United States District Court, D. Maryland, Southern Division
CLAUDE A. SWANSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION GRANTING PLAINTIFF'S
ALTERNATIVE MOTION FOR REMAND
M. DiGirolamo United States Magistrate Judge
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). 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.
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.
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.
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).
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.
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.
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. 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. R. at 106-07.
of ALJ's Decision
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 ...