Moody v. Colvin
Filing
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LETTER MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 7/13/2016. (jf3s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE
6500 Cherrywood Lane
Greenbelt, Maryland 20770
Telephone: (301) 344-3593
MDD_TJSchambers@mdd.uscourts.gov
July 13, 2016
LETTER TO COUNSEL:
RE:
Johnny Moody o/b/o Keisha Mickle v. Carolyn W. Colvin, Acting Commissioner
of Social Security
Civil No. TJS-15-1053
Dear Counsel:
On July 1, 2015, the Plaintiff, Johnny Moody, petitioned this Court to review the Social
Security Administration’s final decision to deny his deceased wife’s claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (ECF No. 1.) The parties
have filed cross-motions for summary judgment. (ECF Nos. 14 & 15.) These motions have been
referred to the undersigned with the parties’ consent pursuant to 28 U.S.C. § 636 and Local Rule
301. (ECF Nos. 4 & 9.) I find that no hearing is necessary. See Loc. R. 105.6. This Court must
uphold the decision of the agency if it is supported by substantial evidence and if the agency
employed the proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin, 780
F.3d 632, 634 (4th Cir. 2015). Under that standard, I will deny both motions and remand this
case for further proceedings. This letter explains my rationale.
Keisha Mickle (“Ms. Mickle”), the deceased wife of Plaintiff Johnny Moody, filed her
application for DIB and SSI in January 2012. (Tr. 156-66, 184.) She alleged disability beginning
on June 15, 2011. (Id.) Her claims were denied initially and on reconsideration. (Tr. 66-79, 82101.) A hearing was held before an Administrative Law Judge (“ALJ”) on July 24, 2013. (Tr. 3265.) On July 30, 2013, the ALJ determined that Ms. Mickle was not disabled under the Social
Security Act as she retained the residual functional capacity (“RFC”) to perform work at jobs
that exist in significant numbers in the national economy. (Tr. 21-31.) Ms. Mickle died on
November 30, 2013, and her widower, Johnny Moody, was made a substitute party.1 (Tr. 7-8.)
The Appeals Council denied Ms. Mickle’s request for review on February 5, 2015, making the
ALJ’s decision the final, reviewable decision of the agency. (Tr. 1-3.)
The ALJ evaluated Ms. Mickle’s claim for benefits using the five-step sequential
evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that
Ms. Mickle was not engaged in substantial gainful activity, and had not been engaged in
substantial gainful activity since June 15, 2011. (Tr. 26.) At step two, the ALJ found that Ms.
Mickle suffered from the severe impairments of “diabetes mellitus, diabetic neuropathy, asthma,
allergic rhinitis, onychomycosis, ingrown toenails, left knee pain, and obesity.” (Id.) At step
1
See 20 C.F.R. §§ 404.503(b)(1) and 416.542(b)(1).
three, the ALJ found that Ms. Mickle’s impairments, separately and in combination, failed to
meet or equal in severity any listed impairment as set forth in 20 C.F.R., Chapter III, Pt. 404,
Subpart P, App. 1 (“Listings”) (Tr. 27.) The ALJ determined that Ms. Mickle had the RFC
to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except
occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds,
stand and/or walk about 6 hours in an 8-hour workday, sit for a total of about 6
hours in an 8-hour workday, frequently balance and stoop, and occasionally
climb, kneel, crouch and crawl. She must avoid concentrated exposure to extreme
cold, extreme heat, humidity and fumes, odors, dusts, gases, poor ventilation, etc.,
and even moderate exposure to hazards. She requires the ability to alternate
between sitting and standing about every 30 minutes.
(Tr. 27-28.)
At step four, the ALJ determined that Ms. Mickle was unable to perform any past
relevant work. (Tr. 29.) At step five, the ALJ determined that, considering Ms. Mickle’s age,
education, work experience, and RFC, there were jobs that exist in significant numbers in the
national economy that she could have performed. (Tr. 30.) Therefore, the ALJ found that Ms.
Mickle was not disabled under the Social Security Act. (Tr. 31.)
The core of Ms. Mickle’s argument on appeal is that the ALJ failed to properly evaluate
her credibility, and in doing so, arrived at an RFC determination that is not supported by
substantial evidence.2 Because I find that the ALJ failed to adequately explain why Ms. Mickle’s
statements were not credible, I am unable to determine whether the ALJ’s RFC determination is
supported by substantial evidence. I am therefore required to remand this case for further
proceedings.3
In explaining his RFC determination, the ALJ stated that Ms. Mickle’s “statements
concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely
credible for the reasons explained in this decision.” (Tr. 28.) The ALJ’s decision states that Ms.
Mickle’s activities of daily living “go beyond limitations that would preclude work.” (Tr. 28.)
The ALJ found that Ms. Mickle’s activities of daily living include “taking care of her son,
personal care without problem, preparing meals of fresh foods, cleaning, laundry, going out
twice a week, shopping in stores, watching TV, and talking to her son.” (Id.) In support of these
2
Mr. Moody presents four related arguments on appeal: (1) that the ALJ failed to
consider the entire record in formulating the RFC; (2) that the ALJ did not address all of Ms.
Mickle’s complaints and resulting functional limitations; (3) that the ALJ did not properly
evaluate Ms. Mickle’s credibility in accordance with Social Security Ruling (“SSR”) 96-7p; and
(4) that the ALJ did not properly consider the opinions of the state agency doctors. (Tr. 14-1.) I
note that SSR 96-7p has, effective March 28, 2016, been superseded by SSR 16-3p, which would
seem to apply upon remand.
3
Because I am remanding this case on this basis, I decline to address the rest of Mr.
Moody’s arguments and express no opinion on their merits.
2
findings, the ALJ cites to an undated function report (Tr. 226-36) that Ms. Mickle completed.
While the ALJ’s cherry-picking from this report may paint of a rosier picture of Ms. Mickle’s
life than was actually the case, it is not the job of this Court to second-guess the ALJ’s factual
findings. Because the ALJ’s findings regarding Ms. Mickle’s abilities are apparently derived
solely from this function report, it is not clear how the ALJ weighed other evidence in the record.
During the administrative hearing, for example, Ms. Mickle testified that she generally stays in
bed several hours per day because of nausea, which is a side effect she experiences from her
medications. (Tr. 46-47.) She also testified that she experiences swelling in her legs and feet
during the day that is so severe that she cannot wear ordinary shoes and must keep her legs
elevated for between 6 and 8 hours each day. (Tr. 48.)
If deemed credible, these statements are at odds with the ALJ’s findings that Ms.
Mickle’s daily activities went “beyond limitations that would preclude work.” (See Tr. 28.) The
ALJ, however, did not address these statements in his discussion regarding Ms. Mickle’s
credibility. Instead the ALJ cited to other parts of the record that demonstrate that Ms. Mickle
was not compliant with the dietary recommendations of her physicians, that she did not monitor
her blood glucose levels as directed, and that she did not undergo the gastric bypass surgery
recommended by her physician.4 While evidence of a claimant’s noncompliance with treatment
recommendations may be relevant to an ALJ’s RFC determination, an ALJ’s findings in this
regard must be specific. See Preston v. Heckler, 769 F.2d 988, 990-91 (4th Cir. 1985) (stating
that if “noncompliance is to be a basis for denying benefits, the Secretary must develop a record
establishing by substantial evidence that the claimant’s impairment ‘is reasonably remediable by
the particular individual involved’ . . . and that [the] claimant lacks good cause for failing to
follow a prescribed treatment program.”). Here, the ALJ made reference to Ms. Mickle’s failure
to comply with the recommendations of her physicians, but did not explain how her
noncompliance factored into the decision regarding her credibility.
While the Commissioner’s motion explains why the ALJ’s adverse credibility findings
are supported by substantial evidence, this Court cannot permit this post hoc rationalization to
take the place of the ALJ’s reasoning. See Monroe v. Colvin, --- F.3d. ----, 2016 WL 3349355, at
*10-11 (4th Cir. 2016) (stating that “a necessary predicate to engaging in substantial evidence
review is a record of the basis for the ALJ’s ruling, including a discussion of which evidence the
ALJ found credible and why, and specific application of the pertinent legal requirements to the
record evidence”) (internal quotation marks omitted); see also Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000) (noting that an ALJ “must build an accurate and logical bridge from the
evidence to his conclusion”). Because the ALJ’s decision does not explain why he discredited
Ms. Mickle’s statements regarding her nausea, fatigue and edema, this Court cannot review the
ALJ’s decision to determine whether it is supported by substantial evidence. See Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (holding that “[i]f the reviewing court has no way of
evaluating the basis for the ALJ’s decision, then ‘the proper course, except in rare circumstances,
is to remand to the agency for additional investigation or explanation’”) (quoting Florida Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
4
At the administrative hearing, Ms. Mickle testified that her physician recommended that
she wait to undergo gastric bypass surgery until she had resolved her other medical issues,
including her vitamin D deficiency. (Tr. 56.)
3
The ALJ’s decision states that Ms. Mickle’s statements were “not entirely credible for the
reasons explained in [the] decision.” (Tr. 28.) The decision, however, does not actually provide
the ALJ’s reasons for finding Ms. Mickle less than credible. On remand, “if the ALJ decides to
discredit [Ms. Mickle’s statements], it will be incumbent on him to provide a clearer explanation
of his reasons for doing so, such that it will allow meaningful review of his decision.” Monroe,
2016 WL 3349355 at *11.
For the reasons set forth herein, Mr. Moody’s Motion for Summary Judgment (ECF No.
14) and the Commissioner’s Motion for Summary Judgment (ECF No. 15) will be DENIED. The
ALJ’s opinion will be VACATED and the case will be REMANDED for further proceedings.
The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion. An
implementing Order follows.
Sincerely yours,
/s/
Timothy J. Sullivan
United States Magistrate Judge
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