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Noel D. v. Comm'r of Soc. Sec.

United States District Court, D. Maryland

January 28, 2019

Noel D.
v.
Comm'r of Soc. Sec.[1]

          Honorable Gina L. Simms United States Magistrate Judge

         Dear Counsel:

         Pending before this Court are Motions for Summary Judgment. (ECF Nos. 14, 15). The Court must uphold the Social Security Administration (“SSA” or “the Agency”)'s decision 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) (2016); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The substantial evidence rule “consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Chater, 76 F.3d at 589. This Court shall not “re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of the SSA. Id. Upon review of the pleadings and the record, the Court finds that no hearing is necessary. L.R. 105.6. For the reasons set forth below, I will deny both motions, reverse the Commissioner's decision in part, and remand the case to the Commissioner for further consideration.

         Plaintiff filed claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”) on April 4, 2014, alleging an onset of disability on March 22, 2013. (Tr. 29, 232-241, 263). Plaintiff's application was denied initially (August 7, 2014), and upon reconsideration (January 16, 2015), by the SSA. (Tr. 29). On February 11, 2015, Plaintiff requested a hearing, which was conducted on September 14, 2016 by Administrative Law Judge (“ALJ”) Williams A. Kurlander. (Tr. 29, 47, 185). On January 13, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 29-41). The Appeals Council denied Plaintiff's request for review on August 28, 2017, making the ALJ's decision the final reviewable decision of the Agency. (Tr.1-5).

         In deciding to deny Plaintiff's claim, the ALJ followed the five-step sequential evaluation process regarding disability, which is set forth in 20 C.F.R. §416.920. See also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). The steps used by the ALJ were as follows: step one, assessed whether Plaintiff had engaged in substantial gainful activity since the alleged disability onset date; step two, determined whether Plaintiff's impairments met the severity and durations requirements found in the regulations; step three, ascertained whether Plaintiff's medical impairment met or equaled an impairment listed in the regulations (“the Listings”); step four, analyzed whether Plaintiff could perform her past work, given the limitations caused by her impairments; and at step five, analyzed whether Plaintiff could perform any work. (Tr. 31-40). Because the first three steps did not yield a conclusive determination, the ALJ also assessed Plaintiff's residual functional capacity (“RFC”)-i.e., the “most the claimant ‘c[ould] still do despite' physical and mental limitations that affect[ed] her ability to work”-by considering all of Plaintiff's medically determinable impairments, regardless of their severity. See Mascio, at 635 (quoting 20 C.F.R. § 416.945(a)(1)). Per Mascio, Plaintiff bore the burden of proof through the first four steps of the sequential evaluation process. Upon making the requisite showing, the burden shifted to the Agency at step five to prove that Plaintiff could perform other work that “exist[ed] in significant numbers in the national economy, ” in light of her “[RFC], age, education and work experience.” Lewis v. Berryhill, 858 F.3d 858, 862 (4th Cir. 2017) (internal citations omitted).

         Here, the ALJ found that Plaintiff suffered from the following severe impairments: obesity, bilateral knees osteoarthritis, foot/ankle disorder, fibromyalgia, migraines, anxiety, major depressive disorder, and bipolar affective disorder. (Tr. 31). Despite these impairments, the ALJ determined that Plaintiff retained the “RFC” to perform light work. (Tr. 34). Next, after evaluating the testimony of a vocational expert (“VE”), the ALJ determined that Plaintiff was unable to perform her past work as a daycare teacher. (Tr. 39). However, the ALJ ultimately found that she could perform several jobs existing in the national economy; therefore, Plaintiff was not disabled. (Tr. 40).

         On appeal to this Court, Plaintiff advances two arguments. First, that the ALJ's holding does not comport with the Fourth Circuit's mandates in Mascio v. Colvin. Second, that the ALJ fails to explain how he considered “the frequency and duration of Plaintiff's migraine headaches” when he formulated her RFC. (ECF No. 14-1, pp. 5-8).

         First, Plaintiff alleges that the although the ALJ found that she had moderate difficulties in concentration, persistence and pace, he failed to include any limitations related thereto in her RFC, as required by Mascio. The Fourth Circuit remanded Mascio for several reasons, including, the fact that the hypothetical posed to the vocational expert, and the RFC assessment, failed to include mental limitations other than unskilled work, even though the ALJ determined that the claimant had “moderate difficulties” in concentration, persistence, or pace. 780 F.3d at 637-38. The Fourth Circuit held that an ALJ does not adequately account for a claimant's limitations in concentration, persistence, or pace by merely restricting hypothetical questions posed to the VE to simple, routine tasks or unskilled work. Id. at 638. The Fourth Circuit distinguished between a scenario where an individual is unable to perform simple tasks from another where the individual stays on task, finding that “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Id. The Fourth Circuit also held that an ALJ's failure to include additional limitations in a claimant's RFC assessment is not erroneous, provided that the ALJ explains why a claimant's moderate difficulties in concentration, persistence, and pace did not warrant mention in that RFC assessment. To summarize, then, an ALJ who finds that a claimant has moderate difficulties in concentration, persistence and pace must either: (a) include appropriate limitations in the RFC that account for these difficulties, or (b) explain why no such limitations are necessary.

         In this case, while the ALJ did find that Plaintiff's impairments met the Listings, I do think it necessary to explain more the analysis that the ALJ engaged in related to step three of the sequential evaluation process. As stated earlier, at step three of the sequential evaluation process, an 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. The Listings found in sections 12.00 et seq. pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00. The relevant listings 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, an ALJ will find that a claimant meets the listed impairment. Id.

         Paragraph B contains four 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). An ALJ uses 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). An ALJ rates a claimant's degree of limitation in the first three areas, using the terminology: “none, ” “mild, ” “moderate, ” “marked, ” or “extreme.” Id. at § 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, 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).

         In addition, the 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. 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, however, offer little guidance on the meaning of “moderate” limitations. See Lewis v. Commissioner, Civ. No. SAG-16-3661, 2017 WL 2683948, at *2 (D. Md. June 21, 2017).

         In this case, the ALJ did assess Plaintiff's mental impairments using the “special technique, ” and found that she had moderate limitations in concentration, persistence, or pace. (Tr. 33-34). In particular, the ALJ noted:

The claimant testified she sleeps a lot for unknown reasons and that she experiences fatigue after a migraine. She reported difficulty with memory, completing tasks, concentration, and handling stress and changes in routine. She enjoys reading, playing computer games, can cook complete meals, drives almost daily, could care for her grandson, and stays busy. She scored 28/30 on a mini-mental status exam, showing normal cognitive functioning. She was attentive and responsive at the hearing, but I noted she seemed rather unemotional with a blunt affect during her testimony.

         Despite these impairments, the ALJ ultimately determined that Plaintiff ...


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