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Sherlene S. v. Saul

United States District Court, D. Maryland

August 5, 2019

Sherlene S.

         Dear Counsel:

         Pending before this Court are cross-motions for summary judgment. (ECF Nos. 12, 15). The Court must uphold the Social Security Administration (“SSA” or “the Agency”)'s decision 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) (2016); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The substantial evidence rule “consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Chater, 76 F.3d at 589. This Court shall not “re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of the SSA. Id. Upon review of the pleadings and the record, the Court finds that no hearing is necessary. Local Rule 105.6. For the reasons set forth below, both Motions are DENIED and the SSA's judgment is remanded for further consideration.

         I. BACKGROUND

         Plaintiff filed claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”) on November 13, 2014, alleging an onset of disability on March 15, 2013. (Tr. 13). Plaintiff's application was denied initially on February 25, 2015, and upon reconsideration on June 8, 2015, by the SSA. (Id.). On July 7, 2015, Plaintiff requested a hearing, which was conducted on March 21, 2017 before an Administrative Law Judge (“ALJ”).[2] (Id.). On June 8, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act (the “Act”) during the relevant period, which was November 13, 2014 to June 8, 2017.[3] (Tr. 10-21). On March 30, 2018, the Appeals Council denied Plaintiff's request for review, and the ALJ's decision became the final and reviewable decision of the SSA. (Tr.1-5).


         The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is deemed to have a disability if her “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work . . . which exists in significant numbers in the region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).

         To determine whether a person has a disability, the ALJ engages in the five-step sequential evaluation process set forth in 20 C.F.R. §§ 415.1520(a)(4)(i)-(v); 416.920. See e.g., Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). The steps used by the ALJ are as follows: step one, assesses whether a claimant engaged in substantial gainful activity since the alleged disability onset date; step two, determine whether a claimant's impairments meet the severity and durations requirements found in the regulations; step three, ascertain whether a claimant's medical impairment meets or equals an impairment listed in the regulations (the “Listings”). If the first three steps are not conclusive, the ALJ assesses the claimant's Residual Functional Capacity (“RFC”), i.e., the most the claimant could do despite her limitations, through consideration of claimant's “‘medically determinable impairments of which [the ALJ is] aware', including those not labeled severe at step two.” Mascio, 780 F.3d at 635 (quoting 20 C.F.R. § 416.945(a)). At step four, the ALJ analyzes whether a claimant could perform past work, given the limitations caused by her impairments; and at step five, the ALJ analyzes whether a claimant could perform any work. At steps one through four, it is the claimant's burden to show that he or she is disabled. See Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016). If the ALJ's evaluation moves to step five, the burden then shifts to the SSA to prove that a claimant has the ability to perform work and, therefore, is not disabled. Id. at 180.

         Here, the ALJ found that Plaintiff suffered from the following severe impairments: asthma and allergies. (Tr. 15). Despite these impairments, the ALJ determined that Plaintiff retained the RFC to:

perform medium work . . . except the [Plaintiff] needs to avoid climbing ladders, ropes and scaffolds. She can frequently perform other postural movements. She needs to avoid even moderate exposure to extreme temperatures, humidity and respiratory irritants. (Tr. 16) (emphasis supplied).

         At the hearing before the ALJ, a vocational expert (“VE”) testified that a hypothetical individual with the same age, education, and work experience as Plaintiff and with her RFC could perform prior work. (Tr. 49). The VE testified that the hypothetical person could perform Plaintiff's prior work as a teacher assistant. (Id.). Next, the VE was asked whether the hypothetical person, with similar respiratory ailments as Plaintiff, and limited to light work, could “perform the [Plaintiff's] past work as . . . performed in the national economy.” (Id.). The VE responded, “yes.” (Id.). However, the VE also testified that a person “off task” between 10 and 15 percent of an eight-hour work day could not sustain competitive employment. (Tr. 50). The ALJ ultimately found that Plaintiff could perform her past work generally, as long as it was not in a building that had mold (which exacerbated her asthma). (Tr. 21). And, as stated above, the ALJ found that she had the RFC to perform medium work. (Tr. 16).


         In requesting summary judgment, Plaintiff advances two contentions. First, that the ALJ erroneously assessed her RFC by ignoring the fact that she had to use a nebulizer three times per day, for at least 30-35 minutes each time, throughout an eight-hour work day. (ECF No. 12-1, p. 5). Put another way, the ALJ failed to explain how Plaintiff could work given that this health limitation meant that she was “off task” for more than 18 percent of the day. (Id., pp. 5-6). Second, Plaintiff contends that the ALJ erred by finding that her vascular condition was not severe, and by failing to include a limitation in her RFC specifying how this condition impacted her ability to walk and stand. (ECF No. 12-1, p. 6). In response, the Agency argues that substantial evidence exists to support the ALJ's findings that Plaintiff's impairments were not severe, and that she could perform medium exertional work, as long as she was not exposed to “respiratory irritants and extreme temps and humidity.” (ECF No. 15-1, p. 12).

         To determine an individual's RFC, the ALJ determines the capacity that the individual possesses despite limitations caused by impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The RFC must be based on all evidence in the record, and can include “a claimant's own description of limitations arising from alleged symptoms.” Riggs v. Berryhill, No. 4:16-CV-11-F, 2017 WL 9478480, at *3 (E.D. N.C. Mar. 2, 2017) (citing to 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3)).

         When assessing a claimant's RFC, the law requires an ALJ to consider all of the claimant's medically determinable impairments, including any medically determinable impairments that are not “severe, ” and also whether there are cumulative effects from those impairments that impact the disability determination. See 42 U.S.C. § 423(d)(2)(B). The ALJ must also consider treatment evidence when arriving at a RFC, “including restrictions imposed by the mechanics of treatment (e.g., ...

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