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Clough v. Commissioner, Social Security Administration

United States District Court, D. Maryland

November 20, 2017

Richard Douglas Clough
v.
Commissioner, Social Security Administration;

          Stephanie A. Gallagher, United States Magistrate Judge.

         LETTER TO COUNSEL

         Dear Counsel:

         On 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.

         Mr. 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.

         The ALJ 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).

         Mr. 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.

         First, 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.

         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. 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).

         The 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” 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. 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.

         In the 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. ...


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