McCoy v. Commissioner of Social Security
Filing
26
ORDER denying 21 Plaintiff's Motion for Summary Judgment; denying 22 Defendant's Motion for Summary Judgment; reversing the Commissioner's judgment in part due to inadequate analysis; remanding case for further proceedings; closing this case. Signed by Magistrate Judge Stephanie A Gallagher on 5/30/2017. (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
(410) 962-7780
Fax (410) 962-1812
May 30, 2017
LETTER TO COUNSEL
RE:
Gary McCoy v. Commissioner, Social Security Administration;
Civil No. SAG-16-2967
Dear Counsel:
On August 24, 2016, Plaintiff Gary McCoy 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, and Mr. McCoy’s reply. (ECF Nos. 21, 22, 25). 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. McCoy filed claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on April 1, 2010,1 alleging a disability onset date of July 6, 2005. (Tr.
283-96). His claims were denied initially and on reconsideration. On April 27, 2012, the
Administrative Law Judge dismissed Mr. McCoy’s request for hearing as untimely. (Tr. 13031). However, on November 5, 2012, the Appeals Council (“AC”) remanded Mr. McCoy’s case
for further consideration and a hearing. (Tr. 125-26). A hearing was held on November 8, 2013,
and at the conclusion of the hearing the ALJ ordered a consultative examination. (Tr. 1762-97).
After the examination, another hearing was held on April 30, 2014. (Tr. 1742-61). Following
those hearings, on November 20, 2015, the ALJ determined that Mr. McCoy was not disabled
during the relevant time frame. (Tr. 46-65). This time, the AC denied Mr. McCoy’s request for
review, (Tr. 12-15), so the ALJ’s 2015 decision constitutes the final, reviewable decision of the
Agency.
1
Mr. McCoy had previously filed other applications for benefits. Those applications had been dismissed,
but the dismissals were later vacated. See, e.g., (Tr. 217-18, 257-71). At the hearing, then, the ALJ was
clear that despite the prior applications, she would consider Mr. McCoy’s application back to his original
alleged onset date of July 2005. (Tr. 1767). She ultimately concluded, however, that he had engaged in
substantial gainful activity up until August 20, 2008. (Tr. 48).
Gary McCoy v. Commissioner, Social Security Administration
Civil No. SAG-16-2967
May 30, 2017
Page 2
The ALJ found that Mr. McCoy suffered from the severe impairments of “degenerative
disc disease of the lumbar spine; mild osteoarthritis of the right knee; obesity; asthma; organic
mental disorder; affective disorder; anxiety disorder; and personality disorder, NOS.” (Tr. 4849). Despite these impairments, the ALJ determined that Mr. McCoy retained the residual
functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except lift
and carry 20 pounds occasionally and 10 pounds frequently; stand and walk for 2
hours in an 8 hour day; sit for 6 hours in an 8 hour day; occasionally climb,
balance, stoop, kneel, crouch, and crawl; must avoid extremes of cold and
extremes of heat; must avoid all hazards such as machinery and heights; must
avoid concentrated exposure to lung irritants such as fumes, odors, gases, and
dust; is limited to simple, routine, repetitive tasks, with only occasional
interaction with others; and is limited to the performance of only 1-2 step task
jobs.
(Tr. 53-54). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that Mr. McCoy could perform jobs existing in significant numbers in the national economy and
that, therefore, he was not disabled. (Tr. 64-65).
Mr. McCoy raises four primary arguments on appeal: (1) that the ALJ erred in assessing
Listing 1.04; (2) that the ALJ improperly evaluated his mental health limitations under the
Listings; (3) that the ALJ assigned inadequate weight to the opinions of his treating physicians;
and (4) that the ALJ’s credibility assessment was unsupported. I concur that the ALJ’s mental
analysis of Mr. McCoy’s mental health limitations was deficient, particularly in consideration of
the Fourth Circuit’s decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015).2
Accordingly, I am remanding the case to allow compliance with that decision. However, I
express no opinion as to whether the ALJ’s ultimate conclusion that Mr. McCoy is not entitled to
benefits is correct or incorrect.
Beginning with the successful argument, 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. 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
Although Mr. McCoy did not specifically reference Mascio, his broad contention that the ALJ’s analysis
of his mental health limitations was deficient encompasses a Mascio argument.
2
Gary McCoy v. Commissioner, Social Security Administration
Civil No. SAG-16-2967
May 30, 2017
Page 3
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
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 Mr. McCoy to have moderate limitations in
maintaining concentration, persistence, or pace. (Tr. 52). The entirety of the analysis states:
Gary McCoy v. Commissioner, Social Security Administration
Civil No. SAG-16-2967
May 30, 2017
Page 4
The claimant reported that his ability to follow written instructions such as a
recipe depended on what was being prepared. The claimant stated that he
followed spoken instructions “somewhat well.” On exam of November 29, 2010,
the claimant was able to recall three objects after a five minute distraction, write a
complete sentence, and follow a written command. The claimant was able to
complete 7 digits forward and 2 backwards. On December 4, 2013, the claimant
was able to understand and follow simple directions.
(Tr. 52) (internal citations omitted). 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 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. McCoy’s case does
not provide a basis for the finding of “moderate difficulties,” since most of the description
would suggest mild or no limitations. In fact, later in the opinion, the ALJ gives “little weight”
to a treating physician’s suggestion that Mr. McCoy lacked sufficient ability to focus or
concentrate for the purposes of jury service. (Tr. 38). Therefore, without further explanation, I
am unable to ascertain whether the ALJ truly believed Mr. McCoy to have moderate difficulties
in concentration, persistence, and pace, instead of mild, or no difficulties, and how those
difficulties restrict his RFC to “simple, routine, repetitive tasks, with only occasional interaction
with others; and . . . only 1-2 step task jobs.” (Tr. 53-54). None of those limitations address Mr.
McCoy’s ability to sustain work over an eight-hour workday.3 In light of this inadequacy, I must
In fact, at the hearings, Mr. McCoy’s attorney repeatedly attempted to ask questions regarding his ability
to sustain concentration and production. (Tr. 1755, 1757, 1794-96). The ALJ took the position that he
imposed the RFC limitation to one to two step tasks in response to Mr. McCoy’s psychological
3
Gary McCoy v. Commissioner, Social Security Administration
Civil No. SAG-16-2967
May 30, 2017
Page 5
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 limitation
under the dictates of Mascio.
While Mr. McCoy’s remaining arguments are less persuasive, the ALJ will have the
ability to provide further explanation on remand. For example, the ALJ identified Listing 1.04 as
potentially applicable to Mr. McCoy’s case, but then provided no analysis except a conclusory
assertion that none of the enumerated criteria of that listing had been satisfied. (Tr. 50-51). On
remand, the ALJ may want to provide additional citations to the medical evidence supporting
that assertion. Similarly, I find no obvious error in either the ALJ’s assignments of weight to the
opinion evidence or the ALJ’s adverse credibility assessment. However, on remand, the ALJ
may decide that additional explanation as to one or both of those areas would be appropriate.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (ECF No. 21)
is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 22) 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
impairments, (Tr. 1755, 1795), but did not explain how that limitation would address Mr. McCoy’s
difficulties with sustained concentration or sustained work performance.
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