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White v. Berryhill

United States District Court, D. Maryland

May 1, 2017

VERNON WHITE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]

          MEMORANDUM OPINION GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND

          Thomas M. DiGirolamo United States Magistrate Judge

         Plaintiff Vernon White, Jr., 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 his 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. 14) and Defendant's Motion for Summary Judgment (ECF No. 15).[2] Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner's decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Plaintiff's alternative motion for remand (ECF No. 14) is GRANTED.

         I Background

         Plaintiff was born in 1966, has a high-school education, and previously worked as a plumber, construction worker, and laborer/cleaner. R. at 26, 38-39, 222. Plaintiff protectively filed applications for DIB and SSI on May 24, 2012, alleging disability beginning on December 16, 2011, due to diabetes, high blood pressure, heart and prostate problems, blood clots, and a learning disability. R. at 14, 68, 192-204, 221. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 68-127, 132-40. On October 9, 2014, ALJ Geraldine H. Page held a hearing where Plaintiff and a vocational expert (“VE”) testified. R. at 34-67. On January 21, 2015, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of December 16, 2011, through the date of the decision. R. at 11-33. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on May 26, 2016. R. at 1-5, 8-10, 310-11, 646-47. 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 June 30, 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.

         II Summary of Evidence

         A. Kelly Zinna, Psy.D.

         On September 14, 2012, Kelly Zinna, Psy.D., conducted a consultative psychological examination of Plaintiff. R. at 23-24, 544-49. Dr. Zinna's diagnoses included Plaintiff's history of severe, major depressive disorder; alcohol dependence in sustained remission; learning disorder not otherwise specified; rule out attention-deficit hyperactivity disorder; attention, comprehension, learning, and memory problems; social isolation; and a GAF score of 45.[3] R. at 546. Dr. Zinna opined:

Given test findings, [Plaintiff] can be expected to perform at average or near average levels on most intellectual and cognitive tasks. However[, ] when faced with memory tasks, [Plaintiff] is likely to show marked deficits. He will do better on verbally[]based tasks as opposed to those requiring visual-spatial processing and/or psychomotor speed. His best performance will be achieved when directives are presented concretely, with verbal instructions and visual examples, additional time for rehearsal, repetition and external checks on his integration and understanding. He may also benefit from environmental cues.

R. at 546. Dr. Zinna also found that Plaintiff's ability to understand and follow simple instructions independently was within normal limits. R. at 549.

         B. State Agency Medical Consultants

         On October 1, 2012, a state agency medical consultant, S.K. Najar, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”). R. at 73-75, 85-87. Dr. Najar opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 73, 85. Plaintiff occasionally could stoop and frequently could balance, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 73-74, 85-86. Although he was to avoid all exposure to hazards, such as machinery and heights, Plaintiff had no manipulative, visual, or communicative limitations. R. at 74, 86.

         On October 2, 2012, a state agency consultant, K. Wessel, Ed.D., using the psychiatric review technique (the “PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff's mental impairment under Listing 12.02 relating to organic mental disorders (R. at 71-72, 83-84). See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.02. Dr. Wessel opined that, under paragraph B of the applicable listing, Plaintiff's mental impairment caused him to experience (1) mild restriction in activities of daily living; (2) mild difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two repeated episodes of decompensation of extended duration. R. at 72, 84. Dr. Wessel did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 72, 84. Dr. Wessel thus assessed Plaintiff's mental RFC and opined that he was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; and to (2) maintain attention and concentration for extended periods. Plaintiff otherwise was not significantly limited. R. at 75-76, 87-88.

         On March 22, 2013, another state agency consultant, M. Ahn, M.D., again assessed Plaintiff's physical RFC. R. at 99-101, 113-15. Dr. Ahn opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 99, 113. Dr. Ahn further opined that Plaintiff frequently could balance and occasionally could climb, stoop, kneel, crouch, and crawl. R. at 99-100, 113-14. Although he was to avoid all exposure to hazards, such as machinery and heights, Plaintiff had no manipulative, visual, or communicative limitations. R. at 100, 114.

         On March 25, 2013, another state agency consultant, Elliott Rotman, Ph.D., again used the PRT to evaluate Plaintiff's mental impairment under Listing 12.02. R. at 97-98, 111-12. Dr. Rotman opined that, under paragraph B of the applicable listing, Plaintiff's mental impairment caused him to experience (1) mild restriction in activities of daily living; (2) mild difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two repeated episodes of decompensation of extended duration. R. at 98, 112. Dr. Rotman did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 98, 112. Dr. Rotman thus assessed Plaintiff's mental RFC and opined that he was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; and to (2) maintain attention and concentration for extended periods. Plaintiff otherwise was not significantly limited. R. at 101-02, 115-16.

         C. Hearing Testimony

         1. ...


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