United States District Court, D. Maryland
LETTER TO COUNSEL
August 14, 2017, Plaintiff Christian Lopez (“Mr.
Lopez”) petitioned this Court to review the Social
Security Administration's final decision to deny his
claims for disability insurance benefits (“DIB”).
(ECF No. 1.) The parties have filed cross-motions for summary
judgment. (ECF Nos. 12 & 13.) These motions have been
referred to the undersigned with the parties' consent
pursuant to 28 U.S.C. § 636 and Local Rule
Having considered the submissions of the parties, 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, Mr. Lopez alleged a disability onset
date of January 31, 2013. (Tr. 202.) His application was
denied initially and on reconsideration. (Tr. 177-80,
186-87.) A hearing was held before an Administrative Law
Judge (“ALJ”) on July 14, 2016 (Tr. 70-115), and
the ALJ found that Mr. Lopez was not disabled under the
Social Security Act (Tr. 55-65). The Appeals Council denied
Mr. Lopez's request for review (Tr. 1-6), making the
ALJ's decision the final, reviewable decision of the
evaluated Mr. Lopez's claim for benefits using the
five-step sequential evaluation process set forth in 20
C.F.R. § 404.1520. At step one, the ALJ found that Mr.
Lopez was not engaged in substantial gainful activity, and
had not been engaged in substantial gainful activity since
January 31, 2013. (Tr. 57.) At step two, the ALJ found that
Mr. Lopez suffered from the following severe impairments:
opioid dependence, alcohol dependence, post-traumatic stress
disorder, Generalized Anxiety Disorder (GAD), panic disorder,
and major depression. (Id.) At step three, the ALJ
found that Mr. Lopez'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, Pt. 404,
Subpart P, App. 1 (“Listings”). (Tr. 20.) The ALJ
determined that Mr. Lopez retained the residual functional
to perform a full range of work at all exertional levels but
with the following nonexertional limitations: he is limited
to performing simple, routine tasks. He can frequently have
contact with supervisors, co-workers, and the public. He
would be exposed to occasional changes in the routine work
setting. Any time off-task can be accommodated by normal
four, relying on the testimony of a vocational expert, the
ALJ determined that Mr. Lopez was unable to perform past
relevant work as salesperson and project manager. (Tr. 63.)
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 Mr. Lopez
can perform, including industrial cleaner, production helper,
and picker/packer. (Tr. 64.) Therefore, the ALJ found that
Mr. Lopez was not disabled under the Social Security Act.
Lopez raises two issues in this appeal. First, he argues that
the ALJ did not provide a sufficient narrative discussion in
connection with the RFC assessment. (ECF No. 12-1 at 3-8.)
Second, he argues that the ALJ did not evaluate pertinent
evidence about his subjective complaints. (Id. at
8-11.) After a careful review of the ALJ's decision and
the evidence in the record, I find that the ALJ did not
adequately account for Mr. Lopez's limitations in
concentration, persistence, and pace in the RFC assessment.
Because the ALJ did not properly assess Mr. Lopez's RFC,
the findings made by the ALJ in reliance on the RFC cannot be
said to be based on substantial evidence. In light of this
finding, I decline to address Mr. Lopez's other argument.
Lopez argues that the ALJ's RFC assessment fails to take
into account his limitations in maintaining concentration,
persistence, and pace. (Id. at 13-19.) In support of
this argument, he 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 Mr. Lopez's moderate
limitations with regard to concentration, persistence, and
pace as part of the step three analysis:
With regard to concentration, persistence or pace, the
claimant has moderate difficulties.
(Tr. 58.) The ALJ acknowledged Mr. Lopez's testimony that
he “has difficulty with focus.” (Id.)
The ALJ went on to note that Mr. Lopez has a valid
driver's license, operates a vehicle, watches sports
television for several hours each day, reads material related
to Alcoholics Anonymous, and uses a computer to search for
directions. (Id.) The ALJ's finding that Mr.
Lopez has moderate limitations with regard to concentration,
persistence, and pace is supported by substantial evidence.
(See Tr. 88-89, 100, 152-59, 167-69, 171, 250, 269,
the ALJ's RFC assessment does not account for these
moderate limitations. The RFC assessment limits Mr. Lopez to
performing work involving “simple, routine
tasks.” (Tr. 59.) Limiting Mr. Lopez to work that
involves only “simple, routine tasks” does not
account for his moderate difficulties in concentration,
persistence, and pace. See Mascio, 780 F.3d at 638.
Mr. Lopez might be able to perform simple, routine tasks for
a short period of time but unable to sustain his performance
for a full workday and workweek. In addition, the ALJ's
finding that “[a]ny time off-task can be accommodated
by normal breaks” (Tr. 59) does not adequately account
for Mr. Lopez's ability to concentrate and stay on task.
See Ludlow v. Comm'r, Soc. Sec. Admin., No.
SAG-15-3044, 2016 WL 4466790, at *2 (D. Md. Aug. 23, 2016)
(noting that “the restriction to working in 2-hour
intervals does not adequately account for a moderate
limitation in the ability to stay on task, absent further
explanation) (citing SSR 96-9p). The ALJ provided no
explanation for why normal breaks would sufficiently address
Mr. Lopez's concentration and persistence limitations.
Furthermore, the ALJ did not address how Mr. Lopez's pace
limitations impact his ability to work.
Commissioner argues that this case is distinguishable from
Mascio because the ALJ “did not merely limit
Plaintiff to simple, routine tasks, ” as the ALJ
“specifically noted that time off task would be
accommodated by normal breaks” and “gave a
detailed description of the kinds of instructions and
decisions that Plaintiff could handle given his mental
limitations.” (ECF No. 13-1 at 10.) Neither of these
statements by the ALJ sufficiently address Mr. Lopez's
moderate difficulties in concentration, persistence, and
pace. The Commissioner cites two cases from this Court where
other judges have found that “even a limitation to just
‘simple, routine, repetitive work tasks' suffices
under Mascio” so long as the ALJ provides a
clear explanation that additional limitations are not
warranted. (Id.) In Dean v. Comm'r, Social
Sec. Admin, No. SAG-14-1127, 2015 WL 1431548, *1-2 (D.
Md. Mar. 26, 2016), Judge Gallagher held that an “ALJ
provided a clear explanation of the reason for assessing a
moderate limitation in the first place, and then a clear
explanation of why, despite that moderate limitation, the
claimant would not have issues persisting in a given
task.” Claiborne v. Comm'r, Soc. Sec.
Admin., No. SAG-14-1918, 2015 WL 2062184, at *3 (D. Md.
May 1, 2015) (distinguishing Dean). But the
Court's analysis in Dean is distinguishable from
this case for the same reasons that it was in
Claiborne. See also Miles v. Comm'r,
No. SAG-16-1397, 2016 WL 6901985, at *2 (D. Md. Nov. 23,
2016) (finding that because there was no ...