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Porter v. Colvin

United States District Court, D. Maryland

September 15, 2016

MARIE E. PORTER, 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 Maria E. Porter 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 her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment and alternative motion for remand (ECF No. 11) and Defendant's Motion for Summary Judgment (ECF No. 12).[1] Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner's decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Plaintiff's alternative motion for remand (ECF No. 11) is GRANTED.

         I

         Background

         Plaintiff was born in 1961, has a ninth-grade education, and previously worked as a driver, housekeeper, and sewing-machine operator. R. at 22, 32-33, 220-21. Plaintiff protectively filed an application for SSI on December 9, 2011, alleging disability beginning on November 14, 2010, due to anxiety and arthritis. R. at 12, 196-201, 216, 220. The Commissioner denied Plaintiff's application initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 54-87, 92-99. On February 19, 2014, ALJ Brian P. Kilbane held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 29-45. On February 28, 2014, the ALJ issued a decision finding Plaintiff not disabled since the application date of “December 12, 2011 [sic].” R. at 9-28. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on April 10, 2015. R. at 1-5, 8, 285-88. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. § 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

         On April 28, 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. Opinion Evidence

         The ALJ reviewed the opinion evidence in his decision:

[O]n February 24, 2012, [Plaintiff] saw consultative examiner Frank R. Hershberger, Ph.D. for psychiatric assessment. She indicated on an activities-of-daily-living report that she was independent in activities of daily living and could sustain concentration to watch television, reading newspaper [sic], visit with friends, and do some household chores. [R. at 384-86.] She was pleasant and cooperative during the assessment. Her mood was anxious and her affect was euthymic. Speech and thought processes were logical and coherent. She related that she began experiencing panic attacks at age 14 and noted that they occurred four to five times a week and could last up to an hour. She said that her mood was always down or depressed, and she experienced fatigue. She stated that she had agoraphobia and found it difficult to leave home. [R. at 387.] She stated that she worked at a local hospital in the housekeeping department and [stopped] working in November 2011 (one year after the alleged onset date) due to pain in her knees and panic attacks while at work. She stated that she was involved in mental health therapy for one month at the Hyndman Health Center about 20 years earlier and that . . . her primary care physician prescribed antidepressants and a sedative. The consultative examiner assessed major depressive disorder (recurrent) and panic disorder with agoraphobia. [R. at 390.]

R. at 18-19; see R. at 383-90.

         On March 5, 2012, a state agency consultant, E. Edmunds, Ph.D., using the psychiatric review technique (“PRT”) under 20 C.F.R. § 416.920a, evaluated Plaintiff's mental impairments under Listings 12.04 and 12.06 relating to affective disorders and anxiety-related disorders (R. at 59-60). See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.06. Dr. Edmunds opined that, under paragraph B of the applicable listings, Plaintiff's mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two repeated episodes of decompensation of extended duration. R. at 59. Dr. Edmunds did not find evidence to establish the presence of the criteria under paragraph C of the applicable listings. R. at 60. Dr. Edmunds thus assessed Plaintiff's mental residual functional capacity (“RFC”) (R. at 62-65) and opined that she was moderately limited in her ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) work in coordination with or proximity to others without being distracted by them; (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; (6) interact appropriately with the general public; (7) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; (8) respond appropriately to changes in the work setting; and to (9) travel in unfamiliar places or to use public transportation. Plaintiff otherwise was not significantly limited. R. at 63-64.

         The ALJ also noted in his decision:

[O]n March 12, 2012, [Plaintiff] presented for physical examination by consultative examiner William Russell, M.D. She stated that she was applying for disability, because she was in a local Social Security office with a friend and was advised by Social Security staff to apply. She stated that she otherwise had no intention of applying for disability. She stated that she last worked in November 2011 doing housekeeping, but that she had to quit, because she could not perform the essential functions of her job. The examiner reviewed x-rays of the left elbow done in September 2011, which showed joint effusion and a possible fracture of the radial neck. [Plaintiff] reported that she was being followed at an urgent care center and was prescribed tramadol for pain, which she said was ineffective. She reported having pain ranging from 3/10 to 10/10 in severity. Her gait was normal on examination and she required no physical assistance for transfers, or to get on or off the examination table. She had diffuse weakness with manual testing of the upper and lower limbs and grip strength was reduced. Seated in supine position, root tension signs were negative and range of motion was mostly normal except for knee flexion, which was limited by obesity. X-rays of the lumbar spine showed lower lumbar degenerative spondylosis. X-rays of the right knee showed moderate degenerative narrowing at the medial tibiofemoral joint and imaging of the left knee showed mild to moderate degenerative osteoarthritis. The examiner diagnosed obesity and polyarthralgias. [R. at 391-401.]

R. at 19.

         On March 22, 2012, another state agency consultant, S.K. Najar, M.D., assessed Plaintiff's physical RFC. R. at 61-62. Dr. Najar 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 61. Plaintiff frequently could balance and occasionally could stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 62. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 62.

         On June 27, 2012, another state agency consultant, G. Dale, Jr., Ed.D., again used the PRT to evaluate Plaintiff's mental impairments under Listings 12.04 and 12.06. R. at 75-76. Dr. Dale opined that, under paragraph B of the applicable listings, Plaintiff's mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two episodes of decompensation of extended duration. R. at 76. Dr. Dale did not find evidence to establish the presence of the criteria under paragraph C of the applicable listings. R. at 76. Dr. Dale thus assessed Plaintiff's mental RFC (R. at 77-80) and opined that she was moderately limited in her ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) work in coordination with or proximity to others without being distracted by them; (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; (6) interact appropriately with the general public; (7) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; (8) respond appropriately to changes in the work setting; and to (9) travel in unfamiliar places or to use public transportation. Plaintiff otherwise was not significantly limited. R. at 78-79. Both Drs. Edmunds and Dale expressed the same opinions about Plaintiff's sustained concentration and persistence limitations:

Anxiety and mood symptoms along with distractions from somatic issues will intermittently disrupt sustained concentration and persistence. [Plaintiff] would be able to complete a normal workday with reasonable breaks. Anxiety concerns will make it difficult at times, but [Plaintiff] would be able to complete a normal workweek without significant exacerbation of psych symptoms.

R. at 64, 78. They further opined that Plaintiff “will have intermittent difficulty with persistence and [attention/concentration], but she would be able to perform simple tasks on a sustained basis, from a mental standpoint.” R. at 65, 79.

         On October 16, 2012, Allison Evans-Wood, D.O., who had seen Plaintiff since December 30, 2009, completed a Physical Residual Functional Capacity Questionnaire. R. at 444-47. Dr. Evans-Wood's diagnoses included degenerative joint disease, degenerative disc disease, depression, anxiety, hyperlipidemia, bilateral knee pain, and elbow pain. R. at 444. Plaintiff's prognosis was good. R. at 444. According to Dr. Evans-Wood, Plaintiff's pain and symptoms were occasionally severe enough to interfere with her attention and concentration needed to perform simple work tasks. R. at 445. Because of her anxiety, Plaintiff was capable of performing only low-stress jobs. R. at 445. Dr. Evans-Wood estimated that Plaintiff could walk one to two city blocks without rest or severe pain. R. at 445. Dr. Evans-Wood opined that Plaintiff could sit for one hour at a time and stand for one hour at a time. R. at 445. Plaintiff could sit and stand/walk for a total of about two hours in an eight-hour workday. R. at 446. She needed to walk for two minutes every hour during an eight-hour workday, and she would require a job permitting shifting at will from sitting, standing, or walking. R. at 446. Plaintiff would need to take unscheduled, one- to two-minute breaks every two hours during an eight-hour workday. R. at 446. She did not need to use a cane or other assistive device while occasionally standing or walking. R. at 446. Plaintiff could lift rarely less than ten pounds and never twenty pounds. R. at 446. Plaintiff could never twist, stoop, crouch, or climb ladders. R. at 447. She could climb stairs rarely. R. at 447. Dr. Evans-Wood opined that Plaintiff likely would be absent from work about three days per month as a result of her impairments. R. at 447. According to Dr. Evans-Wood, Plaintiff had been suffering from her symptoms since December 30, 2009. R. at 447.

         B. ...


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