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Temelso v. Berryhill

United States District Court, D. Maryland, Southern Division

June 22, 2018

HIWET TEMELSO, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.[1]

          MEMORANDUM OPINION GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND

          Thomas M. DiGirolamo United States Magistrate Judge

         Plaintiff Hiwet Temelso 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 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. 14) and Defendant's Motion for Summary Judgment (ECF No. 15).[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. 14) is GRANTED.

         I

         Background

         Born in 1972, Plaintiff has a high-school education and previously worked as a machine operator, first-aid assistant for a nursing home, and cashier. R. at 487. Plaintiff protectively filed applications for DIB and for SSI on May 10, 2012, alleging disability beginning on September 24, 2010, due to her back. R. at 168-81, 191, 195. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 51-103, 105-13. ALJ Eugene Bond held a hearing on March 20, 2014 (R. at 33-50), and issued an unfavorable decision on May 7, 2014 (R. at 13-32). On June 30, 2015, the Appeals Council denied Plaintiff's request for review. R. at 1-4, 12. Plaintiff sought judicial review in this Court. Temelso v. Colvin, Civil No. 15-2591-SAG (D. Md. filed Sept. 2, 2015). Upon the Commissioner's consent, the Court remanded the case on April 12, 2016. R. at 560-63. The Appeals Council vacated the ALJ's decision and remanded the case on April 22, 2016. R. at 564-69.

         On September 15, 2016, ALJ Bond held a supplemental hearing in Washington, D.C., at which Plaintiff and a vocational expert (“VE”) testified. R. at 495-518. On November 2, 2016, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of September 24, 2010, through the date of the decision. R. at 470-94. The Appeals Council apparently did not assume jurisdiction, so the ALJ's decision became the final decision of the Commissioner after remand under 20 C.F.R. §§ 404.984 and 416.1484.

         On February 25, 2017, 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 August 20, 2012, a state agency medical consultant, Ann L. Williams, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”). R. at 56-58, 66-68. Dr. Williams opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten 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 56-57, 66-67. Dr. Williams also opined that Plaintiff “[m]ust periodically alternate sitting and standing to relieve pain and discomfort.” R. at 56, 66. Plaintiff occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 57, 67. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 57, 67.

         On October 2, 2012, another state agency consultant, Earl Nicholas, M.D., again assessed Plaintiff's physical RFC. R. at 78-80, 89-91. Dr. Nicholas also opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten 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 79, 90. Dr. Nicholas also opined that Plaintiff “[m]ust periodically alternate sitting and standing to relieve pain and discomfort.” R. at 79, 90. Plaintiff occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 79, 90. Like Dr. Williams, Dr. Nicholas opined that Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 80, 91.

         B. Hearing Testimony

         In his decision, the ALJ stated that Plaintiff “alleges her impairments have caused her to have decreased physical limitations, which have allegedly resulted in her inability to engage in work-related activities.” R. at 478. Further, the VE testified that a hypothetical individual with Plaintiff's same age, education, and work experience and with the RFC outlined below in Part III could not perform Plaintiff's past relevant work but could perform the unskilled, light[3] jobs of router, office helper, or ticket taker. R. at 515-17. With the exception of her testimony regarding a sit-stand option, the VE's testimony was consistent with the Dictionary of Occupational Titles.[4] R. at 516-17.

         III

         Summary of ALJ's Decision

         On November 2, 2016, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity from the alleged onset date of disability of September 24, 2010; and (2) had an impairment or a combination of impairments considered to be “severe” on the basis of the requirements in the Code of Federal Regulations; but (3) did not have an impairment or a combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P, app. 1; and (4) was unable to perform her past relevant work; but (5) could perform other work in the national economy, such as a ...


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