Talmo v. Colvin

Filing 23

REPORT AND RECOMMENDATIONS re 20 MOTION for Summary Judgment filed by Carolyn W. Colvin, 19 MOTION for Summary Judgment filed by Frank Talmo. Signed by Magistrate Judge Stephanie A Gallagher on 5/19/2015. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FRANK TALMO

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v.
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COMMISSIONER, SOCIAL SECURITY
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Civil Case No. ELH-14-2214

REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014–01, the above-captioned case has been referred to me to
review the parties’ dispositive motions and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ cross-motions for
summary judgment, and the Commissioner’s supplemental brief in support of her motion. [ECF
Nos. 19, 20, 22]. I find that no hearing is necessary. Loc. R. 105.6 (D. Md. 2014). This Court
must uphold the decision of the agency if it is supported by substantial evidence and if the
agency employed proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). For the
reasons set forth below, I recommend that that the Court deny both motions, reverse the decision
of the Commissioner in part, and remand the case to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g).
Mr. Talmo filed applications for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on September 23, 2009. (Tr. 102-03, 264-77). His applications were
denied initially and on reconsideration. (Tr. 135-46). An Administrative Law Judge (“ALJ”)
held a hearing on September 26, 2011, at which Mr. Talmo was represented by counsel. (Tr. 66101). Following the hearing, the ALJ determined that Mr. Talmo was not disabled within the
meaning of the Social Security Act during the relevant time frame. (Tr. 106-28). The Appeals

Council (“AC”) remanded Mr. Talmo’s case for further consideration. (Tr. 129-32). A second
hearing was held on September 26, 2013, before the same ALJ, at which Mr. Talmo was
represented by the same counsel. (Tr. 36-65). Following the second hearing, the ALJ again
determined that Mr. Talmo was not disabled during the relevant time frame. (Tr. 12-35). The
AC denied Mr. Talmo’s request for review of the second hearing decision, (Tr. 6-11), so that
decision constitutes the final, reviewable decision of the agency.
The ALJ found that Mr. Talmo suffered from the severe impairments of osteoarthritis and
allied disorders including left elbow bursitis, bilateral knee osteoarthritis, degenerative disc
disease of the lumbar spine, bilateral carpal tunnel syndrome, obesity, and bipolar disorder. (Tr.
17). Despite these impairments, the ALJ determined that Mr. Talmo retained the residual
functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). He can
stand and/or walk 3 or more hours but less than 6 hours; he can sit 6 hours in a
given work day. He should be afforded a sit/stand option at his workstation. He
can stoop, crouch, crawl, squat, kneel, balance, and climb stairs only occasionally.
The use of either hand is limited to occasional, to accommodate his carpal tunnel
syndrome. His work should not require him to be exposed to concentrations of
cold, dust fumes, gases, or vibrations. Based on his testimony regarding
limitations in social functioning and concentration, and with his medications, he is
limited to SVP2 (entry level) or SVP 3 (semiskilled) work. However, he retains
the capacity to concentrate and pay attention, perform within a schedule, produce
an adequate amount of work, and limit breaks to times permitted, with some extra
effort on his part, and he retains the capacity to perform adequately in these
respects. He may experience some difficulty in interfacing with a supervisor, but
with some extra effort, he can do this. To limit social stress factors on the job, his
work should not require more than occasional contact with the general public.
(Tr. 19-20). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that Mr. Talmo could perform jobs existing in significant numbers in the national economy and
that, therefore, he was not disabled. (Tr. 25-26).

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I.

FUNCTIONAL LIMITATIONS BASED ON MR. TALMO’S DIFFICULTIES IN
CONCENTRATION, PERSISTENCE, OR PACE
On July 10, 2014, Mr. Talmo petitioned this Court to review the Social Security

Administration’s final decision to deny his claims. Mr. Talmo filed a Motion for Judgment on
the Pleadings on November 26, 2014, and the Commissioner filed a Motion for Summary
Judgment on February 9, 2015. On March 18, 2015, the United States Court of Appeals for the
Fourth Circuit issued a published opinion in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), a
Social Security appeal from the Eastern District of North Carolina.

The Fourth Circuit

determined that remand was appropriate in Mascio for three distinct reasons, one of which
appeared relevant to the analysis of this case. Accordingly, on March 24, 2014, the Court
afforded the Commissioner an additional 30 days to file a brief addressing the apparent Mascio
issue. [ECF No. 22].
Pertinent to this case, 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,1 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. Mascio, 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)) (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

1

In Mascio, the hypothetical the ALJ posed to the VE did not actually limit the claimant to unskilled work, and thus
did not match the ALJ’s RFC assessment. However, the VE indicated that all of the jobs cited in response to the
hypothetical involved “unskilled work” such that, in effect, the hypothetical matched the ALJ’s RFC assessment.

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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.
In this case, at step three of the sequential evaluation, the ALJ determined that, “with
regard to concentration, persistence or pace,” Mr. Talmo has “moderate difficulties.” (Tr. 19).
However, like in Mascio, neither the ALJ’s RFC assessment nor the hypothetical she posed to
the VE included any mental limitations that accounted for Mr. Talmo’s difficulties in
concentration, persistence, or pace. (Tr. 19-20, 60). Accordingly, unless the ALJ adequately
explained why Mr. Talmo’s moderate difficulties in concentration, persistence, or pace did not
translate into a limitation in his RFC, I must recommend that the Court remand the case to the
Commissioner for further analysis consistent with the Fourth Circuit’s mandate in Mascio.
In her supplemental brief on the issue, the Commissioner contends that “the ALJ
addressed Mr. Talmo’s ability to stay on task,” such that Mascio does not warrant remand.
Def.’s Supplemental Br. 2. In support of her argument, the Commissioner points to the ALJ’s
statement that Mr. Talmo “retains the capacity to concentrate and pay attention, perform within a
schedule, produce an adequate amount of work, and limit breaks to times permitted.” (Tr. 19).
Absent from the ALJ’s opinion, however, was any evidentiary support for her conclusions
regarding Mr. Talmo’s ability to perform tasks related to concentration, persistence, and pace.
The Commissioner claims that the ALJ’s reference to treatment notes documenting intact

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attention, concentration, and memory constituted adequate support for her conclusions.2
However, the issue in this case is not whether the record contains evidence that might support the
ALJ’s conclusions; it is whether the ALJ explained the apparent discrepancy between her step
three finding and her RFC assessment. The ALJ did not connect the treatment notes cited by the
Commissioner to that discrepancy, and I am unwilling to infer such a connection. Pursuant to
Mascio, once an ALJ has made a step three finding that a claimant suffers from moderate
difficulties in concentration, persistence, or pace, the ALJ must either include a corresponding
limitation in her RFC assessment, or explain why no such limitation is necessary. In this case,
the ALJ did neither, and I thus recommend that the Court remand the case to the Commissioner
for further consideration. In so recommending, I express no opinion as to whether the ALJ’s
ultimate decision that Mr. Talmo was not disabled was correct or incorrect.
II.

ARGUMENTS RAISED BY MR. TALMO
In his Motion for Judgment on the Pleadings, Mr. Talmo raises two primary arguments.

First, he contends that the ALJ erred in evaluating the medical opinion evidence. Second, he
claims that the ALJ erred in assessing the credibility of his subjective complaints. Because I am
recommending remand on other grounds, I need not determine whether either of Mr. Talmo’s
arguments merits remand standing alone. However, after reviewing the ALJ’s opinion, I agree
that the explanation she offered for her assignment of weight to various medical opinions is
deficient. After summarizing the content of several medical opinions, the ALJ assigned the
opinions “little weight” either because they were not supported by or were inconsistent with the
evidence in the medical record, or because they were internally inconsistent.
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(Tr. 22-24).

In support of her argument, the Commissioner also cites excerpts from a consultative examination to which the
ALJ expressly assigned “little weight.” Def. Supplemental Br. 3. I note that the ALJ could certainly cite a
consultative examination to explain why moderate difficulties in concentration, persistence, or pace did not translate
into functional limitations in a claimant’s RFC. It would be particularly inappropriate in this case, however, to infer
a connection between a report that the ALJ explicitly assigned “little weight,” and the ALJ’s decision to omit
functional limitations from her RFC assessment.

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However, the ALJ cited no specific evidence supporting her vague statements about the unsupportability of the opinions, nor did she refer to any evidence discussed elsewhere in her
opinion. To permit meaningful review, on remand, the ALJ should identify evidence which she
believes undermines a physician’s opinion before assigning it “little weight.”
III.

CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment [ECF No. 20];
2. the Court DENY Mr. Talmo’s Motion for Judgment on the Pleadings [ECF No. 19];
3. the Court REVERSE IN PART, due to inadequate analysis, the Commissioner’s

judgment pursuant to sentence four of 42 U.S.C. § 405(g);
4. the Court REMAND this case for further proceedings in accordance with this opinion;
and
5. the Court close this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
IV.

NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions and

recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.
Dated: May 19, 2015

/s/
Stephanie A. Gallagher
United States Magistrate Judge
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