United States District Court, D. Maryland
Commissioner, Social Security Administration;
Stephanie A. Gallagher, United States Magistrate Judge.
August 6, 2018, Plaintiff petitioned this Court to review the
Social Security Administration's
(“SSA's”) final decision to deny his claim
for Supplemental Security Income. ECF 1. I have considered
the parties' cross-motions for summary judgment, and
Plaintiff's reply. ECF 16-18. 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.
filed his claim for benefits on July 3, 2014, alleging an
onset date of December 31, 2013. Tr. 311-16. His claim was
denied initially and on reconsideration. Tr. 151-54, 157-58.
A hearing was held on October 12, 2017, before an
Administrative Law Judge (“ALJ”). Tr. 56-122.
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. 9-35. The Appeals Council
declined review, Tr. 1-6, so the ALJ's decision
constitutes the final, reviewable decision of the SSA.
found that, during the relevant time frame, Plaintiff
suffered from the severe impairments of “status-post
brain injury with residual chronic pain, migraine headaches,
borderline intellectual functioning, post-traumatic stress
disorder, anxiety, depression, and substance abuse.”
Tr. 15. Despite these impairments, the ALJ determined that
Plaintiff retained the residual functional capacity
perform light work as defined in 20 CFR 416.967(b) except he
frequently can climb ramps and stairs, but he never can climb
ladders, ropes, or scaffolds; and he frequently can stoop,
kneel, crouch, crawl, and balance on uneven surfaces. The
claimant can perform simple, routine, and repetitive tasks
with one- or two-step instructions; he can perform
production-oriented work that requires little independent
decision-making; he can have occasional interaction with
supervisors, coworkers, and the public; and he can have few
changes in the routine work setting. Time off-task can be
accommodated by normal breaks.
Tr. 17. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could perform his past relevant work as a
cleaner-housekeeper. Tr. 27. The ALJ made an alternative
finding that Plaintiff could perform other jobs existing in
significant numbers in the national economy. Tr. 28.
Therefore, the ALJ concluded that Plaintiff was not disabled
during the relevant time frame. Tr. 29.
makes two arguments on appeal: (1) that the ALJ's
analysis of Plaintiff's limitations in concentration,
persistence, or pace 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's
conclusions at steps four and five were not supported by
substantial evidence, because the hypothetical posed to the
VE was flawed under the Fourth Circuit's decision in
Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir.
2019). I agree that the ALJ opinion did not comport with
either Mascio or Thomas, and I therefore
remand the case for further analysis. In remanding for
further explanation, I express no opinion as to whether the
ALJ's ultimate conclusion that Plaintiff was not entitled
to benefits is correct.
Plaintiff argues that the ALJ's RFC analysis of
Plaintiff's limitations in concentration, persistence, or
pace failed to comply with the requirements of Mascio v.
Colvin, 780 F.3d 632, 638 (4th Cir. 2015). 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 (2018).
Listings 12.00 et seq. pertain to mental
impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00
(2018). 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.
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. §
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), 416.920a(b), (c)(2) (2018). 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)
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.
instant case, the ALJ found that Plaintiff had moderate
difficulties maintaining concentration, persistence, or pace.
Tr. 16. The ALJ's analysis stated:
With regard to concentrating, persisting, or maintaining
pace, the claimant has a moderate limitation. The claimant
alleges poor concentration. However, he enjoys reading and
playing videogames online. Concentration was fair during his
second consultative examination. He did not miss any points
on the attention and calculation sections during his first