Barnett v. Berryhill

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 11/6/2018. (heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
KELLEY LINNEA BARNETT,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration
Defendant.

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Civil Action No. CBD-17-2810

MEMORANDUM OPINION
Kelley Linnea Barnett (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) seeking
judicial review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”). The Commissioner denied Plaintiff’s claim for a period of Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act and for Supplemental
Security Income Benefits (“SSI”) under Title XVI of the Social Security Act. Before the Court
are Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 19) and
Commissioner’s Motion for Summary Judgment (“Commissioner’s Motion”) (ECF No. 20).
The Court has reviewed the motions, related memoranda, and the applicable law. No hearing is
deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court
hereby DENIES Plaintiff’s Motion, DENIES Commissioner’s Motion, and REVERSES and
REMANDS this matter for further proceedings consistent with this opinion. A separate order
will issue.

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I.

Procedural Background
On June 2, 2014, Plaintiff filed for DIB under Title II and SSI under Title XVI. R. 12,

226-39. For both filings, Plaintiff alleged disability beginning August 1, 2010. R. 12, 93, 103.
Plaintiff alleged disability due to “slip [sic] disk in back, muscle spasm in right leg,” and bipolar
disorder. R. 93, 103. Plaintiff’s claims were initially denied on November 5, 2014, and upon
reconsideration on February 2, 2015. R. 12, 93-112, 115-34. Plaintiff requested an
administrative hearing. R. 159-60. This was Plaintiff’s second request for a hearing on claims
for DIB and SSI. R. 11. Her first request resulted in an unfavorable decision on January 25,
2008. R. 11, 70-84. Plaintiff’s second hearing was held on September 3, 2015. R.12, 33-69.
On September 21, 2016, Plaintiff’s current claims were denied. R. 11-26. Plaintiff sought
review by the Appeals Council, which concluded on August 1, 2017, that there was no basis for
granting the Request for Review. R. 1-3.
II.

Standard of Review
On appeal, the Court has the power to affirm, modify, or reverse the decision of the

ALJ “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (2015).
The Court must affirm the ALJ’s decision if it is supported by substantial evidence and the
ALJ applied the correct law. Id. (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive.”); see also Russell v.
Comm’r of Soc. Sec., 440 F. App’x 163, 164 (4th Cir. 2011) (citing Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990)). “In other words, if the ALJ has done his or her job
correctly and supported the decision reached with substantial evidence, this Court cannot
overturn the decision, even if it would have reached a contrary result on the same evidence.”
Schoofield v. Barnhart, 220 F. Supp. 2d 512, 515 (D. Md. 2002). Substantial evidence is

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“more than a mere scintilla.” Russell, 440 F. App’x, at 164. “It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Hays, 907 F.2d at 1456
(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks
omitted) (“It consists of more than a mere scintilla of evidence but may be somewhat less
than a preponderance. If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”).
The Court does not review the evidence presented below de novo, nor does the Court
“determine the weight of the evidence” or “substitute its judgment for that of the Secretary
if his decision is supported by substantial evidence.” Hays, 907 F.2d at 1456 (citations
omitted); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (“[T]he
language of § 205(g) precludes a de novo judicial proceeding and requires that the court
uphold the Secretary’s decision even should the court disagree with such decision as long as
it is supported by ‘substantial evidence.’”). The ALJ, not the Court, has the responsibility to
make findings of fact and resolve evidentiary conflicts. Hays, 907 F.2d, at 1456 (citations
omitted). If the ALJ’s factual finding, however, “was reached by means of an improper
standard or misapplication of the law,” then that finding is not binding on the Court.
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (citations omitted).
The Commissioner shall find a person legally disabled under Title II and Title XVI if she
is unable “to do any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a),

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416.905(a) (2012). The Code of Federal Regulations outlines a five-step process that the
Commissioner must follow to determine if a claimant meets this definition:
1) Determine whether the plaintiff is “doing substantial gainful activity.” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i) (2012). If she is doing such activity, she is not
disabled. If she is not doing such activity, proceed to step two.
2) Determine whether the plaintiff has a “severe medically determinable physical or mental
impairment that meets the duration requirement in § [404.1509/416.909], or a
combination of impairments that is severe and meets the duration requirement.” 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (2012). If she does not have such
impairment or combination of impairments, she is not disabled. If she does meet these
requirements, proceed to step three.
3) Determine whether the plaintiff has an impairment that “meets or equals one of [the
C.F.R.’s] listings in appendix 1 of this subpart and meets the duration requirement.” 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) (2012). If she does have such
impairment, she is disabled. If she does not, proceed to step four.
4) Determine whether the plaintiff retains the “residual functional capacity” (“RFC”) to
perform “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (2012).
If she can perform such work, she is not disabled. If she cannot, proceed to step five.
5) Determine whether the plaintiff can perform other work, considering her RFC, age,
education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v)
(2012). If she can perform other work, she is not disabled. If she cannot, she is disabled.
Plaintiff has the burden to prove that she is disabled at steps one through four, and
Commissioner has the burden to prove that Plaintiff is not disabled at step five. Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
The RFC is an assessment that represents the most a claimant can still do despite any
physical and mental limitations on a “regular and continuing basis.” 20 C.F.R. §§ 404.1545(b)(c), 416.945(b)-(c). In making this assessment, the ALJ must consider all relevant evidence of
the claimant’s impairments and any related symptoms. See 20 C.F.R. §§ 404.1545(a), 416.945
(a). The ALJ must present a “narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g.

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daily activities, observations),” and must then “explain how any material inconsistencies or
ambiguities in the evidence in the case record were considered and resolved.” SSR 96-8p, 1996
WL 374184 at *7 (S.S.A.). “Ultimately, it is the duty of the [ALJ] reviewing the case, and not
the responsibility of the courts, to make findings of fact and to resolve conflicts of evidence.”
Hays, 907 F.2d at 1456 (citing King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)).
III.

Analysis
In this matter, the ALJ evaluated Plaintiff’s claim using the five-step sequential

evaluation process. R. 14-26. At step one, the ALJ determined that Plaintiff did not engage in
substantial gainful activity since August 1, 2010, the alleged onset date. R. 14. At step two,
under 20 C.F.R. § 404.1520(c) and § 416.920(c), the ALJ determined that Plaintiff had the
following severe impairments: “lumbar degenerative disease, lumbosacral radiculopathy, lumbar
facet arthropathy, and bipolar disorder.” R. 14. The ALJ stated that the listed impairments were
severe because they, “impose more than minimal functional limitations on claimant’s ability to
perform basic work activities and have lasted or are expected to last for more than twelve months
. . . .” R. 14. In step three, the ALJ determined that Plaintiff did not have “an impairment or a
combination of impairments that [met] or medically equal[ed] the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 416.926).” R. 15. At step four, the ALJ determined that
Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(a) and
416.967(a) except that:
[Plaintiff] can lift and carry 20 pounds occasionally and 10 pounds frequently. She can
stand and walk for four hours. She can sit for six hours. She can occasionally stoop,
crouch, kneel, and crawl and climb stairs and ramps. She can never climb ladders, ropes,
or scaffolds. She needs to avoid all exposure to hazards, including heights and heavy
machinery. She can do simple, routine, repetitive work, in an environment with few, if
any workplace changes. She can have occasional interactions with supervisors and
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coworkers, and can have incidental contact with the public, but no direct customer
service.
R. 18. The ALJ then determined that Plaintiff was not capable of performing any of her past
relevant work. R. 23-24. At step five, however, the ALJ concluded that there are jobs that exist
in significant numbers in the national economy that Plaintiff can perform. R. 24-26.
On appeal, Plaintiff requests that the Court grant summary judgment in her favor or, in
the alternative, remand this matter to the Social Security Administration for a new administrative
hearing. For the reasons set forth below, the Court REVERSES the ALJ’s decision in part and
REMANDS the matter for further proceedings.
A. The ALJ’s explanation for finding Plaintiff had moderate difficulties in
maintaining concentration, persistence and pace was insufficient.
Plaintiff alleges that the ALJ provided an insufficient explanation for how she determined
that Plaintiff had moderate difficulties in maintaining concentration, persistence and pace, thus
preventing judicial review. Pl.’s Mot. 13-15. Commissioner counters that the Court must read
the ALJ’s decision as a whole and that sufficient explanation was provided in the subsequent
RFC discussion to support the finding of moderate limitations. Comm’r’s Mot. 6.
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 “special 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 special 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
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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.
20 C.F.R. § 404.1520a(e)(4). “[F]ailure to properly document application of the special
technique will rarely, if ever, be harmless because such a failure prevents, or at least substantially
hinders, judicial review.” Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 662 (4th Cir.
2017) (“Without documentation of the special technique, it is difficult to discern how the ALJ
treated relevant and conflicting evidence.”).
Here, the ALJ determined that Plaintiff had “moderate difficulties” in maintaining
concentration, persistence or pace, and provided the following explanation:
[Plaintiff] reported some difficulty with completing tasks, testified she had to nap during
the day, and told her counselor that she heard voices at times. She testified that her
thoughts distracted her at times. However, [Plaintiff] reported spending time reading her
Bible and she did not report difficulty with her concentration or memory. In addition, the
claimant’s psychiatrist, Dr. Nayeem, observed that the claimant had no deficit in
memory, and her concentration and attention were fair to good at each visit between June
2015 and April 2016. For these reasons, the claimant has a moderate limitation in
concentration, persistence, or pace.
R. 17 (internal citations omitted). Plaintiff argues that this explanation is insufficient to permit
the Court to review the ALJ’s determination and cites to this Court’s decision in Brocato v.
Comm’r, Soc. Sec. Admin., No. CV SAG-16-2540, 2017 WL 3084382 (D. Md. July 19, 2017).
Pl.’s Mot. 15.
In Brocato, the ALJ found the claimant suffered from moderate difficulties in
concentration, persistence, or pace. Id. at 3. The ALJ based this determination “exclusively on
[the claimant’s] reported issues in concentration, since the remaining sentences in the analysis
would suggest mild or no limitations.” Id. In reversing the ALJ’s decision, this Court found the
“cursory” explanation failed to meet regulatory requirements for assessing someone’s difficulties

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in the four functional areas. Id. This Court noted that absent additional explanation, it was
“unable to ascertain whether the ALJ truly believed [the claimant] to have moderate difficulties
in concentration, persistence, and pace, instead of mild, or no difficulties, and how those
difficulties restrict her RFC . . . .” Id.; see also Baylor v. Comm’r, Soc. Sec. Admin., Civ. No.
SAG-15-3520, 2016 WL 6085881 (D. Md. Oct. 18, 2016) (noting that the “cursory analysis
provided . . . suggests that the finding of ‘moderate difficulties’ was based exclusively on the
finding that [the claimant] reported issues in concentration and asked if she had dementia . . .
since the remaining sentences in the analysis would suggest mild or no limitations”), Miles v.
Comm’r, Soc. Sec. Admin., Civ. No. SAG-16-1397, 2016-WL-6901985 (D. Md. Nov. 23, 2016)
(noting the court is unable to ascertain the reason for finding the claimant had moderate
limitations in concentration, persistence, or pace as “[i]t appears the ALJ largely discredits [the
claimant’s] reports of difficulty with attention and concentration”).
As in the aforementioned cases, the ALJ here provided only a brief explanation for her
finding that Plaintiff had “moderate difficulties” in concentration, persistence or pace. R. 17. As
she cites to no objective evidence in the record to support her finding of this level of difficulty,
the ALJ appears to rest her determination solely on Plaintiff’s self-reported difficulties in
completing tasks, her need for naps, the fact she reported hearing voices “at times” and had
distracting thoughts. R. 17. However, the remaining portion of the ALJ’s explanation not only
mitigates the finding of any difficulty in this functional area, it appears to undermine Plaintiff’s
credibility as to the reliability of her self-reported symptoms in general. While the Court could
surmise that symptoms of Plaintiff’s bipolar disorder and the side effects of her medications
could impact her ability to maintain concentrate, persistence, or pace, this would be beyond the
role of the Court in these proceedings. Hays, 907 F.2d at 1456. It is the ALJ who is tasked with

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“build[ing] an accurate and logical bridge from the evidence to [her] conclusion.” Monroe v.
Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Without providing a more detailed explanation for
how the record supports her conclusion of moderate difficulties, the ALJ’s explanation leaves the
Court “unable to ascertain whether the ALJ truly believed [Plaintiff] to have moderate
difficulties in concentration, persistence, and pace, instead of mild, or no difficulties.” Brocato,
2017 WL 3084382, at *3. Therefore, the Court hereby orders this matter remanded for further
proceedings to include an explanation of how the degree of limitation in concentration,
persistence and pace was determined, including details for how the evidence available in the
record supports the ALJ’s determination, if not immediately clear.
B. Without proper explanation for the determination of the degree of difficulty, the
Court is unable to review the ALJ’s RFC assessment and corresponding narrative
discussion.
Plaintiff also alleges that under the Mascio decision, the ALJ’s RFC assessment limiting
Plaintiff to “simple, routine, repetitive work, in an environment with few, if any workplace
changes” did not account for the moderate difficulties in maintaining concentration, persistence
and pace that the ALJ found Plaintiff to have at step three of the sequential evaluation. Pl.’s
Mot. 13-14 (citing R. 17). Commissioner argues that the ALJ supplied an additional explanation
in her narrative for why the limitations included in the RFC assessment addressed Plaintiff’s
moderate difficulties in concentration, persistence and pace, thus satisfying the Mascio
requirements. Comm’r’s Mot. 6.
The functional area of concentration, persistence, or pace
[R]efers to the abilities to focus attention on work activities and stay on task at a
sustained rate. Examples include: Initiating and performing a task that you understand
and know how to do; working at an appropriate and consistent pace; completing tasks in
a timely manner; ignoring or avoiding distractions while working; changing activities or
work settings without being disruptive; working close to or with others without
interrupting or distracting them; sustaining an ordinary routine and regular attendance at
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work; and working a full day without needing more than the allotted number or length of
rest periods during the day.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(E)(3). Under Mascio, the Fourth Circuit held that an
RFC assessment must account for the ALJ’s step three finding of moderate limitations in
concentration, persistence or pace beyond limiting a claimant to performing only “simple,
routine tasks.” Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015). This Court further clarified
that, “[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., No. ELH-14-2214, 2015 WL 2395108, at *3 (D. Md. May 19,
2015).
As the Court “cannot review the ALJ’s mental-impairment evaluation, we cannot say that
[she] properly assessed [Plaintiff’s] RFC.” Patterson, 846 F.3d 656, 662 (4th Cir. 2017) (citing
20 C.F.R. § 404.1520a(c)(3); Mascio, 780 F.3d at 637). However, the Court notes that the RFC
assessment as it is currently would be insufficient to meet the Mascio requirements without
additional explanation. See, e.g., McDonald v. Comm’r. Soc. Sec. Admin., No. SAG-16-3041,
2017 WL 3037554, at *4 (D. Md. July 18, 2017) (concluding “a RFC restriction that [the
claimant could] perform ‘simple, routine, and repetitive tasks involving only simple work-related
decisions with few if any workplace changes and only occasional supervision’” was insufficient
to meet Mascio requirements); but see Henig v. Colvin, No. TMD-13-1623, 2015 WL 5081619,
at *12 (D. Md. Aug. 26, 2015) (citations omitted) (citing to a number of cases in which the court
found the standard established in Mascio was met through specific low-production language).
Upon remand and reconsideration of her determination of the degree of Plaintiff’s
functional limitations, the ALJ is further directed to review her RFC assessment. Should the
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ALJ determine that Plaintiff has limitations in her functional area of concentration, persistence or
pace, the ALJ is directed to provide either corresponding limitations in her RFC assessment or an
explanation in the subsequent discussion section as for why there was no need for additional
limitations. As the Fourth Circuit has urged ALJs to do before: “[s]how your work.” Patterson,
846 F.3d 656, 663.
IV.

Conclusion
Based on the foregoing, the Court REVERSES and REMANDS this matter with specific

instructions for the ALJ to: (1) provide a more detailed and supported explanation as to how she
came to the determination of the degree of limitation of Plaintiff’s ability to maintain
concentration, persistence or pace so as to permit judicial review, and (2) include a
corresponding limitation for the level of Plaintiff’s difficulty in maintaining concentration,
persistence and pace—if the ALJ finds any in step three—or provide an explanation for why
such a limitation is not necessary. In making this decision, the Court offers no opinion on the
ALJ’s ultimate determination that Plaintiff is not disabled within the meaning of the Social
Security Law.

/s/
Charles B. Day
United States Magistrate Judge

November 6, 2018

CBD/clc

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