United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
to Standing Order 2014-01, the above-referenced case has been
referred to me for review of 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). The
Plaintiff, Lavonda Cross, who is appearing pro se,
did not file a motion for summary judgment and did not
respond to the Commissioner's Motion for Summary
Judgment. I have considered the Commissioner's
pending Motion for Summary Judgment. [ECF No. 17]. This Court
must uphold the Commissioner's decision if it is
supported by substantial evidence and if proper legal
standards were employed. 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). I find that no hearing is necessary. See
Loc. R. 105.6 (D. Md. 2016). For the reasons set forth below,
I recommend that the Commissioner's motion be denied, the
decision of the Commissioner be reversed in part, and the
case be remanded pursuant to sentence four of 42 U.S.C.
Cross filed her application for supplemental security income
on July 26, 2012, alleging a disability onset date of June
28, 2012. (Tr. 134-39). Her application was denied initially
and on reconsideration. (Tr. 80-83, 89-92). A hearing was
held on May 5, 2015. (Tr. 38-56). After the hearing, the
Administrative Law Judge (“ALJ”) issued an
opinion denying benefits. (Tr. 23-37). The Appeals Council
(“AC”) denied review, making the ALJ's
decision the final, reviewable decision of the Agency. (Tr.
found that, during the relevant time frame, Ms. Cross
suffered from the severe impairments of “mood disorder;
anxiety disorder; personality disorder.” (Tr. 28).
Despite these impairments, the ALJ determined that Ms. Cross
retained the residual functional capacity (“RFC”)
perform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant
can tolerate only occasional contact with co-workers,
supervisors, and/or the general public due to limitations in
social functioning. She is also limited to only simple,
routine, repetitive tasks, due to limitations in
concentration, persistence, or pace.
(Tr. 30). After considering testimony from a vocational
expert (“VE”), the ALJ determined that there were
jobs existing in significant numbers in the national economy
that Ms. Cross could perform. (Tr. 33-34). Therefore, the ALJ
concluded that Ms. Cross was not disabled. (Tr. 34).
carefully reviewed the ALJ's opinion and the entire
record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753
(E.D. Tex. 2005) (mapping an analytical framework for
judicial review of a pro se action challenging an
adverse administrative decision, including: (1) examining
whether the Commissioner's decision generally comports
with regulations, (2) reviewing the ALJ's critical
findings for compliance with the law, and (3) determining
from the evidentiary record whether substantial evidence
supports the ALJ's findings). For the reasons described
below, while substantial evidence supports some portions of
the ALJ's decision, the analysis is deficient under the
Fourth Circuit opinion in Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015). Accordingly, I recommend remand.
one, the ALJ found in Ms. Cross's favor that she had not
engaged in substantial gainful activity since her application
date. (Tr. 28). At step two, the ALJ found the severe
impairments listed above, and found that any other alleged
impairments, including obesity, were nonsevere. Id.
three, the ALJ specifically considered Ms. Cross's
obesity, in addition to mental Listings 12.04 and 12.06. (Tr.
29). In applying the special technique for consideration of
mental impairments, the ALJ concluded, among other findings,
that Ms. Cross had moderate difficulties in concentration,
persistence, or pace. Id.
determining the RFC assessment, the ALJ summarized Ms.
Cross's allegations about her inability to work. (Tr.
31). The ALJ further analyzed the “limited”
medical evidence from treatment notes and a consultative
examination, including the Global Assessment of Functioning
(“GAF”) scores assessed at various points in
time. (Tr. 31-32). The ALJ found that Ms. Cross's
assertions were not entirely credible, citing subjective
evidence including Ms. Cross's own statements.
Id. The ALJ assigned “little weight” to
a GAF score of 47 from June, 2014, since the ALJ found it to
be “inconsistent with the course of treatment, extent
of activities of daily living, and progress notes.”
(Tr. 32). The ALJ also assigned “little weight”
to the opinions of Adrienne Dulaj, a licensed clinical social
worker, and Dr. Doug Gartrell. (Tr. 32). Finally, the ALJ
assigned “significant weight” to the findings of
the State agency medical consultants. Id.
at step four, the ALJ found that Ms. Cross was unable to
perform her past relevant work as a cashier and meter
attendant. (Tr. 32). At step five, the ALJ posed
hypotheticals to the VE to determine whether a person with
each set of hypothetical criteria would be able to find work.
(Tr. 52-54). Ultimately, the ALJ determined that Ms.
Cross's RFC matched one of the hypotheticals he had
posed. (Tr. 30, 52-53). The VE cited several jobs in response
to that hypothetical, and the ALJ relied on that VE testimony
in his opinion. See id.; (Tr. 33-34).
function of this Court is not to review Ms. Cross's
claims de novo or to reweigh the evidence of record.
See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986) (citing 42 U.S.C. § 405(g) and Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather,
this Court is to determine whether, upon review of the whole
record, the Commissioner's decision is supported by
substantial evidence and a proper application of the law.
See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990); see also 42 U.S.C. § 405(g). I am unable
to recommend that finding here.
Mascio, the Fourth Circuit determined that remand
was warranted for several reasons, including a discrepancy
between the ALJ's finding at step three concerning the
claimant's limitation in concentration, persistence, and
pace, and his RFC assessment. 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. Most listings therein consist of: (1) a brief
statement describing its 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. § 404.1520a(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.; see 20 C.F.R.
§ 404.1520a(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, along with
repeated episodes of decompensation. See, e.g., 20
C.F.R. Pt. 404, Subpt. P, App. 1 ...