United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
to Standing Order 2014-01, the above-referenced case has been
referred to me for review of the Social Security
Administration (“SSA's”) dispositive motion,
[ECF No. 26], and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF
No. 4]. Plaintiff Kentay Gwaltney, who appears pro
se, did not file a motion for summary judgment, although
he did respond to the SSA's Motion for Summary Judgment.
[ECF No. 28]. I have considered the SSA's Motion and Mr.
Gwaltney's response. [ECF Nos. 26, 28]. 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
recommend that the Court deny the SSA's motion, that the
Court reverse the SSA's decision in part pursuant to
sentence four of 42 U.S.C. § 405(g), and that the Court
remand the case to the SSA for further proceedings in
accordance with this Report and Recommendations.
Gwaltney filed a claim for Supplemental Security Income
(“SSI”) on June 17, 2013, originally alleging a
disability onset date of June 8, 2008. (Tr. 168-76). His
claim was denied initially and on reconsideration. (Tr.
84-118). A hearing, at which Mr. Gwaltney was represented by
counsel, was held on December 18, 2015, before an
Administrative Law Judge (“ALJ”). (Tr. 29-66).
Following the hearing, the ALJ determined that Mr. Gwaltney
was not disabled within the meaning of the Social Security
Act during the relevant time frame. (Tr. 11-28). The Appeals
Council denied Mr. Gwaltney's request for review, (Tr.
1-5), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Gwaltney suffered from the severe impairments
of “affective disorder (depression); substance
addiction disorder; and psychotic disorder
(schizophrenia).” (Tr. 16). Despite these impairments,
the ALJ determined that Mr. Gwaltney retained the residual
functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but
with the following nonexertional limitations: he could be
expected to perform only simple, routine, and repetitive
tasks and may require time off-task, which would be
accommodated by normal work breaks. The claimant could only
have occasional contact with coworkers, supervisors, or the
(Tr. 18). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr.
Gwaltney could perform jobs existing in significant numbers
in the national economy and that, therefore, he was not
disabled. (Tr. 22-23).
carefully reviewed the ALJ's opinion and the entire
record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753
(E.D. Tex. 2005) (mapping an analytical framework for
judicial review of a pro se action challenging an
adverse administrative decision, including: (1) examining
whether the SSA's decision generally comports with
regulations, (2) reviewing the ALJ's critical findings
for compliance with the law, and (3) determining from the
evidentiary record whether substantial evidence supports the
ALJ's findings). I have also considered Mr.
Gwaltney's opposition, and the arguments raised by his
prior attorney at his hearing.
ruled in Mr. Gwaltney's favor at step one, and determined
that he has not engaged in substantial gainful activity since
his application date. (Tr. 16); see 20 C.F.R. §
416.920(a)(4)(i). At step two, the ALJ then considered the
severity of each of the impairments that Mr. Gwaltney claimed
prevented him from working. (Tr. 13); see 20 C.F.R.
§ 416.920(a)(4)(ii). Notably, the ALJ found Mr.
Gwaltney's hypertension to be non-severe, because it is
controlled by medication and would have no more than minimal
impact on Mr. Gwaltney's ability to perform basic work
activities. (Tr. 16). However, after finding some of Mr.
Gwaltney's mental impairments to be severe, id.,
the ALJ continued with the sequential evaluation and
considered, in assessing Mr. Gwaltney's RFC, the extent
to which his impairments limited his ability to work.
three, the ALJ determined that Mr. Gwaltney's severe
mental health impairments did not meet, or medically equal,
the criteria of any listings. (Tr. 17-18). In particular, the
ALJ identified Listings 12.03 (schizophrenia), 12.04
(affective disorders), and 12.09 (as of the time of the
ALJ's opinion, substance addiction disorders).
See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 12.03, 12.04, 12.09. Listings 12.03 and 12.04
require proof of the same set of “paragraph B”
criteria, and a claimant would need to show at least two
areas of marked difficulty, or repeated episodes of
decompensation, to meet a listing. See Id.
§§ 12.03, 12.04. Here, the ALJ concluded that Mr.
Gwaltney had only “mild” restriction in
activities of daily living, “moderate”
difficulties in social functioning and in concentration,
persistence, or pace, and no episodes of decompensation of
extended duration. (Tr. 17). The ALJ supported those
assessments with citations to the evidence of record.
Id. Accordingly, the ALJ did not err in his
conclusion that the Listings were not met.
considering Mr. Gwaltney's RFC, the ALJ summarized his
subjective complaints from his hearing testimony and written
submissions. (Tr. 18-19). The ALJ also reviewed Mr.
Gwaltney's medical evidence from his treatment providers.
(Tr. 19-20). The ALJ noted that Mr. Gwaltney's
“mental health treatment has not been consistent”
and that he “has engaged in a somewhat normal level of
daily activity and interaction.” (Tr. 20). The ALJ
acknowledged that Mr. Gwaltney's treating physician, Dr.
Dugan, had completed opinion forms, but assigned them only
“partial” or “little” weight, due to
inconsistencies and lack of information about Mr.
Gwaltney's functional capacities. (Tr. 20-21).
the flaw in the ALJ's opinion lies in the dictates of
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). In
that case, 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.
Id. at 638. That functional area “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 marked 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 in the area of
concentration, persistence, or pace.
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 “only 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.
the ALJ cited to evidence supporting the conclusion that Mr.
Gwaltney has moderate limitations in concentration,
persistence, or pace. (Tr. 17, 19). However, contrary to
Mascio, the ALJ did not impose any RFC restriction
to address the moderate limitations. (Tr. 18) (limiting Mr.
Gwaltney only to “simple, routine, and repetitive
tasks”). Although the ALJ did also state that Mr.
Gwaltney “may require time off-task, which would be
accommodated by normal work breaks, ” he provided no
analysis or explanation of how “normal work
breaks” would be sufficient to address Mr.
Gwaltney's concentration issues. Moreover, the ALJ did
not discuss Mr. Gwaltney's work pace at any point in the
opinion. Thus, in light of Mascio ...