United States District Court, D. Maryland
11, 2018, Plaintiff petitioned this Court to review the
Social Security Administration's final decision to deny
his claim for Supplemental Security Income. (ECF No. 1). I
have considered the parties' cross-motions for summary
judgment. (ECF Nos. 17, 20). I find that no hearing is
necessary. Loc. R. 105.6 (D. Md. 2018). This Court must
uphold the decision of the Agency if it is supported by
substantial evidence and correct legal standards were
employed. 42 U.S.C. § 405(g); see Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that
standard, I will deny both motions, reverse the judgment of
the Social Security Administration, and remand the case to
the Social Security Administration for further analysis
pursuant to sentence four of 42 U.S.C. § 405(g). This
letter explains my rationale.
filed a claim for benefits on May 20, 2015, with an onset
date of December 21, 2009. (Tr. 179-85). His claim was denied
initially and on reconsideration following appeal. (Tr.
105-08, 110-11). Administrative Law Judge (“ALJ”)
Yvette N. Diamond held a hearing on July 17, 2017. (Tr.
34-68). Following that hearing, July 27, 2017, the ALJ
determined that Plaintiff was not disabled. (Tr. 18-29). The
Appeals Council denied his request for review making the
ALJ's decision the final, reviewable decision of the
Agency. (Tr. 1-6).
arriving at the decision to deny Plaintiff's claim, the
ALJ followed the five-step sequential evaluation of
disability set forth in the Secretary's regulations. 20
C.F.R. § 416.920. “To summarize, the ALJ asks at
step one whether the claimant has been working; at step two,
whether the claimant's medical impairments meet the
regulations' severity and duration requirements; at step
three, whether the medical impairments meet or equal an
impairment listed in the regulations; at step four, whether
the claimant can perform her past work given the limitations
caused by her medical impairments; and at step five, whether
the claimant can perform other work.” Mascio v.
Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). If the
first three steps do not yield a conclusive determination,
the ALJ then assesses the claimant's residual functional
capacity (“RFC”), “which is ‘the
most' the claimant ‘can still do despite'
physical and mental limitations that affect her ability to
work, ” by considering all of the claimant's
medically determinable impairments regardless of severity.
Id. at 635 (quoting 20 C.F.R. § 416.945(a)(1)).
The claimant bears the burden of proof through the first four
steps of the sequential evaluation. If he makes the requisite
showing, the burden shifts to the Social Security
Administration at step five to prove “that the claimant
can perform other work that ‘exists in significant
numbers in the national economy,' considering the
claimant's residual functional capacity, age, education,
and work experience.” Lewis v. Berryhill, 858
F.3d 858, 862 (4th Cir. 2017) (internal citations omitted).
case, at step one, the ALJ found that Plaintiff had not
engaged in “substantial gainful activity” since
March 20, 2015. (Tr. 21). At step two, the ALJ determined
that Plaintiff's “degenerative disc disease,
hypertension, obesity, depressive disorder, and polysubstance
abuse” constitute severe impairments under the relevant
regulation. (Tr. 21). At step three, the ALJ found that
Plaintiff does not have an impairment or combination of
impairments that meet or medically equal the severity of any
of the listed impairments set forth in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 15-17). Then, “[a]fter
careful consideration of the entire record, ” the ALJ
determined that Plaintiff has the RFC to perform:
light work as defined in 20 CFR 416.967(b), except the
claimant can lift and carry twenty pounds occasionally and
ten pounds frequently; stand and walk for sex out of eight
hours; and sit for six out of eight hours. The claimant can
occasionally climb stairs, balance, stoop, kneel, crouch, and
crawl, but cannot climb ladders.
He cannot have concentrated exposure to vibration or hazards.
The claimant is limited to simple, routine tasks and frequent
contact with supervisors, coworkers, and the public.
(Tr. 24-27). Finally, at step four, the ALJ determined that
Plaintiff is unable to perform any past relevant work, but in
considering age, education, experience, and RFC, “there
were jobs that existed in significant numbers in the national
economy that the claimant could have performed.” (Tr.
Court reviews an ALJ's decision to ensure that the
ALJ's findings are supported by substantial evidence and
were reached through application of correct legal standards.
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion, ” which “consists of more
than a mere scintilla of evidence but may be less than a
preponderance.” Id. (internal citations and
quotations omitted). In accordance with this standard, the
Court does not “undertake to reweigh conflicting
evidence, make credibility determinations, or substitute
[its] judgment for that of the ALJ.” Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal
citations and quotations omitted). Instead, “[w]here
conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that
decision falls on the ALJ.” Id.
raises a single issue on appeal arguing that the ALJ failed
to include a proper limitation, or to provide a proper
explanation for not including such limitation, to account for
Plaintiff's “moderate difficulties” with
regard to concentration, persistence, or pace in violation of
the mandates set forth in the Fourth Circuit's decision
in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015).
(ECF No. 17 at 8-10). Although, in this case, the ALJ
ultimately found that Plaintiff's impairments did not
meet or medically equal any of those listed in the
regulations, a more-detailed explanation of the analysis at
step three of the sequential evaluation will better inform
the Court's decision here. At step three of the
sequential evaluation, the 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, App. 1.
Listings 12.00 et seq pertain to mental impairments.
20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00-
12.15. The relevant listings therein 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 and B criteria are satisfied, the ALJ will
determine that the claimant meets the listed impairment.
B consists of four broad 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). The ALJ employs 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. § 404.1520a(c)(2). The ALJ uses a five-point
scale to rate a claimant's degree of limitation in the
first three areas: none, mild, moderate, marked, or extreme.
Id. at § 404.1520a(c)(4). 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. 1 §§
12.04, 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).
The functional area of “[c]oncentration, 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 also offer
little guidance as to the meaning of “moderate”
limitations. See Lewis v. Commissioner, Civ. No.
SAG-16-3661, 2017 WL 2683948, at *2 (D. Md. June 21, 2017).
Mascio, the Fourth Circuit held that a remand was
necessary where the ALJ's hypothetical to the vocational
expert, and the corresponding RFC assessment, failed to
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. In so holding, the Fourth Circuit
agreed with other federal circuits that an ALJ does not
account for a claimant's limitations in concentration,
persistence, or pace by merely restricting the hypothetical
question posed to the vocational expert to simple, routine
tasks or unskilled work. Id. at 638. Nonetheless,
the Fourth Circuit noted that the failure to include
additional limitations may not constitute error if the ALJ is
able to offer an explanation as to why the claimant's
moderate difficulties in concentration, persistence, or pace
did not warrant a limitation in the claimant's RFC
assessment. Simply put, the Mascio Court held that
where an ALJ finds moderate difficulties at steps two or
three of the sequential evaluation, the ALJ is then required
either to include the appropriate limitations that would
account for such difficulties in the RFC or to explain why no
such limitations are necessary.
case, the ALJ assessed Plaintiff's mental impairments
pursuant to the “special technique, ” and found
that he had moderate limitations in concentration,
persistence, or pace. (Tr. 23). The ALJ's complete
With regard to concentration, persistence, or pace, the
claimant has moderate limitation. The claimant has endorsed a
history of poor focus, however, he has reported he has
“average” concentration and memory, and in a
Function Report, he reported no difficult with concentration,
completing tasks, or following instructions (Exhibits B7E;
B3F; B4F). Additionally, the claimant testified that he reads
articles, watches movies, and plays chess multiple times a
week for ninety minutes to two hours at ...