Manigo v. Colvin

Filing 20

MEMORANDUM AND ORDER denying Plaintiff's 13 Motion for Summary Judgment; denying Defendant's 16 Motion for Summary Judgment; reversing in part the Commissioner's judgment; remanding case for further proceedings; closing case. Signed by Magistrate Judge Stephanie A Gallagher on 2/26/2016. (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 26, 2016
LETTER TO COUNSEL
RE:

Sheila Manigo v. Commissioner, Social Security Administration;
Civil No. SAG-15-1065

Dear Counsel:
On April 14, 2015, Plaintiff Sheila Manigo petitioned this Court to review the Social
Security Administration’s (“SSA”) final decision to deny her claims for Disability Insurance
Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties’ crossmotions for summary judgment. (ECF Nos. 13, 16). In addition, I have reviewed the
Commissioner’s supplemental briefing regarding the impact of the Fourth Circuit’s recent
decision in Fox v. Colvin, __ Fed. App’x __, 2015 WL 9204287 (4th Cir. Dec. 17, 2015), and the
Plaintiff’s response thereto.1 (ECF Nos. 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.
In 2011, Ms. Manigo protectively filed her claims for benefits, alleging a disability onset
date of November 15, 2008. (Tr. 17). Her claims were denied initially and on reconsideration.
(Tr. 78-99, 102-09). A hearing was held on November 15, 2013, before an Administrative Law
Judge (“ALJ”). (Tr. 36-57). Following the hearing, the ALJ determined that Ms. Manigo was
not disabled within the meaning of the Social Security Act during the relevant time frame. (Tr.
17-30). The Appeals Council denied Ms. Manigo’s request for review, (Tr. 1-5), so the ALJ’s
decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Ms. Manigo suffered from the severe impairments of diabetes
mellitus, hypertension, high cholesterol, bipolar disorder, major depression, degenerative disk
disease of the lumbar spine, and obesity. (Tr. 19). Despite these impairments, the ALJ
determined that Ms. Manigo retained the residual functional capacity (“RFC”) to:
1

The parties were notified of the potentially relevant ruling in Fox in a letter order dated January 4, 2016.
(ECF No. 17). The letter order provided the Commissioner thirty days to determine whether consent
remand was required under Fox, or whether she instead wished to file supplemental briefing addressing
the apparent Fox issue. The Commissioner filed her supplemental brief on February 3, 2016, (ECF No.
18), and Ms. Manigo timely filed her response on February 17, 2016. (ECF No. 19).

Sheila Manigo v. Commissioner, Social Security Administration
Civil No. SAG-15-1065
February 26, 2016
Page 2
perform sedentary work as defined in 20 CFR 404.1567(b)2 and 416.967(b)
except the claimant requires a sit/stand option, occasional bending, stooping,
crouching, crawling, never climbing ladders, ropes or scaffolds; simple routine
repetitive tasks, 1 or 2 step tasks; occasional interaction with co-workers and
supervisors, not public.
(Tr. 21). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Manigo could perform jobs existing in significant numbers in the national economy and that,
therefore, she was not disabled. (Tr. 29-30).
Ms. Manigo raises two primary arguments on appeal: (1) that the ALJ’s analysis was
deficient under Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015); and (2) that the ALJ did not
adequately consider the opinion of her treating physician, Dr. Yossif. While I disagree with Ms.
Manigo’s argument about Dr. Yossif’s opinion because I believe the ALJ adequately considered
his opinions and explained his reasoning, I concur that the ALJ’s analysis was deficient under
Mascio. Accordingly, remand is appropriate. In so determining, I express no opinion as to
whether the ALJ’s ultimate conclusion that Ms. Manigo was not entitled to benefits is correct or
incorrect.
In Mascio, the United States Court of Appeals for the Fourth Circuit determined that
remand was appropriate for three distinct reasons, including, as pertinent to this case, the
inadequacy of the ALJ’s evaluation of “moderate difficulties” in concentration, persistence, or
pace. Id. at 638. 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 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), 416.920a(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. §§
The ALJ’s reference to subsection “b” of each regulation appears to be an error. Sedentary work is
defined in subsection “a.” The error should be corrected on remand, if a similar RFC assessment is
determined.
2

Sheila Manigo v. Commissioner, Social Security Administration
Civil No. SAG-15-1065
February 26, 2016
Page 3
404.1520a(c)(4), 416.920(a)(c)(4). In order to satisfy paragraph B, a claimant must exhibit either
“marked” limitations in two of the first three 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 [the claimant’s] 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.
In this case, the ALJ found:
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant reported looking for work, calling former employers
and completing job applications. She maintains the ability to focus on tasks.
(Exhibit 17F). Claimant She [sic] admitted in the records that she attends movies
and church, which suggest better than the marked limitations she claims. She
admitted at the hearing that she did not stop smoking marijuana until August
2013, which may explain some of her difficulties in focus.
(Tr. 20). Most of that paragraph in fact suggests mild or no, instead of moderate, limitations in
concentration, persistence, or pace. The ALJ imposed no specific concentration-related
limitations in the RFC assessment. (Tr. 21).
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, 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)) (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.

Sheila Manigo v. Commissioner, Social Security Administration
Civil No. SAG-15-1065
February 26, 2016
Page 4
Here, as in Mascio, the ALJ did not explain how the restriction of Ms. Manigo’s RFC to
“simple routine repetitive tasks, 1 or 2 step tasks” accounts for the finding of “moderate
difficulties” in concentration, persistence, or pace. In fact, there is nothing in the ALJ’s step
three explanation to suggest why the ALJ found Ms. Manigo to have “moderate difficulties” in
the first place, instead of mild or no difficulties.3 Ultimately, then, the ALJ’s analysis is simply
insufficient to permit adequate review. Without further explanation, I am unable to ascertain
whether the ALJ truly believed Ms. Manigo to have moderate difficulties in concentration,
persistence, and pace, what the basis for that belief would be, and whether there is support in the
medical evidence for the fact that any such difficulties did not require further limitations in her
RFC assessment. In light of this inadequacy, I must remand the case to the Commissioner for
further analysis consistent with the Fourth Circuit’s mandate in Mascio.
I have also considered the impact of the Fourth Circuit’s recent ruling in Fox, but have
concluded that Fox does not provide an independent basis for remand in this case. In Fox, the
Fourth Circuit clarified the evidentiary requirements needed to support an ALJ’s finding at step
three of the sequential evaluation. Step three requires the ALJ to determine 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 describe each of the major body system impairments that the
Agency “consider[s] to be severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work experience.” 20 C.F.R. §§ 404.1525(a),
416.925(a). Listings 1.00 et. seq. through Listings 11.00, et. seq., Listings 13.00 et. seq., and
Listings 14.00 et. seq., pertain to physical impairments. Each physical impairment listing
contains a set of signs or objective medical findings which must be present for the claimant’s
impairment to meet the listing. As noted above, Listings 12.00 et. seq., pertain to mental
impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.
In Fox, regarding his findings at step three of the sequential evaluation, the ALJ stated:
Although the claimant has ‘severe’ impairments, they do not meet the criteria of
any listed impairments described in Appendix 1 of the Regulations. (20 CFR,
Subpart P, Appendix 1). No treating or examining physician has mentioned
findings equivalent in severity to the criteria of any listed impairment, nor does
the evidence show medical findings that are equivalent to those of any listed
impairment of the Listing of Impairments. In reaching this conclusion, the
undersigned has considered, in particular, sections 9.00(B)(5) and 11.14.

In fact, subsequent analysis in the opinion leads further credence to the notion that the ALJ’s finding
should have been “mild” or “no” limitation. See (Tr. 28) (citing evidence that “the claimant can follow
simple instructions, with good attention and concentration” and that “her ability to sustain concentration
and persistence and interact socially are within normal limits”).
3

Sheila Manigo v. Commissioner, Social Security Administration
Civil No. SAG-15-1065
February 26, 2016
Page 5
2015 WL 9204287 at *4. The Fourth Circuit held that the ALJ’s analysis was deficient because
it consisted of conclusory statements and did not include “any ‘specific application of the
pertinent legal requirements to the record evidence.’” Id. (quoting Radford v. Colvin, 734 F.3d
288, 291-92 (4th Cir. 2013)). That is, the ALJ did not apply any findings or medical evidence to
the identified disability listings and “offered nothing to reveal why he was making his decision.”
Radford, 734 F.3d at 295 (emphasis in original). The Fourth Circuit also rejected the notion that
failure to engage in meaningful analysis at step three could constitute harmless error where the
evidence of record otherwise demonstrated that the claimant did not meet a listing. 2015 WL
9204287, at *4. Rather, the Fox Court emphasized that it is not this Court’s role to “engage[] in
an analysis that the ALJ should have done in the first instance,” or “to speculate as to how the
ALJ applied the law to its findings or to hypothesize the ALJ’s justifications that would perhaps
find support in the record.” Id. at *4-*5. The Court noted that it could not conduct a meaningful
review “when there is nothing on which to base a review.” Id. at *4.
This case is distinguishable. The ALJ appropriately applied the special technique for
evaluation of mental impairments to the identified mental health listing, 12.04. (Tr. 20-21).
Thus, there is no deficiency in that analysis. With respect to Ms. Manigo’s physical
impairments, under existing Fourth Circuit law, an ALJ only has to identify a listing and
compare the evidence to the listing requirements where there is ample evidence to suggest that
the listing is met. See Huntington v. Apfel, 101 F. Supp. 2d 384, 390 (D. Md. 2000) (citing
Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)); Ketcher v. Apfel, 68 F. Supp. 2d 629, 645
(D. Md. 1999) (noting that the “duty of identification of relevant listed impairments and
comparison of symptoms to Listing criteria is only triggered if there is ample evidence in the
record to support a determination that the claimant’s impairment meets or equals one of the listed
impairments”). While Fox provided a new standard for the analysis that must be present after a
listing has been identified, it did not alter existing law with respect to the criteria for identifying a
listing in the first instance. Here, the record does not contain ample evidence to suggest that any
particular listing has been met. Therefore, the opinion does not contravene Fox. 4
For the reasons set forth herein, Ms. Manigo’s Motion for Summary Judgment (ECF No.
13) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 16) 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.

4

The Commissioner also argues that Fox is not binding precedent because it is not a published decision.
(ECF No. 18 at 1). While this is true, Fox is nevertheless indicative of how the Fourth Circuit would
likely rule in an analogous case, as it did in its recent decision in Brown v. Colvin, __ Fed. App’x __,
2016 WL 502918 (4th Cir. Feb. 9, 2016). In Brown, the Court was presented with a similar step three
analysis and echoed its reasoning from Fox and Radford, 734 F.3d at 295. Specifically, the Brown Court
stated “[W]e do not accept Brown’s and the Commissioner’s invitations to review the medical record de
novo to discover facts to support or refute the ALJ’s finding at Step Three, and it was error for the district
court to do so.” 2016 WL 502918, at *2.

Sheila Manigo v. Commissioner, Social Security Administration
Civil No. SAG-15-1065
February 26, 2016
Page 6
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