United States District Court, D. Maryland
Social Security Administration
January 26, 2018, Plaintiff petitioned this Court to review
the Social Security Administration's final decision to
deny his claim for Supplemental Security Income. (ECF No. 1).
I have considered the parties' cross-motions for summary
judgment. (ECF Nos. 13, 14). I find that no hearing is
necessary. Loc. R. 105.6 (D. Md. 2016). This Court must
uphold the decision of the Agency if it is supported by
substantial evidence and correct legal standards were
employed. 42 U.S.C. § 405(g); see Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that
standard, I will deny both motions, reverse the judgment of
the Social Security Administration, and remand the case to
the Social Security Administration for further analysis
pursuant to sentence four of 42 U.S.C. § 405(g). This
letter explains my rationale.
filed a claim for benefits on October 21, 2015, alleging
disability beginning on February 15, 2015. (Tr. 183-92). His
claim was denied initially and on reconsideration following
appeal. (Tr. 99-104, 107-15). Administrative Law Judge
(“ALJ”) Hope G. Grunberg held a hearing on April
24, 2017. (Tr. 27-59). Following that hearing, on June 7,
2017, the ALJ determined that Plaintiff was not disabled.
(Tr. 8-28). The Appeals Council denied his request for review
on December 7, 2017, making the ALJ's decision the final,
reviewable decision of the Agency. (Tr. 1-5).
arriving at the decision to deny Plaintiff's claim, the
ALJ followed the five-step sequential evaluation of
disability set forth in the Secretary's regulations. 20
C.F.R. § 416.920. “To summarize, the ALJ asks at
step one whether the claimant has been working; at step two,
whether the claimant's medical impairments meet the
regulations' severity and duration requirements; at step
three, whether the medical impairments meet or equal an
impairment listed in the regulations; at step four, whether
the claimant can perform her past work given the limitations
caused by her medical impairments; and at step five, whether
the claimant can perform other work.” Mascio v.
Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). If the
first three steps do not yield a conclusive determination,
the ALJ then assesses the claimant's residual functional
capacity (“RFC”), “which is ‘the
most' the claimant ‘can still do despite'
physical and mental limitations that affect her ability to
work, ” by considering all of the claimant's
medically determinable impairments regardless of severity.
Id. at 635 (quoting 20 C.F.R. § 416.945(a)(1)).
The claimant bears the burden of proof through the first four
steps of the sequential evaluation. If he makes the requisite
showing, the burden shifts to the Social Security
Administration at step five to prove “that the claimant
can perform other work that ‘exists in significant
numbers in the national economy,' considering the
claimant's residual functional capacity, age, education,
and work experience.” Lewis v. Berryhill, 858
F.3d 858, 862 (4th Cir. 2017) (internal citations omitted).
case, at step one, the ALJ found that Plaintiff had not
engaged in “substantial gainful activity” since
February 15, 2015. (Tr. 13). At step two, the ALJ determined
that Plaintiff's “right foot hammertoe deformities,
degenerative joint disease of the bilateral knees, chronic
obstructive pulmonary disease (COPD), depression, adjustment
dis, and posttraumatic stress disorder (PTSD)”
constitute severe impairments under the relevant regulations.
(Tr. 14). At step three, the ALJ found that Plaintiff does
not have an impairment or combination of impairments that
meet or medically equal the severity of any of the listed
impairments set forth in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 14-16). Then, “[a]fter careful
consideration of the entire record, ” the ALJ
determined that Plaintiff has the RFC to perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(c).
The claimant can occasionally climb ramps and stairs but
never climb ladders, ropes, or scaffolds. He can occasionally
balance, stop, kneel, crouch, and crawl. The claimant should
avoid concentrated exposure to fumes, odors, dusts, gases,
and areas of poor ventilation. The claimant is limited to
understanding, remembering and carrying out simple tasks.
(Tr. 16-20). Finally, at step four, the ALJ determined that
Plaintiff is unable to perform any past relevant work, but in
considering age, education, experience, and RFC, “there
were jobs that existed in significant numbers in the national
economy that the claimant could have performed.” (Tr.
Court reviews an ALJ's decision to ensure that the
ALJ's findings are supported by substantial evidence and
were reached through application of correct legal standards.
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion, ” which “consists of more
than a mere scintilla of evidence but may be less than a
preponderance.” Id. (internal citations and
quotations omitted). In accordance with this standard, the
Court does not “undertake to reweigh conflicting
evidence, make credibility determinations, or substitute
[its] judgment for that of the ALJ.” Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal
citations and quotations omitted). Instead, “[w]here
conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that
decision falls on the ALJ.” Id.
raises two arguments on appeal. First, he argues that that
the ALJ failed to include a proper limitation, or to provide
a proper explanation for not including such limitation, to
account for Plaintiff's “moderate
difficulties” with regard to concentration,
persistence, or pace. Second, he alleges that the final
disability determination as to Plaintiff's usage of a
cane is not supported by substantial evidence.
first argues that the ALJ's opinion violates the mandates
set forth in the Fourth Circuit's decision in Mascio
v. Colvin, 780 F.3d 632 (4th Cir. 2015), as the ALJ
determined that the Plaintiff had moderate difficulties with
regard to concentration, persistence, and pace but failed to
include the limitation within the RFC determination or
explain why no limitation was included. (ECF 13-1 at 9-11).
Although, in this case, the ALJ ultimately found that
Plaintiff's impairments did not meet or medically equal
any of those listed in the regulations, a more-detailed
explanation of the analysis at step three of the sequential
evaluation will better inform the Court's decision here.
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 §§ 12.00-12.15. 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. at
§ 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.
Id. at § 12.00(C). 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. at § 404.1520a(c)(4). 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 §§
12.04, 12.06. 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. at § 12.00(C).
The functional area of “[c]oncentration, 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. The regulations also offer
little guidance as to the meaning of “moderate”
limitations. See Lewis v. Commissioner, Civ. No.
SAG-16-3661, 2017 WL 2683948, at *2 (D. Md. June 21, 2017).
Mascio, the Fourth Circuit held that a remand was
necessary where the hypothetical the ALJ posed to the
vocational expert, and the corresponding RFC assessment,
failed to 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. In so holding, the Fourth Circuit
agreed with other federal circuits that an ALJ does not
account for a claimant's limitations in concentration,
persistence, or pace by merely restricting the hypothetical
question posed to the vocational expert to simple, routine
tasks or unskilled work. Id. at 638. Nonetheless,
the Fourth Circuit noted that the failure to include
additional limitations may not constitute error if the ALJ is
able to offer an explanation as to why the claimant's
moderate difficulties in concentration, persistence, or pace
did not warrant a limitation in the claimant's RFC
assessment. Simply put, the Mascio Court held that
where an ALJ finds moderate difficulties at steps two or
three of the sequential evaluation, the ALJ is then required
either to include the appropriate limitations that would
account for such difficulties in the RFC or to explain why no
such limitations are necessary.
case, the ALJ assessed Plaintiff's mental impairments
pursuant to the “special technique, ” and found
that he had moderate limitations in concentration,
persistence, or pace. (Tr. 15). The ALJ's complete
With regard to concentration, persistence, or pace, the
claimant has moderate difficulties. The claimant's
hobbies include reading, painting, and drawing (Exhibit
9E/5). Moreover, he reported he could pay attention as needed
(Exhibit 9E/6). The claimant testified he has difficulty with
attention and concentration. However, he demonstrated intact
attention and concentration upon examination (Exhibit 4F/53;
7F/60, 40). Moreover, he appeared to sustain adequate
attention throughout his ...