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Read v. Commissioner, Social Security

United States District Court, D. Maryland

May 6, 2016

DAIRHA JANE READ
v.
COMMISSIONER, SOCIAL SECURITY

REPORT AND RECOMMENDATIONS

Stephanie A. Gallagher United States Magistrate Judge

Pursuant to Standing Order 2014-01, the above-referenced case has been referred to me for review of the parties’ dispositive motions and to make recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). The Plaintiff, Dairha Jane Read, who is appearing pro se, did not file a motion for summary judgment and did not respond to the Commissioner’s Motion for Summary Judgment.[1] I have considered the Commissioner’s pending Motion for Summary Judgment. [ECF No. 17]. This Court must uphold the Commissioner’s decision if it is supported by substantial evidence and if proper legal standards were employed. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2014). For the reasons set forth below, I recommend that the Commissioner’s motion be denied, the decision of the Commissioner be reversed in part, and the case be remanded pursuant to sentence four of 42 U.S.C. § 405(g).

Ms. Read protectively filed her applications for benefits on March 5, 2012, alleging a disability onset date of April 29, 2011. (Tr. 193-204). Her applications were denied initially and on reconsideration. (Tr. 127-31, 137-40). A hearing was held in her case on July 29, 2014. (Tr. 29-60). After the hearing, the Administrative Law Judge (“ALJ”) issued an opinion denying benefits. (Tr. 11-28). The Appeals Council (“AC”) denied review, making the ALJ’s decision the final, reviewable decision of the Agency. (Tr. 1-5).

The ALJ found that, during the relevant time frame, Ms. Read suffered from the severe impairments of degenerative disc disease with radiculopathy, migraine headaches, bipolar disorder, posttraumatic stress disorder, and attention deficit hyperactivity disorder. (Tr. 13). Despite these impairments, the ALJ determined that Ms. Read retained the residual functional capacity (“RFC”) to:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that she is able to lift ten pounds occasionally, and less than ten pounds frequently. She is able to sit for six hours, and stand or walk for two hours in an eight-hour day. She is able to occasionally reach overhead bilaterally. She is able to frequently handle, finger, and feel with the hands bilaterally. She can constantly push or pull with her hands bilaterally. She can occasionally climb stairs or ramps, but can never climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, or crouch. She can never crawl. She can never be around unprotected heights, moving mechanical parts, or vibrations. She can understand, remember, and carry out short, simple instructions. She can have occasional contact with supervisors, coworkers, and the public.

(Tr. 16). After considering testimony from a vocational expert (“VE”), the ALJ determined that there were jobs existing in significant numbers in the national economy that Ms. Read could perform, namely the jobs of “cutter and paster, ” “telegraph service rater, ” and “addresser.” (Tr. 22). Therefore, the ALJ concluded that Ms. Read was not disabled. (Tr. 22-23).

I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review of a pro se action challenging an adverse administrative decision, including: (1) examining whether the Commissioner’s decision generally comports with regulations, (2) reviewing the ALJ’s critical findings for compliance with the law, and (3) determining from the evidentiary record whether substantial evidence supports the ALJ’s findings). For the reasons described below, while substantial evidence supports some portions of the ALJ’s decision, the analysis is deficient under the recent Fourth Circuit opinion in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Accordingly, I recommend remand.

At step one, the ALJ found in Ms. Read’s favor that she had not engaged in substantial gainful activity since her alleged onset date. (Tr. 13). At step two, the ALJ found the severe impairments listed above. (Tr. 13-14). The ALJ also assessed a variety of other mental and physical diagnoses, but concluded that those impairments were non-severe. Id.

At step three, the ALJ specifically considered physical listings 1.04 and 11.05, but noted that Ms. Read did not establish that either listing had been met or equaled. (Tr. 14). The ALJ also applied the special technique for evaluation of mental impairments to consider listings 12.04, 12.06, and 12.10. (Tr. 15-16). The ALJ concluded, among other findings, that Ms. Read had moderate difficulties in concentration, persistence, or pace. (Tr. 15).

In considering the appropriate RFC assessment, the ALJ provided a summary of Ms. Read’s written statements and hearing testimony. (Tr. 17). The ALJ also analyzed the medical evidence derived from treatment notes and consultative examinations, including the results of objective testing. (Tr. 17-19). The ALJ summarized the types of treatment Ms. Read has received, and noted symptom improvement with treatment and some non-compliance with prescribed medication. (Tr. 19). The ALJ concluded, following the analysis, that Ms. Read’s treatment records and activities of daily living were inconsistent with her allegations of limitations. (Tr. 19-20). In making that finding, the ALJ also assigned weight to several medical sources, including a treating psychiatrist, examining source, and the State agency physicians. (Tr. 20-21).

Continuing at step four, the ALJ found that Ms. Read was unable to perform her past relevant work as a bartender. (Tr. 21). At step five, the ALJ posed hypotheticals to the VE to determine whether a person with each set of hypothetical criteria would be able to find work. (Tr. 55-58). Ultimately, the ALJ determined that Ms. Read’s RFC matched one of the hypotheticals he had posed. (Tr. 16). The VE cited several jobs, including “cutter and paster of press clippings, ” “telegraph service rater, ” and “addresser, ” in response to that hypothetical, and the ALJ relied on that VE testimony in his opinion. (Tr. 22, 56-57).

The function of this Court is not to review Ms. Read’s claims de novo or to reweigh the evidence of record. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) (citing 42 U.S.C. § 405(g) and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather, this Court is to determine whether, upon review of the whole record, the Commissioner’s decision is supported by substantial evidence and a proper application of the law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also 42 U.S.C. § 405(g). I am unable to recommend that finding here.

While this case was pending, the Fourth Circuit issued its opinion in Mascio, a Social Security appeal in the Eastern District of North Carolina. In Mascio, the Fourth Circuit determined that remand was warranted for several reasons, including a discrepancy between the ALJ’s finding at step three concerning the claimant’s limitation in concentration, persistence, and pace, and his RFC assessment. 780 F.3d at 638.

At step three of the sequential evaluation, the ALJ determines whether a claimant’s impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Listings 12.00 et. seq., pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. Most listings therein consist of: (1) a brief statement describing its subject ...


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