Johnson v. Colvin

Filing 21

LETTER MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 7/26/2016. (jf3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE

6500 Cherrywood Lane
Greenbelt, Maryland 20770
Telephone: [phone]
[e-mail]

July 26, 2016
LETTER TO COUNSEL:
RE:

Tylnne Johnson v. Carolyn W. Colvin, Acting Commissioner of Social Security
Civil No. TJS-15-0251

Dear Counsel:
On January 29, 2015, the Plaintiff, Tylnne Johnson (“Ms. Johnson”), petitioned this
Court to review the Social Security Administration’s final decision to deny her claims for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (ECF No. 1.)
The parties have filed cross-motions for summary judgment. (ECF Nos. 14 & 17.) These motions
have been referred to the undersigned with the parties’ consent pursuant to 28 U.S.C. § 636 and
Local Rule 301. (ECF Nos. 6 & 7.) I find that no hearing is necessary. See Loc. R. 105.6. This
Court must uphold the decision of the agency if it is supported by substantial evidence and if the
agency employed the proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin,
780 F.3d 632, 634 (4th Cir. 2015). Following its review, this Court may affirm, modify, or
reverse the Commissioner, with or without a remand. See 42 U.S.C. § 405(g); Melkonyan v.
Sullivan, 501 U.S. 89 (1991). Under that standard, I will deny both motions and remand this case
for further proceedings. This letter explains my rationale.
Ms. Johnson protectively filed her applications for DIB and SSI on August 16, 2010,
alleging that she became disabled on September 1, 2004. (Tr. 195-205.) Her claims were denied
initially and on reconsideration. (Tr. 76-79.) A hearing was held before an Administrative Law
Judge (“ALJ”) on May 23, 2013. (Tr. 48-75.) On July 8, 2013, the ALJ determined that Ms.
Johnson was not disabled under the Social Security Act. (Tr. 28-39.) On December 12, 2014, the
Appeals Council denied Ms. Johnson’s request for review, making the ALJ’s decision the final,
reviewable decision of the Agency.
The ALJ evaluated Ms. Johnson’s claim for benefits using the five-step sequential
evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that
Ms. Johnson was not engaged in substantial gainful activity, and had not been engaged in
substantial gainful activity since September 1, 2004. (Tr. 30.) At step two, the ALJ found that
Ms. Johnson suffered from the severe impairments of “multiple hernias in abdominal/inguinal,
status post surgery for recurrent hernias, bipolar disorder, and depression.” (Id.) At step three, the
ALJ found that Ms. Johnson’s impairments, separately and in combination, failed to meet or
equal in severity any listed impairment as set forth in 20 C.F.R., Chapter III, Pt. 404, Subpart P,
App. 1 (“Listings”) (Tr. 31-32.) Before proceeding to step four, the ALJ determined that Ms.
Johnson retained the residual functional capacity (“RFC”)

to perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 41.6.967(a)
except with the following limitations. The claimant can occasionally lift and carry
up to 20 pounds. She can frequently lift and carry up to 10 pounds. She can
stand/walk for a total of 2 hours in an eight-hour workday and sit for a total of 6
hours in an eight-hour workday. She can occasionally climb ramps and stairs. She
can never climb ladders, ropes, or scaffolds. She can occasionally balance, stoop,
kneel, crouch, or crawl. She retains the ability to understand, remember, and carry
out instructions concerning simple routine repetitive tasks. She can have
occasional interaction with coworkers and no interaction with the general public.
(Tr. 32.)
At step four, the ALJ determined that Ms. Johnson had no past relevant work. (Tr. 38.) At
step five, the ALJ determined that, considering Ms. Johnson’s age, education, work experience,
and RFC, there are jobs that exist in significant numbers in the national economy that she can
perform. (Tr. 38.) Accordingly, the ALJ found that Ms. Johnson was not disabled under the
Social Security Act. (Tr. 39.)
Ms. Johnson raises four arguments on appeal: (1) the ALJ’s RFC determination was
unsupported by substantial evidence; (2) the ALJ failed to comply with the treating physician
rule; (3) the ALJ’s conclusion as to Ms. Johnson’s credibility is not supported by substantial
evidence; and (4) the ALJ failed to properly apply the special technique for evaluating mental
impairments. Because I will remand this case on the grounds that the ALJ did not properly
evaluate Ms. Johnson’s RFC, I decline to address the remainder of Ms. Johnson’s arguments. I
express no opinion on whether Ms. Johnson should ultimately be found to be disabled.
The Fourth Circuit has considered the extent to which an ALJ’s step three findings
regarding a claimant’s difficulties in maintaining concentration, persistence, or pace must be
incorporated into the RFC determination. Mascio, 780 F.3d at 637-38. In Mascio, an ALJ found
that a claimant had moderate difficulties in maintaining her concentration, persistence, or pace.
Id. at 638. The ALJ’s RFC assessment did not account for these difficulties or explain why they
did not translate into any functional limitation. Id. The court held that an ALJ does not account
for a claimant’s limitations in concentration, persistence, or pace by restricting the claimant to
simple, routine tasks or unskilled work. Id. This is because “the ability to perform simple tasks
differs from the ability to stay on task.” Id. An ALJ’s finding at step three that a claimant has
difficulties in maintaining concentration, persistence, or pace does not require the inclusion of a
corresponding limitation in the claimant’s RFC, but an ALJ must nonetheless “explain why [such
a limitation at step three] does not translate into a limitation in [the RFC].” Id.
At step three in this case, the ALJ found that Ms. Johnson has moderate difficulties
“[w]ith regard to concentration, persistence, or pace.” (Tr. 31.) Despite finding that Ms. Johnson
was limited in this respect, the ALJ did not include a corresponding limitation in the RFC
assessment. The Commissioner concedes this point. (ECF No. 17-1 at 8.) As the Court in Mascio
noted, a limitation in an RFC restricting a claimant to “simple, routine tasks or unskilled work” is

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not sufficient to address limitations with regard to concentration, persistence, or pace. 780 F.3d
at 638.
The Commissioner argues that this error is harmless because the ALJ accounted for Ms.
Johnson’s difficulties in maintaining concentration, persistence, or pace in a hypothetical
question to the vocational expert (“VE”). (ECF No. 17-1 at 8.) In framing this hypothetical
question to the VE, the ALJ incorporated his RFC findings and included an additional limitation
that tasks not be performed “at a production rate pace.” (Tr. 69.) By excluding “production rate
pace” work, the Commissioner argues, the ALJ accounted for Ms. Johnson’s moderate
limitations in maintaining concentration, persistence, or pace. (ECF No. 17-1 at 8-9.) This
argument is unavailing.
An 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.” Koonce v. Apfel, 166 F.3d 1209, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999) (citing
Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986)). Likewise, an ALJ is free to pose
numerous hypotheticals to the VE that may include alternative degrees of limitation, and “by
doing so, is not binding himself to accept each hypothetical upon his full consideration of the
entire record.” Matthews v. Comm’r. Soc. Sec., No. ELH-13-1720, 2014 WL 2738276, at *2 (D.
Md. June 16, 2014).
If the ALJ had excluded “production rate pace” work from Ms. Johnson’s RFC, this may
have been adequate to account for her moderate limitations in concentration, persistence, or pace.
See e.g., Gair v. Comm’r. Soc. Sec. Admin., No. SAG-14-3652, 2015 WL 5774982, at *2 (D.
Md. Sept. 28, 2015). Here, however, the ALJ did not incorporate this limitation into the RFC and
the hypothetical question to the VE is not sufficient by itself to comply with Mascio. ALJs are
not bound by the limitations included in hypothetical questions. It may be that the ALJ believed
that Ms. Johnson was incapable of performing “production rate pace” work, but the ALJ made
no such finding in his RFC determination or elsewhere in the opinion. For this reason, the ALJ’s
decision does not comply with Mascio. See also Washington v. Colvin, No. CBD-15-1553, 2016
WL 3632693 (D. Md. July 7, 2016) (concluding that an ALJ must incorporate findings regarding
limitations in concentration, persistence, or pace in the RFC, even if the limitations are
incorporated into the hypothetical question); Henig v. Colvin, No. TMD-13-1623, 2015 WL
5081619 (D. Md. Aug. 26, 2015); Talmo v. Comm’r Soc. Sec., No. ELH-14-2214, 2015 WL
2395108, at *3 (D. Md. May 19, 2015).
Upon remand, the ALJ must incorporate Ms. Johnson’s moderate limitations in
concentration, persistence, or pace into the RFC assessment or explain why her moderate
limitations in these areas do not require a corresponding limitation in the RFC.
For the reasons set forth herein, Ms. Johnson’s Motion for Summary Judgment (ECF No.
14) and the Commissioner’s Motion for Summary Judgment (ECF No. 17) will be DENIED. The
ALJ’s opinion will be VACATED and the case will be REMANDED for further proceedings.
The Clerk is directed to CLOSE this case.

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Despite the informal nature of this letter, it should be flagged as an opinion. An
implementing Order follows.
Sincerely yours,

/s/
Timothy J. Sullivan
United States Magistrate Judge

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