Shroyer v. Saul

Filing 21

MEMORANDUM OPINION. Signed by Judge Deborah L. Boardman on 11/18/2021. (kk5s, Deputy Clerk)

Case 1:19-cv-03607-MDLB Document 21 Filed 11/18/21 Page 1 of 4

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

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

November 18, 2021

LETTER TO COUNSEL
RE:

Terri S. v. Kijakazi
DLB-19-3607

Dear Counsel:
Presently pending is plaintiff Terri S.’s Motion to Reconsider the Court’s January 19, 2021
order granting summary judgment in favor of the Social Security Administration (“SSA”). ECF
19; see ECF 18. Plaintiff asks the Court to reconsider its decision to affirm the final judgment of
the SSA. ECF 19; see ECF 17. I have reviewed plaintiff’s motion, ECF 19, and the SSA’s
response, ECF 20. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons set
forth below, plaintiff’s motion is denied.
On December 20, 2019, plaintiff petitioned this court for review of the SSA’s final decision
to deny her claim for Supplemental Security Income. ECF 1. Plaintiff argued the SSA’s decision
failed to comply with the requirements of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). ECF
14. The Court found the ALJ’s decision was supported by substantial evidence and the ALJ
adequately explained the reasoning with respect to plaintiff’s moderate limitation in concentration,
persistence, or pace (“CPP”). ECF 17; Terri S. v. Saul, No. DLB-19-3607, 2021 WL 168456 (D.
Md. Jan. 19, 2021). Accordingly, the Court denied plaintiff’s motion for summary judgment,
granted the Commissioner’s motion for summary judgment, and affirmed the Commissioner’s
decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). ECF 18. Thereafter, plaintiff filed her
motion to reconsider. ECF 19.
Plaintiff has filed her motion to reconsider pursuant to Local Rule 105.10. ECF 19, at 1.
The pending motion, filed within twenty-eight days of the Court’s order granting the
Commissioner’s summary judgment motion, is construed as a Rule 59(e) motion to alter or amend
a judgment. See Fed. R. Civ. P. 59(e); MLC Auto., LLC v. Town of So. Pines, 532 F.3d 269, 277–
80 (4th Cir. 2008); Knott v. Wedgwood, No. DKC-13-2486, 2014 WL 4660811, at *2 (D. Md.
Sept. 11, 2014) (stating that a motion to alter or amend judgment that “call[s] into question the
correctness of that order” and is filed within twenty-eight days of the judgment is analyzed under
Rule 59(e)). “Rule 59(e) motions can be successful in only three situations: (1) to accommodate

Case 1:19-cv-03607-MDLB Document 21 Filed 11/18/21 Page 2 of 4
Terri S. v. Kijakazi
DLB-19-3607
November 18, 2021
Page 2
an intervening change in controlling law; (2) to account for new evidence not available at trial; or
(3) to correct a clear error of law or prevent manifest injustice.” United States ex rel. Carter v.
Halliburton Co., 866 F.3d 199, 210 (4th Cir. 2017) (quoting Zinkand v. Brown, 478 F.3d 634, 637
(4th Cir. 2007) (internal quotation marks omitted)).
For purposes of this motion for reconsideration, the Court will not reiterate the law and
facts cited in its January 19, 2021 decision affirming the denial of benefits. See 2021 WL 168456,
at *1–4. Rather, the Court incorporates them by reference and briefly summarizes the ruling. The
Court affirmed the Commissioner’s decision to deny benefits because the decision complied with
the Mascio requirement that an ALJ explain how substantial evidence supports his conclusion as
to the plaintiff’s concentration, persistence, and pace (“CPP”) abilities in a work setting.
Specifically, the Court affirmed the Commissioner’s decision because “[t]he ALJ’s discussion of
Dr. Tendler’s opinion with respect to plaintiff’s work capabilities and her mental limitations
ma[d]e clear the ALJ relied on substantial evidence in finding that plaintiff’s moderate CPP
limitation did not require other limitations.” 2021 WL 168456, at *4 (citing Sizemore, 878 F.3d
at 81).
Plaintiff argues the Court legally erred in finding the ALJ’s decision comported with
Mascio’s requirements because Dr. Tendler’s opinion about plaintiff’s residual functional capacity
(“RFC”) contained comments about plaintiff’s absenteeism but the ALJ did not include an
accommodation for her absenteeism. ECF 19, at 2–3. Plaintiff also argues Dr. Tendler’s opinion
contained a vocational conclusion as to his view that plaintiff could maintain an “acceptable level
of attendance.” Id. at 6–7.
I find no legal error. Plaintiff misapprehends the force of Mascio. Mascio does not require
that an ALJ credit all evidence of a potential CPP limitation. The narrow, technical error in Mascio
was the ALJ summarily accounting for a moderate CPP limitation with simple, routine tasks or
unskilled work. 780 F.3d at 638. Subsequent Fourth Circuit decisions confirm that an ALJ may
account for a moderate CPP limitation with an RFC determination that a claimant can complete
simple, routine tasks provided the conclusion is supported by substantial evidence. See, e.g.,
Sizemore, 878 F.3d at 80–81; Shinaberry, 952 F.3d at 121–22. To the extent plaintiff argues Dr.
Tendler’s opinion cannot constitute substantial evidence for a plaintiff’s CPP-related capabilities
because the ALJ did not accommodate every limitation contained in the opinion, that argument
was rejected by the Fourth Circuit in Sizemore. 952 F.3d at 121–22.
This Court has also recently considered and rejected plaintiff’s argument that an ALJ
necessarily violates the rule set forth in Mascio by failing to include in the RFC determination all
limitations referenced in an opinion to which an ALJ affords substantial weight. See Kenneth L.
v. Kijakazi, No. SAG-20-624, 2021 WL 4198408, at *3 (D. Md. Sept. 15, 2021); see also Angela
E. v. Kijakazi, No. DLB-20-1888, 2021 WL 4290285, at *3–4 (D. Md. Sept. 20, 2021). The
holdings in these cases are consistent with the special technique for evaluating the severity of a
claimant’s mental impairments. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00(F)(3)(f)(ii) (“We
will document the rating of limitation of the whole area of mental functioning, not each individual
part. We will not add ratings of the parts together. For example, with respect to paragraph B3, if
you have marked limitation in maintaining pace, and mild or moderate limitations in concentrating

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Terri S. v. Kijakazi
DLB-19-3607
November 18, 2021
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and persisting, we will find that you have marked limitation in the whole paragraph B3 area of
functioning.”). Under the special technique, a claimant with a moderate limitation in CPP does
not necessarily mean the claimant has a moderate limitation with respect to absenteeism. The
inquiry is fact specific. In this case, the ALJ found plaintiff’s CPP limitation was related to her
ability to complete tasks, not her absenteeism:
With regard to the claimant’s ability to concentrate, persist, or maintain pace, the
area refers to the claimant’s ability to sustain focused attention and concentration
sufficiently long enough to permit the timely and appropriate completion of tasks
commonly found in work settings, the claimant has moderate difficulties.
Tr. 14. Where, as here, the ALJ’s basis for finding a moderate CPP limitation did not include
absenteeism and there was substantial evidence for not including it, the ALJ was not required to
identify an RFC limitation for absenteeism. The Court finds no asymmetry between the ALJ’s
finding of a moderate limitation and the RFC determination. The ALJ cited substantial evidence
supporting his conclusion that plaintiff could maintain CPP when confined to simple, routine tasks.
Thus, no error under Mascio occurred.
Finally, plaintiff challenges the Court’s interpretation of Dr. Tendler’s opinion that she “is
able to maintain attendance and complete a normal workweek and maintain pace with occasional
absences.” Plaintiff argues the doctor’s statement necessarily means she will be absent more than
once per week and that the Court’s interpretation of that statement was factually erroneous. ECF
19, at 5–6. The Court’s detailed discussion of Dr. Tendler’s opinion was not essential to the
judgment. The judgment was based on the ALJ’s citation of substantial evidence supporting his
conclusions and the Fourth Circuit’s decision in Sizemore. In any event, I disagree with plaintiff’s
argument that because Dr. Tendler was opining on her RFC—which goes to her ability to work
eight hours per day, five days per week—he necessarily was opining that she would be absent
more than once per week. See ECF 19, at 5–6. Under plaintiff’s interpretation of Dr. Tendler’s
statement, Dr. Tendler opined plaintiff could not complete a normal workweek because a normal
workweek includes five days per week and she would be absent more than once per week. This
interpretation is squarely at odds with Dr. Tendler’s clearly stated opinion that plaintiff could
complete a normal workweek and maintain attendance. Tr. 102. Dr. Tendler then opined plaintiff
could “maintain pace with occasional absences.” Tr. 102. Fairly read, Dr. Tendler’s opinion
suggests plaintiff could maintain her normal workweek schedule with occasional absences—that
is, she could work five days per week, but she would occasionally not keep up that pace and be
absent. In any case, the ALJ was not required to accept Dr. Tendler’s opinion as to plaintiff’s
absenteeism.
For the reasons set forth herein, plaintiff’s motion for reconsideration, ECF 19, is denied.

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Terri S. v. Kijakazi
DLB-19-3607
November 18, 2021
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Despite the informal nature of this letter, it should be flagged as an opinion. A separate
order follows.
Sincerely yours,

Deborah L. Boardman
United States District Judge