Grimes v. Commissioner, Social Security

Filing 23

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/4/2018. (jrs, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ANDREW GRIMES,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 17-1794

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Andrew Grimes seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3)
of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”)
denying his applications for disability insurance benefits (“DIB”) and for Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act. Before the Court are
Plaintiff’s Motion for Summary Judgment and alternative motion for remand (ECF No. 19) and
Defendant’s Motion for Summary Judgment (ECF No. 20).2

Plaintiff contends that the

administrative record does not contain substantial evidence to support the Commissioner’s

1

On April 17, 2018, Nancy A. Berryhill became the Acting Commissioner of Social Security.
See 5 U.S.C. § 3346(a)(2); Patterson v. Berryhill, No. 2:18-cv-00193-DWA, slip op. at 2 (W.D.
Pa. June 14, 2018).
2

The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.

decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that
follow, Plaintiff’s alternative motion for remand (ECF No. 19) is GRANTED.
I
Background
Born in 1962, Plaintiff has a high-school education and previously worked as a dental
equipment repair technician. R. at 236, 241. Plaintiff protectively filed applications for DIB and
for SSI on October 19, 2012, alleging disability beginning on August 5, 2010. R. at 19, 208-23.
The Commissioner denied Plaintiff’s applications initially and again on reconsideration, so
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 69-145. On
April 14, 2016, ALJ Donna M. Edwards held a hearing in Baltimore, Maryland, where Plaintiff
and a vocational expert (“VE”) testified. R. at 37-64. On June 21, 2016, the ALJ issued a
decision finding Plaintiff not disabled from the alleged onset date of disability of August 5, 2010,
through the date of the decision. R. at 16-36. Plaintiff sought review of this decision by the
Appeals Council, which denied Plaintiff’s request for review on May 3, 2017. R. at 1-8, 205-07.
The ALJ’s decision thus became the final decision of the Commissioner.

See 20 C.F.R.

§§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 2083
(2000).
On June 29, 2017, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment. The case then was reassigned to
the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

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II
Summary of Evidence
A.

Plaintiff’s Testimony
The ALJ reviewed Plaintiff’s testimony in her decision:
[Plaintiff] testified that he drives but not more than an hour. He stated that
his legs get numb after an hour. He stated that his old job required a lot of
driving. He is able to read, write and perform simple math. He was in the army
for two years. He worked in the past as a dental repair technician. He stopped
work in 2010. He stopped working after his surgery. He sometimes had to lift
110 pounds. He stated that he had a surgery that did not go well in an attempt to
open his femoral artery. He stated that he has to walk a mile every day to keep
the left leg moving. He stated that he takes a blood thinner and has pain in his
feet. He takes 2-3 naps a day. He stated that he has daily panic attacks and does
not deal well with people. He used to take an antidepressant.

R. at 25; see R. at 41-53.
B.

VE Testimony
The VE testified that, if Plaintiff had the residual functional capacity (“RFC”) outlined

below in Part III, he could not perform his past work but could perform the light, unskilled jobs
of housekeeper, hand packer, or machine feeder.3 R. at 55-57. Being off task for 15% of a day
would preclude all work. R. at 59.
III
Summary of ALJ’s Decision
On June 21, 2016, the ALJ found that Plaintiff (1) had not engaged in substantial gainful
activity since the alleged onset date of disability of August 5, 2010; and (2) had an impairment or
a combination of impairments considered to be “severe” on the basis of the requirements in the

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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Unskilled work
is work which needs little or no judgment to do simple duties that can be learned on the job in a
short period of time.” Id. §§ 404.1568(a), 416.968(a).
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Code of Federal Regulations; but (3) did not have an impairment or a combination of
impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P,
app. 1; and (4) was unable to perform his past relevant work; but (5) could perform other work in
the national economy, such as a housekeeper, hand packer, or machine feeder. R. at 21-31. The
ALJ thus found that he was not disabled from August 5, 2010, through the date of the decision.
R. at 31.
In so finding, the ALJ found that, with regard to concentration, persistence, or pace,
Plaintiff had moderate difficulties. R. at 23. “[Plaintiff] is able to use a computer and checks
government sites daily. Dr. Klein reported [Plaintiff] may have a learning disorder, as he was a
poor historian and tended to ramble[,] not answering questions directly.” R. at 23-24 (citations
omitted). The ALJ then found that Plaintiff had the RFC
to perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b).
Except that he can frequently[]climb of ramps/stairs; balance, stoop, kneel, crouch
and crawl; he can occasionally climb ladders/ropes/scaffolds; [Plaintiff] can
understand, remember and carry out simple instructions; he can occasionally
interact with supervisors, coworkers and with the public; he can have occasional
change in the work setting.
R. at 24. The ALJ considered Plaintiff’s credibility and found that his “medically determinable
impairments cannot reasonably be expected to produce the symptoms to the degree alleged by
[Plaintiff].

[His] statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely credible for the reasons explained in this decision.” R. at 25.
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
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of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.

§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”

42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-80 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work

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activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).4
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),

416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).

The claimant is responsible for providing evidence the

Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”

20 C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
4

The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
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evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.

Id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.

See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42

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U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling5 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-10,
ECF No. 19-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of his ability to perform the physical and mental demands of work. Id. at 5. In
particular, he contends that, although the ALJ found that he had moderate difficulties with regard

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Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
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to concentration, persistence, or pace, the ALJ failed to include any limitation on concentration,
persistence, or pace in the RFC assessment. Id. at 5-6. Rather, according to Plaintiff, the ALJ
determined that he was able to understand, remember, and carry out simple instructions. Id. at 56 (citing R. at 24). Plaintiff further asserts that the ALJ erred in evaluating his consultative
examiner’s opinion and in assessing his subjective complaints. Id. at 7-12. For the reasons
discussed below, the Court remands this case for further proceedings.
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “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).”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform

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them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding
because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ
erroneously expressed claimant’s RFC first and then concluded that limitations caused by
claimant’s impairments were consistent with that RFC).
The Fourth Circuit further held in Mascio 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.’” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). “[T]he ability to perform simple tasks
differs from the ability to stay on task. Only the latter limitation would account for a claimant’s
limitation in concentration, persistence, or pace.” Id. The court in Mascio remanded the case for
the ALJ to explain why the claimant’s moderate limitation in concentration, persistence, or pace
at step three did not translate into a limitation in the claimant’s RFC. Id. In other words,
“[p]ursuant to Mascio, once an ALJ has made a step three finding that a claimant suffers from
moderate difficulties in concentration, persistence, or pace, the ALJ must either include a
corresponding limitation in her RFC assessment, or explain why no such limitation is necessary.”
Talmo v. Comm’r, Soc. Sec., Civil Case No. ELH-14-2214, 2015 WL 2395108, at *3 (D. Md.
May 19, 2015), report and recommendation adopted (D. Md. June 5, 2015).
Here, the ALJ’s limiting Plaintiff’s RFC to understanding, remembering, and carrying out
simple instructions does not account for his moderate difficulties in maintaining concentration,
persistence, or pace. See Owens v. Berryhill, Civil No. TJS-17-2313, 2018 WL 2175555, at *2
(D. Md. May 11, 2018) (citing Mascio, 780 F.3d at 638). But see Thomas v. Berryhill, Civil No.
TMD 16-3754, 2018 WL 1365849, at *6 (D. Md. Mar. 16, 2018). Further, a limitation to

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occasional interaction with supervisors, co-workers, and the public relates to social functioning
and not to concentration, persistence, or pace. See Stewart v. Astrue, 561 F.3d 679, 684-85 (7th
Cir. 2009) (per curiam) (rejecting contention that “the ALJ accounted for [the claimant’s]
limitations of concentration, persistence, and pace by restricting the inquiry to simple, routine
tasks that do not require constant interactions with coworkers or the general public”); Elsey v.
Comm’r, Soc. Sec. Admin., Civil No. SAG-14-2457, 2015 WL 2258540, at *4 (D. Md. May 12,
2015). Finally, a limitation to “occasional change in the work setting” (R. at 24) also does not
correspond to a claimant’s concentration, persistence, or pace. See Wilson v. Comm’r, Soc. Sec.
Admin., Civil Action No. ADC-17-2666, 2018 WL 3941946, at *5 (D. Md. Aug. 16, 2018);
Stansbury v. Comm’r, Soc. Sec. Admin., Civil Action No. ADC-17-2221, 2018 WL 3732101, at
*5 (D. Md. Aug. 6, 2018); Bey v. Berryhill, Civil Action No. CBD-17-2292, 2018 WL 3416944,
at *3-4 (D. Md. July 12, 2018); Lawson v. Berryhill, Civil No. TJS-17-0486, 2018 WL 1135641,
at *4 (D. Md. Mar. 1, 2018); Henry v. Berryhill, Civil No. BPG-17-57, 2018 WL 558839, at *3
(D. Md. Jan. 25, 2018). But see Carbaugh v. Comm’r, Soc. Sec. Admin., Civil Action No. ADC17-2181, 2018 WL 3635026, at *6-7 (D. Md. July 31, 2018); Holland v. Comm’r, Soc. Sec.
Admin., Civil Action No. ADC-17-1874, 2018 WL 1970745, at *7 (D. Md. Apr. 25, 2018);
Jarnagin v. Berryhill, Civil No. TMD 17-2238, 2018 WL 1709114, at *6 (D. Md. Apr. 9, 2018);
Eastwood v. Colvin, No. 3:15CV156 (REP), 2016 WL 805709, at *4 (E.D. Va. Feb. 12, 2016)
(“The ALJ accounted for Plaintiff’s persistence through the ‘few workplace changes’ limitation,
accounted for Plaintiff’s concentration through the ‘little independent decision-making’
limitation and accounted for Plaintiff’s pace through the ‘assembly-line pace’ limitation.”),
report and recommendation adopted, No. 3:15CV156, 2016 WL 881123 (E.D. Va. Mar. 1,

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2016). Remand under the fourth sentence of 42 U.S.C. § 405(g) thus is appropriate under
Mascio.
The ALJ failed, moreover, to explain how, despite Plaintiff’s moderate limitation in
concentration, persistence, or pace, he could remain on task for more than 85% of an eight-hour
workday. While “there is no rigid requirement that the ALJ specifically refer to every piece of
evidence in [her] decision,” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)
(quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)), “the ALJ ‘must
build an accurate and logical bridge from the evidence to [her] conclusion.’” Monroe, 826 F.3d
at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). In particular, the ALJ
“must build a logical bridge between the limitations [she] finds and the VE evidence relied upon
to carry the Commissioner’s burden at step five in finding that there are a significant number of
jobs available to a claimant.” Brent v. Astrue, 879 F. Supp. 2d 941, 953 (N.D. Ill. 2012). An
ALJ’s failure to do so constitutes reversible error. Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir.
2017). In short, the inadequacy of the ALJ’s analysis frustrates meaningful review. See Lanigan
v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017) (remanding because, inter alia, ALJ did not build
accurate and logical bridge between claimant’s moderate difficulties in various functional areas
and ALJ’s finding that claimant would not be off task more than 10% of workday); Ashcraft v.
Colvin, No. 3:13-cv-00417-RLV-DCK, 2015 WL 9304561, at *11 (W.D.N.C. Dec. 21, 2015)
(remanding under fourth sentence of 42 U.S.C. § 405(g) because court was unable to review
meaningfully ALJ’s decision that failed to explain exclusion from RFC assessment an additional
limitation of being 20% off task that VE testified would preclude employment). Remand under
the fourth sentence of 42 U.S.C. § 405(g) for this reason is warranted as well, and the Court does

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not address Plaintiff’s remaining arguments. See Monroe, 826 F.3d at 189; see also Testamark v.
Berryhill, No. 17-2413, slip op. at 8 n.2 (4th Cir. Aug. 31, 2018) (per curiam) (unpublished).
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 20) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 19) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 19) is GRANTED. Defendant’s final decision is
REVERSED under the fourth sentence of 42 U.S.C. § 405(g). This matter is REMANDED for
further proceedings consistent with this opinion. A separate order will issue.

Date: September 4, 2018

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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