Askew v. Kijakazi

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Brendan Abell Hurson on 11/21/2022. (kk5s, Deputy Clerk)

Case 1:22-cv-00097-BAH Document 18 Filed 11/21/22 Page 1 of 5

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]

BRENDAN A. HURSON

UNITED STATES MAGISTRATE JUDGE

[e-mail]

November 21, 2022
LETTER TO ALL COUNSEL OF RECORD
Re:

Tiara A. v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration
Civil No. 22-00097-BAH

Dear Counsel:
On January 13, 2022, Tiara A. (“Plaintiff”) petitioned this Court to review the Social
Security Administration’s (“SSA’s” or “Commissioner’s” or “Defendant’s”) final decision to deny
Plaintiff’s claim for Social Security benefits. ECF 1. This case was then referred to me with the
parties’ consent. See 28 U.S.C. § 636; Loc. R. 301 (D. Md. 2021). I have considered the record
in this case, the parties’ cross-motions for summary judgment, and Plaintiff’s response. ECFs 9,
14, 17. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). 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 Commissioner’s
decision, and REMAND the case to the Commissioner for further consideration. This letter
explains why.
I.

PROCEDURAL BACKGROUND

Plaintiff filed a Title XVI application for Supplemental Security Income (“SSI”) benefits
on March 20, 2018, alleging a disability onset of January 1, 2014. Tr. 20. Plaintiff’s claim was
denied initially and on reconsideration. Tr. 162–65, 166–72. After holding a hearing, an
Administrative Law Judge (“ALJ”) issued a decision on April 28, 2020, denying Plaintiff’s claim
for benefits. Tr. 136–55. The Appeals Council then remanded Plaintiff’s case for, among other
things, the ALJ’s failure to properly evaluate Plaintiff’s residual functional capacity. Tr. 158–59.
On March 17, 2021, an ALJ held another hearing. Tr. 49–71. Following the hearing, on
April 23, 2021, the ALJ again determined that Plaintiff was not disabled within the meaning of the
Social Security Act 1 during the relevant time frame. Tr. 16–48. The Appeals Council denied
Plaintiff’s request for review, Tr. 5–10, so the ALJ’s decision constitutes the final, reviewable
decision of the SSA. Sims v. Apfel, 530 U.S. 103, 106–07 (2000); see also 20 C.F.R. § 422.210(a).
II.

THE ALJ’S DECISION
Under the Social Security Act, disability is defined as the “inability to engage in any

1

42 U.S.C. §§ 301 et seq.

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Tiara A. v. Kijakazi
Civil No. 22-00097-BAH
November 21, 2022
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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 expected to last for a
continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §
416.905(a). The ALJ is required to evaluate a claimant’s disability determination using a five-step
sequential evaluation process. See 20 C.F.R. § 416.920. “Under this process, an ALJ evaluates,
in sequence, whether the claimant: ‘(1) worked during the alleged period of disability; (2) had a
severe impairment; (3) had an impairment that met or equaled the requirements of a listed
impairment; (4) could return to her past relevant work; and (5) if not, could perform any other
work in the national economy.’” Kiser v. Saul, 821 F. App’x 211, 212 (4th Cir. 2020) (citation
omitted) (quoting Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)).
Here, at step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since March 20, 2018. Tr. 22. At step two, the ALJ found that Plaintiff suffered from the
severe impairments of “anxiety disorder; major depressive disorder; borderline personality
disorder; post-traumatic stress disorder; obsessive-compulsive disorder; and substance use
disorder (in remission).” Id. The ALJ also determined that Plaintiff suffered from the non-severe
impairments of “hepatitis C, diabetes mellitus, and obesity.” Id. At step three, the ALJ determined
that Plaintiff “does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
Tr. 24. Despite these impairments, the ALJ determined that Plaintiff retained the residual
functional capacity (“RFC”) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: can perform simple, routine tasks on a continuous basis
with simple instructions; can make simple work related decisions; can have
occasional interaction with co-workers and supervisors; is unable to perform
customer service work; and is able to tolerate few changes in the work setting or
work processes.
Tr. 26. The ALJ determined that Plaintiff had no past relevant work, but could perform other jobs
that existed in significant numbers in the national economy. Tr. 41. Therefore, the ALJ concluded
that Plaintiff was not disabled. Tr. 42.
III.

LEGAL STANDARD

A disability determination must be affirmed so long as the agency applied correct legal
standards and the factual findings are supported by substantial evidence. Britt v. Saul, 860 F.
App’x 256, 259 (4th Cir. 2021) (citing Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)).
Substantial evidence “means—and means only—‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id. (quoting Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019)). “It consists of ‘more than a mere scintilla of evidence but may be somewhat
less than a preponderance.’” Id. (quoting Craig, 76 F.3d at 589).

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Tiara A. v. Kijakazi
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IV.

ANALYSIS

Plaintiff argues that the ALJ “fail[ed] to comply” with Mascio v. Colvin, 780 F.3d 632 (4th
Cir. 2015). ECF 9-1, at 8. Specifically, Plaintiff avers that the ALJ erred by failing to include a
corresponding limitation in her RFC assessment, or explain why no such limitation was necessary,
after having determined at step three that Plaintiff had a moderate limitation in concentrating,
persisting, or maintaining pace. Id. at 11–14. Plaintiff further argues that the ALJ erred by failing
to explain how she “could have remained productive throughout an eight-hour workday for five
days per week” despite her moderate limitation in maintaining concentration, persistence, or pace.
Id. at 14. Defendant counters that the ALJ “provide[d] sufficient explanation for the assessed
mental RFC” in this case. ECF 14-1, at 9. Defendant further argues that the ALJ was not required
to address why plaintiff could remain active throughout an eight-hour workday because a
“moderate finding . . . does not mean that the claimant will necessarily be off task for any amount
of the workday.” Id. at 10.
In Mascio, the Fourth Circuit ordered remand to the SSA “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.” McDonald v. Comm’r, Soc. Sec. Admin., No. SAG-16-3041, 2017 WL
3037554, at *3 (D. Md. July 18, 2017) (citing Mascio, 780 F.3d at 637–38). 2 Mascio
unambiguously states 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.” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm’r, Soc. Sec., 631 F.3d 1176, 1180
(11th Cir. 2011)). “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.” Talmo v.
Comm’r, Soc. Sec. Admin., No. ELH-14-2214, 2015 WL 2395108, at *2 (D. Md. May 19, 2015),
report and recommendation adopted (June 5, 2015) (citing Mascio, 780 F.3d at 638).
The ALJ’s analysis here is similarly flawed. Here, as in Mascio, the ALJ determined that
Plaintiff has a “moderate limitation” in “concentrating, persisting or maintaining pace.” Tr. 25.
The ALJ apparently tried to account for this limitation by modifying Plaintiff’s RFC to the
performance of “simple, routine tasks.” Tr. 40. As such, the only accommodation for Plaintiff’s
moderate limitation in concentration, persistence, and pace—confining Plaintiff to “simple,
routine tasks”—was flatly rejected in Mascio. Thus, “unless the ALJ adequately explained why
[Plaintiff’s] moderate difficulties in concentration, persistence, or pace did not translate into a
2

The functional area of “concentration, persistence, or 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). Social Security regulations do not define limitations in concentration, persistence, or
pace “by a specific number of tasks that [a claimant is] unable to complete.” Id. As this Court has
acknowledged, “[t]he regulations, however, offer little guidance on the meaning of ‘moderate’
limitations.” McDonald, 2017 WL 3037554, at *3.

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limitation in his RFC,” Mascio suggests remand. Talmo, 2015 WL 2395108, at *2.
Shinaberry v. Saul also advises remand. 952 F.3d 113, 121 (4th Cir. 2020). In Shinaberry,
the Fourth Circuit rejected “a categorical rule that requires an ALJ to always include moderate
limitations in concentration, persistence, or pace as a specific limitation in the RFC.” Id. “On the
contrary,” the Court affirmed that remand is not required when an “‘ALJ can explain why [a
claimant’s] moderate limitation in concentration, persistence, or pace at step three does not
translate into a limitation’ in the claimant’s RFC.” Id. (citing Mascio, 780 F.3d at 638). Here, the
ALJ limited Plaintiff’s RFC to “simple, routine tasks,” Tr. 40, but provided no explanation as to
why this mental limitation accounted for Plaintiff’s moderate limitations in her concentration,
persistence, or pace. Shinaberry, 952 F.3d at 122. Although the hypotheticals posed to the
vocational expert included a limitation to “simple, routine tasks,” Tr. 67–68, the ALJ failed to
explain how the record supports a finding that Plaintiff could engage in such tasks despite
Plaintiff’s limitation in concentration, persistence, and pace, and also failed to “implicitly account”
for Plaintiff’s limitation. Shinaberry, 952 F.3d at 121 (citing Winschel, 631 F.3d at 1180). Remand
is required.
Defendant urges the Court to conclude that the ALJ adequately explained why Plaintiff's
moderate limitation in concentration, persistence, or pace translated into a limitation to “simple,
routine tasks” in Plaintiff’s RFC. ECF 14-1, at 5–9. I disagree. The ALJ’s RFC determination
lacks a “function-by-function analysis” that would illuminate Plaintiff’s “ability to work” on a
consistent and competitive basis. Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting
Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)). To be sure, the ALJ does make repeated
references to Plaintiff's ability to cook, clean, pay bills, travel, and follow simple instructions. Tr.
39. However, the ALJ never explains how the performance of these tasks relates to Plaintiff’s
ability to concentrate, persist, and maintain pace at work or, more importantly, why the ability to
perform these routine tasks means that Plaintiff's RFC should not be adjusted to account for a
moderate limitation in concentration, persistence, or pace.
In fact, the ALJ determined that Plaintiff has a moderate limitation in concentrating,
persisting, or maintaining pace, despite also finding: (1) that Plaintiff’s “statements concerning
[her symptoms] are not entirely consistent with the medical evidence and other evidence in the
record”; (2) that Plaintiff’s mental status examinations were “generally unremarkable”; and (3)
that Plaintiff “generally has . . . normal concentration.” Tr. 25, 38–39. This analysis, or lack
thereof, makes it impossible for me to even ascertain “the reason for the finding of moderate, as
opposed to mild or no, limitation in the area of concentration, persistence, or pace.” McDonald,
2017 WL 3037554, at *4. Therefore, remand is appropriate to further develop the record.
“Pursuant 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 her RFC assessment, or explain why no such limitation is necessary.”
Talmo, 2015 WL 2395108, at *3. The ALJ did neither, so remand is required. In remanding for
further explanation, I express no opinion as to whether the ALJ’s ultimate conclusion that Plaintiff
is not entitled to benefits is correct.

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Tiara A. v. Kijakazi
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Because the case is being remanded on other grounds, I need not address Plaintiff’s
argument that the ALJ also erred by failing to explain how Plaintiff could remain productive
throughout an eight-hour workday for five days per week, despite finding that Plaintiff has a
moderate limitation in concentrating, persisting, or maintaining pace. ECF 9-1, at 14–16. On
remand, the ALJ is welcome to consider this argument and make any required adjustments to the
opinion.
V.

CONCLUSION

For the reasons set forth herein, Plaintiff’s motion for summary judgment, ECF 9, is
DENIED and Defendant’s motion for summary judgment, ECF 14, is DENIED. Pursuant to
sentence four of 42 U.S.C. § 405(g), the SSA’s judgment is REVERSED 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 a Memorandum Opinion.
A separate implementing Order follows.
Sincerely,
/s/
Brendan A. Hurson
United States Magistrate Judge