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Rossi v. Colvin

United States District Court, D. Maryland

February 28, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.


WILLIAM CONNELLY, Magistrate Judge.

Plaintiff Michael A. Rossi ("Mr. Rossi" or "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 his 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.[1] Pending and ready for resolution are Plaintiff's Motion for Summary Judgment or in the Alternative, Motion for Remand (ECF No. 13) and Defendant's Motion for Summary Judgment (ECF No. 18). No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons set forth below, Defendant's Motion for Summary Judgment will be granted and Plaintiff's Motion for Summary Judgment (or in the Alternative, Motion for Remand) will be denied.

1. Background.

On November 9, 2009[2] Mr. Rossi protectively filed applications for DIB[3] and SSI alleging a disability onset date of May 22, 2008[4] due to acute intermittent porphyria[5], depression, anxiety, chronic rectal bleeding, chronic pancreatitis, chronic abdominal pain, chronic fatigue, insomnia, nausea and diarrhea. See R. at 90-94, 103. Mr. Rossi's applications were denied initially on March 19, 2010. R. at 71-75.[6] On March 26, 2010 Mr. Rossi requested reconsideration. R. at 76. On August 4, 2010 the claims were denied again. See R. at 77-80. On August 12, 2010 Mr. Rossi requested a hearing by an Administrative Law Judge ("ALJ"). R. at 81-82.

On September 13, 2011 an ALJ convened a hearing. R. at 28-64. Mr. Rossi was represented by counsel. During the hearing the ALJ obtained testimony from Mr. Rossi and a vocational expert ("VE"). In the October 28, 2011 decision the ALJ found Mr. Rossi has not been under a disability, as defined in the Social Security Act, from May 22, 2008 through the date of the decision. R. at 20. On November 11, 2011 Mr. Rossi requested a review of the hearing decision. R. at 7-8. On September 14, 2012 the Appeals Council denied Mr. Rossi's request for review, R. at 1-6, thus making the ALJ's determination the Commissioner's final decision.

2. ALJ's Decision.

The ALJ evaluated Mr. Rossi's claims for DIB and SSI using the sequential evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. Mr. Rossi bears the burden of demonstrating his disability as to the first four steps. At step five the burden shifts to the Commissioner. If Mr. Rossi's claims fail 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 Mr. Rossi has not engaged in substantial gainful activity since May 22, 2008, the alleged onset date of disability. R. at 14. The ALJ concluded at step two that Mr. Rossi has the following severe impairments: "gastroenteritis[7]; headaches; adjustment disorder with depressed mood; panic attacks; and residuals from prior right patella dislocation[.]" Id. At step three the ALJ found Mr. Rossi does not have an impairment or combination of impairments which meets or medically equals a listed impairment. The ALJ specifically considered Listing 1.02A[8] for Mr. Rossi's residuals from prior right patella dislocation. "Despite recurrent pain in his knee with walking, the claimant has a normal gait and walks unaided. Therefore, he fails to meet this listing." R. at 15.

Regarding Mr. Rossi's headaches and gastroenteritis, the ALJ noted these conditions are not listing level impairments based on the medical evidence found in the administrative record. The ALJ nevertheless would consider limitations imposed by these impairments when determining Mr. Rossi's residual functional capacity.

The ALJ next considered Listings 12.04[9] and 12.06[10] regarding Mr. Rossi's depression and anxiety. In accordance with 20 C.F.R. §§ 404.1520a, 416.920a, the ALJ followed a special technique to evaluate the severity of Mr. Rossi's depression and anxiety. The four broad functional areas - (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace and (4) episodes of decompensation - are known as the "paragraph B" criteria for most of the mental disorders listed in Appendix 1. The ALJ determined Mr. Rossi has moderate restriction in activities of daily living.

The claimant testified that on a good day he is able to perform light chores around the house such as doing laundry. He is able to drive. He can take care of his personal needs. For fun, the claimant watches television, plays video games on an X-Box or uses his computer (See also Ex. 36F). The claimant does not cook. The undersigned finds the claimant has moderate restriction in this area because when he has "bad days" he is unable to perform most of these activities. It is important to note that the claimant's in[]ability to perform these activities at a given time stems from his physical, and no mental limitations.

R. at 15.

With regard to social functioning, the ALJ found Mr. Rossi has moderate difficulties.

He lives with his mother and brother. The claimant reports that when he worked he related well with co-workers and supervisors; and was considered a valued employee. When he is depressed, he feels worthless and will tend to isolate himself and stay in his room. He goes out with a friend once a week to get out of the house. However, consultative physician Dr. Shakuntala Dhir,

M.D. opined that the claimant's ability to interact with others has been severely affected by his illness.


As for concentration, persistence or pace, the ALJ determined Mr. Rossi has moderate difficulties. "Consultative physician Dr. Dhir opined that the claimant's sustained concentration and memory during his mental status examination was adequate. However, he occasionally will have difficulty with concentration and memory due to side effects from medications." Id. Fourth, the ALJ found Mr. Rossi has not experienced any episodes of decompensation. Because Mr. Rossi's mental impairments do not cause two "marked" limitations or one "marked" limitation and "repeated" episodes of decompensation, the "paragraph B" criteria are not satisfied. The ALJ then proceeded to consider the "paragraph C" criteria. "[T]he evidence fails to establish the presence of "paragraph C" criteria because the record is devoid of evidence of episodes of decompensation, potential episodes of decompensation, or the inability to function outside a highly supportive living arrangement or outside the area of the claimant's home." R. at 16.

Having completed the special technique for evaluating Mr. Rossi's mental impairments, the ALJ proceeded to determine Mr. Rossi's residual functional capacity ("RFC").

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the ability to lift 20 pounds occasionally and 10 pounds frequently. He can sit, stand and walk six hours total each in an eight-hour workday. He can occasionally climb ramps and stairs, but never climb ladders, ropes, and/or scaffolds. He [can] perform work overhead occasionally with his non-dominant left upper extremity, otherwise he can frequently reach in all other directions. He can handle and finger frequently. He is able to understand, remember, and carry out simple instructions and use appropriate judgment to make simple work related decisions. He is able to maintain sufficient attention and concentration to perform simple ...

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