United States District Court, D. Maryland
January 29, 2015, the Plaintiff, Tylnne Johnson (“Ms.
Johnson”), petitioned this Court to review the Social
Security Administration’s final decision to deny her
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 & 17.) 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. 6 & 7.) 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).
Following its review, this Court may affirm, modify, or
reverse the Commissioner, with or without a remand.
See 42 U.S.C. § 405(g); Melkonyan v.
Sullivan, 501 U.S. 89 (1991). Under that standard, I
will deny both motions and remand this case for further
proceedings. This letter explains my rationale.
Johnson protectively filed her applications for DIB and SSI
on August 16, 2010, alleging that she became disabled on
September 1, 2004. (Tr. 195-205.) Her claims were denied
initially and on reconsideration. (Tr. 76-79.) A hearing was
held before an Administrative Law Judge (“ALJ”)
on May 23, 2013. (Tr. 48-75.) On July 8, 2013, the ALJ
determined that Ms. Johnson was not disabled under the Social
Security Act. (Tr. 28-39.) On December 12, 2014, the Appeals
Council denied Ms. Johnson’s request for review, making
the ALJ’s decision the final, reviewable decision of
evaluated Ms. Johnson’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. Johnson was not engaged in substantial gainful
activity, and had not been engaged in substantial gainful
activity since September 1, 2004. (Tr. 30.) At step two, the
ALJ found that Ms. Johnson suffered from the severe
impairments of “multiple hernias in abdominal/inguinal,
status post surgery for recurrent hernias, bipolar disorder,
and depression.” (Id.) At step three, the ALJ
found that Ms. Johnson’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. 31-32.)
Before proceeding to step four, the ALJ determined that Ms.
Johnson retained the residual functional capacity
to perform sedentary work as defined in 20 C.F.R. 404.1567(a)
and 41.6.967(a) except with the following limitations. The
claimant can occasionally lift and carry up to 20 pounds. She
can frequently lift and carry up to 10 pounds. She can
stand/walk for a total of 2 hours in an eight-hour workday
and sit for a total of 6 hours in an eight-hour workday. She
can occasionally climb ramps and stairs. She can never climb
ladders, ropes, or scaffolds. She can occasionally balance,
stoop, kneel, crouch, or crawl. She retains the ability to
understand, remember, and carry out instructions concerning
simple routine repetitive tasks. She can have occasional
interaction with coworkers and no interaction with the
four, the ALJ determined that Ms. Johnson had no past
relevant work. (Tr. 38.) At step five, the ALJ determined
that, considering Ms. Johnson’s age, education, work
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that she can perform. (Tr.
38.) Accordingly, the ALJ found that Ms. Johnson was not
disabled under the Social Security Act. (Tr. 39.)
Johnson raises four arguments on appeal: (1) the ALJ’s
RFC determination was unsupported by substantial evidence;
(2) the ALJ failed to comply with the treating physician
rule; (3) the ALJ’s conclusion as to Ms.
Johnson’s credibility is not supported by substantial
evidence; and (4) the ALJ failed to properly apply the
special technique for evaluating mental impairments. Because
I will remand this case on the grounds that the ALJ did not
properly evaluate Ms. Johnson’s RFC, I decline to
address the remainder of Ms. Johnson’s arguments. I
express no opinion on whether Ms. Johnson should ultimately
be found to be disabled.
Fourth Circuit has considered the extent to which an
ALJ’s step three findings regarding a claimant’s
difficulties in maintaining concentration, persistence, or
pace must be incorporated into the RFC determination.
Mascio, 780 F.3d at 637-38. In Mascio, an
ALJ found that a claimant had moderate difficulties in
maintaining her concentration, persistence, or pace.
Id. at 638. The ALJ’s RFC assessment did not
account for these difficulties or explain why they did not
translate into any functional limitation. Id. The
court held that an ALJ does not account for a
claimant’s limitations in concentration, persistence,
or pace by restricting the claimant to simple, routine tasks
or unskilled work. Id. This is because “the
ability to perform simple tasks differs from the ability to
stay on task.” Id. An ALJ’s finding at
step three that a claimant has difficulties in maintaining
concentration, persistence, or pace does not require the
inclusion of a corresponding limitation in the
claimant’s RFC, but an ALJ must nonetheless
“explain why [such a limitation at step three] does not
translate into a limitation in [the RFC].” Id.
three in this case, the ALJ found that Ms. Johnson has
moderate difficulties “[w]ith regard to concentration,
persistence, or pace.” (Tr. 31.) Despite finding that
Ms. Johnson was limited in this respect, the ALJ did not
include a corresponding limitation in the RFC assessment. The
Commissioner concedes this point. (ECF No. 17-1 at 8.) As the
Court in Mascio noted, a limitation in an RFC
restricting a claimant to “simple, routine tasks or
unskilled work” is not sufficient to address
limitations with regard to concentration, persistence, or
pace. 780 F.3d at 638.
Commissioner argues that this error is harmless because the
ALJ accounted for Ms. Johnson’s difficulties in
maintaining concentration, persistence, or pace in a
hypothetical question to the vocational expert
(“VE”). (ECF No. 17-1 at 8.) In framing this
hypothetical question to the VE, the ALJ incorporated his RFC
findings and included an additional limitation that tasks not
be performed “at a production rate pace.” (Tr.
69.) By excluding “production rate pace” work,
the Commissioner argues, the ALJ accounted for Ms.
Johnson’s moderate limitations in maintaining
concentration, persistence, or pace. (ECF No. 17-1 at 8-9.)
This argument is unavailing.
is afforded “great latitude in posing hypothetical
questions and is free to accept or reject suggested
restrictions so long as there is substantial evidence to
support the ultimate question.” Koonce v.
Apfel, 166 F.3d 1209, 1999 WL 7864, at *5 (4th Cir. Jan.
11, 1999) (citing Martinez v. Heckler, 807 F.2d 771,
774 (9th Cir. 1986)). Likewise, an ALJ is free to pose
numerous hypotheticals to the VE that may include alternative
degrees of limitation, and “by doing so, is not binding
himself to accept each hypothetical upon his full
consideration of the entire record.” Matthews v.
Comm ’r. Soc. Sec, No. ELH-13-1720, 2014 WL
2738276, at *2 (D. Md. June 16, 2014).
ALJ had excluded “production rate pace” work from
Ms. Johnson’s RFC, this may have been adequate to
account for her moderate limitations in concentration,
persistence, or pace. See e.g., Gair v. Comm’r.
Soc. Sec. Admin., No. SAG-14-3652, 2015 WL 5774982, at
*2 (D. Md. Sept. 28, 2015). Here, however, the ALJ did not
incorporate this limitation into the RFC and the hypothetical
question to the VE is not sufficient by itself to comply with
Mascio. ALJs are not bound by the limitations
included in hypothetical questions. It may be that the ALJ
believed that Ms. Johnson was incapable of performing
“production rate pace” work, but the ALJ made no
such finding in his RFC determination or elsewhere in the
opinion. For this reason, the ALJ’s decision does not
comply with Mascio. See also Washington v. Colvin,
No. CBD-15-1553, 2016 WL 3632693 (D. Md. July 7, 2016)
(concluding that an ALJ must incorporate findings regarding
limitations in concentration, persistence, or pace in the
RFC, even if the limitations are incorporated into the
hypothetical question); Henig v. Colvin, No.
TMD-13-1623, 2015 WL 5081619 (D. Md. Aug. 26, 2015);
Talmo v. Comm’r Soc. Sec, No. ELH-14-2214,
2015 WL 2395108, at *3 (D. Md. May 19, 2015).
remand, the ALJ must incorporate Ms. Johnson’s moderate
limitations in concentration, persistence, or pace into the
RFC assessment or explain why her moderate limitations in