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Klein v. Commissioner, Social Security Administration

United States District Court, D. Maryland

July 13, 2018

TIMOTHY J. KLEIN, Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, [1] Defendant.

          REPORT AND RECOMMENDATIONS

          Stephanie A. Gallagher United States Magistrate Judge.

         The 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).

         Mr. 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 the Agency.

         The ALJ 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.

         After 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).

         Mr. 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.

         DISCUSSION

         Mr. 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.

         Paragraph 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).

         The 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” limitations.

         The 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.

         In the 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.

         According to 20 C.F.R. § 404.1520a(c)(2), the rating of “moderate difficulties” is supposed to represent the ...


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