McClanahan v. Colvin
Filing
18
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 11/18/2016. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
DIANA McCLANAHAN,
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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 16-44
MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Diana McClanahan 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 her 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. 16) and Defendant’s Motion for Summary Judgment (ECF No. 17).1 Plaintiff
contends that the administrative record does not contain substantial evidence to support the
Commissioner’s decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the
reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 16) 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 1961, has a high-school education, and previously worked as a mail
clerk and certified nursing assistant. R. at 17, 181, 190. Plaintiff protectively filed applications
for DIB and SSI on June 29, 2012, alleging disability beginning on January 1, 2010, due to
bipolar disorder and osteoarthritis. R. at 131-54, 190, 199. The Commissioner denied Plaintiff’s
applications initially and again on reconsideration, so Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. at 54-112, 115-16. On July 8, 2014, ALJ Alfred J.
Costanzo held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 24-53.
At the hearing, Plaintiff amended her alleged onset date of disability to November 25, 2011. R.
at 27. On August 14, 2014, the ALJ issued a decision finding Plaintiff not disabled from the
amended alleged onset date of disability of November 25, 2011, through the date of the decision.
R. at 7-23. Plaintiff sought review of this decision by the Appeals Council, which denied
Plaintiff’s request for review on November 5, 2015. R. at 1-6. 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 January 7, 2016, 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 October 17, 2012, a state agency consultant, Maurice Prout, Ph.D., using the
psychiatric review technique (“PRT”) under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated
Plaintiff’s mental impairments under Listing 12.04 relating to affective disorders (R. at 58-59,
68-69). See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. Dr. Prout opined that, under paragraph
B of the applicable listing, Plaintiff’s mental impairments caused her to experience (1) mild
restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning;
(3) mild difficulties in maintaining concentration, persistence, or pace; and (4) one or two
repeated episodes of decompensation of extended duration. R. at 58, 68. Dr. Prout did not find
evidence to establish the presence of the criteria under paragraph C of the applicable listing. R.
at 58, 68. Dr. Prout thus assessed Plaintiff’s mental residual functional capacity (“RFC”) (R. at
61-62, 71-72) and opined that she was moderately limited in her ability to (1) interact
appropriately with the general public; (2) accept instructions and to respond appropriately to
criticism from supervisors; and to (3) get along with co-workers or peers without distracting
them or exhibiting behavioral extremes. Plaintiff otherwise was not significantly limited. R. at
61-62, 71-72.
On November 5, 2012, a state agency medical consultant, A. Serpick, M.D., assessed
Plaintiff’s physical RFC. R. at 59-61, 69-71. Dr. Serpick opined that Plaintiff could (1) lift
and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a
total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour
workday; and (4) perform unlimited pushing and/or pulling. R. at 60, 70. Plaintiff occasionally
3
could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes,
or scaffolds). R. at 60, 70. She had no manipulative, visual, communicative, or environmental
limitations. R. at 60-61, 70-71.
On April 8, 2013, another state agency consultant, E. Nakhuda, M.D., again assessed
Plaintiff’s physical RFC. R. at 82-84, 94-96. Dr. Nakhuda opined that Plaintiff could (1) lift
and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a
total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour
workday; and (4) perform unlimited pushing and/or pulling. R. at 83, 95. Dr. Nakhuda also
opined that Plaintiff occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps
and stairs (but never ladders, ropes, or scaffolds). R. at 83, 95. Plaintiff had no manipulative,
visual, communicative, or environmental limitations. R. at 83-84, 95-96.
On April 9, 2013, another state agency consultant, E. Lessans, Ph.D., again used the PRT
to evaluate Plaintiff’s mental impairments under Listing 12.04. R. at 80-81, 92-93. Dr. Lessans
opined that, under paragraph B of the applicable listing, Plaintiff’s mental impairments caused
her 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 episodes of decompensation of extended duration. R. at
81, 93.
Dr. Lessans did not find evidence to establish the presence of the criteria under
paragraph C of the applicable listing. R. at 81, 93. Dr. Lessans thus assessed Plaintiff’s mental
RFC (R. at 84-85, 96-97) and opined that she was moderately limited in her ability to
(1) maintain attention and concentration for extended periods; (2) 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; (3) interact
4
appropriately with the general public; (4) accept instructions and to respond appropriately to
criticism from supervisors; and to (5) get along with co-workers or peers without distracting
them or exhibiting behavioral extremes. Plaintiff otherwise was not significantly limited. R. at
84-85, 96-97.
B.
Plaintiff’s Testimony
The ALJ summarized Plaintiff’s testimony in his decision:
[Plaintiff] alleges that she is unable to work, due to her physical and
mental impairments. [Plaintiff] testified at the hearing that her joints ache and
swell, so she spends most of her day in bed. She explained that her feet swell
[every day] and this makes it difficult to walk. She went on to contend that she is
unable to lift even three pounds. [Plaintiff], moreover, argued that she lacks
motivation for self-care. Thus, she testified that she does not shower or brush her
teeth for days at a time. The testimony also alleges that she has no friends or
hobbies, but she gets along well with all of her children.
R. at 15; see R. at 28-47.
C.
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, light jobs of officer helper, clerical checker, or unarmed security
guard.2 R. at 48-49. According to the VE, her testimony, with the exception of her testimony
regarding the unarmed security guard position, was consistent with the Dictionary of
Occupational Titles.3 R. at 50. A person with a loss of productivity of over 10% would not be
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). “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).
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);
5
engaging in substantial gainful activity. R. at 50. A person absent from work 1.8 days per
month would not be able to maintain work. R. at 51.
III
Summary of ALJ’s Decision
On August 14, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the amended alleged onset date of disability of November 25, 2011; 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 her past relevant work; but (5) could
perform other work in the national economy, such as an office helper, clerical checker, or
unarmed guard. R. at 12-18. The ALJ thus found that she was not disabled from November 25,
2011, through the date of the decision. R. at 18.
In so finding, the ALJ found that Plaintiff had moderate difficulties in social functioning.
R. at 14.
She testifies at the hearing that she has good relationships with all of her children.
However, she alleges that she has “a lot of tension due to mood swings,” which
causes problems in getting along with family, friends, neighbors, or others [R. at
207.] [Plaintiff] explains that she is “unable to be with people.” [R. at 207.]
R. at 14.
The ALJ also found that Plaintiff had moderate difficulties with regard to concentration,
persistence, or pace. R. at 14. “She reveals on the Function Report that she has difficulties with
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).
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memory and concentration. [R. at 207.] [Plaintiff] adds that manic depression affects her ability
to pay attention and she does not handle changes in routine well. [R. at 207-08.]” R. at 14.
The ALJ then found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
she cannot climb ladders, ropes, and scaffolds. She is unable to crawl and she can
perform all other postural movements on an occasional basis. [Plaintiff] is able to
execute frequent, but not constant, handling, fingering, and feeling. Furthermore,
she can work in unskilled positions with an SVP of 1 to 2, with no more than
occasional and superficial interaction with the public and coworkers. She must
have a stable work environment with no more than occasional change in the work
process from day to day.
R. at 14-15.
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
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-80 (2003). “If at any step a finding of disability or nondisability can be made,
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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.
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
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.
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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
numbers in the national economy, then the Commissioner will find that the claimant is not
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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
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).
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VI
Discussion
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security
Ruling5 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-7,
ECF No. 16-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of her ability to perform the physical and mental demands of work. Id. at 5-7. In
particular, she contends that, although the ALJ determined that she had moderate difficulties
with regard to concentration, persistence, or pace, the ALJ failed to include any limitation on
concentration, persistence, or pace in the RFC assessment.
Id.
According to Plaintiff,
substantial evidence thus does not support the ALJ’s RFC assessment. Id. at 7. 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
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).”
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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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, 826 F.3d 176, 187-88 (4th Cir. 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
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
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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).
Here, the ALJ’s hypothetical question to the VE and the corresponding RFC assessment
limiting Plaintiff to “unskilled positions with an SVP of 1 to 2, with no more than occasional and
superficial interaction with the public and coworkers” (R. at 14-15; see R. at 48) 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 limitation in the ALJ’s hypothetical question and
RFC assessment to “a stable work environment with no more than occasional change in the work
process from day to day” (R. at 15; see R. at 48) accounts for Plaintiff’s moderate limitation in
13
concentration, persistence, or pace, however. See Pearce v. Colvin, No. 2:15-CV-00032-D, 2016
WL 4574446, at *4 (E.D.N.C. July 20, 2016), report and recommendation adopted, No. 2:15CV-32-D, 2016 WL 4581329 (E.D.N.C. Sept. 1, 2016). But see Thomas v. Colvin, No. 7:15-CV101-KS, 2016 WL 5408114, at *3 (E.D.N.C. Sept. 28, 2016); Hagedorn v. Colvin, No.
2:12CV85-RLV, 2015 WL 4410288, at *4 (W.D.N.C. July 20, 2015). Plaintiff’s contention that
the ALJ failed to account for her moderate limitation in maintaining concentration, persistence,
or pace in the RFC assessment and hypothetical question to the VE under Mascio thus is
unavailing.
The VE testified, however, that an individual with a loss of productivity of over 10%
could not engage in substantial gainful activity and be able to work. R. at 50. Although “[i]t is
reasonable to assume that [Plaintiff’s] moderate limitations translate into a decrease in
productivity,” Sterling v. Colvin, No. 1:13-CV-01132-SEB, 2014 WL 4328682, at *2 (S.D. Ind.
Aug. 29, 2014), the ALJ’s decision failed to address this issue and to explain how, despite
Plaintiff’s moderate difficulties in social functioning and in maintaining concentration,
persistence, or pace, she could remain productive for at least 90% of the workday. 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.’” Monroe, 826 F.3d at 189 (quoting Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). “If the ALJ believed [Plaintiff’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.” Sterling, 2014 WL 4328682,
at *3. But see Wennersten v. Colvin, No. 12-CV-783-BBC, 2013 WL 4821474, at *3 (W.D. Wis.
14
Sept. 10, 2013) (“Although the administrative law judge did not explain why he chose five
percent instead of two percent or six percent, that lack of precision is not a reason to reverse the
decision. The important point is that the administrative law judge did not find any evidence to
show that plaintiff’s ability to stay on task was impaired to the extent that it would keep him
from working.” (citation omitted)). Because this inadequacy in 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.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 17) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 16) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 16) 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 will issue.
Date: November 18, 2016
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
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