United States District Court, D. Maryland
Commissioner, Social Security Administration;
LETTER TO COUNSEL
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.
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.
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.
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.
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.
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).
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 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