United States District Court, D. Maryland
Stephanie A. Gallagher, United States Magistrate Judge.
November 23, 2016, Plaintiff Richard Douglas Clough
petitioned this Court to review the Social Security
Administration's final decision to deny his claim for
Disability Insurance Benefits. [ECF No. 1]. I have considered
the parties' cross-motions for summary judgment and
Plaintiff's reply. [ECF Nos. 18, 20, 23]. 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); see also 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.
Clough protectively filed a claim for Disability Insurance
Benefits (“DIB”) on March 28, 2013, alleging a
disability onset date of January 1, 2011. (Tr. 168-69). His
claim was denied initially and on reconsideration. (Tr.
91-102, 104-15). A hearing was held on May 13, 2015, before
an Administrative Law Judge (“ALJ”). (Tr. 37-54).
Following the hearing, the ALJ determined that Mr. Clough was
not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 19-31). The Appeals
Council denied Mr. Clough's request for review, (Tr.
1-4), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Clough suffered from the severe impairments of
“status post-op of the left knee, degenerative disc
disease of the cervical and lumbar spine, liver disease,
asthma, gastroesophageal reflux disease (GERD), depression,
anxiety, attention deficit disorder (ADD) or attention
deficit hyperactivity disorder (ADHD), and history of
substance abuse.” (Tr. 21). Despite these impairments,
the ALJ determined that Mr. Clough retained the residual
functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except the work must consist of only simple, routine tasks;
only occasional interaction with the public, coworkers, and
supervisors; and must have no concentrated exposure to
pulmonary irritants, such as dust and fumes.
(Tr. 25). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Clough
could perform several jobs existing in significant numbers in
the national economy. (Tr. 30-31). Accordingly, the ALJ
determined that Mr. Clough was not disabled. (Tr. 31).
Clough raises two issues on appeal: (1) that the ALJ's
decision runs afoul of the Fourth Circuit's holding in
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015); and
(2) that the ALJ erred at step three of the sequential
evaluation by failing to properly evaluate whether Mr.
Clough's impairments meet or equal the criteria set forth
in Listing 1.04A. Pl. Mot. Summ. J. 7-25. I agree that the
ALJ's decision does not comport with Mascio, and
that remand is therefore required. In remanding for
additional explanation, I express no opinion as to whether
the ALJ's ultimate conclusion that Mr. Clough is not
entitled to benefits is correct.
Mr. Clough argues the ALJ failed to account for his moderate
difficulties in concentration, persistence, or pace in the
RFC assessment, as required by the Fourth Circuit's
holding in Mascio. Pl. Mot. Summ. J. 10. In
Mascio, the Fourth Circuit determined that remand
was appropriate for three distinct reasons, including, as
pertinent to this case, the inadequacy of the ALJ's
evaluation of “moderate difficulties” in
concentration, persistence, or pace. 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
§§ 12.00-12.15 (2015). 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.
§ 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.
Id. § 12.00(C). 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. § 404.1520a(c)(4). 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 §§
12.04, 12.06. 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. § 12.00(C).
functional area of “[c]oncentration, 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. § 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. 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.
instant case, the ALJ found that Mr. Clough had
“moderate difficulties” in concentration,
persistence, or pace. (Tr. 23). The ALJ noted that Mr. Clough
reported difficulties with “his memory and
concentration due to scattered thoughts . . . [and] with
following spoken instructions and that he does not like
changes in routine[.]” Id. (citation omitted).
Moreover, the ALJ noted that Mr. Clough “had difficulty
focusing due to racing thoughts[.]” Id.
Referencing Mr. Clough's psychological consultative
examination, the ALJ also observed that Mr. Clough's
“thoughts were rational and thinking was clear and
logical[.]” Id. (citation omitted).
Additionally, the ALJ noted that the psychological
consultative examination revealed that Mr. ...