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Tricia F v. Commissioner, Social Security

United States District Court, D. Maryland

January 17, 2019

TRICIA F.
v.
COMMISSIONER, SOCIAL SECURITY[1]

          REPORT AND RECOMMENDATIONS

          STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE.

         Pursuant 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).

         Plaintiff 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.

         The ALJ 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.

         Plaintiff 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.

         I. Procedural Due Process

         First, 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 original).

         Plaintiff's 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.

         An 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.

         II. Mental Impairment Analysis

         Second, 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.

         At step 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 ...


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