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Kane v. Berryhill

United States District Court, D. Maryland, Southern Division

September 25, 2018

JASON KANE, 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 Jason Kane 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. 17) and Defendant's Motion for Summary Judgment (ECF No. 21).[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. 17) is GRANTED.

         I Background

         Born in 1977, Plaintiff has a high-school education and previously worked as an electrician helper. R. at 62-63. Plaintiff filed applications for DIB on April 1, 2013, and for SSI on March 31, 2013, alleging disability beginning on January 1, 1996 (later amended to June 2, 2011), due to bipolar disorder, schizoaffective disorder, and attention-deficit hyperactivity disorder. R. at 51, 238-48, 273, 292. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 114-71, 174-81. On November 24, 2015, ALJ F.H. Ayer held a hearing in Washington, D.C., where Plaintiff, his sister, and a vocational expert (“VE”) testified. R. at 72-113. On December 23, 2015, the ALJ issued a decision finding Plaintiff not disabled from June 2, 2011, through the date of the decision. R. at 46-71. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on February 7, 2017. R. at 1-45, 356-66. 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 April 9, 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 then 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 his decision:

In [Plaintiff's] application for disability benefits, he alleged the following conditions limit his ability to work[:] bipolar disorder, schizoaffective disorder, and attention deficit hyperactivity disorder. At the hearing, [Plaintiff] has alleged suffering from a mental disorder, including symptoms of paranoia. He did not think he could work on a fulltime basis because of his racing thoughts, auditory hallucinations, cries a lot, is tired all the time, and constantly talks to himself. He also testified his medications put his head in a fog and he has difficulty concentrating and becomes distracted. He is not motivated to perform household chores and showers once or twice a month. [Plaintiff] cannot tolerate being around people and is very confrontational with other people, especially when at work.

R. at 58; see R. at 75-79, 80, 81, 87-106.

         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 laundry worker, vehicle cleaner, or night cleaner.[3] R. at 82-83. An individual off task more than 10% of the time or who would miss more than one day per month at work on a regular basis would be unable to maintain full-time work, however. R. at 83-84. There would be no work available to an individual unable to perform simple, one- to four-step, routine, repetitive tasks. R. at 84-85. With the exception of his testimony regarding productivity, absenteeism, and four-step tasks, the VE's testimony was consistent with the Dictionary of Occupational Titles[4] (the “DOT”). R. at 84-85.

         III Summary of ALJ's Decision

         On December 23, 2015, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the amended alleged onset date of disability of June 2, 2011; 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 laundry worker, vehicle cleaner, or night cleaner. R. at 54-64. The ALJ thus found that he was not disabled from June 2, 2011, through the date of the decision. R. at 64.

         In so finding, the ALJ found that, with regard to concentration, persistence, or pace, Plaintiff had moderate difficulties. R. at 56.

At the hearing, [Plaintiff] testified he has racing thoughts, difficulty concentrating, is easily distracted, and is tired all the time[;] medication side effects may have contributed to these symptoms. He also testified to extreme paranoia, also documented in his medical records from 2013, but in April, these symptoms were far less intense. His most recent medical records in evidence from October indicate his concentration, attention, and focus were decreased. Both State Agency Medical Consultants believed [Plaintiff] had moderate difficulties maintaining concentration, ...

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