United States District Court, D. Maryland
LETTER TO COUNSEL
15, 2016, Plaintiff Wanda Rice 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. Rice's reply. (ECF Nos. 14,
17, 22). 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
Rice filed a claim for Supplemental Security Income
(“SSI”) in May, 2012, alleging a disability onset
date of July 1, 2002. (Tr. 135-41). Her claim was denied
initially and on reconsideration. (Tr. 57-69, 71-86). A
hearing was held on November 24, 2014, before an
Administrative Law Judge (“ALJ”). (Tr. 28-56).
Following the hearing, the ALJ determined that Ms. Rice was
not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 9-27). The Appeals
Council denied Ms. Rice's request for review, (Tr. 1-4),
so the ALJ's decision constitutes the final, reviewable
decision of the Agency.
found that Ms. Rice suffered from the severe impairments of
“degenerative joint disease, acromioclavicular
(“AC”) joints, greater on the right; disc
osteophyte complex with stenosis, cervical spine;
degenerative arthritis of the lumbar spine; fibromyalgia; and
mental disorders diagnosed to include bipolar disorder,
depressive disorder and generalized anxiety disorder.”
(Tr. 14). Despite these impairments, the ALJ determined that
Ms. Rice retained the residual functional capacity
perform light work as defined in 20 CFR 416.967(b) except:
occasional pushing and pulling with upper extremities;
occasional climbing of stairs and ramps; no climbing of
ladders, ropes or scaffolds; occasional balancing, stooping,
kneeling, crouching and crawling; occasional reaching
overhead (above the shoulders) and occasional exposure to
vibration. She can perform unskilled work at an SVP 1 or 2
involving simple routine tasks that has [sic] no
contact with the general public.
(Tr. 16). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Rice
could perform jobs existing in significant numbers in the
national economy and that, therefore, she was not disabled.
Rice 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
the opinion of the treating nurse practitioner, Ms.
Sanford. Pl. Mot. 5-16. I concur that the ALJ's
opinion is deficient under Mascio, and therefore
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. Rice is
not entitled to benefits is correct or incorrect.
with 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 found Ms. Rice to have moderate
difficulties maintaining concentration, persistence, or pace.
(Tr. 15). The entirety of the analysis states, “[Ms.
Rice] alleges trouble concentrating; however, she is able to
provide a coherent and sequential history. She reads and can
independently handle her finances. Mental status examinations
also show intact memory and thought processes.” (Tr.
16). 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 the
opinion as follows: At the administrative law judge hearing
and Appeals Council levels, the written decision must
incorporate the pertinent findings and conclusions based on
the technique. The decision must show the significant
history, including examination and laboratory findings, and
the functional limitations that were considered in reaching a
conclusion about the severity of the mental impairment(s).
The decision ...