Horn v. Commissioner, Social Security et al

Filing 19

MEMORANDUM signed by Magistrate Judge Paul W. Grimm on 9/26/2011. (bf2, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
PAUL W. GRIMM
CHIEF UNITED STATES MAGISTRATE JUDGE

101 W. LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
[phone] FAX

September 26, 2011
Alan H. Legum Esq.
Alan Hilliard Legum, P.A.
275 West St., Ste 305
Annapolis, MD 21401
Alex Gordon, AUSA
36 S. Charles Street
4th Floor
Baltimore, MD 21201
Re: Donald Horn v. Michael J. Astrue, Commissioner of
Social Security, PWG-10-190
Dear Counsel:
Presently pending before this Court, by the parties’
consent, are Cross-Motions for Summary Judgment concerning the
Commissioner’s decision denying Mr. Horn’s claim for Disability
Insurance Benefits (“DIB”). (ECF Nos. 10, 14, 18).
This Court
must uphold the Commissioner’s decision if it is supported by
substantial evidence and if proper legal standards were
employed. 42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987). A hearing is unnecessary. Local Rule 105.6.
For the
reasons that follow, this Court DENIES the Commissioner’s Motion
and GRANTS the Plaintiff’s Motion for Summary Judgment and
remands this case for further proceedings consistent with this
Memorandum and Order.
Mr. Horn (sometimes referred to as “Claimant” or Mr. Horn)
applied for DIB on October 15, 2001, alleging that he was
disabled since April 1, 2001, due to depression, anxiety, and
stress. (Tr. 63). His claim was denied initially and upon
reconsideration. (Tr. 32-37). After a hearing held before an
Administrative Law Judge (“ALJ”), the Honorable Robert W. Young,
the ALJ denied Mr. Horn’s claim. After the Appeals denied his
request for review, Mr. Horn filed an appeal with this Court.

See PWG-04-3279. On November 29, 2005, the undersigned entered
an Order vacating the ALJ’s decision and remanding the case back
to the Agency for further proceedings. PWG-04-3279, Paper nos.
13, 14. On April 24, 2006 a second hearing was held before the
same ALJ. (Tr. 381-404). On January 11, 2007 the ALJ issued a
second unfavorable decision. (Tr. 267-276). The ALJ found that
Mr. Horn had depressive and anxiety disorders, and a “rule out”
diagnosis for a personality disorder, and that they were
“severe” impairments, as defined in the Regulations.
The ALJ
also found that these impairments did not meet or equal any of
the Listing of Impairments(“LOI”).
The ALJ next found Mr. Horn
retained the residual functional capacity (“RFC”) to perform
work at all exertional levels but that he had mental limitations
Based on his RFC,
secondary to his psychiatric impairments1.
the ALJ found that Mr. Horn was precluded from performing his
past relevant work (“PRW”).
After receiving testimony from a
vocational expert (“VE”), the ALJ found that there were jobs
available in the national and local economies, existing in
substantial numbers, which Claimant could perform2. Accordingly,
the ALJ found Claimant was not disabled. (Tr. 267-276). On
December 7, 2009, the Appeals Council denied Claimant’s request
for review, making his case ready for judicial review. (Tr. 260267).
Claimant argues, inter alia, that the ALJ erred in
determining his RFC and in finding that there was work he could
perform. He also argues that the ALJ improperly rejected the
opinions of a state agency physician and erred in presenting
hypotheticals to the vocational expert.
As explained below, I
am persuaded by Claimant’s arguments and conclude that the ALJ’s
decision is not supported by substantial evidence, and therefore
DENY the Commissioner’s Motion and will remand this case one
final time for further proceedings.
The Court finds that the ALJ erred at steps four and five
of the sequential evaluation in evaluating Mr. Horn’s mental RFC
1

The ALJ found Claimant could: “perform work at all physical
exertion levels and was limited to simple, repetitive, unskilled
tasks with minimal interaction with other people.” (Tr. 275).
2

The ALJ found Mr. Horn could perform work as a packer, machine
operator, and file clerk. (Tr. 276).
2

and in presenting hypotheticals to the VE.
The ALJ failed to
discuss whether he considered properly all of the evidence in
determining Claimant’s RFC. The ALJ found Mr. Horn’s RFC was as
follows:
He could “perform work at all exertional levels but
that he had mental limitations secondary to his
psychiatric impairments i.e., limited to simple,
repetitive, unskilled tasks, with minimal interaction
with other people.” (Tr. 275).
The ALJ documented his specific findings as to the degree
of limitation in each of the four areas of functioning described
in paragraph(c) of §416.920a3.(Tr. 271). However the ALJ’s
discussion of Mr. Horn’s mental limitations at steps two and
three was not an RFC assessment4, and did not satisfy the ALJ’s
duties at step 4 of the sequential evaluation.
SSR 96-8p, in
relevant part, states as follows:
[T]he adjudicator must remember that the limitations
identified in the “paragraph B” and “paragraph C”
criteria are not an RFC assessment but are used to
rate the severity of mental impairments at steps 2 and
3 of the sequential evaluation process.
The mental
RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment
3

The ALJ found that Mr. Horn had the following limitations:
“mild” limited in her activities of daily living; “moderately”
limited in social functioning; “moderately” limited in ability
to concentrate; and he experienced “one” episode of
decompensation. (Tr. 271-272).
4

The Introduction to Listing 12.00 Mental Disorders, in relevant
part, states: “An assessment of your RFC complements the
functional evaluation necessary for paragraphs B and C of the
listings by requiring consideration of an expanded list of work
related capacities that may be affected by mental disorders when
your impairment is severe but neither meets nor is equivalent in
severity to a listed mental impairment.” See 20 CFR Pt. 404,
Subpt.P, App. 1 (emphasis added); See also SSR 96-8p (1996 WL
374184).
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by itemizing various functions contained in the broad
categories found in paragraphs B and C of the adult
mental disorders listings in 12.00 of the Listing of
Impairments, and summarized on the PRTF. SSR 96-8p
(1996 WL 374184, *4(S.S.A.)).(Emphasis added).
The ALJ’s RFC finding did not include any of the required
detailed findings. Rather, the ALJ stated, in conclusory
fashion, that Mr. Horn could perform “simple, repetitive
unskilled tasks with minimal interaction with other people.”
This was not an adequate assessment. Hilton v. Barnhart 2006 WL
4046076 (D. Kan.) citing Wiederholt v. Barnhart, 121 Fed. Appx.
833 (10th Cir. 2005)(the relatively broad unspecified nature of
the description “simple” and unskilled” does not adequately
incorporate the more specific findings required).
The primary problem in this case is the ALJ’s failure to
adequately explain why he was discrediting the VE’s testimony in
response to questions that included the detailed assessment of
“moderate” mental limitations in nine different areas found by
Dr. Rogers as stated in Exhibit 8F. (Tr. 185-187, 402)(emphasis
added). The ALJ stated only “with regard to the hypothetical
asked by counsel the undersigned does not find that the Claimnt
would need to miss work 1.5-2 days per month or would lose 20%
of productivity if the claimant is working in an unskilled low
stress environment with the restrictions contained in the first
hypothetical.”(Tr. 276). This is inadequate since the VE stated
that the moderate limitations found in Dr. Rogers report
resulted in an individual missing work a day and a half and
would lose 20% productivity. (Tr. 402).
Equally important is the ALJ’s failure to discuss the
weight accorded to the Mental Residual Functional Capacity
Assessment completed by Dr. Rogers. See Exhibit 3-F (Tr. 108110, 274). The ALJ merely summarized Dr. Rogers’ findings, but
never explained how they influenced his RFC determination.
On
December 14, 2001, Dr. Rogers reviewed Mr. Horn’s records and
stated that Mr. Horn was “moderately” limited in his abilities
to:
1) understand and remember detailed instructions;
2) carry out detailed instructions;
3) maintain attention and concentration for extended
periods;
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4) perform activities within a schedule, maintain
regular attendance, and be punctual within customary
tolerances;
5) complete a normal work-day without interruptions
from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and
length of rest periods; and
6) accept instructions and respond appropriately to
criticism for supervisors;
7) get along with coworkers or peers without distracting
them or exhibiting behavioral extremes;
8) respond appropriately to changes in the work setting;
9) set realistic goals or make plans independently of
others. (Tr. 185-186).
The RFC assessment must always consider and address
medical source opinions. SSR 96-8p (1996 WL 374184, *7)
(S.S.A.))(emphasis added).If the RFC assessment conflicts with
an opinion from a medical source, the adjudicator must explain
why the opinion was not adopted. Id.
Because the ALJ did not
explain why he chose not to adopt Dr. Rogers’ opinions and
further failed to perform the function-by-function assessment
described in SSR 96-8p5--the undersigned has no way of knowing
whether
the
ALJ
properly
considered
this
evidence
and
consequently whether this evidence supports, or conflicts with,
the ALJ’s finding regarding Mr. Horn’s RFC. All limits on work
related activities resulting from the mental impairment must be
described in the mental RFC assessment.
SSR 85-16 Residual
Functional Capacity for Mental Impairments (1985 WL 56855, *2)
(S.S.A.)).
According to Social Security Ruling (“SSR”) 96-8p, the
mental
activities
required
by
competitive,
remunerative,
unskilled work include:
Understanding,
instructions.

remembering

and

5

carrying

out

simple

SSR 96-8p, in relevant part, states: Initial failure to consider
an individual’s ability to perform the specific work-related
functions could be critical to the outcome of a case. (1996 WL
374184, *3 (S.S.A.))
5

Making judgments that are commensurate with the
functions of unskilled work-i.e., simple work related
decisions.
Responding appropriately to supervision co workers and
usual work situations dealing with changes in the work
setting.
(SSR 96-8p 1996 WL 374184 at *6)(Emphasis added).
The limitations found by Dr. Rogers are clearly relevant to
Claimant’s ability to perform unskilled work, but the ALJ failed
to discuss Dr. Rogers’ findings adequately in his decision. This
failure was prejudicial because, as noted previously, when these
precise limitations were included in the hypothetical presented
to the VE, the VE stated no work existed for such an individual
who had the mental limitations referred to in Exhibit 8-F.(Tr.
401-402, 536-538).
Simply stated, it is not clear from his decision whether
the ALJ properly evaluated Mr. Horn’s impairments at the fourth
or fifth step of the sequential evaluation. See Baker v. Chater,
957 F. Supp. 75, 79 (D. Md. 1996)(in evaluating the severity of
mental impairments a special procedure must be followed by the
Commissioner at each level of administrative review). I am
remanding this case one final time for the Commissioner to
insure that Mr. Horn receives a proper evaluation of his claims.
Should the Commissioner fail to do so then on subsequent review
by the court any further remand will be for the sole purpose of
awarding benefits. Marshall v. Sullivan, 908 F.2d 248 (4th Cir.
1990)(unpublished).
Accordingly, this Court REMANDS this case to the
Commissioner pursuant to 42 U.S.C. 405(g). A separate Order
shall issue.
_________/s/____________
Paul W. Grimm
United States Magistrate Judge

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