United States District Court, D. Maryland
LETTER TO COUNSEL:
March 24, 2017, the Plaintiff, Vicki Lee Harvey (“Ms.
Harvey”), petitioned this Court to review the Social
Security Administration's final decision to deny her
claims for Social Security Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). (ECF No. 1.) The parties have filed
cross-motions for summary judgment. (ECF Nos. 17 and 18.)
These motions have been referred to the undersigned with the
parties' consent pursuant to 28 U.S.C. §636 and
Local Rule 301. Having considered the submissions of the
parties (ECF Nos. 17, 18 & 19), 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.
application for DIB and SSI, Ms. Harvey alleged a disability
onset date of April 20, 2010. (Tr. 206.) Her applications were
denied initially and on reconsideration. (Tr. 143-45,
152-53.) A hearing was conducted before an Administrative Law
Judge (“ALJ”) on July 28, 2015. (Tr. 52-88.) On
September 4, 2015, the ALJ found that Ms. Harvey was not
disabled under the Social Security Act. (Tr. 33-45.) The
Appeals Council denied Ms. Harvey's request for review
(Tr. 1-4), making the ALJ's decision the final reviewable
decision of the Agency.
evaluated Ms. Harvey's 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 Ms. Harvey was not engaged in substantial gainful
activity, and had not been engaged in substantial gainful
activity since May 23, 2013. (Tr. 35.) At step two, the ALJ
found that Ms. Harvey suffered from the following severe
impairments: status-post right knee surgery, anxiety and
bipolar disorders, and gastroesophageal reflux disorder.
(Id.) At step three, the ALJ found that Ms.
Harvey's 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, Part 404, Subpart P,
Appendix 1 (“Listings”). (Tr. 37.) The ALJ
determined that Ms. Harvey retained the RFC
to perform medium work as defined in 20 C.F.R. 404.1567(c)
and 416.967(c) except the claimant is limited to unskilled,
routine, and repetitive tasks and is restricted to occasional
interaction with the public and co-workers.
four, the ALJ found that Ms. Harvey was unable to perform
past relevant work. (Tr. 44.) 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 Ms. Harvey can perform, including linen
room attendant, machine packager, and order filler. (Tr.
44-45.) Therefore, the ALJ found that Ms. Harvey was not
disabled under the Social Security Act. (Id.)
Harvey raises two arguments in this appeal. First, she argues
that the ALJ erred at step five in failing to find that she
was disabled because her “work background for
vocational purposes is unskilled.” (ECF No. 17-1 at 9).
Second, she argues that the ALJ did not properly account for
her moderate difficulties in maintaining concentration,
persistence, and pace as required by the Fourth Circuit in
Mascio, 780 F.3d 632. (Id. at 12.)
careful review of the ALJ's decision and the evidence in
the record, I find that the ALJ did not adequately account
for Ms. Harvey's limitations in concentration,
persistence, and pace in the RFC determination. Because the
ALJ did not properly assess Ms. Harvey's RFC, the
findings made by the ALJ in reliance of the RFC cannot be
said to be based on substantial evidence. In light of this
finding, I decline to address Ms. Harvey's other
Harvey argues that the ALJ's RFC assessment fails to take
into account her limitations in maintaining concentration,
persistence, and pace. (Id. at 13-19.) In support of
this argument, Ms. Harvey 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.”
decision, the ALJ discussed Ms. Harvey's moderate
limitations with regard to concentration, persistence, and
pace as part of the step three analysis. (Tr. 38.) The ALJ
stated that “[w]ith regard to concentrating,
persisting, or maintaining pace, the claimant has moderate
difficulties.” (Id.) The ALJ's finding
that Ms. Harvey has moderate limitations with regard to
concentration, persistence, and pace is supported by
substantial evidence. (See Tr. 38-39, 94-98, 104-08,
118-22, 133-36, 469.)
the ALJ's RFC assessment does not account for Ms.
Harvey's moderate limitations with regard to
concentration, persistence, and pace. The RFC assessment
limits Ms. Harvey to performing work involving
“unskilled, routine, and repetitive tasks and is
restricted to occasional interaction with the public and
co-workers.” (Tr. 39.) This limitation itself does not
account for her moderate difficulties in concentration,
persistence, and pace. See Mascio, 780 F.3d at 638.
Ms. Harvey might be able to perform such unskilled, routine,
and repetitive tasks for a period of time but unable to
sustain her performance for a full workday and workweek. Ms.
Harvey's ability to perform unskilled, routine, and
repetitive tasks is not the same as her ability to stay on
task. See id.
discussed Ms. Harvey's trip to Florida by herself in 2014
for a four-month drug rehabilitation program, and her
two-week trips to Maryland's Eastern Shore in 2013 and
2015 to assist in the care of her ailing mother. (Tr. 42-43.)
The Acting Commissioner attempts to convert the ALJ's
cursory discussion of these trips into an explanation for why
Ms. Harvey's moderate limitations in concentration,
persistence, and pace do not require any restriction beyond
that which is contained in the RFC determination. Even
assuming that the Acting Commissioner's characterization
of the ALJ's findings with regard to Ms. Harvey's
trips to Florida and the Eastern Shore are correct (which Ms.
Harvey disputes, see ECF No. 19 at 5-11), Ms.
Harvey's ability to travel by herself and to care for her
mother has little material bearing on her ability to
concentrate and stay on task at work. Furthermore, the
ALJ's finding that Ms. Harvey “would be able to
complete tasks at an acceptable pace” is at odds with
the finding that she has moderate limitations in
concentration, persistence, and pace. The ALJ's
explanations for why additional limitations in the RFC are
unnecessary are inadequate.
on this record, the Court is unable to find that the RFC
determination by the ALJ represents an accurate
characterization of Ms. Harvey's ability to do sustained
work-related physical and mental activities in a work setting
on a regular and continuing basis. The ALJ's decision is
insufficient to permit adequate review. The ALJ's
reliance on Ms. Harvey's travel to Florida for drug
treatment and to the Eastern Shore to take care of her mother