United States District Court, D. Maryland
COREEN I. THYME
COMMISSIONER, SOCIAL SECURITY
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. 6]. I have
considered the parties' cross-dispositive motions, and
Ms. Thyme's reply. [ECF Nos. 22, 32, 34]. 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 Agency 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
both motions be denied, that the SSA's decision be
reversed in part, and that the case be remanded to the SSA
for further analysis.
prior denial of benefits, Ms. Thyme protectively filed an
application for Supplemental Security Income on August 28,
2013, alleging a disability onset that same day. (Tr.
91-100). Her application was denied initially and on
reconsideration. (Tr. 52-61, 63-72). An Administrative Law
Judge (“ALJ”) held a hearing on June 29, 2016, at
which Ms. Thyme was represented by counsel. (Tr. 28-51).
Following the hearing, the ALJ determined that Ms. Thyme was
not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 10-27). The Appeals
Council denied Ms. Thyme's request for review, (Tr. 1-6),
so the ALJ's decision constitutes the final, reviewable
decision of the SSA.
found that Ms. Thyme suffered from the following medically
mild levoscoliosis, probable T9-10 herniation, disc
displacement, disc disorder, arthropathy, congenital pes
planus, diabetic neuropathy/peripheral neuropathy, peripheral
edema, elevated alkaline phosphate, elevated blood protein,
elevated creatinine, diabetes, mild diabetic retinopathy,
glaucoma suspect, morbid obesity,
dyslipidemia/hyperlipidemia, gastro esophageal reflux disease
(GERD), gastritis, helicobacter (H Pylori) infection, vitamin
D deficiency, hypertension, skin lesion, acute right flank
pain, low back pain, back pain, chronic low back pain,
lumbago, chronic pain, right elbow pain, left knee pain and
(Tr. 15). The ALJ next concluded, however, that Ms. Thyme did
not have a severe impairment or combination of impairments.
(Tr. 16). Accordingly, the ALJ concluded that Ms. Thyme was
not disabled. (Tr. 22-23).
Thyme disagrees. Among other arguments, Ms. Thyme argues that
the ALJ improperly applied the standard for finding a severe
impairment and improperly assessed her subjective assertions
of disabling pain. I agree.
Thyme's various arguments can be condensed to her one
primary position: that the ALJ incorrectly deemed all of her
various medically determinable impairments to be nonsevere.
Importantly, a claimant's burden of showing a severe
impairment at step two is only a “de minimis
screening device used to dispose of groundless claims.”
Taylor v. Astrue, Civil No. BPG-11-032, 2012 WL
294532, at *8 (D. Md. Jan. 31, 2012) (quoting Webb v.
Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (emphasis
added)); see also Felton-Miller v. Astrue, 459
Fed.Appx. 226, 230 (4th Cir. 2011) (“Step two of the
sequential evaluation is a threshold question with a de
minimis severity requirement.”). Accordingly, any doubt
or ambiguity in the evidence at step two should be resolved
in the claimant's favor, and the ALJ should continue with
the sequential evaluation. See SSR 85-28, 1985 WL
56856 (S.S.A. Jan. 1, 1985).
as Ms. Thyme points out and the SSA largely concedes, the
ALJ's evaluation contains numerous inaccuracies and
contradictory statements. See, e.g., Def. Mot. 4
(“Defendant acknowledges that the ALJ's decision in
this case is not a model of clarity.”); id. at
7 (“As Plaintiff notes, the ALJ also incorrectly stated
that the record did not contain a diagnosis of
‘arthritis' by a medically acceptable
source.”); id. at 12-13 (“Defendant
acknowledges that the ALJ incorrectly stated that laboratory
imaging did not establish an elbow impairment.”). For
example, the ALJ made an express finding that Ms. Thyme had
31 “medically determinable impairments, ” (Tr.
15), but then subsequently asserted that many of those same
diagnoses did not constitute “medically determinable
impairments, ” (Tr. 19). The ALJ's analysis applied
inaccurate legal standards. For example, the ALJ found that
“[p]ain and the other subjective complaints are not
medically determinable impairments, ” id., and
that such subjective complaints cannot “support the
finding of disability without demonstrated medically
acceptable signs or laboratory findings to support the same,
” id. However, the ALJ went on to cite to
medically acceptable signs and laboratory findings which
could evidence back impairments capable of causing pain,
particularly in connection with Ms. Thyme's obesity (a
body-mass index regularly exceeding 35). See Id.
(noting MRI results showing degenerative changes in spine and
examination results reflecting “positive facet loading,
limited range of motion related to pain, spasm and subjective
tenderness and pain”). Diagnostic imaging also
established bone spurs on Ms. Thyme's right elbow. (Tr.
appears to conclude that none of those objective test results
would cause the degree of limitations Ms. Thyme alleges.
However, the ALJ's reliance exclusively on the objective
test results to evaluate Ms. Thyme's allegations of
disabling pain is problematic. The regulations prohibit an
ALJ from rejecting “your statements about the intensity
and persistence of your pain or other symptoms or about the
effect your symptoms have on your ability to work solely
because the available objective medical evidence does not
substantiate your statements.” 20 C.F.R. §§
404.1529(c)(2), 416.929(c)(2). Thus, the ALJ's apparent
view that the degenerative changes, probable herniated disc,
and bone spurs reflected in the objective testing could not
justify Ms. Thyme's subjective allegations of pain
intensity contravenes the applicable legal standard.
although the ALJ attempts to suggest that Ms. Thyme's
activity level belies her allegations of disabling pain, the
ALJ's recitation of her activities actually seems to
substantiate some significant limitations. See,
e.g., (Tr. 22) (“She goes shopping but uses a
motorized cart.”); id. (“She gets five
hours of sleep that can be interrupted by burning sensation
in her feet and aches and pains in her body.”). The ALJ
failed to explain what statements by Ms. Thyme actually
undercut her subjective evidence of pain intensity. See
Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)
(“A necessary predicate to engaging in substantial
evidence review is a record of the basis for the ALJ's
ruling, ” including “a discussion of which
evidence the ALJ found credible and why, and specific
application of the pertinent legal requirements to the record
evidence.”); see also SSR 96-8p, 1996 WL
374184, at *7 (S.S.A. July 2, 1996) (“The RFC
assessment must include a narrative discussion describing how
the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).”).
Here, the ALJ's apparent determination that objective
medical evidence alone had to establish Ms. Thyme's
degree of pain intensity improperly increased her burden of
proof. See 20 C.F.R. §§ 404.1529(c)(2),
the ALJ's evaluation of the opinion of Ms. Thyme's
treating nurse practitioner is flawed. Pursuant to the
Because symptoms, such as pain, are subjective and difficult
to quantify, any symptom-related functional limitations and
restrictions that your medical sources or nonmedical sources
report, which can reasonably be accepted as consistent with
the objective medical evidence and other evidence, will be
taken into account as explained in [20 C.F.R. §
404.1529(c)(4) and § 416.929(c)(4)] in reaching a
conclusion as to whether you are disabled.
Id. §§ 404.1529(c)(3), 916.929(c)(3).
Under that standard, the ALJ's rejection of the medical
statement from Ms. Thyme's nurse practitioner, Chrinma
Njoka, is unpersuasive. Without citation, the ALJ asserts
that Ms. Njoka's position is “internally
inconsistent” because it finds Ms. Thyme capable of
some sitting and standing, but no stooping. The ALJ posits
that because stooping is the motion required to sit and
stand, Ms. Njoka is taking contradictory positions. (Tr. 21).
However, if the functional capacity for
“stooping” in a vocational context were
synonymous with an ability to sit down or stand up, stooping
would not be considered as a separate postural limitation.
Clearly, the assessment of a claimant's ability to
“stoop” looks at repeated stooping in the course
of performing a task, and not simply the motion required to
change positions from sitting to standing. Additionally, the
ALJ suggests that Ms. Njoka's treatment notes contain
“completely normal longitudinal objective
findings” when, in fact, the findings vary from
appointment to appointment. See, e.g., (Tr. 229-30)
(September 9, 2013 appointment notes reflecting paresthesia
of the distal extremities and tenderness in the lower
extremity); (Tr. 288) (November 14, 2013 examination notes
showing tenderness in the shoulder and knee/patella); (Tr.
308, 313) (appointment notes from various dates in 2014
addressing back pain); (Tr. 405) (appointment notes to check
on back pain after a hospital visit, noting ...