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Swanson v. Berryhill

United States District Court, D. Maryland, Southern Division

September 19, 2018

CLAUDE A. SWANSON, 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 Claude A. Swanson 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.

         I

         Background

         Born in 1962, Plaintiff has an associate's degree and past relevant work as a general office clerk, collections clerk, and insurance clerk. R. at 30, 43. Plaintiff protectively filed applications for DIB and for SSI on October 22, 2010, alleging disability beginning on September 2, 2010, due to anxiety and panic disorder. R. at 428-38, 503, 506. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 109-26, 175-87, 191-92. On July 26, 2012, ALJ Eugene Bond held a hearing (R. at 40-50) and issued an unfavorable decision on September 5, 2012 (R. at 127-42). On November 4, 2013, the Appeals Council granted Plaintiff's request for review and remanded to the ALJ. R. at 143-48, 575-79.

         On September 24, 2014, the ALJ held a supplemental hearing (R. at 51-71) and issued an unfavorable decision on January 6, 2015 (R. at 149-69). On February 18, 2016, the Appeals Council granted Plaintiff's request for review and remanded the matter to another ALJ. R. at 170-74, 331.

         On September 13, 2016, ALJ Francine L. Applewhite held a supplemental hearing in Washington, D.C., where Plaintiff and a vocational expert (“VE”) testified. R. at 72-108. On November 10, 2016, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of September 2, 2010, through the date of the decision. R. at 17-39. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on May 31, 2017. R. at 1-6, 425-26. 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 August 3, 2017, 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 this case, [Plaintiff] reported full disability based on his impairments. He testified to good and bad days. He indicated that on a good day, his anxiety is manageable. However, he cautioned that on a bad day, he experiences significant psychological symptoms, including anxiety, panic, and feelings of hopelessness. He noted difficulty looking at people directly in the face, reading, and staying calm. Overall, he reported that he has trouble paying attention, completing tasks, and remembering. He wrote that he could pay attention only for a few moments before his thoughts start to wander or race. He stated that sometimes, he has trouble following spoken instructions. He added that he does not participate in as many social activities, though he has no difficulty getting along with authority figures. In all, he contended that he could not perform full-time work on a competitive basis due to his impairments[.]

R. at 26; see R. at 78-101.

         B. VE Testimony

         The VE testified that a hypothetical individual with the same age, education, and work experience as Plaintiff and with the residual functional capacity (“RFC”) outlined below in Part III could not perform Plaintiff's past work but could perform the unskilled jobs of marker, housekeeping cleaner, or addresser.[3] R. at 103-06. A person able to remain on task 90% of an eight-hour workday could perform these jobs. R. at 106. A person consistently off task more than 10% of a workday would be unable to sustain competitive employment, however. R. at 107. With the exception of his testimony regarding time spent off task, the VE's testimony was consistent with the Dictionary of Occupational Titles.[4] R. at 106-07.

         III

         Summary of ALJ's Decision

         On November 10, 2016, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of disability of September 2, 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 his past relevant work; but (5) could perform other work in the national economy, such as a ...


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