Gwaltney v. Commissioner, Social Security

Filing 29

REPORT AND RECOMMENDATIONS re 26 MOTION for Summary Judgment filed by Commissioner, Social Security Signed by: Judge Magistrate Judge Stephanie A Gallagher. Signed by Magistrate Judge Stephanie A Gallagher on 6/18/2018. (kw2s, Deputy Clerk) (c/m 6.18.18)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENTAY GWALTNEY

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v.
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Civil Case No. GLR-17-1689
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COMMISSIONER, SOCIAL SECURITY1
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014–01, the above-referenced case has been referred to me
for review of the Social Security Administration (“SSA’s”) dispositive motion, [ECF No. 26],
and to make recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
301.5(b)(ix). [ECF No. 4]. Plaintiff Kentay Gwaltney, who appears pro se, did not file a motion
for summary judgment, although he did respond to the SSA’s Motion for Summary Judgment.
[ECF No. 28]. I have considered the SSA’s Motion and Mr. Gwaltney’s response. [ECF Nos.
26, 28]. 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 recommend that the Court deny the SSA’s
motion, that the Court reverse the SSA’s decision in part pursuant to sentence four of 42 U.S.C.
§ 405(g), and that the Court remand the case to the SSA for further proceedings in accordance
with this Report and Recommendations.
Mr. Gwaltney filed a claim for Supplemental Security Income (“SSI”) on June 17, 2013,
originally alleging a disability onset date of June 8, 2008.2 (Tr. 168-76). His claim was denied

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Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are
fulfilled by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not
reserved to the Commissioner of Social Security.

initially and on reconsideration. (Tr. 84-118).

A hearing, at which Mr. Gwaltney was

represented by counsel, was held on December 18, 2015, before an Administrative Law Judge
(“ALJ”). (Tr. 29-66). Following the hearing, the ALJ determined that Mr. Gwaltney was not
disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 1128). The Appeals Council denied Mr. Gwaltney’s request for review, (Tr. 1-5), so the ALJ’s
decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Mr. Gwaltney suffered from the severe impairments of “affective
disorder (depression); substance addiction disorder; and psychotic disorder (schizophrenia).”
(Tr. 16). Despite these impairments, the ALJ determined that Mr. Gwaltney retained the residual
functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: he could be expected to perform only simple, routine,
and repetitive tasks and may require time off-task, which would be
accommodated by normal work breaks. The claimant could only have occasional
contact with coworkers, supervisors, or the general public.
(Tr. 18). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Gwaltney could perform jobs existing in significant numbers in the national economy and
that, therefore, he was not disabled. (Tr. 22-23).
I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart,
386 F. Supp. 2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review
of a pro se action challenging an adverse administrative decision, including: (1) examining
whether the SSA’s decision generally comports with regulations, (2) reviewing the ALJ’s critical
findings for compliance with the law, and (3) determining from the evidentiary record whether
substantial evidence supports the ALJ’s findings).

I have also considered Mr. Gwaltney’s

opposition, and the arguments raised by his prior attorney at his hearing.
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Mr. Gwaltney later amended his alleged onset date to his application date, June 17, 2013. (Tr. 189).

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The ALJ ruled in Mr. Gwaltney’s favor at step one, and determined that he has not
engaged in substantial gainful activity since his application date. (Tr. 16); see 20 C.F.R. §
416.920(a)(4)(i). At step two, the ALJ then considered the severity of each of the impairments
that Mr. Gwaltney claimed prevented him from working.
416.920(a)(4)(ii).

(Tr. 13); see 20 C.F.R. §

Notably, the ALJ found Mr. Gwaltney’s hypertension to be non-severe,

because it is controlled by medication and would have no more than minimal impact on Mr.
Gwaltney’s ability to perform basic work activities. (Tr. 16). However, after finding some of
Mr. Gwaltney’s mental impairments to be severe, id., the ALJ continued with the sequential
evaluation and considered, in assessing Mr. Gwaltney’s RFC, the extent to which his
impairments limited his ability to work.
At step three, the ALJ determined that Mr. Gwaltney’s severe mental health impairments
did not meet, or medically equal, the criteria of any listings. (Tr. 17-18). In particular, the ALJ
identified Listings 12.03 (schizophrenia), 12.04 (affective disorders), and 12.09 (as of the time of
the ALJ’s opinion, substance addiction disorders). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§
12.03, 12.04, 12.09.

Listings 12.03 and 12.04 require proof of the same set of “paragraph B”

criteria, and a claimant would need to show at least two areas of marked difficulty, or repeated
episodes of decompensation, to meet a listing. See id. §§ 12.03, 12.04. Here, the ALJ concluded
that Mr. Gwaltney had only “mild” restriction in activities of daily living, “moderate” difficulties
in social functioning and in concentration, persistence, or pace, and no episodes of
decompensation of extended duration. (Tr. 17). The ALJ supported those assessments with
citations to the evidence of record. Id. Accordingly, the ALJ did not err in his conclusion that
the Listings were not met.3

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Despite identifying Listing 12.09, the ALJ provided no analysis of the criteria of that Listing. That
Listing has since been eliminated, as of January, 2017.

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In considering Mr. Gwaltney’s RFC, the ALJ summarized his subjective complaints from
his hearing testimony and written submissions. (Tr. 18-19).

The ALJ also reviewed Mr.

Gwaltney’s medical evidence from his treatment providers. (Tr. 19-20). The ALJ noted that Mr.
Gwaltney’s “mental health treatment has not been consistent” and that he “has engaged in a
somewhat normal level of daily activity and interaction.” (Tr. 20). The ALJ acknowledged that
Mr. Gwaltney’s treating physician, Dr. Dugan, had completed opinion forms, but assigned them
only “partial” or “little” weight, due to inconsistencies and lack of information about Mr.
Gwaltney’s functional capacities. (Tr. 20-21).
Ultimately, the flaw in the ALJ’s opinion lies in the dictates of Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015). In that case, 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. Id. at 638. That functional area “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 marked 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 in the area of concentration, persistence, or pace.
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

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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 “only 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 cited to evidence supporting the conclusion that Mr. Gwaltney has
moderate limitations in concentration, persistence, or pace. (Tr. 17, 19). However, contrary to
Mascio, the ALJ did not impose any RFC restriction to address the moderate limitations. (Tr.
18) (limiting Mr. Gwaltney only to “simple, routine, and repetitive tasks”). Although the ALJ
did also state that Mr. Gwaltney “may require time off-task, which would be accommodated by
normal work breaks,” he provided no analysis or explanation of how “normal work breaks”
would be sufficient to address Mr. Gwaltney’s concentration issues. Moreover, the ALJ did not
discuss Mr. Gwaltney’s work pace at any point in the opinion. Thus, in light of Mascio, I
recommend remand to allow the ALJ to explain his findings. In so recommending, I express no
opinion as to whether the ALJ’s ultimate conclusion that Mr. Gwaltney was not disabled is
correct.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:

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(1) the Court DENY Defendant’s Motion for Summary Judgment, [ECF No. 26];
(2) The Court REVERSE IN PART the SSA’s decision under sentence four; and
(3) The Court order the Clerk to REMAND the case to the SSA for further proceedings
and to CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b)(2) and Local Rule
301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: June 18, 2018

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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