Green v. Colvin

Filing 17

REPORT AND RECOMMENDATIONS re 13 MOTION for Summary Judgment filed by Carolyn J. Colvin, 12 MOTION for Summary Judgment on All Counts filed by Martin Green. Signed by Magistrate Judge Stephanie A Gallagher on 2/15/2017. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARTIN GREEN

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v.
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COMMISSIONER, SOCIAL SECURITY
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Civil Case No. GJH-16-385

REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014–01, the above-captioned case has been referred to me to
review the parties’ dispositive motions and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ cross-motions for
summary judgment, and Mr. Green’s reply. [ECF Nos. 12, 13, 16]. 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. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996);
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). For the reasons set forth below, I
recommend that both motions be denied, that the Commissioner’s decision be reversed in part,
and that the case be remanded to the Commissioner for further analysis.
Mr. Green filed an application for Disability Insurance Benefits (“DIB”) on December
14, 2011, originally alleging a disability onset date of May 10, 2005.1 (Tr. 136-39). His
application was denied initially on March 23, 2012, and on reconsideration on September 11,
2012. (Tr. 66-72, 74-80). An Administrative Law Judge (“ALJ”) held a hearing on June 9,
2014, at which Mr. Green was represented by counsel. (Tr. 31-65). Following the hearing, the
ALJ determined that Mr. Green was not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 15-30). The Appeals Council denied Mr. Green’s request
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At his hearing, Mr. Green amended his alleged onset date to September 1, 2008. (Tr. 42-43). Because his date last
insured was December 31, 2008, the ALJ had to consider disability within a four-month window.

for review, (Tr. 1-7), so the ALJ’s decision constitutes the final, reviewable decision of the
Agency.
The ALJ found that Mr. Green suffered from the severe impairments of degenerative disc
disease and osteoarthritis. (Tr. 20). Despite these impairments, the ALJ determined that Mr.
Green retained the residual functional capacity (“RFC”) to “perform the full range of light work
as defined in 20 CFR 404.1567(b).” (Tr. 22).

After considering the testimony of a vocational

expert (“VE”), the ALJ determined that Mr. Green could perform his past relevant work as a car
salesman and, alternatively, could perform other work existing in significant numbers in the
national economy. (Tr. 25-26). Accordingly, the ALJ concluded that Mr. Green was not
disabled. (Tr. 26-27).
Mr. Green disagrees. He raises two primary arguments on appeal: (1) that the ALJ did
not adequately consider the Social Security Administration’s prior determination that Mr. Green
qualified for disability benefits as of March 1, 2009 (the date he applied for Supplemental
Security Income benefits); and (2) the ALJ improperly evaluated Listing 1.04. Because I agree
that the ALJ should have evaluated the prior disability determination, I recommend that the case
be remanded to the Commissioner for additional explanation. In so recommending, I express no
opinion as to whether the Commissioner’s ultimate decision that Mr. Green was not entitled to
benefits, was correct or incorrect.
On March 1, 2009, Mr. Green filed an application for Supplemental Security Income
(“SSI”). [ECF No. 12-2]. On December 9, 2009, he received a letter notifying him that he had
been found disabled and would receive SSI beginning April, 2009.2 Id. The ALJ was aware of

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Although the Commissioner submitted documents evidencing a disability onset date of January 27, 2009 for the
SSI benefits, the Commissioner provided no evidence of the rationale behind the selection of that onset date. [ECF
No. 13-2, 13-3]. Moreover, determining a precise onset date is generally not as critical in a case involving SSI,
since, regardless of the onset date, payment can only be made beginning the first full calendar month after the
application for benefits. See, e.g., [ECF No. 12-2] (noting that Mr. Green would receive SSI beginning April, 2009
since he applied on March 1, 2009).

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the previous finding of disability and award of SSI benefits at the time of the hearing. (Tr.
1278). Nonetheless, the ALJ did not address that previous finding at any point within his
decision.
Mr. Green cites Lively v. Secretary of Health and Human Servs., 820 F.2d 1391 (4th Cir.
1987) for the proposition that res judicata prohibits the Commissioner from reaching an
inconsistent result in a second proceeding based on evidence already weighed in a claimant’s
favor in a first proceeding. Pl. Mot. at 4-5. The Commissioner correctly notes that this case can
be factually distinguished from Lively because (1) the period being considered in Mr. Green’s
DIB claim (September 1, 2008 through December 31, 2008) predated the Commissioner’s prior
finding of disability onset on January 27, 2009, and (2) the two findings are not inherently
“inconsistent,” since the dates are separated by almost one month.

However, it is also true that,

upon receiving treatment in January, 2009, Mr. Green reported that he had been experiencing
symptoms for weeks, and that medical records within the relevant time frame for his DIB claim
reflect that he was experiencing right-sided numbness that correlates with the right-sided
symptoms resulting in his surgery in early 2009. See, e.g., (Tr. 1288) (indicating that right-sided
tingling and weakness had developed six weeks prior to the appointment on January 22, 2009);
(Tr. 724) (documenting right arm and leg numbness in December, 2008); (Tr. 745) (documenting
right hand numbness and right arm weakness in November, 2008). Thus, there is arguable
inconsistency between the two decisions, and, like in Lively, res judicata principles might apply
even though the time periods are not identical, particularly given the close proximity of less than
one month.

It may be that the ALJ can establish that Mr. Green’s condition worsened

sufficiently in January to justify the later disability onset date. However, because the ALJ failed
to acknowledge the disability finding and provided no analysis or explanation as to why Mr.
Green would be found “not disabled” in December but “disabled” in January, I am unable to

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ascertain whether the ALJ’s determination was supported by substantial evidence.
Mr. Green also contends that the ALJ’s analysis of Listing 1.04A did not comport with
the dictates of Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). Pl. Mot. 6-9. Without question,
the ALJ could have provided some additional factual analysis to support his conclusion that the
Listing had not been met or equaled. For example, the ALJ conclusorily asserts that Mr. Green
lacks “evidence of nerve root compression accompanied by sensory or reflex loss,” (Tr. 22),
without citing to any of the medical records that Mr. Green submits contain such evidence, and
without reviewing the other criteria in the Listing, such as “neuro-anatomic distribution of pain,”
“limitation of motion of the spine,” or “motor loss.” See 20 C.F.R. Part 404, Subpart P, App. 1,
§ 1.04A. Accordingly, since the case is being remanded on other grounds, I recommend that, on
remand, the ALJ provide more specific analysis regarding whether Mr. Green experienced each
of the relevant criteria of Listing 1.04A within a twelve-month period.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment [ECF No. 12];
2. the Court DENY Mr. Green’s Motion for Summary Judgment [ECF No. 13];
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);
4. the Court REMAND this case to the Commissioner 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).

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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: February 15, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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