Johnson v. Colvin

Filing 17

MEMORANDUM AND ORDER denying Plaintiff's 15 Motion for Summary Judgment; denying Defendant's 16 Motion for Summary Judgment; remanding case for further proceedings; closing case. Signed by Magistrate Judge Stephanie A Gallagher on 10/24/2017. (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]

October 24, 2017
LETTER TO COUNSEL
RE:

Jean R. Johnson v. Commissioner, Social Security Administration
Civil No. SAG-16-4005

Dear Counsel:
On December 15, 2016, Plaintiff Jean R. Johnson petitioned this Court to review the
Social Security Administration’s final decision to deny her claims for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (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 Commissioner’s decision, and remand the case to
the Commissioner for further consideration. This letter explains my rationale.
Ms. Johnson filed her claims for DIB and SSI on October 26, 2012 and November 6,
2012, respectively. (Tr. 298-99, 300-05). She alleged a disability onset date of April 28, 2011.
Id. Her claims were denied initially and on reconsideration. (Tr. 227-244). A hearing was held
on November 17, 2014, before an Administrative Law Judge (“ALJ”). (Tr. 153-190). Following
the hearing, the ALJ determined that Ms. Johnson was not disabled within the meaning of the
Social Security Act during the relevant time frame. (Tr. 8-25). Thereafter, Ms. Johnson
requested that the Appeals Council review the ALJ’s decision. (Tr. 26). The Appeals Council
denied Ms. Johnson’s request for review, so the ALJ’s 2015 decision constitutes the final,
reviewable decision of the Agency. (Tr. 1-7).
The ALJ found that Ms. Johnson suffered from the severe impairments of “Fibromyalgia,
Pancreatitis, Hypothyroidism, Obesity, and Affective Disorder.” (Tr. 13). Despite these
impairments, the ALJ determined that Ms. Johnson retained the residual functional capacity
(“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant can occasionally climb ramps and stairs, but she can never climb ladders,
ropes or scaffolds, can occasionally balance, stoop, kneel, crouch, and crawl; and
the claimant is limited to routine, repetitive, unskilled tasks and occasional
interaction with supervisors.

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Civil No. SAG-16-4005
October 24, 2017
Page 2
(Tr.15). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Johnson could perform jobs existing in significant numbers in the national economy, and
that, therefore, she was not disabled. (Tr. 18-19).
Ms. Johnson raises two arguments on appeal: (1) that the ALJ erroneously assessed her
RFC; and (2) that the ALJ failed to apply the proper legal standard in discrediting her credibility
and subjective evidence of pain. [ECF No. 15-1, 3, 10]. These arguments are addressed below.
I.

Residual Functional Capacity (“RFC”) Issue

Ms. Johnson argues that the ALJ erroneously assessed her RFC by: (a) failing to provide
an adequate narrative discussion, [ECF No. 15-1, 5-8] (citing Mascio v. Colvin, 780 F.3d 632,
636 (4th Cir. 2015) (stating that the RFC “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 activities, observations”)); and (b)
failing to include her moderate limitations with regard to “concentration, task persistence, or pace
in his [RFC] assessment” in violation of Mascio. [ECF No. 15-1, 8-9]. I agree as to her second
argument.
A. RFC Narrative Discussion
Social Security regulations require an ALJ to include “a narrative discussion of [the]
claimant’s symptoms and medical source opinions.” Thomas v. Comm’r, Soc. Sec., 2011 WL
6130605, at *4 (D. Md. Dec. 7, 2011). In doing so, an ALJ must “build an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000),
as amended (Dec. 13, 2000). With respect to physical RFC, “[e]xertional capacity addresses an
individual’s limitations and restrictions of physical strength and defines the individual’s
remaining abilities to perform each of seven strength demands: [s]itting, standing, walking,
lifting, carrying, pushing, and pulling.” SSR 96-8p, 1996 WL 374184, at *5. Meanwhile,
nonexertional capacity considers limitations not dependent on an individual’s physical strength
including “postural (e.g., stooping, climbing), manipulative (e.g., reaching, handling), visual
(seeing), communicative (hearing, speaking), and mental (e.g., understanding and remembering
instructions and responding appropriately to supervision)[,]” activities. Id. at *6.
Here, the ALJ expressly considered Ms. Johnson’s physical and mental abilities
throughout his RFC analysis, pursuant to subsections (b) and (c) of 20 C.F.R. 404.1545. First,
incorporating nonmedical evidence into his analysis, the ALJ considered Ms. Johnson’s daily
activities of: (1) having “no problem” completing personal care tasks; (2) driving three to four
times a week; (3) shopping with her sister once or twice a month; (4) shopping for groceries once
a month; (4) weeding and planting flowers; (5) putting dishes in the dishwasher; (6) sweeping and
vacuuming; and (7) walking her dog daily. (Tr. 16). Second, the ALJ relied heavily on Ms.
Johnson’s medical records, which consistently: (1) “fail[ed] to establish limitations in range of
motion, strength, sensation, etc.;” (2) documented “normal physical and respiratory
examinations;” (3) revealed normal “pulmonary function[ing];” and (4) provided no indication of

Johnson v. Social Security Administration
Civil No. SAG-16-4005
October 24, 2017
Page 3
“gross functional impairment.” (Tr. 16-17). The evidence cited by the ALJ thus fully supports
his finding that Ms. Johnson can perform “light work.”
B. Mascio Issue
Ms. Johnson next argues that the ALJ’s opinion violates Mascio v. Colvin. [ECF No. 151, 8-9]. 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. Further, the regulations 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,

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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 this case, the ALJ concluded at step three of the sequential process that Ms. Johnson
had moderate difficulties with respect to concentration, persistence, or pace. (Tr. 14). The ALJ
then found that Ms. Johnson had “the [RFC] to perform light work … except the claimant is
limited to routine repetitive, unskilled tasks and occasional interaction with supervisors.” (Tr.
15). As Defendant concedes, however, a “discrepancy [exists] between the ALJ’s finding at step
three concerning [Ms. Johnson’s] limitation in concentration, persistence, and pace, and his RFC
assessment.” [ECF No. 16-1, 6]. The ALJ failed to discuss Ms. Johnson’s moderate difficulties
in concentration, persistence, or pace within his RFC analysis. (Tr. 15-17).
Pursuant to Mascio, I find that remand is required because the ALJ failed to provide
adequate explanation of how Ms. Johnson’s RFC assessment accounts for her “moderate
difficulties” in concentration, persistence, or pace or, alternatively, because he failed to explain
why her moderate difficulties at step three of the sequential process did not translate into a
limitation in her RFC. Urging against remand, Defendant relies upon Jenkins v. Colvin, 2016 WL
4373701 (W.D.N.C. Aug. 12, 2016). [ECF No. 16-1, 10].1 Defendant contends that, pursuant to
Jenkins, the ALJ’s consideration of a plaintiff’s medical records and individual statements within
an RFC discussion can alone “indicate that moderate limitations in concentration, persistence, or
pace, did not translate into the Claimant’s RFC.” Id. In Jenkins, however, the ALJ’s RFC
analysis made it clear that “she considered Plaintiff’s ability to ‘stay on task,’ which the Mascio
court distinguished from the ability to perform simple tasks.” Jenkins, 2016 WL 4373701 at *6.
For example, while the Jenkins ALJ conceded that the “[o]verall evidence in the file shows that
claimant does have [mental] impairments,” she found that it “does not document any listing level
of impairment and none that would preclude her from all work.” Id. Instead, the Jenkins ALJ
found that the evidence, despite her mental impairments, “indicate[d] that the claimant has the
mental capacity to perform simple, routine . . . low-stress work.” Id. As such, Jenkins complied
with Mascio because the ALJ demonstrated that the plaintiff’s limitations in concentration,
persistence, or pace did not affect her ability to work and thus need not have impacted her RFC.
Here, I am without any such express statements from the ALJ. Additionally, this is not a case like
Jackson v. Colvin, BPG-15-3040, at *2 (D. Md. Aug. 11, 2016) in which the ALJ drew a
distinction between a claimant’s ability to sustain simple work and the claimant’s ability to
1

For the second time in recent memory, the Commissioner also provided an incomplete Westlaw citation to another
case, Jackson v. Comm’r, Soc. Sec. Admin. [ECF No. 16-1, 10]. Although I was able to find this case in our Court’s
docket, because it does not appear in Westlaw, the Commissioner either needs to correct her citation or refrain from
including this case in future briefing.

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Civil No. SAG-16-4005
October 24, 2017
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sustain complex tasks. In light of the inadequate RFC analysis regarding Ms. Johnson’s mental
impairments, 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 provide adequate explanation of
how Ms. Johnson’s RFC assessment accounts for her “moderate difficulties” in concentration,
persistence, or pace or, alternatively, why her moderate difficulties at step three of the sequential
process do not translate into a limitation in her RFC.2
II.

The ALJ’s Credibility Finding

Ms. Johnson next argues that the ALJ, in finding her “not entirely credible,” erred by
“fail[ing] to provide any assessment of which of [her] statements he found to be credible, and
which he did not.” [ECF No. 15-1, 10]. Specifically, Ms. Johnson relies on Hammond v. Hecker,
765 F.2d 424, 426 (4th Cir. 1985); Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017); and
Bostrom v. Colvin, 134 F. Supp. 3d 952, 960 (D. Md. 2016), which require the ALJ to “refer
specifically to the evidence informing the ALJ’s decisions” in making a credibility determination
and to “articulate which of a claimant’s individual statements are credible, rather than” analyzing
whether a claimant is credible “as a general matter.” [ECF No. 15-1, 10].
As background, in Lewis, the United States Court of Appeals for the Fourth Circuit
determined that remand was required, in part, because “[t]he ALJ’s decision applied an improper
legal standard to discredit [the claimant’s] [credibility].” Lewis, 858 F.3d at 870. Specifically,
the Fourth Circuit held that the ALJ improperly discounted the claimant’s subjective complaints
“based solely on the lack of objective evidence” supporting the claimant’s assertions. Id. at 866.
Social Security regulations do not permit an ALJ to “reject [a claimant’s] statements about the
intensity and persistence of [] pain or other symptoms or about the effect [those] symptoms have
on [a claimant’s] ability to work solely because the available objective medical evidence does not
substantiate [his or her] statements.” Id. (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2))
(emphasis added); see SSR 96-7p, 1996 WL 374186, at *1 (“An individual’s statements about the
intensity and persistence of pain or other symptoms or about the effect the symptoms have on his
or her ability to work may not be disregarded solely because they are not substantiated by
objective medical evidence.”). Rather, the Fourth Circuit emphasized that the ALJ failed to
“explain in his decision what statements by [the claimant] undercut [the] subjective evidence…as
limiting [the claimant’s] functional capacity.” Lewis, 858 F.3d at 866. Accordingly, the Lewis
Court remanded because the ALJ failed to cite sufficient evidence of the claimant’s own
statements to discredit her credibility. Likewise, Ms. Johnson contends that the ALJ “failed to
identify any statements [she] made . . . that he found to be . . . not credible.” [ECF No. 15-1, 11].
The Commissioner, meanwhile, contends that “the discussion in Lewis relating to the
evaluation of a claimant’s subjective statements represents no change in existing law.” [ECF No.
16-1, 11]. In other words, Lewis does not necessarily require an ALJ to support an adverse
credibility finding with evidence of a claimant’s subjective statements – “[s]uch a ruling would
2

Although not argued by Ms. Johnson and not a basis for remand, I note that the ALJ’s discussion of Ms. Johnson’s
fibromyalgia-related symptoms is sparse and may not fully comply with SSR 12–2p.

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exclude consideration of many categories of evidence that 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3), deem relevant in evaluating a claimant’s subjective complaints.” [ECF No. 16-1,
12]. Instead, the Commissioner argues that other supporting record evidence, such as symptomrelated limitations imposed by doctors, having a “history of conservative treatment and noncompliance with treatment,” evidence of a claimant’s daily activities, and efforts to work,
together with the objective medical evidence, independently satisfies the Fourth Circuit’s
mandate in Lewis. Id. at 12-13 (arguing that “Lewis has no bearing on this case because the ALJ
identified proper rationale in support of the credibility finding, including [plaintiff’s] objective
medical evidence and [] reported daily activities.”).
I disagree that the ALJ erred in finding that Ms. Johnson was “not entirely credible.” (Tr.
16). The scope of the Lewis ruling need not be determined in the instant case because the ALJ, in
discounting Ms. Johnson’s credibility, expressly cited sufficient evidence of her own statements
that were inconsistent with her allegations of symptoms. For example, the ALJ noted that Ms.
Johnson, in a September, 2012 follow-up appointment for her alleged impairments, stated that she
“had no complaints and felt quite well.” (Tr. 16). Further, the ALJ noted Ms. Johnson’s
admission that she “has no problem with personal care tasks” and will “pull[] weeds and plant
flowers, put dishes in the dishwasher, sweep[], vacuum[],” drive weekly, and shop for groceries.
(Tr. 16). Thus, the ALJ adequately “explain[ed] in [his] decision what statements by [Ms.
Johnson] undercut [the] subjective evidence…as limiting [her] functional capacity.” Lewis, 858
F.3d at 866. Moreover, the ALJ provided substantial objective record evidence to support his
conclusion. See (Tr. 14-19); see also SSR 96-7p, 1996 WL 374186, at *6 (noting that “the
absence of objective medical evidence supporting an individual’s statements about the intensity
and persistence of pain or other symptoms is [] one factor that the adjudicator must consider in
assessing an individual’s credibility.”); see Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir.
2006) (citation omitted). Accordingly, the ALJ, by considering Ms. Johnson’s “objective medical
evidence, . . . daily activities, . . . [and subjective] description[s] of pain,” properly assessed her
credibility. Bostic, 474 F. App’x at 954. Remand on this basis is therefore unwarranted.
III.

Conclusion

For the reasons set forth above, Ms. Johnson’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.

Johnson v. Social Security Administration
Civil No. SAG-16-4005
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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