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Oswald v. Colvin

United States District Court, D. Maryland, Southern Division

August 1, 2016

MICHAEL OSWALD, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR REMAND

          Thomas M. DiGirolamo United States Magistrate Judge

         Plaintiff Michael Oswald 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 (ECF No. 16) and Defendant’s Motion for Summary Judgment (ECF No. 17).[1] Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner’s decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 16) is GRANTED.

         I

         Background

         Plaintiff was born in 1972, has a tenth-grade education, and previously worked as a construction worker. R. at 24. Plaintiff filed an application for DIB protectively on November 30, 2011, and for SSI on December 20, 2011, alleging disability beginning on October 15, 2011, due to brain injury from head trauma, seizures, neck and back fractures, depression, and panic attacks. R. at 12, 241-55, 276, 279. The Commissioner denied Plaintiff’s applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 69-157, 160-63. On September 15, 2014, ALJ William T. Vest, Jr., held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 40-68. On October 10, 2014, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of October 15, 2011, through the date of the decision. R. at 9-31. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s request for review on January 9, 2015. R. at 1-8, 339-40. 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 March 16, 2015, Plaintiff filed a complaint in this Court seeking review of the Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

         II

         Summary of Evidence

         A. State Agency Medical Consultants

         On June 5, 2012, a state agency medical consultant, W. Hakkarinen, M.D., assessed Plaintiff’s physical residual functional capacity (“RFC”). R. at 79-81, 97-99. Dr. Hakkarinen 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 79, 97. Because of Plaintiff’s neck pain and seizure disorder, he occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 80, 98. Plaintiff had no manipulative, visual, or communicative limitations, but he was to avoid even moderate exposure to hazards, such as machinery and heights, because of his seizure disorder. R. at 80-81, 98-99.

         On June 6, 2012, another state agency consultant, Pauline Hightower, Psy.D., using the psychiatric review technique (“PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff’s mental impairments under Listings 12.04, 12.06, and 12.09 relating to affective disorders, anxiety-related disorders, and substance addiction disorders (R. at 76-78, 94-96). See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.06, 12.09. Dr. Hightower opined that, under paragraph B of the applicable listings, Plaintiff’s mental impairments caused him to experience (1) mild restriction in activities of daily living; (2) mild difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 76, 77, 94, 95. Dr. Hightower did not find evidence to establish the presence of the criteria under paragraph C of the applicable listings. R. at 76, 77, 94, 95. Dr. Hightower thus assessed Plaintiff’s mental residual functional capacity (“RFC”) (R. at 81-85, 99-103) and opined that he was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) sustain an ordinary routine without special supervision; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (5) respond appropriately to changes in the work setting; and to (6) set realistic goals or make plans independently of others. R. at 81-82, 83-84, 99-100, 101-02. Plaintiff otherwise was not significantly limited. R. at 81-84, 99-102. Dr. Hightower opined: “[Plaintiff] can understand, retain, and carry out simple/repetitive instructions. [Plaintiff] can perform routine tasks on a sustained basis, with special supervision, and can cooperate [with] co-workers in completing simple tasks and transactions. [Plaintiff] can adjust to modest mental demands of the work place.” R. at 83, 84, 101, 102.

         On December 3, 2012, another state agency consultant, Karen Sarpolis, M.D., again assessed Plaintiff’s physical RFC. R. at 118-22, 139-43. Dr. Sarpolis 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 118-19, 120-21, 139-40, 141-42. Because of Plaintiff’s neck pain and seizure disorder, he occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 119, 121, 140, 142. Plaintiff had no manipulative, visual, or communicative limitations, but he was to avoid even moderate exposure to hazards, such as machinery and heights, because of his seizure disorder. R. at 119-20, 121-22, 140-41, 142-43.

         On December 10, 2012, another state agency consultant, Elliott Rotman, Ph.D., again used the PRT to evaluate Plaintiff’s mental impairments under Listings 12.04, 12.06, and 12.09. R. at 114-17, 135-38. Dr. Rotman opined that, under paragraph B of the applicable listings, Plaintiff’s mental impairments caused him to experience (1) mild restriction in activities of daily living; (2) mild difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 115, 116, 136, 137. Dr. Rotman did not find evidence to establish the presence of the criteria under paragraph C of the applicable listings. R. at 115, 116, 136, 137. Dr. Rotman thus assessed Plaintiff’s mental RFC (R. at 122-26, 143-47) and opined that he was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) sustain an ordinary routine without special supervision; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (5) respond appropriately to changes in the work setting; and to (6) set realistic goals or make plans independently of others. R. at 122-23, 143-44. Plaintiff otherwise was not significantly limited. R. at 122-26, 143-47. Dr. Rotman opined: “[Plaintiff] can understand, retain, and carry out simple/repetitive instructions. [Plaintiff] can perform routine tasks on a sustained basis, with special supervision, and can cooperate [with] co-workers in completing simple tasks and transactions. [Plaintiff] can adjust to modest mental demands of the work place.” R. at 124, 145.

         Dr. Rotman then assessed Plaintiff’s mental RFC in the presence of his alcohol abuse (R. at 124-26, 145-47) and opined: “[Concentration, persistence, or pace] is determined by [Plaintiff’s] abuse of alcohol. His periods of decompensation and recent episodes of hospitalization have all been precipitated by his drinking. If abstaining from [alcohol] he is able to sustain [concentration, persistence, or pace] for simple tasks.” R. at 125, 146. Dr. Rotman found that,

[o]n [reconsideration], the [medical evidence of record] presents [Plaintiff] as decompensating and in a few instances, needing hospitalization precipitated by his drinking. [Drug abuse/alcoholism] presents as material as when [Plaintiff] is sober his depression is better and he can understand, retain, and carry out simple instructions, relate in a reasonably appropriate manner, and sustain [concentration, persistence, or pace] for non-complicated tasks. [Plaintiff] can adjust to modest mental demands in the work place.

R. at 125-26, 146-47.

         B. Hearing Testimony

         1. Plaintiff’s Testimony

         The ALJ reviewed Plaintiff’s testimony in his decision:

At the hearing, [Plaintiff] testified that he is currently not working, and he last worked in 2011. He testified that he fell off a roof while on the job on October 15, 2011, and he sustained head trauma. [Plaintiff] testified that he has looked for work since then, but contractors will not hire him, because his doctors will not release him to work. He testified that he has seizures, fractures of the neck and back, depression, anxiety, personality disorder, and substance abuse issues. [Plaintiff] testified that he has had difficulty with the legal system. He testified that he last consumed alcohol (ETOH) in February 2014. [Plaintiff] testified that he lost his driver’s license, because of a DWI in 2005, and so he uses public transportation. He testified that he has ...

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