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Hill v. Colvin

United States District Court, D. Maryland, Southern Division

June 8, 2016

JONATHAN JAY HILL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Thomas M. DiGirolamo United States Magistrate Judge.

         Plaintiff 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)[1] (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).[2] 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.

         I Background

         Plaintiff 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 (2000).

         On 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 submitted.

         II Summary of Evidence

         A. Opinion Evidence

         On May 19, 2012, Plaintiff suffered a cerebrovascular accident ("CVA" or "stroke") and was discharged from the hospital on May 21, 2012. R. at 500-28.

         On 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 94-95, 106-07.

         On 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.

         R. at 802. Dr. Fishburne’s rated Plaintiff’s GAF at 85. R. at 802.[3]

         On 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.

         On 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, 134-35.

         On June 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. 909.

         On June 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.

         B. Plaintiff’s Testimony

         The ALJ 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.

         C. VE Testimony

         The VE 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[4] 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.[5] 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.

         III Summary of ALJ’s Decision

         On 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 30.

         In so finding, the ALJ found that Plaintiff had a moderate limitation in concentration, persistence, or ...


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