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Banks v. Berryhill

United States District Court, D. Maryland, Southern Division

August 17, 2017

MONA BANKS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]

          MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          THOMAS M. DIGIROLAMO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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. 19).[2] 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.

         I Background

         Plaintiff 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).

         On 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.

         II Summary of Evidence

         On July 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 space.

R. at 305.

         On July 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.

         On 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.

         The ALJ reviewed Plaintiff's October 2014 testimony in the ALJ's decision:

[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.

         Also at 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.[3] 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.[4] 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.

         III Summary of ...


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