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Sherah F. v. Berryhill

United States District Court, D. Maryland, Southern Division

October 30, 2019

SHERAH F., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration Defendant.

          MEMORANDUM OPINION

          Charles B. Day United States Magistrate Judge

         Presently before the Court is Defendant's Motion to Alter or Amend Judgment (“Defendant's Motion”) (ECF No. 22). The Court has reviewed the related memoranda, and the applicable law. No. hearing is deemed necessary. Local Rule. 105.6 (D. Md.). For the reasons set forth below, the Court DENIES Defendant's Motion.

         I. Legal Analysis

         Defendant seeks relief pursuant to Fed.R.Civ.P. 59(e) to correct “clear errors of law in the Court's June 27, 2019 order.” Def.'s Mem. in Support, 1-2. The Court does not agree with Defendant's notion of error, A. The Requirements of the “Special Technique” Were Not Satisfied.

         Defendant contends that the ALJ fully complied with the regulations and associated case law in his application of the “special technique” for evaluating mental impairments. The Court determined otherwise.

The regulations require documentation and support for the ALJ's decision, including but not limited to the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described [elsewhere in the regulation].

20 C.F.R. § 404.1520a(e)(4).

         Plaintiff argued, and the Court agreed, that more explanation is required to satisfy the regulations. Here is the full extent of the ALJ's justification.

[Plaintiff] has moderate limitations. [Plaintiff] contended that she has limitations in concentrating generally and focusing generally. On the other hand, [Plaintiff] said that she is able to prepare meals, read, manage funds, handle her own medical care, and attend church. Additionally, the record fails to show any mention of distractibility or inability to complete testing that assesses concentration and attention.

R. 19. As stated in the Court's original Memorandum Opinion, (ECF 20), this language has been rejected by this Court. See Brocato v. Comm'r, Soc. Sec. Admin., Civ. No. SAG-16-2540, 2017 WL 3084382 (D. Md. July 19, 2017). The similarity between Brocato and the present case is remarkable. The Court in Brocato set forth the entirety of the ALJ's comments that were under review, namely the

Consultative examiner Dr. Cascella indicated that [Ms. Brocato] was able to understand and follow simple instructions, and she scored 26 of 30 on a mini mental status examination. She complained of trouble concentrating, but the record does not demonstrate objective signs of concentration or memory problems. She testified that she cannot do two things at once but can do one thing at a time.

Brocato, at *3. The Court in Brocato described the ALJ's analysis as “cursory.” Here, facing very similar abbreviated factual support, the Court used the term “brief, ” a term that is arguably less condemning but at a minimum equates to the “cursory” label used by this Court previously. Brocato stated that the “finding of ‘moderate difficulties' was based exclusively on Ms. Brocato's reported issues in concentration, since the remaining sentences in the analysis would suggest mild or no limitations.” Id. There is even less evidence in the present case to support a finding a “moderate difficulties” if the Court excludes Plaintiff's self-reported issues. There is no objective evidence in the record to support the ALJ's finding.

         As stated in Brocato, the Court here concludes that without further explanation it is impossible to determine whether the ALJ truly believed Plaintiff to have moderate difficulties, instead of mild or no difficulties, and “how those difficulties restrict her RFC.” Id. Such an explanation is required to satisfy the standard set forth by the Fourth Circuit in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015).

         Similarly, as in Miles v. Comm'r, Soc. Sec. Admin., Civ. No. SAG-16-1397, 2016 WL 6901985 (D. Md. Nov. 23, 2016), “it appears that the ALJ largely discredits” Plaintiff's “reports of difficulty with attention and concentration.” Id. at *2. Here, the ALJ merely states that the record “fails to show any mention of distractibility or inability to complete testing that assesses concentration and attention.” R. 19. Arguing from silence is of no help. More explanation is required for this Court to assess the compliance with the statute ...


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