United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
to Standing Order 2014-01, the above-referenced case has been
referred to me for review of the parties' dispositive
motions and to make recommendations pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 301.5(b)(ix). The
Plaintiff, Salanna Bush Travis, who is appearing pro
se, did not file a motion for summary judgment and did
not respond to the Commissioner's Motion for Summary
Judgment. I have considered the Commissioner's
pending Motion for Summary Judgment. [ECF No. 17]. 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),
1383(c)(3); 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 the Commissioner's motion be denied, the
decision of the Commissioner be reversed in part, and the
case be remanded pursuant to sentence four of 42 U.S.C.
Travis protectively filed her applications for disability
insurance benefits and disabled widow's benefits,
alleging a disability onset date of July 31, 2011. (Tr.
161-69). Her applications were denied initially and on
reconsideration. (Tr. 80-93, 96-111). A hearing was held on
September 29, 2014. (Tr. 42-77). After the hearing, the
Administrative Law Judge (“ALJ”) issued an
opinion denying benefits. (Tr. 21-41). The Appeals Council
(“AC”) denied review, making the ALJ's
decision the final, reviewable decision of the Agency. (Tr.
found that, during the relevant time frame, Ms. Travis
suffered from the severe impairments of “degenerative
joint disease in the left knee, degenerative disc disease of
the cervical spine, Lyme disease, depressive disorder, and
anxiety disorder.” (Tr. 28). Despite these impairments,
the ALJ determined that Ms. Travis retained the residual
functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b), with the
following limitations: only occasional lifting and/or
carrying of a maximum of 20 pounds; lifting and carrying 10
pounds or less on a frequent basis; standing/walking six
hours in an eight-hour workday; sitting six hours in an
eight-hour workday; frequent climbing of ramps/stairs; only
occasional climbing of ladders and scaffolds; frequent
balancing, kneeling, stooping, crouching, and crawling. The
claimant's pushing, pulling, and operation of hand and
foot controls is limited to 10 pounds of force on a frequent
basis and 20 pounds of force on an occasional basis. The
claimant retains the ability to understand, remember and
carry out instructions concerning simple, routine tasks on a
constant basis. The claimant retains the ability to
understand, remember, and carry out instructions concerning
complex tasks on a frequent basis. Finally, the claimant is
able to constantly make simple decisions, frequently make
complex decisions, and frequently interact with supervisors,
coworkers, and the public.
(Tr. 29-30). After considering testimony from a vocational
expert (“VE”), the ALJ determined that there were
jobs existing in significant numbers in the national economy
that Ms. Travis could perform. (Tr. 35-36). Therefore, the
ALJ concluded that Ms. Travis was not disabled. (Tr. 36).
carefully reviewed the ALJ's opinion and the entire
record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753
(E.D. Tex. 2005) (mapping an analytical framework for
judicial review of a pro se action challenging an
adverse administrative decision, including: (1) examining
whether the Commissioner's decision generally comports
with regulations, (2) reviewing the ALJ's critical
findings for compliance with the law, and (3) determining
from the evidentiary record whether substantial evidence
supports the ALJ's findings). For the reasons described
below, while substantial evidence supports some portions of
the ALJ's decision, the analysis is deficient under the
recent Fourth Circuit opinions in Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015) and Fox v. Colvin, 632
Fed. App'x 750, 2015 WL 9204287 (4th Cir. Dec. 17, 2015).
Accordingly, I recommend remand.
one, the ALJ found in Ms. Travis's favor that she had not
engaged in substantial gainful activity since her alleged
onset date, and that she met the non-disability requirements
for disabled widow's benefits. (Tr. 28). At step two, the
ALJ found the severe impairments listed above. Id.
The ALJ found no non-severe impairments. Id.
three, the ALJ specifically considered physical Listings 1.02
and 1.04, but concluded that Ms. Travis did not allege or
establish that either Listing had been met or equaled.
Id. The ALJ also applied the special technique for
evaluation of mental impairments to consider Listings 12.04
and 12.06. (Tr. 28-29). The ALJ concluded, among other
findings, that Ms. Travis had moderate difficulties in
concentration, persistence, or pace. (Tr. 29).
considering the appropriate RFC assessment, the ALJ analyzed
the medical evidence derived from treatment notes and
consultative examinations, including the results of objective
testing. (Tr. 30-33). The ALJ summarized the types of
treatment Ms. Travis has received, including relatively mild
objective findings, and specifically noted that her
orthopedic surgeon had stated that she would “need to
return [to work] in some capacity.” (Tr. 32). The ALJ
further noted improvement with iontophoresis and physical
therapy. Id. With respect to mental health issues,
the ALJ noted that the opinion from a licensed clinical
social worker did not constitute an acceptable medical
source, was not based on a lengthy treatment relationship,
and was uncorroborated by other record evidence. (Tr. 34).
The ALJ concluded, following the analysis, that Ms.
Travis's assertions were not entirely credible.
at step four, the ALJ found that Ms. Travis was unable to
perform her past relevant work as a bus attendant, call
center worker, and real estate worker. (Tr. 35). At step
five, the ALJ posed hypotheticals to the VE to determine
whether a person with each set of hypothetical criteria would
be able to find work. (Tr. 66-73). Ultimately, the ALJ
determined that Ms. Travis's RFC matched one of the
hypotheticals he had posed. (Tr. 69-71). The VE cited several
jobs in response to that hypothetical, and the ALJ relied on
that VE testimony in his opinion. (Tr. 71, 35-36).
function of this Court is not to review Ms. Travis's
claims de novo or to reweigh the evidence of record.
See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986) (citing 42 U.S.C. § 405(g) and Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather,
this Court is to determine whether, upon review of the whole
record, the Commissioner's decision is supported by
substantial evidence and a proper application of the law.
See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990); see also 42 U.S.C. § 405(g). I am unable
to recommend that finding here.
this case was pending, the Fourth Circuit issued its opinion
in Mascio, a Social Security appeal in the Eastern
District of North Carolina. In Mascio, the Fourth
Circuit determined that remand was warranted for several
reasons, including a discrepancy between the ALJ's
finding at step three concerning the claimant's
limitation in concentration, persistence, and pace, and his
RFC assessment. 780 F.3d at 638.
three of the sequential evaluation, the ALJ determines
whether a claimant's impairments meet or medically equal
any of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. Listings 12.00 et. seq., pertain to
mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.00. Most listings therein consist of: (1) a brief
statement describing its subject disorder; (2)
“paragraph A criteria, ” which consists of a set
of medical findings; and (3) “paragraph B criteria,
” which consists of a set of impairment-related
functional limitations. Id. at § ...