Geisler v. Colvin

Filing 19

ORDER Denying 15 Mr. Geisler's Motion for Summary Judgment; Granting 18 Defendant's Motion for Summary Judgment; Affirming the Commissioner's judgment. Signed by Magistrate Judge Stephanie A Gallagher on 7/21/2015. (nd2s, 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 21, 2015
LETTER TO COUNSEL
RE:

Robert Preston Geisler, Jr. v. Commissioner, Social Security Administration;
Civil No. SAG-14-2857

Dear Counsel:
On September 9, 2014, Plaintiff Robert Preston Geisler, Jr. petitioned this Court to
review the Social Security Administration’s final decision to deny his claim for Supplemental
Security Income. (ECF No. 1). I have considered the parties’ cross-motions for summary
judgment. (ECF Nos. 15, 18). 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
Mr. Geisler’s motion, grant the Commissioner’s motion, and affirm the Commissioner’s
judgment pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.
Mr. Geisler protectively filed a claim for Supplemental Security Income (“SSI”) on
January 24, 2011. (Tr. 60, 180-188). He alleged a disability onset date of February 15, 2009.
(Tr. 180). His claim was denied initially and on reconsideration. (Tr. 83-86, 89-90). A hearing
was held on May 22, 2013, before an Administrative Law Judge (“ALJ”). (Tr. 26-52).
Following the hearing, the ALJ determined that Mr. Geisler was not disabled within the meaning
of the Social Security Act during the relevant time frame. (Tr. 9-25). The Appeals Council
denied Mr. Geisler’s request for review, (Tr. 1-3), so the ALJ’s decision constitutes the final,
reviewable decision of the agency.
The ALJ found that Mr. Geisler suffered from the severe impairments of mood disorder,
attention deficit hyperactivity disorder, personality disorder, anxiety disorder, learning disability,
organic mental disorders, and alcohol dependence. (Tr. 14). Despite these impairments, the ALJ
determined that Mr. Geisler retained the residual functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: he can engage in only occasional contact with
coworkers, supervisors, and/or the general public due to limitations in social
functioning; he can perform only simple, routine, repetitive, 1 or 2 step tasks due
to limitations in concentration, persistence or pace; and he requires a job that
requires no reading.

Robert Preston Geisler, Jr. v. Commissioner, Social Security Administration
Civil No. SAG-14-2857
July 21, 2015
Page 2
(Tr. 16). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Geisler could perform his past relevant work as a flagger and other jobs existing in
significant numbers in the national economy and that, therefore, he was not disabled. (Tr. 2021).
Mr. Geisler raises three primary arguments on appeal. First, Mr. Geisler takes issue with
the ALJ’s RFC assessment. Next, Mr. Geisler takes issue with the ALJ’s statements at the
hearing pertaining to his application for unemployment benefits. Finally, Mr. Geisler argues that
the hypothetical the ALJ posed to the VE was inconsistent with his RFC determination. Each
argument lacks merit and is addressed below. Also addressed below is the impact of Mascio v.
Colvin, a recent decision by the United States Court of Appeals for the Fourth Circuit.1
Mr. Geisler first takes issue with what he views as discrepancies between the ALJ’s
evaluation of the medical evidence and his ultimate RFC assessment. On July 1, 2010, Curtis
Buler, a “Rehabilitation Technical Specialist,” completed an “Exploratory Career Assessment
Report.” Mr. Buler opined that Mr. Geisler suffered from the following functional limitations:
(1) impaired ability to follow complex instructions; (2) impaired ability to read or produce
written communication; (3) difficulty initiating tasks without support; (4) limits in interpersonal
skills, and history of assaultive behavior; (5) emotional instability interferes with performance;
(6) experiences frequent conflict with co-workers or supervisors; and (7) self-reports limitations
with memory. (Tr. 258-59). The ALJ assigned Mr. Buler’s opinion “moderate weight” because
Mr. Buler’s opinion that Mr. Geisler “has no physical limitations and maintains the mental
capacity to follow basic directions and routine procedures and simple (noncomplex) oral
instructions is consistent with the medical evidence, subjective complaints, and treating source
opinions that are relevant to the adjudicatory period.” (Tr. 19). While Mr. Geisler does not
contest the weight the ALJ assigned to Mr. Buler’s opinion, Mr. Geisler argues that the ALJ
erred by failing to include limitations in his RFC assessment based on Mr. Buler’s findings
regarding Mr. Geisler’s inability to produce written communication, his difficulty in initiating
tasks without support, his emotional instability, and his need for frequent repetition and
clarification of directions. Pl.’s Mem. 6. Notably, however, by assigning Mr. Buler’s opinion
“moderate weight,” the ALJ was not required to adopt Mr. Buler’s findings wholesale. In
addition to crediting portions of Mr. Buler’s opinion, the ALJ also cited several factors that
weighed against its adoption. (Tr. 19) (noting that Mr. Buler’s opinion was made prior to the
relevant time period and that Mr. Buler is not an acceptable medical source). Accordingly, the
ALJ did not err by declining to include all of Mr. Buler’s specific findings in his RFC
assessment. Moreover, I am not persuaded that the ALJ’s RFC assessment does not account for
those findings. For example, common sense dictates that if Mr. Geisler is incapable of reading,
he also cannot be expected to perform a job that involves writing. Likewise, the ALJ’s limitation
to “only simple, routine, repetitive 1 or 2 step tasks” surely accommodates any need for frequent
repetition and clarification of directions, as well as any difficulty initiating tasks without support.
1

The Fourth Circuit’s decision in Mascio, 780 F.3d 632 (4th Cir. 2015), was issued after Mr. Geisler filed his
Motion for Summary Judgment. However, it was not necessary to afford Mr. Geisler additional time to address
Mascio’s effect on this case, because he had the opportunity to reply to the Commissioner’s Motion for Summary
Judgment, which addressed Mascio. Def.’s Mem. 7 n.4.

Robert Preston Geisler, Jr. v. Commissioner, Social Security Administration
Civil No. SAG-14-2857
July 21, 2015
Page 3
Finally, neither Mr. Buler nor Mr. Geisler has articulated how Mr. Geisler’s “emotional
instability” interferes with his performance of work-related activities in any particular manner.
The ALJ also assigned “significant weight” to the opinion of Mr. Geisler’s treating
sources, Dr. Edelstein and Mr. Balius, “including their assessments for simple, routine, repetitive
work not involving reading or written instructions.” (Tr. 19). Mr. Geisler argues that the ALJ
erred by failing to include limitations in his RFC assessment based on those sources’ statements
that Mr. Geisler would have difficulty performing simple, routine, repetitive tasks if he was
under high stress, and that he would have difficulty performing written instructions. Pl.’s Mem.
6-7. First, the ALJ limited Mr. Geisler to a job that involves no reading, which certainly
excludes written instructions. Moreover, assigning a medical opinion “significant weight,” does
not require the ALJ to adopt all of a physician’s findings. The ALJ specifically articulated which
aspects of Dr. Edelstein’s and Mr. Balius’s opinion he was adopting, and those aspects did not
include their statements regarding the impact of “high stress” on Mr. Geisler’s ability to perform
simple, routine, repetitive tasks. The ALJ thus did not err by omitting from his RFC assessment
a limitation explicitly related to stress. Additionally, the limitation to “only occasional contact
with coworkers, supervisors, and/or the general public,” likely decreases the level of stress
involved in jobs that accommodate Mr. Geisler’s RFC assessment.
Mr. Geisler next takes issue with the ALJ’s consideration of his application for
unemployment insurance benefits. Pl.’s Mem. 7. At the hearing, the ALJ questioned Mr.
Geisler about the apparent inconsistency between his statement that he is “ready, able, and
willing to work” on his application for unemployment benefits, and his claim before the Social
Security administration that he is “unable to work.” (Tr. 36-37). Mr. Geisler contends that the
ALJ’s line of questioning was improper because Mr. Geisler was required by Social Security
regulations to apply for unemployment benefits before he could become eligible for SSI. See 20
C.F.R. § 416.210. Although the ALJ’s opinion states that Mr. Geisler “has applied for
[u]nemployment benefits,” there is no indication that the ALJ found this factor detrimental to
Mr. Geisler’s application for SSI. In fact, prior to discussing Mr. Geisler’s application for
unemployment benefits at the hearing, the ALJ stated: “[n]ow unemployment is not a matter that
disqualifies you from Social Security disability.” (Tr. 36). Accordingly, while the ALJ’s
statements at the hearing arguably indicate an impermissible line of reasoning, the final opinion
reflects no prejudice to Mr. Geisler.
Third, Mr. Geisler argues that the ALJ erred by relying on the testimony of the VE
because the hypothetical that the ALJ posed to the VE did not include the limitation to one or
two step tasks in the ALJ’s RFC assessment. Notably, however, the laundry laborer position that
the VE testified Mr. Geisler was capable of in this case requires reasoning level one. See
Dictionary of Occupational Titles (“DOT”) No. 361.687-018. The DOT explains that reasoning
level one requires an employee to “[a]pply commonsense understanding to carry out simple oneor two-step instructions.” DOT App’x. C. The VE testified that there are 20,000 positions as a
laundry laborer locally, and the existence of that position alone provides substantial evidence for
the ALJ’s ultimate determination that Mr. Geisler is not disabled. See Lawler v. Astrue, No. 091614, 2011 WL 1485280, at *5 (D. Md. Apr. 19, 2011) (finding that the fact that there were only

Robert Preston Geisler, Jr. v. Commissioner, Social Security Administration
Civil No. SAG-14-2857
July 21, 2015
Page 4
75-100 jobs in the region where plaintiff lives “does not undermine the ALJ’s conclusion that
plaintiff is capable of performing work that exists in significant numbers in the national
economy.”); Hicks v. Califano, 600 F.2d 1048, 1051 n. 2 (4th Cir. 1979) (declining to determine
that 110 regional jobs would be an insignificant number). Moreover, the other positions on
which the ALJ based his decision in this case require reasoning level two.2 See DOT Nos.
372.667-022 (flagger), 318.687-010 (kitchen helper). This court has regularly found that a
limitation to one to two step tasks does not preclude jobs that require reasoning level two.
Michel v. Comm’r Soc. Sec. Admin., No. SAG-13-2311, 2014 WL 2565900, at *3 (D. Md. June
5, 2014). Accordingly, the ALJ’s failure in this case to include a limitation to one or two step
tasks in the hypothetical he posed to the VE was harmless error.
Finally, while this case was pending, the Fourth Circuit issued an opinion in Mascio v.
Colvin, a Social Security Appeal from the Eastern District of North Carolina. In Mascio, the
Fourth Circuit determined remand was warranted for several reasons, including a discrepancy
between the ALJ’s finding at step three concerning the claimant’s limitation in concentration,
persistence, and pace, and his RFC assessment. 780 F.3d 632, 638 (4th Cir. 2015). Although a
similar discrepancy appears to exist in this case, it is critically distinguishable in several respects,
and Mascio does not require remand.
To understand why this case is distinguishable from Mascio, some background is
necessary. At step three of the sequential evaluation, the ALJ determines whether a claimant’s
impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Listings 12.00 et. seq., pertain to mental impairments. 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 12.00. Each listing therein,3 consists of: (1) a brief statement describing
its subject disorder; (2) “paragraph A criteria,” which consists of a set of medical findings; and
(3) “paragraph B criteria,” which consists of a set of impairment-related functional limitations.
Id. § 12.00(A). If both the paragraph A criteria and the paragraph B criteria are satisfied, the
ALJ will determine that the claimant meets the listed impairment. Id.
Paragraph B consists of four broad functional areas: (1) activities of daily living; (2)
social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation.
The ALJ employs the “special technique” to rate a claimant’s degree of limitation in each area,
based on the extent to which the claimant’s impairment “interferes with [the claimant’s] ability
to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. §
404.1520a(c)(2). The ALJ uses a five-point scale to rate a claimant’s degree of limitation in the
first three areas: none, mild, moderate, marked, or extreme. Id. § 416.920a(c)(4). In order to
satisfy paragraph B, a claimant must exhibit either “marked” limitations in two of the first three
2

The VE did not provide the Dictionary of Occupational Titles numbers of the positions on which her testimony
was based. Accordingly, I am unable to determine which of several “assembler” positions she referred to.
However, there are multiple “assembler” positions that require a reasoning level of two. See, e.g., DOT Nos.
706.687-010, 706.684-022.
3

Listing 12.05, which pertains to intellectual disability, and Listing 12.09, which pertains to substance addiction
disorders, do not follow this structure.

Robert Preston Geisler, Jr. v. Commissioner, Social Security Administration
Civil No. SAG-14-2857
July 21, 2015
Page 5
areas, or “marked” limitation in one of the first three areas with repeated episodes of
decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.02. Marked limitations
“may arise when several activities or functions are impaired, or even when only one is impaired,
as long as the degree of limitation is such as to interfere seriously with your ability to function.”
Id. § 12.00(C).
The functional area of “concentration, 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). 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 RFC assessment is distinct, but not wholly independent, from the ALJ’s application
of the special technique at step three. In Mascio, the Fourth Circuit voiced its agreement 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.” 780 F.3d at 638 (joining the Third, Seventh, Eighth, and Eleventh Circuits) (citation and
internal quotation marks omitted). The Fourth Circuit explained that “the ability to perform
simple tasks differs from the ability to stay on task. Only the latter limitation would account for
a claimant’s limitation in concentration, persistence, or pace.” Id. In so holding, however, the
Fourth Circuit noted the possibility that an ALJ could offer an explanation regarding why a
claimant’s moderate limitation in concentration, persistence, or pace, at step three did not
translate into a limitation in the claimant’s RFC assessment, such that the apparent discrepancy
would not constitute reversible error.
In this case, at step three, the ALJ found that “[w]ith regard to concentration, persistence
or pace, the claimant has moderate difficulties as he demonstrates diminished abilities to focus,
attend, remember and understand more than simple instructions and perform simple routine
tasks. His GAF scores in the 50’s range, as assessed by treating sources, are consistent with
moderate limitations.” (Tr. 15). Thereafter, in Mr. Geisler’s final RFC assessment, the ALJ
stated that Mr. Geisler “can perform only simple, routine, repetitive, 1 or 2 step tasks due to
limitations in concentration, persistence or pace.” (Tr.16). In the ALJ’s explanation supporting
his RFC assessment, the ALJ identified the opinion evidence discussed above, from Dr.
Edelstein, Mr. Balius, and Mr. Buler, as specifically supporting his determination that Mr.
Geisler is capable of “simple, routine, repetitive 1 or 2 step tasks.” (Tr. 19). The ALJ also relied
on the opinions of the State agency physicians that Mr. Geisler’s mental impairments do not
prevent him “from performing simple, spoken instructions and simple routine tasks.” (Tr. 17).
Because this case involves a step three finding that Mr. Geisler suffers from moderate difficulties
in concentration, persistence, or pace, and an RFC limitation to “simple, routine tasks or
unskilled work,” Mascio is implicated. However, three critical factors render this case
distinguishable from Mascio: (1) the explanation offered by the ALJ at step three, (2) the
explanation offered by the ALJ in support of his RFC assessment, and (3) the language used in

Robert Preston Geisler, Jr. v. Commissioner, Social Security Administration
Civil No. SAG-14-2857
July 21, 2015
Page 6
the RFC assessment itself. Because the ALJ in this case articulated that it was precisely due to
Mr. Geisler’s diminished abilities with respect to more-than-simple instructions and more-thanroutine tasks that he found moderate difficulties in concentration, persistence, or pace, and
because he explicitly related his RFC limitation of “simple, routine, repetitive 1 or 2 step tasks”
to Mr. Geisler’s difficulties in concentration, persistence, or pace, there is no internal
inconsistency in the ALJ’s decision. Although, under both Mascio and the Social Security
regulations,4 it was improper for the ALJ to base his step three determination on Mr. Geisler’s
difficulties performing complex tasks (rather than his ability to stay on task), that error was
harmless due to the ALJ’s thorough explanation at each step.
For the reasons set forth herein, Mr. Geisler’s Motion for Summary Judgment (ECF No.
15) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 18) is GRANTED.
The Commissioner’s judgment is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
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

4

A claimant “may be able to sustain attention and persist at simple tasks but may still have difficulty with
complicated tasks. Deficiencies that are apparent only in performing complex procedures or tasks would not satisfy
the intent of this paragraph B criterion.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(3).