United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge.
January 6, 2016, Plaintiff Tina Denise Brown 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, as well as Ms.
Brown's reply. (ECF Nos. 20, 23, 24). 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.
Brown filed a claim for Supplemental Security Income
(“SSI”) on January 27, 2012. (Tr. 164-72). She
alleged a disability onset date of December 1, 1999.
Id. Her claim was denied initially and on
reconsideration. (Tr. 79-82, 85-86). A hearing was held on
July 9, 2014, before an Administrative Law Judge
(“ALJ”). (Tr. 29-50). Following the hearing, the
ALJ determined that Ms. Brown was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 9-28). The Appeals Council denied Ms. Brown's
request for review, (Tr. 1-6), so the ALJ's decision
constitutes the final, reviewable decision of the Agency.
found that Ms. Brown suffered from the severe impairments of
“bipolar disorder; polysubstance abuse; and depressive
disorder, obesity.” (Tr. 14). Despite these
impairments, the ALJ determined that Ms. Brown retained the
residual functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant
can understand, remember, and carry out simple instructions
and can have occasional contact with supervisors, but can
never have contact with co-workers and the public.
(Tr. 17-18). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Brown
could perform jobs existing in significant numbers in the
national economy and that, therefore, she was not disabled.
Brown 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 physician,
Dr. Arnheim. Pl. Mot. 14-21; Pl. Rep. 1-8. I concur
that the ALJ's opinion is deficient under
Mascio, and thus recommend remand to allow
compliance with that decision.
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.
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. § 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. Brown to have moderate
limitations in maintaining concentration, persistence, or
pace. (Tr. 16). Notably, the ALJ noted that “[Ms.
Brown's] ability to concentrate is certainly impacted by
her depression.” Id. The ALJ also noted Ms.
Brown's testimony that “she has difficulty
following hour-long television programs, ” as well as
the fact that “[s]he was slow to answer questions
during consultative examinations.” Id. (citing
Tr. 29-50, 359-64, 595-605). However, the ALJ also noted that
“[Ms. Brown's] limitations are still well within
the parameters of simple, routine tasks.” (Tr. 16). As
a result, the ALJ limited Ms. Brown to “simple
instructions” with “occasional contact with
supervisors, but can never have contact with co-workers and
the public.” (Tr. 17-18).
the ALJ's analysis is simply insufficient to permit
adequate review. Without further explanation, I am unable to
ascertain whether the ALJ truly believed Ms. Brown to have
moderate difficulties in concentration, persistence, and
pace, instead of mild, or no difficulties, and how those
difficulties restrict her RFC to “simple
instructions” without further limitation in her ability
to sustain simple work. 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 explain why Ms.
Brown has moderate difficulties in concentration,
persistence, and pace, and should impose an ...