United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
M. DiGirolamo, United States Magistrate Judge
Alisha D. 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 and Supplemental Security
Income 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. 13),
Defendant’s Motion for Summary Judgment (ECF No. 16),
and Plaintiff’s “Reply Brief” (ECF No.
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. 13) is GRANTED.
March 13, 2017, Administrative Law Judge (“ALJ”)
Thomas Mercer Ray held a hearing in Washington, D.C., where
Plaintiff and a vocational expert (“VE”)
testified. R. at 35-81. Plaintiff was “represented by
Andrew S. Youngman, a non-attorney representative, who was
not present at the hearing. However, Susan Smith Webb,
another appointed representative and member of the same firm,
was present at the hearing.” R. at 16. Following the
hearing, the ALJ held the record open for an additional two
weeks for the submission of additional evidence. R. at 16. On
March 29, 2017, Plaintiff submitted a post-hearing memorandum
objecting to the VE’s testimony. R. at 286-335. On June
16, 2017, the ALJ overruled Plaintiff’s objections and
found that Plaintiff was not disabled from her alleged onset
date of disability of November 3, 2013, through the date of
the ALJ’s decision. R. at 13-31.
finding, the ALJ found that, among other things, Plaintiff
had moderate limitation in concentrating, persisting, or
maintaining pace. R. at 21.
[T]he record reveals that [Plaintiff] has been diagnosed with
depression and anxiety. [Plaintiff] alleged she experiences
panic attacks and has issues with concentration. Yet, the
record often shows [Plaintiff] to have a good mental status
examination with good judgment and insight. Furthermore, in
her function report, [Plaintiff] stated that she is able to
prepare meals, can use public transportation, and can go
shopping. At the hearing, [Plaintiff] was able to answer
questions and follow along without issue. All of these
activities requires [sic] some level of concentration.
Therefore, the undersigned finds only a moderate limitation
in this area.
R. at 21 (record citations omitted).
then found that Plaintiff had the residual functional
to perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except [Plaintiff] can push, pull, lift, and
carry 10 pounds occasionally, less than 10 pounds frequently;
can stand, walk, or sit for a total of 6 hours in an 8-hour
workday; can only occasionally use hand controls; can
frequently climb ramps and stairs; can never climb ladders,
ropes, or scaffolds; can frequently balance, stoop, kneel,
and crouch; can never crawl; can occasionally use dominant
hand and arm for handling, feeling, and fingering; can
frequently use non-dominant hand for handling, feeling, and
fingering; no exposure to hazards such as moving mechanical
parts and unprotected heights; cannot operate a motor
vehicle; can frequently understand, remember, and carry out
instructions concerning simple tasks; can occasionally
understand, remember, and carry out instructions concerning
detailed tasks; retains the ability to interact with
supervisors and co-workers occasionally, but can never
interact with the public; can make simple work related
decisions frequently; and can make detailed work related
R. at 22. In light of this RFC and the VE’s
testimony, the ALJ found that, although she could not perform
her past relevant work as an administrative assistant,
merchandise clerk, and sales attendant, Plaintiff could
perform other work, such as a surveillance system monitor. R
to the VE, however, an individual absent from work as few as
two days per month on an unscheduled basis could not perform
the occupation of surveillance system monitor. R. at 77.
also testified that no unskilled work would be available to
an individual who would be productive only 80% of the time in
an eight-hour workday. R. at 78. The ALJ ultimately found
that Plaintiff was not disabled from November 3, 2013,
through June 16, 2017. R. at 27.
the Appeals Council denied Plaintiff’s request for
review, Plaintiff filed on May 31, 2018, 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.
Disability Determinations and Burden of
Social Security Act defines a disability as the inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A
claimant has a disability when the claimant is “not
only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists . . ...