United States District Court, D. Maryland
August 26, 2017, Plaintiff Steven Lee Cunniff petitioned this
Court to review the Social Security Administration's
(“SSA's”) final decision to deny his claim
for Supplemental Security Income. [ECF No. 1]. I have
considered the parties' cross-motions for summary
judgment, and Mr. Cunniff's reply. [ECF Nos. 17, 18, 19].
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 judgment of
the SSA, and remand the case to the SSA for further analysis
pursuant to sentence four of 42 U.S.C. § 405(g). This
letter explains my rationale.
Cunniff filed his claim for benefits on April 28, 2014,
alleging a disability onset date of March 1, 2010. (Tr.
143-51). His claim was denied initially and on
reconsideration. (Tr. 57-83). A hearing was held on July 22,
2016, before an Administrative Law Judge (“ALJ”).
(Tr. 30-56). Following the hearing, the ALJ determined that
Mr. Cunniff was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 12-29). The
Appeals Council (“AC”) denied Mr. Cunniff's
request for further review, (Tr. 1-5), so the ALJ's
decision constitutes the final, reviewable decision of the
found that Mr. Cunniff suffered from the severe impairments
of “depression, post-traumatic stress disorder (PTSD),
and a substance abuse disorder.” (Tr. 17). Despite
these impairments, the ALJ determined that Mr. Cunniff would
retain the residual functional capacity (“RFC”)
perform a full range of work at all exertional levels but
with the following non-exertional limitations: The claimant
is limited to simple, routine tasks with only occasional
interaction with co-workers, supervisors, and the public.
21). After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Mr. Cunniff could
perform several jobs existing in the national economy and
that, therefore, he was not disabled. (Tr. 24-25).
Cunniff makes two 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);
and (2) that the ALJ erred in evaluating the credibility of
his subjective testimony. I agree that the ALJ's
evaluation of Mr. Cunniff's moderate limitation in
concentration, persistence, or pace was deficient.
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'x 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 areas: none, mild, moderate,
marked, or extreme. Id. § 404.1620a(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'x 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. § 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. The regulations, however, 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. Cunniff had moderate
difficulties maintaining concentration, persistence, or pace.
(Tr. 19-20). The analysis states:
The claimant's recent mental status evaluations have
noted some difficulties with his concentration and recent
memory. However, as noted below, the vast majority of his
diagnostic tests have reported no difficulties in this area.
These findings largely mirror the claimant's daily
activities, in which he reports being unable to pay bills,
manage a savings account, or use a checkbook, not being able
to pay attention, not finishing tasks he starts, and not
being able to follow written and spoken instructions.
Nevertheless, the claimant reports no difficulties with his
personal care or performing house or yard work. He is also
able to shop, use public transportation, and use a computer,
and enjoys following television programming, watching sports,
and reading. As each of these activities require significant
amounts of concentration, persistence or pace, these
abilities suggest that the claimant has moderate limitations
in this area.
Id. (internal citations omitted). According to 20
C.F.R. § 404.1520a(c)(2), the rating of “moderate
difficulties” is supposed to represent the result of