United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
to Standing Order 2014-01, the above-referenced case has been
referred to me for review of 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). The
Plaintiff, Atousa Sabet Kashani, who is appearing pro
se, filed initial correspondence and a response to the
Motion for Summary Judgment filed by the Social Security
Administration (“SSA”). [ECF Nos. 16, 21]. I have
considered those filings, along with the SSA's Motion for
Summary Judgment. [ECF No. 19]. This Court must uphold the
SSA's decision if it is supported by substantial evidence
and if proper legal standards were employed. 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). I find that no hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the
reasons set forth below, I recommend that the SSA's
motion be denied, the decision of the SSA be reversed in
part, and the case be remanded to the SSA for further
consideration pursuant to sentence four of 42 U.S.C. §
Kashani filed her applications for Disability Insurance
Benefits and Supplemental Security Income in July, 2013,
alleging a disability onset date of June 1, 2013. (Tr.
155-62). Her applications were denied initially and on
reconsideration. (Tr. 51-57, 58-64, 67-76, 77-86, 89-93,
95-98). A hearing, at which Ms. Kashani was represented by
counsel, was held on September 20, 2016. (Tr. 32-50). After
the hearing, the Administrative Law Judge (“ALJ”)
issued an opinion denying benefits. (Tr. 12-26). The Appeals
Council denied review, making the ALJ's decision the
final, reviewable decision of the SSA. (Tr. 1-5).
found that, during the relevant time frame, Ms. Kashani
suffered from the severe impairments of “diabetes,
diabetic neuropathy, degenerative disc disease, morbid
obesity, carpal tunnel syndrome, recurrent kidney stone and
urinary tract infection.” (Tr. 14). Despite these
impairments, the ALJ determined that Ms. Kashani retained the
residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant can perform semiskilled work
with the option to alternate between sitting and standing but
will not be off task more than 10% of the work period. The
claimant can perform constant reaching, handling, fingering
and feeling with the dominant upper extremity and can
frequently interact with supervisors, coworkers, and the
general public in performing work that does not require
satisfaction of production pace.
(Tr. 17). Although the ALJ took testimony from a vocational
expert (“VE”), the ALJ determined, without
reference to that testimony, that Ms. Kashani was not
disabled “under the framework of Medical-Vocational
Rules 202.21 and 202.14.” (Tr. 26).
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 SSA'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, while
substantial evidence supports some portions of the ALJ's
decision, the analysis is otherwise deficient and applies
incorrect legal standards. Accordingly, I recommend remand.
one, the ALJ found in Ms. Kashani's favor that she had
not engaged in substantial gainful activity since her alleged
onset date. (Tr. 14). At step two, the ALJ found the severe
impairments listed above, and also found that other alleged
impairments, including fatty liver disease, hypertension,
thyroid disorder, asthma, sleep apnea, and intermittent
abscesses and lipoma, were nonsevere. (Tr. 14-15). The ALJ
also concluded that Ms. Kashani had not established
fibromyalgia as a medically determinable impairment. (Tr.
three, the ALJ specifically considered Listings 1.02 (Major
Dysfunction of a Joint), 1.04 (Degenerative Disc Disease),
and 9.0 (Diabetes). The ALJ reviewed the criteria of each
listing, and properly discussed which criteria were absent
from the medical evidence.
determining Ms. Kashani's RFC assessment at step four,
the ALJ summarized her allegations from her testimony and her
function reports regarding her inability to perform work
activity. (Tr. 17-18). The ALJ then engaged in an extensive
review of the medical records, focusing on the connection
between Ms. Kashani's morbid obesity and her various
impairments. (Tr. 18-23). The ALJ seemed to suggest that Ms.
Kashani's refusal to undergo bariatric surgery or
laparoscopic banding contributed to her ongoing medical
issues, though the ALJ acknowledged that she
“demonstrated the ability to lose weight without
surgery or appetite suppressant medications.” (Tr. 19).
first significant flaw in the decision lies in the ALJ's
consideration of the medical opinion evidence. The ALJ
“partially credited” the opinions of the State
agency consultants, stating that “the consultant did
not address noncompliance with physical therapy and Lyrica,
evidence of weight loss, or the effectiveness of various
injections.” (Tr. 23-24). The ALJ did not indicate how
consideration of those developments would have affected Ms.
Kashani's RFC assessment. The ALJ then assigned
“great weight” to two reports from treating
physicians that provided no information about Ms.
Kashani's ability to perform work: Dr. Sharma's
opinion that “uncontrolled diabetes was a major
contributing factor to nonhealing wound, frequent urinary
tract infection, and abscess, ” and Dr. Reyes
Costano's opinion “that the claimant was an
excellent candidate for bariatric surgery.” (Tr. 24).
Those assignments of “great weight” are unusual,
since the reports do not constitute opinions regarding Ms.
Kashani's capacity for performing work-related tasks. The
ALJ then assigned only “limited weight” to an
evaluation from a consultative examiner who found Ms. Kashani
to have very limited functional abilities, stating only that,
“The clinical examination findings are credited but the
medical opinion receives limited weight in determining the
maximum residual functional capacity for full-time
work.” (Tr. 24). The ALJ did not explain why the
consultative examiner's opinion received only limited
assignment is especially perplexing, given that the
consultative examiner's opinion containing significant
limitations agreed with the similarly restrictive opinions
issued by Ms. Kashani's two treating physicians: Drs.
Hila and Levine. (Tr. 24-25). The ALJ assigned each of those
two opinions “limited weight, ” citing “the
self-limiting effects of noncompliance or the improvement
that was expected with physical therapy and weight
loss.” (Tr. 25). Essentially, it appears that the ALJ
believes that Ms. Kashani's physical condition could have
been improved had she lost weight (via weight-loss surgery or
otherwise). However, an ALJ is not supposed to predicate an
RFC assessment on guesswork or speculation about what the
results of particular treatments may have been, particularly
in the absence of any medical opinions substantiating that
speculation. Essentially, like in Lewis v.
Berryhill, 858 F.3d 858 (4th Cir. 2017), “the ALJ
erred by failing to appreciate the consistent prognosis of
[the claimant's] treating physicians in contravention of
the mandate that ‘controlling weight' be accorded
to such opinions.” Id. at 868 (citing 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)). Here,
like in Lewis, “[t]he ALJ's failure to
‘build an accurate and logical bridge from the evidence
to his conclusion' constitutes reversible error.”
Id. (quoting Monroe v. Colvin, 826 F.3d
176, 189 (4th Cir. 2010).
function of this Court is not to review Ms. Kashani's
claims de novo or to reweigh the evidence of record.
See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986) (citing 42 U.S.C. § 405(g) and Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather,
this Court is to determine whether, upon review of the whole
record, the SSA's decision is supported by substantial
evidence and a proper application of the law. See 42
U.S.C. § 405(g); see also Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). As a result of the flawed
analysis of the medical opinion evidence in this case, I am
unable to recommend that finding.
at step four, the ALJ found that Ms. Kashani was unable to
perform her past relevant work as a nurse assistant and
dental assistant. (Tr. 25). At step five, the ALJ noted that
if Ms. Kashani had the RFC to perform a full range of light
work, a finding of “not disabled” would be
appropriate pursuant to Medical Vocational Rule 202.21 and
202.14. (Tr. 26). Although the ALJ had determined that Ms.
Kashani could perform only a restricted range of light work,
the ALJ concluded that the “additional limitations have
little effect on the occupational base of unskilled light
work.” (Tr. 26). The ALJ only addressed Ms.
Kashani's relatively minor limitations in the area of
fine manipulation, but did not address any of the other
limitations which would potentially have a larger effect on
the occupational base. See, e.g., (Tr. 17) (RFC
assessment requiring an “option to alternate between
sitting and standing” and “work that does not
require satisfaction of production pace.”). In fact, in
an unpublished opinion, the Fourth Circuit specifically
concluded that a requirement for a sit/stand option places a
claimant “outside the category of individuals
contemplated by the Medical-Vocational Guidelines.”
See Golini v. Astrue, 483 Fed. App'x 806, 808
(4th Cir. 2012). Because the restrictions determined by the
ALJ do not permit a clear conclusion that the restrictions
have “very little effect on the exertional occupational
base, ” the ALJ was required to consult the VE and to
rely upon the VE's testimony in reaching a conclusion.
See SSR 83-14, 1983 WL 31254, at *6 (S.S.A. Jan. 1,
1983) (“Where the adjudicator does not have a clear
understanding of the effects of additional limitations on the
job base, the services of a [VE] will be necessary.”).
The only other authority cited by the ALJ, SSR 85-15, does
not specifically address whether Ms. ...