Klein v. Berryhill

Filing 22

ORDER Denying 17 Motion for Summary Judgment; Denying 20 Motion for Summary Judgment; Reversing in Part the SSAs Judgment; Remanding case for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 8/2/2018. (bas, 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]

August 2, 2018
LETTER TO COUNSEL
RE:

Steven P. Klein v. Commissioner, Social Security Administration;1
Civil No. SAG-17-1960

Dear Counsel:
On July 14, 2017, Plaintiff Steven P. Klein petitioned this Court to review the Social
Security Administration’s (“SSA’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. Klein’s response. [ECF Nos. 17, 20, 21]. I find that no
hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). This Court must uphold the decision of
the SSA if it is supported by substantial evidence and if the SSA 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 SSA, and
remand the case to the SSA for further analysis pursuant to sentence four of 42 U.S.C. § 405(g).
This letter explains my rationale.
Mr. Klein filed his claims for benefits on May 31, 2013, alleging an onset date of March
16, 2012. (Tr. 190-97, 198-204). His claims were denied initially and on reconsideration.
(Tr. 73-83, 84-94, 97-107, 108-18). A hearing was held on March 18, 2016, before an
Administrative Law Judge (“ALJ”). (Tr. 41-72). Following the hearing, the ALJ determined
that Mr. Klein was not disabled within the meaning of the Social Security Act during the relevant
time frame. (Tr. 25-36). The Appeals Council (“AC”) denied Mr. Klein’s request for further
review, (Tr. 1-5, 6-11), so the ALJ’s decision constitutes the final, reviewable decision of the
SSA.
The ALJ found that Mr. Klein suffered from the severe impairments of “major depressive
disorder and generalized anxiety disorder.” (Tr. 27). Despite these impairments, the ALJ
determined that Mr. Klein would retain the residual functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant can perform work that requires occasional
balancing and climbing of ladders, ropes, and scaffolds and frequent climbing of
ramps and stairs. He can have no concentrated exposure to moving machinery
1

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.

Steven P. Klein v. Commissioner, Social Security Administration
Civil No. SAG-17-1960
August 2, 2018
Page 2
and unprotected heights. He can understand, remember, and carry out one to twostep simple instructions, and can perform work requiring occasional changes in
the workplace. He can occasionally work alongside coworkers, but not directly
with them, and can have occasional interaction with the public.
(Tr. 30). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Klein was unable to perform his past relevant work, but found that he could perform several
other jobs existing in significant numbers in the national economy. (Tr. 34-35). Therefore, the
ALJ concluded that he was not disabled. (Tr. 35-36).
On appeal, Mr. Klein primarily contends that the ALJ’s RFC assessment runs afoul of the
Fourth Circuit’s decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015). I agree that the
ALJ’s analysis did not comply with Mascio, and I therefore grant remand. In remanding for
additional explanation, I express no opinion as to whether the ALJ’s ultimate conclusion that Mr.
Klein 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’x 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 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’x 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

Steven P. Klein v. Commissioner, Social Security Administration
Civil No. SAG-17-1960
August 2, 2018
Page 3
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.
In the instant case, the ALJ found that Mr. Klein had moderate difficulties with regard to
concentration, persistence, or pace. (Tr. 29). The ALJ’s analysis stated:
The claimant reports difficulty with concentration, short-term memory, and
handling stress and changes to routine. He also reports unusual anxiety about his
future. He admits, however, that he is able to watch television regularly,
including sports games. His mental status examinations generally note a normal
attention span and concentration, and a goal-directed and/or logical thought
process.
Id. (citation omitted). 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:

Steven P. Klein v. Commissioner, Social Security Administration
Civil No. SAG-17-1960
August 2, 2018
Page 4
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 Mr. Klein’s case failed to fulfill
these requirements. Although not part of the step three analysis, the ALJ later agreed with the
opinion of Dr. Renee McPherson Salandy that Mr. Klein was “moderately limited in his ability
to complete a normal workday and workweek without interruptions from psychologically based
symptoms and perform at a consistent pace without an unreasonable number and length of rest
breaks.” (Tr. 33). However, the ALJ offered no explanation as to how the limitations to “one to
two-step simple instructions” and “work requiring occasional changes in the workplace” were
designed to address Mr. Klein’s difficulties in concentration, persistence, or pace.2 Without
further analysis, then, I am unable to ascertain whether the limitations found by the ALJ would
permit Mr. Klein to sustain a consistent pace with only normal breaks. In light of these
inadequacies, I must remand the case to the SSA for further analysis consistent with the Fourth
Circuit’s mandate in Mascio.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment, (ECF No. 17),
is DENIED, and Defendant’s Motion for Summary Judgment, (ECF No. 20), is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the SSA’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
2

The problem may be that Dr. Salandy’s opinion is inherently inconsistent. In her opinion, Dr. Salandy stated both
that Mr. Klein “may evidence difficulty completing a normal workday/workweek without interruption from
psychological symptoms due to sxs of depression [and] hx of alcohol abuse,” (Tr. 80), and that he “can follow twothree step commands and can persist and maintain attention and concentration for two hour increments sufficiently
enough to complete an eight hour workday,” (Tr. 81), without explaining how those two contradictory positions are
reconciled. Thus, even if the ALJ’s citation to Dr. Salandy’s opinion suffices to explain the ALJ’s assessment of
“moderate limitations,” I am unable to follow the logical bridge between the rationale of that opinion and the RFC
limitations assessed.