THOMAS M. DiGIROLAMO, Magistrate Judge.
Tina Dean ("Plaintiff") seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 22) and Defendant's Motion for Summary Judgment (ECF No. 24).
Plaintiff was born in 1973, has a GED, and previously worked as a teacher's assistant. R. at 27, 42-43, 158. Plaintiff applied for DIB and SSI on October 9, 2008, alleging disability beginning on May 2, 2007, due to fibromyalgia, tachycardia, osteoarthritis, spinal stenosis, irritable bowel syndrome, migraines, dysthymia, and bipolar disorder. R. at 17, 137. The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 71-88. On June 28, 2011, ALJ G.B. Arthur held a hearing in Washington, D.C., at which Plaintiff and a vocational expert ("VE") testified. R. at 17, 38-70. On December 28, 2011, the ALJ issued a decision finding Plaintiff not disabled since the alleged onset date of disability of May 2, 2007. R. at 14-34. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on February 22, 2013. R. at 1-4, 12. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).
On April 26, 2013, Plaintiff filed a complaint in this Court seeking review of the Commissioner's decision. Upon the parties' consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.
The ALJ noted in his decision:
R. at 20; see R. at 214-17.
R. at 20; see R. at 397, 403, 405.
The ALJ noted in his decision:
R. at 21; see R. at 561-67.
The ALJ further noted in his decision that on June 24, 2009,
R. at 22; see R. at 568-73.
On June 30, 2009, J. Biddison, M.D., assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 592-99. Dr. Biddison opined that Plaintiff could (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 593. Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. R. at 594-96.
On that same date, G. Dale, Jr., Ed.D., evaluated on a psychiatric review technique form Plaintiff's mental impairments under paragraph B of Listings 12.04 and 12.06 relating to affective disorders and anxiety-related disorders. R. at 574-87. Dr. Dale opined that Plaintiff's mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two episodes of decompensation of extended duration. R. at 584. Dr. Dale did not find evidence to establish the presence of the criteria under paragraph C of these Listings. R. at 585. Accordingly, Dr. Dale assessed Plaintiff's mental RFC (R. at 588-91) and opined that she was moderately limited in her ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (5) interact appropriately with the general public; (6) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and to (7) respond appropriately to changes in the work setting. Plaintiff otherwise was not significantly limited. R. at 588-89. On February 23, 2010, however, another state agency medical consultant, C. Sarno, M.D., found insufficient evidence of a mental impairment. R. at 617-30.
Dr. Tidball's treatment records apparently date from January 3, 2006, to April 2, 2009. R. at 390-554. The ALJ noted the following in his decision:
R. at 21; see R. at 406-10.
R. at 22; see R. at 634-37.
Plaintiff submitted to a psychological consultative examination by Dr. Fishburne on August 29, 2011. R. at 870-74. The ALJ noted the following findings:
R. at 22-23 (citation omitted).
In his decision, the ALJ reviewed Plaintiff's testimony:
R. at 19-20.
The ALJ further noted:
R. at 23-24.
R. at 24; see R. at 42-43, 46-66.
According to the VE, Plaintiff's past work as a teacher's assistant or daycare worker is semi-skilled and medium
The Court reviews other portions of the record more fully in its discussion of Plaintiff's arguments below. See infra Part VI.
On December 28, 2011, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of disability of May 2, 2007; and (2) had an impairment or a combination of impairments considered to be "severe" on the basis of the requirements in the Code of Federal Regulations; but (3) did not have an impairment or a combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P, app. 1; and (4) was unable to perform her past relevant work; but (5) could perform other work in the national economy, such as a non-postal mail clerk, officer helper, or router. R. at 19-28. The ALJ accordingly found that she was not disabled from May 2, 2007, through the date of the decision. R. at 28.
In so finding, the ALJ found that Plaintiff had the RFC
R. at 24-25.
The ALJ found that Plaintiff's severe impairments included migraines, fibromyalgia, post-traumatic stress disorder, and degenerative disc disease. R. at 19. In considering the severity of Plaintiff's mental impairments, the ALJ found that she had mild restriction in activities of daily living; moderate difficulties in social functioning; mild difficulties regarding concentration, persistence, or pace; and experienced no episodes of decompensation of extended duration. R. at 23-24. Because the criteria of paragraphs B and C of 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04 ("Listing 12.04") were not satisfied, the ALJ found that Plaintiff's mental impairments did not meet or medically equal the criteria of Listing 12.04. R. at 23-24.
Further, regarding Plaintiff's credibility, the ALJ found that her "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the [ALJ's RFC] assessment." R. at 25. The ALJ also weighed the opinion evidence in the record, giving (1) "little weight" to the opinions of Ms. Brown and Drs. Tidball and Mathur and (2) "great weight" to the opinions of Drs. Nutter and Fishburne. R. at 26-27.
The Social Security Act defines a disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant 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 either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-380 (2003). "If at any step a finding of disability or nondisability can be made, the [Commissioner] will not review the claim further." Thomas, 540 U.S. at 24, 124 S. Ct. at 379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see whether the claimant has a "severe" impairment, i.e., an impairment or combination of impairments that significantly limits the claimant's physical or mental ability to do basic work activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant's RFC to determine the claimant's "ability to meet the physical, mental, sensory, and other requirements" of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but the Commissioner is responsible for developing the claimant's "complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant's] own medical sources." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant's RFC as determined in step four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant's RFC as determined at step four, age, education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner must prove not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The Court reviews an ALJ's decision to determine whether the ALJ applied the correct legal standards and whether the factual findings are supported by substantial evidence. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court "is not whether [Plaintiff] is disabled, but whether the ALJ's finding that [Plaintiff] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Id. The Court's review is deferential, as "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion. See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does "not conduct a de novo review of the evidence," Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986), or undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, "[t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court." Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security Ruling
Plaintiff first maintains that the ALJ failed to set forth a narrative discussion under SSR 96-8p, contending that the ALJ did not explain the evidence upon which he relied to support his RFC assessment, citing Lane-Rauth v. Barnhart, 437 F.Supp.2d 63, 67 (D.D.C. 2006). However, "SSR 96-8p only requires consideration of all [seven functional] factors [relating to sitting, standing, walking, lifting, carrying, pushing, and pulling], not enumeration of all the factors." Banks v. Astrue, 537 F.Supp.2d 75, 84 (D.D.C. 2008). SSR 96-8p "does not require written articulation of all seven strength demands." Id. at 85. Accordingly, "a written function-by-function analysis is not required." Id.; see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ("Preparing a function-by-function analysis for medical conditions or impairments that the ALJ found neither credible nor supported by the record is unnecessary." (citing SSR 96-8p)).
In this case, the ALJ discussed in narrative form the records and opinions of Plaintiff's examining sources. R. at 20-23. The ALJ also considered Plaintiff's testimony and credibility when determining her RFC. R. at 25-26. Thus, the ALJ's function-by-function assessment and narrative discussion were proper. See Brown v. Astrue, Civil Action No. TMD 09-1358, 2011 WL 3047635, at *2 (D. Md. July 22, 2011); Walter v. Astrue, Civil No. JKS 08-639, 2009 WL 2584817, at *4 (D. Md. Aug. 19, 2009) (concluding that ALJ's "function by function" assessment was adequate because ALJ evaluated medical facts and opinions, as well as claimant's testimony and credibility, in narrative discussion). In any event, Plaintiff does not dispute either the weight given by the ALJ to the various opinions or the ALJ's personal observation of Plaintiff at the hearing and consideration of her activities of daily living in discounting her credibility. See Johnson, 434 F.3d at 658; Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (per curiam); see also Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) ("Because he had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's observations concerning these questions are to be given great weight."). Accordingly, Plaintiff's assertion is unavailing.
Plaintiff next maintains that the ALJ failed to address her diagnosed anaphylaxis or hives. Pl.'s Mem. Supp. Mot. Summ. J. 8, ECF No. 22-1.
Reid v. Comm'r of Soc. Sec., No. 13-1480, 2014 WL 2958800, at *3 (4th Cir. July 2, 2014) (citation omitted) (internal quotation marks omitted). Moreover, the burden is on the party attacking an agency's determination to show that prejudice resulted from the error. Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S.Ct. 1696, 1705-06 (2009); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) ("Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal must explain how the error caused harm."); Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004) ("[R]eversal is not required when the alleged error `clearly had no bearing on the procedure used or the substance of [the] decision reached.'" (quoting Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248, 84 S.Ct. 1236, 1245 (1964))). Furthermore, "a deficiency in opinion-writing is not a sufficient reason for setting aside an administrative finding where the deficiency had no practical effect on the outcome of the case." Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999); see Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (Posner, J.) ("No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result."). Rather, "[i]f it is predictable with great confidence that the agency will reinstate its decision on remand because the decision is overwhelmingly supported by the record though the agency's original opinion failed to marshal that support, then remanding is a waste of time." Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (Posner, J.); see Bautista v. Astrue, Civil No. TJS-11-1651, 2013 WL 664999, at *6 (D. Md. Feb. 22, 2013).
In this case, although Plaintiff points out the recurring mention of her anaphylaxis in the record, she fails to allege any limitation resulting from the condition that would affect her ability to work. She did not claim in her applications that her anaphylaxis limited her ability to work. R. at 137. She did not allege so at the hearing (R. at 40-66), although she did testify that she had an EpiPen. R. at 50-51. An ALJ is not obliged to investigate a claim not presented at the time of the benefits application and not offered at the hearing as a basis for disability. Meyer v. Colvin, 754 F.3d 251, 256-57 (4th Cir. 2014) (citing Halverson v. Astrue, 600 F.3d 922, 934 (8th Cir. 2010)). Furthermore, Plaintiff does not dispute the "little weight" given by the ALJ to Dr. Tidball's opinion (R. at 406-10, 634-37) because it was inconsistent with Plaintiff's reported activities of daily living (R. at 26-27). See id. at 256 ("[A] treating physician's opinion is to be accorded comparatively less weight if it is based on the physician's limited knowledge of the applicant's condition or conflicts with the weight of the evidence." (citing Craig, 76 F.3d at 590; 20 C.F.R. § 404.1527(c))). Further, on March 18, 2010, Dr. Tidball opined that Plaintiff's anaphylaxis "precludes employment." R. at 637. As the Commissioner points out, this opinion is not entitled to any special significance because it is not a medical opinion but an opinion on an issue reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(d), 416.927(d). Moreover, this opinion was inconsistent with Dr. Tidball's finding on April 2, 2009, that Plaintiff's allergy "causes blisters on [her] skin." R. at 407. In any event, the ALJ incorporated into his RFC assessment Dr. Tidball's opinion that Plaintiff's allergies precluded her working in the presence of chemicals, dust, and fumes. R. at 24-25, 635. Plaintiff's assertion regarding the ALJ's failure to address her anaphylaxis thus is unavailing.
Plaintiff finally contends that the ALJ's RFC assessment "fails to address or account for the frequency and duration of [her] migraine headaches," which the ALJ found were a severe impairment at step two of the sequential evaluation process. Pl.'s Mem. Supp. Mot. Summ. J. 8-9, ECF No. 22-1. As noted in Part IV above, the Commissioner determines at step two of the five-step sequential evaluation process whether the claimant has a medically severe impairment or combination of impairments. "[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Yuckert, 482 U.S. at 153-54, 107 S. Ct. at 2297-98); see Felton-Miller v. Astrue, 459 F. App'x 226, 230 (4th Cir. 2011) (per curiam) ("Step two of the sequential evaluation is a threshold question with a de minimis severity requirement."). Accordingly, "[t]he findings that the ALJ must make at steps two and four ... are quite different." Taylor v. Astrue, Civil Action No. BPG-11-0032, 2012 WL 294532, at *8 (D. Md. Jan. 31, 2012). "At step four, on the other hand, the ALJ must look to all the evidence on record and determine more precisely how, if at all, the claimant's impairments limit her ability to work." Id. "It is possible, therefore, for an ALJ to find at step two that a claimant's condition is severe—because the medical evidence does not conclusively prove otherwise—and yet at step four find no substantial evidence that the condition actually limits the claimant's ability to work." Id.; see Walker v. Colvin, No. C13-3021-MWB, 2014 WL 1348016, at *7 (N.D. Iowa Apr. 3, 2014) ("A finding of a severe impairment at Step Two does not require the ALJ to provide related functional limitations at Step Four.").
As the Commissioner points out, the ALJ discounted Plaintiff's credibility regarding her subjective complaints because the ALJ found that her limitations were not as limiting as she alleged. R. at 25-26. Plaintiff does not dispute the ALJ's finding that "[t]he available medical evidence of record supports the fact that it was thought that with better compliance of prescribed medications that her headache pain would significantly improve" (R. at 20). See 20 C.F.R. §§ 404.1530, 416.930. She also does not dispute the ALJ's finding that she "believes her migraines are unbearable with trembling and numbness; yet, the record notes poor compliance with medication and no objective finding of numbness or trembling." R. at 26. Plaintiff's argument regarding her migraine headaches is, therefore, without merit as well.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct legal standards in this case. Accordingly, Defendant's Motion for Summary Judgment is
For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 24) is
Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996) (Posner, C.J.).
