Turner v. Colvin

Filing 17

ORDER denying 15 Plaintiff's Motion for Summary Judgment; denying 16 Defendant's Motion for Summary Judgment; reversing the Commissioner's judgment in part due to inadequate analysis; remanding for further proceedings; closing this case. Signed by Magistrate Judge Stephanie A Gallagher on 9/22/2016. (krs, 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]

September 22, 2016
LETTER TO COUNSEL
RE:

Carl Turner v. Commissioner, Social Security Administration;
Civil No. SAG-16-0017

Dear Counsel:
On January 5, 2016, Plaintiff Carl Turner petitioned this Court to review the Social
Security Administration’s final decision to deny his claims for Disability Insurance Benefits and
Supplemental Security Income. (ECF No. 1). I have considered the parties’ cross-motions for
summary judgment. (ECF Nos. 15, 16). I find that no hearing is necessary. See Loc. R. 105.6
(D. Md. 2016). 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 judgment of the Commissioner, and remand the case to the
Commissioner for further analysis pursuant to sentence four of 42 U.S.C. § 405(g). This letter
explains my rationale.
Mr. Turner filed claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on February 6, 2012. (Tr. 198-204, 205-11). He alleged a disability
onset date of February 10, 2011. Id. His claims were denied initially and on reconsideration.
(Tr. 120-27, 130-33). A hearing was held on May 22, 2014, before an Administrative Law Judge
(“ALJ”). (Tr. 34-72). Following the hearing, the ALJ determined that Mr. Turner was not
disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 1633). The Appeals Council denied Mr. Turner’s request for review, (Tr. 1-6), so the ALJ’s
decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Mr. Turner suffered from the severe impairments of “epilepsy, right
shoulder degenerative joint disorder, and anxiety disorder.” (Tr. 21). Despite these impairments,
the ALJ determined that Mr. Turner retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with further
limitations: he is unable to climb ladders, ropes and scaffolds, but is able to
occasionally balance; the claimant is able to frequently, but not constantly reach
with the right upper extremity, but he is unable to perform overhead reaching with
the right upper extremity, which is the dominant hand; the claimant is unable to
tolerate hazards such as unprotected heights and moving machinery; he is able to
use commonsense understanding to perform instructions provided in oral, written
or diagrammatic form consistent with a range of unskilled work at or below

Carl Turner v. Commissioner, Social Security Administration
Civil No. SAG-16-0017
September 22, 2016
Page 2
reasoning level III as those terms are defined in the Dictionary of Occupational
Titles.
(Tr. 23-24). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that Mr. Turner could perform jobs existing in significant numbers in the national economy and
that, therefore, he was not disabled. (Tr. 28).
Mr. Turner raises two primary arguments on appeal: (1) that the ALJ’s holding runs
afoul of the Fourth Circuit’s decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); and
(2) that the ALJ failed to properly evaluate pertinent evidence proffered by the consultative
physician, Dr. Miller. Pl. Mot. 3-7. I concur that the ALJ’s opinion is deficient under Mascio,
and thus recommend remand to allow compliance with that decision. In remanding for
additional explanation, I express no opinion as to whether the ALJ’s ultimate conclusion that Mr.
Turner is 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. The relevant listings therein consist of: (1) a brief statement
describing a 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. at § 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. §
404.1620a(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. § 404.1620a(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. at § 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. at § 12.00(C)(3). Social Security

Carl Turner v. Commissioner, Social Security Administration
Civil No. SAG-16-0017
September 22, 2016
Page 3
regulations do not define 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.
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.
In the instant case, the ALJ found Mr. Turner to have moderate limitations in maintaining
concentration, persistence, or pace. (Tr. 23). The entirety of the analysis states, “At the
consultative examination, the examining psychologist found [Mr. Turner] had reduced memory
functions (Ex. 5F). However, [Mr. Turner’s] treating neurologist consistently found [he] had
intact memory, attention, and concentration to conversation (Ex. 2F, 4F). Furthermore, [Mr.
Turner] acknowledged retaining sufficient functioning in this area to watch television, listen to
music, apply for jobs on the internet, operate a car, and complete[] household chores.” Id.
According to 20 CFR § 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.
20 CFR § 404.1520a(c)(2). 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

Carl Turner v. Commissioner, Social Security Administration
Civil No. SAG-16-0017
September 22, 2016
Page 4
finding as to the degree of limitation in each of the functional areas described in
paragraph (c) of this section.
20 CFR § 404.1520a(e)(4). The cursory analysis provided by the ALJ in Mr. Turner’s case
suggests that the finding of “moderate difficulties” was based exclusively on the finding that the
consultative psychologist found Mr. Turner had reduced memory functions, since the remaining
analysis would suggest mild or no limitations. Without further explanation, I am unable to
ascertain whether the ALJ truly believed Mr. Turner to have moderate difficulties in
concentration, persistence, and pace, instead of mild, or no difficulties, and how those difficulties
restrict his RFC to “unskilled work at or below reasoning level III” without further limitation.
(Tr. 23-24). 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. 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.
Mr. Turner makes the additional argument that the ALJ failed to properly evaluate
pertinent evidence proffered by the consultative examiner, Dr. Miller. Specifically, Mr. Turner
contends that although the ALJ assigned “great weight” to Dr. Miller’s opinion, he “failed to
include any limitations related to [Dr. Miller’s] opinion[] in his [RFC] assessment.” Pl. Mot. 6.
To support his assertion, Mr. Turner cites Dr. Miller’s opinion that he “had moderate limitations
in the ability to...maintain attention and concentration for extended periods,” “moderate
restriction of activities of daily living, and moderate difficulties in maintaining social
functioning,” among other findings. Id. The ALJ concluded, however, that Mr. Turner had
“moderate” limitations in “concentration, persistence or pace,” and “mild” limitations in
“activities of daily living” and “social functioning,” which at least partially correspond with Dr.
Miller’s opinion. (Tr. 22-23).
Critically, Mr. Turner does not suggest any restrictions that, in his view, should have
been included in the RFC assessment. Regardless, in this case, the ALJ properly evaluated Dr.
Miller’s opinion and assessed the RFC in light of the objective medical record.1 Most
significantly, the ALJ noted that Dr. Miller listed a “number of diagnostic impressions,” but
found that “there were no medical records available related to the alleged psychological
symptoms.” (Tr. 25). In addition, the ALJ cited statements made by Mr. Turner in his medical
record to conclude that “the objective medical evidence, limited treatment sought, and activities
of daily living and social functioning…does not support the degree of limitation alleged.” (Tr.
24, 233-42). For example, regarding Mr. Turner’s activities of daily living, the ALJ noted that
“in the Function Report, [Mr. Turner] reported he prepares simple meals, watches television,
listens to music, searches for employment on the computer, tends to his personal care, shops as
needed, completes light household chores, drives a car, and manages his finances.” (Tr. 22-23).
Regarding his social functioning, the ALJ noted that Mr. Turner “[had] sufficient social
functioning ability to maintain a romantic relationship, have meals with friends and/or family on
1

Although, as noted above, the ALJ erred with respect to Mr. Turner’s moderate limitation in concentration,
persistence or pace.

Carl Turner v. Commissioner, Social Security Administration
Civil No. SAG-16-0017
September 22, 2016
Page 5
a regular basis, and respond well to figures of authority.” (Tr. 23, 233-42). Commensurate with
Dr. Miller’s opinion and the objective medical evidence, the ALJ had adequate support for the
conclusion that Mr. Turner had mild, as opposed to moderate, limitations in activities of daily
living and social functioning. (Tr. 21). 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). Considering the entirety of the ALJ’s RFC analysis, I find that the ALJ properly
evaluated Dr. Miller’s opinion.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (ECF No. 15)
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.
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