Pell v. Colvin

Filing 29

ORDER denying 17 Plaintiff's Motion for Summary Judgment; denying 22 Defendant's Motion for Summary Judgment; reversing the Commissioner's judgment in part due to inadequate analysis; remanding the case for further proceedings in accordance with this opinion; closing this case. Signed by Magistrate Judge Stephanie A Gallagher on 7/20/2017. (krs, 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]

July 20, 2017
LETTER TO COUNSEL
RE:

Holly Pell v. Commissioner, Social Security Administration;
Civil No. SAG-16-2948

Dear Counsel:
On August 23, 2016, Plaintiff Holly Pell petitioned this Court to review the Social
Security Administration’s final decision to deny her claims for Disability Insurance Benefits and
Supplemental Security Income. (ECF No. 1). I have considered the parties’ cross-motions for
summary judgment, and the supplemental briefing filed by each side. (ECF Nos. 17, 22, 24, 28).
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). Under that standard, I will deny both motions, reverse the judgment of the
Commissioner, and remand the case to the Commissioner for further analysis pursuant to
sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.
Ms. Pell filed claims for Disability Insurance Benefits and Supplemental Security Income
in the summer of 2012, originally alleging a disability onset date of March 8, 2004.1 (Tr. 17180). Her claims were denied initially and on reconsideration. (Tr. 60-80, 85-104). A hearing
was held on May 7, 2015, before an Administrative Law Judge (“ALJ”). (Tr. 34-59). Following
that hearing, on June 19, 2015, the ALJ determined that Ms. Pell was not disabled during the
relevant time frame. (Tr. 10-33). The Appeals Council denied Ms. Pell’s request for review, (Tr.
2-6), so the ALJ’s decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Ms. Pell suffered from the severe impairments of “status post right
hip fusion and total hip replacement and obesity.” (Tr. 16). Despite these impairments, the ALJ
determined that Ms. Pell retained the residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
she can do work that frequently requires balancing, stooping, kneeling and
climbing ramps and stairs, occasionally requires crouching and crawling, but
never requires the use of ladders, ropes or scaffolds. The claimant can perform
jobs that allow her to switch between sitting and standing alternately at 30-minute
1

Ms. Pell later amended her onset date to January 29, 2013, which is after her date last insured of December 31,
2009. (Tr. 191-93). Accordingly, only her claim for Supplemental Security Income remains viable.

Holly Pell v. Commissioner, Social Security Administration
Civil No. SAG-16-2948
July 20, 2017
Page 2
intervals, provided she remain on task while in either position during the work
period, and she needs a cane to walk.
(Tr. 19). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Pell could perform jobs existing in significant numbers in the national economy and that,
therefore, she was not disabled. (Tr. 25-26).
Ms. Pell raises three primary arguments on appeal: (1) that the ALJ failed to consider an
opinion from her treating physician, Dr. Mikhail; (2) that the ALJ should have deemed her
depression, knee pain, and back pain to be severe impairments; and (3) that the ALJ posed an
inadequate hypothetical to the VE. In addition, in a supplemental filing, Ms. Pell argues that the
ALJ did not comply with Lewis v. Berryhill, 858 F.3d 858 (4th Cir. 2017). I concur that the ALJ
did not consider Dr. Mikhail’s opinion, apparently due to a clerical error by the Social Security
Administration, and I am therefore remanding the case. However, I express no opinion as to
whether the ALJ’s ultimate conclusion that Ms. Pell is not entitled to benefits is correct or
incorrect.
Beginning with the successful argument, Ms. Pell alleges that the ALJ failed to consider a
Medical Assessment Report (“MAR”) completed by her treating physician, Dr. Mikhail, on May
6, 2015. Pl. Mot. at 12-16. According to Ms. Pell, while the Social Security Administration’s
index of her record reflects the inclusion of the MAR, the actual record does not contain the
MAR and instead contains a duplicate opinion from a different doctor. Ms. Pell attached a copy
of the missing MAR as Exhibits A and B to her motion, and the five pages bear handwritten
numbers in the lower corners (page numbers 1-3 in Exhibit A and 6-7 in Exhibit B). In pertinent
part, the MAR contains Dr. Mikhail’s handwritten notes of Ms. Pell’s diagnoses, symptoms, and
physical signs through more than ten years of treatment, in addition to Dr. Mikhail’s opinions
about her functional capacity. Pl. Mot. Exh. A.
Inexplicably, the Commissioner contends that “the [A]gency did include Dr. Mikhail’s
May 6, 2015 MAR in the transcript record at pages 385-86.” Def. Mot. at 14. However, even a
cursory comparison of the documents shows that the Agency only included two pages
(handwritten numbers 4-5), which do not contain the important analysis described above. In
fact, the ALJ assigned only “little weight” to those two pages in part because Dr. Mikhail “did
not cite to any treatment or examination notes or diagnostic imaging to support his opinion,” (Tr.
23), even though such evidence was cited on the missing pages. Thus, Ms. Pell is correct that the
Agency’s recordkeeping error precluded the ALJ’s consideration of the opinion of her longtime
treating physician, which could be viewed to corroborate other medical evidence supporting a
finding of disability. Remand is therefore warranted to permit complete consideration of the
evidence of record.
However, Ms. Pell’s supplemental argument, that the ALJ violated Lewis, is
unpersuasive. In Lewis, the Fourth Circuit reiterated that an ALJ cannot rely exclusively on
objective evidence to undermine a claimant’s credibility. See 858 F.3d 866. In this case, the
ALJ expressly found that, “[t]he subjective factors in this case are generally not persuasive.”

Holly Pell v. Commissioner, Social Security Administration
Civil No. SAG-16-2948
July 20, 2017
Page 3
(Tr. 20). Moreover, in addition to relying on certain factors that the Fourth Circuit did not
appear to find sufficient in Lewis, the ALJ in Ms. Pell’s case expressly listed Ms. Pell’s own
statements that he believed to undermine her credibility. See, e.g, (Tr. 20) (noting that Ms. Pell
“reported during a May 4, 2013 consultative examination that she gets along fine with others and
had no trouble at work, a point she confirmed as true at the hearing.”); (Tr. 21) (noting that Ms.
Pell “admittedly does not need reminders, is able to count change, pay bills and follow written
instructions”). Thus, the ALJ’s analysis in this case satisfies the dictates of Lewis.
In terms of Ms. Pell’s remaining arguments regarding the severity of her depression,
knee pain, and back pain and the adequacy of the ALJ’s hypothetical to the VE, the ALJ will
have the ability to provide further explanation or to alter the hypothetical, if desired, on remand.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (ECF No. 17)
is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 22) 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