Winkler v Commissioner, Social Security Administration

Filing 32

ORDER Denying 23 Motion for Summary Judgment; Denying 28 Motion for Summary Judgment; Reversing in Part the Commissioner's Judgment due to inadequate analysis. Signed by Magistrate Judge Stephanie A Gallagher on 7/2/2015. (bas, Deputy Clerk).

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

July 2, 2015
LETTER TO COUNSEL
RE:

Kim Mary Elizabeth Winkler v. Commissioner, Social Security Administration;
Civil No. SAG-14-2720

Dear Counsel:
On August 25, 2014, Plaintiff Kim Mary Elizabeth Winkler petitioned this Court to
review the Social Security Administration’s final decision to deny her claim for Supplemental
Security Income. [ECF No. 1]. I have considered the parties’ cross-motions for summary
judgment, the Commissioner’s supplemental brief in support of her motion, and Ms. Winkler’s
reply. [ECF Nos. 23, 28, 30, 31]. I find that no hearing is necessary. See 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. 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 parties’ motions, reverse the Commissioner’s judgment, and remand the case to the
Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). This
letter explains my rationale.
Ms. Winkler filed a claim for Supplemental Security Income (“SSI”) on December 21,
2010, alleging a disability onset date of November 10, 2004. (Tr. 166-74). Her claim was
denied initially and on reconsideration. (Tr. 121-24, 126-28). A hearing was held on September
5, 2012, before an Administrative Law Judge (“ALJ”). (Tr. 40-82). Following the hearing, the
ALJ determined that Ms. Winkler was not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 21-39). The Appeals Council denied Ms. Winkler’s request
for review, (Tr. 1-6), so the ALJ’s decision constitutes the final, reviewable decision of the
agency.
The ALJ found that Ms. Winkler suffered from the severe impairments of affective
disorder, degenerative disc disease of the lumbar and cervical spine, asthma, fibromyalgia, and
obesity. (Tr. 26). Despite these impairments, the ALJ determined that Ms. Winkler retained the
residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 416.967(a) involving lifting 10
pounds occasionally, less than 10 pounds frequently, standing and walking for 2
hours and sitting for about 6 hours in an 8-hour workday. The claimant can
perform each of the following postural activities occasionally: climbing
ramps/stairs, balancing, stooping, kneeling, crouching, crawling and climbing

Kim Mary Elizabeth Winkler v. Commissioner, Social Security Administration
Civil No. SAG-14-2720
June 2, 2015
Page 2

ladders, ropes or scaffolds. The claimant must avoid concentrated exposure to
hazards, extreme cold, heat, vibration, fumes, odors, dusts, gases and poor
ventilation. The claimant requires work, which involves routine, repetitive and
unskilled tasks with occasional face to face interaction and little or no changes in
the work setting.
(Tr. 29). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Winkler could perform jobs existing in significant numbers in the national economy and
that, therefore, she was not disabled. (Tr. 34-35).
On appeal, Ms. Winkler raised a single argument regarding the ALJ’s failure to consider
in combination her non-severe impairment of ulcerative colitis and her complaints of pain. Pl.
Mot. 9-13. Additionally, as addressed below, I have considered Ms. Winkler’s case under the
dictates of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), a Social Security appeal from the
Eastern District of North Carolina, and under the dictates of Social Security Ruling (“SSR”) 12–
2p, governing cases involving fibromyalgia.1 Because the ALJ’s evaluation of Ms. Winkler’s
“moderate limitation” in concentration, persistence, or pace was inadequate under Mascio, and
because the consideration of her fibromyalgia falls short of the analysis required by the relevant
SSR, remand is warranted. In so holding, I express no opinion as to whether the ALJ’s ultimate
determination that Ms. Winkler was not entitled to benefits was correct or incorrect.
As background, on March 18, 2015, while Ms. Winkler’s case remained pending, the
United States Court of Appeals for the Fourth Circuit published its opinion in Mascio. In
Mascio, the Fourth Circuit determined that remand was appropriate for three distinct reasons,
one of which appeared relevant to the analysis of this case. Accordingly, on April 29, 2015, the
Court afforded the Commissioner an additional 30 days to file a brief addressing the apparent
Mascio issue. [ECF No. 29]. The Commissioner filed a supplemental brief on May 30, 2015.
[ECF No. 30].
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 “routine, repetitive and unskilled tasks with occasional face to face
interaction and little to no changes in the work setting,”2 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

1

In Ms. Winkler’s reply, she includes a credibility argument. Pl. Reply at 1-2. Because I am remanding the case, in
part, on the inadequacy of the ALJ’s fibromyalgia analysis, I need not separately address the credibility issue, which
relates to Ms. Winkler’s fibromyalgia symptoms.
2

The hypothetical the ALJ posed to the VE in Mascio 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 corresponded with the RFC assessment.

Kim Mary Elizabeth Winkler v. Commissioner, Social Security Administration
Civil No. SAG-14-2720
June 2, 2015
Page 3

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.
In this case, at step three of the sequential evaluation, the ALJ determined that, “with
regard to concentration, persistence or pace,” Ms. Winkler has “moderate difficulties.” (Tr. 28).
The entirety of the analysis states, “The claimant testified to experiencing increased forgetfulness
and confusion. However, mental status examination showed the claimant’s attention and
concentration was intact. Moreover, the claimant reported she is able to shop in stores, pay bills
and count change.” Id. According to 20 C.F.R. § 404.1520a(c)(2), the rating of “moderate
difficulties” is supposed to represent the result of application of the following technique:
We will rate the degree of your functional limitation based on the extent to which
your impairment(s) interferes with your ability to function independently,
appropriately, effectively, and on a sustained basis. Thus, we will consider such
factors as the quality and level of your overall functional performance, any
episodic limitations, the amount of supervision or assistance you require, and the
settings in which you are able to function.
Once the technique has been applied, the ALJ is supposed to include the results in the opinion as
follows:
At the administrative law judge hearing and Appeals Council levels, the written
decision must incorporate the pertinent findings and conclusions based on the
technique. The decision must show 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 in paragraph (c) of this section.
20 C.F.R. § 404.1520a(e)(4). The cursory analysis provided by the ALJ in Ms. Winkler’s case
suggests that the finding of “moderate difficulties” was based exclusively on Ms. Winkler’s
testimony that she experiences forgetfulness and confusion, since the remaining sentences in the
analysis would suggest mild or no limitations.
However, in the section of the opinion containing the RFC assessment, the ALJ appears
to discount Ms. Winkler’s credibility, finding that “the claimant’s mental impairments were
medically managed and the record demonstrates third party reports of possible exaggeration in
the claimant’s alleged psychiatric symptoms . . . the undersigned concludes that the claimant’s

Kim Mary Elizabeth Winkler v. Commissioner, Social Security Administration
Civil No. SAG-14-2720
June 2, 2015
Page 4

subjective complaints do not warrant any additional limitations beyond those established in the
residual functional capacity previously outlined in this decision.” (Tr. 32). The RFC assessment
determined by the ALJ does not contain any limitations directed towards an issue with
concentration, persistence, or pace. The limitations appear to address Ms. Winkler’s moderate
difficulties with social functioning. Without an understanding of why the ALJ reached
contradictory conclusions about whether Ms. Winkler does or does not have moderate
difficulties with concentration, persistence, or pace, I must remand the case to the Commissioner
for further analysis consistent with the Fourth Circuit’s mandate in Mascio.
In her supplemental brief, the Commissioner cites to medical evidence of record
indicating that Ms. Winkler had no issues with attention, concentration, and memory. Def. Supp.
Mot. 3 (citing Tr. 523, 548, 550, 555, 558). The Commissioner acknowledged that one
consultative examiner found that Ms. Winkler’s “sustained concentration and persistence appear
to be limited.” (Tr. 411). While the ALJ referred to that consultative examination in general, he
did not expressly assign weight to the findings, nor did he make specific reference to the
concentration/persistence determination. See (Tr. 31). Thus, what is lacking in the instant case
is any explanation of why the ALJ assessed a moderate limitation in concentration, persistence,
or pace. If, as the Commissioner suggests, the ALJ made the finding based solely upon Ms.
Winkler’s subjective allegations of issues with concentration, which the ALJ in fact did not
credit, then the ALJ misapplied the special technique described above. The conclusions at step
two are supposed to represent reasoned consideration of all of the pertinent evidence, and are not
simply an opportunity to give the claimant the benefit of the doubt at one step while taking it
away at the next step. Without understanding why the ALJ believed Ms. Winkler to have a
moderate limitation in concentration, persistence, or pace, as opposed to a mild limitation or no
limitation, and without understanding how the ALJ evaluated the consultative examiner’s
conclusion that she had limited ability to sustain concentration and persistence, I cannot ascertain
whether the moderate limitation found by the ALJ would warrant any RFC restrictions in Ms.
Winkler’s ability to perform or sustain even unskilled work. Thus, on remand, the ALJ should
consider the appropriate level of limitation in the area of concentration, persistence, or pace and,
if a moderate limitation is again found, should explain the reasons for that finding in order to
permit an adequate evaluation of the moderate limitation under the dictates of Mascio.
In addition, the nature of fibromyalgia means that a patient's ability to perform certain
tasks or postural maneuvers on a given day does not necessarily reflect an ability to perform
those tasks and maneuvers on a sustained basis. SSR 12–2p, which became effective on July 25,
2012, governs the evaluation of fibromyalgia in disability claims. SSR 12–2p, 2012 WL
3104869 (July 15, 2012). It emphasizes consideration of the “longitudinal record” of
fibromyalgia “whenever possible because the symptoms of FM [fibromyalgia] can wax and wane
so that a person may have ‘bad days and good days.’” SSR 12–2p, at *6. Thus, the fact that Ms.
Winkler had the ability to ambulate normally or had a low pain rating at isolated medical
appointments does not disprove her allegations of persistent debilitating pain. On remand, the
ALJ should provide a more extensive explanation of his consideration of Ms. Winkler’s physical
impairments from fibromyalgia, her credibility regarding her description of those impairments,

Kim Mary Elizabeth Winkler v. Commissioner, Social Security Administration
Civil No. SAG-14-2720
June 2, 2015
Page 5

and the effect, if any, of those conditions on her ability to sustain the demands of full time
employment during all or part of the lengthy time frame since her alleged onset date.
With respect to the argument Ms. Winkler raised, I generally find that the ALJ provided
adequate evidentiary support for his consideration of Ms. Winkler’s non-severe impairment of
ulcerative colitis in combination with her other impairments. However, as discussed above the
analysis of her assertions of pain, particularly those assertions related to her fibromyalgia
diagnosis, requires further explanation.3
For the reasons set forth herein, Ms. Winkler’s Motion for Summary Judgment [ECF No.
23] is DENIED and Defendant’s Motion for Summary Judgment [ECF No. 28] is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is REVERSED
IN PART due to inadequate analysis. The case is REMANDED for further proceedings in
accordance with this opinion. The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

3

Although not dispositive here, I further reject the ALJ’s reliance on the VE’s testimony that the job of “document
preparer,” with DOT #249.587-018, exists in significant numbers in the national economy. The VE relied on the
Dictionary of Occupational Titles (“DOT”), a document published by the United States Department of Labor and
last updated in 1991. United States Department of Labor, Dictionary of Occupational Titles (4th Ed., Rev.1991),
available at http://www.oalj.dol.gov. According to the DOT, the job of document preparer consists of, in relevant
part, a person who “prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper
cutter, photocopying machine, rubber stamps, and other work devices.” As decided by the Sixth Circuit in
Cunningham v. Astrue, 360 Fed. App’x 606, 615 (6th Cir. 2010), and by this Court in Czosnowski v. Comm’r, Soc.
Sec., Civil No. RDB-13-1467, 2014 WL 1660083, at *4 (D. Md. April 23, 2014),when the descriptions of positions
in the DOT appear obsolete, a more recent source of information should be consulted to establish substantial
evidence of the continued existence of the position. Thus, on remand, the ALJ should not rely exclusively on VE
testimony to suggest that the position of “document preparer” is viable, absent evidence that the VE relied on
sources more current than the DOT.