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Bruggemann v. Commissioner, Social Security Administration

United States District Court, D. Maryland

January 5, 2018

Lisa Jane Bruggemann
v.
Commissioner, Social Security Administration;

          LETTER TO COUNSEL

          STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE.

         Dear Counsel:

         On January 6, 2017, Plaintiff Lisa Jane Bruggemann petitioned this Court to review the Social Security Administration's final decision to deny her claim for benefits. [ECF No. 1]. I have considered the parties' cross-motions for summary judgment and Plaintiff's reply. [ECF Nos. 20, 21, 22]. 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 judgment of the Commissioner, and remand the case to the Commissioner for further analysis pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.

         Ms. Bruggemann protectively filed a claim for Supplemental Security Income (“SSI”) on October 25, 2013, alleging a disability onset date of June 17, 2012. (Tr. 179-87). Her claim was denied initially and on reconsideration. (Tr. 111-14, 116-17). A hearing was held on July 14, 2016, before an Administrative Law Judge (“ALJ”). (Tr. 27-62). Following the hearing, the ALJ determined that Ms. Bruggemann was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 85-110). The Appeals Council (“AC”) denied Ms. Bruggemann's request for further review, (Tr. 1-6), so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Ms. Bruggemann suffered from the severe impairments of “degenerative disc disease of the cervical spine with disc herniation; lumbosacral spondylosis and lumbar disc protrusion; migraine headaches; chronic obstructive pulmonary disease (“COPD”); left shoulder tendonitis; and anxiety.” (Tr. 90). Despite these impairments, the ALJ determined that Ms. Bruggemann retained the residual functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 416.967(b) except occasional climbing of ramps, stairs, ladders, ropes, and scaffolds; occasional stooping, crouching, kneeling, balancing, and crawling. The claimant must avoid concentrated exposure to extreme heat, extreme cold, and pulmonary irritants[, ] such as fumes, odors, dust, gases, and poorly ventilated areas. The claimant is limited to simple, routine tasks.

(Tr. 95). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Ms. Bruggemann could perform several jobs existing in the national economy, and therefore was not disabled. (Tr. 103-04).

         Ms. Bruggemann raises three arguments on appeal: (1) that the ALJ erred at step three of the sequential evaluation by failing to evaluate whether her impairments met or equaled the criteria set forth in Listing 1.04A; (2) that the ALJ's decision runs afoul of the Fourth Circuit's decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2012); and (3) that the ALJ's RFC determination is unsupported by substantial evidence. Pl. Mot. 8-27. I agree that the ALJ's decision does not comport with Mascio. In so holding, I express no opinion as to whether the ALJ's ultimate conclusion that Ms. Bruggemann is not entitled to benefits is correct.

         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. 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. § 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. § 404.1620a(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 § 12.02. 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. § 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. § 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 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 Ms. Bruggemann had “moderate” difficulties maintaining concentration, persistence, or pace. (Tr. 94). Specifically, the ALJ found:

The claimant testified she has issues with memory and concentration; she asked several times at the hearing to be reminded of the question or to break it down into smaller parts. However, her cognitive issues do not leave her debilitated. The claimant stated in her function report that she is able to read books for pleasure, count change and handle a savings and checking account independently. She admitted she can generally follow instructions and can cope with stress. . . . [T]he claimant has GAF scores of 45 issued by her counselor since September 2014, Mr. Bowden, LCPC. However, the only mental status examination performed by Mr. Bowden is inconsistent with those low GAF assessments; her mental status examination shows normal functioning in social and cognitive areas. Considering ...

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