United States District Court, D. Maryland
November 19, 2015, Plaintiff Nicole Baylor petitioned this
Court to review the Social Security Administration's
final decision to deny her claim for Supplemental Security
Income. (ECF No. 1). I have considered the parties'
cross-motions for summary judgment, and Ms. Baylor's
reply. (ECF Nos. 16, 17, 18). 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.
Baylor filed a claim for Supplemental Security Income
(“SSI”) on January 19, 2012. (Tr. 144-52). She
alleged a disability onset date of September 10, 2008.
Id. Her claim was denied initially and on
reconsideration. (Tr. 67-75, 77-84). A hearing was held on
February 10, 2014, before an Administrative Law Judge
(“ALJ”). (Tr. 27-66). Following the hearing, the
ALJ determined that Ms. Baylor was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 7-24). The Appeals Council denied Ms.
Baylor's request for review, (Tr. 1-5), so the ALJ's
decision constitutes the final, reviewable decision of the
found that Ms. Baylor suffered from the severe impairments of
“history of head trauma from injury over 20 years ago;
mild dextroscoliosis of the spine; diabetes mellitus;
hypertension; asthma; depressive disorder; and
obesity.” (Tr. 12). Despite these impairments, the ALJ
determined that Ms. Baylor retained the residual functional
capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 416.967(a) except
that she can occasionally stoop and crouch; frequently but
not constantly reach, handle, and finger; and never have
exposure to pulmonary/respiratory irritants at moderate
levels in the work environment. She is able to fulfill short,
simple instructions and respond appropriately to supervisors
and in brief encounters, of 1 to 3 minutes maximum, with
others but not have any public interaction requirements.
(Tr. 15). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Baylor
could perform jobs existing in significant numbers in the
national economy and that, therefore, she was not disabled.
Baylor 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 evaluate Listing
3.03. Pl. Mot. 8-18; Pl. Rep. 2-9. 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 Ms.
Baylor is not entitled to benefits is correct or incorrect.
with the Mascio issue, there 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 Ms. Baylor to have moderate
limitations in maintaining concentration, persistence or
pace. (Tr. 15). The entirety of the analysis states,
“[Ms. Baylor] has reported difficulty concentrating and
asked if she had ‘dementia' at the psychological
consultative examination. However, her score on the
mini-mental state examination (MMSE) was 27/30. She reported
that she is ‘sometimes good' at following written
instructions.” Id. (internal citations
omitted). According to 20 CFR § 404.1520a(c)(2), the
rating of “moderate difficulties” is supposed to
represent the result of application of the following
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 ...