Myers v. Colvin

Filing 21

ORDER denying 18 Plaintiff's Motion for Summary Judgment; denying 19 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 12/19/2017. (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]

December 19, 2017
LETTER TO COUNSEL
RE:

Jerome Lee Myers v. Commissioner, Social Security Administration;
Civil No. SAG-17-131

Dear Counsel:
On January 13, 2017, Plaintiff Jerome Lee Myers 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’ crossmotions for summary judgment, and Mr. Myers’s reply. [ECF Nos. 18, 19, 20]. 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. Myers protectively filed his claims for benefits on September 20, 2012, alleging a
disability onset date of October 1, 2011. (Tr. 308-21). His claims were denied initially and on
reconsideration. (Tr. 244-51, 255-58). A hearing was held on April 7, 2015, before an
Administrative Law Judge (“ALJ”). (Tr. 45-92). Following the hearing, the ALJ determined
that Mr. Myers was not disabled within the meaning of the Social Security Act during the
relevant time frame. (Tr. 19-44). The Appeals Council (“AC”) denied Mr. Myers’s request for
further review, (Tr. 1-6), so the ALJ’s decision constitutes the final, reviewable decision of the
Agency.
The ALJ found that Mr. Myers suffered from the severe impairments of “degenerative
disc disease of the cervical spine, carpal tunnel syndrome, asthma, obesity, learning disorder and
depression.” (Tr. 26). Despite these impairments, the ALJ determined that Mr. Myers retained
the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is
further limited as follows: frequently handling and fingering; occasionally
climbing ramps or stairs, balancing, stooping, kneeling, crouching and crawling
but never climbing ladders, ropes or scaffolds; avoiding even moderate exposure
to respiratory irritants; carrying out simple tasks in 2-hour increments; and
adapting to simple changes in a routine work setting.

Jerome Lee Myers v. Commissioner, Social Security Administration;
Civil No. SAG-17-0131
December 19, 2017
Page 2
(Tr. 28-29). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that Mr. Myers could perform several jobs existing in significant numbers in the national
economy and that, therefore, he was not disabled. (Tr. 37-38).
Mr. Myers 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 provided an inadequate Listing analysis. Pl. Mem. 9-20; Pl. Resp. 2-11. I agree on
both counts, and thus remand the case to the Commissioner. In remanding for additional
explanation, I express no opinion as to whether the ALJ’s ultimate conclusion that Mr. Myers is
not entitled to benefits is correct.
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. 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. § 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 functional areas: none, mild, moderate, marked, or extreme. Id. § 404.1620a(c)(4). 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. § 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. § 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.

Jerome Lee Myers v. Commissioner, Social Security Administration;
Civil No. SAG-17-0131
December 19, 2017
Page 3
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. 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. Myers to have “no more than moderate”
difficulties maintaining concentration, persistence, or pace. (Tr. 27). The entirety of the analysis
states:
With regard to concentration, persistence, or pace, the claimant has no more than
moderate difficulties. The claimant has reported difficulties staying on task due
to pain but also reported that he likes to work on model cars daily. He is able to
focus on the details of assembly without assistance.
(Tr. 27-28). 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 [ALJ] hearing and [AC] 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

Jerome Lee Myers v. Commissioner, Social Security Administration;
Civil No. SAG-17-0131
December 19, 2017
Page 4
as to the degree of limitation in each of the functional areas described in
paragraph (c) of this section.
Id. § 404.1520a(e)(4). The cursory analysis provided by the ALJ in Mr. Myers’s case suggests
that the finding of “no more than moderate difficulties” was based exclusively on Mr. Myers’s
“reported difficulties staying on task due to pain,” since the remaining parts of the analysis
would suggest mild or no limitations. Without further explanation, I am unable to ascertain
whether the ALJ truly believed Mr. Myers to have moderate difficulties in concentration,
persistence, and pace, instead of mild or no difficulties, and how those difficulties restrict his
RFC to “carrying out simple tasks in 2-hour increments; and adapting to simple changes in a
routine work setting.” (Tr. 29). Neither the limitation to 2-hour increments nor the limitation to
simple changes would address concentration issues caused by pain. Indeed, the ALJ’s analysis
entirely fails to address Mr. Myers’s ability to sustain work over an eight-hour workday, even
with breaks every two hours. 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 “no more than 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.
Mr. Myers also contends that the ALJ failed to properly evaluate the physical listings,
particularly Listing 1.04. Pl. Mem. 14-18; Pl. Resp. 2-7. The entirety of the analysis reads:
The State physicians and psychologists who are skilled and experienced in
reviewing records and assessing the impairments and limitation [sic] that are
documented in those records, concluded that the claimant’s impairments did not
meet or equal the requirements of any section of Appendix 1. The records that
have been submitted since the State completed its review do not warrant a
different determination at the third step of the evaluation process. No treating or
examining physician or psychologist has identified medical signs or findings that
meet or medically equal the requirements of Appendix 1. I have reviewed the
records and finds [sic] that the claimant does not have impairments which meet or
equal the requirements of any section of Appendix 1 including sections 1.02, 1.04,
3.2, 12.02, 12.04 and 12.05.
(Tr. 27). The ALJ did not, however, provide any further evidence to support her conclusions that
Mr. Myers’s impairments did not meet or medically equal a Listing. Although the
Commissioner, in her brief, offers some medical evidence in support of the argument that no
Listings are met, it is not the province of this Court to cobble together a meaningful explanation
for a determination that a Listing has not been not satisfied. See Radford v. Colvin, 734 F.3d
288, 296 (4th Cir. 2013). The ALJ should, on remand, expand her Listing analysis to cite
specific medical evidence pertaining to each Listing the ALJ deems relevant. In particular,
where there is evidence that could be used to support one of the relevant Listing criteria, the ALJ
should explain her evaluation of that evidence in connection with her Listing conclusions.

Jerome Lee Myers v. Commissioner, Social Security Administration;
Civil No. SAG-17-0131
December 19, 2017
Page 5
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment, [ECF No. 18],
is DENIED, and Defendant’s Motion for Summary Judgment, [ECF No. 19], 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