Cottman v. Berryhill

Filing 19

MEMORANDUM OPINION AND ORDER denying 17 Plaintiff's Motion for Summary Judgment; denying 18 Defendant's Motion for Summary Judgment; reversing in Part SSAs Judgment; remanding case for further proceedings in accordance with this opinion. Signed by Magistrate Judge Gina L Simms on 3/29/2019. (jf3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
GINA L. SIMMS
UNITED STATES MAGISTRATE JUDGE
[e-mail]

U.S. COURTHOUSE
6500 CHERRYWOOD LANE
GREENBELT, MARYLAND 20770
[phone]

March 29, 2019

Vincent J. Piazza, Esq.
6716 Hartford Road
Baltimore, MD 21234

Subject:

Benjamin B. Prevas, Esq.
Special Assistant United States Attorney
Social Security Administration, Ofc. Of
General Counsel
6401 Security Blvd., Room 617
Baltimore, MD 21235

Myra C. v. Comm’r of Soc. Sec.1
Civil No.: 1:17-cv-2931-GLS

Dear Counsel:
Pending before this Court are cross-motions for summary judgment (ECF Nos. 17, 18).
The Court must uphold the Social Security Administration (“SSA” or “the Agency”)’s decision 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) (2016); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The
substantial evidence rule “consists of more than a mere scintilla of evidence but may be somewhat
less than a preponderance.” Chater, 76 F.3d at 589. This Court shall not “re-weigh conflicting
evidence, make credibility determinations, or substitute [its] judgment” for that of the SSA. Id.
Upon review of the pleadings and the record, the Court finds that no hearing is necessary. L.R.
105.6. For the reasons set forth below, I will deny the motions, reverse the Commissioner’s
decision in part, and remand the case to the Commissioner for further consideration.
I.

BACKGROUND

Plaintiff filed claims for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income Benefits (“SSI”) on February 25, 2014, alleging an onset of disability on July 10, 2013.
(Tr. 211, 218).
Plaintiff’s application was denied initially (March 24, 2014), and upon
reconsideration ( November 14, 2014), by the SSA. (Tr. 91-98). On January 5, 2015, Plaintiff
requested a hearing, which was conducted on July 5, 2016 before an Administrative Law Judge
(“ALJ”). (Tr. 11). At the hearing, Plaintiff amended her alleged onset date to December 31, 2014.
(Tr. 11). On August 3, 2016, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act during the relevant time frame. (Tr. 11-25). The
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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.

Myra C. v. Comm’r of Soc. Sec.
GLS-17-2931
March 29, 2019
Appeals Council denied Plaintiff’s request for review on August 20, 2017, making the ALJ’s
decision the final reviewable decision of the Agency. (Tr.1-5).
II.

ANALYSIS PERFORMED BY THE ADMINISTRATIVE LAW JUDGE

In deciding to deny Plaintiff’s claim, the ALJ followed the five-step sequential evaluation
process regarding disability, which is set forth in 20 C.F.R. §416.920. See also Mascio v. Colvin,
780 F.3d 632, 634-35 (4th Cir. 2015). The steps used by the ALJ were as follows: step one,
assessed whether Plaintiff had engaged in substantial gainful activity since the alleged disability
onset date; step two, determined whether Plaintiff’s impairments met the severity and durations
requirements found in the regulations; step three, ascertained whether Plaintiff’s medical
impairment met or equaled an impairment listed in the regulations, 20 C.F.R. Part 404, Subpart P,
Appendix 1. (“the Listings”); step four, analyzed whether Plaintiff could perform her past work,
given the limitations caused by her impairments; and at step five, analyzed whether Plaintiff could
perform any work. (Tr. 31-40). Because the first three steps did not yield a conclusive
determination, the ALJ also assessed Plaintiff’s residual functional capacity (“RFC”)—i.e., the
“most the claimant ‘c[ould] still do despite’ physical and mental limitations that affect[ed] her
ability to work”—by considering all of Plaintiff’s medically determinable impairments, regardless
of their severity. See Mascio, at 635 (quoting 20 C.F.R. § 416.945(a)(1)). Per Mascio, Plaintiff
bore the burden of proof through the first four steps of the sequential evaluation process. Upon
making the requisite showing, the burden shifted to the Agency at step five to prove that Plaintiff
could perform other work that “exist[ed] in significant numbers in the national economy,” in light
of her “[RFC], age, education and work experience.” Lewis v. Berryhill, 858 F.3d 858, 862 (4th
Cir. 2017) (internal citations omitted).
Here, the ALJ found that Plaintiff suffered from the following severe impairments:
degenerative disc disease of the lumbar spine, sacroiliitis, facet arthropathy, osteoarthritis of the
knees, carpal tunnel syndrome, depression, and anxiety. (Tr. 14). Despite these impairments, the
ALJ determined that Plaintiff retained the RFC to:
Perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
can only occasionally stoop and crouch, but never kneel or crawl. She can
occasionally climb stairs and ramps, but never ladders, ropes, or scaffolds. She can
occasionally push and pull with the lower extremities. She is limited to simple,
routine, repetitive work in an environment with few, if any, workplace changes and
she can have occasional interaction with supervisors, coworkers, and incidental
contact with the public, but not direct customer service. Beginning March 1, 2015,
the claimant also needs a cane to ambulate.
(Tr.18). In addition, as explained more fully below in Section III, after evaluating the testimony
of a vocational expert (“VE”), the ALJ found Plaintiff could perform several jobs existing in the
national economy; therefore, Plaintiff was not disabled. (Tr. 24-25).

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GLS-17-2931
March 29, 2019
III.

DISCUSSION

On appeal to this Court, Plaintiff asserts that the ALJ committed several prejudicial errors
that warrant a remand: (a) the ALJ’s RFC assessment does not comport with the Fourth Circuit’s
mandates in Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015), because it fails to adequately
account for Plaintiff’s limitations in concentration, persistence and pace; (b) the ALJ did not
address how Plaintiff’s social functioning limitations affected her ability to respond to others on a
sustained basis; (c) the ALJ improperly evaluated the medical opinion evidence; (d) the ALJ’s
RFC findings related to carpal tunnel syndrome and vision are not supported by substantial
evidence; and (e) the ALJ erred by not evaluating the medical necessity of Plaintiff’s use of a cane
when standing. (ECF No. 17-1, pp. 10-25). The Agency has responded to each argument.
I find that remand is appropriate, as set forth immediately below.
First, Plaintiff contends that the ALJ erred by finding that Plaintiff had no more than
moderate difficulties in concentration, persistence and pace. Specifically, Plaintiff claims that the
ALJ so erred by: (a) ignoring evidence from Plaintiff’s primary care provider, Dr. Jeffrey Shultz,
that Plaintiff had difficulties with memory and concentration which caused her to be “off task”
for at least 20% of each work day; and (b) finding that Plaintiff’s treating therapist’s act of not
documenting Plaintiff’s “decreased memory” meant that Plaintiff had no more than a moderate
difficulty in concentration. (ECF No. 17-1, pp 11-12). According to the Plaintiff, then, by ignoring
the treating providers’ opinions, the ALJ “disregarded highly qualified medical sources in favor of
her own non-medical opinion.” Id. Second, Plaintiff asserts that the ALJ “failed to make an
accurate and logical bridge” between Plaintiff’s moderate limitations in concentration,
persistence, and pace” and the RFC that the ALJ fashioned. Put another way, the ALJ did not
adequately explain: (a) how Plaintiff’s mental impairments only translated into a limitation of
performing “simple routine repetitive tasks;” and (b) how such a limitation takes into account her
ability to stay “on task” during an 8-hour day. (ECF No. 17-1, pp. 13-14).
Urging against remand, the SSA argues that a “plain reading” of the ALJ’s decision,
demonstrates that her findings on Plaintiff’s moderate difficulties in concentration are “not due to
limitations in Plaintiff’s persistence or ability to maintain attention over time,” and that said
findings clearly “document[t] the connection between the basis for the ALJ’s special technique
finding and the RFC limitations assessed.” (ECF No. 18-1, p.11).
In Mascio v. Colvin, the Fourth Circuit remanded Mascio for several reasons, including,
the inadequacy of the ALJ’s evaluation of the claimant’s “moderate difficulties” in concentration,
persistence, or pace. 780 F.3d at 637-38. The Fourth Circuit held that an ALJ does not adequately
account for a claimant’s limitations in concentration, persistence, or pace by merely restricting
hypothetical questions posed to the VE to simple, routine tasks or unskilled work. Id. at 638. The
Fourth Circuit distinguished between a scenario where an individual is unable to perform simple
tasks from another where the individual stays on task, finding that “[o]nly the latter limitation
would account for a claimant’s limitation in concentration, persistence, or pace.” Id. The Fourth
Circuit remanded the case so that the ALJ could explain why the claimant’s mental limitations did
not did not translate into a limitation in the claimant’s RFC. Id. To summarize, then, an ALJ who
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Myra C. v. Comm’r of Soc. Sec.
GLS-17-2931
March 29, 2019
finds that a claimant has moderate difficulties in concentration, persistence and pace must either:
(a) include appropriate limitations in the RFC that account for these difficulties, or (b) explain why
no such limitations are necessary.
It is necessary, then, to examine the ALJ’s findings with regard to concentration,
persistence, and pace.
Pursuant to 20 C.F.R. §404.1520a(c)(2), an ALJ can rate a claimant has having “moderate
difficulties” by applying 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.
Next, the ALJ is to include the results in her RFC opinion, incorporating the “pertinent
findings and conclusions based on the technique” and must show, as pertinent here, “the functional
limitations that were considered in reaching a conclusion about the severity of mental
impairments.” 20 C.F.R. §404.1520a(c)(2). Moreover, 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(c)(4).
In this case, the ALJ did assess Plaintiff’s mental impairments using the “special
technique,” and found that she had moderate limitations in concentration, persistence, or pace. (Tr.
16). In particular, the ALJ noted:
The claimant testified that she had difficulty with her memory and concentration
and that at times she forgot things, such as her phone number. She also reported
difficulty understanding or following instructions. Despite the claimant’s
allegations, other than noting the claimant had forgotten her appointment on one or
two occasions, the claimant’s counselor did not note any observed deficiencies in
attention or concentration. Similarly, the claimant’s primary care providers at Total
Healthcare did not document any complaints or findings of decreased memory or
concentration. As such, the claimant has no more than a moderate limitation in
concentration, persistence, or pace.
(Tr. 16-17).
In addition, the hearing record shows that more than 9 hypotheticals were posed to the VE,
including one that accounted for Plaintiff’s characteristics, and another hypothetical that limited
Plaintiff to “simple, routine, repetitive work.” (Tr. 50-57). The VE testified that the hypothetical
individual could not be “off task” for more than 20% of the workday (Tr. 57-58). The Plaintiff’s
attorney then asked the VE whether an individual’s need to rest for 2 out of 8 hours in a work day
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GLS-17-2931
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and inability to “maintain the mental alertness and concentration necessary to perform even simple
job duties” made that person employable. The VE responded: “if a person is unable to perform
even simple one and two-step tasks for a two-hour segment during a work day, they’re generally
unable to maintain competitive employment.” (Tr. 58-59). However, the ALJ ultimately found
that Plaintiff could perform several jobs existing in the national economy (e.g., assembler or grade
sorter); therefore, Plaintiff was not disabled. (Tr. 24-25).
I agree that Mascio requires remand in this case for several reasons. First, the ALJ found
that claimant testified that she had difficulty with her memory and concentration, was at times
forgetful, and had difficulty following instructions. (Tr. 16-17). Later in the record, the ALJ also
accorded “some weight” to the treating counselor’s opinion that Plaintiff had some limitations in
concentration, persistence and pace based on “infrequent documentation of forgetfulness,” finding
only this amount of weight appropriate because no “significant deficiencies in concentration,
persistence and pace” were noted. (Tr. 22). However, the ALJ also held that Plaintiff’s treating
counselor and primary care providers did not note any complaints from Plaintiff of “decreased
memory or concentration,” nor did they note “any observed deficiencies in attention or
concentration,” but there were “one or two occasions” where Plaintiff forgot her appointments.
(Tr. 16-17). And, the last sentence in the ALJ’s concentration, persistence and pace assessment
is that the Plaintiff had “no more than a moderate limitation in concentration, persistence or pace.”
Id. After so concluding, the ALJ imposed no specific concentration-related limitation in the RFC
assessment, other than restricting Plaintiff to “simple, routine and repetitive work.” (Tr. 18). Here,
the ALJ did not explain how this restriction harmonizes the two opposing views that the ALJ
expressed related to Plaintiff’s concentration, persistence, and pace. Is the ALJ crediting or
discrediting the treating providers’ notes? Is the ALJ discrediting the Plaintiff’s complaints? If so,
how? The ALJ has not adequately explained which parts of the evidence she relies upon and how
it translates into the RFC assessment. This runs afoul of Mascio. Moreover, the Fourth Circuit has
recently held that “a proper RFC analysis has three components: (1) evidence; (2) logical
explanation, and (3) conclusion. The second component, the ALJ’s logical explanation, is just as
important as the other two.” Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019). See also Petry
v. Comm’r, Soc. Sec. Admin., No. 16-464, 2017 WL 680379, at *2 (D.Md. Feb. 21, 2017)(ALJ
should build “an accurate and logical bridge from the evidence to his conclusion”).
Second, I do not find that the ALJ adequately explained how she took into account the
VE’s hypothetical findings related to the Plaintiff being “off task” for more than 20% of the work
day, and whether that limitation impacted Plaintiff’s ability to sustain work during an 8-hour day.
The VE testified that an individual “off task” more than 20% of the workday “outside of regularly
scheduled work breaks,” would be unable to maintain employment. (Tr. 58). While it is reasonable
to infer that a claimant’s “moderate limitations translate into a decrease in productivity,” Sterling
v. Colvin, No. 1:13-CV-01132-SEB, 2014 WL 4328682, at *2 (S.D. Ind. Aug. 29, 2014), the ALJ’s
decision does not address how someone with moderate difficulties in concentration, persistence,
and pace can be productive for 80% of the workday. While it is true that “an ALJ is not tasked
with ‘the impossible burden of mentioning every piece of evidence’ that may be placed into the
administrative record,” McDaniel v. Astrue, No. 1:09-CV-109, 2010 WL 3211050, at *6
(W.D.N.C. July 22, 2010)(quoting Parks v. Sullivan, 766 F.Supp. 627, 635 (N.D.Ill. 1991)), the
ALJ must, nonetheless, “build an accurate and logical bridge between the limitations he finds and
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GLS-17-2931
March 29, 2019
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). If the ALJ did not believe that Plaintiff’s “no more than moderate limitations in
concentration, persistence and pace” impacted her productivity during an 8-hour day, then she
needed to articulate why: “[w]ithout such explanation, [her] decision is not supported by
substantial evidence.” Sterling, 2014 WL 4328682, at *3. Because this inadequate explanation
frustrates meaningful review, remand is also appropriate on this basis.
Ultimately, then, I find that the ALJ’s lack of a clear explanation prevents me from
adequately reviewing her findings. Without further explanation, I cannot determine whether the
ALJ does believe that the Plaintiff has “no more than moderate” difficulties in concentration,
persistence, and pace, what the basis is for that belief, whether no further limitations in Plaintiff’s
RFC assessment are warranted.
In light of these inadequacies, I must remand the case for further explanation consistent
with the Fourth Circuit’s dictates in Mascio. On remand, the ALJ should provide a proper narrative
of how the evidence supports her RFC determination, and build an accurate and logical bridge
from the evidence to the conclusions.
Plaintiff also advances four other arguments. Because the case is being remanded on other
grounds, I need not address them. On remand, the ALJ should review her explanation of Plaintiff’s
social functioning limitations and determine whether the RFC assessment fully accounts for these
issues. In addition, the ALJ should examine her RFC analysis to determine whether it clearly
defines the weight given to the medical opinion evidence, and also whether she treats similarlyrated acceptable medical evidence and non-acceptable evidence in the same manner in her RFC
assessment. There should be a clearly-articulated, logical explanation that connects all evidence to
the RFC assessment.

IV.

CONCLUSION

In remanding for additional analysis, I express no opinion as to whether the ALJ’s
finding that Plaintiff is not entitled to benefits is correct.
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. 18), 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.

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Myra C. v. Comm’r of Soc. Sec.
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March 29, 2019
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely,
/s/
The Honorable Gina L. Simms
United States Magistrate Judge

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