United States District Court, D. Maryland
August 31, 2016, Plaintiff Christopher McDonald 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. (ECF Nos. 16, 19). In addition, I have reviewed
Plaintiff's supplemental briefing regarding the impact of
the Fourth Circuit's recent decision in Lewis v.
Berryhill, No. 15-2473, 2017 WL 2381113 (4th Cir. June
2, 2017), and the Commissioner's response
thereto. (ECF Nos. 21, 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 rationale.
McDonald protectively filed claims for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”) in April, 2013. (Tr. 260-67). He alleged
a disability onset date of June 22, 2008. Id. His
claims were denied initially and on reconsideration. (Tr.
174-82, 185-90). A hearing was held on February 3, 2016,
before an Administrative Law Judge (“ALJ”). (Tr.
47-111). Following the hearing, the ALJ determined that Mr.
McDonald was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 16-46). The
Appeals Council (“AC”) denied Mr. McDonald's
request for review, (Tr. 1-6), so the ALJ's decision
constitutes the final, reviewable decision of the Agency.
found that Mr. McDonald suffered from the severe impairments
of “diabetes with neuropathy, retinopathy, ulcers and
cellulitis; lumbar degenerative disc disease; neck
spondylosis; right knee meniscal tear; obesity; bipolar
disorder; and major depressive disorder.”
(Tr. 22). Despite these impairments, the ALJ determined that
Mr. McDonald retained the residual functional capacity
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) where they (sic) can lift or carry up to
20-pounds occasionally and can lift or carry up to 10-pounds
frequently and stand or walk for approximately six-hours in
an eight-hour workday and sit for approximately six-hours in
an eight-hour workday with normal breaks; where he can only
occasionally climb ramps, stairs, ladders, ropes or
scaffolds; where he can occasionally balance, stoop, kneel,
crouch, and crawl; where he is limited to work involving
simple, routine, and repetitive tasks involving only simple
work-related decisions with few if any workplace changes and
only occasional supervision.
(Tr. 30-31). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr.
McDonald could perform work existing in significant numbers
in the national economy and that, therefore, he was not
disabled. (Tr. 38-39).
McDonald 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 assign weight to
the medical opinion of a consultative physician, Dr.
(ECF No. 16-1, pp. 6-12). I concur that the ALJ committed an
error under Mascio, and remand is therefore
appropriate. In remanding for additional explanation, I
express no opinion as to whether the ALJ's ultimate
conclusion that Mr. McDonald is not entitled to benefits is
correct or incorrect. I also asked the parties to consider
whether the case was impacted by the recent ruling in
Lewis. However, because this case is being remanded
on other grounds, I need not reach the Lewis issue.
On remand, the ALJ should assess Mr. McDonald's
credibility based on both Mr. McDonald's subjective
statements and the medical evidence, in accordance with
Lewis and other guidance.
with Mascio, the United States Court of Appeals for
the Fourth Circuit determined that remand was appropriate for
three distinct reasons, including 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. McDonald to have moderate
difficulties maintaining concentration, persistence, or pace.
(Tr. 27-29). The ALJ noted that Mr. McDonald displayed
“poor memory, and present[ed] as anxious and guarded
with poor insight[.]” (Tr. 27). The ALJ also
cited Dr. Rao's determination that Mr. McDonald's
“depression would interfere with his ability to
tolerate work-related stresses and productivity[.]”
Id. However, the ALJ also noted that, on
examination, Mr. McDonald was “without distress, and
alert and oriented, with normal judgment and cognition, and
with normal mood and affect.” Id. Moreover,
the ALJ noted that Mr. McDonald “had a normal cognitive
examination, ” and was “independent with personal
activities, ” “presented with good hygiene,
” and “was cooperative with good eye
contact.” Id. According to 20 C.F.R. §
404.1520a(c)(2), the rating of “moderate
difficulties” is supposed to represent the result of
application of the following technique:
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