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Teresa B. v. Commissioner, Social Security Administration

United States District Court, D. Maryland

June 17, 2019

Teresa B.
v.
Commissioner, Social Security Administration;

          LETTER TO COUNSEL

         Dear Counsel:

         On July 26, 2018, Plaintiff Teresa 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 15, 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.

         Plaintiff protectively filed her claim for benefits on December 28, 2015, alleging a disability onset date of December 11, 2015. Tr. 209-10. Her claim was denied initially and on reconsideration. Tr. 135-38, 140-41. A hearing was held on July 24, 2017, before an Administrative Law Judge (“ALJ”). Tr. 12-45. 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. 108-29. The Appeals Council denied Plaintiff's request for review, Tr. 1-6, so the ALJ's decision constitutes the final, reviewable decision of the SSA.

         The ALJ found that Plaintiff suffered from the severe impairments of “Lumbar Spine Degenerative Disc Disease, Status-Post Lumbar Spine Decompression, Asthma/Chronic Obstructive Pulmonary Disease, Left Knee Osteoarthritis, Headaches, Pelvic Abdominal Adhesive Disease, Hypertension, Obesity, Fibromyalgia, and Depression.” Tr. 111. Despite these impairments, the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 404.1567(b) except the claimant 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 temperatures, humidity, and respiratory irritants, including fumes, dusts, odors, gases, and areas of poor ventilation. The claimant is limited to understanding, remembering and carrying out simple tasks. There should be no work requiring a high-quota production-rate pace (i.e., rapid assembly line work where co-workers are side-by-side and the work of one affects the work of the other).

Tr. 117. 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 significant numbers in the national economy. Tr. 126-28. Therefore, the ALJ concluded that Plaintiff was not disabled. Tr. 128-29.

         Plaintiff raises four 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's assessment of Plaintiff's physical RFC was not based on substantial evidence; (3) that the ALJ erred in evaluating the medical opinion evidence; and (4) that the ALJ's step five conclusion was not supported by substantial evidence because the hypothetical posed to the VE was flawed and because the ALJ failed to resolve an apparent conflict between the VE testimony and the Dictionary of Occupational Titles. Although some of Plaintiff's arguments lack merit, I agree that the ALJ's analysis was inadequate for the reasons discussed below. 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.

         I. Mascio

         First, 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 listing 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).

         Paragraph B consists of four broad functional areas: (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. § 12.00(E)(3).

         The SSA 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).

         The 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.

         At step three in the instant case, the ALJ found that Plaintiff had a moderate limitation in maintaining concentration, persistence, or pace. Tr. 116. However, this case is distinguishable from Mascio, because the ALJ included an RFC provision limiting Plaintiff to “no work requiring a high-quota production-rate pace (i.e., rapid assembly line work where co-workers are side-by-side and the work of one affects the work of the other).” Tr. 117. In two recent cases, Thomas v. Berryhill, and Perry v. Berryhill, the Fourth Circuit has remanded cases in which the ALJ used phrases in the RFC similar to work not at a “production-rate pace, ” without providing further explanation or definition of that phrase. Thomas v. Berryhill, 916 F.3d 307, 312-13 (4th Cir. 2019) (holding that ALJ's failure to define “production rate or demand pace” frustrated appellate review); Perry v. Berryhill, No. 18-1076, ___ Fed.Appx. ___, 2019 WL 1092627, at *3 (4th Cir. Mar. 8, 2019) (unpublished) (remanding for ALJ's failure to define “non-production oriented work setting”). Here, however, the ALJ provided a clear explanation of the “production-rate pace” limitation. Considering the ALJ's explanation, the RFC adequately accounted for Plaintiff's limitation in concentration, persistence, or pace.

         II. ...


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