United States District Court, D. Maryland
October 7, 2015, Plaintiff Audrey Beth Ludlow petitioned this
Court to review the Social Security Administration’s
(“SSA”) final decision to deny her claim for
Disability Insurance Benefits (“DIB”). (ECF No.
1). I have considered the parties’ cross-motions for
summary judgment, and Ms. Ludlow’s reply. (ECF Nos. 16,
17, 20). 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 will 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). This letter explains my
Ludlow protectively filed her claim for DIB on April 28,
2011. (Tr. 15, 188-192). She alleged a disability onset date
of March 11, 2008. Id. Her claims were denied
initially and on reconsideration. (Tr. 96-99, 107-08). A
hearing was held on April 29, 2014, before an Administrative
Law Judge (“ALJ”). (Tr. 35-59). Following the
hearing, the ALJ determined that Ms. Ludlow was not disabled
within the meaning of the Social Security Act. (Tr. 12-34).
The Appeals Council (“AC”) denied Ms.
Ludlow’s request for review, so the ALJ’s
decision constitutes the final, reviewable decision of the
Agency. (Tr. 1-5).
found that Ms. Ludlow suffered from the severe impairments of
degenerative disc disease of the thoracolumbar spine status
post fusion at ¶ 4-S1, obesity, and depression. (Tr.
17). Despite these impairments, the ALJ determined that Ms.
Ludlow retained the residual functional capacity
perform sedentary work as defined in 20 CFR 404.1567(a)
except she is further limited to occasional climbing ramps or
stairs, balancing, stooping, kneeling, crouching and
crawling, but never climbing ladders, ropes or scaffolds. The
claimant must avoiding [sic] concentrated exposure to extreme
temperatures and workplace hazards. She can carry out simple
tasks, in 2-hour increments, with occasional interaction with
coworkers, supervisors, and the general public. The claimant
can adapt to simple changes in a routine work setting.
(Tr. 20). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Ludlow
could perform jobs existing in significant numbers in the
national economy and that, therefore, she was not disabled.
Ludlow raises several arguments on appeal. In addition, I
considered her case under the dictates of Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015), and I conclude
that the ALJ committed an error under Mascio. Remand
is therefore appropriate. In so holding, I express no opinion
regarding whether the ALJ’s ultimate conclusion that
Ms. Ludlow is not disabled is correct or incorrect.
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. The relevant
listings therein consists of: (1) a brief statement
describing a 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.
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. § 404.1620a(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. § 404.1620a(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).
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 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”
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.
instant case, the ALJ found Ms. Ludlow to have moderate
limitations in maintaining concentration, persistence, or
pace at step three of the sequential evaluation. (Tr. 19). In
making this finding, the ALJ cited Ms. Ludlow’s reports
of difficulties handling stress, and the results of her
consultative examination with Dr. Taller indicating that her
insight and judgment were “only fair.” (Tr.
19-20). However, the ALJ also noted that other areas of Dr.
Taller’s examination had normal findings, and that Ms.
Ludlow’s function reports indicates an ability to
“handle her finances, pay bills, and count change,
” plus an ability to follow “simple, spoken
instructions.” Id.. In the RFC assessment, the
ALJ found that Ms. Ludlow was limited to carrying out, in
relevant part, “simple tasks, in 2-hour
increments.” (Tr. 20).
as in Mascio, the ALJ did not explain how the
restriction of Ms. Ludlow’s RFC to “simple tasks,
in 2-hour increments” accounts for the finding of
“moderate difficulties” in concentration,
persistence, or pace. The Fourth Circuit was clear that
restriction to simple, routine, and repetitive tasks does not
adequately address a claimant’s ability to stay on
task. Mascio, 780 F.3d at 638. While the ALJ here
also includes a limitation to performing tasks in 2hour
increments, this limitation does not account for any breaks
in addition to those encompassed by a normal workday.
See SSR 96-9p (noting that a normal workday includes
a morning break, a lunch period, and an afternoon break at
approximately 2-hour intervals, and that the occupational
base is not eroded where limitations may be accommodated by
these regularly scheduled breaks). Thus, the restriction to
working in 2-hour intervals does not adequately account for a
moderate limitation in the ability to stay on task, absent
further explanation. In light of this inadequacy, I recommend
remand of the case to the Commissioner for further analysis
consistent with the Fourth Circuit’s mandate in
Ludlow also makes additional arguments pertaining to the
ALJ’s assessment of her credibility and the evaluation
of the mental health listings. Ultimately, this Court’s
role is not to reweigh the evidence or to substitute its
judgment for that of the ALJ, but simply to adjudicate
whether the ALJ’s decision was supported by substantial
evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). Under that standard, the ALJ’s
analysis is premised on substantial evidence,  although there
might be other evidence that could be marshaled in support of
the opposite conclusion, such as evidence relating to Ms.
Ludlow’s worsening back condition and her departure
from her employment as a result of her mental health issues.
Ms. Ludlow further contends that the ALJ failed to assign
weight to the “opinions” of her treating
physicians, but does not cite to any actual opinions that
were allegedly disregarded. Finally, Ms. Ludlow contends that
she was prejudiced by the use of the term
“non-compliant” to describe a period in which she
could not afford her medication. Since the ALJ did not rely
on non-compliance as a basis to deny benefits, I find no
prejudice in that analysis. Because the case is being
remanded on other grounds, however, while on remand, the ALJ
should make any changes to the opinion deemed necessary to
address Ms. Ludlow’s concerns about the analysis.
reasons set forth above, Plaintiff’s Motion for Summary
Judgment (ECF No. 16) is DENIED and Defendant’s Motion
for Summary Judgment (ECF No. 17) is DENIED. Pursuant to
sentence four of 42 U.S.C. § 405(g), the
Commissioner’s judgment is REVERSED IN PART due to
inadequate analysis. The case is REMANDED for ...