United States District Court, D. Maryland
Barry S. c/o Mary Ann S.
v.
Commissioner, Social Security Administration
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
Dear
Counsel:
On July
27, 2018, Plaintiff Mary Ann S., as substitute plaintiff for
her deceased husband, Barry, petitioned this Court to review
the Social Security Administration's
(“SSA's”) final decision to deny his claim
for disability benefits. ECF 1. I have considered the
parties' cross-motions for summary
judgment.[1] ECF 13, 17, 19. I find that no hearing is
necessary. See Loc. R. 105.6 (D. Md. 2018). This
Court must uphold the decision of the SSA if it is supported
by substantial evidence and if the SSA 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 both motions,
reverse the judgment of the SSA, and remand the case to the
SSA for further analysis pursuant to sentence four of 42
U.S.C. § 405(g). This letter explains my rationale.
After
multiple prior denials of benefits, Tr. 9, Barry protectively
filed a claim for Disability Insurance Benefits
(“DIB”) on October 25, 2012, alleging a
disability onset date of April 2, 2010. Tr. 151-55.
Plaintiff's Date Last Insured (“DLI”) was
December 31, 2012, so he had to establish disability on or
before that date to qualify for DIB. Tr. 157. His claim was
denied initially and on reconsideration. Tr. 94-97, 101-02. A
hearing was held on December 12, 2014, before an
Administrative Law Judge (“ALJ”), and Barry
appeared and testified at the hearing. Tr. 19-76. Following
that hearing, the ALJ determined that Barry was not disabled
within the meaning of the Social Security Act during the
relevant time frame. Tr. 6-18. Following appeal to the United
States District Court, the case was remanded to the
Commissioner for further proceedings. Tr. 478-80. Because
Barry died in 2016, Plaintiff substituted as the adversely
affected party, Tr. 494-97, and appeared at a second hearing,
before a different ALJ, on April 27, 2017. Tr. 455-70.
Following that hearing, on September 6, 2017, the new ALJ
also issued an opinion denying benefits. Tr. 425-41. The
Appeals Council (“AC”) denied Plaintiff's
request for review, Tr. 418-24, so the ALJ's 2017
decision constitutes the final, reviewable decision of the
SSA.
In that
opinion, the ALJ found that, during the relevant period
preceding his DLI, Barry suffered from the severe impairments
of “plantar fasciitis, discogenic degeneration in the
back, degenerative arthritis, and pes planus
(flatfeet).” Tr. 430. Despite these impairments, the
ALJ determined that, through his DLI, Barry retained the
residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except he could lift 10 pounds occasionally and less than 10
pounds frequently. He could stand or walk for 2 hours out of
an 8-hour workday for no more than 15 to 20 minutes at one
time. He could sit for 6 hours out of an 8-hour workday. He
could stand up for a few minutes after one hour. He could
perform postural activities occasionally. He could not climb
ladders, ropes or scaffolds.
Tr.
431. Based on Barry's RFC, the ALJ determined that Barry
could perform his past relevant work as a human personnel
manager, customer service representative, and record
management analyst. Tr. 434-35. Accordingly, the ALJ
concluded that Barry was not disabled during the relevant
time frame. Tr. 435.
In
support of his appeal, Plaintiff advances several general
arguments with a great number of subparts, including: (1)
that the ALJ erred at step two by failing to find Barry's
cervical spondylosis to be severe, ECF 19 at 12-13; (2) that
the ALJ erred in evaluating the listings, ECF 19 at 13-15;
and (3) a plethora of other arguments pertaining to the
ALJ's compliance with the prior remand order, the RFC
assessment, the VE testimony, and the evaluation of
Barry's disability ratings from the Veterans'
Administration. ECF 19 at 8-11, 15-32. For the reasons
discussed below, I agree that the ALJ erred as to the
evaluation of Barry's cervical symptoms at step two, and
as to the listing analysis at step three, and I therefore
remand the case for further analysis. In ordering remand, I
express no opinion as to whether the ALJ's ultimate
conclusion that Plaintiff is not entitled to benefits is
correct. Moreover, I disagree with Plaintiff's contention
that the ALJ failed to follow this Court's prior remand
order, and I further disagree with many of the other myriad
arguments Plaintiff raises. In the interest of judicial
efficiency, I will limit my analysis below to Plaintiff's
two meritorious arguments.[2]
First,
Plaintiff asserts that the ALJ should have found Barry's
cervical spondylosis to be “severe.” ECF 19 at
12-13. An impairment is considered “severe” if it
significantly limits the claimant's ability to do basic
work activities. 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). Importantly, a claimant's burden of showing a
severe impairment at step two is only a “de
minimis screening device used to dispose of groundless
claims.” See Taylor v. Astrue, Civil Action
No. BPG-11-0032, 2012 WL 294532, at *8 (D. Md. Jan. 31, 2012)
(quoting Webb v. Barnhart, 433 F.3d 683, 687 (9th
Cir. 2005) (emphasis added)); see also Felton-Miller v.
Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011)
(“Step two of the sequential evaluation is a threshold
question with a de minimis severity
requirement.”) (citing Bowen v. Yuckert, 482
U.S. 137, 153-54 (1987)). Accordingly, any doubt or ambiguity
in the evidence at step two should be resolved in the
claimant's favor. See SSR 85-28, 1985 WL 56856
(S.S.A. Jan. 1, 1985).
Here,
the ALJ acknowledged that Barry had been diagnosed with
cervical spondylosis, but then stated, “Treatment
records note conservative treatment of neck pain with
Naprosyn and Tramadol.” Tr. 431. The nature of the
treatment for the condition does not indicate whether or not
the condition would significantly limit the claimant's
ability to do basic work activities. The ALJ also did not
mention Barry's neck pain and symptoms in the remainder
of the RFC analysis. Thus, although the ALJ continued with
the sequential evaluation process after finding other severe
impairments, she did not consider the non-severe cervical
symptoms when considering any impact on Barry's ability
to work. See 20 C.F.R. § 404.1523. Accordingly,
the step two error cannot be deemed harmless, and it
necessitates remand.
Second,
Plaintiff asserts that the ALJ should have found Barry to
meet the criteria of Listings 1.02 and 1.04. ECF 19 at 12-15.
First, with respect to Listing 1.02 for joint impairments,
the ALJ did not identify that listing as one requiring
discussion. Under existing Fourth Circuit law, an ALJ only
has to identify a listing and compare the evidence to the
listing requirements where there is ample evidence to suggest
that the listing could be met. See Huntington v.
Apfel, 101 F.Supp.2d 384, 390 (D. Md. 2000) (citing
Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.
1986)); Ketcher v. Apfel, 68 F.Supp.2d 629, 645 (D.
Md. 1999) (noting that the “duty of identification of
relevant listed impairments and comparison of symptoms to
Listing criteria is only triggered if there is ample evidence
in the record to support a determination that the
claimant's impairment meets or equals one of the listed
impairments”). Plaintiff's brief does not cite the
criteria of Listing 1.02 or point the Court to specific
medical evidence to fulfill each criterion. This Court's
review of the record did not reveal ample evidence to suggest
that Listing 1.02 might be met.
However,
as to Listing 1.04, the ALJ asserted:
The claimant's back impairment was not attended by
clinical findings that satisfy the requirements of any of the
impairments detailed in Section 1.04 of Appendix 1, dealing
with disorders of the spine. Specifically, the claimant does
not demonstrate an inability to ambulate effectively as
described in Section 1.00B2b.
Tr.
431. Listing 1.04 includes three subsections, each
identifying a different condition and containing its own list
of relevant criteria. “Inability to ambulate
effectively” is only one criterion for one of the three
subsections, that of 1.04C (lumbar spinal stenosis). By
suggesting that she had considered “any of the
impairments detailed in Section 1.04, ” the ALJ
...