United States District Court, D. Maryland
March 30, 2017, Plaintiff Lisa Ann Taylor 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. [ECF Nos. 14, 17]. 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.
Taylor filed a claim for Disability Insurance Benefits
(“DIB”) on March 18, 2013, alleging a disability
onset date of March 1, 2013. (Tr. 261-62). Her claim was
denied initially and on reconsideration. (Tr. 164-80,
181-200, 201-04, 208-09). A hearing was held on August 26,
2015, before an Administrative Law Judge (“ALJ”).
(Tr. 133-63). Following that hearing, on December 18, 2015,
the ALJ determined that Ms. Taylor was not disabled within
the meaning of the Social Security Act during the relevant
time frame. (Tr. 95-132). The Appeals Council
(“AC”) denied Ms. Taylor's request for
review, (Tr. 1-6), so the ALJ's decision constitutes the
final, reviewable decision of the Agency.
found that Ms. Taylor suffered from the severe impairments of
“degenerative disc disease of the lumbar spine,
depression, breast cancer status-post bilateral mastectomies
and reconstructive surgery, cervicalgia, and obesity.”
(Tr. 100). Despite these impairments, the ALJ determined that
Ms. Taylor retained the residual functional capacity
perform light work as defined in 20 CFR 404.1567(b) except
she is able to complete only simple tasks/work procedures.
She is able to make work decisions but is not able to carry
out detailed instructions. She can have occasional
interaction with the public in positions where there would be
little to no change in the work setting.
(Tr. 109). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Taylor
could perform several jobs existing in significant numbers in
the national economy. (Tr. 121-22). Accordingly, the ALJ
determined that Ms. Taylor was not disabled. (Tr. 122).
Taylor raises several issues on appeal, including that the
ALJ: (1) improperly concluded that her hydrocephalus and
“peripheral polyneuropathy affecting many joints and
other parts of her body, particularly her hands, and
associated lymphedema” were non-severe; (2) erroneously
performed the Listing analysis, with respect to Listings
1.02, 1.04, 12.02, and 12.04; (3) failed to support her RFC
assessment with substantial evidence; (4) failed to properly
evaluate her credibility in accordance with Lewis v.
Berryhill, 858 F.3d 858 (4th Cir. 2017); (5) failed to
adequately perform a function-by-function analysis with
respect to her neuromuscular and mental health symptoms, as
required by Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015); (6) erred in his assignments of weight to the various
medical opinions; and (7) erred in his evaluation of the
VE's testimony. Pl. Mot. 7-30. 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. Taylor is not entitled to
benefits is correct.
with her most successful argument, Ms. Taylor argues that the
ALJ failed to account for her moderate difficulties in
concentration, persistence, or pace in the RFC assessment, as
required by the Fourth Circuit's holding in
Mascio. 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 dis; (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.
the ALJ found that Ms. Taylor had “moderate
difficulties” in concentration, persistence, or pace.
(Tr. 107). In reaching his conclusion, the ALJ cited to Ms.
Taylor's examination notes, in which “she was
repeatedly noted to be focused, attentive, alert, and fully
oriented . . . . [and] did not display significant
difficulties with speed or attention.” Id.
(citations omitted). The ALJ also noted that “[f]ormal
psychological testing showed low average range memory
abilities.” (Tr. 108); see (Tr. 1068). In
addition to the medical records, the ALJ discussed Ms.
Taylor's daily living abilities, noting that Ms. Taylor
was able to “focus on crocheting for extended periods
of time[;] . . . drive[;] . . . sen[d] her grandson off to
school; help him with his homework; and . . . pay bills,
count change, handle a savings account, and use a
checkbook/money orders.” (Tr. 107-08) (citations
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