United States District Court, D. Maryland
Commissioner, Social Security Administration,
R. Schlitz, Jr., Esq. Mering & Schlitz, LLC.
Kathleen C. Buckner, Esq. Social Security Administration.
before this court, by the parties' consent (ECF Nos. 3,
4), are Plaintiff's Motion for Summary Judgment
(“Plaintiff's Motion”) (ECF No. 13) and
Defendant's Motion for Summary Judgment
(“Defendant's Motion”) (ECF No. 15). The
undersigned must uphold the Commissioner'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Cir. 1996), superseded by statute, 20 C.F.R. §
416.927(d)(2). I have reviewed the pleadings and the record
in this case and find that no hearing is necessary. Loc. R.
105.6. For the reasons noted below, Plaintiff's Motion
(ECF No. 13) is denied and Defendant's Motion (ECF No.
15) is granted.
March 30, 2015, plaintiff filed a Title II application for a
period of disability and disability insurance benefits and a
Title XVI application for supplemental security income,
alleging disability beginning on March 30, 2015. (R. at 177,
181). Her claims were initially denied on June 2, 2015 (R. at
88, 92), and on reconsideration on August 13, 2015 (R. at 99,
104). After a hearing held on January 10, 2017, an
Administrative Law Judge (“ALJ”) issued a
decision on April 11, 2017, denying benefits based on a
determination that plaintiff was not disabled. (R. at 18-26).
The Appeals Council denied plaintiff's request for review
on January 30, 2018, making the ALJ's opinion the final
and reviewable decision of the Commissioner. (R. at 1-4).
Plaintiff challenges the Commissioner's decision on the
following grounds that: (1) the ALJ neglected to follow the
treating physician rule and accorded improper weight to
“defective findings” by non-examining state
agency medical consultations and the consultative examiner,
(2) the ALJ utilized rescinded rulings to support a decision
to deny benefits, and (3) there is no evidence that
plaintiff's past work could be performed with a sit/stand
plaintiff argues that “[t]he ALJ neglected to follow
the treating physician rule and accorded improper weight to
defective findings by non-examining state agency medical
consultations and the consultative examiner.” (ECF No.
13-1 at 5). The ALJ must generally give more weight to a
treating physician's opinion. 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2). Where a treating
physician's opinion is not supported by clinical evidence
or is inconsistent with other substantial evidence, however,
the ALJ should afford it significantly less weight.
Id.; Craig, 76 F.3d at 590. If the ALJ does
not give a treating source's opinion controlling weight,
the ALJ must assign weight after considering several factors,
including the length and nature of the treatment
relationship, the degree to which the physician's opinion
is supported by the record as a whole, and any other factors
that support or contradict the opinion. 20 C.F.R.
§§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). The ALJ
need not mechanically discuss every factor when choosing to
afford a treating physician's opinion less weight, as
long as the ALJ articulates the reasoning behind the
decision. See Baxter v. Astrue, No. SKG-10-3048,
2012 WL 32567, at *6 (D. Md. Jan. 4, 2012).
treating physician, Dr. Green, completed a “Medical
Assessment of Ability to Do Work-Related Activities
(Physical).” (R. at 299-301.) Dr. Green opined, on a
fill-in-the-blank form with little explanation, that
plaintiff had numerous physical and postural limitations.
Id. The form is missing, in part, required narrative
explanations of what the medical findings are that support
the assessment reached. Id. Opinions noted “on
check-box or form reports may be accorded little or no
weight, in the absence of narrative explanation or supporting
rationale.” Crawley v. Comm'r, Soc. Sec.
Admin., No. SAG-11-2427, 2013 WL 93202, at *2 (D. Md.
Jan. 7, 2013). Without explanation, “it would be
difficult for an ALJ to assign meaningful weight to opinions
devoid of evidentiary support.” Brown ex rel. A.W.
v. Comm'r, Soc. Sec. Admin., No. SAG-12-52, 2013 WL
823371, at *2 (D. Md. Mar. 5, 2013).
the ALJ afforded this opinion little weight because
“Dr. Green's proposed limitations appear
exaggerated and are not consistent with the other
evidence.” (R. at 23-24). Specifically, the ALJ found
that “Dr. Green concluded the claimant could never
engage in any postural activities, which suggests the
claimant could not get up from a laying position or
move.” (R. at 24). The ALJ found that these limitations
were “unsupported by the medical record and the
claimant's own testimony.” Id. The ALJ
noted that Dr. Colley, a consultative examiner, observed that
plaintiff was able to “sit, stand, and go from supine
to prone and back to standing independently, ” as well
as “lift 20-25 pounds without difficulty and bend
forward to pick up a light stool without reported
pain.” (R. at 23). Similarly, Dr. Bushwick, another
consultative examiner, found that plaintiff “can stand
and walk for three hours in an eight hour day, can sit for 15
minutes at a time and four hours in an eight hour day, can
frequently climb, balance, kneel and crawl, and occasionally
stoop and crouch.” (R. at 24). Plaintiff herself
testified that she could sit and stand for up to thirty
minutes, walk half a block, and lift five pounds. (R. at 22).
Accordingly, the court cannot conclude that the ALJ's
determination to afford little weight to Dr. Green's
opinion was not supported by substantial evidence, and, thus,
remand is not appropriate on this issue.
raises several additional arguments regarding the ALJ's
assignment of weight to the consultative examiners. (ECF No.
13-1 at 5). Plaintiff first argues that the ALJ made a
“crucial error” by recording that plaintiff saw
Dr. Colley in May of 2016 when plaintiff actually saw Dr.
Colley in May of 2015. (ECF No. 13-1 at 5). As noted by
defendant, however, “[t]his appears to be nothing more
than a harmless typographical error, ” as “[t]he
ALJ discussed the medical evidence chronologically and she
placed Dr. Colley's report properly for its May 2015
date” and “did not base any of her findings on
the date of Dr. Colley's report.” (ECF No. 15-1 at
5). Plaintiff further argues that Dr. Colley “did not
discern any medical opinion.” (ECF No. 13-1 at 5).
While this is true, as acknowledged by defendant (ECF No.
15-1 at 5), Dr. Colley did make objective findings as to
plaintiff's ability to sit, stand, move, and lift based
on her examination of plaintiff. (R. at 23). Accordingly, the
ALJ committed no error in assigning weight to Dr.
Colley's findings. Finally, plaintiff argues that the
consultative examiners failed to consider plaintiff's
carpal tunnel, neuropathy, and scoliosis. (ECF No. 13-1 at
6). The ALJ acknowledged, however, that evidence considered
at the hearing level “indicate[d] that the claimant is
somewhat more limited than was previously determined”
and reflected the extent of such limitation in her assessment
of plaintiff's severe impairments and RFC. (R. at 20,
23). Accordingly, plaintiff's remaining arguments about
the ALJ's assignment of weight are without merit, and
remand is not warranted on this issue.
plaintiff argues that the ALJ improperly utilized rescinded
Social Security Rulings (“SSRs”) 06-3p, 96-6p,
and 96-5p to support her decision to deny plaintiff benefits.
(ECF No. 13-1 at 7). These rulings were rescinded by the
agency on March 27, 2017. Rescission of Soc. Sec. Rulings
96-2p, 96-5p, & 06-3p, 82 Fed. Reg. 15263-01. The
rescission, however, is only “effective for claims
filed on or after March 27, 2017.” Id. ALJs
are still required to use these rules for claims filed before
March 27, 2017. HALLEX I-5-3-30, 2017 WL 1362776, at *5
(2017). Plaintiff filed her claim on March 30, 2015, before
the March 27, 2017 rescission date. (R. at 177, 181).
Accordingly, the ALJ did not err by using these rulings, and
plaintiff's argument that remand is warranted is without
plaintiff argues that there is no evidence that
plaintiff's past work as a production worker could be
performed with a sit/stand option as required by her residual
functional capacity (“RFC”). (ECF No. 13-1 at 8).
At step four, the ALJ must determine whether the claimant has
the RFC to perform the requirements of his or her past
relevant work. 20 C.F.R. § 404.1520(f). Past relevant
work is “work that [a claimant] ha[s] done within the
past 15 years, that was substantial gainful activity, and
that lasted long enough for [a claimant] to learn to do
it.” 20 C.F.R § 404.1560. Here, the ALJ found that
plaintiff was capable of performing past relevant work as a
production worker and that “[t]his work does not
require the performance of work-related activities precluded
by the claimant's residual functional capacity.”
(R. at 24). Plaintiff's RFC included a limitation that
plaintiff “require[d] a sit/stand option every hour for
three to five minutes while remaining on task.” (R. at
22). At a hearing held on January 10, 2017, the ALJ asked the
vocational expert (“VE”) if a hypothetical person
with all of plaintiff's limitations except for the
sit/stand option could perform the past work of plaintiff,
and the VE testified that the hypothetical person could do
this job as it was performed generally. (R. at 44). At no
point, however, did the ALJ ask whether a person with a
sit/stand option limitation could perform this past work.
Defendant also concedes that “[i]t is not clear that
[plaintiff's] past relevant work as a production worker
as generally performed would allow for a sit/stand option
every hour for three to five minutes while remaining on task
as required by her RFC.” (ECF No. 15-1 at 8).
Accordingly, I cannot conclude that the ALJ's
determination that plaintiff could complete past relevant
work is supported by substantial evidence.
the ALJ erred by concluding at step four that plaintiff was
able to complete past relevant work, the ALJ went on to make
alternative findings at step five that there are other jobs
existing in the national economy that plaintiff is also able
to perform. (R. at 24). “Where the Court upholds the
ALJ's finding at step five of the sequential evaluation,
any error at step four is harmless.” Timmons v.
Colvin, No. ADC-16-0271, 2016 WL 7408837 at *7 (D. Md.
Dec. 21, 2016) (citations omitted). Here, plaintiff does not
challenge the ALJ's decision at step five, and I find
that the ALJ's ...