Horn v. Commissioner, Social Security et al

Filing 22

REPORT AND RECOMMENDATIONS re 18 MOTION for Summary Judgment filed by Donald R. Horn, 19 MOTION for Summary Judgment filed by Commissioner, Social Security Signed by: Judge Magistrate Judge Stephanie A Gallagher Objections to R&R due by 8/12/2013 Responses due by 8/12/2013. Signed by Magistrate Judge Stephanie A Gallagher on 7/24/13. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DONALD HORN
v.
COMMISSIONER, SOCIAL SECURITY

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Case No. CCB-12-3539

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REPORT AND RECOMMENDATION
Pursuant to Standing Order 2013-06, the above-referenced case was referred to me for
review of the parties’ cross-motions for summary judgment and to make recommendations
pursuant to 28 U.S.C. § 636(b) and Local Rule 301.5(b)(ix). I have considered the parties’ crossmotions for summary judgment, and Mr. Horn’s reply. (ECF Nos. 18, 19, 21). 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). I find that no hearing is necessary.
Local R. 105.6 (D. Md. 2011).

For the reasons set forth below, I recommend that the

Commissioner’s motion be granted and that Mr. Horn’s motion be denied.
Mr. Horn applied for Disability Insurance Benefits on October 15, 2001, alleging a
disability onset date of April 1, 2001. (Tr. 52-54). His claim was denied initially on December
19, 2001, and on reconsideration on December 11, 2002.

(Tr. 34-36, 38-40).

Twice, an

Administrative Law Judge (“ALJ”) held hearings and subsequently denied benefits to Mr. Horn
in written opinions. (Tr. 11-25, 227-59, 264-76, 381-404). After reviewing both ALJ opinions
on appeal, this Court twice remanded Mr. Horn’s case to the Commissioner for further
consideration. (Tr. 424-30, 445-51). A third hearing was held on June 26, 2012, before a

different ALJ. (Tr. 462-504). Following the third hearing, on August 15, 2012, the ALJ issued a
partially favorable opinion, granting Mr. Horn benefits as of June 17, 2005, but denying benefits
prior to that date.1 (Tr. 405-21). Mr. Horn has appealed that decision to this Court, making the
ALJ’s 2012 decision the final, reviewable decision of the agency.
The ALJ found that, during the relevant time frame, Mr. Horn suffered from the severe
impairments of post-traumatic stress disorder, panic disorder, anxiety disorder, major depression,
obstructive sleep apnea, diabetes mellitus, and psoriasis. (Tr. 412). Despite these impairments,
the ALJ determined that prior to June 17, 2005, Mr. Horn retained the residual functional
capacity (“RFC”) to:
[P]erform medium work as defined in 20 CRF 404.1567(c) except the claimant
could frequently climb ramps and stairs, balance, stoop, kneel crouch and crawl.
He could occasionally climb ladders, ropes and scaffolds. He was to avoid
concentrated exposure to extreme cold, heat, excessive vibrations, chemicals,
hazardous moving machinery and unprotected heights. He could perform simple,
routine and repetitive tasks in a low stress work environment defined as no strict
production quotas. He could occasionally and superficially interact with the
public, supervisors and co-workers.
(Tr. 414). After considering testimony from a vocational expert (“VE”), the ALJ determined
that, prior to June 17, 2005, there were jobs existing in significant numbers in the national
economy that Mr. Horn could perform, and that he was not therefore disabled during that time
frame. (Tr. 418-19).
Mr. Horn disagrees, and he has filed the instant appeal contending that he was entitled to
benefits for the period between April 1, 2001 and June 17, 2005. He asserts four arguments in
support of his appeal: (1) that the ALJ failed to consider Listing 12.08 (Personality Disorder);
(2) that the ALJ erred in making an adverse credibility assessment; (3) that the ALJ failed to
consider two periods of decompensation; and (4) that the ALJ’s RFC was deficient because it did
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The ALJ found that as of June 17, 2005, Mr. Horn’s worsening psoriasis met Listing 8.05 (Dermatitis). (Tr. 420).
Mr. Horn does not contend that his psoriasis met the Listing prior to that date.

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not address the time that Mr. Horn would be absent from work. Each argument lacks merit.
Mr. Horn’s first argument is that the ALJ failed to consider whether he met Listing 12.08
(Personality Disorder). Pl. Mot. 14-15. Mr. Horn submits that two physicians, Drs. Hoese and
Roberts, had diagnosed him with personality disorder. Id. Mr. Horn therefore submits that the
ALJ needed to consider personality disorder and expressly assess Listing 12.08. Id. However,
the burden of establishing that a claimant’s impairments meet a listing rests with the claimant,
see Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987), and Mr. Horn has failed to meet that
burden. Dr. Hoese and Dr. Roberts were non-examining state agency physicians who reviewed
Mr. Horn’s medical records. (Tr. 133-38, 213-19). The record does not indicate that any of Mr.
Horn’s treating doctors ever diagnosed him with personality disorder. Moreover, neither of the
non-examining physicians made an express diagnosis of personality disorder. They simply noted
that category of disorders as one of the categories upon which their medical disposition was
based. Id. Both non-examining physicians’ medical dispositions concluded that Mr. Horn did
not meet any Listings, including Listing 12.08. Id. Listing 12.08 requires that a claimant
establish the presence of two paragraph “B” criteria, in addition to meeting at least one of the
criterion in paragraph “A” specific to personality disorders.2

The ALJ engaged in an express

analysis of the same paragraph “B” criteria in considering Listings 12.04 and 12.06, and
determined that Mr. Horn did not meet those criteria. (Tr. 413). As a result, Mr. Horn could not
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Paragraph B requires that the claimant establish at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.

20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.08B.

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have met Listing 12.08, and the ALJ’s failure to consider that listing would be, at best, harmless
error.

Additionally, Mr. Horn does not cite to any functional limitations caused by his

personality disorder that were not otherwise considered by the ALJ in analyzing his other mental
health conditions. Even if personality disorder had been diagnosed, the diagnosis alone, without
any accompanying functional limitations, would not change the outcome of the ALJ’s analysis.
Mr. Horn next argues that the ALJ failed to properly assess his credibility. In finding that
Mr. Horn was not as limited as he alleged, the ALJ relied in part on Mr. Horn’s testimony that he
had served as Treasurer for his church during the relevant period between 2001 and 2006. Pl.
Mot. 15-16. Mr. Horn cites contradictory testimony from his wife about the timing of his work
as Treasurer, which the ALJ did not expressly reference. Id. However, the ALJ’s reference to
Mr. Horn’s work as Treasurer was included in a two-paragraph summary of various testimony
and evidence, which also included the facts that he served as a member of his church choir and
attended weekly practice, that he performed minor repairs to the church building in a volunteer
capacity, that he engaged in regular household chores, that he traveled unaccompanied to
medical appointments, that he visited with friends four or five times per week, that he exercised
regularly, that he collected baseball cards and attended baseball card exhibits, that he
occasionally drove from his home in Pasadena, Maryland to Ocean City, and that he vacationed
annually in Ocean City. (Tr. 415). In light of the other substantial evidence to support the ALJ’s
determination that Mr. Horn’s description of his limitations was undermined by his extensive
daily activities, any error as to the dates during which Mr. Horn served as Treasurer was
immaterial.
Mr. Horn’s third argument is that the ALJ failed to consider two additional periods of
decompensation when making the finding that Mr. Horn had experienced “one episode of

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decompensation for an extended duration.” (Tr. 413). Mr. Horn correctly notes that his treating
social worker, Ms. Stephanie Caruso, documented three medical absences from work between
1998 and 2001. (Tr. 190). However, only one of those medical absences, resulting in a onemonth hospital stay, occurred after the onset date of his alleged disability, April 1, 2001. (Tr.
106-07). The other two absences, during which he missed 45 days and two weeks of work,
respectively, occurred in 1998, nearly three years prior to the alleged onset date. (Tr. 97, 17883).

Under the regulations, “[t]he term repeated episodes of decompensation of extended

duration . . . means three episodes within one year, or an average of once every four months.”
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00(C)(4). The almost three-year interval between the
two prior incidents and the episode of decompensation acknowledged by the ALJ places Mr.
Horn’s situation well outside the average required to fulfill the regulatory requirement.
Moreover, Mr. Horn’s treatment records in the three years between 1998-2001 showed
intermittent significant improvement in his mental condition. See, e.g., Tr. 130 (Report from
12/12/00 in which Mr. Horn states that he is “doing great,” his “mood has been good,” and his
“anxiety level has been low.”); Tr. 131 (Doctor’s note from 7/11/00 indicating that Mr. Horn
“seems to feel things are going quite good.”); Tr. 172 (Note from 4/8/99 in which Mr. Horn
“reports very pos[itive] mood & outcome of returning to work.”). Accordingly, the ALJ did not
err in failing to address the two medical absences that significantly predated the alleged onset
date.
Finally, Mr. Horn contends that, in formulating a hypothetical to the vocational examiner,
the ALJ failed to account for the time Mr. Horn would be absent from work. Pl. Mem. 18-19.
The ALJ is afforded “great latitude in posing hypothetical questions,” Koonce v. Apfel, No. 98–
1144, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999), and need only pose those that are based on

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substantial evidence and accurately reflect a claimant's limitations. See Copeland v. Bowen, 861
F.2d 536, 540-41 (9th Cir. 1988). Mr. Horn cites no medical evidence suggesting that he would
miss any particular amount of time from work. Instead, in response to a question posed by Mr.
Horn’s counsel at the 2006 hearing listing a series of “moderate limitations,” the VE
volunteered: “An individual who misses four days, excuse me, an individual who misses a day
and [a] half, two days per month would not be able to maintain substantial gainful activity . . . I
would say in general if the moderates would have the limitations that I just stated, this individual
would not be able to perform substantial gainful activity.” (Tr. 402). No evidence suggests that
the “moderate limitations” cited by counsel would equate to a day and a half or two days per
month of absences. Because counsel did not provide a definition of “moderate limitations,” the
VE simply speculated what such limitations might mean. The ALJ could not have predicted the
VE’s speculation so as to have included the absences in his hypothetical question. Moreover,
because the VE cited no evidentiary basis for the speculation, the ALJ need not rely on that
portion of the VE’s testimony.

In fact, the ALJ expressly noted that the descriptions of

“moderate mental limitations” call for a response containing medical determinations that
“vocational experts are not qualified to make.” (Tr. 419).
The ALJ’s RFC, and the corresponding hypothetical question posed to the VE,
appropriately addressed the issues that had triggered Mr. Horn’s absences from his prior job,
where he had difficulties interacting with colleagues and supervisors. For example, Mr. Horn’s
concerns about “naturally uneven distributions of power” in the workplace were addressed by the
ALJ’s limitation to jobs requiring him to only “occasionally and superficially interact with the
public, supervisors and co-workers.” (Tr. 414). With the likelihood of confrontation minimized
due to infrequent interaction, Mr. Horn would be unlikely to need extensive absences.

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Moreover, the ALJ accepted and accounted for the difficulties Mr. Horn faced in his previous
employment by limiting him to jobs involving “simple, routine and repetitive tasks in a low
stress work environment defined as no strict production quotas.” (Tr. 414). Finally, in arguing
that he is unable to work because of the inherent structural dynamics in the workplace, Mr. Horn
overlooks the fact that he was employed for over two decades before resigning because of
conflicts with specific coworkers after a restructuring at BGE. Because the ALJ supported his
decision with substantial evidence, remand is unwarranted.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1.

The Court GRANT Defendant’s Motion for Summary Judgment (ECF No. 19);

2.

The Court DENY Plaintiff’s Motion for Summary Judgment (ECF No. 18) and

and

CLOSE this case.
Any objections to this Report and Recommendation must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b) and Local Rule 301.5.b.

Dated: July 24, 2013

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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