Rice v. Commissioner of Social Security

Filing 23

MEMORANDUM AND ORDER denying Plaintiff's 14 Motion for Summary Judgment; denying Defendant's 17 Motion for Summary Judgment; reversing Commissioner's judgment in part; remanding for further proceedings; closing case. Signed by Magistrate Judge Stephanie A Gallagher on 5/24/2017. (dass, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

May 24, 2017
LETTER TO COUNSEL
RE:

Wanda Rice v. Commissioner, Social Security Administration;
Civil No. SAG-16-2582

Dear Counsel:
On July 15, 2016, Plaintiff Wanda Rice petitioned this Court to review the Social
Security Administration’s final decision to deny her claim for Supplemental Security Income.
(ECF No. 1). I have considered the parties’ cross-motions for summary judgment, and Ms.
Rice’s reply. (ECF Nos. 14, 17, 22). 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.
Ms. Rice filed a claim for Supplemental Security Income (“SSI”) in May, 2012, alleging
a disability onset date of July 1, 2002. (Tr. 135-41). Her claim was denied initially and on
reconsideration. (Tr. 57-69, 71-86). A hearing was held on November 24, 2014, before an
Administrative Law Judge (“ALJ”). (Tr. 28-56). Following the hearing, the ALJ determined
that Ms. Rice was not disabled within the meaning of the Social Security Act during the relevant
time frame. (Tr. 9-27). The Appeals Council denied Ms. Rice’s request for review, (Tr. 1-4), so
the ALJ’s decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Ms. Rice suffered from the severe impairments of “degenerative joint
disease, acromioclavicular (“AC”) joints, greater on the right; disc osteophyte complex with
stenosis, cervical spine; degenerative arthritis of the lumbar spine; fibromyalgia; and mental
disorders diagnosed to include bipolar disorder, depressive disorder and generalized anxiety
disorder.” (Tr. 14). Despite these impairments, the ALJ determined that Ms. Rice retained the
residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 416.967(b) except: occasional pushing
and pulling with upper extremities; occasional climbing of stairs and ramps; no
climbing of ladders, ropes or scaffolds; occasional balancing, stooping, kneeling,
crouching and crawling; occasional reaching overhead (above the shoulders) and
occasional exposure to vibration. She can perform unskilled work at an SVP 1 or
2 involving simple routine tasks that has [sic] no contact with the general public.

Wanda Rice v. Commissioner, Social Security Administration
Civil No. SAG-16-2582
May 24, 2017
Page 2
(Tr. 16). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Rice could perform jobs existing in significant numbers in the national economy and that,
therefore, she was not disabled. (Tr. 21-23).
Ms. Rice 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 the opinion of the treating nurse practitioner, Ms.
Sanford.1 Pl. Mot. 5-16. I concur that the ALJ’s opinion is deficient under Mascio, and
therefore 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 Ms. Rice is
not entitled to benefits is correct or incorrect.
Beginning with 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. Mascio, 780 F.3d 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
1

Ms. Rice also argues that the ALJ did not provide her with a full and fair hearing. Pl. Mot. 3-10; see 20 C.F.R. §
416.1441. Specifically, Ms. Rice, who was unrepresented at the administrative level, contends that the ALJ failed to
“ensure [she] could review her records[,]…explain the role of the vocational expert and [] assist [her] in asking any
questions of [the VE]” at the hearing. Pl. Mot. 4. “[I]n pro se cases, ALJs have ‘a duty to assume a more active role
in helping claimants develop the record.’” Craig v. Chater, 76 F.3d 585, 591 (4th Cir. 1996) (quoting Sims v. Harris,
631 F.2d 26, 28 (4th Cir. 1980)). However, “the ALJ is not required to function as the claimant’s substitute counsel,
but only to develop a reasonably complete record.” Crussiah v. Colvin, No. CIV. TMD 12-2307, 2014 WL
3778615, at *12 (D. Md. July 29, 2014), aff’d, 589 F. App’x 76 (4th Cir. 2014) (internal citation and quotation
marks omitted). Indeed, “[w]here the ALJ fails in his duty to fully inquire into the issues necessary for adequate
development of the record, and such failure is prejudicial to the claimant, the case should be remanded.” Marsh v.
Harris, 632 F.2d 296, 300 (4th Cir. 1980). Ultimately, because the ALJ’s RFC analysis warrants remand, the ALJ
should, on remand, adequately develop the record to ensure that Ms. Rice receives a full and fair hearing.

Wanda Rice v. Commissioner, Social Security Administration
Civil No. SAG-16-2582
May 24, 2017
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 Ms. Rice to have moderate difficulties maintaining
concentration, persistence, or pace. (Tr. 15). The entirety of the analysis states, “[Ms. Rice]
alleges trouble concentrating; however, she is able to provide a coherent and sequential history.
She reads and can independently handle her finances. Mental status examinations also show
intact memory and thought processes.” (Tr. 16). 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.

Wanda Rice v. Commissioner, Social Security Administration
Civil No. SAG-16-2582
May 24, 2017
Page 4

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 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 Ms. Rice’s case
suggests that the finding of “moderate difficulties” was based exclusively on Ms. Rice’s
allegation that she has difficulty concentrating, since the remaining sentences in the analysis
would suggest mild or no limitations. Without further explanation, I am unable to ascertain
whether the ALJ truly believed Ms. Rice to have moderate difficulties in concentration,
persistence, and pace, instead of mild, or no difficulties, and how those difficulties restrict her
RFC to “unskilled work at an SVP 1 or 2 involving simple routine tasks[.]” (Tr. 16). Indeed, the
ALJ’s analysis entirely fails to address Ms. Rice’s ability to sustain work over an eight-hour
workday. 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.
Second, Ms. Rice contends that the ALJ failed to properly evaluate the opinion of the
treating nurse practitioner, Ms. Sanford. Pl. Mem. 13-15. As an initial matter, Ms. Rice
concedes that Ms. Sanford, a certified registered nurse practitioner, is not an acceptable medical
source. Pl. Mot. 13. Because a CRNP is not an “acceptable medical source,” Ms. Sanford cannot
give a “medical opinion” or be considered a treating source. Social Security Ruling (“SSR”) 063P. Whether a source is an “acceptable medical source” or not is a factor that may be considered
in assigning weight to that source’s opinion. Id. However, the opinion of a non-acceptable
medical source, such as a CRNP, is relevant in determining the severity of an impairment and its
impact on an individual’s ability to function. Id. SSR 06-3P explains that the same factors that
apply to evaluating the opinions of medical sources apply to evaluating the opinions of other
sources. Id.
Contrary to Ms. Rice’s assertion, the ALJ cited a variety of those factors as reasons to
discount Ms. Sanford’s evaluation of Ms. Rice’s capabilities. (Tr. 21). Ms. Sanford opined that
Ms. Rice “could lif[t] less than 10 pounds, and never squat, reach or crawl and her medical
condition limited her ability to work indefinitely on and after May 30, 2012 but did not impair
her ability to attend school or training.” Id. However, the ALJ assigned Ms. Sanford’s opinion
“less weight” because it was inconsistent with the medical evidence and unsupported by the

Wanda Rice v. Commissioner, Social Security Administration
Civil No. SAG-16-2582
May 24, 2017
Page 5
objective record. Id. Specifically, the ALJ noted that “[Ms. Sanford’s] treatment notes…do not
support the degree of limitations opined[.]” Id. For example, the ALJ noted that “the objective
findings do not reference the type of weakness or range of motion abnormalities to support the
degree of limitations opined.” Id. In addition, the ALJ noted Ms. Sanford’s finding that several
of Ms. Rice’s physical symptoms “responded to treatment.” Id. Moreover, substantial evidence
in the record belies Ms. Sanford’s findings, including “essentially normal” physical
examinations, (Tr. 18), “generally stable” physical symptoms “with appropriate medications and
treatment,” id., “normal” mental status examinations, (Tr. 19), and “essentially routine and
conservative” mental health treatment “with no current psychiatric hospitalizations, outpatient or
emergency room treatment or any current treatment with any mental health care professional for
her alleged depressive and anxiety symptoms,” (Tr. 20). Consequently, the ALJ concluded that
the objective medical record did not support Ms. Sanford’s opinion. Thus, the ALJ did not
simply reject Ms. Sanford’s opinion as an opinion from a non-acceptable source, but engaged in
an appropriate analysis of the merits of her opinion in light of the other evidence of record.
Ultimately, my review of the ALJ’s decision is confined to whether substantial evidence, in the
record as it was reviewed by the ALJ, supports the decision and whether correct legal standards
were applied. See Richardson v. Perales, 402 U.S. 389, 390, 404 (1971). Even if there is other
evidence that may support Ms. Rice’s position, I am not permitted to reweigh the evidence or to
substitute my own judgment for that of the ALJ. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). Accordingly, the ALJ properly evaluated Ms. Sanford’s opinion and supported her
conclusion with substantial evidence.2 Remand on this basis is therefore unwarranted.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (ECF No. 14)
is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 17) 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

2

The only portion of Ms. Sanford’s opinion that was not sufficiently addressed was the conclusion that Ms. Rice
would have extreme deficits in maintaining concentration. (Tr. 186). That deficiency will be rectified with an
appropriate Mascio analysis of Ms. Rice’s ability to sustain work.