United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION GRANTING PLAINTIFF'S
ALTERNATIVE MOTION FOR REMAND
M. DiGirolamo United States Magistrate Judge.
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.
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.
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).
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.
State Agency Medical Consultants
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.
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.
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.
reviewed the testimony of Plaintiff and his mother in the
[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