United States District Court, D. Maryland
Marsha T.
v.
Commissioner, Social Security Administration
Dear
Plaintiff and Counsel:
On
January 2, 2019, Plaintiff Marsha T., who appears pro
se, 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 SSA's Motion for Summary Judgment, in
addition to arguments made by Plaintiff's prior attorney
during her administrative hearing.[1] ECF 18; Tr. 282-84. 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 the SSA's motion and remand the case to the SSA for
further evaluation pursuant to sentence four of 42 U.S.C.
§ 405(g). This letter explains my rationale.
Plaintiff
protectively filed her claim for benefits on November 19,
2014, alleging a disability onset date of March 1, 2014. Tr.
158-63. Her claim was denied initially and on
reconsideration. Tr. 85-88, 92-93. A hearing, at which
Plaintiff was represented by counsel, was held on July 26,
2017, before an Administrative Law Judge (“ALJ”).
Tr. 38-60. Following that hearing, the ALJ determined that
Plaintiff was not disabled within the meaning of the Social
Security Act during the relevant time frame. Tr. 10-19. 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
“osteoarthritis, obesity, and depression.” Tr.
12. Despite these impairments, the ALJ determined that
Plaintiff retained the residual functional capacity
(“RFC”) to:
perform sedentary work as defined in 20 CFR 416.967(a),
except the claimant cannot climb and can only occasionally
stoop or squat, but never crawl. The claimant can
occasionally push and pull with the lower extremities, and is
limited to the performance of only simple, repetitive,
non-production job tasks.
Tr. 14. The ALJ determined that Plaintiff had no past
relevant work. Tr. 18. After considering the testimony of a
vocational expert (“VE”), the ALJ determined that
Plaintiff could perform other jobs existing in significant
numbers in the national economy. Tr. 18-19. Accordingly, the
ALJ concluded that Plaintiff was not disabled. Tr. 19.
I have
carefully reviewed the ALJ's opinion and the entire
record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753
(E.D. Tex. 2005) (mapping an analytical framework for
judicial review of a pro se action challenging an
adverse administrative decision, including: (1) examining
whether the SSA's decision generally comports with
regulations, (2) reviewing the ALJ's critical findings
for compliance with the law, and (3) determining from the
evidentiary record whether substantial evidence supports the
ALJ's findings).
The ALJ
proceeded in accordance with applicable law at the first two
steps of the sequential evaluation. The ALJ ruled in
Plaintiff's favor at step one, and determined that she
had not engaged in substantial gainful activity since her
application date. Tr. 12; see 20 C.F.R. §
416.920(a)(4)(i). At step two, the ALJ then considered the
severity of each of the impairments that Plaintiff claimed
prevented her from working, finding each impairment to be
severe. See Tr. 12; 20 C.F.R. §
416.920(a)(4)(ii).
At step
three, the ALJ determined that Plaintiff's impairments
did not meet or medically equal the criteria of any listings.
Tr. 12-14. In particular, the ALJ identified and
considered Listings 1.00 (musculoskeletal system) and 12.04
(depressive, bipolar, and related disorders). The ALJ also
considered Plaintiff's obesity under SSR 02-1p. With
respect to the musculoskeletal system and obesity, the ALJ
summarily concluded that Plaintiff's impairments are
insufficient to meet the requirements of any listing. Tr.
12-13.
As for
Listing 12.04, the ALJ had to apply the special technique
applicable to mental impairments. See 20 C.F.R. Pt.
404, Subpt. P, App'x 1 § 12.00 (2018). The technique
requires analysis 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 impairment meets Listing 12.04 by satisfying
either the paragraph A and paragraph B criteria, or the
paragraph A and paragraph C criteria. Id. §
12.00(A)(2). 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 SSA uses a
five-point scale to rate a claimant's degree of
limitation in the four areas: none, mild, moderate, marked,
or extreme. 20 C.F.R. § 416.920a(c)(4). A claimant must
show extreme limitation in one area, or marked limitation in
two areas, to be deemed to have met the paragraph B criteria.
20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.04(B)
(2018).
Here,
the ALJ assigned a rating to the “paragraph B
criteria” (“moderate” limitation with
regard to Plaintiff's ability to concentrate, persist, or
maintain pace, and a “mild” limitation in the
other functional areas), but his explanation was noticeably
lacking. The ALJ cited to the testimonies of Plaintiff and
Plaintiff's fiancé, and the report of consultative
examiner, Dr. Harkhani. Tr. 13-14. However, the ALJ failed to
mention or discuss the medical opinion of Plaintiff's
treating physician, Dr. Bautista. See Tr. 1082-83
(noting that Plaintiff's mental impairments markedly
limit her abilities in all four functional areas). In
Patterson v. Comm'r, Soc. Sec. Admin., 846 F.3d
656, 662 (4th Cir. 2017), the Fourth Circuit reasoned that
the ALJ's failure to use the “special
technique” was not harmless error where the ALJ
“did not address conflicting evidence, or explain away
contrary findings of other doctors in a comprehensive
manner.” Such a failure hinders judicial review.
Id.
The ALJ
continued with the sequential evaluation and considered, in
assessing Plaintiff's RFC, the extent to which her
impairments limited her ability to work. Tr. 14-18. In
considering Plaintiff's RFC, the ALJ summarized
Plaintiff's subjective complaints from her hearing
testimony. Tr. 15-17. The ALJ also reviewed, and gave
“some weight” to, the opinions of consultative
examiners, Drs. Fridman and Harkhani. Tr. 16-19. The ALJ
acknowledged that Plaintiff's treating physician, Dr.
Bautista, opined that Plaintiff was markedly limited in all
areas of mental functioning, although the ALJ assigned only
“little weight” to her opinion. Tr. 18. For
support, the ALJ cited to Plaintiff's “activities
of daily living, including assisting her fiancé with
his business.” Tr. 18.[2]
The
fatal flaw in the ALJ's reasoning lies in the dictates of
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). In
that case, 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.
Id. at 638. That 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.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1 §
12.00(E)(3) (2018). Social Security regulations do not define
marked limitations in concentration, persistence, or pace
“by a specific number of tasks that [a claimant is]
unable to complete.” Id. The regulations,
however offer little guidance on the meaning of
“moderate” limitations in the area of
concentration, persistence, or pace.
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 ...