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Bicking v. Berryhill

United States District Court, D. Maryland, Southern Division

March 19, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]


          Thomas M. DiGirolamo, United States Magistrate Judge

         Plaintiff 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).[2] 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.



         Plaintiff 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 (2000).

         On 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.


         Summary of Evidence

         A. Plaintiff's Testimony

         The ALJ 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 himself.
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.

         B. VE Testimony

         The VE 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.[3] R. at 68-69. A person “off task” more than 20% of the workday because of memory lapses or confusion could not perform ...

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