Mongan v. Colvin

Filing 17

ORDER denying 15 Motion of plaintiff for Summary Judgment; denying 16 Motion of defendant for Summary Judgment; the Commissioners judgment is REVERSED IN PART due to inadequate analysis. The case is REMANDED for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 10/13/2016. (jnls, 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]

October 13, 2016
LETTER TO COUNSEL
RE:

Robert Mongan v. Commissioner, Social Security Administration;
Civil No. SAG-16-64

Dear Counsel:
On January 8, 2016, Plaintiff Robert Mongan 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. Mongan filed claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on August 23, 2010. (Tr. 309-18). He alleged a disability onset date of
October 6, 2009. Id. His claims were denied initially and on reconsideration. (Tr. 185-97, 198211). A hearing was held on August 15, 2012, before an Administrative Law Judge (“ALJ”).
(Tr. 74-109). Following the hearing, the ALJ determined that Mr. Mongan was not disabled
within the meaning of the Social Security Act during the relevant time frame. (Tr. 114-30). The
Appeals Council granted Mr. Mongan’s request for review, and remanded the case to the ALJ for
further consideration. (Tr. 131-34). The ALJ held a second hearing on May 6, 2014, (Tr. 35-73),
and again denied benefits in a decision dated August 27, 2014. (Tr. 9-34). This time, the
Appeals Council denied Mr. Mongan’s request for review, (Tr. 1-4), so the ALJ’s decision
constitutes the final, reviewable decision of the Agency.
The ALJ found that Mr. Mongan suffered from the severe impairments of:
obesity, headaches/occipital neuralgia, a myofascial/chronic pain syndrome
manifested as fibromyalgia or myalgia, affecting multiple joints with neurological
symptoms (including a benign essential tremor of the right hand) of undetermined
etiology, degenerative disc disease/spondylosis of the lumbosacral spine with
lumbar facet arthropathy, mild osteoarthritis of the hips, mild degenerative disc
disease of the thoracic spine, borderline intellectual functioning, a depressive
disorder, an unspecified anxiety disorder and a possible personality disorder.

Robert Mongan v. Commissioner, Social Security Administration
Civil No. SAG-16-64
October 13, 2016
Page 2

(Tr. 15). Despite these impairments, the ALJ determined that Mr. Mongan retained the residual
functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
that he needs an assistive device for ambulation and must be able to rise from a
seated position four times per hour, in place, for two to five minutes. Due to
lightheadedness and leg weakness, he can only occasionally work around
dangerous machinery, heights or steps. He can occasionally push, pull, stoop,
squat, crawl, kneel or crouch. The claimant can understand, remember and carry
out instructions in unskilled or entry-level positions.
(Tr. 18). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Mongan could perform jobs existing in significant numbers in the national economy and
that, therefore, he was not disabled. (Tr. 26-27).
Mr. Mongan raises two primary arguments on appeal: (1) that the ALJ erred in assessing
his RFC; and (2) that the ALJ provided an inadequate hypothetical question to the VE. Pl. Mot.
4-8. In addition, because Mr. Mongan raised the issue within his more general challenge to the
ALJ’s RFC assessment, I considered his case under the dictates of Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015), and I conclude that the ALJ committed an error under Mascio. Remand is
therefore appropriate. In so holding, I express no opinion regarding whether the ALJ’s ultimate
conclusion that Mr. Mongan is not disabled is correct or incorrect.
Beginning with the Mascio issue, in that case, 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. at § 404.1620a(c)(4). In order to

Robert Mongan v. Commissioner, Social Security Administration
Civil No. SAG-16-64
October 13, 2016
Page 3
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
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 that Mr. Mongan had a moderate limitation in
concentration, persistence, or pace. (Tr. 17-18). The ALJ noted Mr. Mongan’s alleged
“difficulty with attention, concentration, memory and task completion,” and “not[ed] that he
relied on his wife to handle their finances.” Id. The ALJ also cited medical evidence throughout
the record regarding Mr. Mongan’s ability to concentrate, his “test scores reflect[ing] that he has
borderline intellectual functioning,” and several medical opinions finding deficits in his
concentration. (Tr. 17-25). However, the ALJ also noted that Mr. Mongan “admitted that he can
operate a riding lawn mower and a car, tasks that require him to sustain concentration,” and that
objective examination revealed “only mild limitations on understanding, remembering and
carrying out simple instructions.” (Tr. 18, 853-64). Subsequently, the ALJ found that the
evidence “reflects no more than moderate difficulties maintaining concentration, persistence or
pace.” (Tr. 18).

Robert Mongan v. Commissioner, Social Security Administration
Civil No. SAG-16-64
October 13, 2016
Page 4
Ultimately, the ALJ’s analysis is simply insufficient to permit adequate review. Without
further explanation, I am unable to ascertain whether the ALJ truly believed Mr. Mongan to have
moderate difficulties in concentration, persistence, and pace, instead of mild, or no difficulties,
and how those difficulties restrict his RFC to “understand, remember and carry out instructions
in unskilled or entry-level positions” without further limitation. 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 explain why Mr. Mongan has
moderate difficulties in concentration, persistence, and pace, and should impose an appropriate
limitation(s) to address his difficulties. In so holding, I make no finding as to whether the ALJ’s
ultimate conclusion that Mr. Mongan was not disabled was correct or incorrect.
Mr. Mongan makes the additional argument that the ALJ erred in his RFC
assessment. Specifically, Mr. Mongan contends that the ALJ “should have [] found [Mr.
Mongan] to be disabled due to a combination of loss of productivity and limitations in the use of
his hands[.]” Pl. Mot. 4-6. To support his assertion, Mr. Mongan cites testimony and record
evidence supporting disabling headaches, as well as hand and arm tremors and numbness, among
other findings. Id. Critically, Mr. Mongan does not suggest any restrictions that, in his view,
should have been included in the RFC assessment. Regardless, in this case, the ALJ properly
assessed his RFC and supported his conclusions with substantial evidence. Regarding Mr.
Mongan’s headaches, the ALJ noted that “Mr. Mongan was having migraine headaches two to
three times per week,” but was “prescribed Fioricet.” (Tr. 22, 738-54). Indeed, treatment
records “through April 2014 reflect that with this medication, [Mr. Mongan’s] headaches, while
daily, were not as intense[.]” (Tr. 22, 790-826). Critically, Mr. Mongan corroborated the reduced
intensity of his headaches, and most recently described them as “stable.” (Tr. 22-23, 791).
Moreover, objective medical evidence, including the fact that he had a “normal brain MRI scan
and EKG,” and a lack of “focal weakness,” (Tr. 738-54), further belies Mr. Mongan’s allegations
of disabling headaches. (Tr. 21).
Regarding Mr. Mongan’s hand limitations, the ALJ noted normal findings throughout the
objective medical record, including an “unremarkable” cervical spine MRI, “normal” EMG
studies, “normal nerve conduction studies,” “no signs of [joint] swelling,” no “evidence of carpal
tunnel syndrome,” “normal coordination,” and “good reflexes and good strength.” (Tr. 20-21). In
addition, the ALJ noted that Mr. Mongan “consistently exhibited normal (5/5) strength with no
signs of muscle atrophy and minimal signs of weakness.” (Tr. 23). Moreover, the ALJ noted
that Mr. Mongan’s testimony that he could “use a ‘hand gripper’ despite allegations that he
cannot hold anything for long.” (Tr. 24). Furthermore, the ALJ cited evidence from treating
physician Dr. Ali that Mr. Mongan’s “right upper extremity tremor resolved when he was
distracted,” (Tr. 23, 534-40), and that, contrary to Mr. Mongan’s complaints of a demyelinating
disease, Mr. Mongan’s tremor was “a benign essential tremor,” (Tr. 23).
Importantly, 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

Robert Mongan v. Commissioner, Social Security Administration
Civil No. SAG-16-64
October 13, 2016
Page 5
the entirety of the ALJ’s analysis, I find that the ALJ properly evaluated Mr. Mongan’s RFC
assessment.
Last, and relatedly, Mr. Mongan argues that the ALJ failed to provide the VE with a
sufficient hypothetical. Specifically, Mr. Mongan contends that the ALJ’s failure to include his
headaches and hand limitations in the hypothetical to the VE rendered his opinion deficient. Pl.
Mot. 7-8. As an initial matter, an ALJ is afforded “great latitude in posing hypothetical
questions,” Koonce v. Apfel, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999), and need only pose
those that are based on substantial evidence and accurately reflect a claimant’s limitations. See
Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir. 1988). Likewise, a hypothetical question is
unimpeachable if it adequately reflects the RFC for which the ALJ had sufficient evidence. See
Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005). In this case, the ALJ framed a
hypothetical based on the RFC. (Tr. 66-67). In response, the VE stated that Mr. Mongan could
perform several jobs existing in the national economy. (Tr. 67-69). As discussed above, the ALJ
did not credit Mr. Mongan’s allegations of disabling headaches or hand use limitations in the
RFC or the hypothetical to the VE. This conclusion is supported by ample evidence in the
objective medical record. The ALJ was under no obligation to include impairments for which he
later did not find sufficient evidence. Accordingly, the VE was fully informed of Mr. Mongan’s
physical capabilities during the hearing and the ALJ’s hypothetical was proper. Remand is
therefore not required on this issue.
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