United States District Court, D. Maryland
20, 2017, Plaintiff Deborah Brownlee petitioned this Court to
review the Social Security Administration's
[“SSA”] final decision to deny her claim for
benefits. [ECF No. 1]. I have considered the parties'
cross-motions for summary judgment. [ECF Nos. 13, 14]. 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 SSA's
decision in part, and remand the case to the SSA for further
consideration. This letter explains my rationale.
Brownlee protectively filed a claim for Disability Insurance
Benefits (“DIB”) on August 12, 2013, alleging a
disability onset date of March 6, 2010. (Tr. 173-76). Her
claim was denied initially and on reconsideration. (Tr.
80-90, 91-101). A hearing was held on March 14, 2016, before
an Administrative Law Judge (“ALJ”). (Tr. 34-79).
Following the hearing, the ALJ determined that Ms. Brownlee
was not disabled within the meaning of the Social Security
Act during the relevant time frame. (Tr. 20-29). The Appeals
Council denied Ms. Brownlee's request for review, (Tr.
1-6), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Ms. Brownlee suffered from the severe impairments
of “degenerative disc disease, anxiety, and
depression.” (Tr. 22). Despite these impairments, the
ALJ determined that Ms. Brownlee retained the residual
functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except after approximately 30 minutes of standing or walking,
she would need to sit for approximately 1-2 minutes; and
after approximately 30 minutes of sitting, she would need to
stand for approximately 1-2 minutes. She can occasionally
reach overhead with the bilateral upper extremities;
occasionally climb ramps and stairs, ladders, ropes or
scaffolds; and occasionally balance, stoop, kneel, crouch,
and crawl. She must avoid unprotected heights and moving
mechanical parts; and she is limited to occasional vibration.
In addition, she is limited to performing simple, routine,
and repetitive tasks, and making simple work-related
decisions (i.e., [Specific Vocational Preparation] 1 or 2
jobs). She can further have occasional interaction with
supervisors, occasional contact with coworkers with no tandem
tasks or team type activities, and occasional contact with
(Tr. 25). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms.
Brownlee could perform several jobs existing in significant
numbers in the national economy. (Tr. 28-29). Accordingly,
the ALJ determined that Ms. Brownlee was not disabled. (Tr.
Brownlee raises several issues on appeal: (1) that the
ALJ's decision did not comport with the Fourth
Circuit's holding in Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015); (2) that the ALJ failed to properly set
forth a narrative discussion; and (3) that the ALJ
erroneously evaluated her subjective complaints. Pl. Mot.
3-11. 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 Ms.
Brownlee is not entitled to benefits is correct.
Brownlee 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 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.
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. Brownlee had “moderate
difficulties” in concentration, persistence, or pace.
(Tr. 24). The ALJ noted that Ms. Brownlee had a history of
depression and anxiety, “reported difficulty with
concentration, . . . [and] handling stress and changes in
routine, ” and that her husband asserted that
“she can only pay attention for a ‘short amount
of time.'” Id. (citations omitted). The
ALJ, however, observed that Ms. Brownlee was capable of
“activities that would have reasonably required a level
of attentiveness not inconsistent with the limitations
determined herein, ” such as driving, cooking, and
managing money. Id. (citations omitted). Thus, the
ALJ found “the substantial evidence of record to be
unpersuasive in establishing more than moderate restriction
in concentration, persistence or pace through the date last
to 20 CFR § 404.1520a(c)(2), the rating of
“moderate difficulties” is supposed to represent