Vigen v. Colvin

Filing 21

MEMORANDUM AND ORDER denying 18 Motion of plaintiff for Summary Judgment; denying 19 Motion of defendant for Summary Judgment; the Commissioners judgment is REVERSED IN PART; the case is REMANDED for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 9/7/2016. (jnls, 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]

September 7, 2016
LETTER TO COUNSEL
RE:

Thomas Eugene Vigen, II v. Commissioner, Social Security Administration;
Civil No. SAG-15-2984

Dear Counsel:
On October 1, 2015, Plaintiff Thomas Eugene Vigen, II petitioned this Court to review
the Social Security Administration’s 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 and Plaintiff’s reply memorandum. (ECF Nos. 18, 19, 20). I
find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). 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 judgment of the
Commissioner, and remand the case to the Commissioner for further analysis pursuant to
sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.
Mr. Vigen protectively filed claims for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on October 1, 2010. (Tr. 227-34). He alleged a disability
onset date of April 1, 2009. (Tr. 227, 229). His claims were denied initially and on
reconsideration. (Tr. 134-49, 151-52). A hearing was held on September 24, 2013, before an
Administrative Law Judge (“ALJ”), and a second hearing was held on May 9, 2014. (Tr. 48108). Following the 2014 hearing, the ALJ determined that Mr. Vigen was not disabled within
the meaning of the Social Security Act during the relevant time frame. (Tr. 21-40). The Appeals
Council denied Mr. Vigen’s request for review, (Tr. 1-6), so the ALJ’s decision constitutes the
final, reviewable decision of the Agency.
The ALJ found that Mr. Vigen suffered from the severe impairments of adjustment
disorder, asthma, attention deficit hyperactivity disorder (“ADHD”), anxiety disorder, major
depression, migraine headaches, and posttraumatic stress disorder. (Tr. 23). Despite these
impairments, the ALJ determined that Mr. Vigen retained the residual functional capacity
(“RFC”) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant can understand, remember and carry out
simple, routine, repetitive tasks on a constant basis, can occasionally interact with

Thomas Eugene Vigen, II v. Commissioner, Social Security Administration
Civil No. SAG-15-2984
September 7, 2016
Page 2
co-workers, no interaction with the public, the claimant can experience frequent
exposure to pulmonary dusts, fumes, odors and other pulmonary irritants[.]
(Tr. 25). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Vigen could perform jobs existing in significant numbers in the national economy and that,
therefore, he was not disabled. (Tr. 38-40).
Mr. Vigen raises three arguments on appeal: 1) that the ALJ erred by failing to resolve
the apparent conflict between the VE’s testimony and the Dictionary of Occupational Titles
(“DOT”) pursuant to the Fourth Circuit’s ruling in Pearson v. Colvin, 810 F.3d 204 (4th Cir.
2015); 2) that the ALJ failed to properly consider Mr. Vigen’s fibromyalgia pursuant to Social
Security Ruling (“SSR”) 12-2p, rendering his RFC analysis unsupported by substantial evidence;
and 3) that the ALJ erred in his application of the special technique in evaluating Mr. Vigen’s
mental impairments. Although not all of Mr. Vigen’s arguments provide independent bases for
remand, I have reviewed the ALJ’s opinion under the Fourth Circuit’s ruling in Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015), and find that remand is warranted because the ALJ failed to
adequately account for Mr. Vigen’s moderate limitation in concentration, persistence, or pace in
his RFC assessment.
In his third argument, Mr. Vigen contends that the ALJ erred in his application of the
special technique for evaluating mental impairments. Specifically, he avers that the ALJ’s
discussion of his finding that Mr. Vigen had a moderate limitation in concentration, persistence,
or pace was conclusory and inadequate. Pl. Mem. at 24. Furthermore, Mr. Vigen asserts that
“while the ALJ acknowledged some relevant evidence in his discussion of his RFC assessment,
the ALJ referred to the evidence mostly in a neutral and non-evaluative way as part of a
chronological narrative of plaintiff’s medical treatment.” Pl. Mem. at 25. I agree, and find that,
for the same reasons, the ALJ’s opinion also falls short of the standards set out in Mascio
regarding limitations in concentration, persistence, or pace.
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. 732 F.3d 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. The relevant listings therein consists of: (1) a brief statement
describing a 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. at § 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,

Thomas Eugene Vigen, II v. Commissioner, Social Security Administration
Civil No. SAG-15-2984
September 7, 2016
Page 3
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. §§
404.1620a(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. §§
404.1620a(c)(4), 416.920a(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).
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 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.
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. Even so, 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. Id.
In the instant case, the ALJ found that Mr. Vigen had a moderate limitation in
concentration, persistence, or pace. (Tr. 62). The ALJ noted Mr. Vigen’s allegations that, “his
ADHD and pain limit his ability to concentrate, understand and follow instructions,” and that he
“could complete tasks for very short simple things.” (Tr. 26). The ALJ also cited medical
evidence throughout the record regarding Mr. Vigen’s ability to concentrate, his diagnosis of
ADHD “inattentive type”, and several medical opinions finding deficits in his concentration.
(Tr. 25-38). However, the ALJ found that “the record surely indicates that the claimant is
capable of engaging in activities of daily living, use of memory, socializing and concentration
despite the symptoms of his conditions.” (Tr. 38).

Thomas Eugene Vigen, II v. Commissioner, Social Security Administration
Civil No. SAG-15-2984
September 7, 2016
Page 4
Ultimately, the ALJ’s analysis is simply insufficient to permit adequate review. Without
further explanation, I am unable to ascertain whether the ALJ truly believed Mr. Vigen to have
moderate difficulties in concentration, persistence, and pace, instead of mild, or no difficulties,
and how those difficulties restrict his RFC to “understand, remember and carry out simple,
routine, repetitive tasks on a constant basis” without further limitation. In fact, use of the phrase
“on a constant basis” seems to imply an enhanced ability to sustain work, outside of a normal
work schedule containing regular breaks. In light of this inadequacy, I must remand the case to
the Commissioner for further analysis consistent with the Fourth Circuit’s mandate in Mascio.
On remand, the ALJ should explain why Mr. Vigen has moderate difficulties in concentration,
persistence, and pace, and should impose an appropriate limitation(s) to address his difficulties.
In so holding, I make no finding as to whether the ALJ’s ultimate conclusion that Mr. Vigen was
not disabled was correct or incorrect.
Turning to Mr. Vigen’s other arguments, he first asserts that the ALJ erred by failing to
identify a conflict between his finding that Mr. Vigen was able to “understand, remember and
carry out simple, routine, repetitive tasks on a constant basis,” and his finding that Mr. Vigen
was capable of performing jobs with a GED reasoning level of two. Thus, Mr. Vigen argues that
remand is warranted under the Fourth Circuit’s recent holdings in Pearson, 810 F.3d at 208-10,
and Henderson v. Colvin, 643 Fed. App’x 273 (4th Cir. 2016). Pertinent to this case, in Pearson,
the Fourth Circuit held that an ALJ has a duty, independent of the VE, to identify any “apparent
conflicts” between the VE’s testimony and the Dictionary of Occupational Titles and to resolve
any such conflicts. 810 F.3d at 208-10. In Pearson, the apparent conflict at issue involved the
degree of reaching required for a job identified by the VE. Id. at *6-*7. In Henderson, the
Fourth Circuit extended the Pearson reasoning to apparent conflict between the plaintiff’s mental
limitations and his ability to perform certain jobs. Specifically, the VE in that case testified that
Henderson was capable of performing jobs with a GED reasoning level of two, even though he
was limited to performing “simple one-to-two step tasks with low stress.” 643 Fed. App’x at
276-77. The Fourth Circuit noted that “GED Reasoning Code 2 requires the employee to
‘[a]pply commonsense understanding to carry out detailed but uninvolved written or oral
instructions.’” Id. (citing Dictionary of Occupational Titles, 1991 WL 688702 (2008)). The
Fourth Circuit held that there was an apparent conflict in the VE’s testimony, and that his failure
to identify and reconcile the conflict warranted remand.
The Commissioner contends that Henderson is not binding precedent, contains little
persuasive authority or rationale, and should not be used to overturn other cases reaching the
opposite conclusion. Def. Mot. at 9-11. Ultimately, because this case is being remanded on
other grounds, I need not reach the Henderson issue. On remand, the ALJ should consider
whether to address any apparent conflict presented by the VE’s testimony, in light of the
guidance provided by existing binding and non-binding precedent.
Finally, Mr. Vigen argues that the ALJ erred by failing to consider his medically
determinable impairment of fibromyalgia pursuant to SSR 12-2p. Fibromyalgia is a particularly
complicated diagnosis which the Agency acknowledges “can wax and wane so that a person may
have ‘good days’ and ‘bad days.’” SSR 12-2p. Thus, the Agency sets out specific criteria that

Thomas Eugene Vigen, II v. Commissioner, Social Security Administration
Civil No. SAG-15-2984
September 7, 2016
Page 5
must be met in order for fibromyalgia to constitute a medically determinable impairment. Id.
Specifically, an acceptable medical source must diagnose the claimant with fibromyalgia using
the criteria outlined by the American College of Rheumatology (“ACR”). SSR 12-2p. The
Agency allows for diagnosis of fibromyalgia according to either the 1990 or 2010 ACR criteria. 1
Id. In the instant case, the ALJ reviewed Mr. Vigen’s allegations of “chronic pain,” including his
assertions that even on a day at home “his pain level was three or four if he was relaxing,” and
that he “did not shower as often as he should due to feeling worn out.” (Tr. 26-27). The ALJ
also cited Mr. Vigen’s records, which showed “question of fibromyalgia on March 14, 2011 due
to ongoing complaints of pain, which had previously been assessed as TMJ pain.” (Tr. 32). The
ALJ found that there was no evidence of trigger points in the record, and thus, that Mr. Vigen’s
fibromyalgia diagnosis did not meet the requirements set out by the ACR. While the ALJ clearly
addressed the 1990 ACR diagnostic criteria for fibromyalgia, he failed to consider whether Mr.
Vigen’s diagnosis met the 2010 criteria. I note that the record contains some evidence that may
be used to support a diagnosis on these criteria, including fatigue, issues with memory,
depression, and anxiety. (Tr. 25-38). While the failure to address the 2010 ACR criteria alone
may not warrant remand, since the case is being remanded on other grounds, the ALJ should
review whether Mr. Vigen’s fibromyalgia diagnosis meets the 2010 ACR criteria.
For the reasons set forth herein, Mr. Vigen’s Motion for Summary Judgment (ECF No.
18) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 19) 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

1

The 1990 criteria include a history of widespread pain, at least 11 tender points, and evidence that other disorders
that could cause the symptoms or signs were excluded. Id. The 2010 criteria include a history of widespread pain,
repeated manifestations of six or more fibromyalgia signs, symptoms, or co-occurring conditions (including fatigue
cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel
syndrome), and evidence that other disorders that could cause the symptoms or signs were excluded.