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Brownlee v. Commissioner, Social Security Administration

United States District Court, D. Maryland

April 4, 2018

Deborah Brownlee
v.
Commissioner, Social Security Administration;[1]

         LETTER TO COUNSEL

         Dear Counsel:

         On June 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.

         Ms. 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.

         The ALJ 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 the public.

(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. 29).

         Ms. 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.

         Ms. 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.

         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. 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).

         The 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” 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 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.

         Here, 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 insured.” Id.

         According to 20 CFR § 404.1520a(c)(2), the rating of “moderate difficulties” is supposed to represent the ...


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