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Travis v. Commissioner, Social Security

United States District Court, D. Maryland

March 28, 2017



          Stephanie A. Gallagher United States Magistrate Judge

         Pursuant 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.[1] 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. § 405(g).

         Ms. 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. 1-7).

         The ALJ 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).

         I have 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.

         At step 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.

         At step 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).

         In 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. Id.

         Continuing 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).

         The 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.

         While 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.

         At step 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 ยง ...

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