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Dardozzi v. Colvin

United States District Court, D. Maryland

October 18, 2016

Gina Dardozzi
v.
Carolyn Colvin;

         Dear Counsel:

         On January 5, 2016, Plaintiff Gina Dardozzi petitioned this Court to review the Social Security Administration's final decision to deny her claims for Disability Insurance Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties' cross-motions for summary judgment. (ECF Nos. 18, 19). 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 Plaintiff's motion, grant the Commissioner's motion, and affirm the Commissioner's judgment pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.

         Ms. Dardozzi filed claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on November 22, 2011. (Tr. 12, 157-167). She alleged a disability onset date of April 1, 2007. Id. Her claims were denied initially and on reconsideration. (Tr. 93-105). A hearing was held on June 3, 2014, before an Administrative Law Judge (“ALJ”). (Tr. 26-52). Following the hearing, the ALJ determined that Ms. Dardozzi was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 12-24). The Appeals Council denied Ms. Dardozzi's request for review, (Tr. 1-5), so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Ms. Dardozzi suffered from the severe impairments of “degenerative disc disease, status post lumbar spine fusion; depressive disorder; and, substance addiction disorder (drugs).” (Tr. 14). Despite these impairments, the ALJ determined that Ms. Dardozzi retained the residual functional capacity (“RFC”) “to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she is limited to unskilled work.” (Tr. 17). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Ms. Dardozzi could perform jobs existing in significant numbers in the national economy and that, therefore, she was not disabled. (Tr. 23-24).

         Ms. Dardozzi raises five 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); (2) that the ALJ failed to make a function-by-function assessment of mental RFC consistent with SSR 96-8p; (3) that the ALJ did not pose an adequate hypothetical question to the VE; (4) that the ALJ did not properly evaluate the medical opinion evidence; and (5) that the ALJ erred in not finding Ms. Dardozzi's testimony as to her symptoms and limitations credible. Pl.'s Mot. 4-5. Each argument lacks merit and is addressed below.

         I. Mascio Issue

         Ms. Dardozzi argues that the ALJ's opinion violates Mascio v. Colvin. Pl.'s Mot. 18-22. 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. 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.

         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 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 concluded that Ms. Dardozzi had “the residual functional capacity to perform light work … except that she is limited to unskilled work” with an SVP level of 2. (Tr. 17, 24). With respect to concentration, persistence, or pace, the ALJ cited a 2012 psychological consultative examination that found Ms. Dardozzi was “polite and cooperative, ” “fully oriented and knew the most recent presidents, ” and “able to perform serial sevens and simple math calculations in her head.” (Tr. 16). But Ms. Dardozzi could only recall “two digits forward and three backward” during serial sevens and “[i]t took two trials for her to repeat three simple words” - two of which she recalled after a delay. Id. Nor could Ms. Dardozzi “accurately repeat a simple sentence.” Id. Although Ms. Dardozzi admitted to smoking marijuana a couple of times a week, as well as smoking marijuana about an hour before the examination, the ALJ concluded that Ms. Dardozzi's memory problems were “consistent with only moderate difficulties, even while high on marijuana.” Id.

         Aside from this solitary reference to moderate difficulties with persistence, concentration or pace, the ALJ provides a lengthy account of evidence that negates any limitations in Ms. Dardozzi's ability to sustain concentration. For example, the ALJ cited a March, 2013 neurological examination where Ms. Dardozzi presented “alert and oriented, ” with “memory… intact, ” and exhibited “a normal attention span and normal concentration.” (Tr. 21). During the same examination, Ms. Dardozzi reported her “stress, anxiety and depression … greatly improved.” Id. And where Ms. Dardozzi's treating physician, Chandre LaCount, D.O., opined that Ms. Dardozzi's “symptoms would cause substantial restrictions in her capacity for sustained mental alertness, concentration, and persistence in carrying out simply job duties, ” the ALJ assigned this opinion very little weight because it was inconsistent with the record evidence as a whole and likely “nothing more than a recitation of [Ms. Dardozzi's] subjective allegations.” Id. The ALJ also gave little or no weight to similar concentration, persistence, and pace opinions offered by Ms. Dardozzi's treating therapist, Beth Katz, LCSWC, in May, 2014 for the same reasons. (Tr. 22). Indeed, as to Ms. Katz's opinion, the ALJ elaborated that Ms. Dardozzi “has recently been noted to be fully oriented and have no deficits in attention and concentration. The only evidence of any deficit in attention and concentration is the psychological consultative examination to which the claimant showed up high on marijuana.” (Tr. 22-23) (emphasis added).

         It is evident from the ALJ's discussion of concentration, persistence, and pace that Ms. Dardozzi only exhibited deficits in these areas when high on marijuana. (Tr. 16, 22-23). The record evidence supports, and the ALJ rightly concludes, that Ms. Dardozzi has “no deficits in attention and concentration” except when high on marijuana. (Tr. 22-23). Admittedly, the ALJ's apparent finding of “moderate difficulties” at Step Three inspired the parties' confusion. See (Tr. 18). However, the ALJ's reasoning and supporting evidence, as well as the ALJ's statements indicates that the ALJ believes that Ms. Dardozzi had no difficulties in persistence, concentration, or pace, when abstaining from marijuana. Accordingly, the ALJ was under no obligation to account for such difficulties in her analysis. Thus, I find that there was no violation of Mascio.

         II. Function-by-Function ...


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