IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

NAJLA C., * * Plaintiff, * * Civil No. TMD 20-1732 v. * * * ANDREW M. SAUL, * Commissioner of Social Security, * * Defendant. * ************

MEMORANDUM OPINION GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR REMAND

Plaintiff Najla C. seeks judicial review under

(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. Before the Court are Plaintiff’s Motion for Summary Judgment and alternative motion for remand (ECF No. 12) and Defendant’s Motion for Summary Judgment (ECF No. 13).1 Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner’s decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 12) is GRANTED.

1 The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as a procedural means to place the district court in position to fulfill its appellate function, not as a device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.” Walls v. Barnhart,

, 289 n.2 (4th Cir. 2002). For example, “the denial of summary judgment accompanied by a remand to the Commissioner results in a judgment under sentence four of

(g), which is immediately appealable.”

I Background On October 1, 2015, Plaintiff protectively filed an application for SSI, alleging disability beginning on September 15, 2010. R. at 71. After the Commissioner denied Plaintiff’s claim initially and on reconsideration, she requested a hearing. R. at 71. On April 8, 2019,

Administrative Law Judge (“ALJ”) Anne Sharrard held a hearing where Plaintiff and a vocational expert (“VE”) testified. R. at 92-130. The ALJ thereafter found on April 30, 2019, that Plaintiff was not disabled since the application date of October 1, 2015. R. at 68-91. In so finding, the ALJ found that Plaintiff had not engaged in substantial, gainful activity since October 1, 2015, and that she had severe mental impairments. R. at 74-75. She did not, however, have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. R. at 75-77. In comparing the severity of Plaintiff’s mental impairments to the listed impairments, the ALJ found that Plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace.

R. at 76. The ALJ then found that Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the following non- exertional limitations: she cannot perform [a] job that requires driving or handling money. She can understand and carry out simple and routine instructions in a low stress job, which is defined as having occasional changes in the work setting and only occasional decision making required. She can have occasional interaction with supervisors and co-workers and no face-to-face interaction with the general public. She cannot have a job that requires opening boxes as part of her job.

R. at 77. In light of this RFC and the VE’s testimony, the ALJ found that Plaintiff could perform medium work in the national economy, such as a laundry laborer, linen room attendant, or cleaner II.2 R. at 85. The ALJ thus found that Plaintiff was not disabled since October 1, 2015. R. at 86. After the Appeals Council denied Plaintiff’s request for review, Plaintiff filed on June 10, 2020, 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 then was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted. II Disability Determinations and Burden of Proof 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.

(d)(1)(A), 1382c(a)(3)(A);

, 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.”

(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.

, 416.920; see Barnhart v. Thomas,

,

(2003). “If at any step a finding of disability or nondisability can be made,

2 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”

(c). the [Commissioner] will not review the claim further.” Thomas,

,

; see

(a)(4), 416.920(a)(4). The claimant has the burden of production and proof at steps one through four. See Bowen v. Yuckert,

, 146 n.5,

, 2294 n.5 (1987); Radford v. Colvin,

(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.

(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,

(4th Cir. 1995); see

(c), 404.1522(a), 416.920(c), 416.922(a).3 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.

(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford,

. 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

3 The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.”

(b), 416.922(b). These abilities and aptitudes include (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting.

§§ 404.1522(b)(1)-(6), 416.922(b)(1)-(6); see Yuckert,

,

. determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of the claimant’s past relevant work.

(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,

(4th Cir. 2006); see

(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.”

(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See

If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled.

§§ 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,

(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,

;

(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.

(a)(4)(v), 416.920(a)(4)(v). III Substantial Evidence Standard 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,

(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.”

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.”

(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,

; see also Biestek v. Berryhill,

,

(2019). 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,

(4th Cir. 1986), or undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Hancock,

. Rather, “[t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v. Chater,

(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,

(4th Cir. 2005) (per curiam). IV Discussion Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security Ruling4 (“SSR”) 96-8p,

(July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-16, ECF No. 12-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function

assessment of her ability to perform the physical and mental demands of work.

. In particular, she contends that, among other things, the ALJ failed to evaluate properly the opinions of Daniel Kauffman, M.D., her treating psychiatrist.

. Plaintiff also maintains that the ALJ erroneously evaluated her subjective complaints.

. For the reasons discussed below, the Court remands this case for further proceedings. SSR 96-8p,

(July 2, 1996), explains how adjudicators should assess RFC and instructs that the RFC “assessment must first identify the individual’s functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” The Ruling further explains that the residual functional capacity “assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”

Mascio v. Colvin,

(4th Cir. 2015) (alteration in original) (footnote omitted) (citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand

4 Social Security Rulings are “final opinions and orders and statements of policy and interpretations” that the Social Security Administration has adopted.

(b)(1). Once published, these rulings are binding on all components of the Social Security Administration. Heckler v. Edwards,

, 873 n.3,

, 1534 n.3 (1984);

(b)(1). “While they do not have the force of law, they are entitled to deference unless they are clearly erroneous or inconsistent with the law.” Pass,

n.3. 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.’”

(quoting Cichocki v. Astrue,

(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.”

(quoting Cichocki,

). 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; see Monroe v. Colvin,

(4th Cir. 2016) (remanding because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ erroneously expressed claimant’s RFC first and then concluded that limitations caused by claimant’s impairments were consistent with that RFC).

The ALJ gave “some weight” to the February 2019 opinion of Dr. Kauffman, Plaintiff’s treating psychiatrist. R. at 83, 495-501. In February 2019, Dr. Daniel Kauffman opined that [Plaintiff’s] mental impairments make her unable to sustain an ordinary routine without special supervision and work in coordination with others without being distracted; that she cannot complete a normal workday, workweek or perform at [a consistent] pace; and that she cannot respond appropriately to changes in a routine work setting and deal with normal work stress. Dr. Kauffman determined that she is unable to understand and remember detailed instructions, set realistic goals or make plans independently; that she cannot deal with the stress of semiskilled and skilled work; and that she cannot use public transportation or travel in unfamiliar places. He also opined that she has reduced intellectual functioning and that she has marked functional limitations in understanding, remembering or [applying] information as well as with social interaction, concentrating, persisting or maintaining pace, and adapting or managing oneself. Dr. Kauffman added that she would be absent from work more than four days per month due to her conditions.

R. at 83 (citations omitted). The ALJ gave “some weight to Dr. Kauffman’s opinion since he is a treating specialist,” but the ALJ found that his findings were “not consistent with the evidence in the file as a whole.” R. at 83. The ALJ then reviewed the evidence in the record before finding that, “[c]ertainly, the evidence mentioned herein contradicts Dr. Kauffman’s opinion, and supports that [Plaintiff] could function within the limits of the [RFC] set forth.” R. at 83. For claims—like [Plaintiff’s]—filed before March 27, 2017, the standards for evaluating medical opinion evidence are set forth in 20 C.F.R. [§ 416.927]. That regulation defines “medical opinions” as “statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” For purposes of the regulation, an “acceptable medical source” includes a licensed physician or psychologist. The regulation provides that the ALJ “will evaluate every medical opinion” presented to him, “[r]egardless of its source.” Generally, however, more weight is given “to the medical opinion of a source who has examined you than to the medical opinion of a medical source who has not examined you.”

Brown v. Comm’r Soc. Sec. Admin.,

(4th Cir. 2017) (alteration in original) (citations omitted). Section [416.927(c)(2)] sets out two rules an ALJ must follow when evaluating a medical opinion from a treating physician. First, it establishes the “treating physician rule,” under which the medical opinion of a treating physician is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” Second, if a medical opinion is not entitled to controlling weight under the treating physician rule, an ALJ must consider each of the following factors to determine the weight the opinion should be afforded: (1) the “[l]ength of the treatment relationship and the frequency of examination”; (2) the “[n]ature and extent of the treatment relationship”; (3) “[s]upportability,” i.e., the extent to which the treating physician “presents relevant evidence to support [the] medical opinion”; (4) “[c]onsistency,” i.e., the extent to which the opinion is consistent with the evidence in the record; (5) the extent to which the treating physician is a specialist opining as to “issues related to his or her area of specialty”; and (6) any other factors raised by the parties “which tend to support or contradict the medical opinion.” Dowling v. Comm’r of Soc. Sec. Admin.,

, 384-85 (4th Cir. 2021) (alterations in original) (citations omitted); see

(c)(2)(i)-(6). While “an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ’s decision that [she] meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling, 986 F.3d at 385. Here, the ALJ stated that she had considered opinion evidence in accordance with the requirements of

. R. at 77. It does not appear, however, that the ALJ meaningfully considered each of the § 416.927(c) factors before deciding how much weight to

give Dr. Kauffman’s opinion. See Dowling, 986 F.3d at 385; Arakas v. Comm’r, Soc. Sec. Admin.,

, 107 n.16 (4th Cir. 2020). Although it seems that the ALJ considered the supportability and consistency of Dr. Kauffman’s opinion with the record as a whole and the length of the doctor’s treatment relationship with Plaintiff, the ALJ apparently did not consider the nature and extent of the treatment relationship, the frequency of the doctor’s examination of Plaintiff, the doctor’s specialization, and other factors under

(c)(6), such as the doctor’s understanding of disability programs and their evidentiary requirements and the extent of his familiarity with the other information in Plaintiff’s case record. Remand is thus warranted under Dowling. See Dowling, 986 F.3d at 386. The ALJ also discredited Plaintiff’s subjective complaints as inconsistent with her daily

activities: [Plaintiff] admitted having a valid driver’s license and occasionally driving with a companion, but [she] denied driving at night or using public transportation. She acknowledged that she does look for jobs. She reported being capable of using computers, creating web pages and engaging in social media. She admitted being capable of going to doctors’ appointments and visiting different malls. She recounted going out, doing grocery shopping and walking with her father. She also admitted being capable of taking care of her hair.

R. at 78. “A claimant’s inability to sustain full-time work due to pain and other symptoms is often consistent with her ability to carry out daily activities,” however. Arakas, 983 F.3d at 101. Thus, “[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them.” Woods v. Berryhill,

(4th Cir. 2018). Plaintiff testified that, among other things, she left her home for appointments and accompanied her mother to the mall on Saturdays. R. at 114-15. She reported on a function report that she could shop in stores when she was out with her parents, but that she did not shop often. R. at 293. She took at least two hours to care for her hair when she washed it on Fridays. R. at 123, 291. Her mother helped her arrange appointments. R. at 292. Although the ALJ noted that Plaintiff was able to wash her laundry (R. at 79), she did so only once a week (R. at 292). She rarely used Twitter and YouTube. R. at 109. The ALJ here did not “explain how those activities showed that [Plaintiff] could sustain a full-time job” and could actually perform the tasks required by medium work. Brown,

; see Arakas, 983 F.3d at 100. The Court remands this case to afford the ALJ the opportunity to do so. In sum, the ALJ “must both identify evidence that supports [her] conclusion and ‘build an accurate and logical bridge from [that] evidence to [her] conclusion.’” Woods,

(alteration in original) (quoting Monroe,

). An ALJ’s failure to do so

constitutes reversible error. Lewis v. Berryhill,

(4th Cir. 2017). Because “meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion,” the Court remands this case for further proceedings. Thomas v. Berryhill,

(4th Cir. 2019) (citing Woods,

). Because the Court remands this case on other grounds, the Court need not address Plaintiff’s remaining arguments. In any event, the ALJ also should address these other issues raised by Plaintiff. See Tanner v. Comm’r of Soc. Sec.,

, 98 n.* (4th Cir. 2015) (per curiam) (“The Social Security Administration’s Hearings, Appeals, and Litigation Law Manual ‘HALLEX’ notes that the Appeals Council will vacate the entire prior decision of an

administrative law judge upon a court remand, and that the ALJ must consider de novo all pertinent issues.”). V Conclusion For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 13) is DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 12) is DENIED. Plaintiff’s alternative motion for remand (ECF No. 12) is GRANTED. Defendant’s final decision is REVERSED under the fourth sentence of

(g). This matter is REMANDED for further proceedings consistent with this opinion. A separate order will issue.

Date: May 3, 2021 /s/ Thomas M. DiGirolamo United States Magistrate Judge