United States District Court, D. Maryland
Commissioner, Social Security Administration;
LETTER TO COUNSEL
January 23, 2018, Plaintiff petitioned this Court to review
the Social Security Administration's
(“SSA's”) final decision to deny his claims
for Disability Insurance Benefits and Supplemental Security
Income. (ECF 1). I have considered the parties'
cross-motions for summary judgment. (ECF 12, 13). 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 Plaintiff's motion, grant the SSA's motion, and
affirm the SSA's judgment pursuant to sentence four of 42
U.S.C. § 405(g). This letter explains my rationale.
protectively filed his claims for benefits in August, 2013,
alleging a disability onset date of January 1, 2009. (Tr.
194-209). His claims were denied initially and on
reconsideration. (Tr. 112-19, 124-27). A hearing was held on
August 19, 2016, before an Administrative Law Judge
(“ALJ”). (Tr. 36-75). Following the hearing, on
November 9, 2016, the ALJ determined that Plaintiff was not
disabled within the meaning of the Social Security Act during
the relevant time frame. (Tr. 19-29). On September 7, 2017,
the Appeals Council granted Plaintiff's request for
review. (Tr. 189-194). After reviewing the record, the
Appeals Council “adopt[ed] the [ALJ's] findings or
conclusions regarding whether [the Plaintiff] is disabled . .
. [and] agree[d] with the [ALJ's] findings under steps 1,
2, 3, 4 and 5[.]” (Tr. 4). The Appeals Council
supplemented the ALJ's findings with a consideration of
the medical opinion of Dr. Jeeven Errabolu, and a discussion
of the effects of Plaintiff's mental impairment on his
functional limitations. (Tr. 4-5). The Appeals Council's
decision therefore constitutes the final, reviewable decision
of the Agency.
Appeals Council found that Plaintiff suffered from the severe
impairments of “dysthymic disorder and
osteoarthritis.” (Tr. 7). Despite these impairments,
the Appeals Council determined that Plaintiff retained the
residual functional capacity (“RFC”) to:
perform medium work, except he can frequently climb ramps or
stairs, occasionally climb ladders, ropes or scaffolds,
frequently stoop, kneel, crouch or crawl. Can frequently
handle and finger bilaterally, must avoid concentrated
exposure to extreme cold and vibration and is limited to
occasional interaction with the public and coworkers.
(Tr. 7). The Appeals Council determined that Plaintiff could
perform jobs existing in significant numbers in the national
economy and that, therefore, he was not disabled. (Tr. 7).
raises three arguments on appeal: (1) that the SSA committed
error by not having a qualified psychiatrist or psychologist
review Plaintiff's case; (2) that the Appeals Council
wrongly “rejected” the opinion of Dr. Errabolu;
and (3) that the vocational expert (“VE”) failed
to explain a conflict in the VE's testimony regarding the
definition of the term “frequently.” Pl. Mot.
7-10. Plaintiff's arguments lack merit for the reasons
Plaintiff contends that the SSA had an obligation under 42
U.S.C. § 421(h) to have a qualified psychiatrist or
psychologist review Plaintiff's case. Pl. Mot. 7-8. That
section of the U.S. Code provides that:
An initial determination under subsection (a), (c), (g) or
(i) shall not be made until the Commissioner of Social
Security has made every reasonable effort to ensure . . . in
any case where there is evidence which indicates the
existence of a mental impairment, that a qualified
psychiatrist or psychologist has completed the medical
portion of the case review and any applicable residual
functional capacity assessment.
42 U.S.C. § 421(h). The obligation of subsection (h)
does not apply to an ALJ or the Appeals Council when an
individual appeals a denial of benefits, because those
hearings are governed by subsection (d), not subsections (a),
(c), (g), or (i). See 42 U.S.C. §§ 421(a),
(c), (d), (g), (i). However, the ALJ and the Appeals Council
do have a duty to “develop evidence regarding the
possibility of a medically determinable mental impairment
when [the Agency has] information to suggest that such an
impairment exists.” 20 C.F.R. §§ 404.1529(b),
416.929(b). Regulations provide that a consultative
examination may be purchased where the SSA lacks sufficient
evidence to reach a conclusion about disability. See
20 C.F.R. §§ 404.1519a(a); 416.919a(a).
the Appeals Council's and ALJ's opinions do not
reflect an absence of sufficient medical information to
permit a decision to be made. At the hearing before the ALJ,
Plaintiff's counsel submitted medical records from
Plaintiff's mental health examinations at Community
Behavioral Health. (Tr. 39, 687-717). In his decision, the
ALJ discussed the records from those examinations showing
Plaintiff's “attention and concentration were
intact and not impaired, ” that he “had a
cooperative attitude and behavior, ” and that his
appearance was appropriate. (Tr. 25). There is no support in
the record for Plaintiff's argument that the Appeals
Council decision consisted of “[m]edical findings by
lay agency personnel.” Pl. Mot. 7. To the extent that
Plaintiff argues the SSA erred at the initial and
reconsideration levels by failing to have a psychiatrist or
psychologist review the case, this Court only has
jurisdiction to review the final decision of the SSA, not
earlier decisions. See 42 U.S.C. § 405(g).
Accordingly, there was no requirement that the Appeals
Council or ALJ order a consultative examination to further
develop the mental health medical record.
Plaintiff argues that the Appeals Council wrongly
“rejected” the opinion of Dr. Errabolu, because
there were “no treatment notes to document [Dr.
Errabolu's] treatment of [the Plaintiff] back to
2014.” Pl. Mot. 8-9. However, the Appeals Council
assigned “no weight” to Dr. Errabolu's
opinion because it was inconsistent with the medical evidence
in the record. (Tr. 5). The Appeals Council specifically
cited to the consultative examination records from Dr.
Christian Jensen and Dr. Melanie Montemayor, as well as
objective medical imaging results, that were inconsistent
with Dr. Errabolu's opinion. Therefore, the Appeals
Council's explanation for the assignment of weight to Dr.
Errabolu's opinion evidence was sufficient, and does not
Plaintiff argues that the VE offered conflicting testimony
regarding whether a hypothetical individual limited to only
“frequent handling and fingering” could perform
the jobs identified by the VE. The VE testified that the
hypothetical person with the Plaintiff's RFC could work
as a “mold filler, ” “blending machine
attender, ” and “fill room attendant.” (Tr.
68-69). When Plaintiff's counsel questioned the VE about
the limitation on handling or fingering, the VE expressed
some confusion, saying, “I'm not sure how
you're crafting that [question]. But if they were idle
from handling or fingering for a third of the weekday at a
continuous period, ” the hypothetical person could not
do the specified jobs. (Tr. 74). Plaintiff does not offer a
definition from either the Dictionary of Occupational Titles
(“DOT”) or the SSA to suggest that
“frequent” means a “continuous”
limitation for one-third of a workday. Rather the SSA
generally defines “frequent” as “occurring
from one-third to two-thirds . . . of a workday, ” SSR
83-10, 1983 WL 31251, at *6 (S.S.A. Jan. 1, 1983), and the
DOT occupational definitions generally describe
“frequently” as “exist[ing] from 1/3 to 2/3
of the time, ” see, e.g., U.S. Dep't of
Labor, Dictionary of Occupational Titles §
556.687-030, Mold Filler (4th ed. 1991), 1991 WL 683505. The
VE's testimony established that Plaintiff could meet
those requirements. Therefore, Plaintiff's contention
that the VE offered conflicting testimony is without merit.
reasons set forth above, Plaintiff's Motion for Summary
Judgment (ECF 12) is DENIED and Defendant's Motion for
Summary Judgment (ECF 13) is ...