Rock v. Saul

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Deborah L. Boardman on 11/16/2020. (ols, Deputy Clerk)

Case 1:19-cv-02324-DLB Document 19 Filed 11/16/20 Page 1 of 5

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
DEBORAH L. BOARDMAN
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax: [phone]
[e-mail]

November 16, 2020

LETTER TO COUNSEL
RE:

Josie R. v. Saul
Civil No. DLB-19-2324

Dear Counsel:
On August 13, 2019, plaintiff Josie R. 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’ cross-motions for summary
judgment and plaintiff’s response. ECF 14 (“Pl.’s Mot.”), ECF 16 (“Def.’s Mot.”), ECF 18 (“Pl.’s
Resp.”). I find no hearing necessary. See Loc. R. 105.6 (D. Md. 2018). This Court must uphold
a decision of the SSA supported by substantial evidence and employing 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 plaintiff’s motion, grant the Commissioner’s motion, and affirm the
Commissioner’s judgment pursuant to sentence four of 42 U.S.C. § 405(g). See 42 U.S.C. §
1383(c)(3). This letter explains my rationale.
Plaintiff filed her claims for benefits on February 11, 2013, alleging an onset date of
December 1, 2012. Administrative Transcript (“Tr.”) 471-80. The SSA denied her claims initially
and on reconsideration. Tr. 307-14. After a hearing before an Administrative Law Judge (“ALJ”),
plaintiff appealed the ALJ’s unfavorable decision to the Appeals Council, which remanded her
case back to the ALJ. Tr. 302-06. The SSA subsequently held two hearings on January 10, 2018,
and July 19, 2018. Tr. 53-154, 202-32. Following the hearings, the ALJ determined plaintiff was
not disabled within the meaning of the Social Security Act during the relevant time frame. Tr. 835. The Appeals Council denied plaintiff’s second request for review, so the ALJ’s decision
constitutes the final, reviewable decision of the SSA. Tr. 1-7; see Sims v. Apfel, 530 U.S. 103,
106-07 (2000); see also 20 C.F.R. § 422.210(a).
The ALJ found plaintiff experienced the severe impairments of “lung cancer status-post
lobectomy; chronic obstructive pulmonary disease (‘COPD’); anterior cruciate ligament tear,
degenerative joint disease, and meniscus tear of the right knee; left knee osteoarthritis; obesity;
and depression.” Tr. 14. Despite these impairments, the ALJ determined plaintiff retained the
residual functional capacity (“RFC”) to:

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Josie R. v. Saul
Civil No. DLB-19-2324
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perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
can perform work that occasionally requires balancing, stooping, kneeling,
crouching, crawling, and climbing. She can perform jobs that allow occasional
exposure to irritants such as fumes, odors, dusts, gases, and poorly ventilated areas,
but frequent exposure to extreme cold, extreme heat, and humidity. She can
perform jobs consisting of unskilled, routine, and repetitive tasks involving only
simple work-related decisions, with only occasional changes in the routine work
setting. Time off task during the workday can be accommodated by normal breaks.
Tr. 17. After considering the testimony of a vocational expert (“VE”), the ALJ d etermined plaintiff
could perform her past relevant work as a cleaner/housekeeper, assembly worker, and
nongovernment mail sorter. Tr. 27-28. The ALJ therefore concluded plaintiff was not disabled.
Tr. 28.
Plaintiff raises one argument on appeal: The ALJ’s decision does not comply with the
Fourth Circuit’s holding in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Pl.’s Mot. 9-19.
Plaintiff’s argument lacks merit for the reasons discussed below.
In Mascio, the Fourth Circuit determined 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. 780 F.3d at 638. That functional area “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). The Social Security regulations define a “moderate
limitation” as the “fair” ability to function “independently, appropriately, effectively, and on a
sustained basis.” Id. § 12.00(F)(2). In comparison, a “mild limitation” reflects a slightly limited
functional ability, and a “marked limitation” reflects a seriously limited functional ability. Id. §
12.00(F)(b), (d).
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
the claimant had moderate difficulties in maintaining concentration, persistence, or pace. 780 F.3d
at 637-38. The Fourth Circuit specifically held 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
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 absent such an explanation, remand was necessary. Id. The Court recently reiterated
Mascio “did not impose a categorical rule that requires an ALJ to always include moderate

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limitations in concentration, persistence, or pace as a specific limitation in the RFC.” Shinaberry
v. Saul, 952 F.3d 113, 121 (4th Cir. 2020).
Here, the ALJ’s analysis of plaintiff’s ability to maintain concentration, persistence, or
pace stated:
The next functional area addresses the claimant's ability to concentrate, persist, or
maintain pace. For this criterion, the claimant has only moderate limitations. The
claimant contended that she has limitations in concentrating generally, reading,
focusing generally, following instructions, completing tasks, avoiding
distractions, and maintaining a regular work schedule. On the other hand, the
claimant said that she is also able to drive, prepare meals, watch TV, read, manage
funds, use the internet, handle her own medical care, and attend church.
Additionally, the record fails to show any mention of distractibility and an
inability to complete testing that assesses concentration and attention.
Tr. 16. The ALJ then explained plaintiff could “perform jobs consisting of unskilled, routine, and
repetitive tasks involving only simple work-related decisions, with only occasional changes in the
routine work setting,” and that “[t]ime off task during the workday can be accommodated by
normal breaks.” Tr. 17. In the RFC assessment, the ALJ discussed plaintiff’s subjective
allegations and treatment records as well as the objective medical findings and opinions of record.
Tr. 17-27. The ALJ also provided an in-depth discussion of each area of mental functioning he
previously rated at step three, including the area of concentration, persistence, and pace. Tr. 2324. Here, the ALJ stated:
As for the claimant's concentration, persistence, and ability to maintain pace
specifically, the record shows that initially she stated that she spends significant
amounts of time during the day doing word puzzles. During the initial teleclaim,
no difficulties concentrating were noted. She further stated that she spends two
hours or more shopping every two weeks and follows written instructions
“good”/“fairly well.” On examination in early August 2013, it was noted that she
could attend questions and spell the word "WORLD" forwards and backwards in
the emergency room. Her concentration improved within a week. On examination
in October 2013, her concentration was noted to be normal. On examination in
December 2013, she was noted to be attentive throughout a group therapy session.
A few weeks later, it was noted that she completed an activity to determine which
communication style she uses. In January 2014, she reported shopping in stores
twice a month for 2-4 hours at a time. She repeatedly denied difficulty
concentrating and reported that her thoughts were clear. At the 2015 hearing, she
testified she attends church on Sundays and goes to Bible study on a regular basis.
At the July 2018 hearing, she admitted that her ability to maintain regular
attendance was only mildly impaired “because it’s important to get there.”
Tr. 23 (internal citations omitted).

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Josie R. v. Saul
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Plaintiff contends the ALJ did not explain why he did not impose an RFC limitation to
address plaintiff’s moderate difficulties in concentration, persistence, and pace and asserts that
“the ALJ’s findings clearly demonstrate that [she] would have deficits in the ability to remain on
task at a sustained pace for an eight-hour workday,” Pl’s Mot. at 12, 18. I disagree. Plaintiff’s
argument ignores the ALJ’s robust, adequately supported RFC discussion of her ability to
concentrate, persist, and maintain pace. See Tr. 23 (noting plaintiff’s abilities to do word puzzles
and go shopping for two or more hours at a time, normal performances on examinations of
concentration, and denials of difficulty with concentrating).
Furthermore, the ALJ gave “great weight” to the opinion of State agency examining
psychological expert Dr. Tavia Morgan because the opinion was “supported by evidence and [the]
explanation and [was] consistent with and not contradicted by the record as a whole.” Tr. 27. Dr.
Morgan noted plaintiff’s difficulties with concentration and persistence and that plaintiff “denied
any difficulty in her prior work environment as a result of mood symptoms.” Tr. 1634. The ALJ
noted, “The claimant herself agreed with Dr. Morgan’s assessment . . . that her primary limitations
are physical rather than mental.” Tr. 27.
Additionally, both State agency psychiatric consultants found plaintiff did not have
limitations with sustained concentration or persistence. See Tr. 264, 276. The ALJ noted their
opinions “[were] supported by evidence and explanation” but gave them only “partial weight”
because the regulations governing treatment of mental impairments had been revised since the
opinions were issued. Tr. 27. While the revisions to the mental impairment listings were
substantial in some respects, the “paragraph B criteria” of “concentration, persistence, or pace”
remained mostly unchanged. Compare 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00(E)(3) (2017),
with 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00(C)(3) (2008). Both consultants opined plaintiff
could “persist at tasks within physical tolerances and skill levels for an eight-hour day, with regular
breaks and normal levels of supervision.” Tr. 264, 276. The consultants included a narrative
summary of plaintiff’s mental RFC:
Claimant can understand, retain, and carry out simple instructions. Claimant can
consistently and usefully perform routine tasks on a sustained basis, with minimal
(normal) supervision, and can cooperate effectively with public and co-workers in
completing simple tasks and transactions. Claimant can adjust to the mental
demands of most new task settings.
Tr. 264, 276.
Ultimately, the law confines my review to whether the ALJ employed correct legal
standards in making factual findings supported by substantial evidence. Craig, 76 F.3d at 589.
Inherently limited in scope, substantial evidence review asks only whether the record contains
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971). The inquiry is therefore not whether I agree
with the ALJ’s conclusions but whether “more than a mere scintilla” of evidence supports

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Josie R. v. Saul
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them. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). On the record before me, I find
the ALJ adequately explained his omission of a concentration, persistence, or pace limitation from
plaintiff’s RFC. Because the ALJ’s decision thus complied with Mascio’s mandate, I affirm. See
780 F.3d at 638.
For the reasons set forth herein, plaintiff’s motion for summary judgment, ECF 14, is
DENIED, and defendant’s motion for summary judgment, ECF 16, is GRANTED. The SSA’s
judgment is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
Despite the informal nature of this letter, it should be flagged as an opinion. A separate
order follows.
Sincerely yours,
/s/
Deborah L. Boardman
United States Magistrate Judge