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Winkler v. Commissioner, Social Security Administration

United States District Court, D. Maryland

July 2, 2015

Kim Mary Elizabeth Winkler
v.
Commissioner, Social Security Administration;

Dear Counsel:

On August 25, 2014, Plaintiff Kim Mary Elizabeth Winkler petitioned this Court to review the Social Security Administration’s final decision to deny her claim for Supplemental Security Income. [ECF No. 1]. I have considered the parties’ cross-motions for summary judgment, the Commissioner’s supplemental brief in support of her motion, and Ms. Winkler’s reply. [ECF Nos. 23, 28, 30, 31]. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2014). 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 parties’ motions, reverse the Commissioner’s judgment, and remand the case to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.

Ms. Winkler filed a claim for Supplemental Security Income (“SSI”) on December 21, 2010, alleging a disability onset date of November 10, 2004. (Tr. 166-74). Her claim was denied initially and on reconsideration. (Tr. 121-24, 126-28). A hearing was held on September 5, 2012, before an Administrative Law Judge (“ALJ”). (Tr. 40-82). Following the hearing, the ALJ determined that Ms. Winkler was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 21-39). The Appeals Council denied Ms. Winkler’s request for review, (Tr. 1-6), so the ALJ’s decision constitutes the final, reviewable decision of the agency.

The ALJ found that Ms. Winkler suffered from the severe impairments of affective disorder, degenerative disc disease of the lumbar and cervical spine, asthma, fibromyalgia, and obesity. (Tr. 26). Despite these impairments, the ALJ determined that Ms. Winkler retained the residual functional capacity (“RFC”) to

perform sedentary work as defined in 20 CFR 416.967(a) involving lifting 10 pounds occasionally, less than 10 pounds frequently, standing and walking for 2 hours and sitting for about 6 hours in an 8-hour workday. The claimant can perform each of the following postural activities occasionally: climbing ramps/stairs, balancing, stooping, kneeling, crouching, crawling and climbing ladders, ropes or scaffolds. The claimant must avoid concentrated exposure to hazards, extreme cold, heat, vibration, fumes, odors, dusts, gases and poor ventilation. The claimant requires work, which involves routine, repetitive and unskilled tasks with occasional face to face interaction and little or no changes in the work setting.

(Tr. 29). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Ms. Winkler could perform jobs existing in significant numbers in the national economy and that, therefore, she was not disabled. (Tr. 34-35).

On appeal, Ms. Winkler raised a single argument regarding the ALJ’s failure to consider in combination her non-severe impairment of ulcerative colitis and her complaints of pain. Pl. Mot. 9-13. Additionally, as addressed below, I have considered Ms. Winkler’s case under the dictates of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), a Social Security appeal from the Eastern District of North Carolina, and under the dictates of Social Security Ruling (“SSR”) 12– 2p, governing cases involving fibromyalgia.[1] Because the ALJ’s evaluation of Ms. Winkler’s “moderate limitation” in concentration, persistence, or pace was inadequate under Mascio, and because the consideration of her fibromyalgia falls short of the analysis required by the relevant SSR, remand is warranted. In so holding, I express no opinion as to whether the ALJ’s ultimate determination that Ms. Winkler was not entitled to benefits was correct or incorrect.

As background, on March 18, 2015, while Ms. Winkler’s case remained pending, the United States Court of Appeals for the Fourth Circuit published its opinion in Mascio. In Mascio, the Fourth Circuit determined that remand was appropriate for three distinct reasons, one of which appeared relevant to the analysis of this case. Accordingly, on April 29, 2015, the Court afforded the Commissioner an additional 30 days to file a brief addressing the apparent Mascio issue. [ECF No. 29]. The Commissioner filed a supplemental brief on May 30, 2015. [ECF No. 30].

Pertinent to this case, the Fourth Circuit remanded Mascio because the hypothetical the ALJ posed to the VE – and the corresponding RFC assessment – did not include any mental limitations other than “routine, repetitive and unskilled tasks with occasional face to face interaction and little to no changes in the work setting, ”[2] despite the fact that, at step three of the sequential evaluation, the ALJ determined that the claimant had moderate difficulties in maintaining concentration, persistence, or pace. Mascio, 780 F.3d at 637-38. The Fourth Circuit specifically held that it “agree[s] with other circuits that an ALJ does not account for a claimant’s limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.” Id. at 638 (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)) (internal quotation marks omitted). In so holding, the Fourth Circuit emphasized the distinction between the ability to perform simple tasks and the ability to stay on task, stating that “[o]nly the latter limitation would account for a claimant’s limitation in concentration, persistence, or pace.” Id. Although the Fourth Circuit noted that the ALJ’s error might have been cured by an explanation as to why the claimant’s moderate difficulties in concentration, persistence, or pace did not translate into a limitation in the claimant’s RFC, it held that absent such an explanation, remand was necessary. Id.

In this case, at step three of the sequential evaluation, the ALJ determined that, “with regard to concentration, persistence or pace, ” Ms. Winkler has “moderate difficulties.” (Tr. 28). The entirety of the analysis states, “The claimant testified to experiencing increased forgetfulness and confusion. However, mental status examination showed the claimant’s attention and concentration was intact. Moreover, the claimant reported she is able to shop in stores, pay bills and count change.” Id. According to 20 C.F.R. § 404.1520a(c)(2), the rating of “moderate difficulties” is supposed to represent the result of application of the following technique:

We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function.

Once the technique has been applied, the ALJ is supposed to include the results in the opinion as follows:

At the administrative law judge hearing and Appeals Council levels, the written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section.

20 C.F.R. § 404.1520a(e)(4). The cursory analysis provided by the ALJ in Ms. Winkler’s case suggests that the finding of “moderate difficulties” was based exclusively on Ms. Winkler’s testimony that she experiences forgetfulness and confusion, since the ...


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