United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher, United States Magistrate Judge
to Standing Order 2014-01, the above-captioned case has been
referred to me to review 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). I have considered
the parties' dispositive cross-motions, and Ms.
Henderson-Crouch's reply. [ECF Nos. 16, 17, 18]. 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. 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). For the reasons set forth below, I
recommend that both motions be denied, that the
Commissioner's decision be reversed in part pursuant to
sentence four, and that the case be remanded to the
Commissioner for further proceedings in accordance with this
Report and Recommendations.
Henderson-Crouch filed an application for Disability
Insurance Benefits on September 19, 2012, alleging a
disability onset date of July 1, 2012. (Tr. 166-73). Her
application was denied initially and on reconsideration. (Tr.
76-86, 88-103). An Administrative Law Judge
(“ALJ”) held a hearing on February 25, 2015, at
which Ms. Henderson-Crouch was represented by counsel. (Tr.
41-75). Following the hearing, the ALJ determined that Ms.
Henderson-Crouch was not disabled within the meaning of the
Social Security Act. (Tr. 18-40). The Appeals Council denied
Ms. Henderson-Crouch's request for review, (Tr. 1-5), so
the ALJ's decision constitutes the final, reviewable
decision of the Agency.
found that Ms. Henderson-Crouch suffered from the severe
impairments of obesity, joint pain, epicondylitis, cervical
and lumbar degenerative disc disease, sacroiliac joint
dysfunction, anxiety disorder and panic disorder, mood
disorder including bipolar disorder and major depressive
disorder, and fibromyalgia. (Tr. 23). Despite these
impairments, the ALJ determined that Ms. Henderson-Crouch
retained the residual functional capacity (“RFC”)
perform sedentary work as defined in 20 CFR 404.1567(a)
except the claimant can perform no more than occasional
postural activities, but never crawl or kneel; cannot use
stairs or ramps more than occasionally; cannot work at
exposed heights; and can no more than occasionally work
around moving machinery. The claimant is further limited to
unskilled work; and can have no more than occasional
interaction with coworkers, supervisors, and the general
(Tr. 27). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms.
Henderson-Crouch could perform jobs existing in significant
numbers in the national economy and that, therefore, she was
not disabled. (Tr. 34-35).
Henderson-Crouch's primary 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).Pl. Mot. 1-8. I agree, and therefore
recommend remand. In so recommending, I express no opinion as
to whether the ALJ's ultimate conclusion that Ms.
Henderson-Crouch is not entitled to benefits is correct or
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 that Ms. Henderson-Crouch had
“moderate” difficulties maintaining
concentration, persistence, or pace. (Tr. 26). The entirety
of the analysis states, “The claimant indicated that
she has difficulty concentrating. However, the claimant was
described as having good/ normal (sic) attention at
multiple medical appointments. Further, at the consultative
examination in July[, ] 2013, the claimant made slight
mistakes on serial sevens, but was able to spell a word
backward, and had normal recall. The claimant's ability
to drive also demonstrates an ability to concentrate to some
degree.” 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 ...