United States District Court, D. Maryland
STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE.
January 31, 2017, Plaintiff Christopher Ray Jaques 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. [ECF Nos. 17, 21]. 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.
Jaques protectively filed his claim for benefits on May 27,
2014, alleging a disability onset date of May 15, 2009. (Tr.
113-16). His claim was denied initially and on
reconsideration. (Tr. 53-80). A hearing was held on April 29,
2015, before an Administrative Law Judge (“ALJ”).
(Tr. 30-52). Following the hearing, on August 25, 2016, the
ALJ determined that Mr. Jaques was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 12-29). The Appeals Council denied Mr.
Jaques's request for further review, (Tr. 1-5), so the
ALJ's decision constitutes the final, reviewable decision
of the Agency.
found that Mr. Jaques suffered from the severe impairments of
“Post-Traumatic Stress Disorder (PTSD), panic
attacks/anxiety, depression, lumbosacral degenerative disc
disease, disturbance of skin sensation, obesity, and
obstructive sleep apnea.” (Tr. 18). Despite these
impairments, the ALJ determined that Mr. Jaques retained the
residual functional capacity (“RFC”) to:s
perform light work as defined in 20 CFR 404.1567(b) except he
could perform no more than occasional bending, stooping, and
crouching; he had to avoid operating motor vehicles; he had
to avoid climbing ladders and scaffolds; he was limited to
routine, repetitive tasks; and he had to avoid direct
interaction with the general public.
20). After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Mr. Jaques could
perform several jobs existing in significant numbers in the
national economy. (Tr. 23-24). Accordingly, the ALJ found
that Mr. Jaques was not disabled. (Tr. 24-25).
Jaques raises several arguments in support of his appeal: (1)
that the ALJ's opinion violated Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015) by failing to
ascribe RFC restrictions to address Mr. Jaques's moderate
limitations in concentration, persistence, or pace; (2) that
the ALJ failed to evaluate the effects of Mr. Jaques's
daytime somnolence; and (3) that the ALJ failed to explain
his assignment of substantial weight to the disability rating
by the Department of Veterans Affairs (“VA”), as
required by Bird v. Commissioner of Social Security
Administration, 699 F.3d 337 (4th Cir. 2012). I concur
with Mr. Jaques's arguments.
in Mascio, the United States Court of Appeals for
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. 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. 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).
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”
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.
instant case, the ALJ found that, Mr. Jaques has
“moderate difficulties” in concentration,
persistence, or pace “as he had problems with
maintaining focus and problems with short-term memory due to
both his mental impairments and side effects of
medications.” (Tr. 19). 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