United States District Court, D. Maryland
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
August 27, 2016, Plaintiff Kiorsini Brooks petitioned this
Court to review the Social Security Administration's
final decision to deny his claims for Supplemental Security
Income and Disability Insurance Benefits. (ECF No. 1). I have
considered the parties' cross-motions for summary
judgment. (ECF Nos. 15, 16). 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.
Brooks filed claims for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on January 31, 2012, alleging a
disability onset date of January 1, 2008. (Tr.
206-18). His claims were denied initially and on
reconsideration. (Tr. 138-42, 145-48). A hearing was held on
August 19, 2014, before an Administrative Law Judge
(“ALJ”). (Tr. 65-91). Following the hearing, the
ALJ determined that Mr. Brooks was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 24-64). The Appeals Council (“AC”)
denied Mr. Brooks's request for further review, (Tr.
1-5), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Brooks suffered from the severe impairments of
cervical degenerative disc disease, chronic pancreatitis,
schizophrenia, schizoaffective disorder, bipolar disorder,
mood disorder, anxiety disorder, personality disorder, and
history of polysubstance use and alcohol dependence. (Tr.
30). Despite these impairments, the ALJ determined that, if
Mr. Brooks were to stop substance use, he would retain the
residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he can understand, remember, and carry out
simple instructions. He can perform simple, routine, and
repetitive tasks with only occasional changes in the work
setting. He can have only occasional required interaction
with the general public, co-workers, and supervisors. (Tr.
45). After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Mr. Brooks could
perform several jobs existing in the national economy and
that, therefore, he was not disabled. (Tr. 53-55).
Brooks's sole argument on appeal is 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).
I agree. 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 that, if Mr. Brooks were to stop
substance use, he would have moderate difficulties
maintaining concentration, persistence, or pace. (Tr. 44).
The entirety of the analysis states, “[Mr. Brooks]
testified that sometimes he walks to the grocery store and
goes to Starbucks every evening. He has a driver's
license but does not drive, and he travels by bus.”
Id. 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 must include a specific