United States District Court, D. Maryland
August 24, 2016, Plaintiff Gary McCoy petitioned this Court
to review the Social Security Administration's final
decision to deny his claims for Disability Insurance Benefits
and Supplemental Security Income. (ECF No. 1). I have
considered the parties' cross-motions for summary
judgment, and Mr. McCoy's reply. (ECF Nos. 21, 22, 25). 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.
McCoy filed claims for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on April 1, 2010,  alleging a
disability onset date of July 6, 2005. (Tr. 283-96).
His claims were denied initially and on reconsideration. On
April 27, 2012, the Administrative Law Judge dismissed Mr.
McCoy's request for hearing as untimely. (Tr. 130-31).
However, on November 5, 2012, the Appeals Council
(“AC”) remanded Mr. McCoy's case for further
consideration and a hearing. (Tr. 125-26). A hearing was held
on November 8, 2013, and at the conclusion of the hearing the
ALJ ordered a consultative examination. (Tr. 1762-97). After
the examination, another hearing was held on April 30, 2014.
(Tr. 1742-61). Following those hearings, on November 20,
2015, the ALJ determined that Mr. McCoy was not disabled
during the relevant time frame. (Tr. 46-65). This time, the
AC denied Mr. McCoy's request for review, (Tr. 12-15), so
the ALJ's 2015 decision constitutes the final, reviewable
decision of the Agency.
found that Mr. McCoy suffered from the severe impairments of
“degenerative disc disease of the lumbar spine; mild
osteoarthritis of the right knee; obesity; asthma; organic
mental disorder; affective disorder; anxiety disorder; and
personality disorder, NOS.” (Tr. 48-49). Despite these
impairments, the ALJ determined that Mr. McCoy retained the
residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except lift and carry 20 pounds occasionally and
10 pounds frequently; stand and walk for 2 hours in an 8 hour
day; sit for 6 hours in an 8 hour day; occasionally climb,
balance, stoop, kneel, crouch, and crawl; must avoid extremes
of cold and extremes of heat; must avoid all hazards such as
machinery and heights; must avoid concentrated exposure to
lung irritants such as fumes, odors, gases, and dust; is
limited to simple, routine, repetitive tasks, with only
occasional interaction with others; and is limited to the
performance of only 1-2 step task jobs.
(Tr. 53-54). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. McCoy
could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled.
McCoy raises four primary arguments on appeal: (1) that the
ALJ erred in assessing Listing 1.04; (2) that the ALJ
improperly evaluated his mental health limitations under the
Listings; (3) that the ALJ assigned inadequate weight to the
opinions of his treating physicians; and (4) that the
ALJ's credibility assessment was unsupported. I concur
that the ALJ's mental analysis of Mr. McCoy's mental
health limitations was deficient, particularly in
consideration of the Fourth Circuit's decision in
Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir.
2015).Accordingly, I am remanding the case to
allow compliance with that decision. However, I express no
opinion as to whether the ALJ's ultimate conclusion that
Mr. McCoy is not entitled to benefits is correct or
with the successful argument, 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 found Mr. McCoy to have moderate
limitations in maintaining concentration, persistence, or
pace. (Tr. 52). The entirety of the analysis states:
The claimant reported that his ability to follow written
instructions such as a recipe depended on what was being
prepared. The claimant stated that he followed spoken
instructions “somewhat well.” On exam of November
29, 2010, the claimant was able to recall three objects after
a five minute distraction, write a complete sentence, and
follow a written command. The claimant was able to complete 7
digits forward and 2 backwards. On December 4, 2013, the
claimant was able to understand and follow simple directions.
(Tr. 52) (internal citations omitted). According to 20 CFR
§ 404.1520a(c)(2), the rating of “moderate
difficulties” is supposed to represent the result of