Shelton v. Commissioner of Social Security Administration
Filing
19
MEMORANDUM OPINION. Signed by Judge Stephanie A. Gallagher on 9/23/2019. (c/m 9/23/19)(krs, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES DISTRICT JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-7780
Fax (410) 962-1812
September 23, 2019
LETTER TO THE PARTIES
RE:
Lakisha S. v. Commissioner, Social Security Administration;
Civil No. SAG-18-1708
Dear Plaintiff and Counsel:
On June 11, 2018, Plaintiff Lakisha S., who appears pro se, 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
both parties’ motions for summary judgment.1 ECF 16, 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 the SSA’s motion and remand the case to the SSA for further evaluation
pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.
Plaintiff protectively filed her claims for benefits on October 28, 2014, alleging a
disability onset date of August 12, 2013.2 Tr. 222-34. Her claims were denied initially and on
reconsideration. Tr. 132-36, 137-40. A hearing, at which Plaintiff was represented by counsel,
was held on February 3, 2017, before an Administrative Law Judge (“ALJ”). Tr. 30-60.
Following that hearing, the ALJ determined that Plaintiff was not disabled within the meaning of
the Social Security Act during the relevant time frame. Tr. 13-23. The Appeals Council denied
Plaintiff’s request for review, Tr. 1-5, so the ALJ’s decision constitutes the final, reviewable
decision of the SSA.
The ALJ found that Plaintiff suffered from the severe impairments of “left knee major
joint, depression, and anxiety.” Tr. 15. Despite these impairments, the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except lift,
carry, push, pull twenty pounds occasionally, ten pounds frequently, sit for six
hours in a workday, stand/walk for six hours in an eight hour workday, with
standing and walking, this individual would have the option to alternate to sitting
for up to fifteen minutes after every two hours of either standing or walking,
After the SSA filed its motion, the Clerk’s Office sent a Rule 12/56 letter to Plaintiff, advising her of the potential
consequences of failing to oppose the dispositive motion. ECF 18. Plaintiff did not file a response.
1
2
Plaintiff subsequently amended her date of onset to January 1, 2015. Tr. 243.
Lakisha S. v. Commissioner, Social Security Administration
Civil No. SAG-18-1708
September 23, 2019
Page 2
assuming they’d remain on task in either the standing or walking postural
positions, this individual could frequently operate left foot controls, this
individual could never climb ladders, ropes, scaffolds, never crawl, occasional
ramps and stairs, occasionally balance, stoop, kneel, crouch, this individual would
never work at unprotected heights or around moving mechanical parts such as
machinery on a factory floor or on earth moving equipment, this individual could
perform simple, routine tasks, make simple, work-related decisions, have
occasional interactions with supervisors, co-workers, and the general public, any
time off task would be accommodated by normal breaks.
Tr. 17. After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Plaintiff was unable to perform any past relevant work, Tr. 21, but could perform other jobs
existing in significant numbers in the national economy, Tr. 22-23. Accordingly, the ALJ
concluded that Plaintiff was not disabled. Tr. 23.
I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart,
386 F. Supp. 2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review
of a pro se action challenging an adverse administrative decision, including: (1) examining
whether the SSA’s decision generally comports with regulations, (2) reviewing the ALJ’s critical
findings for compliance with the law, and (3) determining from the evidentiary record whether
substantial evidence supports the ALJ’s findings).
The ALJ proceeded in accordance with applicable law at the first two steps of the
sequential evaluation. The ALJ ruled in Plaintiff’s favor at step one, and determined that she had
not engaged in substantial gainful activity since her application date. Tr. 15; see 20 C.F.R. §
416.920(a)(4)(i). At step two, the ALJ then considered the severity of each of the impairments
that Plaintiff claimed prevented her from working, finding each impairment to be severe. Tr. 15;
see 20 C.F.R. § 416.920(a)(4)(ii).
At step three, the ALJ determined that Plaintiff’s impairments did not meet or medically
equal the criteria of any listings. Tr. 16-17. In particular, the ALJ identified and considered
Listings 1.00 (musculoskeletal system), 12.04 (depressive, bipolar, and related disorders), and
12.06 (anxiety and obsessive-compulsive disorders).
With respect to the musculoskeletal
system, the ALJ explained that Plaintiff’s impairments were insufficient to meet the
requirements of any listing. Tr. 16. With respect to the two mental health listings, the ALJ
engaged in the special technique for evaluation of mental impairments, but found no more than a
moderate limitation in each of the four relevant functional areas. Tr. 16-17. The ALJ employs
the “special technique” to rate a claimant’s degree of limitation in each functional 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. § 416.920a(c)(2).
The ALJ uses a five-point scale to rate a claimant’s degree of limitation in the four areas: none,
mild, moderate, marked, or extreme. Id. § 416.920a(c)(4). In order to satisfy the “paragraph B
criteria,” a claimant must exhibit either “marked” limitations in two of the four areas, or
“extreme” limitation in one of the four areas. 20 C.F.R. Pt. 404, Subpt. P, App’x 1 §
Lakisha S. v. Commissioner, Social Security Administration
Civil No. SAG-18-1708
September 23, 2019
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12.00(A)(2)(b). Here, with no findings of marked limitation in any area, the ALJ concluded that
Plaintiff’s impairments did not satisfy the “paragraph B criteria.” Tr. 16-17. The ALJ also
found that Plaintiff did not meet the “paragraph C criteria” of the mental health listings, which
require “serious and persistent” disorders lasting at least two years with a history of ongoing
medical treatment and marginal adjustment. Id. § 12.00 (G). I have carefully reviewed the
record, and I agree that no listings are met in this case.
The ALJ continued with the sequential evaluation and considered, in assessing Plaintiff’s
RFC, the extent to which her impairments limited her ability to work. Tr. 17-21. In considering
Plaintiff’s RFC, the ALJ summarized Plaintiff’s subjective complaints from her hearing
testimony. Tr. 18. The ALJ also reviewed Plaintiff’s examination and treatment records, and
assigned weight to the opinions of various State agency consultants, treating physicians, and
third-party function reports. Tr. 18-21.
The fatal flaw in the ALJ’s reasoning lies in the dictates of Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015). In that case, 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 638. That functional 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.”
20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00(E)(3) (2018). Social Security regulations do not
define marked 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 in the area of concentration, persistence, or pace.
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.
Here, the ALJ found that Plaintiff had moderate difficulties maintaining concentration,
persistence, or pace. Tr. 16. The ALJ’s analysis stated:
Lakisha S. v. Commissioner, Social Security Administration
Civil No. SAG-18-1708
September 23, 2019
Page 4
With regard to concentrating, persisting, or maintaining pace, the claimant has
moderate limitations. In this the claimant alleged in counseling she has, “been
crying a lot. I just lost my job. I feel like I can’t handle things.” The claimant
reported decreased concentration. However, it appears from the record the
significant changes in work activity started after a fall at work at were related to
physical impairment [sic].
The record shows the claimant is able to live
independently with roommates and her children and the claimant is able to attend
treatment and follow a treatment regimen independently. There is history of
conservative mental health treatment with no inpatient hospitalizations, I find the
record as a whole indicates less than marked limitations.
Tr. 16-17 (internal citations omitted). In explaining how he arrived at Plaintiff’s RFC, the ALJ
failed to mention or discuss the opinion of Dr. Adams, Plaintiff’s treating physician, regarding
Plaintiff’s limited ability to concentrate, persist, or maintain pace. See Tr. 614-15 (opining that
Plaintiff had marked or severe limitations in, among other areas, the abilities to “maintain
attention and concentration for extended periods of time,” “sustain an ordinary routine without
special supervision,” “complete a normal workday without interruptions,” and “perform at a
consistent pace with a standard number and length of breaks.”).
Although the ALJ
acknowledged that Dr. Adams opined that Plaintiff was severely restricted, and that Dr. Adams
noted Plaintiff’s symptoms had “worsened drastically in the past year,” the ALJ assigned only
“limited weight” to his opinion. Tr. 21 (quoting Tr. 616). For support, the ALJ noted that
Plaintiff “has strong activities of daily living, drives, and lives with many housemates.” Id.
However, the ALJ did not specify Plaintiff’s activities of daily living and did not explain how
living with housemates mitigated Plaintiff’s mental impairments, especially considering
Plaintiff’s hearing testimony that she often spends the day in bed and does not participate in the
household chores. Tr. 52-55.
The restriction to “simple, routine tasks” is directly analogous to the limitations deemed
insufficient in Mascio. Mascio, 780 F.3d at 638 (quoting Winschel, 631 F.3d at 1180) (finding
“simple, routine tasks or unskilled work” to be insufficient to address a claimant’s moderate
limitations in concentration, persistence, or pace).
In the absence of any additional limitation to
accommodate Plaintiff’s moderate difficulties maintaining concentration, persistence, or pace,
Mascio requires that the ALJ explain why no such limitation is required. Mascio, 780 F.3d at
638. The ALJ has not provided such an explanation here.
Additionally, the ALJ’s assessment of Plaintiff’s physical RFC is flawed. The ALJ
concluded that Plaintiff could stand or walk up to six hours in an eight-hour workday. Tr. 17.
However, the ALJ gave “significant weight” to the opinions of State agency consultants, Drs.
Goo and Rudin, who limited Plaintiff to up to two hours of standing or walking in an eight-hour
workday. Tr. 20, 84, 113. The ALJ also gave “significant weight” to the opinion of Plaintiff’s
treating physician, Dr. Sealy, regarding her physical RFC. Tr. 20. While Dr. Sealy referred to
Plaintiff’s knee prognosis as “fair,” she limited Plaintiff to standing for no more than one hour,
and walking for no more than one hour, in an eight-hour workday. Tr. 611. The ALJ stated that
Dr. Sealy’s opinions were “largely reflected” in his RFC assessment, and that Plaintiff’s
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Civil No. SAG-18-1708
September 23, 2019
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“[s]tanding and walking limitations were sufficiently addressed with a sit/stand option.” Tr. 20.
The sit/stand option in the RFC assessment only allowed sitting for up to fifteen minutes after
every two hours of standing or walking, Tr. 17, and therefore the total amount of standing and
walking would far exceed the capacities recommended by the medical sources.
In light of the ALJ’s inadequate RFC assessment, I need not address whether the
remainder of the ALJ’s analysis, at steps four and five, complied with the relevant legal
standards. In ordering remand for further consideration by the SSA, I express no opinion as to
whether the ALJ’s ultimate conclusion that Plaintiff is not entitled to benefits is correct.
Despite the informal nature of this letter, it should be flagged as an opinion. A separate
order will issue.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States District Judge
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