THOMAS M. DiGiROLAMO, Magistrate Judge.
Plaintiff Cristin Purvey seeks judicial review under 42 U.S.C. § 405(g) of a final decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 15) and Defendant's Motion for Summary Judgment (ECF No. 16).
Plaintiff was born in 1982, has a high-school education, and previously worked as a bank teller, waitress, bartender, day care worker, and receptionist. R. at 24-25, 46-48. Plaintiff applied for DIB on April 22, 2011 (with a protective filing date of April 15, 2011), alleging disability beginning on September 15, 2009, due to Lyme disease, arthritis in the right knee and ankle, bilateral leg injuries, nerve damage, anxiety, and depression. R. at 69, 183-90, 213. The Commissioner denied Plaintiff's application initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 62-65, 91-95, 112-20. On February 5, 2013, ALJ Frank L. Gregori held a hearing in Nashville, Tennessee, at which Plaintiff and a vocational expert ("VE") testified. R. at 16-61. On April 19, 2013, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of September 15, 2009, through the date of the decision. R. at 66-90. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on August 28, 2014. R. at 1-12. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).
On October 28, 2014, 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.
On July 6, 2011, William R. Huffman, M.D., conducted a consultative examination of Plaintiff. R. at 604-14. Dr. Huffman ultimately opined that Plaintiff
R. at 607; see R. at 608-09. Dr. Huffman also opined that Plaintiff could sit for twenty minutes, stand for twenty minutes, and walk for ten minutes at one time without interruption. R. at 609.
On July 7, 2011, JoAnn Quintero, Ph.D., a licensed psychologist, conducted a consultative psychological evaluation of Plaintiff to assess her mental ability to perform work-related activities on a sustained basis. R. at 615-24. Dr. Quintero's diagnoses included recurrent, severe, major depressive disorder without psychotic features, rule out post-traumatic stress disorder. R. at 620.
On July 28, 2011, a state agency medical consultant, J. Shane, assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 686-93. The consultant opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday (with a medically required hand-held assistive device necessary for ambulation); (3) sit for about six hours in an eight-hour workday; and (4) perform limited pushing and/or pulling in the lower extremities. R. at 687. The consultant did not indicate that Plaintiff must periodically alternate between sitting and standing to relieve pain or discomfort. R. at 687. Plaintiff occasionally could balance, stoop, kneel, crouch, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 688. Although Plaintiff had no manipulative, visual, or communicative limitations, she was to avoid even moderate exposure to hazards such as machinery and heights. R. at 689-90.
On October 18, 2011, another state agency medical consultant, Charles Settle, M.D., assessed Plaintiff's physical RFC. R. at 736-45. Dr. Settle opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for four hours in an eight-hour workday (with a medically required hand-held assistive device necessary for ambulation); (3) sit for about six hours in an eight-hour workday; and (4) perform limited pushing and/or pulling in the lower extremities. R. at 737. Dr. Settle also did not indicate that Plaintiff must periodically alternate between sitting and standing to relieve pain or discomfort. R. at 737. Plaintiff occasionally could balance, stoop, kneel, crouch, and climb ramps and stairs (but never crawl or climb ladders, ropes, or scaffolds). R. at 738. Although she had no manipulative, visual, or communicative limitations, Plaintiff was to avoid concentrated exposure to fumes, odors, dust, gases, and poor ventilation. R. at 739-40.
On November 1, 2011, Plaintiff reported that her right hand was numb to a family nurse practitioner and Richard Rubinowicz, M.D., at the Center for Neurological Treatment and Research PLLC. Plaintiff was diagnosed with carpal tunnel syndrome, and a nighttime wrist splint for her right hand was recommended. R. at 751-52.
The ALJ reviewed Plaintiff's testimony:
R. at 74-75; see R. at 24-46, 48-54.
The VE testified that a hypothetical person with Plaintiff's same age, education, and work experience who had the RFC outlined in Part III below could not perform Plaintiff's past work but could perform the sedentary, unskilled
On April 19, 2013, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of disability of September 15, 2009; 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 sorter, electrical assembler, or security monitor. R. at 71-82. The ALJ thus found that she was not disabled from September 15, 2009, through the date of the decision. R. at 82.
In finding that Plaintiff's mental impairments did not meet or medically equal the criteria of Listings 12.04 and 12.06 found in 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04 and 12.06, the ALJ found that Plaintiff experienced (1) mild restriction in activities of daily living; (2) mild difficulties in social functioning; (3) moderate difficulties with regard to concentration, persistence, or pace; and (4) no episodes of decompensation of extended duration. R. at 72-73. The ALJ ultimately found that Plaintiff had the RFC
R. at 73-74.
The ALJ also considered Plaintiff's credibility and 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 entirely credible for the reasons explained in this decision." R. at 75. The ALJ gave "some" weight to the function reports provided by Plaintiff's friends to the extent that they showed that she was more functional than alleged, but "little" weight to their opinions regarding disability. R. at 79 (citing R. at 221-33, 290-99). The ALJ gave "great" weight to the opinions of the state agency psychological consultants (R. at 81 (citing R. at 694-711, 718-35)) and to Dr. Quintero's opinion (R. at 81 (citing R. at 621-22)). The ALJ further noted that, "[d]espite [the ALJ's] urging [Plaintiff] and her attorney to obtain some kind of written opinion from her treating neurologist, Dr. Rubinowicz was unwilling and declined to provide [Plaintiff] with any kind of opinion letter or functional capacity assessment. R. at 81 (citing R. at 362-64); see R. at 42-44, 59-60.
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
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted) (citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis "is inappropriate given that remand would prove futile in cases where the ALJ does not discuss functions that are `irrelevant or uncontested.'" Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). Rather, remand may be appropriate "where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (quoting Cichocki, 729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was "left to guess about how the ALJ arrived at his conclusions on [the claimant's] ability to perform relevant functions" because the ALJ had "said nothing about [the claimant's] ability to perform them for a full workday," despite conflicting evidence as to the claimant's RFC that the ALJ did not address. Id. at 637.
Plaintiff first contends that the ALJ failed to include in the RFC assessment any limitation related to her carpal tunnel syndrome, which the ALJ found to be a severe impairment (R. at 71). Pl.'s Mem. Supp. Mot. Summ. J. 5-7, 10-11, ECF No. 15-1. "To the extent [Plaintiff] suggests that a finding of severe impairment at Step 2 necessarily requires limitations on a claimant's ability to perform basic work activities, this argument has no merit," however. Burkstrand v. Astrue, 346 F. App'x 177, 180 (9th Cir. 2009) (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228-29 (9th Cir. 2009)). 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. "Step two of the sequential evaluation is a threshold question with a de minimis severity requirement." Felton-Miller v. Astrue, 459 F. App'x 226, 230 (4th Cir. 2011) (per curiam). In other words, "the 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). Thus, "[t]he findings that the [Commissioner] 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 [Commissioner] 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 [the Commissioner] 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. Thus, "an ALJ is not required to include a corresponding limitation for each severe impairment." Copes v. Comm'r, Soc. Sec. Admin., Civil No. SAG-11-3487, 2013 WL 1809231, at *1 (D. Md. Apr. 26, 2013). In any event, as Defendant points out, Plaintiff has not demonstrated that her carpal tunnel syndrome limited her to a greater extent than the ALJ found. Def.'s Mem. Supp. Mot. Summ. J. 12, ECF No. 16-1. The ALJ noted that, despite Plaintiff's diagnosis of carpal tunnel syndrome, her treating neurologist, Dr. Rubinowicz, did not provide upon Plaintiff's request an opinion regarding her functional capacity. R. at 81 (citing R. at 362-64). Because Plaintiff "has failed to point to any specific piece of evidence not considered by the Commissioner that might have changed the outcome of [her] disability claim," her argument in this regard thus is unavailing. Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014).
Plaintiff next contends that the ALJ erred in his consideration of the opinion of Dr. Huffman, the consultative examiner who opined that Plaintiff could sit for twenty minutes, stand for twenty minutes, and walk for ten minutes at one time without interruption. R. at 609. According to Plaintiff, these limitations suggest that she would require a sit-stand option, which the ALJ failed to address. Pl.'s Mem. Supp. Mot. Summ. J. 7, ECF No. 15-1.
As noted above, the VE testified that a hypothetical person with the RFC assessment outlined in Part III would be able to perform the unskilled, sedentary jobs of security-system monitor (DOT 379.367-010) and electrical assembler (DOT 729.687-010) (R. at 56). See DOT 379.367-010, 1991 WL 673244 (listed as "surveillance-system monitor"); DOT 729.687-010, 1991 WL 679733 (listed as "assembler, electrical accessories I"). This person could also perform the unskilled, sedentary job of sorter.
As noted in Part IV above, the Commissioner bears the burden at the final step of the five-step sequential evaluation process used to evaluate a claimant's disability claim. Pearson, 810 F.3d at 207. To determine whether sufficient other work exists for the claimant in the national economy, the ALJ relies primarily on the DOT. Id. The ALJ may also use a VE "to address complex aspects of the employment determination, including the expert's observations of what a particular job requires in practice or the availability of given positions in the national economy." Id. SSR 00-4p requires that the ALJ inquire, on the record, whether the VE's testimony conflicts with the DOT, and also requires that the ALJ elicit a reasonable explanation for and resolve conflicts between the VE's testimony and the DOT. Id. at 207-08 (citing SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000), at *2). The ALJ must, by determining if the VE's explanation is reasonable, resolve conflicts before relying on the VE's evidence to support a determination or decision about whether the claimant is disabled. Id. at 208 (citing same).
An ALJ has not fulfilled his affirmative duty merely because the VE responds "yes" when asked if his testimony is consistent with the DOT. Id. Rather, the ALJ independently must identify apparent conflicts between the VE's testimony and the DOT. Id. at 209. "[I]n many cases, testimony may only appear to conflict with the [DOT], and the [VE] may be able to explain that, in fact, no conflict exists." Id. A VE's testimony that apparently conflicts with the DOT "can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10 (citing SSR 00-4p, 2000 WL 1898704, at *2).
"In order for a VE's opinion to be relevant or helpful, it must be based upon a consideration of all the other evidence on the record and must be in response to hypothetical questions which fairly set out all of the plaintiff's impairments." Brinkley v. Astrue, 695 F.Supp.2d 269, 282 (D.S.C. 2010) (citing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)). According to the DOT, the job of surveillance-system monitor requires a reasoning level of three. DOT 379.367-010, 1991 WL 673244. Level-three reasoning requires the ability to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form" and to "[d]eal with problems involving several concrete variables in or from standardized situations." DOT app. C, 1991 WL 688702. The ALJ's assessment of Plaintiff's RFC, however, limited her to "simple, one- to three-step detailed tasks" (R. at 73), a limitation that apparently conflicts with the demands of level-three reasoning. See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (determining that limitation to simple, routine work tasks "seems inconsistent with the demands of level-three reasoning"); Wiszowaty v. Astrue, 861 F.Supp.2d 924, 947 (N.D. Ind. 2012); Gonzales v. Astrue, No. 1:10-CV-01330-SKO, 2012 WL 14002, at *13 (E.D. Cal. Jan. 4, 2012) ("[T]he Court cannot conclude that such a limitation [to tasks involving one- to two-step instructions] also encompasses level 3 reasoning."); Pharris v. Astrue, No. 1:10-CV-01323 JLT, 2011 WL 3882508, at *12 (E.D. Cal. Sept. 2, 2011) ("A limitation to three and four step instructions is consistent with jobs requiring Reasoning Level 2."). But see Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009) (per curiam) (determining that capacity to follow simple instructions was consistent with level-three reasoning); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (unskilled job of information clerk was not complex and thus was consistent with level-three reasoning); Clarkson v. Comm'r, Soc. Sec. Admin., Civil No. SAG-11-631, 2013 WL 308954, at *2 (D. Md. Jan. 24, 2013). Because there is an apparent conflict between the RFC to perform simple, one- to three-step detailed tasks and the demands of level three reasoning, the ALJ "erred in failing to reconcile this apparent conflict." Zavalin, 778 F.3d at 847.
The ALJ's failure to reconcile this apparent conflict is harmless, however, as the VE identified the job of nut sorter to be consistent with the ALJ's assessment of Plaintiff's RFC. With a reasoning level of level one,
Plaintiff contends, however, that the ALJ failed to consider Dr. Huffman's opinion suggesting a sit-stand option (R. at 609), which would erode the sedentary occupational base. Pl.'s Mem. Supp. Mot. Summ. J. 7-8, ECF No. 15-1 (citing SSR 96-9p). Cases suggest that the inclusion of a sit-stand option in the RFC assessment would not eliminate the availability of the sorter and electrical assembler jobs about which the VE testified.
Thus, the ALJ's error, if any, in failing to incorporate a sit-stand option in the RFC assessment and hypothetical questions to the VE or in failing to address the factors under 20 C.F.R. § 404.1527(c) when evaluating Dr. Huffman's opinion was harmless. In short, substantial evidence supports the ALJ's finding at step five that, despite her inability to perform her past relevant work, Plaintiff could perform other work in the national economy.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct legal standards here. Thus, Defendant's Motion for Summary Judgment is
For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 16) is
