Brooks v. Colvin

Filing 18

ORDER denying 15 Plaintiff's Motion for Summary Judgment; denying 16 Defendant's Motion for Summary Judgment; reversing in part the Commissioner's judgment; and remanding the case for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 6/21/2017. (bmhs, 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]

June 21, 2017
LETTER TO COUNSEL
RE:

Kiorsini Brooks v. Commissioner, Social Security Administration;
Civil No. SAG-16-3001

Dear Counsel:
On August 27, 2016, Plaintiff Kiorsini Brooks petitioned this Court to review the Social
Security Administration’s final decision to deny his claims for Supplemental Security Income
and Disability Insurance Benefits. (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. Brooks filed claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on January 31, 2012, alleging a disability onset date of January 1, 2008.
(Tr. 206-18). His claims were denied initially and on reconsideration. (Tr. 138-42, 145-48). A
hearing was held on August 19, 2014, before an Administrative Law Judge (“ALJ”). (Tr. 65-91).
Following the hearing, the ALJ determined that Mr. Brooks was not disabled within the meaning
of the Social Security Act during the relevant time frame. (Tr. 24-64). The Appeals Council
(“AC”) denied Mr. Brooks’s request for further review, (Tr. 1-5), so the ALJ’s decision
constitutes the final, reviewable decision of the Agency.
The ALJ found that Mr. Brooks suffered from the severe impairments of cervical
degenerative disc disease, chronic pancreatitis, schizophrenia, schizoaffective disorder, bipolar
disorder, mood disorder, anxiety disorder, personality disorder, and history of polysubstance use
and alcohol dependence. (Tr. 30). Despite these impairments, the ALJ determined that, if Mr.
Brooks were to stop substance use, he would retain the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
can understand, remember, and carry out simple instructions. He can perform
simple, routine, and repetitive tasks with only occasional changes in the work
setting. He can have only occasional required interaction with the general public,
co-workers, and supervisors.

Kiorsini Brooks v. Commissioner, Social Security Administration;
Civil No. SAG-16-3001
June 21, 2017
Page 2
(Tr. 45). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Brooks could perform several jobs existing in the national economy and that, therefore, he
was not disabled. (Tr. 53-55).
Mr. Brooks’s sole argument on appeal is 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). I agree. 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 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

Kiorsini Brooks v. Commissioner, Social Security Administration;
Civil No. SAG-16-3001
June 21, 2017
Page 3
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, if Mr. Brooks were to stop substance use, he
would have moderate difficulties maintaining concentration, persistence, or pace. (Tr. 44). The
entirety of the analysis states, “[Mr. Brooks] testified that sometimes he walks to the grocery
store and goes to Starbucks every evening. He has a driver’s license but does not drive, and he
travels by bus.” 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 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. Brooks’s case fails
to fulfill these requirements. Without further explanation, I am unable to ascertain whether the
ALJ truly believed Mr. Brooks 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, and repetitive tasks with only occasional changes in the work setting.” (Tr. 45). Indeed,
the ALJ’s analysis entirely fails to address Mr. Brooks’s ability to sustain work over an eighthour 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

Kiorsini Brooks v. Commissioner, Social Security Administration;
Civil No. SAG-16-3001
June 21, 2017
Page 4
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.
In remanding for additional explanation, I express no opinion as to whether the ALJ’s ultimate
conclusion that Mr. Brooks is not entitled to benefits is correct or incorrect.
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