United States District Court, D. Maryland
COMMISSIONER, SOCIAL SECURITY
REPORT AND RECOMMENDATIONS
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
to Standing Order 2014-01, the above-referenced case has been
referred to me for review of the parties' dispositive
motions and to make recommendations pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 301.5(b)(ix). Plaintiff,
Michelle P., who is appearing pro se, petitioned
this Court to review the Social Security Administration's
(“SSA's”) final decision to deny her claims
for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). ECF 1.
Plaintiff did not file a dispositive motion, but I have
considered the SSA's Motion for Summary Judgment, ECF
I have also considered the arguments made by Plaintiff
following her first administrative hearing, and by
Plaintiff's former counsel at her second administrative
hearing. Tr. 447-48, 1810-11.
Court must uphold the SSA's decision if it is supported
by substantial evidence and if proper legal standards were
employed. 42 U.S.C. §§ 405(g), 1383(c)(3);
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996);
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2018). For the reasons set forth below, I
recommend that the SSA's motion be denied, the decision
of the SSA be reversed in part, and the case be remanded to
the SSA for further consideration pursuant to sentence four
of 42 U.S.C. § 405(g). In so recommending, I express no
opinion as to whether the ALJ's ultimate conclusion that
Plaintiff is not entitled to benefits is correct.
filed her applications for DIB and SSI on December 28, 2012,
alleging a disability onset date of July 1, 2011. Tr. 317-27.
Her applications were denied initially and on
reconsideration. Tr. 204-09, 212-17. A hearing was held on
September 10, 2015, before an Administrative Law Judge
(“ALJ”). Tr. 1834-51. After the hearing, the ALJ
issued an opinion denying benefits. Tr. 182-92. The Appeals
Council (“AC”) granted Plaintiff's request
for review, vacated the ALJ decision, and remanded the case
back to the ALJ. Tr. 202-203. A second ALJ hearing, at which
Plaintiff was represented by counsel, was held on March 3,
2017. Tr. 1804-1833. After the hearing, the ALJ issued
another opinion denying benefits. Tr. 79-100. This time, the
AC denied review, making the ALJ's second decision the
final, reviewable decision of the SSA. Tr. 1-6.
that Plaintiff presented evidence of a mental impairment as
of October 29, 2013, the ALJ divided his analysis of
Plaintiff's claim before and after that date. The ALJ
found that, from Plaintiff's alleged onset date through
October 29, 2013, Plaintiff suffered from the severe
impairments of: obesity, diabetes mellitus, allergic
rhinitis, allergic sinusitis, hypertension with retinopathy,
obstructive sleep apnea, bilateral carpal tunnel syndrome
with wrist tendonitis status-post right carpal tunnel release
in July 2011, neuropathy; right humerus enchondroma, possible
low-grade chondrosarcoma, tendonitis, bursitis, status-post
curettage and bone grafting in May 2013, new injury and
possible fracture in July 2013; thyroid nodules,
hypothyroidism, nontoxic multinodular goiter with compressive
symptoms, status-post thyroidectomy in March 2014;
gastroesophageal reflux disease, LERD, esophagitis,
duodenitis; lumbar facet syndrome, degenerative disc disease,
degenerative joint disease; iron deficiency anemia, left knee
degenerative joint disease; left shoulder bursitis,
tenosynovitis, tendonitis; asthma; congestive heart
failure/diastolic heart failure, diastolic dysfunction,
angina pectoris, coronary artery disease, hypertensive heart
disease, and palpitations; and cervical spine degenerative
disc disease. Tr. 83. Despite these impairments, the ALJ
determined that during that time period Plaintiff retained
the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant could occasionally lift and/or
carry twenty pounds, and frequently lift and/or carry ten
pounds, stand and/or walk about six hours in an eight-hour
workday, sit for a total of six hours in an eight-hour
workday, frequently handle, finger, and feel bilaterally,
occasionally climb ramps and stairs, balance, stoop, kneel,
crouch and crawl, and never climb ladders, ropes, and
scaffolds. The claimant must avoid concentrated exposure to
extreme cold, fumes, odors, dusts, gases, poor ventilation,
etc., and hazards (machinery, heights, etc.).
Tr. 87. During the time period from October 29, 2013, through
the date of the decision, the ALJ found that Plaintiff
additionally suffered from the severe impairment of “a
mental impairment variously diagnosed as anxiety, anxiety
disorder, depression, major depressive disorder, anxiety
disorder, NOS, anxiety state, and moderate to severe major
depressive disorder.” Tr. 83-84. The ALJ found that
after October 29, 2013, Plaintiff retained the above RFC with
the additional limitations that Plaintiff:
required the ability to periodically alternate between
sitting and standing at irregular intervals, but with the
understanding that she would still be capable of remaining on
task sufficiently to maintain satisfactory productivity
levels. She is further limited to performing simple, one to
four step, routine, repetitive tasks in a low stress work
environment, defined as requiring only occasional decision
making and occasional changes in the work setting, where
there would only be occasional contact with co-workers and
supervisors, and no contact with the general public, and
which would not require a fast pace or production quotas such
as would customarily be found on an assembly line.
Tr. 93. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that through
October 28, 2013, Plaintiff could perform her past relevant
work, and that after October 28, 2013, she could perform
other jobs existing in significant numbers in the national
economy. Tr. 96-99. Accordingly, the ALJ concluded that
Plaintiff was not disabled. Tr. 99-100.
carefully reviewed the ALJ's opinion and the entire
record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753
(E.D. Tex. 2005) (mapping an analytical framework for
judicial review of a pro se action challenging an
adverse administrative decision, including: (1) examining
whether the SSA's decision generally comports with
regulations, (2) reviewing the ALJ's critical findings
for compliance with the law, and (3) determining from the
evidentiary record whether substantial evidence supports the
ALJ's findings). For the reasons described below, while
substantial evidence supports some portions of the ALJ's
decision, the analysis is otherwise deficient. Accordingly, I
one, the ALJ found that Plaintiff engaged in substantial
gainful activity from January 1, 2013, through December 31,
2013, but that her other work during the relevant time period
did not amount to substantial gainful activity. Tr. 82-83. At
step two, the ALJ found the severe impairments listed above,
and also found a number of other impairments were nonsevere.
Tr. 83-84. At step three, the ALJ determined that
Plaintiff's impairments did not meet, or medically equal,
the criteria of any of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (2017). Tr. 84-87. The ALJ
specifically considered Listings 1.02, 1.04, 3.02, 3.03,
4.04, 11.14, 12.04, and 12.06. Id. The ALJ reviewed
the criteria of each listing, and discussed which criteria
were absent from the medical evidence. Id. In
determining Plaintiff's RFC assessment for use in steps
four and five, the ALJ summarized Plaintiff's allegations
from her testimony and function reports regarding her
inability to perform work activity. Tr. 88-89. The ALJ then
engaged in an extensive review of the medical records. Tr.
significant flaw in the decision lies in the ALJ's
consideration of Plaintiff's physical limitations caused
by her shoulder impairments. The ALJ discussed
Plaintiff's left shoulder history, including “a lot
of guarding when trying to move her left shoulder . . .
[with] difficulty reaching behind her head or behind her
back, ” Tr. 90, and an MRI showing bursitis/tendonitis,
Tr. 91. The ALJ concluded that discussion with the claim that
“claimant's reports of shoulder pain and
dysfunction area [sic] treated conservatively, including
rest, injections, and simple anti-inflammatory.” Tr.
91. The ALJ then opined that Plaintiff's various
impairments, including her shoulder pain, “warrant
manipulative limitations.” Tr. 91. However, he
immediately followed that conclusion with a discussion of
Plaintiff's right shoulder treatment history, explaining
that “[t]he objective medical examinations in the
record show reduced range of motion affecting the right upper
extremity . . . and her physical examinations show more than
a minimal degree of restriction in active and passive range
of motion affecting her upper right extremity.” Tr.
it is unclear from the ALJ's opinion if he believed
Plaintiff required manipulative limitations for one or both
of her shoulders, the ALJ failed to include limitations in
the RFC that would account for her limited range of motion,
such as reaching limitations, in either shoulder.
Tr. 87, 93. The State agency medical consultants at the
initial and reconsideration levels, whose opinions the ALJ
found “generally persuasive, ” Tr. 92-93, both
indicated that Plaintiff had limitations in reaching. Tr.
131, 152. Indeed, in his first decision in this case, the ALJ
himself indicated in Plaintiff's RFC that she “must
avoid overhead reaching.” Tr. 186. Of course, the ALJ
was not bound by the opinions of the State consultants or his
previous decision, but the ALJ offered no explanation for
deviating from those prior findings.
function of this Court is not to review Plaintiff's
claims de novo or to reweigh the evidence of record.
See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986) (citing 42 U.S.C. § 405(g) and Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather,
this Court is to determine whether, upon review of the whole
record, the SSA's decision is supported by substantial
evidence and a proper application of the law. See 42
U.S.C. § 405(g); see also Haysv.
Sullivan,907 F.2d 1453, 1456 (4th Cir. 1990).
Considering all the evidence the ALJ discussed that would
support limitations in ...