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Gregory v. Berryhill

United States District Court, D. Maryland, Southern Division

March 15, 2018

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

          MEMORANDUM OPINION GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND

          THOMAS M. DIGIROLAMO UNITED STATES MAGISTRATE JUDGE

         Plaintiff Heather Gregory 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 and alternative motion for remand (ECF No. 18) and Defendant's Motion for Summary Judgment (ECF No. 19).[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, Plaintiff's alternative motion for remand (ECF No. 18) is GRANTED.

         I Background

         Plaintiff was born in 1975, has a high-school education, and previously worked as a veterinarian technician. R. at 29. Plaintiff protectively filed applications for DIB and for SSI on September 13, 2012, alleging disability beginning on August 10, 2006 (later amended to February 1, 2012), due to bipolar disorder, carpal tunnel syndrome, depression, panic attacks, migraine headaches, neck injury, back injury, and left ankle injury. R. at 16, 199-207, 224, 236. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 66-130, 133-43. On February 2, 2015, ALJ Jennifer M. Long held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 37-65. On April 16, 2015, the ALJ issued a decision finding Plaintiff not disabled from the amended alleged onset date of disability of February 1, 2012, through the date of the decision. R. at 13-36. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on July 26, 2016. R. at 1-4, 12. 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 September 26, 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. State Agency Medical Consultants

         On January 22, 2013, a state agency medical consultant, Ann L. Williams, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”). R. at 71-74, 83-86. Dr. Williams opined that Plaintiff could (1) lift and/or carry ten pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of two 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 72, 84. Plaintiff occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 72-73, 84-85. Although Plaintiff had no manipulative, visual, or communicative limitations, she was to avoid concentrated exposure to hazards such as machinery and heights. R. at 73, 85. On June 24, 2013, Carl Bancoff, M.D., affirmed Dr. Williams's assessment. R. at 100, 116.

         On January 24, 2013, a state agency consultant, Norman Kane, Ph.D., using the psychiatric review technique (“PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff's mental impairments under Listing 12.04 relating to affective disorders (R. at 70-71, 82-83). See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.04. Dr. Kane opined that, under paragraph B of the applicable listing, Plaintiff's mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 70, 82. Dr. Kane did not find evidence to establish the presence of the criteria under paragraph C of the applicable listing. R. at 70-71, 82-83. Dr. Kane thus assessed Plaintiff's mental RFC and opined that she was moderately limited in her ability to (1) understand and remember detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) make simple work-related decisions; and to (5) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. R. at 74-75, 86-87. She was markedly limited in her ability to carry out detailed instructions, but otherwise she was not significantly limited. R. at 74-75, 86-87.

         On July 16, 2013, another state agency consultant, B. Lee Hudson, Ph.D., again used the PRT to evaluate Plaintiff's mental impairments under Listings 12.04, 12.06, and 12.08. R. at 100-03, 116-19. Dr. Hudson opined that, under paragraph B of the applicable listings, since January 1, 2013, Plaintiff's mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended duration. R. at 100-01, 116-17. Through the date last insured of December 31, 2012, 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 102, 118. Dr. Hudson did not find evidence to establish the presence of the criteria under paragraph C of the applicable listings. R. at 101, 102, 117, 118. Dr. Hudson opined that Plaintiff's mental symptoms were not severely functionally limiting before her date last insured of December 31, 2012. R. at 103, 119. The consultant assessed Plaintiff's mental RFC since January 1, 2013, and opined that she was moderately limited in her ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (4) interact appropriately with the general public; (5) accept instructions and to respond appropriately to criticism from supervisors; (6) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and to (7) respond appropriately to changes in the work setting. Plaintiff otherwise was not significantly limited. R. at 104-06, 120-22.

         B. Plaintiff's Testimony

         The ALJ summarized Plaintiff's testimony in her decision:

[Plaintiff] testified that she is unable to work due to migraine headaches that occur every couple of days, leaving her in bed and vomiting, and depression that also makes her stay in bed. She says that for the past 4 or 5 years, she has bad days often when she stays in bed all day, and although she lives with her 5 children, ages 5, 5, 12, 18 and 21, she says her grandmother and older children help take care of the younger ones. She admits she prepares meals for her children, but she says she has no social activities or friends, and she cannot concentrate for more than an hour. Despite her alleged lack of concentration, she also admits watching television throughout the day. She claims she has crying spells, and she takes Prozac, Klonopin and Zyprexa to help her deal with her depression, as well as panic attacks, which she says still occur, [about] once every month or two. [Plaintiff] has a number of suicide attempts in her past and said she was last hospitalized for her mental impairments in January 2015. She says that she suffers from post-traumatic stress disorder following a rape in California in 2009.
[Plaintiff] also testified that she has a herniated disc in her back, as well as carpal tunnel in her bilateral wrists, and she has undergone past surgeries on her left foot, which still aches her when it is cold and wet outside. On a good day, when [Plaintiff] is not suicidal, [Plaintiff] says she gets out of bed and showers and can play on the bed with her children or watch television with them. Despite her alleged back pain and carpal tunnel syndrome, [Plaintiff] testified that she can lift 40-45 pounds, and she can pick up her 38 pound son.

R. at 22-23; see R. at 41-63.

         C.VE ...


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