Smick v. Commissioner of Social Security et al

Filing 22

REPORT AND RECOMMENDATIONS. Signed by Magistrate Judge Stephanie A Gallagher on 11/30/2017. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PAUL FRANKLIN SMICK, SR.
v.
COMMISSIONER, SOCIAL SECURITY

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Civil Case No. JFM-16-3818
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-referenced case was referred to me to
review the parties’ cross-motions for summary judgment and to make recommendations pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF No. 5]. I have considered the
parties’ cross-motions for summary judgment. [ECF Nos. 18, 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. See Local Rule
105.6 (D. Md. 2016). For the reasons set forth below, I recommend that the Court deny both
motions, reverse the judgment of the Commissioner, and remand the case to the Commissioner
for further analysis in accordance with this Report and Recommendations.
Mr. Smick applied for Disability Insurance Benefits (“DIB”) on January 25, 2011,
alleging a disability onset date of September 5, 2008. (Tr. 144-45). His claim was denied
initially and on reconsideration. (Tr. 94-97, 101-02). An Administrative Law Judge (“ALJ”)
held a hearing on January 30, 2013, (Tr. 29-69), and subsequently denied benefits to Mr. Smick
in a written opinion, (Tr. 7-28). The Appeals Council declined review, (Tr. 1-6), making the
ALJ’s decision the final, reviewable decision of the Agency.
The ALJ found that Mr. Smick suffered from the severe impairments of degenerative

disorders of the back, knees, and hips, and depression. (Tr. 12). Despite these impairments, the
ALJ determined that Mr. Smick retained the residual functional capacity to:
perform light work as defined in 20 CFR 404.1567(b) except that the claimant can
sit for 6 hours, and stand/walk for 2 hours. He must have a sit/stand option,
meaning he can stand up or sit down at will periodically during the work day. He
can never climb ladders/ropes/scaffolds, ramps/stairs and occasionally balance,
stoop, kneel, crouch and squat. He needs to engage in only simple and unskilled
work, and work not at a production pace. He must be isolated in the position, and
the claimant can only engage in only low stress work.
(Tr. 15). After considering the testimony from a vocational expert (“VE”), the ALJ determined
that Mr. Smick was capable of performing jobs existing in significant numbers in the national
economy, and that, therefore, he was not disabled. (Tr. 21-22).
Mr. Smick raises several arguments on appeal, but focuses on the inadequacy of the
ALJ’s determination that his impairment did not meet or equal the criteria set forth in Listing
12.04. I concur with Mr. Smick’s contention, because the ALJ’s Listing analysis was deficient.
In assessing mental health listings at step three, an ALJ applies the special technique for
evaluating mental impairments. See 20 C.F.R. § 404.1520a. The ALJ “must first evaluate [the
claimant's] pertinent symptoms, signs, and laboratory findings to determine whether [he or she]
ha[s] a medically determinable mental impairment(s).” Id. § 404.1520a(b)(1). The ALJ must
“then rate the degree of functional limitation resulting from the impairment(s)” in four broad
functional areas. Id. §§ 404.1520a(b)(2), 404.1520a(c). The ALJ must document the application
of the technique in the hearing decision, incorporating pertinent findings and conclusions, and
documenting the significant history and functional limitations that were considered.

Id. §

404.1520(e)(4).
Although the ALJ outlined the special technique in Mr. Smick’s case, she provided
inadequate analysis. In fact, the entire analysis consisted of the following conclusory paragraph:

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The claimant’s affective disorder implicates listing 12.04 (Affective Disorders)
but does not meet it because there is no evidence of repeated episodes of
decompensation of extended duration or marked difficulties in at least two areas
of mental functioning. The claimant has the following degree of limitation in the
broad areas of functioning set out in the disability regulations for evaluating
mental disorders and in the mental disorders listings in 20 CFR, Part 404, Subpart
P, Appendix 1: mild restriction in activities of daily living, mild difficulties in
maintaining social functioning, moderate difficulties in maintaining
concentration, persistence or pace, and no episodes of decompensation, each of
extended duration.
(Tr. 14). The ALJ simply stated the degree of functional limitation in each area, with no citation
to the evidence of record or explanation of the reasons for each finding. Id. The ALJ seems to
suggest that the evidence substantiating the conclusions would be found elsewhere in the
opinion. Id. However, while the remainder of the opinion includes a discussion of some of the
mental health evidence and the assignments of weight to various medical opinions, it does not
include any explicit analysis of the specific functional areas required to be considered for Listing
12.04.
Ultimately, in light of the lack of evidence cited by the ALJ to support her conclusions, I
cannot find substantial evidence to support her evaluation of Listing 12.04. Accordingly, I
recommend remand for the ALJ to fulfill her duty of explanation. In so recommending, I express
no opinion regarding whether the ALJ’s ultimate conclusion that Mr. Smick is not entitled to
benefits is correct.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Plaintiff’s Motion for Summary Judgment, (ECF No. 18);
2. the Court DENY Defendant’s Motion for Summary Judgment, (ECF No. 21);
3. the Court REVERSE IN PART due to inadequate analysis the Commissioner’s
judgment pursuant to sentence four of 42 U.S.C. § 405(g);
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4. the Court REMAND this case for further proceedings in accordance with this opinion;
and
5. the Court close this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: November 30, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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