United States District Court, D. Maryland
On February 17, 2015, Plaintiff Coy Lathan petitioned this Court to review the Social Security Administration’s (“SSA”) final decision to deny his claims for Disability Insurance Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties’ cross-motions for summary judgment. (ECF Nos. 14, 15). In addition, I have reviewed the Commissioner’s supplemental briefing regarding the impact of the Fourth Circuit’s recent decision in Fox v. Colvin, ___Fed. App’x ___, 2015 WL 9204287 (4th Cir. Dec. 17, 2015), and the Plaintiff’s response thereto. (ECF Nos. 17, 18). 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 motions, reverse the Commissioner’s decision in part, and remand the case to the Commissioner for further consideration. This letter explains my rationale.
On March 22, 2012, Mr. Lathan filed his claims for benefits, alleging a disability onset date of February 1, 2005. (Tr. 173-83). His claims were denied initially and on reconsideration. (Tr. 109-16, 121-24). A hearing was held on August 16, 2013, before an Administrative Law Judge (“ALJ”). (Tr. 27-55). Following the hearing, the ALJ determined that Mr. Lathan was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 10-26). The Appeals Council denied Mr. Lathan’s request for review, (Tr. 1-3), so the ALJ’s decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Mr. Lathan suffered from the severe impairments of learning disabilities, depression, borderline intellectual functioning, obesity, diabetes mellitus, hypertension, bilateral hearing loss, and chronic back pain. (Tr. 15). Despite these impairments, the ALJ determined that Mr. Lathan retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant is also limited to unskilled, low-stress work that involves only simple routine tasks and only simple decisions on an occasional basis. The claimant’s work should not be production-paced and should not include productions [sic] standards, judgment changes, and/or frequent general changes to the routine work environment. Further, the claimant is limited to only occasional interaction with supervisors, coworkers, and public. In addition, the claimant must occasionally use a hand-held device for standing, walking, and balancing. The claimant is limited to work that permits the claimant to alternate between sitting and standing at-will during the workday to alleviate symptoms of pain and discomfort.
(Tr. 17). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Mr. Lathan could perform jobs existing in significant numbers in the national economy and that, therefore, he was not disabled. (Tr. 21-22).
Mr. Lathan raises two primary arguments on appeal: (1) that the ALJ should have considered him to be in a borderline age range; and (2) that the ALJ’s analysis was deficient under Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Mr. Lathan also contends that the ALJ’s analysis did not comport with Fox. While I disagree with Mr. Lathan’s Mascio argument, I concur that Fox mandates remand for the ALJ to provide further discussion of the mental health listings. In so determining, I express no opinion as to whether the ALJ’s ultimate conclusion that Mr. Lathan was not entitled to benefits is correct or incorrect.
Beginning with the unsuccessful argument, in Mascio, the United States Court of Appeals for the Fourth Circuit determined that remand was appropriate for three distinct reasons, including, as pertinent to this case, the inadequacy of the ALJ’s evaluation of “moderate difficulties” in concentration, persistence, or pace. Id. at 638. At step three of the sequential evaluation, the ALJ determines whether a claimant’s impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Listings 12.00 et. seq., pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. Each listing therein consists of: (1) a brief statement describing its subject disorder; (2) “paragraph A criteria, ” which consists of a set of medical findings; and (3) “paragraph B criteria, ” which consists of a set of impairment-related functional limitations. Id. § 12.00(A). If both the paragraph A criteria and the paragraph B criteria are satisfied, the ALJ will determine that the claimant meets the listed impairment. Id.
Paragraph B consists of four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. The ALJ employs the “special technique” to rate a claimant’s degree of limitation in each area, based on the extent to which the claimant’s impairment “interferes with [the claimant’s] ability to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. §§ 404.1520a(c)(2), 416.920a(c)(2). The ALJ uses a five-point scale to rate a claimant’s degree of limitation in the first three areas: none, mild, moderate, marked, or extreme. Id. §§ 404.1520a(c)(4), 416.920(a)(c)(4). In order to satisfy paragraph B, a claimant must exhibit either “marked” limitations in two of the first three areas, or “marked” limitation in one of the first three areas with repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.02. Marked limitations “may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with [the claimant’s] ability to function.” Id. § 12.00(C).
The functional area of “concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings.” Id. § 12.00(C)(3). Social Security regulations do not define marked limitations in concentration, persistence, or pace “by a specific number of tasks that [a claimant is] unable to complete.” Id. The regulations, however, offer little guidance on the meaning of “moderate” limitations in the area of concentration, persistence, or pace.
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 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.
Unlike in Mascio, the ALJ in this case imposed several limitations specifically designed to address Mr. Lathan’s difficulties with concentration, persistence, or pace. The ALJ specified that Mr. Lathan’s work “should not be production-paced and should not include productions [sic] standards, judgment changes, and/or frequent general changes to the routine work environment.” (Tr. 17). In light of those restrictions to address Mr. Lathan’s moderate limitations, remand under Mascio is unwarranted.
On the other hand, Fox provides a valid basis for remand. In Fox, the Fourth Circuit clarified the evidentiary requirements needed to support an ALJ’s finding at step three of the sequential evaluation. Step three requires the ALJ to determine whether a claimant’s impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Listings describe each of the major body system impairments that the Agency “consider[s] to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” 20 C.F.R. §§ 404.1525(a), 416.925(a). Listings 12.00 et. seq., pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.
In Fox, regarding his findings at step three of the sequential evaluation, the ALJ stated: Although the claimant has ‘severe’ impairments, they do not meet the criteria of any listed impairments described in Appendix 1 of the Regulations. (20 CFR, Subpart P, Appendix 1). No treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment, nor does the evidence show medical findings that are equivalent to those of any listed impairment of the ...