United States District Court, D. Maryland
MARIE E. PORTER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION GRANTING PLAINTIFF'S
ALTERNATIVE MOTION FOR REMAND
M. DiGirolamo United States Magistrate Judge
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). 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.
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).
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.
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.
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.
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.
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.
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
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.
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.