McGuinness v. Colvin

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/29/14. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

LOWELL McGUINNESS,

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Plaintiff,
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v.
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*
CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant.
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************

Civil No. TMD 13-1573

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Lowell McGuinness (“Plaintiff”) seeks judicial review under 42 U.S.C. §§ 405(g) and
1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his applications for disability insurance benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment or Alternative Motion for
Remand (ECF No. 15) and Defendant’s Motion for Summary Judgment (ECF No. 17).1 Plaintiff
contends that the administrative record does not contain substantial evidence to support the
Commissioner’s decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the
reasons that follow, Plaintiff’s Alternative Motion for Remand (ECF No. 15) is GRANTED.

1

The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.

I
Background
Plaintiff was born in 1964, has an eighth- or ninth-grade education, and previously
worked as a laborer. R. at 58, 80, 205. Plaintiff applied protectively for DIB and SSI on May
22, 2009, alleging disability beginning on January 1, 2004, due to endocarditis, hepatitis C,
anemia, intravenous drug abuse, pneumonia, and an inability to read and write well. R. at 17582, 196, 201.

The Commissioner denied Plaintiff’s applications initially and again on

reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). R. at 103-06, 108-15, 119-24. On June 17, 2011, ALJ Frances Kuperman held a
hearing in Baltimore, Maryland, at which Plaintiff and a vocational expert (“VE”) testified. R. at
68-102. On March 28, 2012, the ALJ issued a decision finding Plaintiff not disabled since the
alleged onset date of disability of January 1, 2004. R. at 50-67. Plaintiff sought review of this
decision by the Appeals Council, which denied Plaintiff’s request for review on May 3, 2013. R.
at 1-6, 24-47. The ALJ’s decision thus became the final decision of the Commissioner. See 20
C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080,
2083 (2000).
On May 31, 2013, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.

The case subsequently was

reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.

2

II
Summary of Evidence
A.

State Agency Medical Consultants
On September 17, 2009, L. Robbins, M.D., a state agency medical consultant, assessed

Plaintiff’s physical residual functional capacity (“RFC”). R. at 573-80. Dr. Robbins opined that
Plaintiff could (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand
and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in
an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 574. Plaintiff
occasionally could climb, balance, stoop, kneel, crouch, and crawl. R. at 575. Plaintiff had no
manipulative, visual, communicative, or environmental limitations. R. at 576-77. Dr. Robbins
found that Plaintiff’s “statements regarding his limitations are judged partially credible. The
medical evidence does not suggest he has difficulty getting around, OR that he is in pain. So
these complaints are not substantiated.” R. at 578.
On December 4, 2009, S. Boyer, Ph.D., evaluated on a psychiatric review technique form
(“PRTF”) Plaintiff’s mental impairments under paragraph B of Listings 12.02 and 12.09 relating
to organic mental disorders and substance addiction disorders. R. at 593-606. Dr. Boyer opined
that Plaintiff’s mental impairments of learning disorder, not otherwise specified; borderline
intellectual functioning; opioid dependence; cocaine abuse; and alcohol abuse caused him to
experience (1) mild restriction in activities of daily living; (2) moderate difficulties in
maintaining social functioning; (3) moderate difficulties in maintaining concentration,
persistence, or pace; and (4) one or two episodes of decompensation of extended duration. R. at
594, 601, 603. Dr. Boyer did not find evidence to establish the presence of the criteria under
paragraph C of these Listings. R. at 604. Accordingly, Dr. Boyer assessed Plaintiff’s mental

3

RFC (R. at 589-92) and opined that he was moderately limited in his ability to (1) understand,
remember, and carry out detailed instructions; (2) maintain attention and concentration for
extended periods; (3) perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances; (4) make simple work-related decisions; (5) complete a
normal workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest periods;
(6) interact appropriately with the general public; (7) accept instructions and respond
appropriately to criticism from supervisors; (8) get along with co-workers or peers without
distracting them or exhibiting behavioral extremes; (9) maintain socially appropriate behavior
and to adhere to basic standards of neatness and cleanliness; (10) respond appropriately to
changes in the work setting; and to (11) set realistic goals or make plans independently of others.
Plaintiff otherwise was not significantly limited. R. at 589-90. Dr. Boyer’s RFC assessment
thus provided:
[Plaintiff] has mild limitations in performing [activities of daily living].
Trouble sleeping due to pain, dressing difficulty (bending/lifting arms), can’t get
in & out of bath tub, needs reminders to care for personal hygiene, doesn’t
prepare meals because he can’t remember how, no chores, goes out daily, drives,
shops in stores for food [two times a week], able to pay bills & count change,
doesn’t have accounts, watches tv, doesn’t spend time [with] others.
[Plaintiff] has moderate restrictions in social functioning. Limited
knowledge of social norms and substance abuse may diminish his social
interaction and adaptation.
[Plaintiff] has moderate restrictions in concentration, pace and persistence.
Able to understand and follow simple instructions independently. Generally
functioning in the Borderline range of intelligence. Exhibited weakness in
spelling and reading and a relative strength in math. [Plaintiff] has a [history] of
poor judgment and may function best with tasks that require little or no
independent decision making.
Title II: Insufficient Evidence prior to [date last insured] of 03/31/2005.

4

R. at 591.
On July 13, 2010, another state agency medical consultant, P.H. Moore, M.D., again
assessed Plaintiff’s physical RFC. R. at 631-38. Dr. Moore opined that Plaintiff could (1) lift
and/or carry 20 pounds occasionally; (2) stand and/or walk for a total of about six hours in an
eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform
unlimited pushing and/or pulling. R. at 632. Dr. Moore also opined that Plaintiff occasionally
could climb, balance, stoop, kneel, crouch, and crawl, but had no manipulative, visual,
communicative, or environmental limitations. R. at 633-35.
B.

VE Testimony
The VE opined that Plaintiff was functionally literate. R. at 99. According to the VE,

Plaintiff’s past work as a laborer ranged from unskilled to semi-skilled and from heavy to very
heavy.2 R. at 98. A hypothetical person of Plaintiff’s same age, education, and work experience
limited to light,3 unskilled, routine, and repetitive work with limited contact with people could
work as a housekeeper or laundry worker. R. at 98. Sedentary4 jobs available to someone with a
sedentary RFC but further limited to unskilled, routine, and repetitive work with limited contact
with people included work as a packer or inspector. R. at 101. An inability to bend, along with
2

“Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds.” 20 C.F.R. §§ 404.1567(d), 416.967(d). “Very
heavy work involves lifting objects weighing more than 100 pounds at a time with frequent
lifting or carrying of objects weighing 50 pounds or more.” Id. §§ 404.1567(e), 416.967(e).
3

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Even though the
weight lifted may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and pulling of arm or
leg controls.” Id.
4

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. §§ 404.1567(a),
416.967(a).
5

the ability to sit for only two hours and stand for only two hours in a day, would not be
consistent with competitive employment. R. at 101.
III
Summary of ALJ’s Decision
On March 28, 2012, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of January 1, 2004; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform his past relevant work; but (5) could
perform other work in the national economy, such as a housekeeper or laundry worker. R. at 5563. The ALJ accordingly found that he was not disabled from January 1, 2004, through the date
of the decision. R. at 63.
In so finding, the ALJ found that Plaintiff’s hepatitis C with elevated liver enzymes,
obesity, intravenous heroin drug abuse, borderline intellectual functioning, and extremely low
reading abilities were severe impairments. R. at 56. The ALJ then found:
[Plaintiff’s] mental impairments, including the substance use disorder, do
not meet or medically equal the requirements of listings 12.05, or 12.09. Before
even turning to the criteria of paragraphs A through D, I must look at whether
there is significantly sub-average general intellectual functioning with deficits in
adaptive functioning that initially manifested during the developmental period;
i.e., the evidence demonstrates or supports onset of the impairment before age 22.
There is no IQ testing of record performed before [Plaintiff] was age 22.
Though [Plaintiff] only has an eighth grade education, he was not in Special
Education in school. Additionally, he testified that he quit school in order to help
his mother because his father was an “abusive drunk.” [Plaintiff] was sent for IQ
testing with Melinda B. Stein, Ph.D. on November 2, 2009, at the age of
45. . . . Though [Plaintiff] denied heroin use on the November 2, 2009 test date,
his credibility with respect to his heroin use is suspect. Furthermore, it is clear
6

that he was actively using heroin and alcohol at the time of the testing, whether it
was actually used on the day of the testing or not. The results of WAIS-III IQ
testing was as follows: Verbal IQ of 73; Performance IQ of 74; and, Full Scale IQ
of 60. Dr. Stein diagnosed [Plaintiff] with borderline intellectual functioning and
learning disorder. . . .
In light of [Plaintiff’s] ongoing substance abuse, I find that the Full Scale
IQ of 60, in particular, is not a reliable indication of his functioning when
substance free. It is quite possible that [Plaintiff’s] IQ scores, as well as his
reading ability, increase significantly when he is substance free for an extended
period of time. In light of the fact that [Plaintiff] did not have any Special
Education in school, I find it unlikely that [Plaintiff’s] mental retardation
manifested before the age of 22. Therefore, Listing 12.05 cannot be met.
R. at 56-57; see R. at 581-88.
The ALJ further found that Plaintiff had the RFC “to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that he is further limited to: repetitive, routine,
unskilled work; limited contact with people; and, he cannot reliably work eight hours a day, forty
hours a week.” R. at 57. The ALJ also found that, if he stopped substance use, Plaintiff would
continue to have a severe impairment or combination of impairments, but that “the remaining
mental limitations would not meet the requirements of Listing 12.05, for the same reason Listing
12.05 is not met with substance use.” R. at 59. The ALJ found that, if Plaintiff stopped
substance use, he would have the RFC to perform light work further limited to occasional
bending, stooping, climbing, balancing, and kneeling; repetitive, routine, and unskilled work;
and no more than occasional contact with people. R. at 59.
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period

7

of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.

§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”

42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work

8

activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).5
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),

416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).

The claimant is responsible for providing evidence the

Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”

20 C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
5

The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
9

evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.

Id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.

See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42

10

U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Plaintiff maintains that the ALJ failed to follow the special technique (the psychiatric
review technique or “PRT”) outlined in 20 C.F.R. §§ 404.1520a and 416.920a for evaluating
mental impairments at steps two and three of the sequential evaluation process. Pl.’s Mem.
Supp. Mot. Summ. J. 8, ECF No. 15-1. The Commissioner asserts that the ALJ’s error was
harmless. Def.’s Mem. Supp. Mot. Summ. J. 13-21, ECF No. 17-1. As discussed further below,
the Court does not find the error to be harmless and remands this case for further proceedings.
In addition to the five-step analysis discussed above in Part IV and outlined in 20 C.F.R.
§§ 404.1520 and 416.920, the Commissioner has promulgated additional regulations governing
evaluations of the severity of mental impairments. 20 C.F.R. §§ 404.1520a, 416.920a. These

11

regulations require application of the PRT at the second and third steps of the five-step
framework, Schmidt v. Astrue, 496 F.3d 833, 844 n.4 (7th Cir. 2007), and at each level of
administrative review. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). This technique requires the
reviewing authority to determine first whether the claimant has a “medically determinable mental
impairment.” Id. §§ 404.1520a(b)(1), 416.920a(b)(1). If the claimant is found to have such an
impairment, then the reviewing authority must “rate the degree of functional limitation resulting
from the impairment(s) in accordance with paragraph (c),” id. §§ 404.1520a(b)(2),
416.920a(b)(2), which specifies four broad functional areas: (1) activities of daily living;
(2) social

functioning;

(3) concentration,

persistence,

or

pace;

and

(4) episodes

of

decompensation. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). According to the regulations, if the
degree of limitation in each of the first three areas is rated “mild” or better, and no episodes of
decompensation are identified, then the reviewing authority generally will conclude that the
claimant’s mental impairment is not “severe” and will deny benefits. Id. §§ 404.1520a(d)(1),
416.920a(d)(1). If the claimant’s mental impairment is severe, then the reviewing authority will
first compare the relevant medical findings and the functional limitation ratings to the criteria of
listed mental disorders in order to determine whether the impairment meets or is equivalent in
severity to any listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). If so, then the
claimant will be found to be disabled. If not, the reviewing authority will then assess the
claimant’s RFC. Id. §§ 404.1520a(d)(3), 416.920a(d)(3).
When a claimant has presented a colorable claim of mental impairment, the ALJ is
required “to complete a PRTF and append it to the decision, or incorporate its mode of analysis
into his findings and conclusions. Failure to do so requires remand.” Keyser v. Comm’r Soc.
Sec. Admin., 648 F.3d 721, 726 (9th Cir. 2011) (quoting Moore v. Barnhart, 405 F.3d 1208, 1214

12

(11th Cir. 2005) (per curiam)); see 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4). “The ALJ’s
decision must show the significant history and medical findings considered and must include a
specific finding as to the degree of limitation in each of the four functional areas.” Felton-Miller
v. Astrue, 459 F. App’x 226, 231 (4th Cir. 2011) (per curiam) (citing 20 C.F.R.
§§ 404.1520a(e)(4), 416.920a(e)(4)). “In other words, the regulations contemplate that written
decisions at the ALJ and Appeals Council levels should contain a ‘narrative rationale,’ instead of
the ‘checklist of . . . conclusions’ found in a PRTF.” Keyser, 648 F.3d at 725 (alteration in
original).
With regard to the four functional areas, which correspond to the paragraph B criteria of
the listings for mental disorders, “[a]ctivities of daily living include adaptive activities such as
cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence,
caring appropriately for [the claimant’s] grooming and hygiene, using telephones and directories,
and using a post office.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(1). “In the context of
[the claimant’s] overall situation, [the Commissioner assesses] the quality of these activities by
their independence, appropriateness, effectiveness, and sustainability. [The Commissioner] will
determine the extent to which [the claimant is] capable of initiating and participating in activities
independent of supervision or direction.” Id. Moreover, “[s]ocial functioning refers to [the
claimant’s] capacity to interact independently, appropriately, effectively, and on a sustained basis
with other individuals. Social functioning includes the ability to get along with others, such as
family members, friends, neighbors, grocery clerks, landlords, or bus drivers.” Id. § 12.00(C)(2).
Further, “[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. § 12.00(C)(3).

13

“On mental status examinations,

concentration is assessed by tasks such as having [the claimant] subtract serial sevens or serial
threes from 100. In psychological tests of intelligence or memory, concentration is assessed
through tasks requiring short-term memory or through tasks that must be completed within
established time limits.”

Id.

Finally, “[e]pisodes of decompensation are exacerbations or

temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace.” Id. § 12.00(C)(4). “Episodes
of decompensation may be demonstrated by an exacerbation in symptoms or signs that would
ordinarily require increased treatment or a less stressful situation (or a combination of the two).”
Id. Episodes of decompensation may be inferred from “medical records showing significant
alteration in medication; or documentation of the need for a more structured psychological
support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and
directing household); or other relevant information in the record about the existence, severity,
and duration of the episode.” Id. “The term repeated episodes of decompensation, each of
extended duration in these listings means three episodes within 1 year, or an average of once
every 4 months, each lasting for at least 2 weeks.” Id.
Here, the Commissioner contends that the ALJ’s error in failing to apply the PRT in this
case at steps two and three of the sequential evaluation process was harmless because the ALJ’s
evaluation of Plaintiff’s impairments fulfilled the purposes of the technique and because the
Court can readily determine the reasons for the ALJ’s decision. Def.’s Mem. Supp. Mot. Summ.
J. 14, ECF No. 17-1. However, “[b]ecause the ALJ’s decision lacks consideration of these
factors and their impact on [her] ultimate conclusion as to [Plaintiff’s] RFC, [the Court] cannot
even evaluate the Commissioner’s contention that the ALJ’s error was harmless.” Moore, 405

14

F.3d at 1214; accord Cuthrell v. Astrue, 702 F.3d 1114, 1118 (8th Cir. 2013) (“Here, the ALJ
specifically found that [the claimant] has the severe impairment of a closed-head injury, with
symptoms that are (as discussed) mental in nature. Given that finding, the ALJ’s failure to
complete the PRT is not harmless.”); Kohler v. Astrue, 546 F.3d 260, 267 (2d Cir. 2008)
(Sotomayor, J.) (“Effective review by this Court is frustrated by the [ALJ’s] decision’s failure to
adhere to the regulations.”); Craft v. Astrue, 539 F.3d 668, 675 (7th Cir. 2008); Owens v. Astrue,
No. PWG-09-899, 2011 WL 1135759, at *2-3 (D. Md. Mar. 24, 2011) (determining that ALJ’s
failure at step two to document application of criteria in 20 C.F.R. § 416.920a warranted
remand); cf. Felton-Miller, 459 F. App’x at 231 (“The ALJ concluded that [the claimant’s]
depressive disorder was a severe impairment at step two of the sequential process without
discussion of the special technique. At step three, the ALJ listed the four functional areas and
analyzed the impact of [the claimant’s] depressive disorder on these areas.

The decision

discusses the medical records relevant to [the claimant’s] treatment for depression in assessing
her mental RFC. We conclude that the ALJ assessed [the claimant’s] mental RFC in accordance
with regulations.” (emphasis added)). But see Pepper v. Colvin, 712 F.3d 351, 365-67 (7th Cir.
2013) (under some circumstances, failure to use explicitly special technique may be harmless
error); Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 657 (6th Cir. 2009) (holding that “the
special technique of § 404.1520a does not confer such an ‘important procedural safeguard’ upon
claimants that an ALJ’s failure to rate the B criteria will rarely be harmless”). Remand in this
case for the ALJ to apply the PRT in 20 C.F.R. §§ 404.1520a and 416.920a accordingly is
warranted.
The Commissioner contends, however, that Baker v. Chater, 957 F. Supp. 75 (D. Md.
1996), is persuasive and applicable here. In Baker, this Court addressed whether the ALJ’s

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failure to submit a PRTF under the regulations then in force would necessarily constitute
reversible error if it were clear from the ALJ’s decision that the ALJ had evaluated the
impairment properly. Baker, 957 F. Supp. at 79. In that case, the ALJ considered the claimant’s
alleged impairments of chronic alcoholism and depression, but found that no mental impairment
was involved. Id. at 79-80. Accordingly, this Court found that completing a PRTF would have
been an unnecessary formality. Id. at 80. By contrast, the ALJ in this case found that Plaintiff’s
impairments, including his borderline intellectual functioning, were severe but neither met nor
equaled a listed impairment. R. at 56-57, 59. The Commissioner’s reliance on Baker thus is
unavailing.
Despite the Commissioner’s arguments, the Court “may not create or adopt post-hoc
rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision
itself.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). In other words, “[l]ongstanding principles of administrative law require [the Court] to review the ALJ’s decision based
on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that
attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1225 (9th Cir. 2009); see Ai Hua Chen v. Holder, 742 F.3d 171, 180 (4th
Cir. 2014) (reviewing court must judge propriety of agency action solely by grounds invoked by
agency). Rather, “[t]he ALJ must accompany [her] decision with sufficient explanation to allow
a reviewing Court to determine whether the Commissioner’s decision is supported by substantial
evidence.” Wiley v. Astrue, Civil Action No. 1:07-00221, 2008 WL 4446679, at *6 (S.D.W. Va.
Sept. 26, 2008). “[T]he [Commissioner] is required by both the Social Security Act, 42 U.S.C.
§ 405(b), and the Administrative Procedure Act, 5 U.S.C. § 557(c), to include in the text of her
decision a statement of the reasons for that decision.” Cook v. Heckler, 783 F.2d 1168, 1172 (4th

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Cir. 1986). The ALJ’s decision “should refer specifically to the evidence informing the ALJ’s
conclusion.

This duty of explanation is always an important aspect of the administrative

charge . . . .” Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985) (per curiam). The duty of
explanation is satisfied “[i]f a reviewing court can discern ‘what the ALJ did and why [she] did
it.’” Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999). For these
reasons, the Court remands this case for the ALJ to comply with 20 C.F.R. §§ 404.1520a and
416.920a. Because the Court concludes that the ALJ committed an error of law, the Court does
not address Plaintiff’s remaining arguments. See Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d
337, 342 n.3 (4th Cir. 2012) (holding that ALJ committed legal error and accordingly declining
to address ALJ’s credibility findings or likely weight of evidence on remand).
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 17) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. Plaintiff’s
Alternative Motion for Remand (ECF No. 15) is GRANTED. A separate order shall issue.

Date: September 29, 2014

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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