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 12, 17, 20. I find that no hearing
is necessary. See Loc. R. 105.6 (D. Md. 2018). 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 the Court
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).
filed her claims for benefits on April 6, 2015, alleging a
disability onset date of February 1, 2015. Tr. 167-76. Her
applications were denied initially and on reconsideration.
Tr. 99-105, 113-16. An Administrative Law Judge
(“ALJ”) held a hearing on July 13, 2017, at which
Plaintiff was represented by counsel. Tr. 32-58. 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. 15-26. The Appeals Council
(“AC”) denied Plaintiff's request for review,
Tr. 1-6, so the ALJ's decision constitutes the final,
reviewable decision of the SSA.
found that Plaintiff suffered from the severe impairments of
“residual effects status post (s/p) lower extremity
fracture and injuries; chronic obstructive pulmonary disease
(COPD); asthma; and a history of a substance use disorder
(alcohol abuse).” Tr. 17. Despite these impairments,
the ALJ determined that Plaintiff retained the residual
functional capacity (“RFC”) to:
perform less than a full range of sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a). The claimant can walk
no longer than one block at a time on a flat and even
surface. The claimant can stand no longer than 15-20 minutes
at a time. The claimant has to avoid crawling, kneeling,
crouching and climbing ladders, ropes and scaffolds, but she
is able to stoop on an occasional basis. The claimant has to
avoid working around hazards such as moving dangerous
machinery and unprotected heights. The claimant has to avoid
concentrated exposure to respiratory irritants and extreme
temperatures and humidity.
Tr. 20. 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. 24-25. Accordingly, the ALJ concluded
that Plaintiff was not disabled. Tr. 25.
disagrees. She raises five primary arguments on appeal: (1)
that the SSA violated her procedural due process rights by
not giving her twenty-five days to submit additional evidence
to the AC; (2) that the ALJ did not adequately analyze her
mental condition; (3) that the ALJ improperly discounted the
limiting effects of her subjective pain; (4) that the ALJ
failed to conduct a function-by-function analysis; and (5)
that the ALJ erred in assigning weight to the medical
opinions. I disagree with Plaintiff's arguments, and
therefore recommend the Court affirm the ALJ's decision.
Procedural Due Process
Plaintiff argues that the SSA violated her procedural due
process rights, because the AC correspondence dated November
6, 2017, stated that the AC would not act for twenty-five
days and that Plaintiff “must send [any new evidence]
to [the SSA] within 25 days, ” Tr. 7, yet the AC denied
Plaintiff's request for review two days later on November
8, 2017, Tr. 1. ECF 12-1 at 5-8; ECF 20 at 1-3. The Supreme
Court has recognized that procedural due process applies in
Social Security adjudications. Richardson v.
Perales, 402 U.S. 389, 401-02 (1971). As part of the
adjudicatory process, parties have the right to request that
the AC review an ALJ decision, and the AC then either denies,
dismisses, or grants the request for review. 20 C.F.R.
§§ 404.967, 416.1467. Regulations instruct
claimants to “submit any evidence you wish to have
considered by the [AC] with your request for review, ”
§§ 404.968(a), 416.1468(a). Regulations also
provide that, “Upon request, the [AC] shall give
[claimants] a reasonable opportunity to file briefs or other
written statements about the facts and law relevant to the
case.” §§ 404.975, 416.1475. Here, the
instructions to Plaintiff accompanying the ALJ decision
stated, “You should send your written statement and any
new evidence with your appeal.” Tr. 13 (emphasis in
request for AC review, dated October 5, 2017, was essentially
a one-sentence letter that did not include any written
statement or new evidence, or a request for time to submit
such a statement or evidence. Tr. 166. Plaintiff argues that
the AC lacked “all of the medical evidence, facts and
arguments that [Plaintiff] intended to rely upon, ” ECF
12-1 at 6, yet Plaintiff has not specified any new evidence
she intended to proffer. Plaintiff contends that she could
have submitted a written statement to the AC “rais[ing]
the same identical arguments, and possibly others, that are
now before this Court.” ECF 20 at 2. Plaintiff has not
offered any reason why a written statement or request for
more time to file a written statement was not sent with the
request for review on October 5, 2017, or before the AC
acknowledged the request a month later, on November 6, 2017.
inquiry into procedural due process “begin[s] with a
determination of the precise nature of the government
function involved as well as of the private interest that has
been affected by governmental action.”
Richardson, 402 U.S. at 402 (quoting Goldberg v.
Kelly, 397 U.S. 254, 262-63 (1970)). Here,
Plaintiff's claimed private interest in the extension of
time by the AC that Plaintiff neither requested, nor seemed
intent on using, should not necessitate a remand on
procedural due process grounds.
Mental Impairment Analysis
Plaintiff argues the ALJ erred when analyzing her depression
by failing to apply the special technique mandated by 20
C.F.R. §§ 404.1520a, 416.920a, thus running afoul
of the Fourth Circuit's decision in Patterson v.
Commissioner of Social Security Administration, 846 F.3d
656 (4th Cir. 2017). ECF 12-1 at 8-9; ECF 20 at 3-6. While I
agree that the ALJ erred in applying the special technique, I
conclude that the error was harmless.
two of the sequential evaluation, the ALJ must determine
whether a claimant has a medically determinable impairment
that is “severe, ” or a combination of
impairments that is “severe.” 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is
“severe” if it significantly limits an
individual's ability to perform basic work activities.
§§ 404.1522, 416.922. For mental impairments, the
ALJ employs a “special technique, ” and first
looks to “pertinent symptoms, signs, and laboratory
findings to determine whether you have a medically
determinable mental impairment(s).” §§
404.1520a(b)(1), 416.920a(b)(1). After finding a medically
determinable mental impairment exists, the ALJ rates a
claimant's degree of limitation in each of the four