United States District Court, D. Maryland
James Marvin Owens, Jr.
Nancy A. Berryhill, Acting Commissioner of Social Security
August 14, 2017, the Plaintiff, James Owens, Jr. (“Mr.
Owens”), petitioned this Court to review the Social
Security Administration's final decision to deny his
claims for Supplemental Security Income (“SSI”)
and Disability Insurance Benefits (“DIB”). (ECF
No. 1.) The parties have filed cross-motions for summary
judgment. (ECF Nos. 13 & 14.) 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 Acting 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.
applications for SSI and DIB, Mr. Owens alleged a disability
onset date of April 9, 2010. (Tr. 12.) His application was
denied initially and on reconsideration. (Tr. 134-78.) A
hearing was held before an Administrative Law Judge
(“ALJ”) on November 19, 2014, and the ALJ found
that Mr. Owens was not disabled under the Social Security
Act. (Tr. 67-88, 115-23.) The Appeals Council vacated the
ALJ's decision and sent Mr. Owens' case back for
further review. (Tr. 129-32.) Thereafter, a second ALJ held
another administrative hearing (Tr. 32-66) and issued a
decision finding that Mr. Owens was not disabled (Tr. 9-25).
The Appeals Council denied Mr. Owens' request for review
of the second ALJ's decision (Tr. 2-5), making that
decision the final, reviewable decision of the agency.
evaluated Mr. Owens' claim for benefits using the
five-step sequential evaluation process set forth in 20
C.F.R. §§ 404.1520, 416.920. At step one, the ALJ
found that Mr. Owens was not engaged in substantial gainful
activity, and had not been engaged in substantial gainful
activity since April 9, 2010. (Tr. 14.) At step two, the ALJ
found that Mr. Owens suffered from the following severe
impairments: depressive disorder, bipolar disorder, and
borderline intellectual functioning. (Id.) At step
three, the ALJ found that Mr. Owens' 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. 16.) The ALJ determined that
Mr. Owens retained the RFC
to perform a full range of work at all exertional levels but
with the following nonexertional limitations: The claimant
can understand, remember, and carry out simple instructions.
The claimant shall engage in no work requiring written
instructions. The claimant can perform work at a normal pace.
The claimant shall engage in no more than occasional contact
with the public and coworkers.
four, the ALJ determined that Mr. Owens was unable to perform
past relevant work. (Tr. 24.) 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. Owens can perform, including
industrial cleaner, warehouse worker, bakery worker,
housekeeper, and laundry worker. (Tr. 24-25.) Therefore, the
ALJ found that Mr. Owens was not disabled under the Social
Security Act. (Tr. 25.)
Owens raises three arguments in this appeal. First, he argues
that the ALJ's RFC assessment did not address his
limitations with regard to concentration, persistence, and
pace. Second, he argues that the ALJ failed to develop the
record and failed to adequately explain how the medical
opinion evidence supported a conclusion that he is not
disabled. Third, he argues that the ALJ's determination
that he has no physical impairments is not supported by
careful review of the ALJ's decision and the evidence in
the record, I find that the ALJ did not adequately account
for Mr. Owens' limitations in concentration, persistence,
and pace in the RFC determination. Because the ALJ did not
properly assess Mr. Owens' 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. Owens' remaining arguments.
Owens argues that the ALJ's RFC assessment fails to take
into account his limitations in maintaining concentration,
persistence, and pace. (ECF No. 13-1 at 10.) In support of
this argument, Mr. Owens 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.” Id
In this case, the ALJ discussed Mr. Owens' limitations
with regard to concentration, persistence, and pace as part
of the step two analysis. (Tr. 16-17.) The ALJ stated that
“[w]ith regard to concentrating, persisting, or
maintaining pace, the claimant has moderate
limitations.” (Id.) The ALJ's finding that
Mr. Owens has moderate limitations with regard to
concentration, persistence, and pace is supported by
substantial evidence. (See Tr. 364, 421, 481, 495,
ALJ's RFC assessment does not account for Mr. Owens'
moderate limitations with regard to concentration,
persistence, and pace. The RFC assessment limits Mr. Owens to
performing work that only requires him to “understand,
remember, and carry out simple instructions, ” and that
does not require him to follow written instructions. (Tr.
18.) This limitation itself does not account for his moderate
difficulties in concentration, persistence, and pace. See
Mascio, 780 F.3d at 638. Mr. Owens might be able to
follow simple instructions to perform tasks for a short
period of time but unable to sustain his performance for a
full workday and workweek. Mr. Owens' ability to perform
simple tasks and to follow simple verbal instructions is not
the same as his ability to stay on task. See id.
ALJ's RFC assessment also notes that Mr. Owens “can
perform work at a normal pace.” (Tr. 18.) It is unclear
whether the ALJ's inclusion of “work at a normal
pace” is a limitation meant to account for Mr.
Owens' difficulties in maintaining concentration,
persistence, and pace, or whether it is meant to explain why
his difficulties do not require a limitation in his RFC. The
Acting Commissioner argues that by referring to
“normal-paced work, ” the ALJ was implicitly
ruling out “faster production-paced work.” (ECF
No. 14-1 at 11.) But this is not what the ALJ's decision
says. Mr. Owens rightly points out that working at a
“normal pace” would not appear to be a
limitation. (See Tr. 415 (“If he can work at a
normal pace he could not have a moderate impairment in
concentrating, persisting, or maintaining pace.”).)
Acting Commissioner cites to other cases in which district
courts in the Fourth Circuit have concluded that a limitation
of a claimant's work-pace is sufficient to account for
moderate difficulties in concentration, persistence, and
pace. (ECF No. 14-1 at 11.) But in all of the cases cited by
the Acting Commissioner, the ALJ's incorporation of a
work-pace limitation was explicit. See Michaels v.
Colvin, No. 15-388-RJC-DSC, 2016 WL 8710975, at *7 (W.D.
N.C. Mar. 25, 2016) (holding that an ALJ's RFC limitation
to “work in a nonproduction pace rate”
accounted for the claimant's limitations in
concentration, persistence, and pace), report and
recommendation adopted, No. 15-00388-RJC-DSC, 2016 WL
5478014 (W.D. N.C. Sept. 26, 2016), aff'd sub nom.
Michaels v. Berryhill, 697 Fed.Appx. 223 (4th Cir.
2017); Gair v. Comm'r, Soc. Sec. Admin., No.
SAG-14-3652, 2015 WL 5774982, at *2 (D. Md. Sept. 28, 2015)
(finding that an ALJ's limitation to “no strict
production quotas” adequately accounted for moderate
limitations in concentration, persistence, and pace because
such limitation accounted for “any time that [the
claimant] would be off-task due to his limited ability to
stay focused”); Henig v. Colvin, No.
TMD-13-1623, 2015 WL 5081619, at *12 (D. Md. Aug. 26, 2015)
(concluding that a limitation that excluded a claimant from
“production-line type work” adequately accounted
for moderate limitations in concentration, persistence, and
pace); see also Russo v. Astrue, 421 Fed.Appx. 184,
192 (3d Cir. 2011) (approving of ALJ's limitation in a
hypothetical question to work in which the individual
“would not have a quota to fulfill” because such
limitation accounted for the claimant's moderate
difficulties with concentration, persistence, and pace);
Seamon v. Astrue, 364 Fed.Appx. 243, 248 (7th Cir.
2010) (“[T]he ALJ captured her moderate limitation in
concentration, persistence, and pace when he included a
restriction of ‘no high production goals.'”)
Here, the ALJ only stated that Mr. Owens could work at a
“normal pace.” The ALJ did not state that Mr.
Owens could work at a “nonproduction pace rate, ”
or at jobs with “no high production goals.” The
ALJ also did not state that Mr. Owens was precluded from jobs
with “strict production quotas, ”
“production-line type work, ” or jobs that had
“a quota to fulfill.” The ALJ's limitation of
Mr. Owens to work performed at a “normal pace” is
unlike the limitations that other courts have found to comply
summary, the ALJ's written decision is insufficient to
permit adequate review. Because the ALJ's RFC does not
account for all of Mr. Owens' 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. Owens' 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. SAG-16-1229, 2017 WL
1193990, at *2 (D. Md. Mar. 29, 2017) (declining to consider
whether an error might be harmless where an ALJ's
“RFC analysis did not specifically address [a
claimant's] ability to sustain ...