United States District Court, D. Maryland
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. (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.
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
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).
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
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.
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. 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.
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. § 404.1520a(c)(2). Once the technique has been
applied, the ALJ is supposed to include the results in ...