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Carr v. Colvin

United States District Court, D. Maryland, Southern Division

September 7, 2016

TRAVIS X. CARR, 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 Travis X. Carr seeks judicial review under 42 U.S.C. § 405(g) of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. Before the Court are Plaintiff's Amended Motion for Summary Judgment and alternative motion for remand (ECF No. 19), Defendant's Motion for Summary Judgment (ECF No. 22), and Plaintiff's “Reply Memorandum in Opposition to Defendant's Motion for Summary Judgment” (ECF No. 23).[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. 19) is GRANTED.

         I

         Background

         Plaintiff was born in 1957, has a high-school education, and previously worked as a limousine driver, paralegal, real estate leasing agent, collector, and collections manager. R. at 163, 3950. Plaintiff filed applications for DIB and for Supplemental Security Income (“SSI”) on June 30, 2010, alleging disability beginning on September 15, 2008, due to stroke, hypertension, and depression. R. at 9, 162. State agency consultants granted Plaintiff's SSI application as of June 30, 2010. R. at 9, 70, 3936. The Commissioner denied, however, Plaintiff's application for DIB initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 61-82.

         ALJ María Alexander Nuñez held a hearing on January 18, 2013 (R. at 18-60), and issued an unfavorable decision on March 18, 2013 (R. at 6-17). On May 22, 2013, the Appeals Council denied Plaintiff's request for review. R. at 1-5. Plaintiff sought judicial review in this Court. Carr v. Colvin, Civil No. SAG 13-1637 (D. Md. filed June 6, 2013). Upon the Commissioner's consent, the Court remanded the case on January 15, 2014. R. at 4102-03. The Appeals Council vacated the ALJ's decision and remanded the case on February 24, 2014. R. at 4104-08. On July 15, 2014, ALJ Theodore P. Kennedy held a hearing at which Plaintiff, a medical expert, and a vocational expert (“VE”) testified. R. at 3960-4007. On August 1, 2014, ALJ Kennedy issued a decision finding Plaintiff not disabled from the alleged onset date of disability of September 15, 2008, through the date last insured of March 31, 2009. R. at 3933-59. On August 26, 2014, Plaintiff filed exceptions to the decision with the Appeals Council (R. at 3928-32), which declined to assume jurisdiction on February 18, 2015 (R. at 3915-18). The ALJ's decision thus became the final decision of the Commissioner after remand. See 20 C.F.R. § 404.984(b)(2).

         On March 12, 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 July 19, 2011, a state agency medical consultant, Nisha Singh, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”). R. at 3609-16. Dr. Singh opined that Plaintiff could (1) lift and/or carry ten pounds occasionally and ten pounds frequently; (2) stand and/or walk for four hours in an eight-hour workday (with a medically required hand-held assistive device necessary for ambulation); (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 3610. Because of Plaintiff's lower back pain, he occasionally could climb, balance, stoop, kneel, crouch, and crawl. R. at 3611. Plaintiff had no manipulative, visual, or communicative limitations, but he was to avoid even moderate exposure to hazards, such as machinery and heights. R. at 3612-13. Dr. Singh opined that “RFC for the duration of [alleged onset date of disability] through [date last insured] ¶ 3/31/09 would be medium with [lift/carry] 50/25 and stand and or walk for 6 hrs and sit for 6 hrs due to [history of] HPN which was uncontrolled.” R. at 3616.

         On July 20, 2011, another state agency consultant, Elliott Rotman, Ph.D., using the psychiatric review technique (“PRT”) under 20 C.F.R. § 404.1520a, evaluated Plaintiff's mental impairments under Listings 12.04 and 12.06 relating to affective disorders and anxiety-related disorders (R. at 3617-30). See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.06. 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) mild difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 3627. Dr. Rotman opined that Plaintiff's “mental condition presents as non-severe currently and prior to 3/31/09.” R. at 3631.

         On September 27, 2011, another state agency consultant, S. Flaherty, Ph.D., again used the PRT to evaluate Plaintiff's mental impairments under Listings 12.04 and 12.06. R. at 3673-86. Dr. Flaherty opined that, under paragraph B of the applicable listings, Plaintiff's mental impairments caused him to experience (1) moderate restriction in activities of daily living; (2) moderate 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 3683. Dr. Flaherty then assessed Plaintiff's mental RFC (R. at 3669-72) and opined that he was moderately limited in his ability to (1) understand and remember detailed instructions; (2) carry out very short and simple instructions; (3) maintain attention and concentration for extended periods; (4) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (5) 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; and to (6) accept instructions and respond appropriately to criticism from supervisors. R. at 3669-70. Plaintiff was markedly limited in his ability to (1) carry out detailed instructions and to (2) interact appropriately with the general public. R. at 3669-70. Plaintiff otherwise was not significantly limited. R. at 3669-70. Dr. Flaherty opined: “[Plaintiff] attends the VA hospital outpatient clinic for mental health. His most recent notes show an essentially intact mental status. He has a moderate mental health impairment. [Plaintiff], from a psych standpoint only, retains the ability to handle simple routine tasks in a low stress setting.” R. at 3671.

         On October 24, 2011, another state agency consultant again assessed Plaintiff's physical RFC. R. at 3691-98. The consultant opined that Plaintiff could (1) lift and/or carry ten pounds occasionally and less than ten pounds frequently; (2) stand and/or walk for at least two 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 3692. Plaintiff could never climb, balance, stoop, kneel, crouch, or crawl. R. at 3693. He could perform unlimited reaching, handling, fingering, and feeling. R. at 3694. Plaintiff had no visual or communicative limitations, but he was to avoid concentrated exposure to extreme cold and heat; wetness; humidity; noise; vibration; and fumes, odors, dust, gases, and poor ventilation. R. at 3694-95. Plaintiff was to avoid all exposure to hazards, such as machinery and heights. R. at 3695.

         B. Hearing Testimony

         1. Plaintiff's Testimony

         The ALJ reviewed Plaintiff's testimony in his decision:

In his testimony and statements prepared for the record, [Plaintiff] asserts that he was disabled and unable to return to work activity, prior to the March 31, 2009 date last insured for Title II disability benefits, as a result of his physical irregularities, mental impairment symptoms, and the resulting functional limitations. [Plaintiff] and his partner allege that these impairments severely limit [Plaintiff's] ability to lift, squat, bend, stand, reach, walk, kneel, talk, climb stairs, see, remember, complete tasks, concentrate, and use his hands [R. at 168-78, 200-18, 227-29]. He filed for unemployment and briefly received benefits in 2009; however, [Plaintiff] contends that he has not engaged in work activity since the alleged onset date of disability. As a result of his ongoing pain, limited mobility, side effects from medication, mental impairment symptoms, and the resulting restrictions in his day to day functioning, [Plaintiff] contends that he could not return to work activity prior to March 31, 2009, on a regular and continuing basis, at any exertional level.
[Plaintiff] described how [he] was an active duty member of the army from 1977-1983. He was not in combat and he was never outside of the United States on active duty. However, he was awarded a 100% disability rating from the Veteran's Administration as a result of his ongoing anxiety, back injury, and knee injury. The back injury affected his back and neck, limiting his ability to use his upper extremities. [Plaintiff] described how he had multiple surgical procedures during the period at issue, including his gallbladder removed and his appendix taken out. From 2008-2009, [Plaintiff] claims that he suffered from pain that was between 7-10 on a severity scale of 1 to 10. His knee would flare up and cause difficulty with walking.
In addition to his physical impairments, he continued to suffer from symptoms of depression and anxiety that were not fully alleviated with prescribed medications. [Plaintiff] recounted a history of . . . panic attacks relating to sexual abuse that he suffered as a child. The symptoms were exacerbated by a traumatic incident in 1979, where a parachute deflated during a training jump and [Plaintiff] hit the ground. He did not suffer acute physical injury, but was no longer able to continue with his Army responsibilities. [Plaintiff] described how he always had difficulty arriving at work, dealing with work stressors, and interacting with his co-workers. [Plaintiff] contends that he was never on time as a result of his panic and anxiety. He continued to suffer from panic attacks while employed, with shortness of breath, heart palpitations, and a frozen sensation that prevented him from moving. He would take deep breaths and drink water, but he never effectively knew how to address the symptoms. In October of 2008, he was brought to the emergency room because he was unable to breathe. The physical and mental symptoms would exacerbate his overall functional restrictions in conjunction. The prescribed medications caused dizziness, nausea, fatigue, dry mouth, memory irregularities, visual disturbances, and problems with focusing. [Plaintiff] testified that he has never been diagnosed with a seizure disorder, lost a job due to alcohol or drugs, or attended detox treatment. He was briefly incarcerated for driving under the influence when he was 19.
As a result of his impairments, [Plaintiff] contends that his functional capabilities are severely limited. During the period at issue, [Plaintiff] alleges that he could sit for one hour before needing to stand, stand for no more than 8-15 minutes at one time, walk 15-25 feet, and carry approximately six pounds of groceries. [Plaintiff] testified that he uses a prescribed cane and a walker to assist with ambulation approximately 98% of the time. He began using the cane in 2008, as his knee would flare up and he would have difficulty with walking. [Plaintiff] further described how he could use one utensil to eat, because the back injury was affecting his back and neck. [Plaintiff] described how he completed the 11th grade of high school, but he subsequently obtained his GED and attended two years of college. He retains the capacity to read, write, add, and subtract, but the stroke affected his upper extremity dexterity. [Plaintiff] contends that he worked as a paralegal on a part time basis and helped others prepare small claims cases. He enrolled in paralegal school, but he was not able to continue as a result of his depressed state.
In the statements prepared for the record by [Plaintiff] and his partner in 2010 and 2011, they described how [Plaintiff] retains the capacity to take care of most personal needs independently, prepare small meals, wash small amounts of laundry at one time, ride in a car, drive on a limited basis with handicapped decals, shop for groceries and personal items, handle his finances, talk on the phone, and maintain regular doctor's appointments [R. at 168-78, 200-18, 220-36]. However, at the 2014 hearing, [Plaintiff] testified that he was living with another individual who provided assistance with dressing from 2008-2009. He used a device to help put his socks on, and he required assistance with bathing and showering 75% of the time. [Plaintiff] testified that he could cook, wash dishes, and use a dust pan with a pole on it to assist with sleeping [sic]. However, [Plaintiff] claims that he could not wash his clothes or ...

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