Fisher v. Colvin

Filing 20

MEMORANDUM AND ORDER denying Ms. Fisher's 17 Motion for Summary Judgment; denying Defendant's 18 Motion for Summary Judgment; reversing in part Commissioner's Judgment; remanding case for further proceedings; closing case. Signed by Magistrate Judge Stephanie A Gallagher on 2/2/2016. (dass, 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]

February 2, 2016
LETTER TO COUNSEL
RE:

Carla Jean Fisher v. Commissioner, Social Security Administration;
Civil No. SAG-15-445

Dear Counsel:
On February 17, 2015, Plaintiff Carla Jean Fisher petitioned this Court to review the
Social Security Administration’s final decision to deny her claim for Disability Insurance
Benefits. (ECF No. 1). I have considered the parties’ cross-motions for summary judgment and
and Plaintiff’s reply memorandum. (ECF Nos. 17, 18, 19). 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 motions, reverse the Commissioner’s decision in part, and remand the
case to the Commissioner for further consideration. This letter explains my rationale.
Ms. Fisher protectively filed a claim for Disability Insurance Benefits (“DIB”) on
January 30, 2012. (Tr. 68, 188-89). She alleged a disability onset date of January 9, 2012. (Tr.
188). Her claim was denied initially and on reconsideration. (Tr. 138-40, 143-45). A hearing
was held on June 27, 2013, before an Administrative Law Judge (“ALJ”). (Tr. 88-135).
Following the hearing, the ALJ determined that Ms. Fisher was not disabled within the meaning
of the Social Security Act during the relevant time frame. (Tr. 68-81). The Appeals Council
(“AC”) denied Ms. Fisher’s request for review, (Tr. 1-4), so the ALJ’s decision constitutes the
final, reviewable decision of the Agency.1
The ALJ found that Ms. Fisher suffered from the severe impairments of degenerative disc
disease status-post surgery; history of left elbow fracture; left knee degenerative joint disease
status-post surgery; depression; anxiety; bipolar disorder; and history of attention-deficit
1

The AC also received and reviewed additional exhibits that were not a part of the record before the ALJ. (Tr. 5-7).
The AC must review additional evidence if it is “(a) new, (b) material, and (c) relates to the period on or before the
date of the ALJ’s decision.” Wilkins v. Sec’y, Dept. of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991).
Evidence is “new” if “it is not duplicative or cumulative.” Id. at 96. “Evidence is material if there is a reasonable
possibility that the new evidence would have changed the outcome.” Id. Social Security regulations, however,
“[do] not require the [AC] to do anything more than what it did in this case, i.e., consider new and material evidence
. . . in deciding whether to grant review.” Meyer v. Astrue, 662 F.3d 700, 706 (4th Cir. 2011) (internal quotation
marks omitted). The AC is not required to take any specific action in response to new and material evidence, and is
not required to provide a detailed explanation of its evaluation. Id.

Carla Jean Fisher v. Commissioner, Social Security Administration
Civil No. SAG-15-445
February 2, 2016
Page 2
hyperactivity disorder (ADHD). (Tr. 70). Despite these impairments, the ALJ determined that
Ms. Fisher retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) except can occasionally
stoop, crouch, crawl, squat, kneel, and balance, but no climbing of a ladder, rope,
or scaffold; should avoid working overhead and pushing/pulling with the left
upper extremity; should avoid concentrated exposure to hazards and wetness; and
limited to simple/unskilled work.
(Tr. 73). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Fisher could perform her past relevant work as a security systems monitor, as well as other
jobs existing in significant numbers in the national economy. (Tr. 79-80). Thus, the ALJ
concluded that she was not disabled. (Tr. 79-81).
Ms. Fisher makes two primary arguments on appeal. First, she argues that the ALJ’s
RFC assessment does not adequately account for her moderate limitation in concentration,
persistence, or pace under the Fourth Circuit’s recent decision in Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015). Next, Ms. Fisher contends that the ALJ mischaracterized the evidence related to
her psychological impairments and treatment thereof. I agree that the first argument warrants
remand under Mascio. Both arguments are discussed below.
Turning first to Ms. Fisher’s successful argument, some background is useful. On March
18, 2015, the United States Court of Appeals for the Fourth Circuit published its opinion in
Mascio v. Colvin, 780 F.3d 632. The Fourth Circuit determined that remand was appropriate for
three distinct reasons, one of which is relevant to the analysis of this case. Specifically, the
Fourth Circuit found that the hypothetical the ALJ posed to the VE – and the corresponding RFC
assessment – did not include any mental limitations other than unskilled work,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. Id. at 637-38. The
Fourth Circuit 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)) (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.

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 matched the ALJ’s RFC assessment.

Carla Jean Fisher v. Commissioner, Social Security Administration
Civil No. SAG-15-445
February 2, 2016
Page 3
In the instant case, the ALJ found at step three of the sequential evaluation that Ms.
Fisher had a moderate limitation in maintaining concentration, persistence, or pace. In making
this finding, the ALJ stated, “[t]he claimant reports difficulty following instructions and
completing tasks, and has to write things down. The undersigned notes a history of ADHD, and
the claimant admits improvement in attention and focus with the use of Adderall.” (Tr. 72)
(citations omitted). The only mental limitation included in the ALJ’s RFC assessment was a
finding that Ms. Fisher was “limited to simple/unskilled work.” (Tr. 73).
Pursuant to Mascio, the limitation to “simple/unskilled work,” absent additional
explanation, does not account for Ms. Fisher’s moderate limitation in concentration, persistence,
or pace. Reviewing the ALJ’s decision, I find that the ALJ did not provide the explanation
required under Mascio for how the limitation to “simple/unskilled work” accounts for Ms.
Fisher’s moderate limitation in concentration, persistence, or pace. The ALJ made a cursory
statement about Ms. Fisher’s treatment with Dr. Joshi between February 2010 and January 2012
finding that “records indicate the claimant is doing good, she is stable, and focus and
concentration are good.” (Tr. 75). The ALJ also repeatedly cited a report by Ms. Fisher that her
focus and attention had improved approximately eighty-percent with medication. Id. That
analysis indicates that the ALJ felt that Ms. Fisher’s ability to maintain concentration,
persistence, or pace would not present a serious impediment to her ability to work. However, the
ALJ also acknowledged that treating sources had rated Ms. Fisher as having Global Assessment
of Functioning (“GAF”) scores indicative of moderate symptoms, and gave little weight to the
opinions of Dr. Gandhi and Dr. Joshi, who both opined that Ms. Fisher was capable of
performing simple tasks. (Tr. 76-78).
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.

Carla Jean Fisher v. Commissioner, Social Security Administration
Civil No. SAG-15-445
February 2, 2016
Page 4

20 C.F.R. § 404.1520a(e)(4).
As noted above, the only mental limitation imposed by the ALJ in the RFC assessment
was a restriction to “simple/unskilled work.” (Tr. 73). Thus, under Mascio, there is no
corresponding restriction for the finding of moderate difficulties in concentration, persistence, or
pace. The Commissioner suggests that the ALJ found that the moderate limitation in
concentration, persistence, or pace only applied to Ms. Fisher’s ability to maintain concentration,
but not to her ability to maintain persistence or pace. Def. Mot. 11-12. While that may be true,
nothing in the ALJ’s analysis provides any support for that contention or addresses concentration
apart from persistence and pace. For instance, the ALJ cited Ms. Fisher’s reports that she feels
impulsive and agitated at times, “with episodes lasting from a few hours to a few days at a time.”
(Tr. 75). The ALJ also cited the fact that Ms. Fisher was fired from her last job after having
several accidents on the job. Id. Furthermore, in finding that Ms. Fisher had a moderate
limitation, the ALJ stated that she “reports difficulty following instructions and completing
tasks….” (Tr. 72). These facts indicate issues not only with concentration, but also with
persistence and pace. Ultimately, what is missing from the ALJ’s opinion is an explanation as to
why the ALJ believed Ms. Fisher to have a “moderate limitation” instead of “mild” or “no”
limitation in the ability to concentrate and perform work at a sustained pace for a prolonged
period. Without an understanding of why the ALJ appears to have reached contradictory
conclusions about whether Ms. Fisher 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. 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.
Ms. Fisher next argues that the ALJ mischaracterized the evidence of record pertaining to
her psychological impairments and treatment.
While I do not agree that the ALJ
mischaracterized evidence, I do find, as noted above, that the ALJ failed to resolve conflicts in
the evidence related to Ms. Fisher’s mental impairments. This Court’s role is not to reweigh the
evidence or to substitute its judgment for that of the ALJ, but simply to adjudicate whether the
ALJ’s decision was supported by substantial evidence. See Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Even so, the ALJ has the duty to resolve conflicts in the evidence. See
Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). Here, the ALJ has not met that duty regarding
the extent of limitation Ms. Fisher experiences in her ability to maintain concentration,
persistence, or pace as a result of her mental impairments. Accordingly, in addressing the
Mascio issue on remand, the Commissioner should resolve the conflicts in the evidence noted
above.
For the reasons set forth herein, Ms. Fisher’s Motion for Summary Judgment (ECF No.
17) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 18) is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is REVERSED

Carla Jean Fisher v. Commissioner, Social Security Administration
Civil No. SAG-15-445
February 2, 2016
Page 5
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