United States District Court, D. Maryland
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
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.
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.
found that Mr. Mongan suffered from the severe impairments
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
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.
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.
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.
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).
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”
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 ...