Lathan v. Colvin

Filing 19

MEMORANDUM AND ORDER DENYING 14 Motion for Summary Judgment; DENYING 15 Motion for Summary Judgment; REVERSING IN PART the Commissioner's Judgment and REMANDING for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 3/16/2016. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

March 16, 2016
LETTER TO COUNSEL
RE:

Coy Lathan v. Commissioner, Social Security Administration;
Civil No. SAG-15-444

Dear Counsel:
On February 17, 2015, Plaintiff Coy Lathan petitioned this Court to review the Social
Security Administration’s (“SSA”) final decision to deny his claims for Disability Insurance
Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties’ crossmotions for summary judgment. (ECF Nos. 14, 15). In addition, I have reviewed the
Commissioner’s supplemental briefing regarding the impact of the Fourth Circuit’s recent
decision in Fox v. Colvin, __ Fed. App’x __, 2015 WL 9204287 (4th Cir. Dec. 17, 2015), and the
Plaintiff’s response thereto. (ECF Nos. 17, 18). I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2014). This Court must uphold the decision of the Agency if it is supported by
substantial evidence and if the Agency 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 in part, and remand the case to the
Commissioner for further consideration. This letter explains my rationale.
On March 22, 2012, Mr. Lathan filed his claims for benefits, alleging a disability onset
date of February 1, 2005. (Tr. 173-83). His claims were denied initially and on reconsideration.
(Tr. 109-16, 121-24). A hearing was held on August 16, 2013, before an Administrative Law
Judge (“ALJ”). (Tr. 27-55). Following the hearing, the ALJ determined that Mr. Lathan was not
disabled within the meaning of the Social Security Act during the relevant time frame. (Tr. 1026). The Appeals Council denied Mr. Lathan’s request for review, (Tr. 1-3), so the ALJ’s
decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Mr. Lathan suffered from the severe impairments of learning
disabilities, depression, borderline intellectual functioning, obesity, diabetes mellitus,
hypertension, bilateral hearing loss, and chronic back pain. (Tr. 15). Despite these impairments,
the ALJ determined that Mr. Lathan retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). The
claimant is also limited to unskilled, low-stress work that involves only simple
routine tasks and only simple decisions on an occasional basis. The claimant’s
work should not be production-paced and should not include productions [sic]
standards, judgment changes, and/or frequent general changes to the routine work

Coy Willie Lathan v. Commissioner, Social Security Administration
Civil No. SAG-15-444
March 16, 2016
Page 2
environment. Further, the claimant is limited to only occasional interaction with
supervisors, coworkers, and public. In addition, the claimant must occasionally
use a hand-held device for standing, walking, and balancing. The claimant is
limited to work that permits the claimant to alternate between sitting and standing
at-will during the workday to alleviate symptoms of pain and discomfort.
(Tr. 17). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Lathan could perform jobs existing in significant numbers in the national economy and that,
therefore, he was not disabled. (Tr. 21-22).
Mr. Lathan raises two primary arguments on appeal: (1) that the ALJ should have
considered him to be in a borderline age range; and (2) that the ALJ’s analysis was deficient
under Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Mr. Lathan also contends that the ALJ’s
analysis did not comport with Fox. While I disagree with Mr. Lathan’s Mascio argument, I
concur that Fox mandates remand for the ALJ to provide further discussion of the mental health
listings. In so determining, I express no opinion as to whether the ALJ’s ultimate conclusion that
Mr. Lathan was not entitled to benefits is correct or incorrect.
Beginning with the unsuccessful argument, 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 638. At step three of the sequential
evaluation, the ALJ 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. Listings 12.00 et. seq.,
pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. Each listing therein
consists of: (1) a brief statement describing its subject disorder; (2) “paragraph A criteria,”
which consists of a set of medical findings; and (3) “paragraph B criteria,” which consists of a
set of impairment-related functional limitations. Id. § 12.00(A). If both the paragraph A criteria
and the paragraph B criteria are satisfied, the ALJ will determine that the claimant meets the
listed impairment. Id.
Paragraph B consists of four broad functional areas: (1) activities of daily living; (2)
social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation.
The ALJ employs the “special technique” to rate a claimant’s degree of limitation in each 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(c)(2), 416.920a(c)(2). The ALJ uses a five-point scale to rate a claimant’s degree of
limitation in the first three areas: none, mild, moderate, marked, or extreme. Id. §§
404.1520a(c)(4), 416.920(a)(c)(4). In order to satisfy paragraph B, a claimant must exhibit either
“marked” limitations in two of the first three areas, or “marked” limitation in one of the first
three areas with repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 12.02. Marked limitations “may arise when several activities or functions are impaired,
or even when only one is impaired, as long as the degree of limitation is such as to interfere
seriously with [the claimant’s] ability to function.” Id. § 12.00(C).

Coy Willie Lathan v. Commissioner, Social Security Administration
Civil No. SAG-15-444
March 16, 2016
Page 3
The functional area of “concentration, persistence, or pace refers to the ability to sustain
focused attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings.” Id. § 12.00(C)(3). Social Security
regulations do not define marked limitations in concentration, persistence, or pace “by a specific
number of tasks that [a claimant is] unable to complete.” Id. The regulations, however, offer
little guidance on the meaning of “moderate” limitations in the area of concentration, persistence,
or pace.
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.
Unlike in Mascio, the ALJ in this case imposed several limitations specifically designed
to address Mr. Lathan’s difficulties with concentration, persistence, or pace. The ALJ specified
that Mr. Lathan’s work “should not be production-paced and should not include productions [sic]
standards, judgment changes, and/or frequent general changes to the routine work environment.”
(Tr. 17). In light of those restrictions to address Mr. Lathan’s moderate limitations, remand
under Mascio is unwarranted.
On the other hand, Fox provides a valid basis for remand. In Fox, the Fourth Circuit
clarified the evidentiary requirements needed to support an ALJ’s finding at step three of the
sequential evaluation. Step three requires the ALJ to determine 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. Listings describe each of the major body system impairments that the
Agency “consider[s] to be severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work experience.” 20 C.F.R. §§ 404.1525(a),
416.925(a). Listings 12.00 et. seq., pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 12.00.
In Fox, regarding his findings at step three of the sequential evaluation, the ALJ stated:
Although the claimant has ‘severe’ impairments, they do not meet the criteria of
any listed impairments described in Appendix 1 of the Regulations. (20 CFR,

Coy Willie Lathan v. Commissioner, Social Security Administration
Civil No. SAG-15-444
March 16, 2016
Page 4
Subpart P, Appendix 1). No treating or examining physician has mentioned
findings equivalent in severity to the criteria of any listed impairment, nor does
the evidence show medical findings that are equivalent to those of any listed
impairment of the Listing of Impairments. In reaching this conclusion, the
undersigned has considered, in particular, sections 9.00(B)(5) and 11.14.
2015 WL 9204287 at *4. The Fourth Circuit held that the ALJ’s analysis was deficient because
it consisted of conclusory statements and did not include “any ‘specific application of the
pertinent legal requirements to the record evidence.’” Id. (quoting Radford v. Colvin, 734 F.3d
288, 291-92 (4th Cir. 2013)). That is, the ALJ did not apply any findings or medical evidence to
the identified disability listings and “offered nothing to reveal why he was making his decision.”
Radford, 734 F.3d at 295 (emphasis in original). The Fourth Circuit also rejected the notion that
failure to engage in meaningful analysis at step three could constitute harmless error where the
evidence of record otherwise demonstrated that the claimant did not meet a listing. 2015 WL
9204287, at *4. Rather, the Fox Court emphasized that it is not this Court’s role to “engage[] in
an analysis that the ALJ should have done in the first instance,” or “to speculate as to how the
ALJ applied the law to its findings or to hypothesize the ALJ’s justifications that would perhaps
find support in the record.” Id. at *4-*5. The Court noted that it could not conduct a meaningful
review “when there is nothing on which to base a review.” Id. at *4.
In Mr. Lathan’s case, the ALJ applied the special technique for evaluation of mental
impairments to the identified mental health listing, 12.04. (Tr. 16). That technique is set forth in
20 C.F.R. §§ 404.1520a, 416.920a; Robbers v. Comm’r of the Soc. Sec. Admin., 582 F.3d 647,
652-54 (6th Cir. 2009); Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir. 2008) (citing Schmidt v.
Astrue, 496 F.3d 833, 844 n. 4 (7th Cir. 2007)). The ALJ “must first evaluate [the claimant's]
pertinent symptoms, signs, and laboratory findings to determine whether [he or she] ha[s] a
medically determinable mental impairment(s).” 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1).
The ALJ must “then rate the degree of functional limitation resulting from the impairment(s)” in
four broad functional areas. Id. § 404.1520a(b)(2), 404.1520a(c), 416.920a(b)(2), 416.920a(c).
The ALJ must document the application of the technique in the hearing decision, incorporating
pertinent findings and conclusions, and documenting the significant history and functional
limitations that were considered. Id. §§ 404.1520a(e)(4), 416.920a(e)(4).
The ALJ’s application of the special technique in Mr. Lathan’s case does not permit
adequate review under Fox. With respect to the first two functional areas, the ALJ found that
Mr. Lathan had “mild” restrictions and stated, “In making these findings, the undersigned
assigned weight to the claimant’s presentation at the hearing, his hearing testimony, and his
reports in the June 5, 2012 psychological evaluation.” (Tr. 16). For concentration, persistence,
or pace, the ALJ found Mr. Lathan to have moderate difficulties and stated, “In making that
finding, the undersigned considered the learning difficulties and concentration identified in the
June 5, 2012 consultative examination report.” Id. Neither of those one-sentence descriptions
allowed me to assess how the ALJ applied the law to the facts of Mr. Lathan’s case. The phrases
“assigned weight” and “considered” do not indicate what portions of the consultative
examination report were credited or relied upon by the ALJ in making his determinations.

Coy Willie Lathan v. Commissioner, Social Security Administration
Civil No. SAG-15-444
March 16, 2016
Page 5
Ultimately, then, I cannot assess whether those determinations were supported by substantial
evidence, and remand is required for the ALJ to provide an adequate explanation.
Mr. Lathan also argued that the ALJ should have reviewed his case as a borderline age
situation, since he was 27 days from “advanced age” at the time the ALJ issued his opinion and a
person with his RFC in the “advanced age” category would be deemed disabled. Pl. Mot. 3-6.
Because Mr. Lathan will be in the higher age category when his case is considered on remand, I
need not address the borderline age issue.
For the reasons set forth herein, Mr. Lathan’s Motion for Summary Judgment (ECF No.
14) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 15) is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’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 and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge