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Smith v. Colvin

United States District Court, D. Maryland, Southern Division

September 20, 2016

SANDRA LYNN SMITH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Thomas M. DiGirolamo United States Magistrate Judge.

         Plaintiff Sandra Lynn Smith 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 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 (ECF No. 14) 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 she is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant's Motion for Summary Judgment (ECF No. 17) is GRANTED, Plaintiff's Motion for Summary Judgment (ECF No. 14) is DENIED, and the Commissioner's final decision is AFFIRMED.

         I

         Background

         Plaintiff was born in 1971, has a high-school education, and previously worked as a receptionist, unit secretary, pharmacy technician, and cashier. R. at 110, 752. Plaintiff filed applications for DIB and SSI on September 29, 2003 (with a protective filing date of July 23, 2003), alleging disability beginning on October 1, 2001, due to fibromyalgia, cervical junctional disc disease, and chronic fatigue syndrome. R. at 97-100, 118, 680-81. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 60-62, 69-77, 682-89. ALJ G.B. Arthur held a hearing on April 13, 2006 (R. at 32-58), and issued an unfavorable decision on February 22, 2007 (R. at 13-30). On December 21, 2007, the Appeals Council denied Plaintiff's request for review. R. at 7-10, 690-94. Plaintiff sought judicial review in this Court. Smith v. Astrue, Civil No. JKS 08-446 (D. Md. filed Feb. 20, 2008). Upon the Commissioner's consent, the Court remanded the case on July 27, 2009. The Appeals Council vacated the ALJ's decision and remanded the case on October 8, 2009. R. at 756-65.

         On February 3, 2010, ALJ Arthur held a supplemental hearing at which a vocational expert (“VE”) testified, but Plaintiff did not appear because of health reasons. R. at 877-86. The ALJ held a second supplemental hearing where Plaintiff testified on March 30, 2010. R. at 839-76. On April 26, 2010, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of October 1, 2001, through the date of the decision. R. at 729-55. On October 11, 2010, Plaintiff filed exceptions to the decision with the Appeals Council (R. at 723-26), which declined to assume jurisdiction on July 12, 2012 (R. at 717-20). The ALJ's decision thus became the final decision of the Commissioner after remand. See 20 C.F.R. §§ 404.984(b)(2), 416.1484(b)(2).

         On May 12, 2015, the Appeals Council granted Plaintiff's request for additional time to file a civil action in this Court. R. at 713-15. On June 11, 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

         On June 9, 2003, Harry Kerasidis, M.D., noted that Plaintiff was under his care

for the evaluation and management of a sleep disorder consisting of sleep onset insomnia, sleep maintenance insomnia, possible Restless Legs Syndrome and complaints of daytime hypersomnolence. Her condition has caused periods of sleeplessness lasting days at a time, resulting in severe fatigue and hypersomnolence. On a self-reported questionnaire measuring daytime sleepiness (Epworth Sleepiness Scale) she scores 17, normal <10, which puts her in the moderate range of pathologic daytime sleepiness. She is currently under evaluation for the potential diagnosis of narcolepsy and a polysomnogram and Multiple Sleep Latency Test has been ordered to further evaluate this diagnosis.

R. at 223. “This condition of disordered sleep could potentially cause susceptibility to the effects of sedating medications and may explain her recent involvement in a single car motor vehicle accident.” R. at 223.

         On March 19, 2004, a state agency medical consultant, Philip Moore, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”). R. at 250-58, 745. Dr. Moore 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 251. Plaintiff occasionally could climb ladders, balance, stoop, kneel, crouch, and crawl. R. at 252. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 253-54. Dr. Moore opined that Plaintiff's alleged symptoms were partially credible. R. at 255.

         On January 5, 2005, another state agency consultant, James Johnston, M.D., again assessed Plaintiff's physical RFC. R. at 550-58. Dr. Johnston 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 551. Plaintiff frequently could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but only occasionally ladders, ropes, and scaffolds). R. at 552. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 553-54. Dr. Johnston also opined that Plaintiff's symptoms were partially credible. R. at 555.

         On October 15, 2004, Plaintiff was referred to Zahir Yousaf, M.D., for persistent daytime fatigue. R. at 559. “Her pain medications were increased earlier this year and [she] was started on Duragesic Patch with significant improvement. However, [Plaintiff] noted significant daytime sleepiness and restless sleep with insomnia.” R. at 559.

Because of the excessive daytime fatigue, [Plaintiff] had a polysomnogram in January 2004 followed by an MSLT and those findings were consistent with severe central sleep apnea and severe hypersomnia. Follow-up studies were later repeated after the dose of the Duragesic was reduced to 75 mcg with significant improvement in sleep apnea. However, [Plaintiff] refused to continue with the smaller dose because of recurrence of her persistent pain.

R. at 559.

         On January 30, 2010, Michael Kaiser, Ph.D., a psychologist, completed a “Mental Source Statement of Ability to Do Work-Related Activities (Mental).” R. at 797-98. According to Dr. Kaiser, because Plaintiff “had difficulty following two and three step instructions on the WAIS” (R. at 790-94) and was “too emotionally fragile to make complex work decisions, ” she had moderate limitations in (1) understanding, remembering, and carrying out complex instructions; and in (2) making judgments on complex work-related decisions. R. at 797.

         On February 5, 2010, Gerald Lee, M.D., Ph.D., conducted a consultative musculoskeletal examination of Plaintiff. R. at 780-89. Dr. Lee opined that “[Plaintiff] is able to perform work-related activities such as walking, sitting, hearing, handling objects, speaking, and traveling. She would experience difficulties [with] prolonged walking, prolonged standing, overhead reaching with left, and heavy lifting and carrying.” R. at 781. Specifically, Dr. Lee opined that, because of her left shoulder pain, Plaintiff could reach overhead and in all other directions with her left hand only occasionally. R. at 786.

         B. Hearing Testimony

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