United States District Court, D. Maryland
TIMOTHY J. KLEIN, Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,  Defendant.
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
above-captioned case has been referred to me to review the
parties' dispositive motions and to make recommendations
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
301.5(b)(ix). [ECF No. 3]. I have considered the parties'
cross-motions for summary judgment and the related filings.
[ECF Nos. 22, 23, 24]. 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 both motions, reverse the judgment of the Commissioner,
and remand the case to the Commissioner for further analysis
pursuant to sentence four of 42 U.S.C. § 405(g).
Klein filed his claim for Disability Insurance Benefits
(“DIB”) on February 28, 2011, alleging a
disability onset date of August 11, 2010. (Tr. 327). His
claim was denied initially and on reconsideration. (Tr. 174,
180). After a lengthy procedural history, including a 2015
consent remand to the Social Security Administration
(“SSA”) [ECF No. 10], on July 19, 2016, a hearing
was held before an Administrative Law Judge
(“ALJ”), (Tr. 53-80). Following the hearing, the
ALJ determined that Mr. Klein was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 28-52). The Appeals Council denied Mr.
Klein's request for review, (Tr. 1-4), so the ALJ's
2016 decision constitutes the final, reviewable decision of
found that Mr. Klein suffered from the severe impairments of
“left knee degeneration, diabetes mellitus,
hypertension, ischemic heart disease, affective disorder, and
anxiety disorder.” (Tr. 33). Despite these impairments,
the ALJ determined that Mr. Klein retained the residual
functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) except he
can occasionally climb, balance, and stoop and frequently
stoop, kneel, crouch, and crawl. He can perform simple,
unskilled work on a sustained basis in a competitive work
environment. He can maintain concentration, persistence, and
pace for two hours before taking a break from work and he can
do that repeatedly to complete an 8hour workday.
considering the testimony of a vocational expert
(“VE”), the ALJ determined that Mr. Klein could
perform jobs existing in significant numbers in the national
economy, and that, therefore, he was not disabled. (Tr. 44).
Klein raises two arguments on appeal, specifically that the
ALJ erroneously: (1) assessed his RFC in violation of
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015),
Pl.'s Mem., 10-17; and (2) failed to consider his obesity
as a medically determinable severe impairment, id.
at 18-27. Mr. Klein's first argument is dispositive.
Klein first argues that the ALJ erred by failing to include
his moderate limitations with regard to concentration,
persistence, or pace in the RFC assessment, in violation of
Mascio. Pl.'s Mem., at 10-17. 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. § 404.1520a(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). In
order 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. § 12.00(C).
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. at § 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. Further, the regulations offer
little guidance on the meaning of “moderate”
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.
instant case, the ALJ found that Mr. Klein had moderate
difficulties maintaining concentration, persistence, or pace.
(Tr. 35). The ALJ's analysis stated: “The claimant
reported difficulty focusing to complete paperwork, focusing
on task, and finishing a task.” Id.
to 20 C.F.R. § 404.1520a(c)(2), the rating of
“moderate difficulties” is supposed to represent