion that
his mental impairments did not meet or equal the criteria of
any listing and “substitute[d] his own judgment for
that of a mental health professional.” Pl. Mot. 7-8.
Specifically, Mr. McNair appears to argue that the ALJ
improperly discounted the opinions of his therapist, William
Cullison, in determining that Mr. McNair's mental
impairment did not meet or medically equal the criteria set
forth by Listing 12.04. Id. At step three of the
sequential evaluation, the ALJ determines whether the
claimant's impairments meet or medically equal any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. Listings 12.00 et seq. pertain to mental
impairments. 20 C.F.R. Pt. 404, Subpt. P, App'x 1 §
12.00. Relevant to the instant case, Listing 12.04 consists
of: (1) a brief statement describing a subject disorder; (2)
“paragraph A criteria, ” which consists of a set
of medical findings; and (3) “paragraph B criteria,
” which consists of a set of impairment-related
functional limitations. Id. §§ 12.00,
12.04. If both the paragraph A criteria and the paragraph B
criteria are satisfied, the ALJ will determine that the
claimant meets the listed impairment. Id.
B consists of four broad functional areas: (1) activities of
daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation. The
ALJ employs the “special technique” to rate a
claimant's degree of limitation in each area, based on
the extent to which the claimant's impairment
“interferes with [the claimant's] ability to
function independently, appropriately, effectively, and on a
sustained basis.” 20 C.F.R. § 404.1620a(c)(2). The
ALJ uses a five-point scale to rate a claimant's degree
of limitation in the first three functional areas: none,
mild, moderate, marked, or extreme. Id. §
404.1620a(c)(4). 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'x 1 § 12.04. Marked limitations “may
arise when several activities or functions are impaired, or
even when only one is impaired, as long as the degree of
limitation is such as to interfere seriously with [the
claimant's] ability to function.” Id.
the ALJ provided substantial evidence to support his
conclusion that Mr. McNair's mental impairment did not
meet or medically equal the criteria set forth in Listing
12.04. The ALJ found that Mr. McNair had “mild”
restriction in daily living activities;
“moderate” difficulties in social functioning and
concentration, persistence, or pace; and no episodes of
decompensation. (Tr. 13-14). In doing so, the ALJ cited to
and discussed the evidence of record, including Mr.
McNair's own statements regarding his daily activities
and symptoms. Notably, the ALJ observed that Mr. McNair
“cooks dinner for his family, can dress and bathe
himself, drives places, and shops for groceries, ” as
well as “watches 3-4 hours of television daily and
reads books.” See (Tr. 13) (citing (Tr.
448-49)). The ALJ further noted that Mr. McNair regularly
attends church, and “talks with others and attends
social gatherings.” (Tr. 13); see also (Tr.
448) (psychiatric disability assessment, noting that Mr.
McNair “goes to family gatherings with his wife and
daughter as well as out to a restaurant.”); (Tr. 226)
(Mr. McNair's function report, in which Mr. McNair stated
that he goes to church, drives his daughter to school, goes
shopping, takes his wife to work, and visits family and
friends). Later, in his RFC assessment, the ALJ also
evaluated the opinion of Mr. Cullison. (Tr. 19). Assigning
significant weight to Mr. Cullison's findings, the ALJ
observed that Mr. Cullison found Mr. McNair to have
“intact cognitive functioning and short/long-term
memory, ” and that he was “fully oriented with
fair insight, judgment, and behavior.” Id. Mr.
Cullison's findings also revealed that, despite his
non-compliance with medical treatment, Mr. McNair had
“‘fair' status with mood at 4 out of 10 and
anxiety at 6 out of 10, with minimal improvement thus
far.” Id. Thus, in light of the ALJ's
extensive discussion of and citation to the evidence of
record, the ALJ provided substantial evidence to support his
conclusion that Mr. McNair's mental impairment did not
meet or medically equal Listing 12.04.
Mr. McNair argues that the ALJ erroneously determined that
his testimony was not fully credible. Pl. Mot. 9. In
evaluating a claimant's symptoms, the ALJ must follow a
two-step process. SSR 16-3P, 2016 WL 1119029, at *2 (S.S.A.
Mar. 16, 2016). First, the ALJ must consider whether the
claimant has an “underlying medically determinable
physical or mental impairment(s) that could reasonably be
expected to produce an individual's symptoms, such as
pain.” Id. Second, the ALJ must
“evaluate the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit
an individual's ability to perform work-related
activities.” Id. In doing so, the ALJ will
“examine the entire case record, including the
objective medical evidence; an individual's statements
about the ...