United States District Court, D. Maryland
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). I have considered
the parties' cross-dispositive motions, and
Plaintiff's reply. [ECF 14, 17, 18]. 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.
filed applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) in 2013, alleging a disability onset date
of January 17, 2013. (Tr. 301-11). Her applications were
denied initially on September 26, 2013, and on
reconsideration on June 5, 2014. (Tr. 149-53, 160-63). An
Administrative Law Judge (“ALJ”) held a hearing
on August 8, 2016, at which Plaintiff was represented by
counsel. (Tr. 50-100). Following the hearing, the ALJ
determined that Plaintiff was not disabled within the meaning
of the Social Security Act during the relevant time frame.
(Tr. 24-40). The Appeals Council denied Plaintiff's
request for review, (Tr. 4-8), so the ALJ's decision
constitutes the final, reviewable decision of the SSA.
found that Plaintiff suffered from the severe impairments of
food allergies, irritable bowel syndrome, and chronic fatigue
syndrome. (Tr. 26). Despite these impairments, the ALJ
determined that Plaintiff retained the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except with occasional climbing of ramps and
stairs, never climbing ladders, ropes and scaffolds, and
occasional balancing, stooping, kneeling, crouching and
crawling. The claimant can have no exposure to unprotected
heights, and occasional exposure to weather, humidity,
wetness, dust, odors, fumes and pulmonary irritants but never
at a concentrated level. She can have occasional exposure to
extreme heat and cold, and a moderate noise level. She cannot
be exposed to corn, wheat, soy, nuts, brown sugar, red meat,
rye, barley, coconut oil and citric acid.
(Tr. 30). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could perform jobs existing in significant numbers in the
national economy. (Tr. 38-39). Accordingly, the ALJ concluded
that Plaintiff was not disabled. (Tr. 39-40).
disagrees. She raises three primary arguments on appeal: (1)
that the ALJ erred in finding her mental impairments to be
non-severe at Step Two; (2) that the ALJ assigned inadequate
weight to the opinions of her treating physician, Dr.
Kerkvliet; and (3) that the ALJ erred in assessing
Plaintiff's subjective assertions of disabling symptoms.
Because I agree that the ALJ's analysis was deficient, I
recommend that the case be remanded to the SSA for additional
explanation. In so recommending, I express no opinion as to
whether the SSA's ultimate decision that Plaintiff was
not entitled to benefits was correct.
I agree that the ALJ committed error in analyzing
Plaintiff's mental impairments at Step Two, and elsewhere
in the opinion. Specifically, the ALJ cited, in part, to the
fact that Plaintiff did not “take medication for her
mental impairments” as a reason for discounting the
severity of those impairments, and for assigning less weight
to the opinions of her treating sources. (Tr. 27, 37). In
fact, however, Plaintiff testified at the hearing that her
multiple allergies rendered her unable to take psychiatric
medications. (Tr. 72-73). Additionally, later in the opinion,
the ALJ assigned “little weight” to the opinions
issued by Plaintiff's treating therapist, Janet
Glover-Kerkvliet, because a licensed therapist is not an
“acceptable medical source.” (Tr. 37). In making
that assignment, the ALJ did not consider that several of Ms.
Glover-Kerkvliet's opinions were co-signed by
Plaintiff's treating physician, Dr. Kerkvliet.
See (Tr. 852-856, 1953-57). Although the Fourth
Circuit has not addressed the issue, many courts have
determined that a doctor's co-signature on an opinion
authored by a non-acceptable treating source indicates an
adoption of the opinion by the physician. See, e.g.,
King v. Colvin, 128 F.Supp.3d 421, 436 n.14 (D.
Mass. 2015) (“Where a treating acceptable medical
source co-signs a non-acceptable medical treating
source's opinion, the resulting opinion constitutes that
of both sources.”); Beckers v. Colvin, 38
F.Supp.3d 362, 372 (W.D.N.Y. 2014) (“Reports co-signed
by a treating physician may be evaluated as having been the
treating physician's opinion.”); Brock v.
Colvin, No. 2:10-cv-00075, 2013 WL 4501333, at *6 (M.D.
Tenn. Aug. 22, 2013) (determining that an opinion co-signed
by a physician is entitled to greater weight than an opinion
from an “other source”). Given that Ms.
Glover-Kerkvliet and Dr. Kerkvliet both opined that
Plaintiff's mental conditions would significantly limit
her functional capacity, see, e.g. (Tr. 852-56), an
appropriate consideration of those medical opinions could
likely alter the ALJ's determination as to whether
Plaintiff met the de minimis bar of proving a severe
mental impairment at Step Two. See Bowen v. Yuckert,
482 U.S. 137, 158 (1987) (O'Connor, J., concurring)
(clarifying that Step Two is only meant to rule out claimants
“with slight abnormalities that do not significantly
limit” work activity).
the ALJ did not adequately explain the assignment of
“partial weight” to the opinions rendered by Dr.
Kerkvliet, particularly as they pertain to the effect of
Plaintiff's allergies on her ability to sustain gainful
employment. The ALJ specified that Dr. Kerkvliet is a
“treating physician.” (Tr. 36). Accordingly, his
opinions should have been be entitled to “controlling
weight” so long as they were “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques” and “not inconsistent with the other
substantial evidence in [the claimant's] case
record[.]” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). Here, the ALJ conducted no analysis of Dr.
Kerkvliet's opinions that Plaintiff's environmental
allergies significantly limit her activities and her ability
to work. See e.g., (Tr. 759) (noting that
Plaintiff should “avoid all exposure” to
“fumes, ” “dusts, ” and
“gases”); (Tr. 1922) (“[T]he patient's
activities have been significantly limited, including her
ability to tolerate exposure to environmental allergens and
chemicals, including naturally occurring allergens as well as
those that are synthesized (e.g., perfumes, colognes, air
fresheners, etc.).”); (Tr. 1950) (noting that Plaintiff
experiences pain triggered by “environmental allergies,
” “chemical exposure, ” and
“smells”). Moreover, the ALJ's RFC assessment
places no restriction on Plaintiff's ability to work in
close proximity to other people in a workplace, which puts
her at increased risk for exposure to myriad synthesized
allergens. The ALJ asked the VE a hypothetical involving
“no exposure to dust, odors, fumes, and pulmonary
irritants, ” (Tr. 93-94), but when advised that the
restriction would be work-preclusive, the ALJ instead limited
Plaintiff to “occasional” exposure to
“non-concentrated” allergens, (Tr. 30), without
explaining how that restriction comports with her reported
allergic reactions. No. opinions from Dr. Kerkvliet, or any
other physician, suggest that Plaintiff could tolerate
occasional exposure to substances triggering an allergic
reaction. Remand is therefore warranted. I note that, on
remand, the burden of producing all relevant medical records
remains with Plaintiff. See Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995) (finding that the applicant bears
the burden of production and of proof during the first four
steps of the sequential evaluation). If additional records
from Dr. Kerkvliet's treatment sessions are available,
Plaintiff should ensure they are made part of the record.
although perhaps not an independent basis for remand, the
ALJ's analysis of Plaintiff's subjective assertions
of disabling symptoms leaves something to be desired. The ALJ
focuses heavily on the objective records from Plaintiff's
medical history, and does not specifically cite to other
substantial evidence undermining her allegations of disabling
pain, allergic reactions, and fatigue. 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.”).
If this case is remanded, the ALJ should consider whether a
more comprehensive evaluation of Plaintiff's subjective
assertions is warranted.
reasons set forth above, I respectfully recommend that:
Court DENY Defendant's Motion for Summary Judgment [ECF
Court DENY Plaintiff's Motion for Summary ...