United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION GRANTING PLAINTIFF'S
ALTERNATIVE MOTION FOR REMAND
M. DiGirolamo, United States Magistrate Judge
James Bicking 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 his applications for
disability insurance benefits (“DIB”) and for
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. 15) and Defendant's Motion for
Summary Judgment (ECF No. 16). Plaintiff contends that the
administrative record does not contain substantial evidence
to support the Commissioner's decision that he is not
disabled. No. hearing is necessary. L.R. 105.6. For the
reasons that follow, Plaintiff's alternative motion for
remand (ECF No. 15) is GRANTED.
was born in 1962, has a high-school education, and previously
worked as a delivery driver. R. at 37. Plaintiff protectively
filed applications for DIB and for SSI on March 9, 2012,
alleging disability beginning on January 1, 2010 (later
amended to June 7, 2010), due to lower back problems, a torn
bicep, and depression. R. at 28, 197-214, 224, 248. The
Commissioner denied Plaintiff's applications initially
and again on reconsideration, so Plaintiff requested a
hearing before an Administrative Law Judge
(“ALJ”). R. at 134-44, 147-52. On February 20,
2015, ALJ Alfred J. Costanzo held a hearing at which
Plaintiff and a vocational expert (“VE”)
testified. R. at 45-73. On March 11, 2015, the ALJ issued a
decision finding Plaintiff not disabled from the amended
alleged onset date of disability of June 7, 2010, through the
date of the decision. R. at 25-44. Plaintiff sought review of
this decision by the Appeals Council, which denied
Plaintiff's request for review on August 17, 2016. R. at
1-6, 10. 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
October 17, 2016, Plaintiff filed a complaint in this Court
seeking review of the Commissioner's decision. Upon the
parties' consent, this case was transferred to a United
States Magistrate Judge for final disposition and entry of
judgment. The case subsequently was reassigned to the
undersigned. The parties have briefed the issues, and the
matter is now fully submitted.
reviewed Plaintiff's testimony in his decision:
At the hearing, [Plaintiff] testified that he stopped his
work as a delivery driver in June 2010, because he started to
experience confusion and forget his stops. He also has a
history of a torn left bicep and a 2005 back surgery. He had
a shunt placed in 2013 to treat a hydrocephalus, and it
initially helped his confusion. However, he currently
continues to feel confusion, and it varies from day to day.
He has nine to ten bad days per month, during which he feels
dizzy and cannot do much. On bad days, he also has difficulty
with climbing steps and problems with balance while walking.
He lies down, so that he does not fall. He has not driven in
over a month. His confusion has affected other daily
activities, such as cooking, shopping, taking his daughter to
the playground, etc. He also has difficulty sleeping, and
only sleeps about four to five hours per night. He has
trouble remembering things and needs to write notes to
He continues to have abdominal pain since his shunt surgery,
and is going to be undergoing more testing. During the day,
he gets up if feeling good, and empties the dishwasher. He
attempts to do some light housework, but needs breaks to stop
and rest. His brother assists him with many things, and gives
him reminders. He also has other people calling or stopping
by to check on him. He is tired and confused often. He
started feeling the fatigue even before he stopped working.
R. at 33-34; see R. at 48-66.
testified that a hypothetical individual with Plaintiff's
same age, education, and work experience with the residual
functional capacity (“RFC”) outlined below in
Part III could not perform Plaintiff's past relevant work
but could perform the unskilled, light jobs of laundry folder
or clothes sorter and the sedentary jobs of officer helper or
data entry keyer. R. at 68-69. A person “off
task” more than 20% of the workday because of memory
lapses or confusion could not perform ...