Taylor v. Berryhill

Filing 18

ORDER denying 14 Motion by Plaintiff for Summary Judgment; denying 17 Motion by Defendant for Summary Judgment; Reversing in Part and Remanding for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 3/12/2018. (aos, 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]

March 12, 2018

LETTER TO COUNSEL
RE:

Lisa Ann Taylor v. Commissioner, Social Security Administration;
Civil No. SAG-17-874

Dear Counsel:
On March 30, 2017, Plaintiff Lisa Ann Taylor petitioned this Court to review the Social
Security Administration’s final decision to deny her claim for benefits. [ECF No. 1]. I have
considered the parties’ cross-motions for summary judgment.1 [ECF Nos. 14, 17]. 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); see also Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Under that standard, I will deny both motions, reverse the Commissioner’s decision
in part, and remand the case to the Commissioner for further consideration. This letter explains
my rationale.
Ms. Taylor filed a claim for Disability Insurance Benefits (“DIB”) on March 18, 2013,
alleging a disability onset date of March 1, 2013. (Tr. 261-62). Her claim was denied initially
and on reconsideration. (Tr. 164-80, 181-200, 201-04, 208-09). A hearing was held on August
26, 2015, before an Administrative Law Judge (“ALJ”). (Tr. 133-63). Following that hearing,
on December 18, 2015, the ALJ determined that Ms. Taylor was not disabled within the meaning
of the Social Security Act during the relevant time frame. (Tr. 95-132). The Appeals Council
(“AC”) denied Ms. Taylor’s request for review, (Tr. 1-6), so the ALJ’s decision constitutes the
final, reviewable decision of the Agency.
The ALJ found that Ms. Taylor suffered from the severe impairments of “degenerative
disc disease of the lumbar spine, depression, breast cancer status-post bilateral mastectomies and
reconstructive surgery, cervicalgia, and obesity.” (Tr. 100). Despite these impairments, the ALJ
determined that Ms. Taylor retained the residual functional capacity (“RFC”) to:
1

This Court notes that Ms. Taylor attempted to incorporate, by reference, the arguments made by Ms. Taylor’s prior
representative in the brief submitted to the Appeals Council (“AC”). Pl. Mot. 9 n.1. However, Ms. Taylor’s
attempted incorporation of her prior representative’s brief could be construed as an attempt to circumvent the 35page limitation on memoranda in support of a motion, as set forth by the Maryland Local Rules. See Loc R. 105.3
(D. Md. 2016). Thus, this Court does not address Ms. Taylor’s arguments made via her prior representative’s brief,
to the extent that they were not briefed in the present motion. See Mulholland v. Comm’r, Soc. Sec., WDQ-13-1300,
2014 WL 2707604, at *4 n.1 (D. Md. June 13, 2014) (citation omitted).

Lisa Ann Taylor v. Commissioner, Social Security Administration
Civil No. SAG-17-874
March 12, 2018
Page 2

perform light work as defined in 20 CFR 404.1567(b) except she is able to
complete only simple tasks/work procedures. She is able to make work decisions
but is not able to carry out detailed instructions. She can have occasional
interaction with the public in positions where there would be little to no change in
the work setting.
(Tr. 109). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that Ms. Taylor could perform several jobs existing in significant numbers in the national
economy. (Tr. 121-22). Accordingly, the ALJ determined that Ms. Taylor was not disabled.
(Tr. 122).
Ms. Taylor raises several issues on appeal, including that the ALJ: (1) improperly
concluded that her hydrocephalus and “peripheral polyneuropathy affecting many joints and
other parts of her body, particularly her hands, and associated lymphedema” were non-severe;
(2) erroneously performed the Listing analysis, with respect to Listings 1.02, 1.04, 12.02, and
12.04; (3) failed to support her RFC assessment with substantial evidence; (4) failed to properly
evaluate her credibility in accordance with Lewis v. Berryhill, 858 F.3d 858 (4th Cir. 2017); (5)
failed to adequately perform a function-by-function analysis with respect to her neuromuscular
and mental health symptoms, as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015); (6)
erred in his assignments of weight to the various medical opinions; and (7) erred in his
evaluation of the VE’s testimony. Pl. Mot. 7-30. I agree that the ALJ’s decision does not
comport with Mascio. In so holding, I express no opinion as to whether the ALJ’s ultimate
conclusion that Ms. Taylor is not entitled to benefits is correct.
Beginning with her most successful argument, Ms. Taylor argues that the ALJ failed to
account for her moderate difficulties in concentration, persistence, or pace in the RFC
assessment, as required by the Fourth Circuit’s holding in Mascio. In Mascio, 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 §§ 12.00-12.15 (2015). 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.
Id. § 12.00(C). 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

Lisa Ann Taylor v. Commissioner, Social Security Administration
Civil No. SAG-17-874
March 12, 2018
Page 3
[the claimant’s] ability to function independently, appropriately, effectively, and on a sustained
basis.” 20 C.F.R. § 404.1520a(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. § 404.1520a(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 §§ 12.04, 12.06. 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 “[c]oncentration, 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.
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.
Here, the ALJ found that Ms. Taylor had “moderate difficulties” in concentration,
persistence, or pace. (Tr. 107). In reaching his conclusion, the ALJ cited to Ms. Taylor’s
examination notes, in which “she was repeatedly noted to be focused, attentive, alert, and fully
oriented . . . . [and] did not display significant difficulties with speed or attention.” Id. (citations
omitted). The ALJ also noted that “[f]ormal psychological testing showed low average range
memory abilities.” (Tr. 108); see (Tr. 1068). In addition to the medical records, the ALJ
discussed Ms. Taylor’s daily living abilities, noting that Ms. Taylor was able to “focus on
crocheting for extended periods of time[;] . . . drive[;] . . . sen[d] her grandson off to school;
help[] him with his homework; and . . . pay bills, count change, handle a savings account, and
use a checkbook/money orders.” (Tr. 107-08) (citations omitted).

Lisa Ann Taylor v. Commissioner, Social Security Administration
Civil No. SAG-17-874
March 12, 2018
Page 4
According to 20 C.F.R. § 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 C.F.R. § 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.
Id. § 404.1520a(e)(4).
The analysis provided by the ALJ in Ms. Taylor’s case fails to fulfill these requirements.
Without further explanation, I am unable to ascertain whether the ALJ truly believed Ms. Taylor
to have moderate difficulties in concentration, persistence, and pace, instead of mild or no
difficulties, and how those difficulties restrict her RFC to “simple tasks/work procedures.” (Tr.
109). In fact, the ALJ’s express discussion of concentration, persistence, and pace provides no
indication of the basis for finding a moderate limitation. (Tr. 114). The ALJ’s analysis entirely
fails to address Ms. Taylor’s pace or ability to sustain work over an eight-hour workday. Most
notably, the ALJ assigned “partial” weight to Dr. Mayer Gorbaty’s medical opinions without
acknowledging his conclusion that Ms. Taylor “would be off task due to her limitations more
than 30 percent of the time in a competitive work environment and was likely to be absent from
work and unable to complete an 8-hour workday as a result of her impairments and need for
ongoing and periodic treatment on average at least 5 days per month.” (Tr. 104). Similarly, the
ALJ assigned “little” weight to Dr. Sarah McQuide’s medical opinion after concluding that they
were “inconsistent with the record as a whole,” (Tr. 118), but failed to discuss how those
inconsistencies undermined her opinion that Ms. Taylor’s ability to “understand and remember
even very short and simple instructions was precluded for at least 15% of an 8-hour workday”
and that “she was likely be absent from work and unable to complete an 8-hour workday,” (Tr.
103). 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,

Lisa Ann Taylor v. Commissioner, Social Security Administration
Civil No. SAG-17-874
March 12, 2018
Page 5
if the ALJ finds moderate limitation again, should explain his finding to permit an adequate
evaluation under the dictates of Mascio.
Ms. Taylor’s remaining arguments relate to the ALJ’s Listing analysis and adverse
credibility determination, as well as the ALJ’s evaluation of her hydrocephalus and peripheral
polyneuropathy, medical opinion evidence, and the VE’s testimony. Since I am recommending
remand on other grounds, the ALJ will have the ability to provide further analysis, if desired, on
remand.
For the reasons set forth herein, Ms. Taylor’s Motion for Summary Judgment, [ECF No.
14], is DENIED, and Defendant’s Motion for Summary Judgment, [ECF No. 17], 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