Frid v. Berryhill

Filing 20

LETTER OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 8/29/2018. (kns, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE

6500 Cherrywood Lane
Greenbelt, Maryland 20770
Telephone: [phone]
[e-mail]

August 29, 2018
LETTER TO COUNSEL:
RE:

Tammie Suree Frid v. Nancy A. Berryhill, Acting Commissioner, Social Security1
Civil Case No. TJS-17-2771

Dear Counsel:
On September 18, 2017, Plaintiff Tammie Suree Frid (“Ms. Frid”) petitioned this Court
to review the Social Security Administration’s final decision to deny her claims for Disability
Insurance Benefits (“DIB”). (ECF No. 1.) The parties have filed cross-motions for summary
judgment. (ECF Nos. 17 and 18.) These motions have been referred to the undersigned with the
parties’ consent pursuant to 28 U.S.C. § 636 and Local Rule 301.2 Having considered the
submissions of the parties, I find that no hearing is necessary. See Loc. R. 105.6. This Court must
uphold the decision of the agency if it is supported by substantial evidence and if the agency
employed the proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin, 780
F.3d 632, 634 (4th Cir. 2015). Following its review, this Court may affirm, modify, or reverse
the Acting Commissioner, with or without a remand. See 42 U.S.C. § 405(g); Melkonyan v.
Sullivan, 501 U.S. 89 (1991). Under that standard, I will deny both motions and remand the case
for further proceedings. This letter explains my rationale.
In her application for DIB, Ms. Frid alleged a disability onset date of December 1, 2012.3
(Tr. 164.) Her application was denied initially and on reconsideration. (Tr. 113-15, 118-19.) A
hearing was conducted before an Administrative Law Judge (“ALJ”) on February 22, 2016. (Tr.
37-77.) On August 31, 2016, the ALJ found that Ms. Frid was not disabled under the Social
Security Act. (Tr. 16-28.) The Appeals Council denied Ms. Frid’s request for review (Tr. 1-3),
making the ALJ’s decision the final, reviewable decision of the Agency.
The ALJ evaluated Ms. Frid’s claim for benefits using the five-step sequential evaluation
process set forth in 20 C.F.R. §§ 404.1520. At step one, the ALJ found that Ms. Frid was not
engaged in substantial gainful activity, and had not been engaged in substantial gainful activity
since December 1, 2012. (Tr. 18.) At step two, the ALJ found that Ms. Frid suffered from the
following severe impairments: anxiety disorder, bipolar affective disorder, alcohol use disorder,
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.
2
This case was originally assigned to Magistrate Judge Stephanie A. Gallagher. On July
31, 2018, the case was reassigned to me.
3
Ms. Frid amended her onset date to November 1, 2013. (Tr. 18, 48.)

degenerative disc disease, and arthritis in the knee. (Id.) At step three, the ALJ found that Ms.
Frid’s impairments, separately and in combination, failed to meet or equal in severity any listed
impairment as set forth in 20 C.F.R., Chapter III, Part 404, Subpart P, Appendix 1 (“Listings”).
(Tr. 19.) The ALJ determined that Ms. Frid retained the RFC to perform light work as defined in
20 C.F.R. § 404.1567(b), except that she is “limited to simple tasks and occasional interactions
with the public.” (Tr. 21.)
At step four, the ALJ found that Ms. Frid was unable to perform any past relevant work.
(Tr. 26.) At step five, relying on the testimony of a vocational expert, the ALJ determined that
there are jobs that exist in significant numbers in the national economy that Ms. Frid can
perform, including assembler, sorter, and mail clerk. (Tr. 27.) Therefore, the ALJ found that Ms.
Frid was not disabled under the Social Security Act. (Id.)
Ms. Frid raises three arguments in this appeal. First, she argues that the ALJ did not
properly consider her difficulties in maintaining concentration, persistence, and pace, as required
by the Fourth Circuit in Mascio, 780 F.3d 632. (ECF No. 17-2 at 9-17.) Second, she argues that
the ALJ did not properly evaluate whether her impairments met or equaled Listing 1.04A. (Id. at
17-24.) Third, she argues that the ALJ’s RFC determination is not supported by substantial
evidence. (Id. at 24-28.)
After a careful review of the ALJ’s decision and the evidence in the record, I find that the
ALJ did not adequately account for Ms. Frid’s limitations in concentration, persistence, and pace
in the RFC assessment. Because the ALJ did not properly assess Ms. Frid’s RFC, the findings
made by the ALJ in reliance on the RFC cannot be said to be based on substantial evidence. In
light of this finding, I decline to address Ms. Frid’s other arguments.
Ms. Frid argues that the ALJ’s RFC assessment fails to take into account her limitations
in maintaining concentration, persistence, and pace. (Id. at 13-19.) In support of this argument,
she relies on Mascio, 780 F.3d 632. In Mascio, the Fourth Circuit held 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.’” 780 F.3d at 638 (quoting
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). This is because “the
ability to perform simple tasks differs from the ability to stay on task.” Id. Where an ALJ finds
that a claimant has limitations in concentration, persistence, and pace, the ALJ is required to
incorporate these limitations into the claimant’s RFC or explain why they do not “translate into
[such] a limitation.” Id.
In the decision, the ALJ discussed Ms. Frid moderate limitations with regard to
concentration, persistence, and pace as part of the step three analysis:
With regard to concentration, persistence, or pace, the claimant has moderate
difficulties. The claimant was able to understand [and] follow simple instructions
independently.
(Tr. 18.)

2

The ALJ’s finding that Ms. Frid has moderate limitations with regard to concentration,
persistence, and pace is supported by substantial evidence. (See Tr. 102, 105-6, 232, 355.)
However, the ALJ’s RFC assessment does not account for these moderate limitations.
The RFC assessment limits Ms. Frid to performing work involving simple tasks. (Tr. 21.)
Limiting Ms. Frid to work that involves only simple tasks does not account for her moderate
difficulties in concentration, persistence, and pace. See Mascio, 780 F.3d at 638. Ms. Frid might
be able to perform simple, rote tasks for a short period of time but unable to sustain her
performance for a full workday and workweek. The ALJ’s finding that Ms. Frid can perform
simple tasks does not adequately account for her ability to concentrate and stay on task. The ALJ
provided no explanation for why limiting Ms. Frid to work involving simple tasks would
sufficiently address her concentration and persistence limitations. Ms. Frid’s ability to perform
simple tasks is not the same as her ability to stay on task. Furthermore, the ALJ did not address
how Ms. Frid’s pace limitations impact her ability to work.
Based on this record, the Court is unable to find that the RFC determination by the ALJ
represents an accurate characterization of Ms. Frid’s ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis. The ALJ’s decision is
insufficient to permit adequate review. Without additional explanation by the ALJ, the Court is
unable to review the ALJ’s findings to determine whether they are supported by substantial
evidence and without legal error.
In light of the Fourth Circuit’s clear guidance in Mascio, this case must be remanded so
that the ALJ can explain how Ms. Frid’s limitations in the areas of concentration, persistence,
and pace can be incorporated into the RFC assessment, or why no additional limitation is
necessary to account for these difficulties. See Miles v. Comm’r, No. SAG-16-1397, 2016 WL
6901985, at *2 (D. Md. Nov. 23, 2016) (finding that because there was no “corresponding
restriction for the finding of moderate difficulties in concentration, persistence, or pace, such that
it addresses [the claimant’s] ability to sustain work throughout an eight-hour workday,” the
Court was “unable to ascertain from the ALJ’s decision the reason for the finding of moderate, as
opposed to mild or no, limitation in the area of concentration, persistence, or pace.”); see also
Folsom v. Berryhill, No. TMD-16-1681, 2017 WL 4354875, at *3 (D. Md. Sept. 30, 2017)
(finding that an ALJ’s failure to explain how a claimant’s concentration could persist through an
eight-hour workday required remand because such an error “precludes meaningful review”);
Thomas v. Comm’r, Soc. Sec. Admin., No. SAG-16-1229, 2017 WL 1193990, at *2 (D. Md. Mar.
29, 2017) (declining to consider whether an error might be harmless where an ALJ’s “RFC
analysis did not specifically address [a claimant’s] ability to sustain concentration” despite
findings that he had “moderate limitations in sustained concentration and persistence”). On
remand, the ALJ should either account for Ms. Frid’s moderate limitations in concentration,
persistence, and pace, or explain why they do not “translate into [such] a limitation.” Mascio,
780 F.3d at 638. The Court makes no finding as to the merits of the ALJ’s ultimate conclusion
that Ms. Frid is not disabled.
For the reasons set forth herein, both parties’ motions for summary judgment (ECF Nos.
17 & 18) are DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g), the Acting
Commissioner’s judgment is REVERSED IN PART due to inadequate analysis. The case is
3

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. An
implementing Order follows.
Sincerely yours,
/s/
Timothy J. Sullivan
United States Magistrate Judge

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