Ferguson v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 6/22/2016. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil No. TMD 15-2007
MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Cornelius Ferguson seeks judicial review under 42 U.S.C. §§ 405(g) and
1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his applications for disability insurance benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 13) and Defendant’s
Motion for Summary Judgment (ECF No. 14).1 Plaintiff contends that the administrative record
does not contain substantial evidence to support the Commissioner’s decision that he is not
disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion
for Summary Judgment (ECF No. 14) is GRANTED, Plaintiff’s Motion for Summary Judgment
(ECF No. 13) is DENIED, and the Commissioner’s final decision is AFFIRMED.
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
Plaintiff was born in 1958, has a college education, and previously worked as a customer
service representative, dispatcher, and equipment technician.
R. at 23, 31, 256.
protectively filed applications for DIB and SSI on October 14, 2011, alleging disability
beginning on August 1, 2010, due to depression and anxiety. R. at 176-87, 204, 208. The
Commissioner denied Plaintiff’s applications initially and again on reconsideration, so Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). R. at 74-113, 116-32. On
February 5, 2014, ALJ Andrew M. Emerson held a hearing in Baltimore, Maryland, at which
Plaintiff and a vocational expert (“VE”) testified. R. at 25-73. On March 20, 2014, the ALJ
issued a decision finding Plaintiff not disabled from the alleged onset date of disability of August
1, 2010, through the date of the decision. R. at 11-24. Plaintiff sought review of this decision by
the Appeals Council, which denied Plaintiff’s request for review on May 7, 2015. R. at 1-4, 10.
The ALJ’s decision thus became the final decision of the Commissioner.
See 20 C.F.R.
§§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 2083
On July 8, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
Summary of Evidence
State Agency Medical Consultants
On March 6, 2012, a state agency consultant, K. Wessel, Ed.D., using the psychiatric
review technique (“PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff’s
mental impairments under Listings 12.04, 12.06, and 12.09 relating to affective disorders,
anxiety-related disorders, and substance addiction disorders (R. at 77-78, 85-86). See 20 C.F.R.
pt. 404, subpt. P, app. 1, §§ 12.04, 12.06, 12.09. Dr. Wessel opined that, under paragraph B of
the applicable listings, Plaintiff’s mental impairments caused him to experience (1) mild
restriction in activities of daily living; (2) mild difficulties in maintaining social functioning;
(3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two
repeated episodes of decompensation of extended duration. R. at 77, 85. Dr. Wessel did not find
evidence to establish the presence of the criteria under paragraph C of the applicable listings. R.
at 77, 85. Dr. Wessel thus assessed Plaintiff’s mental residual functional capacity (“RFC”) (R. at
78-80, 86-88) and opined that he was moderately limited in his ability to (1) understand,
remember, and carry out detailed instructions; (2) maintain attention and concentration for
extended periods; (3) complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods; and to (4) respond appropriately to changes in the work
setting. Plaintiff otherwise was not significantly limited. R. at 78-80, 86-88.
On August 10, 2012, Elliott Rotman, Ph.D., also assessed Plaintiff’s mental RFC (R. at
99-101, 109-11) and opined that he was moderately limited in his ability to (1) understand,
remember, and carry out detailed instructions; (2) maintain attention and concentration for
extended periods; and to (3) respond appropriately to changes in the work setting. Plaintiff
otherwise was not significantly limited. R. at 99-101, 109-11.
On September 11, 2012, another state agency consultant, Manuel Mejia, again used the
PRT to evaluate Plaintiff’s mental impairments under Listings 12.04, 12.06, and 12.09. R. at 9899, 108-09. Mr. Mejia opined that, under paragraph B of the applicable listings, Plaintiff’s
impairments caused him to experience (1) mild restriction in activities of daily living; (2) mild
difficulties in maintaining social functioning; (3) moderate difficulties in maintaining
concentration, persistence, or pace; and (4) one or two repeated episodes of decompensation of
extended duration. R. at 98, 108. Mr. Mejia also did not find evidence to establish the presence
of the criteria under paragraph C of the applicable listings. R. at 98, 108.
The ALJ reviewed Plaintiff’s testimony in his decision:
[Plaintiff] last worked as an equipment technician. [Plaintiff] testified he
had a problem with alcohol in 2000 and 2001. He denied having a problem with
alcohol in 2011. However, when [Plaintiff] was read his statements to his doctors
regarding his alcohol use in 2010, [Plaintiff] admitted to drinking at least a sixpack of beer per day. He was also taking opiate pain pills that he bought on the
street. May of 2011 is when [Plaintiff] was incarcerated for public urination. In
2011, [Plaintiff] was attending community college part-time to obtain a certificate
in addictions counseling. In June 2011, he was getting two B’s and a C in his
classes, but after that his grades slipped and he was not able to keep up in the
classroom. He testified he did not receive his certificate from this program.
In the summer of 2012, he reported that he had a fiancé [sic]. However,
he testified that they separated and are now just friends. He went to St. Martin in
the Caribbean, in the summer of 2012 on a mission with his church. They had a
week-long church revival. He distributed pamphlets about the revival and would
talk to people in the community during the day. At night, he would help set up
dinners. He testified that he noticed he was not able to communicate with people
as well as he used to and being around a lot of people became an issue.
He also helped his uncle in New Jersey, who was ill for a few weeks
before he passed away. He needed help with personal care, like going to the
bathroom, and needed help around the house. This was in January 2011.
He is still taking Lexapro, which he said helps. He is also taking Xanax,
which helps with anxiety. He “cannot say” that there are any side effects from his
medications. He testified that he has not stopped drinking entirely, but only
drinks some wine around the holidays. He testified he has trouble with
concentration. His mind wanders and he will lose his train of thought.
R. at 19-20; see R. at 31-67.
The VE testified that a hypothetical individual with Plaintiff’s same age, education, and
work experience with the RFC outlined below in Part III could not perform Plaintiff’s past
relevant work but could perform the unskilled, medium2 jobs of bus person, stock selector, or
packer. R. at 67-68. According to the VE, his testimony was consistent with the Dictionary of
Occupational Titles.3 R. at 68. A person “off task” more than 20% of the workday would not be
able to work. R. at 71. A person absent from work more than three days per month would not be
able to maintain employment. R. at 71.
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c).
“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” Id. §§ 404.1568(a), 416.968(a).
“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1). “Information
contained in the [Dictionary of Occupational Titles] is not conclusive evidence of the existence
of jobs in the national economy; however, it can be used to establish a rebuttable presumption.”
English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
Summary of ALJ’s Decision
On March 20, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of August 1, 2010; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform his past relevant work; but (5) could
perform other work in the national economy, such as a bus person, stock selector, or packer. R.
at 16-24. The ALJ thus found that he was not disabled from August 1, 2010, through the date of
the decision. R. at 24.
In so finding, the ALJ found that Plaintiff had the RFC
to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
except that he is further limited to: frequent stooping and crouching; avoid
concentrated exposure to extreme cold and excessive vibration; simple, routine,
repetitive tasks; low stress work environment, meaning no strict production
quotas; and, occasional and superficial interaction with the public, co-workers,
R. at 19.
The ALJ also considered Plaintiff’s credibility and found that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [his] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 20.
The ALJ found that,
[w]ith regard to concentration, persistence or pace, [Plaintiff] has moderate
difficulties. [Plaintiff] was hospitalized from August 5, 2010 to August 9, 2010
for increasing depression, anxiety and suicide attempt, after he had been fired
from his job. Upon discharge, his thinking was logical, organized and goaldirected. He had no delusions, paranoia or hallucinations. He was alert, fully
oriented, cooperative, and made good eye contact. He was able to recall three
words after a three-minute delay. In [Plaintiff’s] mental health treatment records,
he is consistently noted to have a normal attention span and intact memory. This
is consistent with only moderate difficulties.
R. at 18 (footnotes omitted); see 287-302, 315-48, 354-91.
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).4
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling5 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-6,
ECF No. 13-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of his ability to perform the physical and mental demands of work. Id. at 5. In
particular, he contends that, although the ALJ found that he had moderate difficulties with regard
to concentration, persistence, or pace, the ALJ failed to include any limitation on concentration,
persistence, or pace in the RFC assessment, instead limiting him to simple, routine, and repetitive
work. Id. According to Plaintiff, substantial evidence thus does not support the ALJ’s RFC
assessment. Id. at 6. For the reasons discussed below, Plaintiff’s assertion is unavailing.
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, __ F.3d __, No. 15-1098, 2016 WL 3349355, at
*9-10 (4th Cir. June 16, 2016) (remanding because ALJ erred in not determining claimant’s RFC
using function-by-function analysis; ALJ erroneously expressed claimant’s RFC first and then
concluded that limitations caused by claimant’s impairments were consistent with that RFC).
Plaintiff contends that, in assessing his RFC, the ALJ failed to consider adequately his
moderate difficulties in maintaining concentration, persistence, or pace, contrary to Mascio.
Pl.’s Mem. Supp. Mot. Summ. J. 5-6, ECF No. 13-1. In Mascio, the Fourth Circuit held 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.’” Mascio, 780
F.3d at 638 (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)).
“[T]he 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.
The court in Mascio remanded the case for the ALJ to explain why the claimant’s moderate
limitation in concentration, persistence, or pace at step three did not translate into a limitation in
the claimant’s RFC. Id. In other words, “[p]ursuant 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.” Talmo v. Comm’r, Soc. Sec., Civil Case No. ELH-142214, 2015 WL 2395108, at *3 (D. Md. May 19, 2015), report and recommendation adopted (D.
Md. June 5, 2015).
“The Social Security Administration has promulgated regulations containing ‘listings of
physical and mental impairments which, if met, are conclusive on the issue of disability.’ A
claimant is entitled to a conclusive presumption that he is impaired if he can show that his
condition ‘meets or equals the listed impairments.’” Radford, 734 F.3d at 291 (citation omitted);
see 20 C.F.R. pt. 404, subpt. P, app. 1. In addition to the five-step analysis discussed above in
Part IV and outlined in 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner has promulgated
additional regulations governing evaluations of the severity of mental impairments. 20 C.F.R.
§§ 404.1520a, 416.920a. These regulations require application of a psychiatric review technique
at the second and third steps of the five-step framework, Schmidt v. Astrue, 496 F.3d 833, 844
n.4 (7th Cir. 2007), and at each level of administrative review. 20 C.F.R. §§ 404.1520a(a),
416.920a(a). This technique requires the reviewing authority to determine first whether the
claimant has a “medically determinable mental impairment.”
Id. §§ 404.1520a(b)(1),
If the claimant is found to have such an impairment, then the reviewing
authority must “rate the degree of functional limitation resulting from the impairment(s) in
accordance with paragraph (c),” id. §§ 404.1520a(b)(2), 416.920a(b)(2), which specifies four
broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation.
Id. §§ 404.1520a(c)(3),
416.920a(c)(3). According to the regulations, if the degree of limitation in each of the first three
areas is rated “mild” or better, and no episodes of decompensation are identified, then the
reviewing authority generally will conclude that the claimant’s mental impairment is not
“severe” and will deny benefits. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). If the claimant’s
mental impairment is severe, then the reviewing authority will first compare the relevant medical
findings and the functional limitation ratings to the criteria of listed mental disorders in order to
determine whether the impairment meets or is equivalent in severity to any listed mental
disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). If so, then the claimant will be found to be
If not, the reviewing authority will then assess the claimant’s RFC.
§§ 404.1520a(d)(3), 416.920a(d)(3).
“The ALJ’s decision must show the significant history and medical findings considered
and must include a specific finding as to the degree of limitation in each of the four functional
areas.” Felton-Miller v. Astrue, 459 F. App’x 226, 231 (4th Cir. 2011) (per curiam) (citing 20
C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4)). With regard to the four functional areas, which
correspond to the paragraph B criteria of the listings for mental disorders, “[a]ctivities of daily
living include adaptive activities such as cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for [the claimant’s]
grooming and hygiene, using telephones and directories, and using a post office.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.00(C)(1). “In the context of [the claimant’s] overall situation, [the
Commissioner assesses] the quality of these activities by their independence, appropriateness,
effectiveness, and sustainability. [The Commissioner] will determine the extent to which [the
claimant is] capable of initiating and participating in activities independent of supervision or
direction.” Id. Moreover, “[s]ocial functioning refers to [the claimant’s] capacity to interact
independently, appropriately, effectively, and on a sustained basis with other individuals. Social
functioning includes the ability to get along with others, such as family members, friends,
neighbors, grocery clerks, landlords, or bus drivers.”
Id. § 12.00(C)(2).
“[c]oncentration, 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).
“On mental status examinations,
concentration is assessed by tasks such as having [the claimant] subtract serial sevens or serial
threes from 100. In psychological tests of intelligence or memory, concentration is assessed
through tasks requiring short-term memory or through tasks that must be completed within
established time limits.”
Finally, “[e]pisodes of decompensation are exacerbations or
temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace.” Id. § 12.00(C)(4). “Episodes
of decompensation may be demonstrated by an exacerbation in symptoms or signs that would
ordinarily require increased treatment or a less stressful situation (or a combination of the two).”
Id. Episodes of decompensation may be inferred from “medical records showing significant
alteration in medication; or documentation of the need for a more structured psychological
support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and
directing household); or other relevant information in the record about the existence, severity,
and duration of the episode.” Id. “The term repeated episodes of decompensation, each of
extended duration in these listings means three episodes within 1 year, or an average of once
every 4 months, each lasting for at least 2 weeks.” Id.
Here, the ALJ’s inclusion of a limitation in the assessment of Plaintiff’s RFC to a “low
stress environment, meaning no strict production quotas” and “occasional and superficial
interaction with the public, co-workers, and supervisors” (R. at 19) accounts for Plaintiff’s
moderate difficulties in maintaining concentration, persistence, or pace. See Russo v. Astrue, 421
F. App’x 184, 192 (3d Cir. 2011) (holding that hypothetical question that referenced individual
who “would not have a quota to fulfill” accounted for moderate difficulties in concentration,
persistence, or pace); Seamon v. Astrue, 364 F. App’x 243, 248 (7th Cir. 2010) (holding that ALJ
captured claimant’s moderate limitation in concentration, persistence, and pace when ALJ
included restriction of “no high production goals”); Arnold v. Barnhart, 473 F.3d 816, 820 (7th
Cir. 2007) (using low production standards for moderate limitation in concentration, persistence,
and pace); Linares v. Colvin, No. 5:14-CV-00120, 2015 WL 4389533, at *4 (W.D.N.C. July 17,
2015) (“The ALJ accounted for Plaintiff’s limitation in pace by restricting her to ‘nonproduction
pace,’ and he accounted for her limitation in concentration and persistence by restricting her to a
stable work environment with only occasional public contact.”); see also Chase v. Comm’r, Soc.
Sec. Admin., Civil No. SAG-14-2961, 2016 WL 199410, at *3 (D. Md. Jan. 15, 2016)
(determining that ALJ’s assessment of claimant’s RFC to “no production rate or paced work”
accounted for claimant’s moderate limitation in concentration, persistence, or pace); Shirey v.
Comm’r, Soc. Sec. Admin., Civil No. SAG-15-261, 2015 WL 7012718, at *4 (D. Md. Nov. 10,
2015); Rayman v. Comm’r, Soc. Sec. Admin., Civil No. SAG-14-3102, 2015 WL 6870053, at *3
(D. Md. Nov. 6, 2015) (“[T]he limitation to an environment with few changes and no production
quotas assures that [the claimant] is not required to produce any particular volume of workproduct and is not distracted or required to adapt to changes in the workplace. Thus, the ALJ
accounted for any time that [the claimant] would be off-task due to his limited ability to maintain
focus.”); Gair v. Comm’r, Soc. Sec. Admin., Civil No. SAG-14-3652, 2015 WL 5774982, at *2
(D. Md. Sept. 28, 2015) (finding that ALJ adequately accounted for claimant’s moderate
limitation in concentration, persistence, or pace by limiting him to work with no strict production
quotas). Plaintiff’s argument that remand is warranted in this case under Mascio thus is without
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards here.
Thus, Defendant’s Motion for Summary Judgment is GRANTED,
Plaintiff’s Motion for Summary Judgment is DENIED, and the Commissioner’s final decision is
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 14) is
Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED. The
Commissioner’s final decision is AFFIRMED. A separate order shall issue.
Date: June 22, 2016
Thomas M. DiGirolamo
United States Magistrate Judge
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