THOMAS M. DiGIROLAMO, United States Magistrate Judge.
Fatimah Siddiqui ("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 her 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. 18) and Defendant's Motion for Summary Judgment (ECF No. 20).
Plaintiff was born in 1982, has a GED, and previously worked as a barista/cashier, lab technician, waitress, photographer, customer representative, debt collector, and patient registrar. R. at 24, 102, 356-57. Plaintiff applied for DIB protectively on April 2, 2009, and for SSI on April 23, 2009, alleging disability beginning on April 18, 2008, due to depression, bipolar disorder, and anxiety. R. at 15, 58-65, 99, 124. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 27-37. On October 31, 2011, ALJ Larry K. Banks held a hearing in Washington, D.C., at which Plaintiff and
On April 11, 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.
On August 5, 2009, Plaintiff underwent a consultative psychiatric evaluation by Dr. Taller, which the ALJ summarized in his decision:
R. at 18 (citing R. at 227-35). According to the ALJ, Dr. Taller
R. at 21 (citation omitted) (citing R. at 227-35).
On August 11, 2009, F. Ewell, Ph.D., evaluated on a psychiatric review technique form ("PRTF") Plaintiff's mental impairments under paragraph B of Listings 12.04 and 12.08 relating to affective disorders and personality disorders. R. at 240-52. Dr. Ewell opined that Plaintiff's mood disorder, bipolar disorder, major depressive disorder, and personality disorder caused her to experience (1) moderate 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
R. at 238. On August 12, 2010, another state agency consultant, Aroon Suansilppongse, M.D., affirmed Dr. Ewell's determination. R. at 307.
The ALJ stated in his decision that Dr. Dhir
R. at 21 (citations omitted) (citing R. at 278-91).
The ALJ noted the following in his decision:
R. at 21-22 (citing R. at 257-77, 313-28).
The ALJ noted in his decision Plaintiff's allegations:
R. at 22-23 (citation omitted); see R. at 356-83.
According to the VE, a hypothetical person with Plaintiff's same age, education, and work experience could perform Plaintiff's
On January 25, 2012, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of disability of April 18, 2008; 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 her past relevant work; but (5) could perform other work in the national economy, such as a packer/packaging worker, bench worker, or housekeeper. R. at 17-25. The ALJ accordingly found that she was not disabled from April 18, 2008, through the date of the decision. R. at 26.
In so finding, the ALJ found that Plaintiff had the RFC
R. at 20. In doing so, the ALJ afforded "greater weight" to the opinions of Drs. Taller, Dhir, and Ewell with regard to the nature and severity of Plaintiff's impairments because each of these opinions "is supported by objective medical evidence, and is consistent with the record as a whole." R. at 23-24. "Overall, [Plaintiff] retained the capacity to perform work-related tasks from a mental health standpoint perspective." R. at 22.
The ALJ found that Plaintiff's "admitted activities and functional capabilities are inconsistent with her allegations of totally disabling limitations, and support the conclusion that she can do at least unskilled work at all exertional levels within the
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 ... in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-380, 157 L.Ed.2d 333 (2003). "If at any step a finding of disability or nondisability can be made, the [Commissioner] will not review the claim further." Thomas, 540 U.S. at 24, 124 S.Ct. at 379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir.2013).
First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see whether the claimant has a "severe" impairment, i.e., an impairment or combination of impairments that significantly limits the claimant's physical or mental ability to do basic work activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir.1995); see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience.
Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant's RFC to determine the claimant's "ability to meet the physical, mental, sensory, and other requirements" of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir.2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but the Commissioner is responsible for developing the claimant's "complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant's] own medical sources." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant's RFC as determined in step four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant's RFC as determined at step four, age, education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir.2012). The Commissioner must prove not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The Court reviews an ALJ's decision to determine whether the ALJ applied the correct legal standards and whether the factual findings are supported by substantial evidence. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir.1996). In other words, the issue before the Court "is not whether [Plaintiff] is disabled, but whether the ALJ's finding that [Plaintiff] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Id. The Court's review is deferential, as "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion. See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does "not conduct a de novo review of the evidence," Smith v. Schweiker, 795 F.2d 343,
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security Ruling 96-8p.
Plaintiff first contends that the ALJ failed to follow the special technique (the psychiatric review technique or "PRT") outlined in 20 C.F.R. §§ 404.1520a and 416.920a for evaluating mental impairments at steps two and three of the sequential evaluation process. Id. at 5-7. In addition to the five-step analysis discussed above in Part IV and outlined in 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner has promulgated additional regulations governing evaluations of the severity of mental impairments. 20 C.F.R. §§ 404.1520a, 416.920a. These regulations require application of the PRT at the second and third steps of the five-step framework, Schmidt v. Astrue, 496 F.3d 833, 844 n. 4 (7th Cir.2007), and at each level of administrative review. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). This technique requires the reviewing authority to determine first whether the claimant has a "medically determinable mental impairment." Id. §§ 404.1520a(b)(1), 416.920a(b)(1). If the claimant is found to have such an impairment, then the reviewing authority must "rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c)," id. §§ 404.1520a(b)(2), 416.920a(b)(2), which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation.
When a claimant has presented a colorable claim of mental impairment, the ALJ is required "to complete a PRTF and append it to the decision, or incorporate its mode of analysis into his findings and conclusions. Failure to do so requires remand." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 726 (9th Cir.2011) (quoting Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir.2005) (per curiam)); see 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4). But see Pepper v. Colvin, 712 F.3d 351, 365-67 (7th Cir.2013) (under some circumstances, failure to use explicitly special technique may be harmless error); Rabbers v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 657 (6th Cir.2009) (holding that "the special technique of § 404.1520a does not confer such an `important procedural safeguard' upon claimants that an ALJ's failure to rate the B criteria will rarely be harmless"). "The ALJ's decision must show the significant history and medical findings considered and must include a specific finding as to the degree of limitation in each of the four functional areas." Felton-Miller v. Astrue, 459 Fed.Appx. 226, 231 (4th Cir.2011) (per curiam) (citing 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4)). "In other words, the regulations contemplate that written decisions at the ALJ and Appeals Council levels should contain a `narrative rationale,' instead of the `checklist of ... conclusions' found in a PRTF." Keyser, 648 F.3d at 725 (alteration in original).
Plaintiff maintains that, although the ALJ rated the degree of functional limitation from her mental impairments, the ALJ "failed to explain how he arrived at these conclusions, failed to consider all relevant and available clinical signs and laboratory findings, the effects of [her] symptoms," and the effect of certain factors on her functioning outlined in 20 C.F.R. §§ 404.1520a(c)(1) and 416.920a(c)(1). Pl.'s Mem. Supp. Mot. Summ. J. 7, ECF No. 18-1. As the Commissioner points out, however, the ALJ discussed the evidence in support of his findings (R. at 18-19) and the basis for those findings (R. at 21-22). Thus, Plaintiff's contention that the ALJ failed to comply with 20 C.F.R. §§ 404.1520a and 416.920a is without merit.
Plaintiff next contends that the ALJ failed to consider properly pertinent evidence by failing to include Dr. Ewell's functional limitations found in the "summary conclusions" of Section I of the form completed by Dr. Ewell in assessing her mental RFC assessment (R. at 236-37). Pl.'s Mem. Supp. Mot. Summ. J. 7-8, ECF No. 18-1. "However, the relevant portion of the [consultants'] opinions is not Section I, which sets forth a series of `check the box' rankings, but Section III, which provides a detailed narrative functional capacity assessment." Blum v. Comm'r, Soc. Sec. Admin., Civil No. SAG-12-1833, 2013
Plaintiff also contends that the ALJ mischaracterized the evidence of record and failed to explain his resolution of the conflict between his conclusion that she had only moderate limitations and Dr. Dhir's conclusion in July 2010 that she had serious limitations based on the doctor's GAF rating of 50 (R. at 283), which indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) [or] any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR, supra note 2, at 34; see Martise v. Astrue, 641 F.3d 909, 917 n. 5 (8th Cir.2011); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 598 n. 1 (9th Cir.1999). Plaintiff also maintains that the ALJ did not consider evidence of a GAF rating of 50 in October 2009 and June 2011 found in records from Contemporary Therapeutic Services (R. at 264, 328).
"While ... the Commissioner has declined to endorse the GAF scale for `use in the Social Security and SSI disability programs,' the GAF scores may still be used to assist the ALJ in assessing the level of a claimant's functioning." Halverson v. Astrue, 600 F.3d 922, 930-31 (8th Cir.2010) (citation omitted). However, "GAF scores, even when reliable and from acceptable medical sources, do not govern an ALJ's analysis." Copes v. Comm'r, Soc. Sec. Admin., Civil No. SAG-11-3487, 2013 WL 1809231, at *3 (D.Md. Apr. 26, 2013). "The difficulty with assigning significant weight to GAF scores is the fact that those scores can be lowered by factors other than the pure severity of a claimant's mental impairments." McGougan v. Comm'r, Soc. Sec., Civil Case No. JKB-13-52, 2014 WL 266807, at *2 n. 3 (D.Md. Jan. 23, 2014). Thus, "while nothing prohibits an ALJ from considering GAF scores as one component of a full analysis of the evidence of record, it is well established that GAF scores are not determinative of disability." Campbell v. Comm'r, Soc. Sec., Civil Case No. 14-1331-GLR, 2015 WL 275746, at *4 (D.Md. Jan. 21, 2015); see Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 877 (6th Cir.2007) ("[The claimant] complains that the mental RFC determination must be defective because she has been rated 45-50 on the [GAF] scale. Even assuming GAF scores are determinative, the record supports a GAF in the high 40s to mid 50s, which would not preclude her from having the mental capacity to hold at least some jobs in the national economy."). But see Campbell v. Astrue, 627 F.3d 299, 306-07 (7th Cir.2010) ("An ALJ may not selectively discuss portions of a physician's report that support a finding of non-disability while ignoring other portions that suggest a disability.... A GAF rating of 50 does not represent functioning within normal limits. Nor does it support a conclusion that [the claimant] was mentally capable of sustaining work."). Thus, Plaintiff's argument about the ALJ's failure to address her GAF scores of 50 also is unavailing.
Plaintiff also asserts that the ALJ erroneously assessed her subjective complaints. Here, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the [ALJ's RFC] assessment." R. at 20. The Fourth Circuit recently has held that this language "`gets
The ALJ found that Plaintiff "is less than credible with regard to her testimony and other statements about her medical condition." R. at 20. The ALJ found Plaintiff "less than credible" because she "testified at the hearing that she had no problems with taking the subway and bus to get to the hearing" (R. at 22), which contradicted her statement in her function report that she did not like "being around people" (R. at 141). In fact, however, Plaintiff did not testify that she had no problems with taking public transportation; rather, she testified that she did not "like being around all the people" when taking public transportation. R. at 361. Courts "have recognized that disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998).
The ALJ also found that Plaintiff's testimony that she "worked at places where she was in constant contact with people" belied her report that she did not like dealing with people. R. at 22-23. Plaintiff testified, however, that she was unable to remain employed because she was unable to stay on task while working. R. at 367-68. For example, Plaintiff testified that she worked as a customer service representative at a car rental company from April to June 2007, when she quit "because it was just stressful" and because she was not "able to keep up with the pace of the rental car place." R. at 364-65. "It does not follow from the fact that a claimant tried to work for a short period of time and, because of his impairments, failed, that he did not then experience pain and limitations severe enough to preclude him from maintaining substantial gainful employment." Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir.2007). Evidence that a claimant tried to work and failed actually may support his allegations of disabling pain. See id. Further, the fact that Plaintiff worked as a barista for a manager who "let [Plaintiff] slide if [she] couldn't make it out of bed in the morning" (R. at 366) does not contradict her claim of disability. See Larson v. Astrue, 615 F.3d 744, 752 (7th Cir.2010) ("[The claimant] was able to work for [her employer] part-time only because he was a friend who tolerated frequent breaks and absences that an ordinary employer would have found unacceptable. This does not contradict her claim of disability."); see Mosley v. Astrue, 853 F.Supp.2d 803, 817 (N.D.Iowa 2012).
Furthermore, the ALJ found that Plaintiff's activities of daily living as reported in her function report contradict her allegation of disabling limitations. R. at 22. As noted above, the ALJ found that, according to her function report, Plaintiff had been able to do the following from the alleged onset date of disability:
R. at 22. As Plaintiff points out, however, she also reported that she woke up between 1 and 2 p.m. and napped during the day. R. at 135. She reportedly slept all day, rarely changed clothes, and ate and bathed when she felt like doing so. R. at 136. Plaintiff's mother made her get out of bed three times per week to bathe and also prepared a week's worth of food for her because Plaintiff "just [did] not feel up to it." R. at 137. Plaintiff also did no household chores. R. at 137. Plaintiff's mother stated similarly in her third-party function report. R. at 166-74. "Nowhere, however, does the ALJ explain how he decided which of [Plaintiff's] statements to believe and which to discredit, other than the vague (and circular) boilerplate statement that he did not believe any claims of limitations beyond what he found when considering [Plaintiff's] residual functional capacity." Mascio, 780 F.3d at 640. Thus, the ALJ's lack of explanation here requires remand. See id. Because the Court remands this case for further proceedings, the Court need not address Plaintiff's remaining arguments. See Riden-Franklin v. Comm'r, Soc. Sec. Admin., Civil No. SAG-10-2298, 2013 WL 150012, at *2 (D.Md. Jan. 11, 2013).
For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 20) is