Bostrom v. Colvin

• Decision Date: 29 September 2015
• Docket Number: Civil No. TMD 14–1771
• Citation: 134 F.Supp.3d 952
• Parties: Timothy Scott Bostrom, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Maryland

134 F.Supp.3d 952

Timothy Scott Bostrom, Plaintiff,

v.Carolyn W. Colvin, ActingCommissioner of Social Security, Defendant.

Civil No. TMD 14–1771

United States District Court, D. Maryland, Southern Division.

Signed September 29, 2015

Marcia Ellen Anderson, Law Office of Marcia E. Anderson, LLC, Mount Airy, MD, for Plaintiff.

Aparna V. Srinivasan, Social Security Administration, Baltimore, MD, for Defendant.

MEMORANDUM OPINION GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND

Thomas M. DiGirolamo, United States Magistrate Judge

Timothy Scott Bostrom("Plaintiff") seeks judicial review under 42 U.S.C. §§ 405(g)and1383(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 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. 13), Defendant's Motion for Summary Judgment(ECF No. 16), and Plaintiff's "Reply Memorandum in Support of Plaintiff's Motion for Summary Judgment"(ECF No. 21).¹Plaintiff 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. 13) is GRANTED.

IBackground

Plaintiff was born in 1967, has an eleventh-grade education, and previously worked as a stone mason.R. at 217, 221.Plaintiff protectively filed an application for DIB on June 8, 2011, and for SSI on May 24, 2011, alleging disability beginning on May 7, 2011, due to partial paralysis due to stroke, shortness of breath, and speech impediment.R. at 23, 193–203, 217, 220.The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge ("ALJ").R. at 65–120, 127–42.On January 3, 2013, ALJ C.J. Sturek held a hearing in Washington, D.C., at which Plaintiff and a vocational expert ("VE") testified.R. at 37–64.On January 18, 2013, the ALJ issued a decision finding Plaintiff not disabled since the alleged onset date of disability of May 7, 2011, through the date of the decision.R. at 20–36.Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on April 11, 2014.R. at 1–7.The ALJ's decision thus became the final decision of the Commissioner.See20 C.F.R. §§ 404.981,416.1481;see alsoSims v. Apfel,530 U.S. 103, 106–07, 120 S.Ct. 2080, 2083, 147 L.Ed.2d 80(2000).

On June 2, 2014, 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.

IISummary of Evidence

A.State Agency Medical Consultants

On August 15, 2011, a state agency consultant, Paul Frye, M.D., assessed Plaintiff's physical residual functional capacity ("RFC").R. at 72–74, 82–84.Dr. Frye opined that Plaintiff could (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) push and/or pull occasionally with the right upper extremity.R. at 72, 82.Plaintiff occasionally could balance and frequently could stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds).R. at 73, 83.Although he had no visual, communicative, or environmental limitations, Plaintiff's reaching with the right upper extremity was limited in front, laterally, and overhead.R. at 73–74, 83–84.

On August 19, 2011, Wan Ahmad, Ph.D., also a state agency consultant, opined that Plaintiff had no established mental medically determinable impairments.R. at 71, 81.

On January 30, 2012, another state agency medical consultant, John Sadler, M.D., again assessed Plaintiff's physical RFC. R. at 95–98, 107–10.Dr. Sadler opined that Plaintiff could (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) push and/or pull occasionally with the right upper extremity.R. at 96, 108.Plaintiff occasionally could balance and crawl and frequently could stoop, kneel, crouch, and climb ramps and stairs (but never ladders, ropes, or scaffolds).R. at 96, 108.Although he had no visual or communicative limitations, Plaintiff's reaching with the right upper extremity was limited in front, laterally, and overhead.R. at 97, 109.His fingering or fine manipulation with his left hand was limited because of difficulty extending the first through third digits.R. at 97, 109.Plaintiff was to avoid even moderate exposure to heights and hazards.R. at 97–98, 109–10.

B. Rick Parente, Ph.D.

On November 18, 2011, Rick Parente, Ph.D., a licensed psychologist, evaluated Plaintiff"to assess his competencies and to make suggestions for training or placement."R. at 369;seeR. at 369–87.The ALJ reviewed Dr. Parente's findings in his decision:

Regarding [Plaintiff's] mental impairment, he was diagnosed in November 2011 as having a cognitive disorder [R. at 369].He reported no trouble with communication or interpersonal skills.He took care of his personal needs [R. at 370].On testing, his intellectual functioning was average, but he had mild to moderate memory problems [R. at 372, 373].He was easily distracted, and had difficulty with planning, organizing, prioritizing, and functioning outside of a structured routine [R. at 376].His functional levels were improving with physical therapy and occupational therapy [R. at 377].

As for the opinion evidence, an examining psychologist, Dr. Rick Parente, stated on November 18, 2011, that [Plaintiff] may be able to work in an office setting, doing filing and sorting.

He could possibly work doing telephone solicitation or sales.He may be able to learn certain computer skills, such as operating spreadsheets and, perhaps, learning to do bookkeeping and accounting.He might also be able to do other types of office-related tasks, so long as he could learn to use a voice-activated computer.Although he can no longer work as a stone mason, he may still be able to do inspection work on job sites [R. at 377].

R. at 29–30.

C.Hearing Testimony

1.Plaintiff's Testimony

The ALJ reviewed in his decision Plaintiff's allegations:

[Plaintiff] alleges residuals of stroke —including left-sided weakness and muscle spasms and a cognitive disorder.He states that these impairments result in inability to use his left hand, shoulder pain, reduced strength and coordination for lifting and carrying, reduced tolerance for walking, lack of coordination on stair climbing, and being able to pay attention for only ½ to 1 hour [R. at 268–75].

R. at 28.Plaintiff also testified that, although he prepared meals, he could not chop food.R. at 53.He testified that he cleaned a "little bit with anything [he] can do with [his] right hand."R. at 53.Plaintiff testified that he had difficulty unloading laundry from the washer because "everything is done one-handed" and everything he did took "two to three times, four times as long as it used to."R. at 54.He could not recall doing "any real shopping" since his stroke.R. at 54.He had problems dressing, bathing, and using a knife to cut food.R. at 55.

2.VE Testimony

The VE testified that, if the ALJ credited Plaintiff's testimony as fully credible, there would be no full-time work that he could perform on the basis of Plaintiff's testimony regarding the use of his hands.R. at 63.

IIISummary of ALJ's Decision

On January 18, 2013, the ALJ found that Plaintiff(1) had not engaged in substantial gainful activity since the alleged onset date of disability of May 7, 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 surveillance monitor or laminating machine operator.R. at 25–32.The ALJ thus found that he was not disabled from May 7, 2011, through the date of the decision.R. at 32.

In so finding, the ALJ found that Plaintiff had the RFC

to perform light work, as defined in 20 CFR 404.1567(b) and 416.967(b), except, using the non-dominant upper extremity, he can lift no more than 5 pounds frequently and 10 pounds occasionally.He has the ability to stand and walk 2 hours out of an 8 hour day, but 20 minutes at a time.The ability to sit would only be limited by the requirement that it be 2 hours at a time.There is a limitation with pushing or pulling with either upper extremity, as well as the left lower extremity, such that any force required above 10 pounds would preclude the activity.He could not perform work involving ladders, ropes, or scaffolds, as well as crawling.Other postural activities could be performed occasionally, including climbing stairs or ramps, balancing, bending or stooping, kneeling, and crouching or squatting.There would be a limitation with reaching overhead with either upper extremity no more than occasionally.With regard to other functions of the upper extremities, he lacks bimanual dexterity, and can only use the dominant arm and hand for most activities.He would have to avoid concentrated exposure to cold temperatures, vibration, and hazards such as moving

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