United States District Court, D. Maryland, Southern Division
REPORT AND RECOMMENDATION
M. DiGirolamo United States Magistrate Judge.
Jonathan Jay Hill seeks judicial review under 42 U.S.C.
§§ 405(g) and 1383(c)(3) of a final decision of the
Commissioner of Social Security ("Defendant" or the
"Commissioner") denying his applications for
disability insurance benefits ("DIB") and
Supplemental Security Income ("SSI") under Titles
II and XVI of the Social Security Act. Before the Court are
Plaintiff’s Motion for Summary Judgment and alternative
motion for remand under the fourth sentence of 42 U.S.C.
§ 405(g) (ECF No. 17), Defendant’s Motion for
Summary Judgment (ECF No. 18), and Plaintiff’s
"Reply Memorandum to Defendant’s Motion for
Summary Judgment" (ECF No. 21). Plaintiff contends that the
administrative record does not contain substantial evidence
to support the Commissioner’s decision that he is not
disabled. Under Standing Order 2014-01, this matter has been
referred to the undersigned for pretrial management and for
proposed findings of fact and recommendations under 28 U.S.C.
§ 636(b)(1)(B) and L.R. 301(5)(b)(ix). No hearing is
necessary. L.R. 105(6). For the reasons that follow, it is
RECOMMENDED that Defendant’s Motion for Summary
Judgment (ECF No. 18) be GRANTED, Plaintiff’s Motion
for Summary Judgment and alternative motion for remand under
the fourth sentence of 42 U.S.C. § 405(g) (ECF No. 17)
be DENIED, and Defendant’s final decision be AFFIRMED.
was born in 1966, has a high-school education, and previously
worked as a collision-center manager, service writer in the
automotive industry, insurance adjuster, millwright, and
service and parts manager. R. at 28-29, 262, 267-68.
Plaintiff protectively filed applications for DIB and SSI on
May 29, 2013, alleging disability beginning on May 19, 2012,
due to stroke, a hole in his heart, heart surgery, severe
neurocognitive deficits, sleep apnea, herniated discs in the
lower back, fatigue, depression, brain damage, right-sided
clumsiness and decreased dexterity, and memory and
concentration problems. R. at 200-13, 262, 266. The
Commissioner denied Plaintiff’s applications initially
and again on reconsideration, so Plaintiff requested a
hearing before an Administrative Law Judge ("ALJ").
R. at 84-137, 142-53. On June 30, 2014, ALJ Michael A.
Krasnow held a hearing in Washington, D.C., at which
Plaintiff and a vocational expert ("VE") testified.
R. at 31-83, 175-92. After the hearing, Plaintiff amended his
claim to a closed period of disability from May 19, 2012, to
August 8, 2013. R. at 342, 346-47. On August 19, 2014, the
ALJ issued a decision finding Plaintiff not disabled from the
alleged onset date of disability of May 19, 2012, through
August 8, 2013. R. at 17-30. Plaintiff sought review of this
decision by the Appeals Council, which denied
Plaintiff’s request for review on February 9, 2015. R.
at 1-5. The ALJ’s decision thus became the final
decision of the Commissioner. See 20 C.F.R.
§§ 404.981, 416.1481; see also Sims v.
Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083
April 10, 2015, Plaintiff filed a complaint in this Court
seeking review of the Commissioner’s decision. ECF No.
1. After Defendant filed the administrative transcript (ECF
No. 11) and the parties filed their cross-motions for summary
judgment, the case was referred to the undersigned for a
report and recommendation for the disposition of the
parties’ motions (ECF No. 13). The matter is now fully
Summary of Evidence
19, 2012, Plaintiff suffered a cerebrovascular accident
("CVA" or "stroke") and was discharged
from the hospital on May 21, 2012. R. at 500-28.
August 6, 2013, a state agency medical consultant, J.
Biddison, M.D., assessed Plaintiff’s physical residual
functional capacity ("RFC"). R. at 93-95, 105-07.
Dr. Biddison 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; (3) sit for about six hours in an
eight-hour workday; and (4) perform unlimited pushing and/or
pulling. R. at 93, 105. Plaintiff frequently could balance,
stoop, kneel, crouch, crawl, and climb ramps and stairs (but
never ladders, ropes, or scaffolds). R. at 94, 106. Although
he had no manipulative or visual limitations,
Plaintiff’s speaking was limited, and he was to avoid
all exposure to hazards such as machinery and heights. R. at
September 5, 2013, Francis Fishburne, Ph.D., conducted a
consultative psychological evaluation of Plaintiff. R. at
798-803. Dr. Fishburne found that Plaintiff
earned a WAIS-IV Full Scale IQ score of 96 that falls in the
average range of abilities. His WMS-IV memory scores fell in
the average range. He related well with this examiner and
tolerated the evaluation without difficulty. Should he
qualify for financial benefits, he would not require the
assistance of a responsible adult to manage those benefits.
802. Dr. Fishburne’s rated Plaintiff’s GAF at 85.
R. at 802.
September 16, 2013, another state agency consultant, J.
Patrick Peterson, Ph.D., J.D., using the psychiatric review
technique under 20 C.F.R. §§ 404.1520a and
416.920a, evaluated Plaintiff’s mental impairments
under Listing 12.06 relating to anxiety-related disorders (R.
at 91-92, 103-04). See 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.06. Dr. Peterson opined that, under
paragraph B of Listing 12.06, Plaintiff’s mental
impairment caused him to experience (1) no restriction in
activities of daily living; (2) no difficulties in
maintaining social functioning; (3) mild difficulties in
maintaining concentration, persistence, or pace; and (4) no
episodes of decompensation of extended duration. R. at 91-92,
103-04. Dr. Peterson did not find evidence to establish the
presence of the criteria under paragraph C of Listing 12.06.
R. at 92, 104. Dr. Peterson ultimately found that
Plaintiff’s mental impairment was not severe. R. at 92,
104. On February 27, 2014, another state agency consultant,
Wendy Silver, Psy.D., affirmed Dr. Peterson’s opinion
as written. R. at 119-20, 132-33.
February 24, 2014, another state agency medical consultant,
E. Harris, M.D., again assessed Plaintiff’s physical
RFC. R. at 121-22, 134-35. Dr. Harris opined that Plaintiff
could (1) lift and/or carry 20 pounds occasionally and 10
pounds frequently; (2) stand and/or walk for a total of about
six hours in an eight-hour workday; (3) sit for about six
hours in an eight-hour workday; and (4) perform unlimited
pushing and/or pulling. R. at 121, 134. Plaintiff
occasionally could climb, balance, stoop, kneel, crouch, and
crawl. R. at 121, 134. He had no manipulative, visual,
communicative, or environmental limitations. R. at 121-22,
24, 2014, Steven Diener, M.D., completed a "Functional
Assessment (Physical)" evaluating Plaintiff’s
condition between May 19, 2012, and December 1, 2013. R. at
908-09. According to Dr. Diener, Plaintiff could sit for
three and stand/walk for two hours in an eight-hour workday.
R. at 908. Dr. Diener opined that Plaintiff "was
somewhat incapacitated-unable to function in any meaningful
job or routine[?] during this time." R. at 908.
Plaintiff occasionally could bend/stoop, balance, and reach
above shoulder level. R. at 909. He could not climb, squat,
crouch, push/pull, crawl, or kneel. R. at 909. Plaintiff
could carry a minimal amount of weight, such as five pounds,
but could not lift any weight. R. at 909. According to Dr.
Diener, Plaintiff needed rest periods throughout the day. R.
26, 2014, Milan Joshi, M.D., completed a "Medical
Assessment of Ability to Do Work Related Activities (Mental
Assessment)." R. at 910-13. According to Dr. Joshi,
Plaintiff’s ability to make occupational adjustments
was poor, and he was unable to function at work during the
time Dr. Joshi saw him from January to July 2013. R. at
910-11. Further, because of his decreased concentration,
focus, crying spells, major depression, and organic affective
disorder, Plaintiff’s ability to make performance and
personal-social adjustments was poor. R. at 911-12.
reviewed Plaintiff’s testimony in his decision:
[Plaintiff] alleges disabling limitations due to stroke, hole
in the heart, heart surgery, severe neurocognitive deficits,
sleep apnea, herniated discs in the lower back, fatigue,
depression, brain damage, right-sided clumsiness and
decreased dexterity, and memory and concentration problems
[R. at 265-80]. [Plaintiff] testified that he had a stroke in
May 2012. He had right-sided paralysis. He was able to shower
on his own after two to three weeks; he had difficulty
getting dressed; he wore slip-ons shoes because he could not
tie shoes. Around the house, he tried to help with chores but
was unsuccessful. He forgot half the list when he went to the
grocery store and would burn the food when he tried to cook.
He could not walk very far. For example, he could walk
through a parking lot and grocery store, but then he would
need to sit down. He used the computer and keyboard partly
for physical therapy. He attended religious services once per
month. He watched his kids play lacrosse. While working at
the hardware store, he could stand and walk long enough to
load his truck but then he was able to sit and drive.
[Plaintiff] tried various psychotropic medications, but they
made him more depressed. He developed pseudobulbar affect and
experienced forgetfulness, anger outbursts, and crying fits.
In August 2013, [Plaintiff] started a medication regimen that
began to stabilize his mood [R. at 37-73].
R. at 25.
testified at the hearing that a hypothetical individual with
Plaintiff’s age, education, work experience, and the
RFC outlined in Part III below could not perform
Plaintiff’s past work but could perform the unskilled,
sedentary jobs of security worker, quality-control
worker, or grading and sorting worker. R. at 74-76. The
VE’s testimony was consistent with the Dictionary
of Occupational Titles. R. at 76. A person with the
limitations described in Dr. Diener’s physical
assessment (R. at 908-09) or Dr. Joshi’s mental
assessment (R. at 910-13) could not perform any work that
existed in substantial numbers in the regional and national
economies. R. at 77-79. An individual functioning with a 20%
deficit in productivity would not be employable. R. at 79.
Further, an individual absent from work at least two days per
month also would not employable. R. at 79-80.
Summary of ALJ’s Decision
August 19, 2014, the ALJ found that Plaintiff (1) had not
engaged in substantial gainful activity from the alleged
onset date of disability of May 19, 2012, through August 8,
2013; 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 his past relevant work; but (5) could
perform other work in the national economy, such as a
security worker, quality-control worker, or grading and
sorting worker. R. at 22-30. The ALJ thus found that he was
not disabled from May 19, 2012, through August 8, 2013. R. at
finding, the ALJ found that Plaintiff had a moderate
limitation in concentration, persistence, or ...