Devaney v. Berryhill

Filing 25

LETTER ORDER Granting Plaintiff's 23 Motion for Reconsideration, reversing the Social Security Administration's judgment; remanding the case in order for the ALJ to provide further analysis and explanation Signed by Magistrate Judge Gina L Simms on 12/19/2018. (heps, Deputy Clerk) Modified on 12/20/2018 (heps, Deputy Clerk).

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
(SOUTHERN DIVISION)
CHAMBERS OF
THE HONORABLE GINA L. SIMMS
UNITED STATES MAGISTRATE JUDGE
[e-mail]

6500 CHERRYWOOD LANE
GREENBELT, MARYLAND 20770
[phone] PHONE
[phone] FAX

LETTER TO COUNSEL
RE:

Devaney v. Commissioner, Social Security Administration
Civil No. 1:17-cv-00720-GLS

Dear Counsel:
Presently pending before this Court is Plaintiff Colleen M. Devaney’s “Motion to
Reconsider” the Court’s Letter Order dated September 24, 2018, which granted the Motion for
Summary Judgment filed by Defendant Social Security Administration (“the Commissioner”).
Ms. Devaney asks the Court to reconsider its decision to grant the Commissioner’s summary
judgment motion, asserting that the ALJ failed to comply with the mandates set forth in Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015).
I have also reviewed the Commissioner’s response to Plaintiff’s reconsideration motion.
(ECF No. 24). No hearing is necessary. See L.R. 105.6. For the reasons set forth below, Ms.
Devaney’s motion for reconsideration is GRANTED.
I.

BACKGROUND

On March 16, 2017, Ms. Devaney petitioned this Court to review the Commissioner’s final
decision to deny her claims for Disability Insurance Benefits and Supplemental Security Income.
(ECF No. 1). Ms. Devaney advanced four arguments on appeal: (1) that the ALJ’s Residual
Functional Capacity (“RFC”) determination was erroneous; (2) that the ALJ did not appropriately
evaluate the Plaintiff’s credibility; (3) the ALJ relied on misapprehensions of the objective medical
evidence; and (4) the ALJ failed to explain how Plaintiff’s activities demonstrated that she could
persist through an eight-hour workday. (ECF No. 17). In its summary judgment motion, the
Commissioner countered that: (1) the ALJ’s RFC finding was supported by substantial evidence
and consistent with the applicable Fourth Circuit precedent; and (2) the ALJ properly evaluated
Ms. Devaney’s subjective complaints. (ECF No. 20).
After full briefing by the parties, this Court denied Ms. Devaney’s summary judgment
motion, granted the Commissioner’s summary judgement motion, and affirmed the
Commissioner’s judgment pursuant to sentence four of 42 U.S.C. § 405(g). (ECF No. 22).
Subsequently, Ms. Devaney filed her Motion to Reconsider. (ECF No. 23).

Devaney v. Berryhill, Civil No. GLS-17-720
December 19, 2018
Page 2
II.

ANALYSIS

Ms. Devaney asks the Court to reconsider its Letter Order granting the Commissioner’s
summary judgment motion. In her reconsideration motion, Ms. Devaney contends that this Court
erred by not finding that remand was appropriate, because, contrary to the dictates of Mascio, the
ALJ inadequately evaluated and failed to account for Plaintiff’s moderate difficulties in
concentration, persistence, or pace. (ECF No. 23 at 2). Urging against reconsideration, the
Commissioner asserts that Mascio “did not set forth a per se rule” that “limiting Plaintiff to
understanding, remembering and carrying out simple instructions can never accommodate
‘moderate’ difficulties in concentration, persistence, or pace.” (ECF No. 24 at 1).
In Mascio, the ALJ found that the claimant had moderate difficulties in maintaining
concentration, persistence, or pace. 780 F.3d at 637–38. However, the ALJ’s RFC assessment
did not include a limitation to account for these difficulties, nor did the ALJ explain why no
limitation was necessary. Id. In addition, the hypothetical question t h a t t h e A L J posed to
the vocational expert was limited to a scenario where the claimant performed only simple, routine
tasks or unskilled work. Id. The Fourth Circuit held that, under these circumstances, remand
was appropriate. In reaching this conclusion, the Fourth Ci rcuit distinguished between
an individual’s ability to perform simple tasks versus that individual’s ability to stay
on task; only “the latter limitation would account for a claimant’s limitation in
concentration, persistence, or pace.” Id. The Fourth Circuit also held that there would
have been no error if the ALJ had either: (a) explained why the claimant’s moderate difficulties
did not translate into a limitation of her RFC; or (b) included in claimant’s RFC appropriate
limitations that accounted for her moderate difficulties. Id.
In the instant case, although the ALJ found that Ms. Devaney had moderate limitations in
concentration, persistence and pace (Tr. 25), the ALJ also found:
The claimant stated that she had trouble with memory and completing tasks.
However, in her examinations, the claimant displayed intact memory, could
perform serial sevens and could spell. The claimant also had normal intelligence
and normal speech. Finally, the claimant was able to understand and adequately
answer the hearing questions.
(Id.). In addition, although the ALJ held that “as stated [previously], the claimant had
concentration delays,” the ALJ also found that “claimant’s statements concerning the intensity,
persistence, and limiting effects of [her] symptoms are not fully credible.” (Tr. 30). Furthermore,
the ALJ stated that he gave “little weight” to the state agency psychologists’ opinions that claimant
had moderate limitations in maintaining concentration, persistence and pace, because they “did
not have available to consider all the evidence [that the ALJ had before him], including the
claimant’s testimony at two hearings.” (Tr. 33).

Devaney v. Berryhill, Civil No. GLS-17-720
December 19, 2018
Page 3
Regarding Ms. Devaney’s RFC, the ALJ determined:
that the claimant ha[d] the [RFC] to perform light work. . . except that the claimant
can stand and walk for two hours in an eight-hour workday. She can sit six hours
in an eight-hour day. The claimant can occasionally stoop, crouch, crawl, balance,
kneel, squat, and climb stairs. She should avoid concentrated exposure to heat, cold,
humidity, dust, fumes, gases, and vibrations. The claimant can understand,
remember and carry out simple instructions.
(Tr. 26). In addition, the ALJ posited three different hypotheticals to the vocational expert (VE)
who testified at the hearing. In asking the third hypothetical to the VE, it appears the ALJ was
trying to craft a scenario that addressed the work that someone who was “off task” for some portion
of the workday could perform. (Tr. 96). However, it is not entirely clear from the transcript
whether and/or how the hypothetical related to Ms. Devaney’s difficulties related to concentration,
persistence, and pace.
Upon further consideration and review of the record, the Court agrees with Ms. Devaney
that the ALJ’s analysis and findings do not satisfy the Fourth Circuit’s Mascio mandates. Although
the ALJ stated that Ms. Devaney had “moderate difficulties” with regard to concentration,
persistence, and pace, his analysis--that: (a) her memory was intact; (b) she could perform serial
sevens and could spell; (c) she had normal intelligence and normal speech; and (d) she could
understand and adequately answer the hearing questions-- could also suggest that he found her to
have only mild or no difficulties. In addition, the ALJ’s comments about the Plaintiff’s credibility
cause this Court to wonder whether the ALJ did truly find that Ms. Devaney had moderate
difficulties in concentration, persistence, and pace. Moreover, while it is possible that the ALJ
was trying to limit Plaintiff’s RFC to account for her difficulties by using the phrase “she could
understand, remember, and carry out simple instructions, the ALJ failed to explain how finding
that she could do these things translated into a limitation that actually accounted for her moderate
difficulties in concentration, persistence, and pace. Furthermore, without further clarification of
the third hypothetical, it is hard to understand whether the ALJ’s finding that “she could
understand, remember, and carry out simple instructions,” reflected his belief that Ms. Devaney
could stay on task, and, if so, for how long, in light of her moderate difficulties.
On remand, the ALJ should consider the appropriate level of limitation regarding
concentration, persistence, or pace and, if moderate limitations are again found, the ALJ should
explain the reasons for his findings. In remanding for additional explanation, I express no
opinion as to whether the ALJ’s conclusion that Ms. Devaney is not entitled to benefits is correct.
III.

CONCLUSION

For the reasons set forth herein, Ms. Devaney’s Motion to Reconsider, (ECF No. 23), is
GRANTED. The Commissioner’s judgment is REVERSED, and the case is REMANDED for the
ALJ to provide further analysis and explanation consistent with Mascio.

Devaney v. Berryhill, Civil No. GLS-17-720
December 19, 2018
Page 4
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.

Sincerely yours,
/s/
Gina L. Simms
United States Magistrate Judge