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Rapczynski v. Colvin

United States District Court, D. Maryland

August 31, 2016

JEANINE RAPCZYNSKI Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

          MEMORANDUM OPINION

          WILLIAM CONNELLY MAGISTRATE JUDGE

         Plaintiff Jeanine Rapczynski (“Ms. Rapczynski” 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 her 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. 3, 7.[1] Pending and ready for resolution are Plaintiff's Motion for Summary Judgment (ECF No. 16) and Defendant's Motion for Summary Judgment (ECF No. 17). No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Plaintiff's Motion for Summary Judgment will be denied, but her alternative request for a remand will be granted. Defendant's Motion for Summary Judgment will be denied.

         1. Background.

         On February 18, 2010[2] Ms. Rapczynski protectively filed applications for DIB[3] and SSI alleging a disability onset date of January 1, 2008[4] due to bipolar disorder, Attention Deficit Hyperactivity Disorder (“ADHD”), anxiety and borderline personality traits. See R. at 312. Ms. Rapczynski's applications were denied initially on August 17, 2010. R. at 132-35. On an unknown date Ms. Rapczynski requested reconsideration. R. at 136. On December 1, 2010 the claims were denied again. R. at 139-40, 141-42. The Social Security Administration received Ms. Rapczynski's request for hearing by an Administrative Law Judge (“ALJ”) on December 29, 2010. R. at 143.

         On March 7, 2012 ALJ Emerson convened a hearing. R. at 26-53. Ms. Rapczynski was represented by counsel. “The claimant amended her onset date at her hearing from January 1, 2008 to February 1, 2009.” R. at 113; see R. at 266 (March 7, 2012 Request for Alleged Amended Onset Date). During the hearing the ALJ obtained testimony from Ms. Rapczynski and a Vocational Expert (“VE”). In the March 14, 2012 decision the ALJ found Ms. Rapczynski has not been under a disability, as defined in the Social Security Act, from February 1, 2009 through the date of the decision. R. at 119. On April 2, 2012 Ms. Rapczynski requested a review of the ALJ's decision. R. at 188-89. On March 21, 2013 the Appeals Council remanded the case to the ALJ. R. at 127. The Order of Appeals Council, remanding the case to the ALJ, states, The Administrative Law Judge issued a decision on March 14, 2012. The claimant has asked the Appeals Council to review this decision.

         The Appeals Council grants the request for review under the error of law and substantial evidence provisions of the Social Security Administration regulations (20 CFR 404.970 and 416.1470). Under the authority of 20 CFR 404.977 and 416.1477, the Appeals Council vacates the hearing decision and remands this case to an Administrative Law Judge for resolution of the following issues:

• The hearing decision does not contain an evaluation of the treating source opinion of Stephanie Tucker, M.D., in Exhibit 30F. In her report, Dr. Tucker opined the claimant has severe anxiety, paranoia and irritability, which impede her ability to participate in ongoing work and social interactions. Dr. Tucker indicated the claimant experiences a substantial loss in her ability to respond appropriately to supervision, co-workers, and usual work situations, and in dealing with changes in a routine work setting. Further, Dr. Tucker opined that the claimant exhibits marked restrictions in social functioning and concentration, persistence and pace (Exhibit 30F).
• The decision does not contain an evaluation of the third party source opinions provided by Ms. M. Noel Kowalczyk, LSWA, and Ms. Milka Muse, BSW; Exhibits 21E and 22E, respectively. Both Ms. Kowalczyk and Ms. Muse state the claimant is socially isolated, has difficulty interacting with others and controlling her moods and exhibits paranoia.
• Section F of the claim file includes a May 16, 2011 assessment from Katie Kalbaugh, LCSW-C, which was submitted shortly before the hearing decision and not included on the Exhibit List or addressed in the decision. Ms. Kalbaugh opined the claimant has marked difficulties in social functioning and in concentration, persistence or pace due to bipolar and anxiety disorders.

         Upon remand, the Administrative Law Judge will:

• Obtain additional evidence concerning the claimant's mental impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513 and 416.912-913).
• Give consideration to the treating and other source opinions pursuant to the provisions of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p, 96-5p and 06-3p and explain the weight given to such opinion evidence[.]
• If warranted, obtain evidence from a medical expert to clarify the nature and severity of the claimant's mental impairments (20 CFR 404.1527(f) and 416.927(f)) and Social Security Ruling 96-6p).
• Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 and 416.945 and Social Security Rulings 85-16 and 96-8p).
• If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert w[he]ther the claimant remains capable of performing h[er] past relevant work and, if necessary, will ask the vocational expert to identify examples of other appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert evidence, the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-04p).
In compliance with the above, the Administrative Law Judge will offer the claimant an opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision.

R. at 128-30.

         A supplemental hearing was convened on January 30, 2014. R. at 54-106. Ms. Rapczynski was represented by counsel. ALJ Emerson obtained testimony from Ms. Rapczynski, Ms. Rapczynski's case manager (a licensed graduate professional counselor) and a VE. In the February 27, 2014 decision the ALJ found Ms. Rapczynski has not been under a disability, as defined in the Social Security Act, from January 1, 2008[5] through the date of the decision. R. at 25. On April 24, 2014 Ms. Rapczynski requested a review of the hearing decision. R. at 4-7. On July 27, 2015 the Appeals Council denied Ms. Rapczynski's request for review, R. at 1-3, thus making the ALJ's determination the Commissioner's final decision.

         2. ALJ's Decision.

         The ALJ evaluated Ms. Rapczynski's claims for DIB and SSI using the sequential evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. Ms. Rapczynski bears the burden of demonstrating her disability as to the first four steps. At step five the burden shifts to the Commissioner. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015).

         At step one the ALJ found Ms. Rapczynski has not engaged in substantial gainful activity since February 1, 2009, the amended alleged onset date. R. at 115. The ALJ concluded at step two that Ms. Rapczynski has the following severe impairments: substance abuse dependence, bipolar disorder, anxiety disorder, personality disorder, and learning disorder. Id. The ALJ found Ms. Rapczynski's alleged mental retardation unsupportable, explaining:

[T]he undersigned finds no evidence to support such a medically determinable impairment during the development period. The undersigned does not accept the findings of Dr. Ansel in Exhibit 31F which state that the claimant has a full scale IQ of 59 (Ex. 31F/2). The medical evidence, the claimant's education, and the claimant's past work history do not support this finding. An IQ of 59 is almost 30 points lower than other IQ scores found throughout the record. In September 1998, at the age of 16, the claimant had an IQ score of 87 and in 1988, at age 6, the claimant had an IQ score of 88 (Ex. 13E/1, 5; 19E/2). These scores show the claimant did not suffer from mental retardation during the developmental period. Additionally, the claimant worked as a semi-skilled [waitress] for nine months, as a manager trainee for three months, and as a bus aide. Performance of these jobs is inconsistent with an IQ of 59. The claimant's earning record also supports higher functioning. She earned $13, 943 in 2005 and $13, 827 in 2006 when she was in her early 20s. The claimant graduated from high school with a solid “[C]” average (2.037 grade point average, class rank 298 out of 395), which also precludes such a finding (Ex. 16E/5).

R. at 116.

         At step three the ALJ found Ms. Rapczynski does not have an impairment or combination of impairments which meets or medically equals a listed impairment. The ALJ specifically considered Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), 12.06 (Anxiety Related Disorders), 12.08 (Personality Disorders), and 12.09 (Substance Addiction Disorders).

         In accordance with 20 C.F.R. §§ 404.1520a, 416.920a, the ALJ followed a special technique to evaluate the severity of Ms. Rapczynski's mental impairments. 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 Ms. Rapczynski has a mild restriction in her activities of daily living. “The claimant lives with her two-year-old child. The child is autistic but the claimant appears able to care for the child's extensive needs. The claimant takes care of her personal needs. She does some chores and shopping.” R. at 116. With regard to social functioning, the ALJ found Ms. Rapczynski has moderate difficulties. “The claimant has some issues with anger and paranoia around others but she visits with people occasionally[6] (Exhibit 5F).” Id.

         As for concentration, persistence, or pace, the ALJ determined Ms. Rapczynski has moderate difficulties. The ALJ noted Ms. Rapczynski has some difficulty focusing and remaining on task. Id. Fourth, the ALJ found Ms. Rapczynski has not experienced any episodes of decompensation. Id. Because Ms. Rapczynski's mental impairments do not cause at least two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation, each of extended duration, the “paragraph B” criteria are not satisfied. R. at 117. The ALJ then considered and found a lack of evidence establishing the presence of the “paragraph C” criteria. Id.

         Next, the ALJ proceeded to determine Ms. Rapczynski's residual functional capacity (“RFC”). The ALJ found Ms. Rapczynski has the RFC to perform a full range of work at all exertional levels however she is restricted by the following nonexertional limitations: “simple, routine, repetitive tasks in a low stress work environment (i.e. no strict production quotas) and can occasionally and superficially interact with the public, coworkers, supervisor.” Id. At step four the ALJ found Ms. Rapczynski is capable of performing her past relevant work as a housekeeper/cleaner and a stocker. R. at 119. He therefore determined Ms. Rapczynski has not been under a disability from February 1, 2009 through the date of the decision. Id.

         After the supplemental hearing on January 30, 2014, the ALJ re-evaluated Ms. Rapczynski's claims for DIB and SSI using the sequential evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. At step one the ALJ found Ms. Rapczynski has not engaged in substantial gainful activity since January 1, 2008, the alleged onset date.[7] R. at 13. At step two the ALJ determined Ms. Rapczynski has the following severe impairments: substance dependence, bipolar disorder, psychotic disorder, anxiety disorder, personality disorder, and learning disorder. R. at 14. At step three the ALJ found Ms. Rapczynski does not have an impairment or combination of impairments which meets or medically equals a listed impairment. The ALJ specifically considered Listings 12.03 (Schizophrenic, Paranoid and Other Psychotic Disorders), 12.04 (Affective Disorders), 12.05 (Mental Retardation), 12.06 (Anxiety Related Disorders), 12.08 (Personality Disorders), and 12.09 (Substance Addiction Disorders). Id.

         In accordance with 20 C.F.R. §§ 404.1520a, 416.920a, the ALJ followed a special technique to evaluate the severity of Ms. Rapczynski's mental impairments. 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 (“paragraph D” criteria for Listing 12.05). The ALJ determined Ms. Rapczynski has a mild restriction in her activities of daily living. “She engages in independent personal care, prepares meals, does laundry, cares for a cat, and drives a couple of times a week. The claimant also cares for her disabled, autistic daughter, which includes dressing her, brushing her teeth, and seeing her off to school. There is no evidence of the claimant's inability to perform functional transfers (i.e., getting from bed to chair or on and off the toilet).” R. at 14 (footnote omitted).

         With regard to social functioning, the ALJ found Ms. Rapczynski has moderate difficulties. The ALJ noted Ms. Rapczynski visits her daughter's father, sees a therapist weekly and sees a psychiatrist monthly. “The State agency psychological consultants found moderate limitation in the claimant's ability to interact appropriately with the general public and accept instructions and respond appropriately to criticism from supervisors. However, the State found no significant limitation in the claimant's ability to ask simple questions or request assistance, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, or maintaining socially appropriate behavior and adhere to basic standards of neatness and cleanliness.” R. at 14-15 (footnote omitted). As for concentration, persistence, or pace, the ALJ determined Ms. Rapczynski has moderate difficulties. “The claimant experiences some difficulty with memory and concentration. However, she is able to understand and follow simple instructions independently.” R. at 15 (footnotes omitted). Finally, the ALJ found Ms. Rapczynski has not experienced any episodes of decompensation of extended duration. Because Ms. Rapczynski's mental impairments do not cause at least two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation, each of extended duration, the “paragraph B” criteria (“paragraph D” criteria for Listing 12.05) are not satisfied. Id.

         The ALJ then considered the “paragraph C” criteria. The ALJ found no evidence to establish the presence of “paragraph C” criteria “because the record is devoid of ‘repeated' episodes of decompensation, potential episodes of decompensation, or the claimant's inability to function outside her home or a highly supportive living arrangement.” Id.

         Listing 12.05 has other requirements the ALJ considered. “Paragraph A” of this listing is satisfied if the claimant's mental incapacity is evidenced by dependence upon others for personal needs, such as toileting, eating, dressing or bathing and an inability to follow directions which precludes the use of standardized measures of intellectual functioning. “In this case, these requirements are not met because the claimant engages in independent personal care. In addition, she cares for her disabled, autistic daughter.” R. at 16. The ALJ determined the “paragraph B” criteria are not satisfied because the claimant does not have valid verbal, performance, or full scale IQ of 59 or less. The ALJ acknowledged the claimant attaining a FSIQ of 59 on a psychological consultative examination conducted on February 27, 2012. See R. at 1569-71 (Ex. 31F). “However, a FSIQ of 59 is almost 30 points lower than other[] scores in the record. The claimant's work as semi-skilled waitress for 9 months, as a manager trainee for 3 months, and a bus aide are not consistent with the adaptive functioning associated with an intellectual disability.” R. at 16. Finally, the ALJ determined the “paragraph C” criteria of Listing 12.05 are not satisfied “because the claimant does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.” Id.

         Next, the ALJ proceeded to determine Ms. Rapczynski's RFC. The ALJ found Ms. Rapczynski has the RFC to perform a full range of work at all exertional levels however she is restricted by the following nonexertional limitations: “she can only perform simple, routine and repetitive tasks in a low stress work environment. ‘Low stress' means no strict production quotas. She can only occasionally and superficially interact with the public, coworkers and supervisors.” R. at 16.

         At step four the ALJ found Ms. Rapczynski is capable of performing her past relevant work as a Housekeeper (light exertion, unskilled) and as a Stocker (medium exertion, unskilled). “This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity.” R. at 23. Despite the ALJ's finding at step four, the ALJ made an alternative finding at step five. The ALJ considered Ms. Rapczynski's age (25 years old on the alleged disability onset date, defined as a younger individual age 18-49), education (high school graduate and able to communicate in English), work experience (transferability of job skills not material) and her RFC. Even though Ms. Rapczynski's ability to perform work at all exertional levels has been compromised by nonexertional limitations, thereby “erod[ing] the occupational base of unskilled work at all exertional levels, ” R. at 24, relying on the testimony of the VE, the ALJ found the Social Security Administration met its burden of proving Ms. Rapczynski is capable of performing various other jobs[8] that exist in significant numbers in the national economy. The ALJ therefore found Ms. Rapczynski has not been under a disability from January 1, 2008 through the date of this decision. R. at 25.

         3. Standard of Review.

         The role of this court on review is to determine whether substantial evidence supports the Commissioner's decision and whether the Commissioner applied the correct legal standards. 42 U.S.C. § 405(g); Mascio, 780 F.3d at 634; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla, but less than a preponderance, of the evidence presented, Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (citations omitted), and it must be sufficient to justify a refusal to direct a verdict if the case were before a jury. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). This court cannot try the case de novo or resolve evidentiary conflicts, but rather must affirm a decision supported by substantial evidence. Id.

         4. Discussion.

         Plaintiff raises several issues claiming prejudicial error by the ALJ warranting a remand. The undersigned ...


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