United States District Court, D. Maryland
Geneva W.
v.
Commissioner, Social Security Administration;
STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
Dear
Counsel:
On June
18, 2018, Plaintiff Geneva W. petitioned this Court to review
the Social Security Administration's
(“SSA's”) final decision to deny her claim
for Supplemental Security Income. ECF 1. I have considered
the parties' cross-motions for summary judgment, and
Plaintiff's reply. ECF 17, 21, 22. 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 July 5, 2013,
alleging an onset date of April 14,
2010.[1] Tr. 268-75. Her claim was denied initially
and on reconsideration. Tr. 91-94, 103-04. A hearing was held
on December 14, 2016, before an Administrative Law Judge
(“ALJ”). Tr. 12-44. 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. 73-85. The Appeals Council declined
Plaintiff's request for review, Tr. 2-8, so the ALJ's
decision constitutes the final, reviewable decision of the
SSA.
The ALJ
found that, during the relevant time frame, Plaintiff
suffered from the severe impairments of “major
depressive disorder, recurrent with anxiety; diabetes
mellitus type 2; lumbar degenerative disc disease;
osteoarthritis of the knees; and plantar fasciitis.”
Tr. 75. Despite these impairments, the ALJ determined that
Plaintiff retained the residual functional capacity
(“RFC”) to:
perform light work as defined in 20 CFR 416.967(b) except
that she is further limited to: never balancing or climbing
ladders, ropes or scaffolds; occasional stooping, kneeling,
crouching, crawling, and climbing ramps or stairs; no
concentrated exposure to moving machinery and unprotected
heights; performing simple and routine tasks in a work
setting that does not involved [sic] production pace or
strict production quotas; and can have occasional contact
with the public and co-workers.
Tr. 79. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could perform jobs existing in significant numbers in the
national economy. Tr. 84. Therefore, the ALJ concluded that
Plaintiff was not disabled during the relevant time frame.
Tr. 84-85.
Plaintiff
raises two primary arguments on appeal: (1) that the
ALJ's RFC assessment was flawed and runs afoul of the
Fourth Circuit's decision in Mascio v. Colvin,
780 F.3d 632, 638 (4th Cir. 2015); and (2) that the ALJ erred
by failing to consider Plaintiff's injuries resulting
from a motor vehicle accident in 2015. I agree that the
ALJ's RFC assessment was inadequate, and I therefore
grant remand under sentence four of 42 U.S.C. § 405(g).
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 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).
Paragraph
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. §
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. §§ 416.920a(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. §
416.920a(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.
Plaintiff
cites the recent opinion of the Fourth Circuit in Thomas
v. Berryhill, 916 F.3d 307 (4th Cir. 2019) for the
proposition that remand is warranted where a limitation
proposed by the ALJ in her hypothetical limitation is not
defined by common meaning, regulation, or the DOT. ECF 17-2
at 15-16. In Thomas, the Fourth Circuit remanded, in
relevant part, because the ALJ's failure to define the
terms “production rate or demand pace” frustrated
appellate review, making “it difficult, if not
impossible, for [the court] to assess whether their inclusion
in Thomas's RFC is supported by substantial
evidence.” 916 F.3d at 312.
Here,
if the ALJ accounted for Plaintiff's moderate limitations
in concentration, persistence, or pace at all, it was with
the RFC limitation to “a work setting that does not
involve[] production pace or strict production quotas.”
Tr. 79. The ALJ did not elaborate on the meaning of that
limitation. Plaintiff argues that the ALJ's failure to
define that limitation in the RFC failed to satisfy
Mascio, and undermined the ALJ's finding at step
five. The SSA responds with at least four arguments: (1) that
the phrase “production rate pace, ” is, in fact,
discussed in the Dictionary of Occupational Titles
(“DOT”); (2) that the ALJ's use of the word
“strict” in the limitation distinguishes the RFC
from that in Thomas; (3) that the VE did not express
any confusion about the ALJ's hypothetical that would
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