United States District Court, D. Maryland
November 4, 2015, the Plaintiff, Carl Thomas (“Mr.
Thomas”), petitioned this Court to review the Social
Security Administration's final decision to deny his
claims for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). (ECF
No. 1.) The parties have filed cross-motions for summary
judgment. (ECF Nos. 13 & 15.) These motions have been
referred to the undersigned with the parties' consent
pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF
Nos. 2 & 7.) I find that no hearing is necessary.
See Loc. R. 105.6. This Court must uphold the
decision of the agency if it is supported by substantial
evidence and if the agency employed the proper legal
standards. 42 U.S.C. §§ 405(g), 1383(c)(3);
Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015).
Following its review, this Court may affirm, modify, or
reverse the Commissioner, with or without a remand.
See 42 U.S.C. § 405(g); Melkonyan v.
Sullivan, 501 U.S. 89 (1991). Under that standard, I
will deny both motions and remand the case for further
proceedings. This letter explains my rationale.
Thomas applied for DIB and SSI on May 15, 2012. (Tr. 143-52.)
He alleged disability beginning on April 26, 2012.
(Id.) His applications were denied initially and on
reconsideration. (Tr. 115-37.) A hearing was held before an
Administrative Law Judge (“ALJ”) on March 28,
2014. (Tr. 24-53.) On June 2, 2014, the ALJ determined that
Mr. Thomas was not disabled under the Social Security Act.
(Tr. 12-20.) On September 4, 2015, the Appeals Council denied
Mr. Thomas's request for review, making the ALJ's
decision the final, reviewable decision of the agency. (Tr.
evaluated Mr. Thomas's claim for benefits using the
five-step sequential evaluation process set forth in 20
C.F.R. §§ 404.1520, 416.920. At step one, the ALJ
found that Mr. Thomas was not engaged in substantial gainful
activity, and had not been engaged in substantial gainful
activity since April 26, 2012. (Tr. 14.) At step two, the ALJ
found that Mr. Thomas suffered from the severe impairments of
“schizoaffective disorder and bipolar mood
disorder-manic.” (Id.) At step three, the ALJ
found that Mr. Thomas's impairments, separately and in
combination, failed to meet or equal in severity any listed
impairment as set forth in 20 C.F.R., Chapter III, Pt. 404,
Subpart P, App. 1 (“Listings”). (Tr. 15.) The ALJ
determined that Mr. Thomas had the RFC
to perform a full range of work at all exertional levels but
with the following nonexertional limitations: simple and
routine tasks, occasional decision-making and judgment, few
if any changes in the work setting, and only occasional
interaction with co-workers, supervisors and the general
four, the ALJ determined that Mr. Thomas was capable of
performing past relevant work as a cleaner and material
handler. (Tr. 18-19.) Therefore, the ALJ found that Mr.
Thomas was not disabled under the Social Security Act. (Tr.
Thomas raises two arguments on appeal. First, he argues that
the ALJ did not properly assess his RFC. Second, he argues
that the ALJ improperly determined that he could perform past
relevant work. For the reasons set forth below, I find that
the ALJ's RFC determination is flawed and will remand the
case for further proceedings.
Thomas argues that the ALJ's RFC determination is
improperly reasoned, inadequately explained, and unsupported
by substantial evidence. In support of this argument, Mr.
Thomas relies on Mascio, 780 F.3d 632. In
Mascio, the court held 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.'” 780 F.3d at 638 (quoting Winschel v.
Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.
2011)). This is because “the ability to perform simple
tasks differs from the ability to stay on task.”
Id. Where an ALJ finds that a claimant has
limitations in concentration, persistence, and pace, the ALJ
is required to incorporate these limitations into the
claimant's RFC or explain why they do not
“translate into [such] a limitation.”
case, the ALJ discussed Mr. Thomas's limitations in
concentration, persistence, and pace in her step two
analysis. (Tr. 15-16.) The ALJ stated that “[w]ith
regard to concentration, persistence or pace, the claimant
has moderate difficulties.” (Id.) This finding
was based on Mr. Thomas's difficulties “with
memory, completing tasks, concentration, understanding, and
following instructions.” (Id.) Mr. Thomas
reported that he could only “pay attention for
approximately five minutes” and a consultative examiner
found that he had “difficulty with concentration and
memory.” (Id.) Although the ALJ noted that
some treatment notes “reflect[ed] good concentration
and memory, ” she still found that the evidence
supported “moderate limitation in concentration,
persistence, and pace.” (Id.)
ALJ's RFC determination does not account for these
moderate limitations. Although it limits Mr. Thomas to
performing “simple and routine tasks, ” this
limitation does not account for his moderate limitations in
concentration, persistence, and pace. See Mascio,
780 F.3d at 638. If, for example, Mr. Thomas can only
“pay attention for approximately five minutes”-a
statement that the ALJ implicitly found to be credible-a
limitation that he only be required to perform “simple
and routine tasks” would be insufficient to accommodate
this limitation. Mr. Thomas might be able to perform simple
and routine tasks for five minutes, but unable to sustain his
performance beyond that. For this reason, based on the record
the Court is unable to find that the ALJ's RFC
determination is an accurate characterization of Mr.
Thomas's ability to do sustained work-related physical
and mental activities in a work setting on a regular and
continuing basis. SSR 96-8p, 1996 WL 374184 (S.S.A. July
Commissioner argues that this case is distinguishable from
Mascio because “the ALJ did not simply limit
Mr. Thomas to unskilled work or simple, routine tasks, but
included additional limitations.” (ECF No. 15-1 at 12.)
It is not clear in this case, however, how the other
limitations in the RFC address Mr. Thomas's moderate
difficulties in concentration, persistence, and pace. The
Commissioner cites two cases from this Court where other
judges have found that “even a limitation to just
‘simple, routine, repetitive work tasks' suffices
under Mascio” so long as the ALJ provides a
clear explanation that additional limitations are not
warranted. (Id.) In Dean v. Comm'r, Social
Sec. Admin, No. SAG-14-1127, 2015 WL 1431548, *1-2 (D.
Md. Mar. 26, 2016), Judge Gallagher held that an “ALJ
provided a clear explanation of the reason for assessing a
moderate limitation in the first place, and then a clear
explanation of why, despite that moderate limitation, the
claimant would not have issues persisting in a given
task.” Claiborne v. Comm'r, Soc. Sec.
Admin., No. SAG-14-1918, 2015 WL 2062184, at *3 (D. Md.
May 1, 2015) (distinguishing Dean). But the
Court's analysis in Dean is distinguishable from
this case for the same reasons that it was in Claiborne.
See also Miles v. Comm 'r, No. SAG-16-1397, 2016 WL
6901985, at *2 (D. Md. Nov. 23, 2016) (finding that because
there was no “corresponding restriction for the finding
of moderate difficulties in concentration, persistence, or
pace, such that it addresses [the claimant's] ability to
sustain work throughout an eight-hour workday, ” the
Court was “unable to ascertain from the ALJ's
decision the reason for the finding of moderate, as opposed
to mild or no, limitation in the area of concentration,
persistence, or pace.”)
ALJ's written decision is insufficient to permit adequate
review with respect to Mr. Thomas's moderate difficulties
in concentration, persistence, and pace. It is not clear
whether the ALJ neglected to incorporate these difficulties
into her RFC determination, or whether she intended to
incorporate those difficulties with the restrictions on
decision-making, judgment and interaction with others.
Perhaps the ALJ found that Mr. Thomas's difficulties in
the areas of concentration, persistence, and pace would be
adequately addressed if he did not have to exercise
discretion in his work, or regularly interact with others.
But if this is the case, it is not explained in the decision.
For these reasons, the Court is unable to determine whether
the ALJ's RFC takes into account all of Mr. Thomas's
limitations, and is thereby an accurate description of the
work that he is able to do on a regular and continuing basis.
The Court makes no finding as to the merits of the ALJ's
ultimate conclusion that Mr. Thomas is not disabled.
Thomas's second argument is that the ALJ's finding
that he was able to perform past relevant work as a cleaner
and material handler is not supported by substantial
evidence. This argument is largely premised on Mr.
Thomas's contention that the RFC finding was inadequate.
Because the Court is remanding this case based on the
inadequacy of the ALJ's ...