United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
to Standing Order 2014-01, the above-captioned case has been
referred to me to review 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). I have considered
the parties' dispositive cross-motions. [ECF Nos. 11,
14]. I find that no hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). This Court must uphold the decision
of the Agency if it is supported by substantial evidence and
if the Agency employed proper legal standards. 42 U.S.C.
§§ 405(g), 1383(c)(3); Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996); Coffinan v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). 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 Recomm endati ons.
Fletcher protectively filed an application for Disability
Insurance Benefits. (Tr. 197-99). His application was denied
initially and on reconsideration. (Tr. 79-85, 86-93). An
Administrative Law Judge ("ALJ") held a hearing on
August 26, 2014, at which Mr. Fletcher was represented by
counsel. (Tr. 45-76). Following the hearing, the ALJ
determined that Mr. Fletcher was not disabled within the
meaning of the Social Security Act during the time preceding
his date last insured of March 31, 2012. (Tr. 25-38). The
Appeals Council denied Mr. Fletcher's request for review,
(Tr. 7-12), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Fletcher suffered from the severe impairments
of bipolar disorder and substance abuse. (Tr. 27). The ALJ
concluded that, if the substance abuse were to be considered,
Mr. Fletcher's combined impairments render him incapable
of sustaining substantial gainful employment. (Tr. 28-30).
However, the ALJ further concluded that, if Mr. Fletcher were
to stop substance use, he would retain the residual
functional capacity ("RFC") to:
perform a full range of work at all exertional levels but
with the following nonexertional limitations: carrying out
simple tasks in 2 hour increments; having occasional
interaction with co-workers and supervisors, but avoiding
direct interaction with the general public; and adapting to
simple changes in a routine work setting.
31). After considering the testimony of a vocational expert
("VE"), the ALJ determined that, if Mr. Fletcher
stopped the substance use, he could perform jobs existing in
significant numbers in the national economy. (Tr. 36-37).
Therefore, the ALJ concluded that the substance use disorder
"is a contributing factor material to the determination
of disability, " and that, therefore, Mr. Fletcher was
not disabled. (Tr. 37).
Fletcher disagrees. He argues (1) that the ALJ failed to
properly determine his RFC absent substance use; (2) that the
ALJ erred in evaluating his credibility; and (3) that the
ALJ's hypothetical to the VE violated the Fourth
Circuit's decision in Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015). I agree that the ALJ erred in evaluating
Mr. Fletcher's RFC absent substance use, and I therefore
recommend remand. Also, on remand, I recommend that the ALJ
provide a more complete description of Mr. Fletcher's
functional limitations pertaining to sustaining concentration
over the course of a workday, and a more complete evaluation
of his credibility. In so recommending, I express no opinion
as to whether the ALJ's ultimate conclusion that Mr.
Fletcher is not entitled to benefits is correct or incorrect.
critical issue presented in this case is Mr. Fletcher's
RFC absent substance use. Mr. Fletcher's treating
physician, Dr. Charito Quintero-Howard, treated him monthly
from 2010-2014. (Tr. 638). She filled out two opinion forms,
one in the 2011/2012 time frame and one in 2014. (Tr. 729-36,
638-42). The earlier form discusses his psychological
restrictions, and opines that he is incapable of even
"low stress" work and would miss more than three
days per month, but does not mention substance abuse. (Tr.
729-36). The 2014 form mentions that his substance abuse
"has been in remission for 3 years, but continued to
have mood swings and bipolar symptoms" and that when
"off drugs still continues to have bipolar." (Tr.
642). In her opinion, the ALJ asserts that Dr.
Quintero-Howard indicated "that the claimant would
suffer marked limitations regardless of his substance abuse,
but gives no basis for her assessment. She gives no
indication why the claimant would not improve with continued
compliance and sustained sobriety." (Tr. 35). In
contrast, however, Dr. Quintero-Howard provided an express
indication of the basis for her assessment - namely, her
observations of Mr. Fletcher's continuing bipolar
symptoms during periods when he was drug-free. Moreover, if
the ALJ had felt that Dr. Quintero-Howard had not
sufficiently addressed her assessment of Mr. Fletcher's
non-substance abuse related symptoms, the ALJ could have
re-contacted her for more information, instead of simply
alleging that her "assessments fail to explain the
impact of the claimant's substance abuse on his ability
to function." (Tr. 35).
addition, the ALJ assigned "moderate weight" to the
May 2011 consultative examination by Dr. Taghizadeh, at which
Mr. Fletcher was assigned a GAF score of only 35, alleging
that "the examination report noted diagnoses including
substance abuse which, as found above, does cause marked
limitations in mental functioning." (Tr. 36). Although
Dr. Taghizadeh's report could be written more clearly, it
is evident that, at the time of the evaluation, Mr. Fletcher
was not actually using drugs. (Tr. 473) ("Currently, he
suffers from extreme depression, anxiety, panic attacks,
always afraid, has obsessive-compulsive disorder, and he is
fighting to stay clean."). Thus, attributing the
limitations found by Dr. Taghizadeh to Mr. Fletcher's
substance abuse is not an accurate assessment of the record.
this Court is not to reweigh the evidence of record, it is
charged with determining whether the ALJ's conclusion is
supported by substantial evidence. See Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In this
case, where the ALJ's opinion contains significant
inaccuracies relating to the most material issue to the
determination, there is not substantial evidence to support
the ALJ's conclusion as written.
Fletcher also alleges that the ALJ erred in evaluating his
credibility and in formulating a hypothetical question to the
VE. I note that some of the language the ALJ used in her
credibility assessment, (Tr. 32), has been deemed flawed by
the Fourth Circuit in Mascio, 780 F.3d at 639
(rejecting language that the claimant's statements
"are not credible to the extent they are inconsistent
with the above residual functional capacity
assessment"). The ALJ also provided very little analysis
of any specific statements she found "not credible,
" other than the assertion that Mr. Fletcher was not
given take home tests "due to his prescribed
Klonopin" instead of failed toxology screens. (Tr. 36).
Thus, if the case is remanded, the ALJ should revisit the
issue of Mr. Fletcher's credibility and provide an
appropriate analysis. Moreover, it appears that the ALJ
concluded, in both the RFC assessment and the hypothetical to
the VE, that Mr. Fletcher's moderate limitation in
concentration, persistence, or pace could be addressed only
with a limitation to "carrying out simple tasks in 2
hour increments." (Tr. 31). Because I am recommending
remand on other grounds, the ALJ should provide additional
justification for that finding.
reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant's Motion for Summary Judgment