United States District Court, D. Maryland
Commissioner, Social Security Administration;
April 10, 2018, Plaintiff Raquel P. petitioned this Court to
review the Social Security Administration's
(“SSA's”) final decision to deny her claims
for Disability Insurance Benefits and Supplemental Security
Income. ECF 1. I have considered the parties'
cross-motions for summary judgment. ECF 14, 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.
protectively filed her claims for benefits in 2010, alleging
a disability onset date of February 15, 2009. Tr. 334-46. Her
claims were denied initially and on reconsideration. Tr.
200-05, 209-22. A hearing was held on August 14, 2012, before
an Administrative Law Judge (“ALJ”). Tr. 54-99.
Following the hearing, the ALJ determined that Plaintiff was
not disabled, but the Appeals Council (“AC”)
later remanded the case for further proceedings. Tr. 176-94,
195-99. On June 11, 2014, an ALJ held a second hearing. Tr.
100-31. Following that hearing, the ALJ again determined that
Plaintiff was not disabled within the meaning of the Social
Security Act during the relevant time frame. Tr. 33-53. This
Court remanded the case to the Commissioner for further
adjudication, following an appeal. Tr. 1542-47. An ALJ held
two additional hearings in 2017. Tr. 1370-1467, 1468-81.
Following those hearings, on December 19, 2017, an ALJ issued
an opinion granting Plaintiff benefits as of March 14, 2015,
but denying benefits prior to that date. Tr. 1334-58. The
ALJ's 2017 decision therefore constitutes the final,
reviewable decision of the Agency.
opinion, the ALJ determined that, since her alleged onset
date, Plaintiff had suffered from the severe impairments of
“asthma, obesity, anxiety disorder,
obsessive-compulsive disorder (“OCD”), low
intellectual functioning, and panic disorder.” Tr.
1337. The ALJ further found that as of March 14, 2015,
Plaintiff had the additional severe impairment of seizure
disorder. Id. The ALJ determined that, despite her
impairments, prior to March 14, 2015, Plaintiff retained the
residual functional capacity (“RFC”):
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except no climbing of ladders or scaffolds.
Occasional climbing of ramps and stairs, stooping, kneeling,
crouching, crawling, and balancing. No. exposure to hazards
such as unprotected heights or moving mechanical parts. No.
concentrated exposure to dust, fumes, or pulmonary irritants.
Occasional exposure to weather, extreme cold or heat,
humidity, and wetness. Further limited to performing simple,
routine tasks, but can apply common-sense understanding to
carry out detailed but involved [sic] instructions. No.
production-rate work in which each job task must be completed
within strict time periods. Further limited to making simple
work-related decisions with only occasional changes in the
routine work setting. Occasional interaction with
supervisors, co-workers, and the public. Time off task during
the workday can be accommodated by normal breaks.
Tr. 1341. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that, prior to
March 14, 2015, Plaintiff could perform jobs existing in
significant numbers in the national economy, particularly
those of marker, mail clerk, and office helper, and that
Plaintiff was therefore not disabled prior to that date. Tr.
1355-57. The ALJ found that Plaintiff became disabled upon
the onset of her seizure disorder on March 14, 2015. Tr.
appeals the portion of the ALJ's decision finding her not
to be disabled prior to March 14, 2015, and raises several
arguments on appeal: (1) that the ALJ improperly determined
the onset date of disability without using a medical expert;
(2) that the ALJ made medical findings relating to the new
paragraph B criteria in Section 12.00, and that Plaintiff was
prejudiced by the changes to the Listings; (3) that the ALJ
improperly relied on non-compliance to deny Plaintiff's
claim before March, 2015; and (4) that the ALJ's RFC
assessment was inconsistent with the reasoning levels for the
jobs identified by the VE. ECF 14-1 at 6-8. Each argument
lacks merit for the reasons addressed below.
Plaintiff argues that Bird v. Commissioner, 699 F.3d
337 (4th Cir. 2012) and Social Security Ruling
(“SSR”) 83-20, 1983 WL 31249 (S.S.A. Jan. 1,
1983), require an ALJ to consult a medical expert to make
“a medically informed determination of when disability
occurs.” ECF 14-1 at 6. Plaintiff's reading of
those two sources is inaccurate. Bird requires an
ALJ to consult a medical expert only in cases where
“the date of onset of the disability is
ambiguous.” Bird, 699 F.2d at 345. Similarly,
SSR 83-20 directs an ALJ to consider all relevant evidence to
determine disability onset, and requires the ALJ to consult
with a medical expert only when the ALJ could “infer
that the onset of a disabling impairment(s) occurred some
time prior to the date of the first recorded medical
examination.” 1983 WL 31249, at *3. In this case, the
date of onset of symptoms from the disabling impairment,
Plaintiff's seizure disorder, is evident from the medical
record. On March 14, 2015, Plaintiff suffered a seizure while
driving and crashed her vehicle. Tr. 1356. She received
treatment in the emergency room with her daughter, who was in
the passenger seat of the vehicle and could describe her
mother's symptoms before the accident. Tr. 1356, 1939. As
the ALJ noted, at the hearing, Plaintiff corroborated the
onset date of her seizures as having been in March, 2015. Tr.
1356, 1386. Plaintiff's medical treatment for the seizure
disorder began in the emergency room following the accident,
so there is no suggestion that the onset occurred “some
time prior to the date of the first recorded medical
examination, ” as required by the SSR. In light of the
lack of prior symptoms and the lack of ambiguity regarding
the onset date, neither Bird nor SSR 83-20 required
the ALJ to consult a medical expert. The ALJ provided
substantial evidence to support the determination that, as of
March 14, 2015, Plaintiff met Listing 11.02B. Moreover,
Plaintiff's suggestion that her other medical impairments
may have caused a medical expert to select an earlier onset
date is unavailing. The ALJ provided substantial evidence to
support his evaluation of Plaintiff's pre-March, 2015
impairments, and it is evident from the opinion that those
impairments did not constitute the basis of the ALJ's
finding of disability.
Plaintiff contests the ALJ's consideration of the
Listings pertaining to her symptoms before March 14, 2015.
First, Plaintiff contends that the ALJ could not make
findings on the paragraph B criteria in Listings 12.00 et
seq., as revised on January 17, 2017, because no medical
sources had applied the revised criteria to Plaintiff's
impairments. ECF 14-1 at 6. However, the assessment of the
Paragraph B criteria is properly performed by the ALJ, not by
a physician. 20 C.F.R. §§ 404.1520a, 416.920a. An
ALJ is permitted, but is not required, to return the file to
the State agency if the assistance of a medical expert is
needed to complete the consideration of the Paragraph B
criteria. Id. In this case, the ALJ completed the
appropriate Paragraph B assessment using the revised
criteria, and cited to facts from the record to support the
degree of limitation assessed in each functional area. Tr.
1340-41. The ALJ's analysis therefore comported with the
Plaintiff suggests that she was “prejudiced” by a
change in Listing 12.05C effective January 17, 2017. ECF 14-1
at 7. Plaintiff has not demonstrated how she would have met
the original criteria of the Listing, nor has Plaintiff
established that SSA lacked authority to revise the Listing.
She has cited no cases in which a plaintiff whose case had
been delayed was able to avail his or herself of a version of
the listings other than that in effect at the time the case
was finally considered. Accordingly, Plaintiff's argument
Plaintiff argues that the ALJ “cannot use
non-compliance to deny [Plaintiff's] claim prior to March
2015.” ECF 14-1 at 7. Plaintiff cites to the procedure
described in SSR 82-59, 1982 WL 31384 (S.S.A. Jan. 1, 1982),
allowing an ALJ to deny benefits on the basis of
non-compliance with prescribed treatment. Id.
“However, SSR 82-59 only applies to ‘[a]n
individual who would otherwise be found to be under a
disability, but who fails without justifiable cause to follow
treatment prescribed by a treating source.'”
Myers v. Comm'r, Soc. Sec. Admin., 456 Fed.
App'x 230, 232 (4th Cir. 2011) (unpublished) (quoting SSR
82-59, 1982 WL 31384, at *1). In contrast, the ALJ here did
not find Plaintiff to be under a disability, but rather used
her alleged non-compliance as a factor in determining the
weight of evidence. Tr. 1347-51. When viewing the ALJ's
opinion as a whole, it is clear the ALJ did not rely on
“non-compliance [as a] bar [to] benefits as a matter
of law, ” ECF 14-1 at 7-8, but rather used
Plaintiff's non-compliance as one of many factors in
evaluating Plaintiff's claim. See, e.g., 1351-53
(assigning weight to the opinions of medical sources); Tr.
1343 (reviewing Plaintiff's substantial daily
activities); Tr. 1344-45 (describing evidence from the
medical records showing normal examinations or mild
symptoms). Accordingly, the ALJ supported his conclusions
with substantial evidence, which included Plaintiff's
non-compliance with prescribed treatment.
Plaintiff cites Henderson v. Colvin, 643 Fed.
App'x 273 (4th Cir. 2016) (unpublished) for the
proposition that a “reasoning level of 2 is
inconsistent with simple work.” ECF 14-1 at 8. Again,
Plaintiff misreads the authority. Henderson found a
conflict between “an RFC that limits [a plaintiff] to
one-to-two step instructions and a GED Reasoning Code 2,
which requires the ability to understand detailed
instructions.” 643 Fed. App'x at 277. Recently, in
Thomas v. Berryhill, No. 17-2215, 2019 WL 193948
(4th Cir. Feb. 22, 2019), the Fourth Circuit also held that
there was an apparent conflict between an RFC limiting a
plaintiff to “short, simple instructions” and
jobs with a reasoning level of 2. The Thomas Court
explained that the plaintiff, “being limited to short,
simple instructions, may not be able to carry out detailed
but uninvolved instructions.” Id. at *5.
in Henderson and Thomas, the RFC assessment
in this case specifically provides that Plaintiff “can
apply common-sense understanding to carry out detailed but
involved [sic] instructions.” Tr. 1341. That
specific RFC provision exactly matches the definition of
reasoning level 2. Because two of the three jobs the VE
identified in this case require a reasoning level of 2,
office helper (DOT No. 239.567-010) and marker (DOT No.
209.587-034), substantial evidence supported the ALJ's
conclusion that there were jobs existing in significant
numbers that Plaintiff could perform. To the extent that the
one job requiring a reasoning level of 3, mail clerk (DOT No.
209.687-026) exceeded Plaintiff's RFC, that error is
harmless in light of the substantial number of jobs
identified at reasoning level 2.
reasons set forth herein, Plaintiff's motion for summary
judgment, ECF 14, will be DENIED and Defendant's motion
for summary judgment, ECF 17, will be ...