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Bordley v. Social Security Commissioner

United States District Court, D. Maryland

March 9, 2016

JOSEPH N. BORDLEY,
v.
SOCIAL SECURITY COMMISSIONER

          REPORT AND RECOMMENDATIONS

          Stephanie A. Gallagher United States Magistrate Judge

         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. (ECF Nos. 11, 15). 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 recommend that the Court 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).

         Mr. Bordley protectively filed a claim for Supplemental Security Income (“SSI”) on August 20, 2012, alleging a disability onset date of January 1, 2007. (Tr. 63); see (Tr. 202-08). He later amended his onset date to December 4, 2011.[1] (Tr. 36, 219). His claim was denied initially and on reconsideration. (Tr. 95-98, 103-04). A hearing was held on August 18, 2015, before an Administrative Law Judge (“ALJ”). (Tr. 28-62). Following the hearing, the ALJ determined that Mr. Bordley was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 7-27). The Appeals Council (“AC”) denied Mr. Bordley's request for review, (Tr. 1-5), so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Mr. Bordley suffered from the severe impairments of “depression, diabetic neuropathy, substance abuse disorder, lateral humeral epicondylitis, degenerative disc disease, insulin dependent diabetes, [and] hypertension.” (Tr. 12). Despite these impairments, the ALJ determined that Mr. Bordley retained the residual functional capacity (“RFC”) to:

perform medium work as defined in 20 CFR 416.967(c) except stand/walk for 6 hour [sic] in an 8 hour workday, sit for 6 hour [sic] in an 8 hour workday; carry out short, simple instructions as well as understand and remember short, simple instructions; maintain attention and concentration for extended periods frequently.

(Tr. 14). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Mr. Bordley could perform his past relevant work and that, therefore, he was not disabled. (Tr. 20-21).

         Mr. Bordley raises three primary arguments on appeal: (1) that the ALJ's holding runs afoul of the Fourth Circuit's decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); (2) that the ALJ failed to properly evaluate the medical opinion evidence; and (3) that the ALJ failed to properly evaluate Mr. Bordley's credibility.[2] Pl. Mot. 12-22. I concur that the ALJ's opinion is deficient under Mascio, and thus recommend remand to allow compliance with that decision.

         Beginning with the successful argument, on March 18, 2015, the United States Court of Appeals for the Fourth Circuit published its opinion in Mascio. There, the Fourth Circuit determined that remand was appropriate for three distinct reasons, one of which is relevant to the analysis of this case. Specifically, the Fourth Circuit found that the hypothetical the ALJ posed to the VE - and the corresponding RFC assessment - did not include any mental limitations other than unskilled work, 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.

         This case is partially distinguishable from Mascio. The entirety of the step three analysis states:

With regard to concentration, persistence or pace, the claimant has moderate difficulties. The claimant reported difficulties paying attention. He reported to his physician that his attention did not stop him for [sic] working. He indicated that he has a hard time focusing.

(Tr. 13) (internal citation omitted). That analysis does not permit this Court to understand the precise parameters of the difficulties the ALJ believed Mr. Bordley to have. 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.

See also 20 C.F.R. § 416.920a(c)(2). 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 ...

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