United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
M. DIGIROLAMO, UNITED STATES MAGISTRATE JUDGE
Mona Banks 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 her application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act. Before the Court is
Defendant's Motion for Summary Judgment (ECF No.
Defendant contends that substantial evidence in the
administrative record supports the Commissioner's final
decision that Plaintiff is not disabled. No hearing is
necessary. L.R. 105.6. For the reasons that follow,
Defendant's Motion for Summary Judgment (ECF No. 19) is
GRANTED, and the Commissioner's final
decision is AFFIRMED.
was born in 1963, has a high-school education, and previously
worked as an office clerk. R. at 18. Plaintiff protectively
filed an application for DIB on April 2, 2012, alleging
disability beginning on December 1, 2010, due to back and hip
pain, breathing problems, and sciatica. R. at 11, 142-45,
228. The Commissioner denied Plaintiff's application
initially and again on reconsideration, so Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”). R. at 49-77. On October 16, 2014, ALJ
F.H. Ayer held a hearing in Washington, D.C., at which
Plaintiff and a vocational expert (“VE”)
testified. R. at 25-48. Plaintiff at the hearing amended her
alleged onset date of disability to April 2, 2012. R. at
28-29. On November 13, 2014, the ALJ issued a decision
finding Plaintiff not disabled from the amended alleged onset
date of disability of April 2, 2012, through the date last
insured of December 31, 2012. R. at 8-24. Plaintiff sought
review of this decision by the Appeals Council, which denied
Plaintiff's request for review on January 31, 2016. R. at
1-6, 241. 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).
March 29, 2016, represented by counsel, Plaintiff filed a
complaint in this Court seeking review of the
Commissioner's final decision. Upon the parties'
consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
On October 14, 2016, the Court granted Plaintiff's
counsel's motion to withdraw and stayed the case for
sixty days to allow Plaintiff to retain an attorney. After
Plaintiff failed to do so, the Court entered a scheduling
order (ECF No. 18), and the Commissioner thereafter filed a
Motion for Summary Judgment (ECF No. 19). On April 13, 2017,
the Clerk of Court notified Plaintiff that she had seventeen
days to file a response to Defendant's Motion for Summary
Judgment and that failure to file a timely written response
could lead to dismissal of the case or to entry of judgment
against her without further notice (ECF No. 20). The case
subsequently was reassigned to the undersigned. To date,
Plaintiff has filed neither a motion for summary judgment nor
a response to Defendant's Motion for Summary Judgment.
The matter is now fully submitted.
Summary of Evidence
12, 2012, Sisom Osia, M.D., conducted a consultative
examination of Plaintiff. R. at 303-09. Dr. Osia found:
On the whole, there is no sensory, motor, or reflex
abnormality in the extremities. Regarding gait and station,
she appeared generally slow and unsteady, but she is able to
ambulate without need for ambulatory aid. There is no
observed atrophy that warrants any measurement above or below
any joint. Hand grip and motor power is about 5/5 in all
extremities. There are no sensory deficits. She maintained a
very flat to depressed affect and tearful a few times.
Medical evidence shows back pain and another lumbar X-ray
that indicates moderate spasm and narrowing of L5-S1 disc
R. at 305.
28, 2012, a state agency medical consultant, Dominic Gaziano,
M.D., assessed Plaintiff's physical residual functional
capacity (“RFC”). R. at 53-55. Dr. Gaziano opined
that Plaintiff could (1) lift and/or carry twenty pounds
occasionally and ten 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 53-54.
Plaintiff occasionally could balance, stoop, kneel, crouch,
crawl, and climb ramps and stairs (but never ladders, ropes,
or scaffolds). R. at 54. Although she was to avoid even
moderate exposure to hazards such as machinery and heights,
Plaintiff had no manipulative, visual, or communicative
limitations. R. at 54-55.
March 21, 2013, another state agency consultant, J. Biddison,
M.D., again assessed Plaintiff's physical RFC. R. at
63-64. Dr. Biddison opined that Plaintiff could (1) lift
and/or carry twenty pounds occasionally and ten 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 63. Dr. Biddison opined that Plaintiff
occasionally could climb, balance, stoop, kneel, crouch, and
crawl, but she had no manipulative, visual, communicative, or
environmental limitations. R. at 64.
reviewed Plaintiff's October 2014 testimony in the
[Plaintiff] alleges she cannot work due to lower back pain
that affects her ability to walk, stand, bend, and lift.
Although she alleges her medications make her drowsy, medical
records do not show she reported excessive drowsiness to
medical sources. She alleged she is very limited in her
ability to tend to her activities of daily living. She
alleges problems sitting [R. at 30-31, 36-47, 169-81].
R. at 16.
the October 2014 hearing the VE testified that a hypothetical
person with Plaintiff's same age, education, and work
experience who had the RFC outlined in Part III below could
not perform Plaintiff's past work but could perform the
light jobs of machine tender, packer and packaging worker, or
inspector. R. at 31-34. With the exception of his
testimony regarding a sit-stand option, the VE's
testimony was consistent with the Dictionary of
Occupational Titles. R. at 34. A person off task 20%
of the workday or absent two or more days per month would not
be employable. R. at 35.
Summary of ...