United States District Court, D. Maryland
J. A. T. Plaintiff,
CAROLYN W. COLVIN Acting Commissioner of Social Security Defendant.
WILLIAM CONNELLY, Magistrate Judge.
Plaintiff J.A.T. ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Act, 42 U.S.C. §§ 401-433, 1381-1383f. The parties consented to a referral to a United States Magistrate Judge for all proceedings and final disposition. See ECF Nos. 5, 7-8. Pending and ready for resolution are Plaintiff's Motion for Summary Judgment (ECF No. 14) and Defendant's Motion for Summary Judgment (ECF No. 16). No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons set forth below, Plaintiff's Motion for Summary Judgment will be denied and Defendant's Motion for Summary Judgment will be granted.
On May 24, 2007 Plaintiff filed applications for DIB and SSI alleging a disability onset date of July 1, 2006 due to a diabetes, HIV positive, hepatitis C and swelling in legs. See R. at 98-105, 122. Plaintiff's applications were denied initially on July 19, 2007. R. at 63-70. On September 10, 2007 Plaintiff requested reconsideration, R. at 71, and on October 22, 2007 the applications were denied again. R. at 72-75. Thereafter, on December 3, 2007, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 76. On July 22, 2009 an ALJ convened a hearing. R. at 20-52. Plaintiff was represented by counsel at this hearing. The ALJ obtained testimony from Plaintiff and a vocational expert ("VE"). In the September 30, 2009 decision the ALJ found Plaintiff has not been under a disability from December 31, 2007 through the date of the decision. R. at 19. On October 15, 2009 Plaintiff requested a review of the hearing decision. R. at 8-9. On July 28, 2010 the Appeals Council denied Plaintiff's request for review, R. at 1-5, thus making the ALJ's determination the Commissioner's final decision.
On September 14, 2010 Plaintiff filed a civil action in this court. See PWG-10-CV-2531, ECF No. 1. Subsequently on December 8, 2010 the Commissioner moved for a remand of the case pursuant to the Social Security Act, Sentence Four, of 42 U.S.C. § 405(g), with the consent of Plaintiff. Id., ECF No. 15; R. at 426-27. Eight days later, on December 16, 2010 the court granted the motion, remanding the case to the Commissioner for further administrative proceedings. Id., ECF No. 16; R. at 425.
On February 18, 2011 the Appeals Council remanded the case to the ALJ, stating,
The U.S. District Court for the District of Maryland (Civil Action Number 1:10-cv-02531) has remanded this case to the Commissioner of Social Security for further administrative proceedings in accordance with the fourth sentence of section 205(g) of the Social Security Act.
The Appeals Council hereby vacates the final decision of the Commissioner of Social Security and remands this case to an Administrative Law Judge for resolution of the following issues:
Page 3 of the hearing decision states that the claimant's depression was not severe. The Administrative Law Judge discussed the claimant's depression (page 4) and concluded that there was no evidence in the medical records of the claimant having any limitations associated with depression. However, the decision does assess the severity or effects of the claimant's depression, providing the rationale for "B" criteria using the special technique described in 20 CFR 404.1520a and 416.920a. Further evaluation of the severity of the claimant's mental impairment is necessary.
Page 3 of the hearing decision states that the claimant's back pain was a severe impairment but her diabetes and hepatitis C were not severe impairments. Since pain is a symptom and not an impairment, and a symptom is not a medically determinable impairment, the claimant's back pain should not be included as a severe impairment. Social Security Ruling 96-4p and 20 C.F.R. 404.1529 and 416.929. However, the evidence shows that the claimant takes several different medications for her diabetes, including insulin injections. (Exhibits 11F and 12F). In addition, the claimant's treating physician, Dr. Gregory Taylor, stated that the claimant's severe weakness and fatigue resulted from her hepatitis C (Exhibit[s] 10F and 15F). The decision does not include an adequate evaluation of this medical evidence in finding that the claimant's diabetes and hepatitis C were not severe impairments. The claimant's back pain should be removed as a severe impairment, and the severity of the claimant's physical impairments should be properly evaluated.
The hearing decision, Finding No. 3, indicates that one of the claimant's severe impairments is that of obesity, and the evidence of record shows that claimant has a consistent pattern of obesity. The claimant was diagnosed by her treating physician as obese (Exhibits 2F and 11F). Though the Administrative Law Judge identified obesity as a severe impairment, the decision does not include an evaluation of the impact of the claimant's obesity. Since the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately, consideration needs to be given to the limitations or cumulative effects of the obesity upon claimant's applicable medical impairments, claimant's residual functional capacity, as well as the claimant's ability to perform past relevant work and other work that exists in significant numbers in the national economy (Social Security Ruling 02-1p).
The medical evidence in the record includes March 6, 2008 and April 29, 2009 medical assessment reports prepared by the claimant's treating physician, Dr. Gregory Taylor. In both reports, Dr. Taylor stated that the claimant did not have the capacity necessary to remain in a seated position for six hours out of an eight-hour day and could not remain on her feet for two hours in an eight-hour day. Dr. Taylor also stated that the claimant did not have the strength and endurance necessary to lift objects weighing up to ten pounds on a sustained, regular, and continuing basis (Exhibits 10F and 15F). The decision does not include a discussion of Dr. Taylor's March 6, 2008 opinion (Exhibit 10F) and does not mention Dr. Taylor's April 29, 2009 opinion (Exhibit 15F) regarding the claimant's physical limitations. In addition, the Administrative Law Judge did not assess any weight to Dr. Taylor's opinion as required by Social Security Ruling 96-2p. The treating source opinion should be evaluated under the factors in 20 CFR 404.1527(d) and 416.927(d).
Upon remand the Administrative Law Judge will:
Further evaluate the severity of the claimant's physical impairments, including her back impairment, diabetes and hepatitis C. Further evaluate the claimant's obesity in accordance with Social Security Ruling 02-1p. Further evaluate the claimant's mental impairments in accordance with the special technique described in 20 CFR 404.1520a and 416.920a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described in 20 CFR 404.1520a(c) and 416.920a(c).
Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed physical and mental limitations (Social Security Ruling 96-8p). In so doing, evaluate the treating source opinions, including the opinions of Gregory Taylor, M.D., pursuant to the provisions of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating source to provide additional evidence and/or further clarification of the opinions and medical source statements about what the claimant can still do despite the impairment (20 CFR 404.1512 and 416.912).
If necessary, further evaluate the claimant's ability to do her past relevant work at the fourth step of the sequential evaluation process by comparing the claimant's residual functional capacity to the physical and mental demands of the work she has done in the past (Social Security Rulings 82-61 and 82-62; 20 CFR 404.1520(e) and 416.920(e)).
If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Rulings 83-12 and 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
The claimant filed applications for Title II and Title XVI benefits (Exhibits 1D and 2D). The hearing decision, however, addresses only the claimant's application for Title II benefits. The record is unclear as to whether the claimant's application for Title XVI benefits was resolved. Although the claimant did not select Title XVI on the Form 501 for requesting a hearing ( see Exhibit 6B), the claimant's Title XVI claim should be fully adjudicated.
In compliance with the above, the Administrative Law Judge will offer the claimant the opportunity for a hearing, take any further action needed to complete the administrative record, and issue a new decision.
R. at 430-32.
A supplemental hearing was held on January 18, 2012 in accordance with the Appeals Council's Remand. Plaintiff was again represented by counsel. The ALJ obtained testimony from Plaintiff and a VE. R. at 396-424. In the April 26, 2012 decision the ALJ found Plaintiff has not been under a disability, as defined in the Social Security Act, from July 1, 2006 through the date of the decision. R. at 395. On May 25, 2012 counsel for Plaintiff filed exceptions to the unfavorable decision. R. at 377-79. On July 11, 2012 the Appeals Council denied Plaintiff's request for review, R. at 373-76, thus making the ALJ's determination the Commissioner's final decision.
2. ALJ's Decision.
In the decision of September 30, 2007, the ALJ evaluated Plaintiff's claim for DIB using the sequential evaluation process set forth in 20 C.F.R. § 404.1520. Plaintiff bears the burden of demonstrating her disability as to the first four steps. At step five the burden shifts to the Commissioner. If Plaintiff's claim fails at any step of the process, the ALJ does not advance to the subsequent steps. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
At step one the ALJ found Plaintiff has not engaged in substantial gainful activity since December 31, 2007, her amended alleged onset date. R. at 15. The ALJ concluded at step two that Plaintiff's asymptomatic HIV infection, obesity and back pain were severe impairments. Also, at step two, the ALJ determined Plaintiff has the following non-severe impairments: diabetes, Hepatitis, status post uterine cancer and hysterectomy and depression. At step three the ALJ found Plaintiff does not have an impairment or combination of impairments which meets or medically equals a listed impairment. The ALJ specifically found Plaintiff's HIV does not meet the requirements of Listing 14.08. R. at 17.
Next the ALJ considered Plaintiff's residual functional capacity ("RFC"). The ALJ determined Plaintiff has the RFC to perform the full range of medium work as defined by 40 C.F.R. § 404.1567(c). Finally, at step four, the ALJ found Plaintiff is capable of performing her past relevant work as a security guard and as a housekeeper. R. at 18.
After the supplemental hearing on January 18, 2012, the ALJ re-evaluated Plaintiff's claim for DIB and evaluated Plaintiff's claim for SSI using the sequential evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. At step one the ALJ found Plaintiff has not engaged in substantial gainful activity since December 31, 2007, the alleged onset date. R. at 386. At step two the ALJ determined Plaintiff has the following severe impairments: depression, diabetes, HIV positive and obesity. R. at 387. Additionally, at this step, the ALJ identified Plaintiff's non-severe impairments: "Hepatitis, history of deep vein thrombosis and pulmonary embolism[, ] anemia and status post uterine cancer and hysterectomy." Id.
At step three the ALJ found Plaintiff does not have an impairment or combination of impairments which meets or medically equals a listed impairment. The ALJ specifically considered Listing 14.08K, Human immunodeficiency virus (HIV) infection and the opinions of Plaintiff's treating physician, Dr. Taylor who opined Plaintiff meets the listing. The ALJ determined Plaintiff's HIV does not meet the requirements of Listing 14.08K.
In evaluating Plaintiff's depression, the ALJ applied the special technique as outlined in 20 C.F.R. §§ 404.1520a, 416.920a. The ALJ assessed Plaintiff's depression in light of Listing 12.04, Affective Disorders. First the ALJ considered the "paragraph B" criteria. He found Plaintiff has mild restrictions of activities of daily living, mild difficulties in social functioning, moderate difficulties in concentration, persistence or pace and no episodes of decompensation. R. at 388-89. "Because the claimant's mental impairment does not cause at least two marked' limitations ...