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Deborah T. v. Commissioner, Social Security Administration

United States District Court, D. Maryland

December 10, 2018

Deborah T.
v.
Commissioner, Social Security Administration;[1]

         Dear Counsel:

         On December 22, 2017, Plaintiff Deborah T. petitioned this Court to review the Social Security Administration's (“SSA's”) final decision to deny her claim for disability benefits. ECF 1. I have considered the parties' cross-motions for summary judgment. ECF 12, 17. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). 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.

         Plaintiff filed a claim for Disability Insurance Benefits (“DIB”) on August 30, 2012, alleging a disability onset date of February 15, 2010. Tr. 227-28. Plaintiff's Date Last Insured (“DLI”) is June 30, 2011, so she had to establish disability on or before that date to qualify for benefits. Tr. 18. Her claim was denied initially and on reconsideration. Tr. 113-16, 121-22. A hearing was held on March 31, 2016, before an Administrative Law Judge (“ALJ”). Tr. 33-89. 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. 16-26. The Appeals Council (“AC”) denied Plaintiff's request for review, Tr. 1-7, so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that, through her DLI, Plaintiff suffered from the severe impairments of “degeneration of the cervical and lumbar spine, disc bulge, obesity, carpal tunnel syndrome, status post release, arthralgias and arthroscopy of left knee.” Tr. 18. Despite these impairments, the ALJ determined that, through her DLI, Plaintiff retained the residual functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 404.1567(b) except she can never climb ladders, ropes or scaffolds; she can perform occasional balancing, stooping, crouching and crawling; she can have no more than occasional exposure to extreme cold, heat and vibrations; she can have no exposure to workplace hazards and she can frequently use the right hand.

Tr. 21. 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 and that, therefore, she was not disabled. Tr. 25-26.

         In support of her appeal, Plaintiff advances several arguments: (1) that the ALJ erred at step two by declining to find depression, plantar fasciitis, rheumatoid arthritis, cervical and lumbar stenosis, and multiple body arthralgias to be severe impairments, ECF 12-1 at 8-9; (2) that the ALJ erred in evaluating Listings 1.02 and 1.04, ECF 12-1 at 9-11; (3) that the ALJ erred in discounting Plaintiff's subjective assertions of disabling pain and other symptoms, ECF 12-1 at 11-21; (4) that the ALJ erred in evaluating the medical opinions and other evidence, ECF 12-1 at 13-14, 21-23; and (5) that the ALJ erred in evaluating the VE evidence, ECF 12-1 at 23-27. Each argument lacks merit for the reasons discussed below.

         First, Plaintiff asserts that the ALJ should have found additional impairments to be “severe.” An impairment is considered “severe” if it significantly limits the claimant's ability to work. See 20 C.F.R. § 404.1522. The claimant bears the burden of proving that an impairment is severe. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Here, the ALJ adequately considered the relevant impairments at step two. Tr. 18-20. The ALJ specifically considered both plantar fasciitis and depression, but explained that neither causes more than minimal work-related functional limitations. Tr. 18-20. In making that finding with respect to depression, the ALJ appropriately employed the special technique for evaluation of mental impairments. Tr. 18-20. Plaintiff, who bears the burden of proving the severity of each impairment, cites no specific evidence to suggest or establish that her plantar fasciitis or depression is in fact severe. The other “impairments” Plaintiff cites, specifically “positive rheumatoid factor/rheumatoid arthritis, cervical and lumbar stenosis, and multiple body arthralgias, ” ECF 12-1 at 9, overlap in terms of their symptoms with the impairments deemed severe by the ALJ: “degeneration of the cervical and lumbar spine, disc bulge, . . . [and] arthralgias.” Tr. 18. Moreover, in the RFC analysis, the ALJ specifically noted that “there was no diagnosis of rheumatoid arthritis prior to the DLI.” Tr. 23. Accordingly, I find no error in the ALJ's evaluation of Plaintiff's impairments at step two. Moreover, even if there had been some error, it would be harmless. Because Plaintiff made the threshold showing that her other impairments were severe, the ALJ continued with the sequential evaluation process and properly considered all impairments, both severe and non-severe, that significantly impacted Plaintiff's ability to work prior to her DLI. See 20 C.F.R. § 404.1523. Any step two error, therefore, does not necessitate remand.

         Next, Plaintiff asserts that the ALJ should have found her to meet the criteria of Listings 1.02 and 1.04. ECF 12-1 at 9-11. Listing 1.02A, 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02(A), requires that Plaintiff establish an “inability to ambulate effectively, ” defined as:

an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. . . [;] having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. . . . [E]xamples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B)(2)(b). Plaintiff is correct that the section of the ALJ's opinion evaluating Listing 1.02A is deficient. In considering whether Plaintiff had established an inability to ambulate effectively, the ALJ cited only to Plaintiff's ability to shower, do laundry, and sit, which are not activities involving significant, if any, ambulation. Tr. 20. However, I conclude that the ALJ's error, as to Listing 1.02A, is harmless.

         In reaching that conclusion, I have considered the relatively recent Fourth Circuit cases of Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013), and Fox v. Colvin, 632 Fed. App'x 750 (4th Cir. 2015) (unpublished) (per curiam), which are sometimes cited for the proposition that the court must remand any case presenting insufficient analysis, without conducting its own independent review of the record. In Radford, the Court found the ALJ's decision to be “devoid of reasoning, ” in that the ALJ did not support the conclusory assertion that the claimant's impairments did not meet a listing. 734 F.3d at 295. The Court concluded that the ALJ's lack of explanation rendered it “impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings, ” but noted that, in Radford, there was “probative evidence strongly suggesting that [the claimant] meets or equals” the pertinent listing, plus a failure by the ALJ to indicate why more weight was assigned to the medical opinions of the state agency physicians than to those issued by the plaintiff's treating physicians. Id. at 295-96.

         In Fox, the Court similarly determined that the ALJ “offered nothing to reveal why he was making his decision” about the listings, despite “[i]nconsistent evidence” in the record. 632 Fed. App'x at 755 (emphasis in original). In that circumstance, the Court declined to “speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ's justifications that would perhaps find support in the record, ” and instead remanded the case to the ALJ. Id.

         The present case is distinguishable from Radford and Fox because, here, there is no probative evidence inconsistent with the ALJ's finding that Plaintiff did not meet or equal Listing 1.02 prior to her DLI. Plaintiff's medical evidence shows no mention of any significant knee impairment prior to June 30, 2011. See Tr. 397 (report of general joint pain prior to the alleged onset date referencing only “mild crepitus” in the knees, and recommending weight reduction); Tr. 440 (record from April, 2010 indicating “joint aches on and off still . . . much better since she retired from being a meat cutter); Tr. 492 (record from January, 2011 noting that Plaintiff still had inflammatory joint pain, but would like to try exercise, weight loss, and use over-the-counter pain relief as needed). The vast majority of the medical records during the relevant period pertained not to Plaintiff's knees or other generalized pain, but to cervical issues, carpal tunnel syndrome, acid reflux, and thyroid issues. Similarly, the medical records do not reflect that Plaintiff had any particular difficulty with walking or any need to use a cane prior to her DLI. Instead, as the ALJ noted, a medical record from February 2, 2011, indicates that Plaintiff experienced indigestion with jaw pain and heart racing once “while shoveling snow” and a second time “on the treadmill.” Tr. 493. Additionally, on February 7, 2011, Plaintiff completed an exercise stress test involving six minutes and thirty seconds of “treadmill exercise.” Tr. 499. The notes did not indicate any difficulty with walking. Finally, the ALJ also cited to medical records from Plaintiff's treating physician on June 13, 2011, about two weeks before the DLI, noting that Plaintiff presented with “leg pain . . . mostly in bilateral calf area [which] started 2 days after doing some painting.” Tr. 647. The doctor further noted, “There is no increased pain with ambulation. In fact he [sic] usually feels better after walking.” Tr. 647. Given that the defining criteria for Listing 1.02A is an inability to ambulate effectively, Plaintiff has not and cannot put forth any credible evidence that her impairments during the pertinent period met or equaled each requirement of Listing 1.02A. This is not an instance where “[i]nconsistent evidence ...


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