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Proctor v. Colvin

United States District Court, D. Maryland, Southern Division

November 18, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Thomas M. DiGirolamo, United States Magistrate Judge

         Plaintiff Patricia Proctor 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 and alternative motion for remand (ECF No. 15) and Defendant's Motion for Summary Judgment (ECF No. 16).[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. 15) is GRANTED.



         Plaintiff was born in 1964, has a high-school education, and previously worked as an administrative assistant, accounts payable clerk, and customer service representative. R. at 26, 258, 262-63. Plaintiff protectively filed an application for DIB on July 6, 2014, and for SSI on July 17, 2014, alleging disability beginning on June 8, 2014, due to severe depression, bipolar disorder, and schizophrenia. R. at 19, 220-30, 261. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 106-61, 166-73. On July 7, 2015, ALJ Jennifer M. Long held a hearing in Washington, D.C., at which Plaintiff, her caseworker, and a vocational expert (“VE”) testified. R. at 33-76. On September 8, 2015, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of June 8, 2014, through the date of the decision. R. at 16-32. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on November 24, 2015. R. at 1-6, 14-15. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

         On January 26, 2016, 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.


         Summary of Evidence

         A. Shakuntala Dhir, M.D.

         On October 21, 2014, Shakuntala Dhir, M.D., conducted a consultative psychiatric examination of Plaintiff. R. at 372-77. Dr. Dhir opined, among other things, that Plaintiff “currently has mental health issues which prevent her from working.” R. at 373.

         B. State Agency Medical Consultants

         On October 24, 2014, a state agency consultant, Timothy Ostrich, Psy.D., using the psychiatric review technique under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff's mental impairments under Listings 12.04 and 12.09 relating to affective disorders and substance addiction disorders (R. at 109, 119). See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.09. Dr. Ostrich opined that, under paragraph B of the applicable listing, 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) no repeated episodes of decompensation of extended duration. R. at 109, 119. Dr. Ostrich did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 109, 119. Dr. Ostrich thus assessed Plaintiff's mental residual functional capacity (“RFC”) (R. at 110-12, 120-23) and opined that she was moderately limited in her ability to (1) understand, remember, and carry out detailed instructions; (2) work in coordination with or in proximity to others without being distracted by them; (3) 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; (4) interact appropriately with the general public; (5) accept instructions and to respond appropriately to criticism from supervisors; (6) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and to (7) respond appropriately to changes in the work setting. R. at 111-12, 121-22. Plaintiff otherwise was not significantly limited. R. at 111-12, 121-22. Dr. Ostrich opined:

[Plaintiff] is able to carry out very short and simple instructions (i.e., perform one and two step tasks). [Plaintiff] is capable of working within a work schedule and at a consistent pace. [Plaintiff] would be able to maintain regular attendance and be punctual. [Plaintiff] would not require special supervision in order to sustain a work routine. [Plaintiff] can make simple decisions.

R. at 111, 121. On March 16, 2015, another state agency consultant, Frances Martinez, Ph.D., concurred with Dr. Ostrich's opinion regarding Plaintiff's functional limitations and RFC. R. at 133-37, 145-49.

         C. Hearing Testimony

         1. Plaintiff's Testimony

         The ALJ reviewed Plaintiff's testimony in her decision:

[Plaintiff] came into the hearing crying, but then became calm, followed by a defiant attitude when asked about her friends who supply her with marijuana. Even though she indicated that she was only comfortable with her mother and caseworker, Miss Elaine, she also named several friends who visit to use drugs and was adamant about protecting them. She testified to binge drinking once or twice a month and smoking marijuana three times a week, whenever one of her friends had it. She testified to spending her days watching television and reading. She last read a self-help book a month before the hearing. She testified that she was previously active in church but no longer would attend frequently.
Although [Plaintiff] testified to ongoing hip pain requiring the use of a cane, she also contradicted this with testimony by stating that she walked ten miles, three days a week for exercise. Additionally, she testified to sitting on the floor in her bedroom or closet for hours and getting up to go to the restroom and eat. Her activities of daily living go beyond limitations that would preclude work and include personal care without problem, preparing meals several times a week, washing dishes, vacuuming, sweeping, cleaning the bathroom, laundry, going outside daily, walking, using public transportation, shopping in stores, handling money, going out to eat, watching movies, walking in parks, and church attendance. [R. at 298-300, 302.]

R. at 24-25; see R. at 47-72.

         2.VE Testimony

         The VE testified that a hypothetical individual with Plaintiff's same age, education, and work experience with the RFC outlined below in Part III could not perform Plaintiff's past work but could perform the unskilled, medium and light jobs of packer, laundry worker, router, and checker.[2] R. at 73-74. According to the VE, her testimony was consistent with the Dictionary of Occupational Titles[3] (the “DOT”). R. at 74. A person absent from work two days per month would not be able ...

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