White v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 5/1/2017. (ah4s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Civil No. TMD 16-2447
MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Vernon White, Jr., 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 and alternative motion for
remand (ECF No. 14) and Defendant’s Motion for Summary Judgment (ECF No. 15).2 Plaintiff
contends that the administrative record does not contain substantial evidence to support the
On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
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.
Commissioner’s decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the
reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 14) is GRANTED.
Plaintiff was born in 1966, has a high-school education, and previously worked as a
plumber, construction worker, and laborer/cleaner. R. at 26, 38-39, 222. Plaintiff protectively
filed applications for DIB and SSI on May 24, 2012, alleging disability beginning on December
16, 2011, due to diabetes, high blood pressure, heart and prostate problems, blood clots, and a
R. at 14, 68, 192-204, 221.
The Commissioner denied Plaintiff’s
applications initially and again on reconsideration, so Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. at 68-127, 132-40. On October 9, 2014, ALJ Geraldine
H. Page held a hearing where Plaintiff and a vocational expert (“VE”) testified. R. at 34-67. On
January 21, 2015, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset
date of disability of December 16, 2011, through the date of the decision. R. at 11-33. Plaintiff
sought review of this decision by the Appeals Council, which denied Plaintiff’s request for
review on May 26, 2016. R. at 1-5, 8-10, 310-11, 646-47. 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 (2000).
On June 30, 2016, 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
Kelly Zinna, Psy.D.
On September 14, 2012, Kelly Zinna, Psy.D., conducted a consultative psychological
examination of Plaintiff. R. at 23-24, 544-49. Dr. Zinna’s diagnoses included Plaintiff’s history
of severe, major depressive disorder; alcohol dependence in sustained remission; learning
disorder not otherwise specified; rule out attention-deficit hyperactivity disorder; attention,
comprehension, learning, and memory problems; social isolation; and a GAF score of 45. 3 R. at
546. Dr. Zinna opined:
Given test findings, [Plaintiff] can be expected to perform at average or near
average levels on most intellectual and cognitive tasks. However[,] when faced
with memory tasks, [Plaintiff] is likely to show marked deficits. He will do better
on verballybased tasks as opposed to those requiring visual-spatial processing
and/or psychomotor speed. His best performance will be achieved when
directives are presented concretely, with verbal instructions and visual examples,
additional time for rehearsal, repetition and external checks on his integration and
understanding. He may also benefit from environmental cues.
R. at 546.
Dr. Zinna also found that Plaintiff’s ability to understand and follow simple
instructions independently was within normal limits. R. at 549.
The GAF, or global assessment of functioning, scale rates psychological, social, and
occupational functioning; it is divided into ten ranges of functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000). A GAF
rating between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) [or] any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job).” Id. at 34; see Martise v. Astrue, 641
F.3d 909, 917 n.5 (8th Cir. 2011); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 598 n.1
(9th Cir. 1999). The current edition of the manual eliminated the GAF scale for reasons
including “its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in
its descriptors) and questionable psychometrics in routine practice.” Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013).
State Agency Medical Consultants
On October 1, 2012, a state agency medical consultant, S.K. Najar, M.D., assessed
Plaintiff’s physical residual functional capacity (“RFC”). R. at 73-75, 85-87. Dr. Najar opined
that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently;
(2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six
hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 73, 85.
Plaintiff occasionally could stoop and frequently could balance, kneel, crouch, crawl, and climb
ramps and stairs (but never ladders, ropes, or scaffolds). R. at 73-74, 85-86. Although he was to
avoid all exposure to hazards, such as machinery and heights, Plaintiff had no manipulative,
visual, or communicative limitations. R. at 74, 86.
On October 2, 2012, a state agency consultant, K. Wessel, Ed.D., using the psychiatric
review technique (the “PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff’s
mental impairment under Listing 12.02 relating to organic mental disorders (R. at 71-72, 83-84).
See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.02. Dr. Wessel opined that, under paragraph B of the
applicable listing, Plaintiff’s mental impairment 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 72, 84. Dr. Wessel did not find
evidence to establish the presence of the criteria under paragraph C of the applicable listing. R.
at 72, 84. Dr. Wessel thus assessed Plaintiff’s mental RFC and opined that he was moderately
limited in his ability to (1) understand, remember, and carry out detailed instructions; and to
(2) maintain attention and concentration for extended periods.
significantly limited. R. at 75-76, 87-88.
Plaintiff otherwise was not
On March 22, 2013, another state agency consultant, M. Ahn, M.D., again assessed
Plaintiff’s physical RFC. R. at 99-101, 113-15. Dr. Ahn opined that Plaintiff could (1) lift
and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a
total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour
workday; and (4) perform unlimited pushing and/or pulling. R. at 99, 113. Dr. Ahn further
opined that Plaintiff frequently could balance and occasionally could climb, stoop, kneel, crouch,
and crawl. R. at 99-100, 113-14. Although he was to avoid all exposure to hazards, such as
machinery and heights, Plaintiff had no manipulative, visual, or communicative limitations. R.
at 100, 114.
On March 25, 2013, another state agency consultant, Elliott Rotman, Ph.D., again used
the PRT to evaluate Plaintiff’s mental impairment under Listing 12.02. R. at 97-98, 111-12. Dr.
Rotman opined that, under paragraph B of the applicable listing, Plaintiff’s mental impairment
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, 112. Dr. Rotman did not find evidence to establish the presence of the
criteria under paragraph C of the applicable listing. R. at 98, 112. Dr. Rotman thus assessed
Plaintiff’s mental RFC and opined that he was moderately limited in his ability to (1) understand,
remember, and carry out detailed instructions; and to (2) maintain attention and concentration for
extended periods. Plaintiff otherwise was not significantly limited. R. at 101-02, 115-16.
The ALJ reviewed Plaintiff’s testimony in her decision:
[Plaintiff’s] hearing testimony reported having a special education, being
paralyzed from the waist down, inability to stand up, walk over 10 feet, or lift
over 10 pounds, difficulty bending over, use of a cane, not doing any chores
inside or outside, and being picked on and bullied by people. However, he also
reported having breakfast, watching TV all day long, letting out, playing with and
feeding the dog, washing clothes with the help of neighbors, and taking
medications. [Plaintiff’s] adult function reports note loss of energy, vision
problems, trouble walking and standing, leaning on things, and staying by himself
in the bedroom like a hermit. However, he also reported taking his medications,
making coffee, taking care of a pet dog, watching TV, checking the mail,
independent personal care, preparing simple meals, taking out trash, cleaning,
doing laundry, driving, walking, watching movies, playing video games, going
outside daily, shopping in stores, and attending AA meetings. He reported no
problems getting along with family, friends, neighbors, or others, and said he got
along with authority figures “good”. He reported problems with memory,
completing tasks, concentration, understanding, and following instructions, but he
also reported being able to follow spoken instructions, and handle stress and
changes in routine “good”, pay bills, count change, and use a checkbook/money
orders [R. at 228-35, 258-69, 272-87].
[Plaintiff] testified he was unable to work due to blood clots, diabetes,
hand and leg nerve damage, cataract surgery, and past rotator cuff surgery left
shoulder, back and right leg problems, difficulty bending over, and use of a nonprescribed cane. [Plaintiff] further reported high blood pressure, heart problems,
learning disability, hernia, slipped disc, manic depression, a heart attack in 2010,
feet swelling, leg weakness, poor vision, and prostate cancer.
R. at 25; see R. at 38-58.
The VE testified that a hypothetical individual with Plaintiff’s same age, education, work
experience, and the RFC outlined below in Part III could not perform Plaintiff’s past work but
could perform the unskilled, light jobs of assembler, packer or folder, and sorter.4 R. at 60-62.
“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.” 20 C.F.R. §§ 404.1568(a), 416.968(a). “Light
An individual who would miss more than two days of work a month or who would be “off task”
11% to 21% of the workday could not perform any work. R. at 63-64. According to the VE, his
testimony was consistent with the Dictionary of Occupational Titles.5 R. at 64.
Summary of ALJ’s Decision
On January 21, 2015, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of December 16, 2011; 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 an assembler, packer/folder, or sorter. R. at
16-27. The ALJ thus found that he was not disabled from December 16, 2011, through the date
of the decision. R. at 27.
In so finding, the ALJ found that, with regard to concentration, persistence, or pace,
[Plaintiff] has moderate difficulties. As aforementioned, [Plaintiff’s] hearing
testimony reported having special education classes, inability to stand up, walk
over 10 feet, or lift over 10 pounds, difficulty bending over, and use of a cane.
However, he also reported watching TV all day long and taking his medications.
work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” Id. §§ 404.1567(b), 416.967(b).
“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).
[Plaintiff’s] adult function reports noted loss of energy, vision problems, and
trouble walking and standing, leaning on things. However, he also reported
making coffee, taking care of a pet dog, watching TV, checking the mail,
independent personal care, preparing simple meals, taking out trash, cleaning,
doing laundry, driving, walking, watching movies, and playing video games [R. at
228-35, 258-69, 272-87,] all of which require the ability to concentrate. The
undersigned agrees with the State agency psychological consultants that
[Plaintiff] has a moderate restriction in this area due to mental impairment.
R. at 18-19.
The ALJ found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) and he
can lift and/or carry 20 pounds occasionally and 10 pounds frequently. He can sit,
stand, and walk for six hours each in an eight-hour workday. He can occasionally
climb ramps and stairs, kneel, stoop, crouch, and crawl. He can frequently
balance and reach overhead with the left upper extremity. He should avoid
concentrated exposure to extreme temperatures, excess humidity, and pulmonary
irritants. He should avoid exposure to hazardous machinery, unprotected heights,
climbing ladders, ropes, scaffolds, or work on vibrating surfaces. He is able to
understand, remember, and carry out simple instructions in repetitive, unskilled
work. He is limited to work that involves only occasional interaction with the
R. at 20.
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 21. The
ALJ gave “great weight” to Dr. Zinna’s opinion that Plaintiff’s ability to understand and follow
simple instructions independently was within normal limits, “with exception of the GAF
assessment, which is inconsistent with Dr. Zinna’s mainly benign clinical findings.” R. at 24.
The ALJ also gave “great weight” to the opinions of Drs. Wessel and Rotman “as consistent with
the evidence of record as a whole, except [Plaintiff’s] concentration, persistence or pace is found
to be mild to moderate based on the evidence in the record.” R. at 24.
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, 379-80 (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).6
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.
§§ 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
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.
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 substantial evidence does not support the ALJ’s assessment of his
RFC because the ALJ failed to evaluate his obesity, to explain the weight given to the opinions
of his treating sources, and to account for his moderate difficulties in maintaining concentration,
persistence, or pace. For the reasons discussed below, the Court remands this matter for further
Social Security Ruling7 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
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
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
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 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 argues that, in assessing his RFC and in presenting hypothetical questions to the
VE, the ALJ failed to consider his moderate difficulties in maintaining concentration,
persistence, or pace, contrary to Mascio. Pl.’s Mem. Supp. Mot. Summ. J. 21-22, ECF No. 14-1.
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-14-2214, 2015 WL 2395108, at *3 (D. Md. May 19,
2015), report and recommendation adopted (D. Md. June 5, 2015).
Here, the ALJ’s hypothetical questions to the VE and the corresponding RFC assessment
limiting Plaintiff to understanding, remembering, and carrying out “simple instructions in
repetitive, unskilled work” that “involves only occasional interaction with the general public” (R.
at 20; see R. at 61) do not account for Plaintiff’s moderate difficulties in maintaining
concentration, persistence, or pace. See Mascio, 780 F.3d at 638; Stewart v. Astrue, 561 F.3d
679, 684-85 (7th Cir. 2009) (per curiam) (rejecting contention that “the ALJ accounted for [the
claimant’s] limitations of concentration, persistence, and pace by restricting the inquiry to
simple, routine tasks that do not require constant interactions with coworkers or the general
public”); 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00(C)(2). But see Hillard v. Colvin, Civil
Action No. ADC-15-1442, 2016 WL 3042954, at *6 (D. Md. May 26, 2016) (“The ALJ
additionally accounted for Plaintiff’s limitation in concentration and persistence by restricting
him to work ‘without frequent interaction with co-workers or the public.’”); 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.”). “[T]he issue in this case is not whether the record
contains evidence that might support the ALJ’s conclusions; it is whether the ALJ explained the
apparent discrepancy between her step three finding and her RFC assessment.” Talmo, 2015 WL
2395108, at *3. In short, neither the ALJ’s RFC assessment nor her hypothetical questions to the
VE address Plaintiff’s ability to stay on task, and the Court is left to guess how the ALJ
accounted for this ability despite finding that Plaintiff has moderate difficulties in maintaining
concentration, persistence, or pace. Because the inadequacy of the ALJ’s analysis frustrates
meaningful review, remand under the fourth sentence of 42 U.S.C. § 405(g) is appropriate, see
Mascio, 780 F.3d at 636, and the Court need not address Plaintiff’s remaining arguments.
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 15) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 14) is GRANTED. Defendant’s final decision is
REVERSED IN PART under the fourth sentence of 42 U.S.C. § 405(g).
This matter is
REMANDED for further proceedings consistent with this opinion. A separate order will issue.
Date: May 1, 2017
Thomas M. DiGirolamo
United States Magistrate Judge
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