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Alisha D. v. Saul

United States District Court, D. Maryland, Southern Division

September 24, 2019

ALISHA D., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.[1]

          MEMORANDUM OPINION GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR REMAND

          Thomas M. DiGirolamo, United States Magistrate Judge

         Plaintiff 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. 17).[2] 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.

         I Background

         On 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.

         In so 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).

         The ALJ then found that Plaintiff had the residual functional capacity (“RFC”)

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 decisions occasionally.

R. at 22.[3] 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 at 25-26.

         According 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.

         The VE 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.

         After 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.

         II Disability Determinations and Burden of Proof

          The 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 . . ...


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