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Holmes v. Berryhill

United States District Court, D. Maryland, Southern Division

March 22, 2018

GERALD HOLMES, 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 Gerald Holmes 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 corrected Motion for Summary Judgment and alternative motion for remand (ECF No. 18) and Defendant's Motion for Summary Judgment (ECF No. 20).[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. 18) is GRANTED.

         I

         Background

         Plaintiff was born in 1967, has an eleventh-grade education, and previously worked as a groundskeeper, preparation cook, cook, and carpenter helper. R. at 46, 48, 73. Plaintiff protectively filed applications for DIB and for SSI on September 7, 2012, alleging disability beginning on February 1, 2008 (later amended to January 25, 2013), due to arthritis and knee and back injury. R. at 26, 240. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 81-119, 122-26. On March 3, 2015, ALJ L. Rogall held a hearing in Washington, D.C., at which Plaintiff and a vocational expert (“VE”) testified. R. at 38-80. On June 2, 2015, the ALJ issued a decision finding Plaintiff not disabled from the amended alleged onset date of disability of January 25, 2013, through the date of the decision. R. at 23-37. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on September 6, 2016. R. at 1-10. 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 November 8, 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.

         II

         Summary of Evidence

         A. Plaintiff's Testimony

         The ALJ reviewed Plaintiff's testimony in her decision:

         In a Function Report dated June 4, 2013, [Plaintiff] alleged severe pain and loss of function due to ankle fracture in February 2013. He denied problems with personal care, but endorsed problems with lifting, squatting, bending, standing, walking, climbing stairs, and completing tasks. At the hearing, [Plaintiff] additionally testified that his bilateral knee pain limits his activities and ability to work. He requires the use of a cane to maintain balance while walking, and sometimes has difficulty sleeping due to pain. [Plaintiff] testified that he may need surgery on his knees, as well as his left ankle.

         R. at 29 (citation omitted); see R. at 46-71; 257-64.

         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 (with the exception of never operating foot controls bilaterally) could not perform Plaintiff's past relevant work but could perform the unskilled, sedentary jobs of machine tender, inspector, or bench worker.[3] R. at 74-75. An individual would not be employable if he could only work six hours a day as a result of his medication and impairments. R. at 76. A person could not perform any substantial gainful activity if absent from work two or more times a month. R. at 76. A person “off ...


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