Reid v. Colvin
Filing
16
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 8/22/2016. (bus, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
DAMON REID,
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 15-1496
MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Damon Reid seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of
a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”)
denying his applications for disability insurance benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act. Before the Court are
Plaintiff’s Motion for Summary Judgment and alternative motion for remand (ECF No. 14) and
Defendant’s Motion for Summary Judgment (ECF No. 15).1
Plaintiff contends that the
administrative record does not contain substantial evidence to support the Commissioner’s
decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that
follow, Plaintiff’s alternative motion for remand (ECF No. 14) is GRANTED.
1
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
I
Background
Plaintiff was born in 1976, has a college education, and previously worked as a restaurant
worker and accounts payable clerk. R. at 27, 187. Plaintiff filed an application for DIB on
September 9, 2011, and for SSI protectively on September 15, 2011, alleging disability
beginning on September 25, 2010, due to, among other impairments, traumatic brain injury,
mental illness, and major depressive disorder. R. at 21, 166-73, 182, 186. The Commissioner
denied Plaintiff’s applications initially and again on reconsideration, so Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”). R. at 70-120. On October 25, 2013, ALJ
Larry K. Banks held a hearing in Washington, D.C., at which Plaintiff and a vocational expert
(“VE”) testified. R. at 35-69. On January 22, 2014, the ALJ issued a decision finding Plaintiff
not disabled from the alleged onset date of disability of September 25, 2010, through the date of
the decision. R. at 18-34. Plaintiff sought review of this decision by the Appeals Council, which
denied Plaintiff’s request for review on March 24, 2015. R. at 1-6, 16, 259-62. The ALJ’s
decision thus became the final decision of the Commissioner.
See 20 C.F.R. §§ 404.981,
416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 2083 (2000).
On May 25, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.
2
II
Summary of Evidence
A.
State Agency Medical Consultants
On February 21, 2012, a state agency consultant, E. Lessans, Ph.D., using the psychiatric
review technique (“PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated Plaintiff’s
mental impairments under Listings 12.02, 12.08, and 12.09 relating to organic mental disorders,
personality disorders, and substance addiction disorders (R. at 73, 81). See 20 C.F.R. pt. 404,
subpt. P, app. 1, §§ 12.02, 12.08, 12.09. Dr. Lessans opined that, under paragraph B of the
applicable listings, Plaintiff’s mental impairments caused him to experience (1) mild restriction
in activities of daily living; (2) moderate difficulties in maintaining social functioning;
(3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) one or two
repeated episodes of decompensation of extended duration. R. at 73, 81. Dr. Lessans then
assessed Plaintiff’s mental residual functional capacity (“RFC”) (R. at 74-76, 82-84) and opined
that he was moderately limited in his ability to (1) understand, remember, and carry out detailed
instructions; (2) maintain attention and concentration for extended periods; (3) complete a
normal workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest periods; and to
(4) accept instructions and to respond appropriately to criticism from supervisors. R. at 74-75,
82-83. Plaintiff otherwise was not significantly limited. R. at 74-76, 82-84. Dr. Lessans opined:
“[Plaintiff] has moderate limitations in social functioning and ability to maintain task persistence
due to psychiatric symptoms, substance abuse.” R. at 76, 84.
On August 22, 2012, another state agency consultant, Yamir Laboy, Psy.D., again used
the PRT to evaluate Plaintiff’s mental impairments under Listings 12.02, 12.08, and 12.09. R. at
3
92-93, 101-02. Dr. Laboy opined that, under paragraph B of the applicable listings, Plaintiff’s
mental impairments caused him to experience (1) mild restriction in activities of daily living;
(2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in
maintaining concentration, persistence, or pace; and (4) one or two repeated episodes of
decompensation of extended duration. R. at 92, 101. Dr. Laboy then assessed Plaintiff’s mental
RFC (R. at 94-95, 103-04) and opined that he was moderately limited in his ability to
(1) understand, remember, and carry out detailed instructions; (2) maintain attention and
concentration for extended periods; (3) complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; and to (4) accept instructions and to respond
appropriately to criticism from supervisors. R. at 94-95, 103-04. Plaintiff otherwise was not
significantly limited. R. at 94-95, 103-04. Dr. Laboy opined:
[Plaintiff] retains the ability to mentally perform at the level cited and discussed
in this [mental RFC]. [Plaintiff] can be expected to perform simple and repetitive
tasks and to meet the basic mental demands of work on a sustained basis despite
any limitations resulting from identified [medically determinable impairments].
a. Can remember simple instructions but has difficulty with more detailed
instructions, based on [consultative examination].
b. [Plaintiff] has moderate limitations in the ability to maintain task persistence and
follow detailed instructions based on limited available evidence.
c. [Plaintiff] has moderate limitations in social functioning related to psychiatric
symptoms, substance abuse.
R. at 95, 104.
B.
Hearing Testimony
1.
Plaintiff’s Testimony
The ALJ reviewed Plaintiff’s testimony in his decision:
[Plaintiff] alleges disabling limitations due to traumatic brain injury,
depressive disorder, major depressive disorder, learning problems, thinking
4
problems, memory problems, and lethargy, as well as insomnia, inability to
handle stress, and debilitating headaches from his traumatic brain injury [R. at
185-93, 207-21, 238-42]. [Plaintiff] testified that he stopped working because of
stress, mental fatigue, and sleep problems associated with his impairments, as
well as medication complications with Seroquel. He reported that he was first
treated for mental illness in 1999 for social anxiety, general anxiety, and
depression, and was placed on medication [R. at 38-66]. In 2002, he had a 30-day
jail sentence where he did not have his medications and broke down after being in
isolation with little sleep for two weeks (Id.). He states that the breakdown
resulted in a brain injury and spending one and a half years in a mental health
facility (Id.). Following the mental illness facility, he lived in a halfway house
until 2004 (Id.). He lived with and cared for his grandmother from 2009 to
January 2011 by helping with her daily activities (Id.). He lived with his parents
for some time afterward, and now lives by himself (Id.). He complains of reduced
energy, fatigue, short-term memory problems, learning problems, and weight gain
[R. at 38-66]. He currently goes to a psychiatrist once per month and a therapist
every three weeks (Id.). He states that he is unable to work any job because of his
continued mental fatigue and his need for regular breaks and rest (Id.).
R. at 26; see R. at 38-66.
2.
VE Testimony
The VE testified that a hypothetical individual with Plaintiff’s same age, education, and
work experience with the RFC outlined below in Part III could not perform Plaintiff’s past work
but could perform the unskilled, medium, light, and sedentary jobs of packer and packaging
worker, janitor, table worker, machine tender, quality-control worker, and grading and sorting
worker.2 R. at 66-68. According to the VE, his testimony was consistent with the Dictionary of
2
“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. §§ 404.1568(a), 416.968(a). “Sedentary
work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools.” Id. §§ 404.1567(a), 416.967(a). “Light work
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds.” Id. §§ 404.1567(b), 416.967(b). “Medium work involves lifting no
more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25
pounds.” Id. §§ 404.1567(c), 416.967(c).
5
Occupational Titles.3 R. at 68. A person “off task” at least 20% of the workday would not be
able to do any work. R. at 68.
III
Summary of ALJ’s Decision
On January 22, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of September 25, 2010; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform his past relevant work; but (5) could
perform other work in the national economy, such as a packer, janitor, table worker, machine
tender, quality-control worker, or sorter. R. at 23-28. The ALJ thus found that he was not
disabled from September 25, 2010, through the date of the decision. R. at 29.
In so finding, the ALJ found that Plaintiff had the RFC
to perform a full range of work at all exertional levels but with the following
nonexertional limitations: [Plaintiff] is limited to performing simple instructions
(no complex tasks) with occasional contact with coworkers, supervisors and the
public; and due to concentration and focus problems, [Plaintiff] would be off task
5% of the workday.
R. at 25.
The ALJ also considered Plaintiff’s credibility and found that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
3
“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1). “Information
contained in the [Dictionary of Occupational Titles] is not conclusive evidence of the existence
of jobs in the national economy; however, it can be used to establish a rebuttable presumption.”
English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
6
however, [his] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 26. The
ALJ found that, with regard to concentration, persistence, or pace,
[Plaintiff] has moderate difficulties. He reports experiencing fatigue and
headache when concentrating [R. at 38-66]. He estimates that he can concentrate
for 15-20 minutes at a time, but sometimes more and sometimes less (Id.). He
alleges sleep disturbances with fluctuating hours of sleep per night (Id.).
However, [Plaintiff] engages in some activities that suggest a considerable degree
of concentration. He goes fishing once or twice per week, which involves
gathering the necessary materials and driving to a local pond (Id.). He performs
regular activities including grocery shopping and certain household chores [R. at
38-66, 207-15]. He followed along sufficiently and provided reasoned answers at
the hearing, which lasted approximately 50 minutes. Therefore, the evidence
supports only moderate limitation in concentration, persistence, and pace.
R. at 24.
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”
42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
7
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).4
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
4
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
8
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
9
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
10
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling5 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-12,
ECF No. 14-1 (citing, inter alia, Fleming v. Barnhart, 284 F. Supp. 2d 256, 271-72 (D. Md.
2003)). Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of his ability to perform the physical and mental demands of work. Id. at 6. In
particular, he contends that, although the ALJ found that he had moderate difficulties with regard
to concentration, persistence, or pace, the ALJ did not explain his finding that Plaintiff “would be
off task 5% of the workday” because of problems with concentration and focus (R. at 25). Id. at
6-7. Plaintiff further asserts that the ALJ failed to evaluate properly opinion evidence. Id. at 712.
According to Plaintiff, substantial evidence thus does not support the ALJ’s RFC
assessment. Id. at 12. Because inadequacy of the ALJ’s analysis frustrates meaningful review,
the Court remands this case for further proceedings.
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
5
Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
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work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, __ F.3d __, No. 15-1098, 2016 WL 3349355, at
*9-10 (4th Cir. June 16, 2016) (remanding because ALJ erred in not determining claimant’s RFC
using function-by-function analysis; ALJ erroneously expressed claimant’s RFC first and then
concluded that limitations caused by claimant’s impairments were consistent with that RFC).
The Fourth Circuit further held in Mascio 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
of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). “[T]he ability to perform simple tasks
12
differs from the ability to stay on task. Only the latter limitation would account for a claimant’s
limitation in concentration, persistence, or pace.” Id. The court in Mascio remanded the case for
the ALJ to explain why the claimant’s moderate limitation in concentration, persistence, or pace
at step three did not translate into a limitation in the claimant’s RFC. Id. In other words,
“[p]ursuant 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 v. Comm’r, Soc. Sec., Civil Case No. ELH-14-2214, 2015 WL 2395108, at *3 (D. Md.
May 19, 2015), report and recommendation adopted (D. Md. June 5, 2015).
“The Social Security Administration has promulgated regulations containing ‘listings of
physical and mental impairments which, if met, are conclusive on the issue of disability.’ A
claimant is entitled to a conclusive presumption that he is impaired if he can show that his
condition ‘meets or equals the listed impairments.’” Radford, 734 F.3d at 291 (citation omitted);
see 20 C.F.R. pt. 404, subpt. P, app. 1. In addition to the five-step analysis discussed above in
Part IV and outlined in 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner has promulgated
additional regulations governing evaluations of the severity of mental impairments. 20 C.F.R.
§§ 404.1520a, 416.920a. These regulations require application of a psychiatric review technique
at the second and third steps of the five-step framework, Schmidt v. Astrue, 496 F.3d 833, 844
n.4 (7th Cir. 2007), and at each level of administrative review. 20 C.F.R. §§ 404.1520a(a),
416.920a(a). This technique requires the reviewing authority to determine first whether the
claimant has a “medically determinable mental impairment.”
416.920a(b)(1).
Id. §§ 404.1520a(b)(1),
If the claimant is found to have such an impairment, then the reviewing
authority must “rate the degree of functional limitation resulting from the impairment(s) in
13
accordance with paragraph (c),” id. §§ 404.1520a(b)(2), 416.920a(b)(2), which specifies four
broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation.
Id. §§ 404.1520a(c)(3),
416.920a(c)(3). According to the regulations, if the degree of limitation in each of the first three
areas is rated “mild” or better, and no episodes of decompensation are identified, then the
reviewing authority generally will conclude that the claimant’s mental impairment is not
“severe” and will deny benefits. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). If the claimant’s
mental impairment is severe, then the reviewing authority will first compare the relevant medical
findings and the functional limitation ratings to the criteria of listed mental disorders in order to
determine whether the impairment meets or is equivalent in severity to any listed mental
disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). If so, then the claimant will be found to be
disabled.
If not, the reviewing authority will then assess the claimant’s RFC.
Id.
§§ 404.1520a(d)(3), 416.920a(d)(3).
“The ALJ’s decision must show the significant history and medical findings considered
and must include a specific finding as to the degree of limitation in each of the four functional
areas.” Felton-Miller v. Astrue, 459 F. App’x 226, 231 (4th Cir. 2011) (per curiam) (citing 20
C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4)). With regard to the four functional areas, which
correspond to the paragraph B criteria of the listings for mental disorders, “[a]ctivities of daily
living include adaptive activities such as cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for [the claimant’s]
grooming and hygiene, using telephones and directories, and using a post office.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.00(C)(1). “In the context of [the claimant’s] overall situation, [the
Commissioner assesses] the quality of these activities by their independence, appropriateness,
14
effectiveness, and sustainability. [The Commissioner] will determine the extent to which [the
claimant is] capable of initiating and participating in activities independent of supervision or
direction.” Id. Moreover, “[s]ocial functioning refers to [the claimant’s] capacity to interact
independently, appropriately, effectively, and on a sustained basis with other individuals. Social
functioning includes the ability to get along with others, such as family members, friends,
neighbors, grocery clerks, landlords, or bus drivers.”
Id. § 12.00(C)(2).
Further,
“[c]oncentration, 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).
“On mental status examinations,
concentration is assessed by tasks such as having [the claimant] subtract serial sevens or serial
threes from 100. In psychological tests of intelligence or memory, concentration is assessed
through tasks requiring short-term memory or through tasks that must be completed within
established time limits.”
Id.
Finally, “[e]pisodes of decompensation are exacerbations or
temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace.” Id. § 12.00(C)(4). “Episodes
of decompensation may be demonstrated by an exacerbation in symptoms or signs that would
ordinarily require increased treatment or a less stressful situation (or a combination of the two).”
Id. Episodes of decompensation may be inferred from “medical records showing significant
alteration in medication; or documentation of the need for a more structured psychological
support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and
directing household); or other relevant information in the record about the existence, severity,
and duration of the episode.” Id. “The term repeated episodes of decompensation, each of
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extended duration in these listings means three episodes within 1 year, or an average of once
every 4 months, each lasting for at least 2 weeks.” Id.
Here, the ALJ’s hypothetical questions to the VE and the corresponding RFC assessment
limiting Plaintiff to “performing simple instructions (no complex tasks) with occasional contact
with coworkers, supervisors and the public” (R. at 25; see R. at 66) do not account for Plaintiff’s
moderate difficulties in maintaining concentration, persistence, or pace. See Mascio, 780 F.3d at
638; Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009) (per curiam) (rejecting contention
that “the ALJ accounted for [the claimant’s] limitations of concentration, persistence, and pace
by restricting the inquiry to simple, routine tasks that do not require constant interactions with
coworkers or the general public”). But see Hillard v. Colvin, Civil Action No. ADC-15-1442,
2016 WL 3042954, at *6 (D. Md. May 26, 2016) (“The ALJ additionally accounted for
Plaintiff’s limitation in concentration and persistence by restricting him to work ‘without
frequent interaction with co-workers or the public.’”); Linares v. Colvin, No. 5:14-CV-00120,
2015 WL 4389533, at *4 (W.D.N.C. July 17, 2015) (“The ALJ accounted for Plaintiff’s
limitation in pace by restricting her to ‘nonproduction pace,’ and he accounted for her limitation
in concentration and persistence by restricting her to a stable work environment with only
occasional public contact.”). The ALJ also found that Plaintiff “would be off task 5% of the
workday” because of problems with concentration and focus (R. at 25), a finding that does relate
to Plaintiff’s ability to stay on task. Remand under the fourth sentence of 42 U.S.C. § 405(g) is
warranted here, however, because it is unclear “how the ALJ reached that particular conclusion,
and [it] is also unclear whether being off task only 5% of the workday is consistent with a
‘moderate limitation in concentration, persistence or pace.’” Chandler v. Comm’r, Soc. Sec.
Admin., Civil No. SAG-15-1408, 2016 WL 750549, at *2 (D. Md. Feb. 24, 2016).
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Defendant maintains that remand is not warranted because Plaintiff fails to identify
evidence that would support greater limitations, relying on this Court’s opinion in Thompson v.
Colvin, Civil No. TMD 13-3450, 2015 WL 1393562 (D. Md. Mar. 24, 2015). Def.’s Mem.
Supp. Mot. Summ. J. 11, ECF No. 15-1. Since Thompson, however, the Fourth Circuit has
reminded us that, while “there is no rigid requirement that the ALJ specifically refer to every
piece of evidence in his decision,” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir.
2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)), “the ALJ
‘must build an accurate and logical bridge from the evidence to his conclusion,’” which the ALJ
did not do so here. Monroe, 2016 WL 3349355, at *10 (quoting Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000)). Although Defendant contends that any error by the ALJ was harmless, “the
Fourth Circuit has declined to find harmless error where an error or omission precludes
meaningful review.” Jeffries ex rel. J.J.J. v. Comm’r, Soc. Sec., No. JKB-15-1727, 2016 WL
3162800, at *2 (D. Md. June 7, 2016) (citing Fox v. Colvin, 632 F. App’x 750, 756 (4th Cir.
2015) (per curiam); Mascio, 780 F.3d at 636-37); see Radford, 734 F.3d at 296. Defendant’s
reliance on Thompson thus is unavailing.
In short, the ALJ “failed to explain why he equated the facts to a [5%] reduction as
opposed to the [20%] reduction he contemplated (or, for that matter, any other number). The
ALJ’s failure to connect his factual findings to his chosen number is particularly disconcerting
because . . . the figure he discarded would have meant disability according to the VE’s
testimony” (R. at 68). Lobbes v. Colvin, No. 4:13-CV-57-RLY-WGH, 2014 WL 1607617, at
*20 (S.D. Ind. Apr. 22, 2014); see Sterling v. Colvin, No. 1:13-CV-01132-SEB, 2014 WL
4328682, at *3 (S.D. Ind. Aug. 29, 2014) (“[I]t is inconsistent to determine [the claimant] has
these moderate limitations [in social functioning and in maintaining concentration, persistence,
17
or pace], yet also determine without explanation that she is able to stay on-task for 96-100% of
the workday. The logical bridge here is not sound.
If the ALJ believed [the claimant’s]
moderate limitations would not significantly impact her productivity, he needed to articulate
why. Without such explanation, his decision is not supported by substantial evidence.” (citation
omitted)). The Fourth Circuit has “held that ‘[a] necessary predicate to engaging in substantial
evidence review is a record of the basis for the ALJ’s ruling,’ including ‘a discussion of which
evidence the ALJ found credible and why, and specific application of the pertinent legal
requirements to the record evidence.’”
Monroe, 2016 WL 3349355, at *10 (alteration in
original) (quoting Radford, 734 F.3d at 295). Because the inadequacy of the ALJ’s analysis
frustrates meaningful review, remand under the fourth sentence of 42 U.S.C. § 405(g) is
appropriate, see Mascio, 780 F.3d at 636, and the Court need not address Plaintiff’s remaining
arguments.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 15) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 14) is GRANTED. Defendant’s final decision is
REVERSED IN PART under the fourth sentence of 42 U.S.C. § 405(g).
This matter is
REMANDED for further proceedings consistent with this opinion. A separate order shall issue.
Date: August 22, 2016
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
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