McGuinness v. Colvin

• Decision Date: 29 September 2014
• Docket Number: Civil No. TMD 13-1573
• Parties: LOWELL McGUINNESS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Maryland

LOWELL McGUINNESS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Civil No. TMD 13-1573

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

September 29, 2014

MEMORANDUM OPINION GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND

Lowell McGuinness ("Plaintiff") 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 Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment or Alternative Motion for Remand (ECF No. 15) and Defendant's Motion for Summary Judgment (ECF No. 17).¹ 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. 15) is GRANTED.

IBackground

Plaintiff was born in 1964, has an eighth- or ninth-grade education, and previously worked as a laborer. R. at 58, 80, 205. Plaintiff applied protectively for DIB and SSI on May 22, 2009, alleging disability beginning on January 1, 2004, due to endocarditis, hepatitis C, anemia, intravenous drug abuse, pneumonia, and an inability to read and write well. R. at 175-82, 196, 201. The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 103-06, 108-15, 119-24. On June 17, 2011, ALJ Frances Kuperman held a hearing in Baltimore, Maryland, at which Plaintiff and a vocational expert ("VE") testified. R. at 68-102. On March 28, 2012, the ALJ issued a decision finding Plaintiff not disabled since the alleged onset date of disability of January 1, 2004. R. at 50-67. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on May 3, 2013. R. at 1-6, 24-47. 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 May 31, 2013, 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 September 17, 2009, L. Robbins, M.D., a state agency medical consultant, assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 573-80. Dr. Robbins 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) perform unlimited pushing and/or pulling. R. at 574. Plaintiff occasionally could climb, balance, stoop, kneel, crouch, and crawl. R. at 575. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 576-77. Dr. Robbins found that Plaintiff's "statements regarding his limitations are judged partially credible. The medical evidence does not suggest he has difficulty getting around, OR that he is in pain. So these complaints are not substantiated." R. at 578.

On December 4, 2009, S. Boyer, Ph.D., evaluated on a psychiatric review technique form ("PRTF") Plaintiff's mental impairments under paragraph B of Listings 12.02 and 12.09 relating to organic mental disorders and substance addiction disorders. R. at 593-606. Dr. Boyer opined that Plaintiff's mental impairments of learning disorder, not otherwise specified; borderline intellectual functioning; opioid dependence; cocaine abuse; and alcohol abuse caused him to experience (1) mild restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two episodes of decompensation of extended duration. R. at 594, 601, 603. Dr. Boyer did not find evidence to establish the presence of the criteria under paragraph C of these Listings. R. at 604. Accordingly, Dr. Boyer assessed Plaintiff's mentalRFC (R. at 589-92) and opined that he was moderately limited in his ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) make simple work-related decisions; (5) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (6) interact appropriately with the general public; (7) accept instructions and respond appropriately to criticism from supervisors; (8) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; (9) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; (10) respond appropriately to changes in the work setting; and to (11) set realistic goals or make plans independently of others. Plaintiff otherwise was not significantly limited. R. at 589-90. Dr. Boyer's RFC assessment thus provided:

[Plaintiff] has mild limitations in performing [activities of daily living]. Trouble sleeping due to pain, dressing difficulty (bending/lifting arms), can't get in & out of bath tub, needs reminders to care for personal hygiene, doesn't prepare meals because he can't remember how, no chores, goes out daily, drives, shops in stores for food [two times a week], able to pay bills & count change, doesn't have accounts, watches tv, doesn't spend time [with] others.

[Plaintiff] has moderate restrictions in social functioning. Limited knowledge of social norms and substance abuse may diminish his social interaction and adaptation.

[Plaintiff] has moderate restrictions in concentration, pace and persistence. Able to understand and follow simple instructions independently. Generally functioning in the Borderline range of intelligence. Exhibited weakness in spelling and reading and a relative strength in math. [Plaintiff] has a [history] of poor judgment and may function best with tasks that require little or no independent decision making.

Title II: Insufficient Evidence prior to [date last insured] of 03/31/2005.

R. at 591.

On July 13, 2010, another state agency medical consultant, P.H. Moore, M.D., again assessed Plaintiff's physical RFC. R. at 631-38. Dr. Moore opined that Plaintiff could (1) lift and/or carry 20 pounds occasionally; (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) perform unlimited pushing and/or pulling. R. at 632. Dr. Moore also opined that Plaintiff occasionally could climb, balance, stoop, kneel, crouch, and crawl, but had no manipulative, visual, communicative, or environmental limitations. R. at 633-35.

B. VE Testimony

The VE opined that Plaintiff was functionally literate. R. at 99. According to the VE, Plaintiff's past work as a laborer ranged from unskilled to semi-skilled and from heavy to very heavy.² R. at 98. A hypothetical person of Plaintiff's same age, education, and work experience limited to light,³ unskilled, routine, and repetitive work with limited contact with people could work as a housekeeper or laundry worker. R. at 98. Sedentary⁴ jobs available to someone with a sedentary RFC but further limited to unskilled, routine, and repetitive work with limited contact with people included work as a packer or inspector. R. at 101. An inability to bend, along withthe ability to sit for only two hours and stand for only two hours in a day, would not be consistent with competitive employment. R. at 101.

IIISummary of ALJ's Decision

On March 28, 2012, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of disability of January 1, 2004; 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 housekeeper or laundry worker. R. at 55-63. The ALJ accordingly found that he was not disabled from January 1, 2004, through the date of the decision. R. at 63.

In so finding, the ALJ found that Plaintiff's hepatitis C with elevated liver enzymes, obesity, intravenous heroin drug abuse, borderline intellectual functioning, and extremely low reading abilities were severe impairments. R. at 56. The ALJ then found:

[Plaintiff's] mental impairments, including the substance use disorder, do not meet or medically equal the requirements of listings 12.05, or 12.09. Before even turning to the criteria of paragraphs A through D, I must look at whether there is significantly sub-average general intellectual functioning with deficits in adaptive functioning that initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.

There is no IQ testing of record performed before [Plaintiff] was age 22. Though [Plaintiff] only has an eighth grade education, he was not in Special Education in school. Additionally, he testified that he quit school in

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