United States District Court, D. Maryland
DAVID LEE SYKES, SR.
COMMISSIONER, SOCIAL SECURITY
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
to Standing Order 2014-01, the above-referenced case was
referred to me to review the parties' cross-motions for
summary judgment and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). I
have considered the parties' motions, and Mr. Sykes's
reply. [ECF Nos. 15, 20, 21]. This Court must uphold the
Commissioner's decision if it is supported by substantial
evidence and if proper legal standards were employed. 42
U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). I find that no hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the reasons set
forth below, I recommend that both motions be denied, that
the Commissioner's decision be reversed in part pursuant
to sentence four, and that the case be remanded to the
Commissioner for further proceedings in accordance with this
Report and Recommendations.
Sykes applied for Disability Insurance Benefits and
Supplemental Security Income on July 25, 2012, alleging a
disability onset date of September 1, 2011. (Tr. 136-52). His
claims were denied initially on November 2, 2012, and on
reconsideration on April 17, 2013. (Tr. 63-76, 79-94). An
Administrative Law Judge (“ALJ”) held a hearing
on September 15, 2014, (Tr. 32-62), and subsequently denied
benefits to Mr. Sykes in a written opinion dated October 24,
2014. (Tr. 17-31). The Appeals Council declined review, (Tr.
1-4), making the ALJ's decision the final, reviewable
decision of the Agency.
found that Mr. Sykes suffered from the severe impairments of
“diabetes mellitus (DM), neck disorder (status post
surgery), back disorder, bilateral foot disorder; peripheral
neuropathy and obesity.” (Tr. 22). Despite these
impairments, the ALJ determined that Mr. Sykes retained the
residual functional capacity (“RFC”) to:
perform the sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a), provided it does not require more than
occasional postural activities, and would not requiring (sic)
any climbing or exposure to heights or hazards.
(Tr. 24). After considering testimony from a vocational
expert (“VE”), the ALJ determined that Mr. Sykes
was capable of performing his past relevant work as a
security guard at Tyson Foods. (Tr. 26). Accordingly, the ALJ
determined that Mr. Sykes was not disabled. (Tr.
Sykes disagrees. He raises several arguments in support of
his appeal. Although not all of Mr. Sykes's contentions
are meritorious, the ALJ did not adequately evaluate the
opinion of Mr. Sykes's treating physician, Dr. Ceruzzi,
and does not appear to have considered whether Mr. Sykes was
eligible for a closed period of disability from his alleged
onset date to a date on or around his cervical laminectomy in
March, 2014. Accordingly, I recommend remand for additional
explanation. In so recommending, I express no opinion as to
whether the ALJ's ultimate conclusion that Mr. Sykes is
not entitled to benefits is correct or incorrect.
relatively short RFC analysis, the ALJ focused extensively on
doctors' evaluations of Mr. Sykes in June and July of
2014, after his surgery. (Tr. 25). The ALJ then assigned
“little weight” to the opinion of the treating
physician, Dr. Ceruzzi, on the basis that, “[t]he
claimant had surgery since she prepared the statement and she
has not treated the claimant since that time. Her opinion is
not well supported by the evidence of improvement.”
(Tr. 26) (citation omitted).
problem with the ALJ's analysis is that Mr. Sykes
suffered from his impairments from his alleged onset date in
2011 until his surgery in March, 2014, which appears to have
resulted in some improvement. To qualify for disability
benefits, a claimant need not show disability at the time of
the hearing. See Miller v. Comm'r of Soc. Sec.,
No. 13-CIV.-6233, 2015 WL 337488, at *24 (S.D.N.Y. Jan. 26,
2015). Instead, the ALJ is charged with determining whether
the claimant was disabled for any consecutive twelve-month
period between the alleged onset date and the hearing date.
See Id. “[T]he disability inquiry must be made
throughout the continuum that begins with the claimed onset
date and ends with the hearing date, much as though the ALJ
were evaluating a motion picture at every frame of that time
period[.]” Calhoun v. Colvin, 959 F.Supp.2d
1069, 1075 (N.D. Ill. 2013). Cases are subject to remand
where an ALJ fails to consider whether a closed period of
disability existed. See, e.g., Shiplett v. Colvin,
No. 5:15-cv-55, 2016 WL 6783270, at *13 (W.D. Va. Nov. 16,
2016) (remanding to determine whether a closed period is
appropriate between a surgery and an EMG study revealing no
active nerve root irritation); Puryear v. Comm'r of
Soc. Sec. Admin., No. 4:14-cv-00057, 2016 WL 462822, at
*6 (Jan. 5, 2016) (remanding for the ALJ to consider a closed
period of disability due to “evidence indicating
greater impairment before Puryear's surgery”);
Reynoso v. Astrue, No. CV 10-04604, 2011 WL 2554210,
at *5-7 (C.D. Cal. June 27, 2011) (remanding for the
ALJ's failure to consider whether claimant had a closed
period of disability prior to undergoing surgery);
Dounley v. Comm'r of Soc. Sec. Admin., No.
3:08-cv-1388, 2009 WL 2208021, at *8-9 (N.D. Tex. July 22,
2009) (remanding with instructions to consider claimant's
entitlement to a closed period where the ALJ relied on
medical evidence generated after the surgery that permitted
the claimant to work).
case, the ALJ's evaluation of the opinion of Mr.
Sykes's treating physician, Dr. Ceruzzi, indicates that
the ALJ did not consider a closed period of disability prior
to surgery. When a medical opinion is from a “treating
source, ” it is given controlling weight if it is
“well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant's] case
record.” 20 C.F.R. § 416.927(c)(2). If a treating
source's medical opinion is not assigned controlling
weight, in determining the weight to give the opinion, the
ALJ should consider: (1) the length of the treatment
relationship and its nature and extent; (2) the
supportability of the opinion; (3) the opinion's
consistency with the record as a whole; (4) whether the
source is a specialist; and (5) any other factors that tend
to support or contradict the opinion. 20 C.F.R. §
416.927(c). The record indicates that Dr. Ceruzzi had treated
Mr. Sykes four times per year since 2011. (Tr. 223). Despite
that longitudinal treating relationship during the alleged
period of disability, the ALJ's three reasons for
assigning only “little weight” to Dr.
Ceruzzi's opinion were (1) “the claimant had
surgery since she prepared the statement, ” (2) Dr.
Ceruzzi “has not treated the claimant since that time,
” and (3) “[h]er opinion is not well supported by
the evidence of improvement.” (Tr. 26) (citation
omitted). None of those reasons evaluate the legitimacy of
Dr. Ceruzzi's opinion at the time it was written.
Accordingly, remand is appropriate to allow the ALJ to
provide an appropriate evaluation of the treating
source's opinion and to consider whether Mr. Sykes should
be eligible for a closed period of disability during any
period at or exceeding twelve months between the alleged
onset date and the date of the surgery.
not persuaded by Mr. Sykes's remaining arguments. First,
Mr. Sykes contends that the ALJ failed to fully and fairly
develop the administrative record by ordering medical records
preceding his alleged onset date. Pl. Mot. 19-20. The
claimant bears the burden of proof during the first four
steps of the sequential evaluation. See Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Because Mr.
Sykes was represented by counsel, there is no reason why he
could not have presented the records himself or requested
that the ALJ obtain any records he believed to be relevant to
an assessment of disability. Second, in light of the evidence
adduced regarding the relatively sparse exertional
requirements of Mr. Sykes's job as a security guard at
Tyson Foods, (Tr. 41-42), the VE's apparent failure to
identify the job code for “security guard” in the
Dictionary of Occupational Titles (DOT) is irrelevant. Pl.
Mot. 21. The ALJ did not find that Mr. Sykes could work
generally as a security guard, but only that he could do his
past relevant work as performed at a single specific
location. (Tr. 26). The DOT's generic description of the
work performed by security guards would not affect that
analysis. Accordingly, I do not recommend remand on either of
reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant's Motion for Summary Judgment