United States District Court, D. Maryland
April 26, 2017, the Plaintiff, Lawrence Whetstone (“Mr.
Whetstone”), petitioned this Court to review the Social
Security Administration's final decision to deny his
claims for supplemental security income (“SSI”).
(ECF No. 1.) The parties have filed cross-motions for summary
judgment. (ECF Nos. 14 & 15.) These motions have been
referred to the undersigned with the parties' consent
pursuant to 28 U.S.C. § 636 and Local Rule
I find that no hearing is necessary. See Loc. R.
105.6. This Court must uphold the decision of the agency if
it is supported by substantial evidence and if the agency
employed the proper legal standards. 42 U.S.C. §§
405(g), 1383(c)(3); Mascio v. Colvin, 780 F.3d 632,
634 (4th Cir. 2015). Following its review, this Court may
affirm, modify, or reverse the Commissioner, with or without
a remand. See 42 U.S.C. § 405(g); Melkonyan
v. Sullivan, 501 U.S. 89 (1991). Under that standard, I
will deny both motions and remand the case for further
proceedings. This letter explains my rationale.
application for SSI, Mr. Whetstone alleged a disability onset
date of January 17, 2013. (Tr. 20.) His application was
denied initially and on reconsideration. (Tr. 85-88, 94-95.)
A hearing was held before an Administrative Law Judge
(“ALJ”) on February 17, 2016 (Tr. 36-60), and the
ALJ found that Mr. Whetstone was not disabled under the
Social Security Act. (Tr. 17-30.) The Appeals Council denied
Mr. Whetstone's request for review (Tr. 1-5), making the
ALJ's decision the final, reviewable decision of the
evaluated Mr. Whetstone claim for benefits using the
five-step sequential evaluation process set forth in 20
C.F.R. § 416.920. At step one, the ALJ found that Mr.
Whetstone was not engaged in substantial gainful activity,
and had not been engaged in substantial gainful activity
since January 17, 2013. (Tr. 11.) At step two, the ALJ found
that Mr. Whetstone suffered from the following severe
impairments: obesity, bipolar disorder, anxiety disorders,
and major depressive disorder - recurrent, severe without
psychosis. (Id.) At step three, the ALJ found that
Mr. Whetstone's impairments, separately and in
combination, failed to meet or equal in severity any listed
impairment as set forth in 20 C.F.R., Chapter III, Pt. 404,
Subpart P, App. 1 (“Listings”). (Tr. 23.) The ALJ
determined that Mr. Whetstone retained the RFC
to perform a full range of work at all exertional levels but
with the following nonexertional limitations: The claimant
can perform work that requires understanding, remembering,
and carrying out very short, simple instructions; and can
adapt to changes in the work setting frequently.
four, the ALJ determined that Mr. Whetstone had no past
relevant work. (Tr. 29.) At step five, relying on the
testimony of a vocational expert, the ALJ determined that
there are jobs that exist in significant numbers in the
national economy that Mr. Whetstone can perform, including
janitor and housekeeper. (Tr. 29-30.) Therefore, the ALJ
found that Mr. Whetstone was not disabled under the Social
Security Act. (Tr. 30.)
Whetstone raises two arguments in this appeal. First, he
argues that the ALJ did not properly evaluate the medical
opinions in the record. Second, he argues that the ALJ did
not properly account for his moderate difficulties in
maintaining concentration, persistence, and pace as required
by Mascio, 780 F.3d 632.
careful review of the ALJ's opinion and the evidence in
the record, I find that the ALJ did not adequately account
for Mr. Whetstone's limitations in concentration,
persistence, and pace in the RFC determination. Because the
ALJ did not properly assess Mr. Whetstone's RFC, the
findings made in reliance on that RFC cannot be said to be
based on substantial evidence. In light of these findings, I
decline to address Mr. Whetstone's other argument.
Whetstone argues that the ALJ's RFC assessment fails to
take into account his limitations in maintaining
concentration, persistence, and pace. (ECF Nos. 14-2 at
23-27; 16 at 1-4.) In support of this argument, Mr. Whetstone
relies on Mascio, 780 F.3d 632. In Mascio,
the Fourth Circuit held 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.'” 780 F.3d at 638 (quoting Winschel v.
Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.
2011)). This is because “the ability to perform simple
tasks differs from the ability to stay on task.”
Id. Where an ALJ finds that a claimant has
limitations in concentration, persistence, and pace, the ALJ
is required to incorporate these limitations into the
claimant's RFC or explain why they do not
“translate into [such] a limitation.”
case, the ALJ discussed Mr. Whetstone's limitations with
regard to concentration, persistence, and pace as part of the
step two analysis. (Tr. 24.) The ALJ stated that
“[w]ith regard to concentration, persistence or pace,
the claimant has moderate difficulties.” (Id.)
Although the ALJ did not explain the basis for this finding
(and actually cited evidence that would undermine it), the
finding that Mr. Whetstone has moderate difficulties with
regard to concentration, persistence, and pace is supported
by substantial evidence. (See Tr. 28, 54, 65, 67-68,
77, 370, 399, 413, 463, 483, 512, 644, 647.)
ALJ's RFC assessment does not account for Mr.
Whetstone's moderate limitations with regard to
concentration, persistence, and pace. Although it limits Mr.
Whetstone to performing “work that requires
understanding, remembering, and carrying out very short,
simple instructions.” (Tr. 24), this limitation does
not account for his moderate difficulties in concentration,
persistence, and pace. See Mascio, 780 F.3d at 638.
Mr. Whetstone might be able to perform tasks for a short
period of time but unable to sustain his performance for a
full workday and workweek. Mr. Whetstone's ability to
perform simple tasks and to follow short, simple instructions
is not the same as his ability to stay on task. See
id. Based on the record, the Court is unable to find
that the ALJ's RFC assessment is an accurate
characterization of Mr. Whetstone's ability to do
sustained work-related physical and mental activities in a
work setting on a regular and continuing basis. SSR
96-8p, 1996 WL 374184 (S.S.A. July 2, 1996).
Commissioner argues that the ALJ properly accounted for Mr.
Whetstone's moderate limitations in concentration,
persistence, and pace by explaining that Mr. Whetstone's
limitations in attention or concentration could be
accommodated by limiting him to unskilled work. (ECF No. 15-1
at 11.) The Court is unable to locate this explanation in the
ALJ's written decision. The Commissioner also argues that
“the ALJ clearly found that Plaintiff only had issues
with stress and changes in routine, which he accommodated . .
. with limitations to short, simple instructions and adapting
to changes only frequently.” (Id. at 12.) The
Court disagrees that the ALJ's finding is as clear as the
Commissioner suggests on this point.
the Commissioner argues that to the extent that the ALJ erred
in his evaluation of Mr. Whetstone's ability to maintain
concentration, persistence, or pace, any such error is
harmless. (ECF No. 15-1 at 13.) The Court cannot classify the
error as harmless because the ALJ's written decision is
insufficient to permit adequate review. Because the ALJ's
RFC does not account for all of Mr. Whetstone's
limitations, the Court cannot find that the RFC provides an
accurate description of the work that he is able to do on a
regular and continuing basis. In light of the Fourth
Circuit's clear guidance in Mascio, this case
must be remanded so that the ALJ can explain how Mr.
Whetstone's limitations in the areas of concentration,
persistence, and pace can be incorporated into the RFC
assessment, or why no additional limitation is necessary to
account for these difficulties. See Miles v.
Comm'r, No. SAG-16-1397, 2016 WL 6901985, at *2 (D.
Md. Nov. 23, 2016) (finding that because there was no
“corresponding restriction for the finding of moderate
difficulties in concentration, persistence, or pace, such
that it addresses [the claimant's] ability to sustain
work throughout an eight-hour workday, ” the Court was
“unable to ascertain from the ALJ's decision the
reason for the finding of moderate, as opposed to mild or no,
limitation in the area of concentration, persistence, or
pace.”); see also Folsom v. Berryhill, No.
TMD-16-1681, 2017 WL 4354875, at *3 (D. Md. Sept. 30, 2017)
(finding that an ALJ's failure to explain how a
claimant's concentration could persist through an
eight-hour workday required remand because such an error
“precludes meaningful review”); Thomas v.
Comm'r, Soc. Sec. Admin., No. ...