United States District Court, D. Maryland
Michael David Vance, Plaintiff, represented by Alexi Carlos
Thomas, Law Office of Alexi C Thomas, LLC.
Commissioner of the Social Security Administration,
Defendant, represented by Jennifer Hope Stinnette, Social
LETTER TO COUNSEL
STEPHANIE A. GALLAGHER, Magistrate Judge.
On October 11, 2015, Plaintiff Michael David Vance petitioned
this Court to review the Social Security Administration's
final decision to deny his claim for Disability Insurance
Benefits. (ECF No. 1). I have considered the
Commissioner's motion for summary judgment, Mr.
Vance's reply, and the Commissioner's
court-authorized surreply. (ECF Nos. 16, 17, 25). I find that
no hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). This Court must uphold the decision of the Agency if
it is supported by substantial evidence and if the Agency
employed proper legal standards. See 42 U.S.C. Â§Â§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996). Under that standard, I will deny the
Commissioner's motion, reverse the Commissioner's
judgment, and remand the case to the Commissioner for further
consideration pursuant to sentence four of 42 U.S.C. Â§
405(g). This letter explains my rationale.
Vance filed his claim for benefits on October 4, 2011,
alleging a disability onset date of April 1, 1999. (Tr.
148-54). His claim was denied initially and on
reconsideration. (Tr. 82-85, 87-88). A hearing was held on
June 13, 2013, before an Administrative Law Judge
("ALJ"). (Tr. 39-67). Following the hearing, the
ALJ determined that Mr. Vance was not disabled within the
meaning of the Social Security Act during the relevant time
frame before his date last insured ("DLI"),
December 31, 2004. (Tr. 27-38). The Appeals Council twice
denied Mr. Vance's requests for review. (Tr. 13-14,
17-22). Thus, the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Vance suffered from no severe impairments
during the relevant time period between his alleged onset
date and his DLI. (Tr. 32-34). Accordingly, the ALJ concluded
that Mr. Vance was not disabled. Id.
reply to the Commissioner's motion for summary judgment,
Mr. Vance raises two arguments: (1) that his DLI was
calculated incorrectly; and (2) that the ALJ erred in
assigning weight to the medical evidence. I agree with the
latter point, as discussed below, and remand is therefore
appropriate. In so holding, I express no opinion as to
whether the ALJ's ultimate determination that Mr. Vance
was not entitled to benefits was correct or incorrect.
with the unsuccessful argument, Mr. Vance takes the somewhat
confusing position that the Commissioner failed to explain
the calculation of his DLI. Pl. Reply at 1-3. However, Mr.
Vance neither establishes that the Commissioner's DLI
calculation was incorrect nor that the Commissioner has a
duty to further explain how the DLI was calculated.
Accordingly, there is no basis for remand on that ground.
I agree that the ALJ erred in assigning weight to the medical
evidence in this case. The ALJ rested her opinion on a
finding that "there were no medical signs or laboratory
findings to substantiate the existence of a medically
determinable impairment." (Tr. 32). This is not a case,
however, in which a claimant is trying to allege an
impairment based on undiagnosed symptoms. Mr. Vance's
longtime physician, Dr. Levickas, consistently diagnosed Mr.
Vance with anxiety during the relevant time frame, and
premised the diagnosis not only on patient history but on his
clinical observations. See, e.g., (Tr. 292)
(clinical notes from August 5, 2004 containing diagnosis of
anxiety); (Tr. 294) (clinical notes from March 9, 2004
containing diagnosis of anxiety); (Tr. 295) (clinical notes
from November 28, 2003 containing diagnosis of anxiety); (Tr.
297) (clinical notes from October 10, 2003 discussing anxiety
and how it manifests for Mr. Vance); (Tr. 298) (clinical
notes from August 7, 2003 discussing diagnosis of anxiety as
"pertinent" and stating that Mr. Vance
"intermittently feels like on a boat - not sure if
real' or not"); (Tr. 301) (clinical notes from
September 27, 2002 containing diagnosis of anxiety); (Tr.
307) (clinical notes from January 25, 2002 indicating that
Mr. Vance "had panic attack in waiting room" and
stating that, on examination, Dr. Levickas noted that Mr.
Vance was "anxious and obsessive about his wt.");
(Tr. 309) (clinical notes from August 15, 2000 containing
diagnosis of anxiety and describing clinical observation that
Mr. Vance was "anxious" on exam). Dr. Levickas
prescribed medications throughout that period including Xanax
and Klonopin for anxiety. See, e.g., (Tr. 292).
diagnosis by the medical doctor is further corroborated by
Mr. Vance's sporadic work history, the testimony from Mr.
Vance's wife at the hearing regarding his mental state
during the relevant time frame, (Tr. 46-65), and the letter
from Donna E. Burns, LCPC, who treated Mr. Vance throughout
2004 for severe anxiety and panic disorder, (Tr. 360).
Finally, the consultative examiner indicated in her report a
"reported onset of panic attacks @ age 12." (Tr.
light of the evidence of record, the ALJ did not cite
substantial evidence to support her conclusion that Mr. Vance
had no severe impairments. The ALJ gave "little
weight" to the consultative examiner, finding that Mr.
Vance's impairments at the time of the consultative
examination "did not affect the claimant prior to his
date last insured." (Tr. 33-34). The ALJ provided no
factual support for that conclusory assertion. The ALJ also
assigned "little weight" to Ms. Burns's letter
on the basis that "the author is an LCPC and not an
accepted treating physician." (Tr. 34). Whether a source
is an "acceptable medical source" or not is a
factor that may be considered in assigning weight to that
source's opinion. See Social Security Ruling
("SSR") 06-3P. However, the opinion of a
non-acceptable medical source, such as an LCPC, remains
relevant in determining the severity of an impairment and its
impact on an individual's ability to function.
Id. SSR 06-3P explains that the same factors that
apply to evaluating the opinions of medical sources apply to
evaluating the opinions of other sources. Id. None
of those factors were considered with respect to Ms.
Burns's letter, despite the fact that her statements were
supported by the treatment records from Dr. Levickas.
Finally, the ALJ erred in stating that Dr. Levickas's
diagnosis of anxiety "is never discussed, " and
that "[t]he medical evidence of record does not contain
any record of treatment for mental impairments, " per
the extensive treatment notes cited above. (Tr. 34). Anxiety,
like many other mental impairments, is not subject to
objective testing. Where, as here, a medical doctor has made
a diagnosis and has prescribed medication on the basis of his
clinical observations, an ALJ cannot summarily reject
"the existence of a medically determinable
impairment." On remand, the ALJ should again consider
the existence of anxiety and panic disorder as severe
impairments and should proceed through the appropriate
reasons set forth herein, Defendant's Motion for Summary
Judgment (ECF No. 16) is DENIED. Pursuant to sentence four of
42 U.S.C. Â§ 405(g), the Commissioner's judgment is
REVERSED IN PART due to inadequate analysis. The case is
REMANDED for further proceedings in accordance with this
opinion. The Clerk is directed to CLOSE this case.
the informal nature of this letter, it should be flagged as