United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered
the parties' dispositive cross-motions, and Mr.
Galt's reply. [ECF Nos. 10, 11, 12]. 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. 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). For the reasons set forth below, I
recommend that both motions be denied, that the
Commissioner's decision be reversed in part pursuant to
sentence four, and that the case be remanded to the
Commissioner for further proceedings in accordance with this
Report and Recommendations.
2012, Mr. Galt filed applications for Disability Insurance
Benefits, Supplemental Security Income, and Child's
Insurance benefits, alleging a disability onset date of
February 1, 2009. (Tr. 228-244). His applications were denied
initially and on reconsideration. (Tr. 165-76, 180-85). An
Administrative Law Judge (“ALJ”) held a
consolidated hearing on all three applications on December 3,
2014, at which Mr. Galt was represented by counsel. (Tr.
40-74). Following the hearing, the ALJ determined that Mr.
Galt was not disabled within the meaning of the Social
Security Act during the relevant time period. (Tr. 20-39).
The Appeals Council denied Mr. Galt's request for review,
(Tr. 1-6), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Galt suffered from the severe impairments of
degenerative disc disease, history of attention deficit
hyperactivity disorder, learning disorder, depression,
history of substance abuse, and obesity. (Tr. 26). Despite
these impairments, the ALJ concluded that Mr. Galt retained
the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except simple routine tasks that entail a sit or
sit [sic] defined as done in a sitting or standing
position. She [sic] can only occasionally interact
with the public, co-workers or supervisors.
After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Mr. Galt could
perform jobs existing in significant numbers in the national
economy, and that, therefore, he was not disabled. (Tr.
Galt disagrees. He argues (1) that the ALJ failed to properly
apply Listing 12.05C; (2) that the ALJ erred in assigning
weight to the medical sources; (3) that the ALJ erred in
evaluating his credibility; and (3) that the ALJ's
hypothetical to the VE violated the Fourth Circuit's
decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015). I agree that the ALJ erred in applying Listing 12.05C
and in posing a hypothetical question to the VE that violates
Mascio, and I therefore recommend remand. In so
recommending, I express no opinion as to whether the
ALJ's ultimate conclusion that Mr. Galt is not entitled
to benefits is correct or incorrect.
Mr. Galt alleges that he met the criteria of Listing 12.05C,
and that the ALJ improperly applied that listing. A claimant
bears the burden of demonstrating that his impairment meets
or equals a listed impairment. See Kellough v.
Heckler, 785 F .2d 1147, 1152 (4th Cir. 1986). Listing
12.05 governs intellectual disability, which refers to
“significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment
before age 22, ” and also requires that a claimant meet
the criteria set forth in one of four subsequent paragraphs.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. Paragraph C
requires a showing of two distinct prongs. First, the
claimant must demonstrate “[a] valid verbal,
performance, or full scale IQ of 60 through 70.”
Id. Second, the claimant must have “a physical
or other mental impairment imposing an additional and
significant work-related limitation of function.”
Commissioner concedes that the two Paragraph C prongs were
met in this case, Def. Mot. at 5, but argues that the ALJ
found that the listing had not been met “apparently
because [Mr. Galt] did not exhibit the required deficits in
adaptive functioning.” Id. The fact that the
Commissioner had to use the term “apparently” in
defending the analysis highlights the fatal flaw in the
ALJ's opinion: the ALJ did not discuss “deficits in
adaptive functioning” at all. (Tr. 28). Instead, the
ALJ concluded that Mr. Galt is “somewhat limited in
functioning because of his physical or mental impairments[,
]” which could, in some interpretations, constitute
“deficits in adaptive functioning.” Id.
In light of the record showing Mr. Galt's participation
in special education classes in high school, (Tr. 259), and
his lack of any substantial gainful employment as an adult,
(Tr. 33), I cannot conclude that the ALJ's failure to
apply each of the relevant Listing criteria was harmless.
Thus, I recommend remand for the ALJ to provide an
appropriate analysis of Listing 12.05C.
addition, in Mascio, the Fourth Circuit 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.”
780 F.3d at 638 (internal quotation marks and citations
omitted) (joining the Third, Seventh, Eighth, and Eleventh
Circuits). The Fourth Circuit indicated that an ALJ might
cure his error by explaining why a step three finding of a
moderate difficulty in concentration, persistence, or pace
does not translate into a limitation in a claimant's RFC.
Id. Like in Mascio, the ALJ in this case
determined at step three that Mr. Galt suffered from moderate
difficulties in concentration, persistence, or pace.
Specifically, the ALJ reasoned that, “[Mr. Galt]
testified to having difficulty concentrating. Consultative
examiner, Linda J. Schuerholtz notes him as able to follow
three step directions and persist on task.” (Tr. 28).
However, in assessing Mr. Galt's RFC, the ALJ apparently
attempted to limit him only to “simple routine
tasks.” (Tr. 29).
other cases confronted by this Court in the wake of
Mascio, it seems entirely possible that the ALJ may
have erred by finding moderate, rather than mild or no,
difficulties at step three. See, e.g., Powell v.
Colvin, Civil No. SAG-14-3233 (D. Md. Jun. 12, 2015)
(unpublished). The opinion of Dr. Schuerholtz seems to
support the notion that Mr. Galt can sustain concentration,
at least for some period of time (although I note that her
opinion does not address his ability to sustain concentration
throughout an eight-hour workday). (Tr. 30). Ultimately,
because the ALJ failed to explain his finding, I cannot
discern why the ALJ appears to have reached contradictory
conclusions about whether Mr. Galt does or does not have
moderate difficulties with concentration, persistence, or
pace, and I must recommend remand to the Commissioner for
further analysis consistent with the Fourth Circuit's
mandate in Mascio.
Galt also alleges that the ALJ erred in the assignment of
weight to the medical sources and in evaluating his
credibility. Although I ascertain no error in those portions
of the opinion, because I am recommending remand on other
grounds, if the case is remanded, the ALJ can determine
whether additional discussion of those issues is appropriate.
reasons set forth above, I ...