Freeman v. Berryhill

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 6/27/2019. (km4s, Deputy Clerk)

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

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Civil Action No. CBD-18-1957

MEMORANDUM OPINION
Sherah F. (“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. 17, and
Commissioner’s Motion for Summary Judgment (“Commissioner’s Motion”), ECF No. 18. The
Court has reviewed the motions, related memoranda, and the applicable law. No hearing is
deemed necessary. See Loc. R. 105.6 (D. Md.). For the reasons presented below, the Court
hereby DENIES Plaintiff’s Motion, DENIES Commissioner’s Motion, and REVERSES and
REMANDS the Administrative Law Judge’s decision pursuant to the fourth sentence of 42
U.S.C. § 405(g) for further proceedings consistent with this opinion. A separate order will issue.

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I.

Procedural Background
On May 1, 2015, Plaintiff filed for DIB under Title II. R. 15, 76, 196–202. On May 5,

2015, Plaintiff filed for SSI under Title XVI. R. 15, 65, 203–11. For both claims, Plaintiff
alleged disability beginning April 10, 2015. R. 15, 65, 76. Plaintiff later requested a “closed
period of disability” from April 10, 2015 to January 17, 2017. R. 15, 35. Plaintiff alleged
disability due to post-traumatic stress disorder (“PTSD”) and high blood pressure. R. 65, 76.
Plaintiff’s claims were initially denied on November 17, 2015, R. 15, 65–86, and upon
reconsideration on April 7, 2016, R. 15, 91–118, 127–30. On June 7, 2016, Plaintiff requested
an administrative hearing. R. 15, 133–32. A hearing was held before an administrative law
judge (“ALJ”) on May 24, 2017. R. 15–27. On June 9, 2017, the ALJ denied both of Plaintiff’s
claims. R. 15–27. Plaintiff sought review of this decision by the Appeals Council, which
concluded on April 24, 2018, that there was no basis for granting Plaintiff’s Request for Review.
R. 1–6. Plaintiff appealed that decision by filing the instant proceeding on June 27, 2018. ECF
No. 1.
II.

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

administrative law judge (“ALJ”) “with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g) (2019). 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

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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 “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 § [405(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 he
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

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expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a),
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),

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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. daily activities, observations),” and must then “explain how any material inconsistencie s or
ambiguities in the evidence in the case record were considered and resolved.” SSR 96-8p, 1996
WL 374184, at *7 (S.S.A. July 2, 1996). “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. 15–27. At step one, the ALJ determined that Plaintiff engaged in
substantial gainful activity between March 2017 to the date of the decision. R. 17. However, the
ALJ found that “there has been a continuous 12-month period(s) during which [Plaintiff] did not
engage in substantial gainful activity.” R. 17. Accordingly, the ALJ’s findings addressed those
periods of time. R. 17. At step two, under 20 C.F.R. §§ 404.1520(c), 416.920(c), the ALJ
determined that Plaintiff had the following severe impairments: “major depressive disorder and
post-traumatic stress disorder [PTSD].” R. 18. The ALJ stated that the listed impairments were
severe because they “constitute more than slight abnormalities and have had more than a
minimal effect on the claimant’s ability to perform basic work activities for a continuous period
of 12 months.” R. 18. The ALJ also noted that Plaintiff suffered from “hypertension and
obesity” but found them to be “non-severe impairments because they do not even minimally
affect [Plaintiff’s] ability to carry out basic, work-related activities.” R. 18. In step three, the
ALJ found that Plaintiff suffered from moderate limitations in concentration, persistence, or
pace. R. 19. Ultimately, the ALJ determined that Plaintiff did not have “an impairment or a

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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. 18. At step four, the ALJ determined that
Plaintiff had the RFC “to perform a full range of work at all exertional levels,” but included a
number of “non-exertional limitations”:
She is capable of performing simple, routine, and repetitive tasks in a work setting
with occasional decision-making and occasional changes in the work setting. She
should not work in an environment with fast pace requirements or high production
quotas. She can have occasional or superficial interaction with co-workers and
supervisors, but no contact with the public.
R. 20. The ALJ then determined that Plaintiff was unable to perform any of her past relevant
work. R. 20. Relying on the testimony of a vocational expert (“VE”), the ALJ concluded that
“there are jobs that exist in significant numbers in the national economy that [Plaintiff] can
perform.” R. 25. Accordingly, Plaintiff’s claims for DIB and SSI were denied. R. 27.
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 (“SSA”) for a new
administrative hearing. Pl.’s Mem. 12–13. For the reasons set forth below, the Court
REVERSES the ALJ’s decision and REMANDS the matter for further proceedings.
A. The ALJ’s assessment of Plaintiff’s degree of functional limitation in
concentration, persistence, or pace was insufficient.
In her motion, Plaintiff argues that the ALJ failed to properly evaluate her functional
limitation in concentration, persistence, or maintaining pace at step three of the sequential
evaluation by insufficiently explaining his reasoning for the degree of limitation he assigned at
step three of his analysis. Pl.’s Mem. 9, 21–23. Commissioner counters that the ALJ provided
sufficient explanation for how he came to his determination. Comm’r’s Mem. 5–11.

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At step three of the sequential evaluation, the ALJ must determine whether a claimant’s
impairments meet or equal one or more of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. Listings pertaining to mental impairments “consist[] of: (1) a brief statement
describing its subject disorder; (2) ‘paragraph A criteria,’ which consists of a set of medical
findings; and (3) ‘paragraph B criteria,’ which consists of a set of impairment-related functional
limitations.” Rayman v. Comm’r, Soc. Sec. Admin., Civ. No. SAG-14-3102, 2015 WL 6870053,
at *2 (D. Md. Nov. 6, 2015) (citing 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00(A)). “If the
paragraph A and paragraph B criteria are satisfied, the ALJ will find that the claimant meets the
listed impairment.” Frank P. v. Comm’r, Soc. Sec. Admin., Civ. A. No. ADC-18-2342, 2019 WL
2164092, at *6 (D. Md. May 16, 2019).
Paragraph B provides the functional criteria assessed by the ALJ and consists of four
broad functional areas: (1) understand, remember, or apply information; (2) interact with others;
(3) concentrate, persist, or maintain pace;1 and (4) adapt or manage oneself. 20 C.F.R. pt. 404,
subpt. P, app. 1, 12.00(A)(2)(b). The ALJ employs a “special technique” to rate the degree of a
claimant’s functional limitations in these areas. 20 C.F.R. §§ 404.1520a(b), 416.920a(b).

The functional area of concentration, persistence, or maintaining pace “refers to the abilities to
focus attention on work activities and stay on task at a sustained rate.” 20 C.F.R. pt. 404, subpt.
P, app. 1, 12.00(E)(3). According to the regulations, examples of the ability to focus attention
and stay on task include:
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Initiating and performing a task that [the claimant] understand[s] and know[s]
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 work; and working a full day without needing more than the
allotted number or length of rest periods during the day.
Id.
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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), 416.920a(c)(2). The ALJ then uses a five-point scale to rate a
claimant’s degree of limitation: none, mild, moderate, marked, and extreme. 20 C.F.R. §§
404.1520a(c)(4), 416.920a(c)(4). “To satisfy the paragraph B criteria, [a claimant’s] mental
disorder must result in ‘extreme’ limitation of one, or ‘marked’ limitation of two, of the four
areas of mental functioning.” 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00(A)(2)(b).
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 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); 416.920a(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.”). While an ALJ is not expected to go
into the same level of detail as he does when determining a claimant’s RFC, an ALJ must still
provide sufficient explanation such that the court can ascertain how he came to the conclusions
that he did. Id. at 663 (stating that “the dispute here arises from a problem that has become all
too common among administrative decisions challenged in this court—a problem decision
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makers could avoid by following the admonition they have no doubt heard since their gradeschool math classes: Show your work”); see also Brocato v. Comm’r, Soc. Sec. Admin., Civ. No.
SAG-16-2540, 2017 WL 3084382 (D. Md. July 19, 2017); Miles v. Comm’r, Soc. Sec. Admin.,
Civ. No. SAG-16-1397, 2016-WL-6901985 (D. Md. Nov. 23, 2016) (holding the court was
unable to ascertain the reason for finding the claimant had moderate limitations in concentration,
persistence, or maintaining pace as “[i]t appears the ALJ largely discredits [the claimant’s]
reports of difficulty with attention and concentration”); 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”).
Here, the ALJ determined that Plaintiff had “moderate difficulties” in concentration,
persistence, or maintaining pace, and provided the following explanation:
The next functional area addresses [Plaintiff’s] ability to concentrate, persist, or
maintain pace. For this criterion, [Plaintiff] has moderate limitations. [Plaintiff]
contended that she has limitations in concentrating generally and focusing
generally. On the other hand, [Plaintiff] said that she is able to prepare meals,
read, manage funds, handle her own medical care, and attend church.
Additionally, the record fails to show any mention of distractibility or inability to
complete testing that assesses concentration and attention.
R. 19. Plaintiff argues that this explanation is insufficient to permit the Court to review the
ALJ’s determination and cites to several decisions by this Court to support her assertion,
including Brocato. Pl.’s Mem. 21–23.
In Brocato, the ALJ found the claimant suffered from moderate difficulties in the ability
to concentrate, persist, or maintain pace. 2017 WL 3084382 at *3. The court determined that
the ALJ must have based this determination “exclusively on [the claimant’s] reported issues in

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concentration, since the remaining sentences in the analysis would suggest mild or no
limitations.” Id. In reversing the ALJ’s decision, the Brocato Court found the “cursory”
explanation failed to meet regulatory requirements for assessing someone’s difficulties in
concentration, persistence, or maintaining pace. Id. The Court held 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 Miles, 2016 WL 6901985; Baylor,
2016 WL 6085881.
As in the aforementioned cases, the ALJ here provided only a brief explanation for his
finding that Plaintiff had “moderate difficulties” in her ability to concentrate, persist, or maintain
pace. R. 19. As he cites to no objective evidence in the record to support his finding of this level
of difficulty, the ALJ appears to rest his determination solely on Plaintiff’s self-reported
“limitations in concentrating generally and focusing generally.” R. 19. 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. R. 19. While the Court could surmise—based on its own review of the evidence—that
symptoms of Plaintiff’s depression and PTSD impact her ability to concentrate, persist, or
maintain pace to a moderate degree, 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 “build[ing] an accurate
and logical bridge from the evidence to [his] conclusion.” Monroe v. Colvin, 826 F.3d 176, 189
(4th Cir. 2016); see also Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019), as amended
(Feb. 22, 2019) (citation omitted) (stating “meaningful review is frustrated when an ALJ goes
straight from listing evidence to stating a conclusion”).

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Commissioner’s argument that the ALJ provided sufficient explanation for his finding
later in his discussion conflates two sections of the ALJ’s decision: the step three application of
the special technique to analyze the degree of Plaintiff’s functional limitations and the
subsequent analysis of the evidence in the record supporting a determination of Plaintiff’s RFC.
However, as the Fourth Circuit has articulated, there is a separate duty to provide sufficient
documentation of the application of the special technique. Compare Patterson, 846 F.3d 656,
662 (discussing an ALJ’s duty to “properly document application of special technique” at step
three), with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) (discussing the ALJ’s duty to provide
sufficient explanation for an RFC analysis). One cannot substitute for the other as the degree of
limitation determined at step three imposes additional requirements on the ALJ as he moves
forward in the sequential evaluation process. See Mascio, 780 F.3d at 638 (holding a finding of
moderate limitations in concentration, persistence, or maintaining pace requires a corresponding
limitation in the RFC). Without providing a more detailed explanation for how the record
supports his conclusion, 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 maintaining pace was determined,
including details for how the evidence available in the record supports the ALJ’s determination,
if not immediately clear.
While remand is warranted on this first issue, Plaintiff raised additional issues in her
motion. “Because these issues may recur on remand, [the Court will] address them now.”

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Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (citing Bird v. Comm’r of Soc. Sec.
Admin., 699 F.3d 337, 342–43 (4th Cir. 2012)).
B. The ALJ’s RFC assessment fails to meet the requirements of Mascio.
Plaintiff argues that the ALJ failed comply with the requirements articulated in Mascio
by failing to incorporate limitations in Plaintiff’s RFC corresponding with the ALJ’s finding of
Plaintiff’s moderate limitations in concentration, persistence, or maintaining pace. Pl.’s Mem.
11–21, 23–25. Commissioner counters that the RFC was based on sufficient evidence and the
ALJ included an explanation for why the functional limitations included in the RFC
accommodated for Plaintiff’s moderate limitations. Comm’r’s Mem. 5–9.
In Mascio, the Fourth Circuit held that a RFC assessment must account for an ALJ’s step
three finding of moderate limitations in concentration, persistence, or maintaining pace beyond
limiting a claimant to performing only “simple, routine tasks.” 780 F.3d at 638. 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 his RFC assessment, or explain why no such
limitation is necessary.” Talmo v. Comm’r, Soc. Sec., Civ. No. ELH-14-2214, 2015 WL
2395108, at *3 (D. Md. May 19, 2015). In performing an RFC assessment, an ALJ “must
include a narrative discussion describing how the evidence supports each conclusion, citing
specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed. Reg. at 34,478) (internal
quotation marks omitted).
Thus, 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. Indeed, our precedent makes

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clear that meaningful review is frustrated when an ALJ goes straight from listing
evidence to stating a conclusion.
Thomas, 916 F.3d 307, 311 (citation omitted); Woods, 888 F.3d 686, 694 (“In other words, the
ALJ must both identify evidence that supports his conclusion and ‘build an accurate and logical
bridge from [that] evidence to his conclusion.’” (emphasis original) (quoting Monroe, 826 F.3d
176, 189)).
As discussed above, the functional area of concentration, persistence, or maintaining
pace, “refers to the abilities to focus attention on work activities and stay on task at a sustained
rate.” 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00(E)(3). Since Mascio, courts have reviewed
various ALJs’ attempts to include corresponding limitations in their RFC assessments for
moderate limitations in this functional area.2 The Fourth Circuit’s recent decision in Thomas
provided additional clarification.3 In that case, the ALJ found the plaintiff had moderate
limitations in concentration, persistence, or maintaining pace, and concluded that she had an
RFC to preform light work with the following additional mental limitations:

See, e.g., Wilson v. Comm’r, Soc. Sec. Admin., Civ. A. No. ADC-17-2666, 2018 WL 3941946,
at *5 (D. Md. Aug. 16, 2018) (holding limitations for interactions with other individuals does not
address concentration, persistence, or maintaining pace; rather it addresses social functioning);
McDonald v. Comm’r, Civ. 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); Steele v. Comm’r, Soc.
Sec., Civ. No. MJG-15-1725, 2016 WL 1427014, at *4 (D. Md. Apr. 11, 2016) (citing SSR 969P) (holding that when a RFC includes durational limitations an ALJ must consider that the
normal 8-hour workday already includes breaks approximately every two (2) hours and provide
further explanation as to how limiting someone to breaks every two hours “adequately accounts
for a moderate limitation in the ability to stay on task” or else it does not meet the Mascio
requirements).
2

Despite a filing date of April 30, 2019, Commissioner’s motion fails to discuss Thomas, which
was decided on January 15, 2019.
3

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[The plaintiff] is able to follow short, simple instructions and perform routine
tasks, but no work requiring a production rate or demand pace. She can have
occasional public contact or interaction and frequent, but not continuous, contact
or interaction with coworkers and supervisors. [She] must avoid work involving
crisis situations, complex decision making, or constant changes in a routine
setting.
Thomas, 916 F.3d at 310 (citations omitted). In reversing the lower court’s decision, the Fourth
Circuit made it clear that when an ALJ finds a claimant has moderate limitations in
concentration, persistence, or maintaining pace, the ALJ is expected to include specific
conclusions about how the claimant’s “mental limitations affect her ability to perform job-related
tasks for a full workday—a benchmark established by the [S.S.A.’s] own regulations.” Id. at 312
(citing SSR 96-8P, 1996 WL 374184 at *2). The Court further opined that when an ALJ
includes specific terminology in the limitations included in an RFC assessment, she must provide
sufficient information so that the courts can understand the term means so that they can “assess
whether their inclusion in [an] RFC is supported by substantial evidence.” Id. (finding the terms
“production rate” and “demand pace” to be “not common enough for [the Court] to know what
they mean without elaboration”).
As previously noted, at step three the ALJ found that Plaintiff suffered from moderate
difficulties in concentration, persistence, or maintaining pace. R. 19. After making this
determination, the ALJ went onto his RFC assessment and included the following “nonexertional” limitations:
[Plaintiff] is capable of performing simple, routine, and repetitive tasks in a work
setting with occasional decision-making and occasional changes in the work
setting. She should not work in an environment with fast pace requirements or
high production quotas. She can have occasional or superficial interaction with
co-workers and supervisors, but no contact with the public.
R. 20. As the Court “cannot review the ALJ’s mental-impairment evaluation, we cannot say that
[he] properly assessed [Plaintiff’s] RFC.” Patterson, 846 F.3d at 662 (citing 20 C.F.R. §
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404.1520a(c)(3); Mascio, 780 F.3d at 637). However, in light of the Fourth Circuit’s
clarification in Thomas, the Court notes that the RFC assessment as it is currently worded fails to
include sufficient corresponding limitations for Plaintiff’s moderate difficulties in concentration,
persistence, or maintaining pace. See Thomas, 916 F.3d at 312. Without explicitly addressing
the issue of whether Plaintiff’s “mental limitations affect [her] ability to perform job-related
tasks for a full workday,” the ALJ has failed in his duty to account for Plaintiff’s moderate
limitations in concentration, persistence, or maintaining pace. 4 Id. Additionally, the Fourth
Circuit made it clear that limiting a claimant from “environment[s] with fast pace requirements
or high production quotas” is insufficient to accommodate moderate difficulties in concentration,
persistence, or maintaining pace absent additional “elaboration” as to their meaning. Id. at 312.
Turning to the ALJ’s narrative discussion, the Court notes that it does include a detailed
recitation of the evidence in the record and provides an explanation for how that evidence
supports his RFC findings. Talmo, 2015 WL 2395108, at *3. Specifically, the ALJ stated:
First, [Plaintiff’s] treatment records did not support [Plaintiff’s] allegations of
severe and profound functional limitations. As discussed above, her impairments
were generally at most moderate in nature. Providers offered conservative
treatment for these impairments, which generally appeared to control her
symptoms when she was compliant with treatment. In addition, there were no
consistent indications from any of her providers that they felt that [Plaintiff] had
permanent functional deficits.
Second, the medical opinion evidence failed to validate most of [Plaintiff’s]
allegations of impairment. The medical opinion evidence indicated that [Plaintiff]
was capable of work at all exertional levels with some mental and social
limitations.

It is well established that limitations to “simple, routine tasks” do not address moderate
limitations in concentration persistence, or maintaining pace. See Mascio, 780 F.3d at 638.
Courts have also found a limitation to “simple, work-related decisions” as deficient for
accommodating a claimant’s moderate limitations in his ability to stay on task. See, e.g.,
McDonald, 2017 WL 3037554, at *4.
4

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Third, [Plaintiff’s] own inconsistent statements and behavior discount [Plaintiff’s]
allegations of limitation. As noted above, [Plaintiff] continually expressed her
desire to return to work, which suggests she believed herself capable of doing so.
This behavior is inconsistent with her allegations of disability during the same
period. While [Plaintiff] was not able to return to her prior workplace, it appears
that this inability was context-specific, given problematic management at her
prior job. Her ability to thrive in other work environments is evidenced by her
successful return to full-time work recently. Records show that [Plaintiff] had on
exacerbation of symptoms requiring hospitalization, but the remainder of the
mental health evidence indicates that [Plaintiff’s] symptoms were largely
situational in nature and responded to treatment when she was compliant.
Even after giving [Plaintiff] the benefit of every possible doubt and crediting her
testimony to the extent that it was consistent with the medical evidence, her
extreme allegations regarding functional limitations are simply not supported by
the evidence as a whole. Despite her allegations, the record lacked any evidence
that [she] was so significantly limited, which suggested that her limitations were
not as severe as she reported. All of these factors discount her allegations of
limitation and support the limitations identified in the [RFC] statement.
R. 24–25. This explanation engages in the type of logical reasoning that courts have long sought
from ALJs in social security disability decisions. See Patterson, 846 F.3d at 663; see, e.g.,
Mascio, 780 F.3d at 637 (refusing to hold that ALJ’s lack of reasoning constituted harmless error
“[b]ecause we are left to guess about how the ALJ arrived at his conclusions” regarding an RFC
assessment). However, in light of binding precedent from the Fourth Circuit, this Court is
compelled to find the ALJ’s discussion insufficient to meet the requirements of Masico for the
following reasons: First, the ALJ’s explanation does not discuss explicitly whether Plaintiff’s
“mental limitations affect [her] ability to perform job-related tasks for a full workday.” Thomas,
916 F.3d. at 312. This is particularly the case where medical evidence shows Plaintiff’s
depression and other mental health issues impact her daily life. See, e.g., R. 70 (noting Plaintiff
began to cry during her initial disability determination assessment); R. 554–58 (discussing
Plaintiff’s deteriorating condition from July 10, 2015 to September 24, 2015, eventually resulting
in her inability to work full-time or for longer than eight hours). In his discussion, the ALJ

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indicates that Plaintiff has the “ability to thrive in other work environments is evidenced by her
successful return to full-time work recently.” R. 24. However, the Court cannot extrapolate
from that statement—without delving into impermissible weighing of evidence—“how long and
under what conditions Plaintiff is able to focus [her] attention on work activities and stay on task
at a sustained rate.” Dwayne D. v. Berryhill, Civ. No. TMD 17-3809, 2019 WL 1317234, at *5
(D. Md. Mar. 22, 2019) (citing Thomas, 916 F.3d at 312 n.5.). Further, Plaintiff appears to have
had some difficulty with situations where her allotted break times were disregarded by
management, R. 37, or she was forced to work longer shifts than expected, R. 439. Such
evidence raises the question of Plaintiff’s ability to perform job-related tasks for a full workday
and should therefore be addressed.
Second, from his discussion it appears evident the ALJ intended to include some sort of
mental limitation in the RFC. See R. 24 (“The medical opinion evidence indicated that
[Plaintiff] was capable of work at all exertional levels with some mental and social limitations.”).
However, as discussed above, none of the limitations included in the RFC address moderate
limitations in concentration, persistence, or maintaining pace. Further, as the ALJ did not
provide an additional explanation for the terms “fast pace requirements or high production
quotas,” the Court cannot ascertain whether these terms are sufficient mental limitations for
Plaintiff. See Thomas, 916 F.3d. at 312; see also Perry v. Berryhill, 765 Fed. App’x 869, 872
(4th Cir. 2019) (finding an ALJ’s inclusion of a RFC limitation to a “non-production oriented
work setting” insufficient where there was no definition of the phrase in regulations or case law
and the ALJ “offered no explanation of her own for what she meant when she used the phrase”).
Finally, the Fourth Circuit noted in Thomas that “the ALJ ‘express[ed] [plaintiff’s] RFC
first and only then conclud[ed] that the limitations caused by [plaintiff’s] impairments were

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consistent with that RFC . . . .’” Thomas, 916 F.3d 307, 312 (citing Monroe, 826 F.3d at 188
(emphasis in original)). The Thomas Court reaffirmed the holding that “[s]tating a claimant’s
RFC before conducting a function-by- function analysis is an error—even though, on its own, it
does not necessarily require remand.” Id. The Fourth Circuit’s decision is unclear how the ALJ
in Thomas “express[ed]” this RFC. In this Court’s experience, ALJs will include their RFC
findings in the heading of the section of their decision discussing a claimant’s RFC. In the body
of the discussion that follows, the ALJs will then discuss the evidentiary support and reasoning
behind their conclusion. When they do refer to the RFC again in the discussion, it will usually
be in general terms. The ALJ in this case followed this same pattern of his colleagues. He stated
the RFC in the heading of the section but did not explicitly state it or discuss its components in
any other part of his decision. R. 20. The only other reference to the RFC in his discussion is
where the ALJ concludes by stating that, “[a]ll of these factors discount [Plaintiff’s] allegations
of limitation and support the limitations identified in the [RFC] statement.” R. 25. Absent
further guidance from the Fourth Circuit, this Court cannot determine whether this is sufficient to
correct the error identified in Thomas. However, a more thorough discussion of how the RFC
limitations included correspond with the ALJ’s assessment of the evidence in the record would
have aided this Court’s review of the ALJ’s decision in this case. For example, without
identifying which limitation accommodates for the finding of moderate limitations in
concentration, persistence, or maintaining pace, or clearly stating that no such limitation is
necessary, it is impossible to determine whether the RFC was properly determined. Accordingly,
upon remand, the ALJ is ordered to ensure that any future RFC assessment is done in accordance
with the applicable law.

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C. In light of the preceding errors in the ALJ’s assessment of Plaintiff’s RFC, the
VE’s testimony was not based upon sufficient evidence .
Turning to Plaintiff’s final argument, Plaintiff asserts that the VE’s testimony was based
on hypotheticals that did not fully capture Plaintiff’s functional limitations. Pl.’s Mem. 15–16.
Accordingly, Plaintiff argues the Commissioner failed to meet her burden at step five as the ALJ
based his determination that Plaintiff was not disabled on flawed testimony. Pl.’s Mem. 21–23.
Commissioner counters that the VE’s testimony was based upon the RFC as ALJ determined,
which was itself based on sufficient evidence. Comm’r’s Mem. 12–13.
After determining a claimant’s RFC, an ALJ “must then decide the ultimate issue of
whether the Commissioner has satisfied her burden of showing that the claimant can engage in a
job that ‘exist[s] in significant numbers in the national economy.’” Morgan v. Barnhart, 142 F.
App’x 716, 720 (4th Cir. 2005) (quoting 20 C.F.R. § 404.1560(c)(1) (2004); 20 C.F.R. §
404.1560(c)(2)). Typically, an ALJ uses evidence presented by a VE. Id. However:
[T]he ALJ must rely primarily on the Dictionary of Occupational Titles (“DOT”)
for information about the requirements of work in the national economy, and must
identify and obtain a reasonable explanation for any conflicts between
occupational evidence provided by vocational experts and the DOT, before
relying on testimony by the vocational expert.
Chestnut v. Berryhill, Civ. No. 8:17-CV-01696-GLS, 2018 WL 4565540, at *4 (D. Md. Sept. 24,
2018) (citing SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000)). Further, the VE’s testimony must
be made “in response to questions from the ALJ that accurately reflect the claimant’s workrelated abilities.” Morgan, 142 F. App’x at 720–21 (stating a VE’s testimony must be “based on
the claimant’s age, education, work experience, and RFC” in order for an ALJ to rely upon it).
“[A]n ALJ is afforded ‘great latitude in posing hypothetical questions and is free to accept or
reject suggested restrictions so long as there is substantial evidence to support the ultimate
question.’” Chavis v. Berryhill, Civ. A. No. ADC-17-1123, 2018 WL 1033267, at *14 (D. Md.
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Feb. 22, 2018) (quoting Koonce v. Apfel, No. 98–1144, 1999 WL 7864, at *5 (4th Cir. Jan. 11,
1999) (per curiam)). Accordingly, “a hypothetical question is unimpeachable if it adequately
reflects a residual functional capacity for which the ALJ had sufficient evidence.” Fisher v.
Barnhart, 181 F. App’x 359, 364 (4th Cir. 2006) (per curiam) (citations omitted) (emphasis
omitted).
The first step of the Court’s analysis is only concerned with whether the questions
“adequately reflect[]” Plaintiff’s RFC. Id. Here, the hearing transcript shows that the ALJ posed
a question to the VE concerning a hypothetical individual with limitations that mirrored those
ultimately incorporated in the RFC determination. R. 59. As at least one of the questions
mirrored the ultimate RFC assessment, the inquiry turns next to whether there is substantial
evidence to support the RFC assessment. Chavis, 2018 WL 1033267, at *14 (quoting Koonce,
1999 WL 7864, at *5). As previously analyzed, the Court is unable to assess how the ALJ
determined Plaintiff’s degree of limitation in concentration, persistence, or maintaining pace.
See supra Section A. Further, the RFC as currently articulated fails to account for the finding
that Plaintiff has moderate limitations in her ability to concentrate, persist, or maintain pace, or
explain why no RFC limitations are necessary. See supra Section B. Therefore, while the way
in which the ALJ posed his hypothetical questions to the VE was procedurally correct, the Court
is unable to ascertain whether the RFC is based upon substantial evidence. See Mascio, 780 F.3d
at 637–38 (noting that where a hypothetical matches an ALJ’s RFC finding, it is “incomplete
only if the ALJ fail[s] to account for a relevant factor when determining [the claimant’s RFC]”).
Accordingly, remand is warranted on this issue.

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IV.

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

instructions for the ALJ as outlined in the foregoing opinion. 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.

June 27, 2019

/s/
Charles B. Day
United States Magistrate Judge

CBD/clc

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