United States District Court, D. Maryland
Alphonso Betts, Sr.
Commissioner, Social Security Administration;
August 25, 2017, Plaintiff Alphonso Betts, Sr. petitioned
this Court to review the Social Security Administration's
(“SSA's”) final decision to deny his claims
for Disability Insurance Benefits and Supplemental Security
Income. [ECF No. 1]. I have considered the parties'
cross-motions for summary judgment. [ECF Nos. 15, 16]. 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); 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.
Betts filed claims for benefits on October 22, 2013, alleging
a disability onset date of September 26, 2012. (Tr. 205-12).
His claims were denied initially and on reconsideration. (Tr.
56-74, 77-120, 123-34). A hearing was held on June 8, 2016,
before an Administrative Law Judge (“ALJ”). (Tr.
32-55). Following the hearing, the ALJ determined that Mr.
Betts was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 13-31). The
Appeals Council denied Mr. Betts's request for review,
(Tr. 1-5), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Betts suffered from the severe impairments of
“cerebrovascular accident and late effects thereof; and
intellectual functioning.” (Tr. 18). Despite these
impairments, the ALJ determined that Mr. Betts retained the
residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant can occasionally lift, carry,
push, or pull 20 pounds and can frequently lift, carry, push,
or pull 10 pounds; he can sit for six hours, stand for six
hours, and walk for six hours; he can reach frequently with
the left hand and handle frequently with the left hand; he
can occasionally climb ramps and stairs but never ladders,
ropes, or scaffolds; he can occasionally balance, stoop,
kneel, crouch, or crawl; he can never be exposed to
unprotected heights; he is limited to the performance of
simple, routine tasks, simple work-related decisions; and can
occasionally interact with supervisors, coworkers, and the
public. His time off task can be accommodated by normal
(Tr. 21). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Betts
could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled.
Betts raises several arguments on appeal: (1) that the
ALJ's holding runs afoul of the Fourth Circuit's
decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th
Cir. 2015), both as to his concentration, persistence, and
pace, and his social functioning; (2) that the ALJ provided
an inadequate Listing analysis; and (3) that the VE's
testimony did not explain inconsistencies with the Dictionary
of Occupational Titles. Pl. Mot. 10-25. I agree that the ALJ
failed to provide an adequate explanation of his assessment
of Mr. Betts's concentration, persistence, and pace, and
did not assess Listing 11.04C. I therefore remand the case to
the Commissioner. In remanding for additional explanation, I
express no opinion as to whether the ALJ's ultimate
conclusion that Mr. Betts is not entitled to benefits is
in Mascio, the United States Court of Appeals for
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. 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. 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. § 404.1620a(c)(2). The
ALJ uses a five-point scale to rate a claimant's degree
of limitation in the first three functional areas: none,
mild, moderate, marked, or extreme. Id. §
404.1620a(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 § 12.02. 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.
functional area of “concentration, 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
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.
instant case, the ALJ found Mr. Betts to have a more
significant impairment than that addressed in
Mascio, since the ALJ found Mr. Betts to have
“marked” difficulties maintaining concentration,
persistence, or pace. (Tr. 20). The entirety of the analysis
With regard to concentration, persistence or pace, the
claimant has marked difficulties. At the October 2014 consult
with Dr. Fishburne, the claimant reported that he played
video games and watched television most days (Ex. 5F/2).
These activities indicate that the claimant has some ability
to follow rules and sustain concentration. Further, Dr.
Fishburne noted that the claimant appeared goal directed with
clear thinking (Ex. 5F/3). During his examination with Dr.
Rossello, the claimant scored a 28/30 on his MMSE but
recalled only 1/3 words. In his Function Report, the claimant
indicates that he liked to read, watch television, and play
video games with his son (Ex. 3E/5). He also indicated that
he could read and follow instructions and pay attention for
about two hours (Ex. 3E/6).
(Tr. 20). According to 20 C.F.R. § 404.1520a(c)(2), the
rating of “marked difficulties” is supposed to
represent the result of ...