Dolinger v. Colvin

Filing 26

ORDER denying 24 Motion for Summary Judgment. The case is REMANDED for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 3/22/2017. (kw2s, Deputy Clerk)(c/m 3.22.17)

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]

March 22, 2017
Tammy Elaine Dolinger
3915 Grier Nursery Road
Street, MD 21154
Stacey Winakur Harris
Social Security Administration
6401 Security Boulevard Room 617
Baltimore, MD 21235
RE:

Tammy Elaine Dolinger v. Commissioner, Social Security Administration;
Civil No. SAG-16-219

Dear Ms. Dolinger and Counsel:
On January 22, 2016, Plaintiff Tammy Elaine Dolinger petitioned this Court to review
the Social Security Administration’s final decision to deny her claim for Supplemental Security
Income. (ECF No. 1). I have considered the Commissioner’s Motion for Summary Judgment.
(ECF No. 24). Ms. Dolinger, who appears pro se, has not filed a response.1 I find that no
hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). 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). For the reasons set forth below, I will deny the Commissioner’s motion, reverse the
decision of the Commissioner in part, and remand the case pursuant to sentence four of 42
U.S.C. § 405(g).
Ms. Dolinger filed a claim for Supplemental Security Income (“SSI”) on November 8,
2012. (Tr. 153-58). She initially alleged a disability onset date of September 3, 2008.2 Id. Her
claim was denied initially and on reconsideration. (Tr. 98-101, 105-08). A hearing, at which Ms.
Dolinger was represented by counsel, was held on August 19, 2014, before an Administrative
Law Judge (“ALJ”). (Tr. 34-64). Following the hearing, the ALJ determined that Ms. Dolinger
was not disabled within the meaning of the Social Security Act during the relevant time frame.
(Tr. 15-33). The Appeals Council (“AC”) denied Ms. Dolinger’s request for review, (Tr. 1-7), so
the ALJ’s decision constitutes the final, reviewable decision of the Agency.
1

Ms. Dolinger did not file a Motion for Summary Judgment. After the Commissioner filed her Motion for Summary
Judgment on March 2, 2017, a Rule 12/56 letter was mailed to Ms. Dolinger, advising her of the potential
consequences of failure to oppose the Commissioner’s motion. (ECF No. 25). Ms. Dolinger has not filed anything
in response.
2

It appears that, at her hearing, Ms. Dolinger amended her onset date to October 15, 2011. (Tr. 37).

Tammy Elaine Dolinger v. Commissioner, Social Security Administration
Civil No. SAG-16-219
March 22, 2017
Page 2
The ALJ found that Ms. Dolinger suffered from the severe impairments of “affective
disorders (bipolar and depression), anxiety disorder, post-traumatic stress disorder.” (Tr. 20).
Despite these impairments, the ALJ determined that Ms. Dolinger retained the residual
functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: The claimant is limited to work that is simple and
routine. She can perform work that does not require her to maintain attention and
concentration for extended periods or for more than 90 percent of an 8-hour day.
(Tr. 23). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Dolinger could perform jobs existing in significant numbers in the national economy and
that, therefore, she was not disabled. (Tr. 28-29).
I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart,
386 F. Supp. 2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review
of a pro se action challenging an adverse administrative decision, including: (1) examining
whether the Commissioner’s decision generally comports with regulations, (2) reviewing the
ALJ’s critical findings for compliance with the law, and (3) determining from the evidentiary
record whether substantial evidence supports the ALJ’s findings). For the reasons described
below, the ALJ did not provide substantial evidence to support her conclusions regarding Ms.
Dolinger’s mental impairments, and remand is warranted.
The ALJ proceeded in accordance with applicable law at all five steps of the sequential
evaluation. The ALJ ruled in Ms. Dolinger’s favor at step one, and determined that she has not
engaged in substantial gainful activity since her alleged onset date. (Tr. 20); see 20 C.F.R. §
416.920(a)(4)(i). At step two, the ALJ considered the severity of each of the impairments that
Ms. Dolinger claimed prevented her from working. See 20 C.F.R. § 416.920(a)(4)(ii). After
finding at least one of Ms. Dolinger’s impairments severe, (Tr. 20), the ALJ continued with the
sequential evaluation and considered, in assessing Ms. Dolinger’s RFC, the extent to which her
impairments limited her ability to work.
At step three, the ALJ determined that Ms. Dolinger’s impairments did not meet the
specific requirements of, or medically equal the criteria of, any listings. (Tr. 27-29). The ALJ
considered the specific requirements of Listing 12.04, which pertains to affective disorders, and
Listing 12.06, which pertains to anxiety disorders. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§
12.04, 12.06. In considering Listing 12.04, the ALJ applied the special technique for evaluation
of mental impairments, and determined that Ms. Dolinger had “mild restriction” in activities of
daily living and social functioning, “moderate difficulties” in concentration, persistence or pace,
and no episodes of decompensation. (Tr. 21-22). I have carefully reviewed the record, and I
agree that no listings are met.
In considering Ms. Dolinger’s RFC, the ALJ summarized her subjective complaints,
including her “bipolar depression and anxiety” diagnoses, “her limitations in focusing and

Tammy Elaine Dolinger v. Commissioner, Social Security Administration
Civil No. SAG-16-219
March 22, 2017
Page 3
remembering,” her “difficulty in crowds,” and her “symptoms including nervousness, anhedonia,
racing thoughts, suicidal ideation, decreased energy, sleep disturbances, and panic attacks.” 3 (Tr.
24). However, the ALJ determined that Ms. Dolinger’s subjective complaints were not entirely
credible, and cited objective medical evidence contradicting Ms. Dolinger’s alleged limitations.
The ALJ noted that Ms. Dolinger is able to “handle her finances,” “do her own laundry and
dishes, prepare simple meals, drive a car, and take care of her personal needs.” Id. In addition,
the ALJ noted that although Ms. Dolinger “alleges that her mental impairment diminishes her
daily activities, her social functioning and her ability to focus and concentrate…her written
statements, as well as those of her mother, and her testimony about her activities of daily living
and capabilities contradict her claim that she cannot work.” (Tr. 26). Moreover, the ALJ found
that “[Ms. Dolinger’s] allegations [were] not supported by the objective medical evidence.” (Tr.
25). In particular, the ALJ noted that the records “do not support the severity [Ms. Dolinger]
alleges,” and “indicate relatively normal functioning despite her symptoms.” Id. Accordingly,
the ALJ determined that “[t]he existing evidence suggests that [Ms. Dolinger’s] mental
impairments are mild to moderate and her functioning is more substantial than she claims.” (Tr.
26).
Continuing at step four, the ALJ found that Ms. Dolinger had no past relevant work. (Tr.
28). Accordingly, the ALJ proceeded to step five, where she considered the impact of Ms.
Dolinger’s age and level of education on her ability to adjust to new work. Id. At step five, the
ALJ posed hypotheticals to the VE to determine whether a person with each set of hypothetical
criteria would be able to find work. (Tr. 57–58). Ultimately, the ALJ determined that Ms.
Dolinger’s RFC matched one of the hypotheticals posed. (Tr. 28-29). The VE cited several jobs,
including “janitor,” “stock clerk,” “packer,” “inspector,” assembler,” and “addresser,” in
response to that hypothetical, and the ALJ relied on that VE testimony in her opinion. (Tr. 28-29,
57-58).
The function of this Court is not to review Ms. Dolinger’s claim de novo or to reweigh
the evidence of record. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) (citing 42
U.S.C. § 405(g) and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather, this
Court is to determine whether, upon review of the whole record, the Commissioner’s decision is
supported by substantial evidence and a proper application of the law. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir.1990); see also 42 U.S.C. § 405(g). I am unable to recommend that
finding here.
In this case, the ALJ failed to support her RFC determination with substantial evidence.
Id. Social Security regulations require an ALJ to include “a narrative discussion of [the]
claimant’s symptoms and medical source opinions.” Thomas v. Comm’r, Soc. Sec., 2011 WL
6130605, at *4 (D. Md. Dec. 7, 2011). In doing so, an ALJ must “build an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000),
as amended (Dec. 13, 2000). Here, the ALJ failed to provide “an accurate and logical bridge”
3

The ALJ also summarized two supporting statements provided by Ms. Dolinger’s mother, who largely
corroborated Ms. Dolinger’s testimony. (Tr. 24).

Tammy Elaine Dolinger v. Commissioner, Social Security Administration
Civil No. SAG-16-219
March 22, 2017
Page 4
between Ms. Dolinger’s limitations and the RFC determination. Most significantly, in
formulating the RFC assessment, the ALJ noted that Ms. Dolinger could not maintain attention
and concentration 90% of the time, suggesting she would be off task at least 10% of the time.
(Tr. 23). The ALJ, however, failed to explain the basis for her conclusion. Notably, the ALJ
found that Ms. Dolinger had “moderate difficulties” in concentration, persistence, or pace. (Tr.
22). The ALJ also noted that Ms. Dolinger “can count change, write checks, pay bills, drive a
car, and shop in stores,” and cited Dr. Merryman’s determination that she “can follow simple
instructions, adjust to change in the work setting, and can handle medium to low stress work
environments.” Id. However, the ALJ also noted Ms. Dolinger’s testimony that “she has
difficulty concentrating and is forgetful,” and cited the State agency’s determination that Ms.
Dolinger had “moderate limitations” in her ability to maintain attention and concentration. Id.
Regardless, the ALJ failed to explain how these findings translate into a determination that Ms.
Dolinger would be off task at least 10% of the time. An explanation of how that percentage was
calculated is significant, since a one percent increase could preclude competitive employment.
See Schlossnagle v. Colvin, No. TMD 15-935, 2016 WL 4077672, at *4 (D. Md. Aug. 1, 2016)
(stating that “being off task more than 10% of the time during an eight-hour workday would
preclude all competitive employment.”). Accordingly, without further explanation, I am unable
to ascertain how the ALJ assessed Ms. Dolinger’s difficulties in staying on task, and how those
difficulties impacted the RFC assessment. In light of this inadequacy, I must remand the case to
the Commissioner for further analysis. On remand, the ALJ should consider the impact of Ms.
Dolinger’s limitations on the RFC determination, and explain the reasons for that finding, citing
substantial evidence.
For the reasons set forth herein, Defendant’s Motion for Summary Judgment (ECF No.
24) 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