United States District Court, D. Maryland
L. Simms United States Magistrate Judge
pending before this Court is Plaintiff Colleen M.
Devaney's “Motion to Reconsider” the
Court's Letter Order dated September 24, 2018, which
granted the Motion for Summary Judgment filed by Defendant
Social Security Administration (“the
Commissioner”). Ms. Devaney asks the Court to
reconsider its decision to grant the Commissioner's
summary judgment motion, asserting that the ALJ failed to
comply with the mandates set forth in Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015).
also reviewed the Commissioner's response to
Plaintiff's reconsideration motion. (ECF No. 24). No.
hearing is necessary. See L.R. 105.6. For the
reasons set forth below, Ms. Devaney's motion for
reconsideration is GRANTED.
March 16, 2017, Ms. Devaney petitioned this Court to review
the Commissioner's final decision to deny her claims for
Disability Insurance Benefits and Supplemental Security
Income. (ECF No. 1). Ms. Devaney advanced four arguments on
appeal: (1) that the ALJ's Residual Functional Capacity
(“RFC”) determination was erroneous; (2) that the
ALJ did not appropriately evaluate the Plaintiff's
credibility; (3) the ALJ relied on misapprehensions of the
objective medical evidence; and (4) the ALJ failed to explain
how Plaintiff's activities demonstrated that she could
persist through an eight-hour workday. (ECF No. 17). In its
summary judgment motion, the Commissioner countered that: (1)
the ALJ's RFC finding was supported by substantial
evidence and consistent with the applicable Fourth Circuit
precedent; and (2) the ALJ properly evaluated Ms.
Devaney's subjective complaints. (ECF No. 20).
full briefing by the parties, this Court denied Ms.
Devaney's summary judgment motion, granted the
Commissioner's summary judgement motion, and affirmed the
Commissioner's judgment pursuant to sentence four of 42
U.S.C. § 405(g). (ECF No. 22). Subsequently, Ms. Devaney
filed her Motion to Reconsider. (ECF No. 23).
Devaney asks the Court to reconsider its Letter Order
granting the Commissioner's summary judgment motion. In
her reconsideration motion, Ms. Devaney contends that this
Court erred by not finding that remand was appropriate,
because, contrary to the dictates of Mascio, the ALJ
inadequately evaluated and failed to account for
Plaintiff's moderate difficulties in concentration,
persistence, or pace. (ECF No. 23 at 2). Urging against
reconsideration, the Commissioner asserts that
Mascio “did not set forth a per se rule”
that “limiting Plaintiff to understanding, remembering
and carrying out simple instructions can never accommodate
‘moderate' difficulties in concentration,
persistence, or pace.” (ECF No. 24 at 1).
Mascio, the ALJ found that the claimant had moderate
difficulties in maintaining concentration, persistence, or
pace. 780 F.3d at 637-38. However, the ALJ's RFC
assessment did not include a limitation to account for these
difficulties, nor did the ALJ explain why no limitation was
necessary. Id. In addition, the hypothetical
question that the ALJ posed to the vocational expert was
limited to a scenario where the claimant performed only
simple, routine tasks or unskilled work. Id. The
Fourth Circuit held that, under these circumstances, remand
was appropriate. In reaching this conclusion, the Fourth
Circuit distinguished between an individual's ability to
perform simple tasks versus that individual's ability to
stay on task; only “the latter limitation would account
for a claimant's limitation in concentration,
persistence, or pace.” Id. The Fourth Circuit
also held that there would have been no error if the ALJ had
either: (a) explained why the claimant's moderate
difficulties did not translate into a limitation of her RFC;
or (b) included in claimant's RFC appropriate limitations
that accounted for her moderate difficulties. Id.
instant case, although the ALJ found that Ms. Devaney had
moderate limitations in concentration, persistence and pace
(Tr. 25), the ALJ also found:
The claimant stated that she had trouble with memory and
completing tasks. However, in her examinations, the claimant
displayed intact memory, could perform serial sevens and
could spell. The claimant also had normal intelligence and
normal speech. Finally, the claimant was able to understand
and adequately answer the hearing questions.
(Id.). In addition, although the ALJ held that
“as stated [previously], the claimant had concentration
delays, ” the ALJ also found that “claimant's
statements concerning the intensity, persistence, and
limiting effects of [her] symptoms are not fully
credible.” (Tr. 30). Furthermore, the ALJ stated that
he gave “little weight” to the state agency
psychologists' opinions that claimant had moderate
limitations in maintaining concentration, persistence and
pace, because they “did not have ...