United States District Court, D. Maryland
Tammy Lee B.
Commissioner, Social Security Administration;
March 2, 2018, Plaintiff Tammy Lee B. petitioned this Court
to review the Social Security Administration's
(“SSA's”) final decision to deny her claim
for Disability Insurance Benefits. ECF 1. I have considered
the parties' cross-motions for summary judgment. ECF 13,
18. 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 both motions, reverse the judgment of the SSA, and
remand the case to the SSA for further analysis pursuant to
sentence four of 42 U.S.C. § 405(g). This letter
explains my rationale.
filed her claim for benefits on December 8, 2015, alleging an
onset date of April 27, 2015. Tr. 170-71. Her claim
was denied initially and on reconsideration. Tr. 103-06,
110-11. A hearing was held on July 20, 2017, before an
Administrative Law Judge (“ALJ”). Tr. 41-84.
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. 21-35. The Appeals
Council declined review, Tr. 1-6, making the ALJ's
opinion the final, reviewable decision of the SSA.
found that Plaintiff suffered from the severe impairments of
“cervical and lumbar degenerative disc disease, status
post fusion procedures; history of pulmonary embolism;
obesity; depression; and generalized anxiety disorder.”
Tr. 23. Despite these impairments, the ALJ determined that
Plaintiff retained the residual functional capacity
perform sedentary work as defined in 20 CFR 404.1567(a)
except the claimant may not reach overhead with the bilateral
upper extremities. She can frequently handle and finger
bilaterally. She can occasionally balance, kneel, stoop,
crouch, crawl, and climb ramps and stairs. She may not climb
ladders, ropes, or scaffolds and should avoid workplace
hazards such as unprotected heights and dangerous, moving
machinery. She should avoid concentrated exposure to extreme
heat and respiratory irritants. The claimant is limited to
understanding, remembering, and carrying out simple tasks.
She may have only occasional interactions with the public,
co-workers, and supervisors.
After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Plaintiff could
not perform her past relevant work, but could perform other
jobs existing in the national economy. Tr. 33-35. Therefore,
the ALJ concluded that Plaintiff was not disabled. Tr. 35.
makes three arguments on appeal: (1) that the ALJ's RFC
assessment runs afoul of the Fourth Circuit's decision in
Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015);
(2) that the ALJ should have considered a closed period of
disability; and (3) that the ALJ assigned inadequate weight
to the opinion of her treating physician. I agree that the
ALJ's analysis did not comply with Mascio, and I
therefore grant remand under sentence four. In remanding for
further explanation, I express no opinion as to whether the
ALJ's ultimate conclusion that Plaintiff is not entitled
to benefits is correct.
with the successful argument, 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. 780 F.3d at 637-38.
At step three of the sequential evaluation, the SSA
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 including: (1)
understanding, remembering, or applying information; (2)
interacting with others; (3) concentrating, persisting, or
maintaining pace, and (4) adapting or managing 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. §
employs the “special technique” to rate a
claimant's degree of limitation in each functional 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(b),
(c)(2) (2017). The SSA uses a five-point scale to rate a
claimant's degree of limitation in the four areas: none,
mild, moderate, marked, or extreme. Id. §§
404.1520a(c)(4). A moderate limitation signifies that 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. 26. The entirety of the ALJ's analysis
With regard to concentrating, persisting, or maintaining
pace, the claimant has moderate limitations. Through her
representative, the claimant alleged marked impairment in the
ability to maintain attention and concentration. She
explained that her pain and anxiety have affected her ability
to concentrate. The claimant stated that she could follow
written instructions well, but she could only do two things
at a time, or else she forgets. However, she claimed to
prepare simple meals and read approximately five books per
week, which indicates some ability to concentrate and
persist. The claimant's mental health treatment and the
effects of pain and anxiety ...