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Turner v. Commissioner, Social Security Administration

United States District Court, D. Maryland

September 22, 2016

Carl Turner
v.
Commissioner, Social Security Administration;

         Dear Counsel:

         On January 5, 2016, Plaintiff Carl Turner petitioned this Court to review the Social Security Administration's 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. 15, 16). 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 rationale.

         Mr. Turner filed claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on February 6, 2012. (Tr. 198-204, 205-11). He alleged a disability onset date of February 10, 2011. Id. His claims were denied initially and on reconsideration. (Tr. 120-27, 130-33). A hearing was held on May 22, 2014, before an Administrative Law Judge (“ALJ”). (Tr. 34-72). Following the hearing, the ALJ determined that Mr. Turner was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 16-33). The Appeals Council denied Mr. Turner's request for review, (Tr. 1-6), so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Mr. Turner suffered from the severe impairments of “epilepsy, right shoulder degenerative joint disorder, and anxiety disorder.” (Tr. 21). Despite these impairments, the ALJ determined that Mr. Turner retained the residual functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with further limitations: he is unable to climb ladders, ropes and scaffolds, but is able to occasionally balance; the claimant is able to frequently, but not constantly reach with the right upper extremity, but he is unable to perform overhead reaching with the right upper extremity, which is the dominant hand; the claimant is unable to tolerate hazards such as unprotected heights and moving machinery; he is able to use commonsense understanding to perform instructions provided in oral, written or diagrammatic form consistent with a range of unskilled work at or below reasoning level III as those terms are defined in the Dictionary of Occupational Titles.

(Tr. 23-24). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Mr. Turner could perform jobs existing in significant numbers in the national economy and that, therefore, he was not disabled. (Tr. 28).

         Mr. Turner raises two 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); and (2) that the ALJ failed to properly evaluate pertinent evidence proffered by the consultative physician, Dr. Miller. Pl. Mot. 3-7. I concur that the ALJ's opinion is deficient under Mascio, and thus recommend remand to allow compliance with that decision. In remanding for additional explanation, I express no opinion as to whether the ALJ's ultimate conclusion that Mr. Turner is not entitled to benefits is correct or incorrect.

         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. The relevant listings therein consist 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. at § 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. § 404.1620a(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. at § 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. at § 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” limitations.

         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.

         In the instant case, the ALJ found Mr. Turner to have moderate limitations in maintaining concentration, persistence, or pace. (Tr. 23). The entirety of the analysis states, “At the consultative examination, the examining psychologist found [Mr. Turner] had reduced memory functions (Ex. 5F). However, [Mr. Turner's] treating neurologist consistently found [he] had intact memory, attention, and concentration to conversation (Ex. 2F, 4F). Furthermore, [Mr. Turner] acknowledged retaining sufficient functioning in this area to watch television, listen to music, apply for jobs on the internet, operate a car, and complete[] household chores.” Id. According to 20 CFR § 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.

20 CFR § 404.1520a(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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