Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brocato v. Commissioner, Social Security Administration

United States District Court, D. Maryland

July 19, 2017

Nancy Brocato
v.
Commissioner, Social Security Administration;

          ORDER

         Dear Counsel:

         On July 12, 2016, Plaintiff Nancy Brocato petitioned this Court to review the Social Security Administration's (“SSA”) final decision to deny her claims for Disability Insurance Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties' cross-motions for summary judgment, and Ms. Brocato's reply. (ECF Nos. 17, 23, 25). In addition, I have reviewed Plaintiff's supplemental briefing regarding the impact of the Fourth Circuit's recent decision in Lewis v. Berryhill, 858 F.3d 858 (4th Cir. 2017), and the Commissioner's response thereto.[1] (ECF Nos. 22, 24). 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 Commissioner's decision in part, and remand the case to the Commissioner for further consideration. This letter explains my rationale.

         Ms. Brocato filed her claims for benefits on September 10, 2012, alleging a disability onset date of July 1, 2010. (Tr. 207-19). Her claims were denied initially and on reconsideration. (Tr. 126-32, 139-42). A hearing was held on December 2, 2014, before an Administrative Law Judge (“ALJ”). (Tr. 40-74). Following the hearing, the ALJ determined that Ms. Brocato was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 12-28). The Appeals Council denied Ms. Brocato's request for review, (Tr. 1-6), so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Ms. Brocato suffered from the severe impairments of “mild degenerative disc disease of the lumbar spine, asthma, bipolar/depressive disorder, anxiety disorder, and history of cocaine and alcohol abuse in reported remission.” (Tr. 17). Despite these impairments, the ALJ determined that Ms. Brocato retained the residual functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is limited to frequently climbing, balancing, stooping, kneeling, crouching, and crawling; avoiding concentrated exposure to respiratory irritants; carrying out simple tasks in two-hour increments; avoiding direct interaction with the general public; and adapting to simple changes in a routine work setting.

(Tr. 19). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Ms. Brocato could perform jobs existing in significant numbers in the national economy and that, therefore, she was not disabled. (Tr. 22-23).

         Ms. Brocato 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 did not engage in a proper analysis of Listing 1.04. Pl. Mot. 8-25. I concur that the ALJ committed an error under Mascio, and that remand is therefore appropriate. 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 Ms. Brocato's credibility based on both her subjective statements and the medical evidence, in accordance with Lewis.

         Beginning 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 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.

         Paragraph 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).

         The 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” limitations.

         The 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. Even so, 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. Id.

         In the instant case, the ALJ found that Ms. Brocato had “moderate” difficulties maintaining concentration, persistence, or pace. (Tr. 18). The entirety of the analysis states, “Consultative examiner Dr. Cascella indicated that [Ms. Brocato] was able to understand and follow simple instructions, and she scored 26 of 30 on a mini mental status examination. She complained of trouble concentrating, but the record does not demonstrate objective signs of concentration or memory problems. She testified that she cannot do two things at once but can do one thing at a time.” 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 of supervision or assistance you require, and the settings in which you are able to function.

20 C.F.R. ยง 404.1520a(c)(2). Once the technique has been applied, the ALJ is supposed to include the results in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.