Scott v. Colvin

Filing 19

ORDER denying 16 Motion for Summary Judgment; denying 17 Motion for Summary Judgment. Signed by Magistrate Judge Stephanie A Gallagher on 9/8/2015. (ca2s, Deputy Clerk)

UNITED STATES DISTRICT
COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

September 8, 2015
LETTER TO COUNSEL
RE:

Delford Benjamin Scott v. Commissioner, Social Security Administration;
Civil No. SAG-14-2769

Dear Counsel:
On August 29, 2014, Plaintiff Delford Benjamin Scott petitioned this Court to review the
Social Security Administration’s final decision to deny his claim for Disability Insurance
Benefits. (ECF No. 1). I have considered the parties’ cross-motions for summary judgment and
Plaintiff’s reply memorandum. (ECF Nos. 16, 17, 18). I find that no hearing is necessary. See
Loc. R. 105.6 (D. Md. 2014). This Court must uphold the decision of the Agency if it is
supported by substantial evidence and if the Agency employed proper legal standards. See 42
U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that
standard, I will deny both parties’ motions and remand the case to the Commissioner for further
consideration. This letter explains my rationale.
Mr. Scott applied for Disability Insurance Benefits on August 22, 2011. (Tr. 185-91).
He alleged a disability onset date of December 15, 2010.1 (Tr. 13). His claims were denied
initially and on reconsideration. (Tr. 64-67, 72-78). A hearing was held on June 10, 2013,
before an Administrative Law Judge (“ALJ”). (Tr. 27-53). Following the hearing, the ALJ
determined that Mr. Scott was not disabled within the meaning of the Social Security Act before
April 6, 2013, but became disabled as of that date. (Tr. 9-26). The Appeals Council denied Mr.
Scott’s request for review, (Tr. 1-5), so the ALJ’s decision constitutes the final, reviewable
decision of the Agency.
The ALJ found that Mr. Scott suffered from the severe impairments of peripheral
neuropathy, recurrent metatarsalgia, and skin lesions. (Tr. 15). Despite these impairments, the
ALJ determined that, prior to April 6, 2013, Mr. Scott retained the residual functional capacity
(“RFC”) to:
perform medium work as defined in 20 CFR 404.1567(c) except he can stand no
more than four hours in an eight-hour workday; no climbing of ladders, ropes or
scaffolds; occasional climbing of ramps or stairs; occasional stooping and
1

At the hearing, Mr. Scott’s counsel expressed some willingness to amend the onset date to June 3, 2011, but no
formal amendment was made. (Tr. 52-53).

Delford Benjamin Scott v. Commissioner, Social Security Administration
Civil No. SAG-14-2769
September 8, 2015
Page 2
crouching; frequent kneeling; no crawling; no exposure to unprotected heights
and heavy machinery.
(Tr. 17). As of April 6, 2013, the ALJ found that Mr. Scott would have the additional limitation
of being “off task 20 percent of an eight-hour workday,” which would be work-preclusive. (Tr.
19). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
prior to April 6, 2013, Mr. Scott could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled. (Tr. 21).
Mr. Scott raises two arguments on appeal: (1) that the ALJ misread the opinion of
treating physician Dr. Gannon in determining an onset date of April 6, 2013; (2) that the ALJ
made an erroneous credibility assessment; and (3) that the ALJ did not properly assess whether
Mr. Scott met or equaled Listing 8.00. While I do not agree with the Listing argument, I concur
that the ALJ did not properly evaluate the onset date, which includes a credibility assessment.
Accordingly, remand is appropriate. In so holding, I express no opinion as to whether the ALJ’s
ultimate conclusion that Mr. Scott was not entitled to benefits was correct.
Beginning with the unsuccessful argument, Mr. Scott contends that the ALJ erred in
assessing Listing 8.00, and contests the ALJ’s finding that Mr. Scott’s “lesions do not limit his
ability to ambulate in any way, let alone seriously.” (Tr. 17). It is clear that the cited statement
overstates the evidence of record, which demonstrates certain impediments to ambulation.
However, there is no independent “Listing 8.00,” and the evidence does not indicate that any of
the other relevant listings were met. Listing 8.00 simply provides the definitions to be used in
the evaluation of the other listings under the heading of “skin disorders.” The primary issue
raised by Mr. Scott is the fact that “extensive skin lesions” is defined, in relevant part, as those
“that very seriously limit your ability to ambulate.” Listing 8.00. However, the evidence cited
by the ALJ provides substantial evidence for an assessment that Mr. Scott had no such “very
serious” limitation. It is clear that he had persistent lesions for which he underwent treatment,
but the overall effect on his ambulation is less clear from the medical record. Mr. Scott contests
the ALJ’s reliance on “a single snapshot of Plaintiff’s gait,” Pl. Mot. 36, while simultaneously
citing to the sole record noting an antalgic gait, Pl. Mot. 37. Ultimately, while there is some
medical evidence to support a conclusion on both sides, I find no error warranting remand in the
ALJ’s listing analysis.
However, I concur with Mr. Scott that the ALJ did not support his selection of the April
6, 2013 onset date with substantial evidence. In this case, the only change in the evidence on
April 6, 2013 was an opinion written by Dr. Gannon on that date (in addition to an opinion
written by Dr. Gannon the previous day, April 5, 2013). Mr. Scott did not testify that he
experienced any material change in his symptoms on or around that date. Apparently in reliance
on Dr. Gannon’s opinion, then, the ALJ determined that, as of April 6, 2013, Mr. Scott would be
“off task 20 percent of an eight-hour day.” (Tr. 19). The ALJ readily acknowledged, however,
that “Dr. Gannon did not make any statement regarding the onset of these alleged limitations.”
(Tr. 19).

Delford Benjamin Scott v. Commissioner, Social Security Administration
Civil No. SAG-14-2769
September 8, 2015
Page 3
Where an onset date is ambiguous, an ALJ is required to consult a medical advisor to
determine the appropriate date. See SSR No. 83-20; Bailey v. Chater, 68 F.3d 75, 79 (4th Cir.
1995). The ALJ did not do that in this case, and did not re-contact Dr. Gannon to obtain
clarification as to his view of the onset date. Dr. Gannon’s April 5, 2013 opinion notes that he
has been treating Mr. Scott for two years and refers to “chronic foot pain” and “recurrent painful
skin lesions.” (Tr. 385). He further suggests that Mr. Scott’s pain is “frequently” severe enough
to interfere with attention and concentration, which would appear to be the premise for the
suggestion that Mr. Scott would be “off task.” (Tr. 386). Dr. Gannon concluded that Mr. Scott
“should have sedentary job activity.” (Tr. 387). On April 6, 2013, the next day, Dr. Gannon
completed an additional form in which he suggested that, “This evaluation reflects the period
beginning 4-6-13.” (Tr. 388). In that form, he again stated that Mr. Scott “would benefit from
more sedentary job position . . . [due to] recurrent painful skin lesions feet.” (Tr. 389). There
are no treatment notes suggesting that Dr. Gannon saw Mr. Scott on either April 5, 2013 or April
6, 2013. Earlier notes from Mr. Scott’s appointments with Dr. Gannon show relatively
consistent symptoms throughout the treatment period. (Tr. 272-86, 324-33).
Ultimately, no evidence supports a conclusion that Dr. Gannon believed Mr. Scott to
have a changed functional capacity on April 5, 2013, or April 6, 2013, particularly in light of the
apparent lack of any physical examination on those dates. Thus, the only reasonable conclusion
is that Dr. Gannon believed his opinion as to Mr. Scott’s functional capacity to date from some
earlier period in his two-year treatment relationship. The ALJ was required to seek clarification,
then, either by re-contacting Dr. Gannon to assess the onset date with more precision or by
consulting a medical advisor to resolve the ambiguity. Once the onset date is established by
substantial evidence, the ALJ should re-consider the currently unsupported conclusion that Mr.
Scott’s credibility improved as of April 6, 2013. The factors originally cited as undermining Mr.
Scott’s credibility (such as his failure to report walking limitations to his treating doctor and his
inconsistent compliance with diabetes treatment) do not appear to have changed on that date.
For the reasons set forth herein, Mr. Scott’s Motion for Summary Judgment (ECF No.
16) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 17) is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is REVERSED
IN PART due to inadequate analysis. The case is REMANDED for further proceedings in
accordance with this opinion. The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge