United States District Court, D. Maryland
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.
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.
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.
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.
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.
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 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.
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).
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.