United States District Court, D. Maryland
August 23, 2016, Plaintiff Holly Pell petitioned this Court
to review the Social Security Administration's final
decision to deny her claims for Disability Insurance Benefits
and Supplemental Security Income. (ECF No. 1). I have
considered the parties' cross-motions for summary
judgment, and the supplemental briefing filed by each side.
(ECF Nos. 17, 22, 24, 28). 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. See 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996). Under that standard, I will deny both
motions, reverse the judgment of the Commissioner, and remand
the case to the Commissioner for further analysis pursuant to
sentence four of 42 U.S.C. § 405(g). This letter
explains my rationale.
Pell filed claims for Disability Insurance Benefits and
Supplemental Security Income in the summer of 2012,
originally alleging a disability onset date of March 8,
2004. (Tr. 171-80). Her claims were
denied initially and on reconsideration. (Tr. 60-80, 85-104).
A hearing was held on May 7, 2015, before an Administrative
Law Judge (“ALJ”). (Tr. 34-59). Following that
hearing, on June 19, 2015, the ALJ determined that Ms. Pell
was not disabled during the relevant time frame. (Tr. 10-33).
The Appeals Council denied Ms. Pell's request for review,
(Tr. 2-6), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Ms. Pell suffered from the severe impairments of
“status post right hip fusion and total hip replacement
and obesity.” (Tr. 16). Despite these impairments, the
ALJ determined that Ms. Pell retained the residual functional
capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except she can do work that frequently requires
balancing, stooping, kneeling and climbing ramps and stairs,
occasionally requires crouching and crawling, but never
requires the use of ladders, ropes or scaffolds. The claimant
can perform jobs that allow her to switch between sitting and
standing alternately at 30-minute intervals, provided she
remain on task while in either position during the work
period, and she needs a cane to walk.
(Tr. 19). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Pell
could perform jobs existing in significant numbers in the
national economy and that, therefore, she was not disabled.
Pell raises three primary arguments on appeal: (1) that the
ALJ failed to consider an opinion from her treating
physician, Dr. Mikhail; (2) that the ALJ should have deemed
her depression, knee pain, and back pain to be severe
impairments; and (3) that the ALJ posed an inadequate
hypothetical to the VE. In addition, in a supplemental
filing, Ms. Pell argues that the ALJ did not comply with
Lewis v. Berryhill, 858 F.3d 858 (4th Cir. 2017). I
concur that the ALJ did not consider Dr. Mikhail's
opinion, apparently due to a clerical error by the Social
Security Administration, and I am therefore remanding the
case. However, I express no opinion as to whether the
ALJ's ultimate conclusion that Ms. Pell is not entitled
to benefits is correct or incorrect.
with the successful argument, Ms. Pell alleges that the ALJ
failed to consider a Medical Assessment Report
(“MAR”) completed by her treating physician, Dr.
Mikhail, on May 6, 2015. Pl. Mot. at 12-16. According to Ms.
Pell, while the Social Security Administration's index of
her record reflects the inclusion of the MAR, the actual
record does not contain the MAR and instead contains a
duplicate opinion from a different doctor. Ms. Pell attached
a copy of the missing MAR as Exhibits A and B to her motion,
and the five pages bear handwritten numbers in the lower
corners (page numbers 1-3 in Exhibit A and 6-7 in Exhibit B).
In pertinent part, the MAR contains Dr. Mikhail's
handwritten notes of Ms. Pell's diagnoses, symptoms, and
physical signs through more than ten years of treatment, in
addition to Dr. Mikhail's opinions about her functional
capacity. Pl. Mot. Exh. A.
the Commissioner contends that “the [A]gency did
include Dr. Mikhail's May 6, 2015 MAR in the transcript
record at pages 385-86.” Def. Mot. at 14. However, even
a cursory comparison of the documents shows that the Agency
only included two pages (handwritten numbers 4-5), which do
not contain the important analysis described above. In fact,
the ALJ assigned only “little weight” to those
two pages in part because Dr. Mikhail “did not cite to
any treatment or examination notes or diagnostic imaging to
support his opinion, ” (Tr. 23), even though such
evidence was cited on the missing pages. Thus, Ms. Pell is
correct that the Agency's recordkeeping error precluded
the ALJ's consideration of the opinion of her longtime
treating physician, which could be viewed to corroborate
other medical evidence supporting a finding of disability.
Remand is therefore warranted to permit complete
consideration of the evidence of record.
Ms. Pell's supplemental argument, that the ALJ violated
Lewis, is unpersuasive. In Lewis, the
Fourth Circuit reiterated that an ALJ cannot rely exclusively
on objective evidence to undermine a claimant's
credibility. See 858 F.3d 866. In this case, the ALJ
expressly found that, “[t]he subjective factors in this
case are generally not persuasive.” (Tr. 20). Moreover,
in addition to relying on certain factors that the Fourth
Circuit did not appear to find sufficient in Lewis,
the ALJ in Ms. Pell's case expressly listed Ms.
Pell's own statements that he believed to undermine her
credibility. See, e.g, (Tr. 20) (noting
that Ms. Pell “reported during a May 4, 2013
consultative examination that she gets along fine with others
and had no trouble at work, a point she confirmed as true at
the hearing.”); (Tr. 21) (noting that Ms. Pell
“admittedly does not need reminders, is able to count
change, pay bills and follow written instructions”).
Thus, the ALJ's analysis in this case satisfies the
dictates of Lewis.
terms of Ms. Pell's remaining arguments regarding the
severity of her depression, knee pain, and back pain and the
adequacy of the ALJ's hypothetical to the VE, the ALJ
will have the ability to provide further explanation or to
alter the hypothetical, if desired, on remand.
reasons set forth above, Plaintiff's Motion for Summary
Judgment (ECF No. 17) is DENIED and Defendant's Motion
for Summary Judgment (ECF No. 22) is DENIED. Pursuant to
sentence four of 42 U.S.C. § 405(g), the
Commissioner's judgment is REVERSED IN PART due to
inadequate analysis. The case is REMANDED for further
proceedings in accordance with this opinion. The Clerk is
directed to CLOSE this case.
the informal nature of this letter, it should be flagged as