United States District Court, D. Maryland
Commissioner, Social Security Administration;
March 13, 2018, Plaintiff Derrick S. petitioned this Court to
review the Social Security Administration's
(“SSA's”) final decision to deny his claim
for Supplemental Security Income. ECF 1. I have considered
the parties' cross-motions for summary judgment. ECF 12,
15. I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2018). This Court must uphold the decision of
the SSA if it is supported by substantial evidence and if the
SSA 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 Plaintiff's motion, grant the SSA's motion, and
affirm the SSA's judgment pursuant to sentence four of 42
U.S.C. § 405(g). This letter explains my rationale.
case has a lengthy procedural history. Plaintiff filed his
claim for benefits on February 16, 2011, alleging a
disability onset date of May 22, 2010. Tr. 118-25. His
claim was denied initially and on reconsideration. Tr. 68-71,
74-75. A hearing was held on June 12, 2013, before an
Administrative Law Judge (“ALJ”). Tr. 31-52.
Following the hearing, the ALJ determined that Plaintiff was
not disabled within the meaning of the Social Security Act
during the relevant time frame. Tr. 15-30. The Appeals
Council (“AC”) denied Plaintiff's request for
review, Tr. 1-5, but following an appeal, the case was
remanded for further consideration. Tr. 436-37. A second
hearing was held on January 4, 2016. Tr. 379-400. Following
that hearing, the ALJ again issued an opinion denying
benefits. Tr. 443-63. This time, the AC issued an order
remanding the case for rehearing. Tr. 464-70. A third hearing
was held on October 19, 2017. Tr. 401-35. After the hearing,
on November 15, 2017, the ALJ once again wrote an opinion
denying benefits. Tr. 329-55. This time, the AC denied
review, so the ALJ's 2017 decision constitutes the final,
reviewable decision of the SSA.
found that Plaintiff suffered from the severe impairments of
“status post left ankle fracture and open
reduction/internal fixation of the left ankle; major
depressive disorder; and history of polysubstance abuse,
anxiety disorder, and neurodevelopmental disorders.”
Tr. 335. Despite these impairments, the ALJ determined that
Plaintiff retained the residual functional capacity
perform light work as defined in 20 CFR § 416.967(b),
including that he can lift 20 pounds occasionally and 10
pounds frequently, and is able to sit for 6 hours out of an
8-hour workday, except he is able to stand for 2 hours out of
an 8-hour day, and can walk for 2 hours out of an 8-hour
workday. He can never push or pull with the lower left
extremity. He can never operate foot controls with the lower
left extremity. He can perform postural activities
occasionally, except that he can never climb ladders, ropes,
and scaffolds. He is precluded from work at unprotected
heights. He is able to understand, remember, and carry out
simple instructions. In addition to normal breaks he would be
expected to be off-task for 10% of an 8-hour workday. He
would be able to have occasional contact with the public.
Tr. 338. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could not perform his past relevant work, Tr. 346, but could
perform other jobs existing in the national economy. Tr.
347-48. Therefore, the ALJ concluded that Plaintiff was not
disabled. Tr. 348.
makes several arguments on appeal: (1) that
the ALJ's RFC assessment was flawed and runs afoul of the
Fourth Circuit's decision in Mascio v. Colvin,
780 F.3d 632, 638 (4th Cir. 2015); (2) that the ALJ did not
provide sufficient justification for her findings regarding
time off-task; and (3) that the ALJ erred in evaluating the
opinion evidence from a consultative examiner, Dr. McDonald,
and a medical expert, Dr. Adamo. I disagree.
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.
Id. 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 (2017). Listings 12.00 et
seq. pertain to mental impairments. 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 12.00 (2017). The relevant listings
therein consist of: (1) “paragraph A criteria, ”
which consist of a set of medical findings; (2)
“paragraph B criteria, ” which consist of a set
of impairment-related functional limitations; and (3)
“paragraph C criteria, ” which relate to
“serious and persistent” disorders lasting at
least two years with a history of ongoing medical treatment
and marginal adjustment. Id. §§ 12.00(A),
(G). A claimant's impairments meet the listings relevant
to this case by satisfying either the paragraph A and
paragraph B criteria, or the paragraph A and paragraph C
criteria. Id. § 12.00(A).
B consists of four broad functional areas assessing the
ability to: (1) understand, remember, or apply information;
(2) interact with others; (3) concentrate, persist, or
maintain pace; and (4) adapt or manage oneself. Id.
§ 12.00(A)(2)(b). The functional area of concentration,
persistence, or pace “refers to the abilit[y] to focus
attention on work activities and stay on task at a sustained
rate.” Id. § 12.00(E)(3).
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. §§ 416.920a(b),
(c)(2) (2017). The ALJ uses a five-point scale to rate a
claimant's degree of limitation in the four areas: none,
mild, moderate, marked, or extreme. Id. §
416.920a(c)(4). A moderate limitation signifies the claimant
has only a fair ability to function in the relevant area of
mental functioning. 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.00(F)(2)(c) (2017).
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.
three in the instant case, the ALJ found that Plaintiff had
moderate limitations maintaining concentration, persistence,
or pace. Tr. 337. The ALJ's analysis stated:
With regard to concentrating, persisting, or maintaining
pace, the claimant has a moderate limitation. In a
pre-hearing function report, the claimant indicated having
problems completing tasks or finishing things, but he did not
identify problems with concentration. As noted above, at the
hearing, he testified to difficulty with focus. Moreover, as
discussed below, at a consultative psychological evaluation
in 2011 he was considered to have a “severe”
concentration impairment. These statements suggest more than
mild limitation in this area. However, at a more recent
consultative psychological evaluation in 2016, he was
observed to work continuously and maintain concentration
during intelligence testing. Additionally, at the hearing,
Dr. Adamo testified that the claimant would have moderate
limitation in this area.
Id. (internal citations omitted). The ALJ also found
that Plaintiff had moderate limitations in the area of
understanding, remembering, or applying information. Tr. 337.
The corresponding provisions in the RFC assessment state,
“[Plaintiff] is able to understand, remember, and carry
out simple instructions. In addition to normal breaks he
would be expected to be off-task for 10% of an 8-hour
workday.” Tr. 338. The ALJ provided a detailed
explanation for how the RFC accounted for Plaintiff's
limitations with regard to memory, concentration, and focus.
Tr. 345-46. The ALJ's inclusion of time off-task in the
RFC is precisely the type of limitation the Fourth Circuit in
Mascio explained accounts for limitations in
concentration, persistence, and pace. 780 F.3d at 638.
Additionally, the ALJ provided a comprehensive explanation as
to why no further restrictions were required in the RFC.
See Tr. 342 (noting “normal ...