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Mongan v. Commissioner, Social Security Administration

United States District Court, D. Maryland

October 13, 2016

Robert Mongan
v.
Commissioner, Social Security Administration;

          ORDER

          STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE

         Dear Counsel:

         On January 8, 2016, Plaintiff Robert Mongan 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. Mongan filed claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on August 23, 2010. (Tr. 309-18). He alleged a disability onset date of October 6, 2009. Id. His claims were denied initially and on reconsideration. (Tr. 185-97, 198-211). A hearing was held on August 15, 2012, before an Administrative Law Judge (“ALJ”). (Tr. 74-109). Following the hearing, the ALJ determined that Mr. Mongan was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 114-30). The Appeals Council granted Mr. Mongan's request for review, and remanded the case to the ALJ for further consideration. (Tr. 131-34). The ALJ held a second hearing on May 6, 2014, (Tr. 35-73), and again denied benefits in a decision dated August 27, 2014. (Tr. 9-34). This time, the Appeals Council denied Mr. Mongan's request for review, (Tr. 1-4), so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Mr. Mongan suffered from the severe impairments of:

obesity, headaches/occipital neuralgia, a myofascial/chronic pain syndrome manifested as fibromyalgia or myalgia, affecting multiple joints with neurological symptoms (including a benign essential tremor of the right hand) of undetermined etiology, degenerative disc disease/spondylosis of the lumbosacral spine with lumbar facet arthropathy, mild osteoarthritis of the hips, mild degenerative disc disease of the thoracic spine, borderline intellectual functioning, a depressive disorder, an unspecified anxiety disorder and a possible personality disorder.

(Tr. 15). Despite these impairments, the ALJ determined that Mr. Mongan retained the residual functional capacity (“RFC”) to:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that he needs an assistive device for ambulation and must be able to rise from a seated position four times per hour, in place, for two to five minutes. Due to lightheadedness and leg weakness, he can only occasionally work around dangerous machinery, heights or steps. He can occasionally push, pull, stoop, squat, crawl, kneel or crouch. The claimant can understand, remember and carry out instructions in unskilled or entry-level positions.

(Tr. 18). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Mr. Mongan could perform jobs existing in significant numbers in the national economy and that, therefore, he was not disabled. (Tr. 26-27).

         Mr. Mongan raises two primary arguments on appeal: (1) that the ALJ erred in assessing his RFC; and (2) that the ALJ provided an inadequate hypothetical question to the VE. Pl. Mot. 4-8. In addition, because Mr. Mongan raised the issue within his more general challenge to the ALJ's RFC assessment, I considered his 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 Mr. Mongan is not disabled is correct or incorrect.

         Beginning with the Mascio issue, in that case, 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. at § 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 ...


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