Tonnessen v. Berryhill
Letter to Counsel re Motions for Summary Judgment and remand of case. Signed by Magistrate Judge J. Mark Coulson on 10/10/2019. (krs, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
J. Mark Coulson
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
Fax (410) 962-1812
October 10, 2019
LETTER TO COUNSEL
Candace T. v. Commissioner, Social Security Administration
Civil No. 1:18-cv-02687-JMC
On August 30, 2018, Plaintiff petitioned this Court to review the Social Security
Administration’s (“SSA”) final decision to deny her claims for Supplemental Security Income and
Disability Insurance Benefits. (ECF No. 1). I have considered the parties’ cross-motions for
Summary Judgment, and Plaintiff’s reply. (ECF Nos. 17, 20, 21). 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
Plaintiff protectively filed her claims for benefits on December 3, 2013, alleging an onset
date of March 31, 2009. (Tr. 282–91). Her claims were denied initially, and again on
reconsideration. (Tr. 108–11, 113–14). A hearing was held on May 16, 2017, before
Administrative Law Judge Tierney Carlos (“ALJ”). (Tr. 39–84). 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. 13–32). The Appeals Council declined review (Tr. 1–6), and
consequently the ALJ’s decision constitutes the final, reviewable decision of the SSA.
The ALJ found that, during the relevant time frame, Plaintiff suffered from the severe
impairments of “degenerative disc disease of the lumbar spine; lumbosacral radiculopathy;
degenerative disc disease of the cervical spine; degenerative join disease of the right knee; chronic
pain syndrome; anxiety; and depression.” (Tr. 16). Despite these impairments, the ALJ
determined that Plaintiff retained the residual functional capacity (“RFC”) to:
[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except she
can occasionally climb ramps and stairs, but she can never climb ladders, ropes, or
scaffolds; she can occasionally balance, stoop, kneel, crouch, and crawl; and she
must avoid all exposure to unprotected heights. The claimant can perform simple,
routine, and repetitive tasks, but not at a production pace. She can make simple
work-related decisions and have occasional contact with supervisors, coworkers,
and the public.
After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Plaintiff could not perform her past relevant work, but could perform other jobs existing in
significant numbers in the national economy. (Tr. 29–31). Therefore, the ALJ concluded that
Plaintiff was not disabled during the relevant time frame. (Tr. 30–31).
Plaintiff makes two primary arguments on appeal: (1) the ALJ’s analysis of Plaintiff’s
limitations in concentration, persistence, or pace was flawed and runs afoul of the Fourth Circuit’s
decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); and (2) that the ALJ failed to
resolve apparent conflicts between the VE testimony and the Dictionary of Occupational Titles
(“DOT”). I agree that the ALJ’s opinion did not comport with Mascio, and I therefore remand the
case for further analysis.
First, Plaintiff argues that the ALJ’s RFC analysis of Plaintiff’s limitations in
concentration, persistence, or pace failed to comply with the requirements of Mascio v. Colvin.
780 F.3d 632, 638 (4th Cir. 2015). 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 637–38. 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. Id. at § 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 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
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
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. §§ 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 four 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’x 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.
Mascio, 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.
In the instant case, the ALJ found that Plaintiff had moderate difficulties maintaining
concentration, persistence, or pace. (Tr. 20). The ALJ stated:
With regard to concentrating, persisting, or maintaining pace, the claimant has
moderate limitation. The claimant estimates that she can pay attention 15 minutes
at a time. She also states that pain interferes with concentration and that her pain
medication makes her sleepy. In documentation submitted during the claims
process, the claimant stated that she enjoyed reading books and magazine.
However, she testified that she no longer reads.
Tr. 20 (internal citations omitted).
The ALJ cited exclusively to Plaintiff’s subjective statements from her function reports
and hearing testimony, in finding that Plaintiff had a moderate limitation in concentration,
persistence, or pace. Id. In the RFC analysis, the ALJ noted that the mental health records
consisted primarily of “treatment plans that do not provide much detail on the claimant’s
functioning.” (Tr. 23). The ALJ noted that the mental health records showed Plaintiff had “a
euthymic mood, and her affect was flat,” with pessimistic thought content and slow thought
process, and appeared alert. (Tr. 28; Tr. 584). The ALJ gave “great weight” to Plaintiff’s GAF
score of 55 because, while it “represent[ed] only the subjective opinion of one clinician, on one
day, at a single point in time, the score [was] relatively consistent with the mental health records
showing no more than moderate functional limitations.” Id. The ALJ gave “partial weight” to the
assessments from the State psychological consultants (Tr. 29): Dr. Edmunds found that there was
insufficient evidence to evaluate Plaintiff’s claim, but did opine that Plaintiff’s anxiety was severe
(Tr. 90) and Dr. Grubbs also opined that Plaintiff’s anxiety was severe, but found no more than
mild limitations resulting from the impairment. (Tr. 100–01). The ALJ agreed that there was
“minimal evidence related to the claimant’s mental health,” but, in “crediting the claimant’s
testimony and subjective complaints,” the ALJ found “the evidence [was] sufficient to support
more than minimal functional limitations.” (Tr. 29).
The restriction to “simple, routine, and repetitive tasks” in this case is directly analogous
to the limitations deemed insufficient in Mascio. 780 F.3d at 638 (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. Id. at 638. The ALJ has not provided such an
explanation here. Without an adequate analysis provided by the ALJ on the issue of Plaintiff’s
limitations in concentration, persistence, and pace, 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 this inadequacy, 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’s ultimate conclusion that Plaintiff is not
entitled to benefits is correct.
The Commissioner maintains that Mascio only requires remand where a reviewing court is
“left to guess” at how an ALJ arrived at his conclusions, and that, here, “there is no guesswork”
because the ALJ’s “basis for the RFC finding is clear.” (ECF No. 20-1 at 5–6). For support, the
Commissioner cites to the ALJ’s accreditation of Plaintiff’s testimony and subjective complaints.
Id. at 7. However, that shows how the ALJ determined that Plaintiff had a moderate limitation in
her ability to concentrate, persist, and maintain pace, and not whether Plaintiff required a limitation
to address it in her RFC. While the Commissioner argues that the ALJ provided an explanation
for why Plaintiff’s RFC does not include a limitation addressing Plaintiff’s moderate limitation in
concentration, persistence, and pace (ECF No. 20-1 at 7), there is no such discussion in the ALJ’s
decision. See (Tr. 21–29). Mascio requires more.
Second, Plaintiff argues that the ALJ failed to resolve an apparent conflict between the
VE’s testimony and the DOT. (ECF No. 17 at 21–27). The ALJ is required to address any conflicts
or apparent conflicts between the VE’s testimony and the information contained in the DOT. See
Pearson v. Colvin, 810 F.3d 204, 208–10 (4th Cir. 2015) (“At the hearings level, as part of the
adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the record, as to
whether or not there is such consistency.”). Plaintiff first argues that the ALJ erred by not
questioning the VE’s testimony that Plaintiff was capable of performing the representative
occupation of surveillance systems monitor (DOT 379.367-010) because it requires “talking” on a
frequent basis and the ALJ limited Plaintiff to “occasional contact with supervisors, coworkers,
and the public.” (ECF No. 17 at 25 (quoting Tr. 25)). Plaintiff further argues that the ALJ failed
to resolve an apparent conflict between Plaintiff’s RFC limitation to tasks performed “not at a
production pace,”1 and the other three representative occupations proffered by the VE, because
they either require work on a “conveyor belt,” see DOT §§ 713.687-026 (eyeglass lens inserter),
361.687-014 (laundry sorter), or an “assembly line,” see DOT § 706.684-022 (products assembler).
(ECF No. 17 at 26).
Although the Commissioner contends that “production pace” is a “decipherable term,” (ECF No. 20-1 at 9), the
Fourth Circuit has held that the ALJ’s failure to define “production rate or demand pace” was fatal to an RFC
assessment, because the lack of clarity frustrated appellate review. Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir.
2019). See also Perry v. Berryhill, 765 F. App’x 869, 872 (4th Cir. 2019) (remanding for ALJ’s failure to define
“non-production oriented work setting”). Here, the ALJ did not define “production pace,” an analogous term. On
remand, the ALJ can consider whether to include or define such a term.
The Commissioner argues in response to Plaintiff’s surveillance systems monitor argument
that “[Plaintiff] does not have a restriction in her ability to talk – she has a restriction in how much
contact she can have with others.” (ECF No. 20-1 at 12). Regarding Plaintiff’s production pace
argument, the Commissioner concedes that there is an apparent conflict with the occupation of
products assembler, (ECF No. 20-1 at 13, n.9). However, the Commissioner asserts that there is
no conflict with the other two occupations because “the conveyer belt is used only after the worker
has performed her function.” Id. at 14 (citing DOT §§ 713.687-026, 361.687-014). Because this
case is being remanded for other reasons, the ALJ can consider, on remand, whether additional
questions are required to elicit an explanation from a VE regarding any apparent conflicts.
For the reasons set forth herein, Plaintiff’s Motion for Summary Judgment (ECF No. 17),
is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 20) 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. Despite the informal nature of this letter, it
should be flagged as an opinion. A separate order will issue.
J. Mark Coulson
United States Magistrate Judge
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