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Cross v. Commissioner, Social Security

United States District Court, D. Maryland

July 10, 2017

LAVONDA CROSS
v.
COMMISSIONER, SOCIAL SECURITY

          REPORT AND RECOMMENDATIONS

          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, Lavonda Cross, 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. Cross filed her application for supplemental security income on July 26, 2012, alleging a disability onset date of June 28, 2012. (Tr. 134-39). Her application was denied initially and on reconsideration. (Tr. 80-83, 89-92). A hearing was held on May 5, 2015. (Tr. 38-56). After the hearing, the Administrative Law Judge (“ALJ”) issued an opinion denying benefits. (Tr. 23-37). 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. Cross suffered from the severe impairments of “mood disorder; anxiety disorder; personality disorder.” (Tr. 28). Despite these impairments, the ALJ determined that Ms. Cross retained the residual functional capacity (“RFC”) to:

perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can tolerate only occasional contact with co-workers, supervisors, and/or the general public due to limitations in social functioning. She is also limited to only simple, routine, repetitive tasks, due to limitations in concentration, persistence, or pace.

(Tr. 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. Cross could perform. (Tr. 33-34). Therefore, the ALJ concluded that Ms. Cross was not disabled. (Tr. 34).

         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 Fourth Circuit opinion in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Accordingly, I recommend remand.

         At step one, the ALJ found in Ms. Cross's favor that she had not engaged in substantial gainful activity since her application date. (Tr. 28). At step two, the ALJ found the severe impairments listed above, and found that any other alleged impairments, including obesity, were nonsevere. Id.

         At step three, the ALJ specifically considered Ms. Cross's obesity, in addition to mental Listings 12.04 and 12.06. (Tr. 29). In applying the special technique for consideration of mental impairments, the ALJ concluded, among other findings, that Ms. Cross had moderate difficulties in concentration, persistence, or pace. Id.

         In determining the RFC assessment, the ALJ summarized Ms. Cross's allegations about her inability to work. (Tr. 31). The ALJ further analyzed the “limited” medical evidence from treatment notes and a consultative examination, including the Global Assessment of Functioning (“GAF”) scores assessed at various points in time. (Tr. 31-32). The ALJ found that Ms. Cross's assertions were not entirely credible, citing subjective evidence including Ms. Cross's own statements. Id. The ALJ assigned “little weight” to a GAF score of 47 from June, 2014, since the ALJ found it to be “inconsistent with the course of treatment, extent of activities of daily living, and progress notes.” (Tr. 32). The ALJ also assigned “little weight” to the opinions of Adrienne Dulaj, a licensed clinical social worker, and Dr. Doug Gartrell. (Tr. 32). Finally, the ALJ assigned “significant weight” to the findings of the State agency medical consultants. Id.

         Continuing at step four, the ALJ found that Ms. Cross was unable to perform her past relevant work as a cashier and meter attendant. (Tr. 32). 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. 52-54). Ultimately, the ALJ determined that Ms. Cross's RFC matched one of the hypotheticals he had posed. (Tr. 30, 52-53). The VE cited several jobs in response to that hypothetical, and the ALJ relied on that VE testimony in his opinion.[2] See id.; (Tr. 33-34).

         The function of this Court is not to review Ms. Cross'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.

         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 § 12.00(A). If both the paragraph A criteria and the paragraph B criteria are satisfied, the ALJ will determine that the claimant meets the listed impairment. Id.

         Paragraph B consists of four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. The ALJ employs the “special technique” to rate a claimant's degree of limitation in each area, based on the extent to which the claimant's impairment “interferes with [the claimant's] ability to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. § 404.1520a(c)(2). The ALJ uses a five-point scale to rate a claimant's degree of limitation in the first three areas: none, mild, moderate, marked, or extreme. Id.; see 20 C.F.R. § 404.1520a(c)(4). In order to satisfy paragraph B, a claimant must exhibit either “marked” limitations in two of the first three areas, or “marked” limitation in one of the first three areas, along with repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1 ...


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