Green v. Berryhill

Filing 18

ORDER denying 14 Motion of plaintiff for Summary Judgment; denying 17 Motion of defendant for Summary Judgment; Reversing in part SSA's judgment; Remanding for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 1/7/2019. (jnls, 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]

January 7, 2019
LETTER TO COUNSEL
RE:

Alberta G. v. Commissioner, Social Security Administration;1
Civil No. SAG-18-783

Dear Counsel:
On March 17, 2018, Plaintiff Alberta G. petitioned this Court to review the Social
Security Administration’s (“SSA’s”) final decision to deny her claims for Disability Insurance
Benefits and Supplemental Security Income. ECF 1. I have considered the parties’ crossmotions for summary judgment. ECF 14, 17. I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2018). 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.
Plaintiff filed her first claim for benefits on June 27, 2013, alleging an onset date of
March 1, 2013. Tr. 203-06. Her claim was denied initially on October 16, 2013, Tr. 131-34, and
Plaintiff filed a request for reconsideration and an application for Supplemental Security Income.
Tr. 135, 207-13. Her claims were consolidated and denied on reconsideration. Tr. 137-40. A
hearing was held on June 15, 2016, before an Administrative Law Judge (“ALJ”). Tr. 40-93.
Following the hearing, the ALJ determined that Plaintiff was not disabled within the meaning of
the Social Security Act during the relevant time frame. Tr. 23-34. The Appeals Council (“AC”)
issued an opinion, adopting the ALJ’s decision in part and modifying it in part. Tr. 1-12. The
AC’s decision constitutes the final, reviewable decision of the SSA.
The AC found that Plaintiff suffered from the severe impairments of “sickle cell disease,
polycythemia, iron-deficiency anemia, discogenic and degenerative disorders of the lumbar
spine, affective and anxiety related disorders, headaches, and asthma.” Tr. 6, 8. Despite these
impairments, the AC determined that Plaintiff retained the residual functional capacity (“RFC”)
to:
perform a range of light exertion (20 CFR 404.1567(a) and 416.967(a)2; lift and
carry 20 pounds occasionally and 10 pounds frequently; to sit up to 6 hours, stand
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

In addition to the unmatched parentheses in this citation, it appears that the AC misidentified the
relevant regulation for light work – the subsection should have been “b” instead of “a.”

Alberta G. v. Commissioner, Social Security Administration
Civil No. SAG-18-783
January 7, 2019
Page 2
up to 6 hours, and walk up to 6 hours throughout a normal workday, but would
require the ability to sit for approximately 1 to 2 minutes after approximately 30
minutes of standing or walking and would require the ability to stand or walk for
approximately 1 to 2 minutes after approximately 30 minutes of sitting (whether
sitting, standing, or walking, you would remain on task); to push and pull as much
as you could have lifted and carried; to occasionally climb ramps and stairs; to
occasionally stoop, kneel, crouch, and crawl; to never climb ladders, ropes, and
scaffolds; to never work around unprotected heights or moving mechanical parts;
to occasionally be exposed to dust, odors, fumes, pulmonary irritants, and extreme
cold; to never be exposed to extreme heat; to work in an environment involving
occasional vibration and moderate noise; and to perform simple, routine tasks and
simple work-related decisions (i.e., few if any workplace changes, meaning the
same duties are performed at the same station or location from day-to-day).
Tr. 7, 8-9. After considering the testimony of a vocational expert (“VE”), the AC determined
that Plaintiff could not perform her past relevant work, but could perform other jobs existing in
the national economy. Tr. 7-8, 9. Therefore, the AC concluded that Plaintiff was not disabled.
Tr. 8, 9.
Plaintiff makes several arguments on appeal, most of which pertain to the ALJ’s analysis
adopted by the AC: (1) that the ALJ did not sufficiently consider her migraine headaches; (2)
that the AC’s RFC assessment was flawed and runs afoul of the Fourth Circuit’s decision in
Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); (3) that the ALJ failed to consider her
impairments in combination; and (4) that the ALJ did not assign adequate weight to her
subjective complaints. Although some of Plaintiff’s arguments lack merit, I agree that the AC’s
analysis did not comply with Mascio, and I therefore grant remand under sentence four.
Beginning with the successful argument, 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. Id. At step three of the sequential evaluation,
the SSA 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 (2018). Listings 12.00 et seq.
pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00 (2018). The relevant
listings therein consist of: (1) “paragraph A criteria,” which consist of a set of medical findings;
(2) “paragraph B criteria,” which consist of a set of impairment-related functional limitations;
and (3) “paragraph C criteria,” which relate to “serious and persistent” disorders lasting at least
two years with a history of ongoing medical treatment and marginal adjustment. Id. §§ 12.00(A),
(G). A claimant’s impairments meet the listings relevant to this case by satisfying either the
paragraph A and paragraph B criteria, or the paragraph A and paragraph C criteria. Id. §
12.00(A).
Paragraph B consists of four broad functional areas including: (1) understanding,
remembering, or applying information; (2) interacting with others; (3) concentrating, persisting,
or maintaining pace, and (4) adapting or managing oneself. Id. § 12.00(A)(2)(b). The functional

Alberta G. v. Commissioner, Social Security Administration
Civil No. SAG-18-783
January 7, 2019
Page 3
area of concentration, persistence, or pace “refers to the abilit[y] to focus attention on work
activities and stay on task at a sustained rate.” Id. § 12.00(E)(3).
The SSA 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.
§§ 404.1520a(b), (c)(2), 416.920a(b), (c)(2) (2018). The SSA uses a five-point scale to rate a
claimant’s degree of limitation in the three areas: none, mild, moderate, marked, or extreme. Id.
§§ 404.1520a(c)(4), 416.920a(c)(4). A moderate limitation signifies that the claimant has only a
fair ability to function in the relevant area of mental functioning. 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 12.00(F)(2)(c) (2018).
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.
At step three in the instant case, the AC found that Plaintiff had moderate limitations
maintaining concentration, persistence, or pace. Tr. 6-7. The AC’s analysis stated:
With regard to the claimant’s ability to concentrate, persist or maintain pace, the
Appeals Council finds that the claimant has moderate difficulties. Although the
psychological consultative examiner indicates that the claimant’s major
depressive disorder could be expected to cause limitations in her ability to
maintain sustained concentration and persistence, she found her cognition and
memory to be within normal limits. Additionally, the claimant was able to plan
her own wedding.
Id. (internal citations omitted).
The AC did not conduct an independent analysis of the facts underlying its opinion, but
relied on the ALJ’s RFC analysis, which contains a somewhat minimal discussion of Plaintiff’s
mental health impairment. Tr. 31-32. The ALJ found that, “The claimant’s activities of daily
living are inconsistent with the level of alleged pain, headaches, and difficulty concentrating.”

Alberta G. v. Commissioner, Social Security Administration
Civil No. SAG-18-783
January 7, 2019
Page 4
Tr. 31. The ALJ noted that the claimant had “unilaterally discontinued taking her medications,
but has remained largely unchanged” in terms of psychiatric symptoms. Tr. 31. As to the
medical opinion evidence, the ALJ noted that Dr. Taylor-Ennis found “a limitation in the
claimant’s ability to sustain concentration and persistence” and accorded that opinion “some
weight to the extent that it is consistent with the residual functional capacity.” Tr. 32. However,
the ALJ’s RFC assessment did not mention Plaintiff’s ability to sustain concentration and
persistence, and the ALJ did not provide specific analysis regarding her evaluation of that
portion of Dr. Taylor-Ennis’s opinion. Without an explanation, I am unable to understand the
nature of the moderate limitation found by both the ALJ and the AC, and unable to determine
whether the RFC assessment had to incorporate specific conditions to accommodate the
limitation. The ALJ claimed the “limitation to simple, routine tasks is also consistent with . . . a
limitation in the claimant’s ability to sustain concentration and persistence.” Tr. 32. However,
the restriction to “simple, routine tasks,” Tr. 29, is directly analogous to the language deemed
insufficient in Mascio, and addresses only Plaintiff’s inability to perform complex tasks, not the
ability to sustain work over a full eight-hour workday. Without any analysis provided by the
ALJ or the AC, I am unable to ascertain whether the RFC assessment would permit a person with
Plaintiff’s limitations to sustain a competitive 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. In remanding for additional explanation, I express no opinion as to
whether the ALJ and AC’s ultimate conclusion that Plaintiff is not entitled to benefits is correct.
Plaintiff’s remaining arguments are less persuasive. The ALJ evaluated the medical
evidence pertaining to Plaintiff’s headaches, and did not find that the record substantiated
disabling symptoms. Tr. 30-31. Similarly, the ALJ evaluated the medical evidence and
symptoms associated with each of Plaintiff’s impairments, including her sickle cell pain. Id.
There is no evidence that the ALJ somehow neglected to consider the impairments in
combination, or that the combination of the impairments would result in greater functional
limitations than the totality of all of the individual impairments. Finally, the ALJ appropriately
evaluated Plaintiff’s subjective complaints, citing to specific evidence from Plaintiff’s testimony
and from evidence of her daily activities to undermine her allegations of disabling pain. Id.
However, because the case is being remanded on other grounds, the ALJ will be able to consider
whether her analysis on any of the above points requires additional explanation.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment, ECF 14, is
DENIED, and Defendant’s Motion for Summary Judgment, ECF 17, 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.

Alberta G. v. Commissioner, Social Security Administration
Civil No. SAG-18-783
January 7, 2019
Page 5
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