Tucker v. Colvin

Filing 19

MEMORANDUM AND ORDER denying Plaintiff's 14 and 15 Motions for Summary Judgment; denying Defendant's 18 Motion for Summary Judgment; reversing Commissioner's judgment due to inadequate analysis; remanding for further proceedings. Signed by Magistrate Judge Beth P. Gesner on 6/7/2017. (dass, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF

101 WEST LOMBARD STREET

BETH P. GESNER

BALTIMORE, MARYLAND 21201

UNITED STATES MAGISTRATE JUDGE

[phone]

June 7, 2017
Paul R. Schlitz, Jr., Esq.
Mering and Schlitz, LLC
343 N. Charles St., 3rd Fl
Baltimore, MD 21201

Subject:

Jennifer H. Stinnette, Esq.
Social Security Administration
6401 Security Blvd., Rm. 617
Baltimore, MD 21235

Kimberly Tucker v. Carolyn W. Colvin, Acting Commissioner of Social
Security
Civil No.: BPG-16-1946

Dear Counsel:
Pending before this court, by the parties’ consent (ECF Nos. 2, 7), are Plaintiff’s Motion
for Summary Judgment (“Plaintiff’s Motion”) (ECF Nos. 14, 15) and Defendant’s Motion for
Summary Judgment (“Defendant’s Motion”) (ECF No. 18). The undersigned 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), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996), superseded by statute, 20 C.F.R. § 416.927(d)(2). I have reviewed the pleadings and the
record in this case and find that no hearing is necessary. Loc. R. 105.6. For the reasons noted
below, Plaintiff’s Motion (ECF Nos. 14, 15) is denied, Defendant’s Motion (ECF No. 18) is
denied, the Commissioner’s decision is reversed, and the case is remanded to the Commissioner
for further consideration.
I.

Background

On April 10, 2012, plaintiff filed a Title II application for a period of disability and
disability insurance benefits, and protectively filed a Title XVI application for supplemental
security income, both alleging disability beginning on August 3, 2011. (R. at 206–15.) Her
claims were initially denied on July 26, 2012 (id. at 76–99, 130–37), and on reconsideration on
February 12, 2013 (id. at 100–29, 145–46, 149–50). After a hearing held on September 11,
2014, an Administrative Law Judge (“ALJ”) issued a decision on October 31, 2014 denying
benefits based on a determination that plaintiff was not disabled. (Id. at 28–46.)
The Appeals Council denied plaintiff’s request for review on April 27, 2016, making the
ALJ’s opinion the final and reviewable decision of the Commissioner. (Id. at 1–7.) Plaintiff
challenges the Commissioner’s decision on the grounds that the ALJ: (1) failed to respond to
counsel’s request for a subpoena for plaintiff’s mental health records; (2) failed to properly
evaluate the severity of plaintiff’s obesity; (3) improperly discredited a treating physician’s
opinion; and (4) improperly evaluated plaintiff’s residual functional capacity (“RFC”). (ECF
No. 15-1 at 11–16.)

Tucker v. Colvin
Civil No.: BPG-16-1946
June 7, 2017
Page 2
II.

Discussion

First, plaintiff argues that the ALJ failed to respond to plaintiff’s request to subpoena her
mental health records, and improperly relied on the opinion of a single consultative examiner to
conclude that plaintiff’s depression was non-severe. (Id. at 11–12.) “When it is reasonably
necessary for the full presentation of a case,” an ALJ may, at the request of a party, issue
subpoenas for the production of records or other documents that are material to an issue at the
hearing. 20 C.F.R. §§ 404.950(d)(1), 416.1450(d)(1). The party wishing to subpoena documents
must file a written request, which must include the names of the documents to be produced;
describe the location of the documents with sufficient detail to find them; state the important
facts that the document is expected to prove; and indicate why those facts could not be proven
without issuing a subpoena. Id. §§ 404.950(d)(2), 416.1450(d)(2). Here, it is plain from the
record that plaintiff’s subpoena request did not comply with the regulations. (See R. at 177–81.)
Nevertheless, the ALJ should have notified plaintiff of the deficiencies in her request and denied
it on the record, rather than simply ignoring it. Particularly considering that plaintiff’s request
included treatment records from plaintiff’s treating mental health physician, Dr. Veronica
Franklin, in the absence of those records, the ALJ’s evaluation of Dr. Franklin’s opinion cannot,
as a matter of law, be supported by substantial evidence. See 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2) (requiring ALJ to give “controlling weight” to a treating physician’s opinion so
long as the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques”). Accordingly, remand is warranted on this issue.
Second, plaintiff contends that the ALJ did not properly account for plaintiff’s obesity in
evaluating plaintiff’s RFC, and failed to consider how plaintiff’s obesity exacerbated her
degenerative disc disease, arthritis, and depression. (ECF No. 15-1 at 12–13.) According to SSR
02-1p, “the combined effects of obesity with other impairments can be greater than the effects of
each of the impairments considered separately.” SSR 02-1p, 2002 WL 34686281, at *1 (Sept.
12, 2002). Accordingly, SSR 02-1p instructs the ALJ to “consider the effects of obesity . . .
when assessing a claim at other steps of the sequential evaluation process, including when
assessing an individual’s residual functional capacity.” Id. In this case, the ALJ determined that
plaintiff’s obesity was severe and noted that it may have an adverse impact on other
impairments. (R. at 34.) Specifically, the ALJ observed that “[s]omeone with obesity and
arthritis . . . may have more pain and limitation than might be expected from arthritis alone,” and
that “obesity may limit an individual’s ability to sustain activity on a regular and continuing
basis during an eight-hour day.” (Id.) Although the ALJ correctly noted these considerations,
she failed to apply them in plaintiff’s case. Indeed, besides these general remarks and a
recitation of the regulations, the ALJ does not so much as mention plaintiff’s obesity at any other
point in her opinion. Thus, the court has no basis by which to determine whether the ALJ
properly considered plaintiff’s obesity in assessing plaintiff’s work-related limitations at step
four of the sequential evaluation. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“A
necessary predicate to engaging in substantial evidence review is a record of the basis for the
ALJ's ruling [including] specific application of the pertinent legal requirements to the record
evidence.”) Accordingly, the court concludes that the ALJ’s evaluation of plaintiff’s obesity is
not supported by substantial evidence.

Tucker v. Colvin
Civil No.: BPG-16-1946
June 7, 2017
Page 3
Next, plaintiff argues that the ALJ improperly rejected the opinion of plaintiff’s treating
physician, Dr. Franklin. (R. at 13–15.) The ALJ must generally give more weight to a treating
physician’s opinion. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Where a treating physician’s
opinion is not supported by clinical evidence or is inconsistent with other substantial evidence,
however, the ALJ should afford it significantly less weight. Id.; Craig, 76 F.3d at 590. If the
ALJ does not give a treating source’s opinion controlling weight, the ALJ must assign weight
after considering several factors, including the length and nature of the treatment relationship,
the degree to which the physician’s opinion is supported by the record as a whole, and any other
factors that support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(1)–(6), 416.927(c)(1)–
(6). Here, Dr. Franklin opined that plaintiff had poor to no ability to relate to co-workers; deal
with the public; interact with supervisors; deal with work stressors; understand, remember, and
carry out complex and detailed job instructions; behave in an emotionally stable manner; and
relate predictably in social situations. (R. at 750–51.) The ALJ, however, failed to assign Dr.
Franklin’s opinion any weight at all, noting only that “Dr. Franklin’s opinion is not consistent
with the treatment record.” (Id. at 39.) As noted above, however, the record that the ALJ
considered did not include Dr. Franklin’s own treatment history. Although the ALJ noted that
plaintiff’s mental status examination findings were “essentially unremarkable,” (id.), she did not
explain in any reviewable detail why the results of non-treating medical sources warranted
rejecting Dr. Franklin’s opinion wholesale. Further, the ALJ stated that “while Dr. Franklin
opines that the claimant has poor to no ability in interacting with others, the claimant reported . .
. that she goes out in public daily and interacts with friends and close family.” (Id.) Plaintiff can
hardly be penalized for going out in public, and the fact that plaintiff’s social interactions are
limited to friends and close family does not, in and of itself, undermine Dr. Franklin’s findings of
poor ability to interact with co-workers and other members of the public.
Finally, plaintiff argues that the above-noted failures in the ALJ’s analysis resulted in an
erroneous RFC determination. For the reasons discussed above, the court concludes that remand
is warranted so that the Commissioner may correct the errors in its analysis, and re-evaluate
plaintiff’s RFC accordingly. In so holding, the court expresses no opinion on the merits of the
Commissioner’s decision.
III.

Conclusion

For the reasons stated above, Plaintiff’s Motion (ECF Nos. 14, 15) is DENIED and
Defendant’s Motion (ECF No. 18) is DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g),
the Commissioner’s judgment is REVERSED due to inadequate analysis. The case is
REMANDED for further proceedings in accordance with this opinion.

Tucker v. Colvin
Civil No.: BPG-16-1946
June 7, 2017
Page 4
Despite the informal nature of this letter, it will constitute an Order of the court and will
be docketed accordingly.
Very truly yours,
/s/
Beth P. Gesner
United States Magistrate Judge