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Tucker v. Berryhill

United States District Court, D. Maryland, Southern Division

June 23, 2017

MICAL TUCKER, 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 Mical Tucker seeks judicial review under 42 U.S.C. § 405(g) of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying his application for child's disability benefits under Title II of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment and alternative motion for remand (ECF No. 15) and Defendant's Motion for Summary Judgment (ECF No. 16).[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. 15) is GRANTED.

         I

         Background

         Plaintiff was born in 1994, has a high-school education, and has no past relevant work. R. at 22. Plaintiff filed an application for child's disability benefits on February 28, 2012, alleging disability beginning on February 10, 2012, due to a learning disability and PTSD. R. at 126-32, 155. The Commissioner denied Plaintiff's application initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 55-93. On October 1, 2014, ALJ Larry K. Banks held a hearing in Washington, D.C., at which Plaintiff, his mother, and a vocational expert (“VE”) testified. R. at 29-54. On February 27, 2015, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of February 10, 2012, through the date of the decision. R. at 9-28. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on December 30, 2015. R. at 1-8, 294-95. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

         On February 29, 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. State Agency Medical Consultants

         On June 26, 2012, a state agency consultant, D. Peterson, Ph.D., using the psychiatric review technique under 20 C.F.R. § 404.1520a, evaluated Plaintiff's mental impairment under Listing 12.02 relating to organic mental disorders (R. at 60-62). See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.02. Dr. Peterson opined that, under paragraph B of the applicable listing, Plaintiff's mental impairment caused him to experience (1) moderate restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 60. Dr. Peterson did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 60. Dr. Peterson thus assessed Plaintiff's mental residual functional capacity (“RFC”) and opined that he was markedly limited in his ability to understand, remember, and carry out detailed instructions. R. at 63. Plaintiff was moderately limited in his ability to (1) maintain attention and concentration for extended periods; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (3) work in coordination with or proximity to others without being distracted by them; (4) interact appropriately with the general public; (5) accept instructions and to respond appropriately to criticism from supervisors; and to (6) set realistic goals or to make plans independently of others. R. at 63-64. Plaintiff otherwise was not significantly limited. R. at 63-64. Dr. Peterson opined that Plaintiff “appears able to participate in the job market with considerations for his limitations in completing complex tasks.” R. at 64.

         On July 15, 2013, a state agency consultant, A. Serpick, M.D., assessed Plaintiff's physical RFC. R. at 75. Dr. Serpick opined that Plaintiff could (1) lift and/or carry fifty pounds occasionally and twenty-five 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 75. Dr. Serpick further opined that Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. R. at 75.

         On August 15, 2013, another state agency consultant, L. Payne, Ph.D., again assessed Plaintiff's mental RFC. R. at 76-77. Dr. Payne opined that Plaintiff was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) sustain an ordinary routine without special supervision; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (5) respond appropriately to changes in the work setting; and to (6) set realistic goals or to make plans independently of others. R. at 76-77. Plaintiff otherwise was not significantly limited. R. at 76-77. Dr. Payne noted that Plaintiff “is distractible, has [a learning disorder] and below average IQ scores. He is able to understand and complete simple tasks independently, but can become distracted. He will need prompts to stay focused and complete tasks.” R. at 77. Dr. Payne also opined that Plaintiff “will function most productively with routine, repetitive tasks that do not require extensive independent decision making.” R. at 77.

         B. Hearing Testimony

         The ALJ reviewed the testimony of Plaintiff and his mother in the ALJ's decision:

[Plaintiff] and his mother testified that he fell 30 feet off a bridge in July 2011, striking his chest and head, after being chased. This appears to have been a result of a hapless marijuana purchase [R. at 393]. They allege he suffered a concussion and “lost a couple of discs in his spinal cord, ” and cannot stand or sit for long periods. They testified he cannot lift more than 40 pounds. Initially, [Plaintiff's] mother stated she feels [Plaintiff] can work and that she wants him to be successful; after the undersigned explained the rules for obtaining disability benefits, she stated she does not feel [Plaintiff] can work due to his emotional problems.
[Plaintiff] alleges he has internal disc derangement with mild broad-based central disc protrusion and that he has severe depression and a learning disorder [R. at 200-34]. His mother alleges [Plaintiff] was unconscious from the time he hit the ground until the time the ambulance came; she alleges he ...

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