United States District Court, D. Maryland
Commissioner, Social Security Administration;
21, 2018, Plaintiff Deborah P. petitioned this Court to
review the Social Security Administration's
(“SSA's”) final decision to deny her claim
for Disability Insurance Benefits (“DIB”). ECF 1.
I have considered the parties' cross-motions for summary
judgment. ECF 14, 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 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.
claim for benefits has a lengthy procedural history.
Plaintiff filed a claim for DIB on December 31, 2008,
alleging a disability onset date of July 3, 2008. Tr. 121-26.
Her claim was denied initially and on reconsideration. Tr.
66-69, 71-72. A hearing was held on October 19, 2011, before
an Administrative Law Judge (“ALJ”). Tr. 31-63.
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. 10-18. The Appeals
Council (“AC”) denied Plaintiff's request for
review. Tr. 1-6. Plaintiff then appealed the decision to this
Court, and the case was remanded for further consideration.
Tr. 508-12. An ALJ held a second hearing on October 1, 2014.
Tr. 432-83. On November 20, 2014, the ALJ issued an opinion
again denying benefits. Tr. 521-35. The AC assumed
jurisdiction and remanded the case to the ALJ once more. Tr.
542-47. A third ALJ hearing was held on December 7, 2016. Tr.
390-430. On April 27, 2017, the ALJ issued an opinion again
denying benefits. Tr. 362-79. This time, the AC declined to
assume jurisdiction, Tr. 351-56, making the ALJ's 2017
decision the final, reviewable decision of the SSA.
See 20 C.F.R. § 404.984 (ALJ's decision
after Federal court remand is final decision unless AC
found that Plaintiff suffered from the severe impairments of
“degenerative disc disease (with a history of fusion
surgery), degenerative joint disease of the knees, headaches
and obesity.” Tr. 365. Despite these impairments, the
ALJ determined that Plaintiff retained the residual
functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except that she can lift 5 pounds frequently and 10 pounds
occasionally. She can sit for six of eight hours and
stand/walk for four of eight hours. She is never to be
required to use ladders, ropes or scaffolds. She is not to be
required to kneel or crawl. She can occasionally use ramps
and stairs. In addition, she can occasionally crouch and
stoop. She must be allowed a 10-minute break every two hours.
She is not to be required to work at heights or operate
dangerous machinery. Finally, she must be allowed to be off
task 10% of the time and miss 10 days of scheduled work per
Tr. 369. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could perform her past relevant work as a “confidential
secretary, ” or, alternatively, could perform other
jobs existing in significant numbers in the national economy.
Tr. 377-79. Accordingly, the ALJ found the Plaintiff not
disabled. Tr. 379.
raises two arguments on appeal: (1) that the ALJ erroneously
assessed her RFC; and (2) that the ALJ failed to comply with
the instructions of the AC. I conclude that the ALJ
erroneously assessed Plaintiff's RFC. Remand is therefore
appropriate. In so holding, I express no opinion regarding
whether the ALJ's ultimate conclusion that Plaintiff is
not disabled is correct.
Plaintiff correctly contends that the ALJ erroneously
assessed her RFC. Specifically, she contends that the ALJ
failed to support his conclusion that Plaintiff “must
be allowed to be off task 10% of the time and miss 10 days of
scheduled work per year, ” Tr. 369. When conducting the
RFC analysis, an ALJ “must include a narrative
discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities,
observations).” Mascio v. Colvin, 780 F.3d
632, 636 (4th Cir. 2015) (quoting SSR 96-8p, 1996 WL 374184
(S.S.A. July 2, 1996)). In doing so, the ALJ must
“build an accurate and logical bridge” between
the record evidence and the ALJ's RFC assessment. See
Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)
(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th
the ALJ failed to provide “an accurate and logical
bridge” between Plaintiff's limitations and the
ALJ's RFC determination regarding Plaintiff's time
off task and missed days of work. The ALJ provided no
explanation for those conclusions, nor is there any
indication from the hearing transcript, Tr. 390-430, what
those limitations were meant to address. Without
understanding why the ALJ included those limitations, I am
unable to determine if the ALJ supported his findings with
substantial evidence. An explanation of how the ALJ
calculated the time off task and days missed is particularly
significant, since a relatively small increase could preclude
competitive employment. Tr. 426 (VE testimony that the
maximum time a person can be off task and retain competitive
employment is “right around 10 percent, ” and
that most employers would not allow an employee to miss more
than 12 days of work in a year). While the SSA argues that a
claimant bears the burden through the first four steps of the
five-step disability evaluation, this Court's role in
reviewing the ALJ's decision is frustrated when the ALJ
does not explain his reasoning. See Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Accordingly,
without further explanation, I am unable to ascertain how the
ALJ assessed Plaintiff's difficulties in staying on task
and attending work, and how those difficulties impacted the
RFC assessment. In light of this inadequacy, I must remand
the case to the SSA for further analysis. On remand, the ALJ
should consider the impact of Plaintiff's limitations on
the RFC determination, and explain the reasons for that
finding, citing substantial evidence.
to Plaintiff's unsuccessful argument, Plaintiff contends
that the ALJ failed to comply with the AC's instruction
on remand to “[o]btain evidence from an appropriate
medical expert or experts to clarify the nature, severity,
and any limiting effects of the claimant's medically
determinable impairments, ” Tr. 545. However, the ALJ
obtained a consultative examination from Dr. Murshed on
February 21, 2017. Tr. 1080-81. Plaintiff has not offered any
reason why the consultative examination did not satisfy the
AC's instruction. Because the ALJ complied with the
AC's instruction, I need not address whether the failure
to follow such an instruction is grounds for reversal by this
Court. See Norris v. Berryhill, No.
6:16-cv-2040-Orl-37JRK, 2018 WL 798221, at *10 (M.D. Fla.
Feb. 5, 2018), adopted by 2018 WL 814702 (Feb. 9,
2018) (remanding the case for failure to consolidate cases as
directed by the AC); Hardister v. Berryhill, Cause
No. 1:16-cv-2575-WTL-DML, 2018 WL 636001, at *3 (S.D. Ind.
Jan. 31, 2018) (“Despite being given notice of the
deficiency, the ALJ failed to fully comply with the Appeals
Council order. This failure constitutes error that requires
remand.”); but see Spurlock v. Berryhill, No.
3:17-cv-02240, 2018 WL 1956119, at *11 (S.D. W.Va. Apr. 2,
2018), adopted by 2018 WL 1954835 (“Several
district courts in this circuit have held that an Appeals
Council's remand order is merely an intermediate agency
action and not the final decision of the Commissioner; such
courts have emphasized that the court's review is limited
to whether the ALJ's decision is supported by substantial
evidence, or was reached through the application of an
incorrect legal standard.”).
reasons set forth herein, Plaintiff's Motion for Summary
Judgment, ECF 14, is DENIED and Defendant's Motion for
Summary Judgment, ECF 15, is DENIED. Pursuant to sentence
four of 42 U.S.C. § 405(g), the Commissioner's
judgment is REVERSED IN PART due to inadequate analysis. The
case is REMANDED for further proceedings in accordance with
this opinion. The Clerk is directed to CLOSE this case.
the informal nature of this letter, it should be flagged as
an opinion. An implementing order follows.
Stephanie A. Gallagher United ...