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Kelson v. Berryhill

United States District Court, D. Maryland, Southern Division

September 25, 2017

JOANNE KELSON, 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 Joanne Kelson seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying her applications for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 18) and Defendant's Motion for Summary Judgment (ECF No. 25).[2] Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner's decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant's Motion for Summary Judgment (ECF No. 25) is GRANTED, Plaintiff's Motion for Summary Judgment (ECF No. 18) is DENIED, and the Commissioner's final decision is AFFIRMED.

         I Background

         Plaintiff was born in 1969, has a GED, and previously worked as a overnight stocker and cashier/fast-food worker. R. at 24, 224-25. Plaintiff protectively filed applications for DIB and for SSI on October 13, 2010, alleging disability beginning on May 19, 2010, due to severe depression. R. at 13, 224. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 28-123. On July 22, 2014, ALJ Jeffrey M. Jordan held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 479-505. On November 19, 2014, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of May 19, 2010, through the date of the decision. R. at 10-26. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on January 28, 2016. R. at 5-8. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

         On March 29, 2016, Plaintiff filed a complaint in this Court seeking review of the Commissioner's decision. After the parties consented, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case then was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

         II Summary of Evidence

         A. Naomi Constantine, CRNP

         On August 3, 2010, Naomi Constantine, a certified registered nurse practitioner, opined that, among other things, Plaintiff experienced moderate restriction in activities of daily living and moderate difficulties in maintaining social functioning. R. at 276. Plaintiff often experienced difficulties in maintaining concentration, persistence, or pace, but did not experience episodes of decompensation of extended duration. R. at 276. Ms. Constantine opined that Plaintiff was able to work in a setting that accommodated her condition. R. at 273. Ms. Constantine also opined, however, that Plaintiff's medical condition prevented her from working. R. at 277.

         B. State Agency Medical Consultants

         On March 9, 2011, a state agency consultant, Howard S. Leizer, Ph.D., using the psychiatric review technique (“PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff's mental impairments under Listings 12.04 and 12.06 relating to affective disorders and anxiety-related disorders (R. at 49-50, 57-58). See 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04, 12.06. Dr. Leizer opined that, under paragraph B of the applicable listings, Plaintiff's mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) mild difficulties in maintaining social functioning; (3) mild difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 50, 58. Dr. Leizer did not find evidence to establish the presence of the criteria under paragraph C of the applicable listings. R. at 50, 58. Plaintiff's mental impairment or combination of mental impairments did not significantly limit her ability to perform basic work activities. R. at 50, 58.

         On April 16, 2011, another state agency consultant, Louis Perrott, Ph.D., again used the PRT to evaluate Plaintiff's mental impairments under Listings 12.04 and 12.06. R. at 41-42. Dr. Perrott opined that, under paragraph B of the applicable listings, Plaintiff's mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) mild difficulties in maintaining social functioning; (3) mild difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 42. Dr. Perrott did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 42. Dr. Perrott found that Plaintiff's mental impairments were not severe. R. at 42.

         On September 21, 2011, another state agency medical consultant, John Sadler, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”). R. at 33-35. Dr. Sadler opined that Plaintiff could (1) lift and/or carry fifty pounds occasionally and twenty 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 33. Plaintiff frequently could stoop, kneel, crouch, crawl, and climb ramps and stairs (but occasionally ladders, ropes, or scaffolds). R. at 34. She could perform unlimited balancing. R. at 34. Because of her COPD with mild shortness of breath and severe headaches, Plaintiff was to avoid concentrated exposure to noise, fumes, odors, dusts, gases, and poor ventilation. R. at 34-35. She had no manipulative, visual, or communicative limitations, however. R. at 34.

         On September 26, 2011, another state agency consultant, Jeanne Buyck, Ph.D., again used the PRT to evaluate Plaintiff's mental impairments under Listing 12.04. R. at 31-32. Dr. Buyck opined that, under paragraph B of the applicable listing, Plaintiff's mental impairments caused her to experience (1) no restriction in activities of daily living; (2) no difficulties in maintaining social functioning; (3) mild difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 32. Dr. Buyck did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 32. Dr. Buyck found that Plaintiff's symptoms of depression were controlled by medication. R. at 32.

         C. Plaintiff's Testimony

         The ALJ summarized Plaintiff's testimony in his decision:

At the hearing, [Plaintiff] testified that she cooks for her son, helps him with his homework and sometimes rides a bicycle with him. She lives with her son and a friend. [Plaintiff] tries to read books and magazines to help with her concentration. She reported being able to sit for about 30 minutes at a time and that she can lift a bag of groceries. [Plaintiff] complained of a vision problem when her blood pressure is elevated. [Plaintiff] reported having knee pain and indicated that she was scheduled for an x-ray of the knee. She also complained of pain in her right hand and [“]diabetic nerve on the right side.” [Plaintiff] testified that she has pain in both shoulders. [Plaintiff] reported that she has chronic headaches and depression.

         R. at 19; see ...


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