United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge.
January 29, 2016, Plaintiff Terrell Graham 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. 14, 15). 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.
Graham filed claims for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on February 14, 2012. (Tr. 173-82). He
alleged a disability onset date of December 3, 2011.
Id. His claims were denied initially and on
reconsideration. (Tr. 108-15, 122-25). A hearing was held on
June 13, 2014, before an Administrative Law Judge
(“ALJ”). (Tr. 30-58). Following the hearing, the
ALJ determined that Mr. Graham was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 12-29). The Appeals Council denied Mr.
Graham's request for review, (Tr. 1-6), so the ALJ's
decision constitutes the final, reviewable decision of the
found that Mr. Graham suffered from the severe impairments of
“affective disorder, specifically depressive disorder;
and cerebrovascular disease.” (Tr. 17). Despite these
impairments, the ALJ determined that Mr. Graham retained the
residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except he is limited to frequently climbing stairs
and ramps and balance but only occasionally climb ladders,
ropes or scaffolds, kneel, crouch, crawl or stoop.
Additionally, he is limited to understanding and carrying out
simple instructions, and he is limited to routine and simple
tasks with only occasional changes in the work setting where
he would not have to make or set goals independently.
(Tr. 20). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Graham
could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled.
Graham 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 physicians.
Pl. Mot. 6-8. 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. Graham is not
entitled to benefits 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.
Mascio, 780 F.3d 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 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.
instant case, the ALJ found Mr. Graham to have moderate
limitations in maintaining concentration, persistence, or
pace. (Tr. 19). The ALJ noted Mr. Graham's testimony that
“he has memory problems and is unable to remember five
things his grandmother would ask him to do.” (Tr. 20).
The ALJ also noted medical evidence that Mr. Graham has
“borderline ability to learn new information rapidly,
” decreased “concentration…since his
stroke, ” and a diagnosis of “neurocognitive
disorder, related to cerebral vascular accident, dementia,
and amnestic disorder.” (Tr. 19). However, the ALJ also
cited medical evidence that Mr. Graham “did not have
difficulty with understanding and concentrating, ” (Tr.
21), “has been able to follow simple commands” in
several medical examinations, (Tr. 22, 325-473), and has not
needed mental health treatment or rest breaks during the day,
(Tr. 22). As a result, the ALJ limited Mr. Graham “to
routine and simple tasks with only occasional changes in the
work setting where he would not have to make or set goals
independently.” (Tr. 20).
the ALJ's analysis is simply insufficient to permit
adequate review. The ALJ's use of the term “make or
set goals independently” may or may not have intended
to limit the pace of a prospective job, but it is unclear
whether the VE interpreted that term as a pace limitation.
Given that one of the proposed jobs, “machine feeder,
” appears to be assembly-line in nature, it may be that
“make or set goals” does not restrict pace. In
light of this inadequacy, I must remand the case to the
Commissioner for further analysis consistent with the Fourth
Circuit's mandate in Mascio. On remand, the ALJ
should impose an appropriate limitation(s) to address Mr.