Thomas v. Colvin

Filing 19

ORDER denying 15 Motion for Summary Judgment; denying 18 Motion for Summary Judgment ; The case is REMANDED. Signed by Magistrate Judge Stephanie A Gallagher on 3/29/2017. (kw2s, 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 29, 2017
LETTER TO COUNSEL
RE:

Rosita Thomas v. Commissioner, Social Security Administration;
Civil No. SAG-16-1229

Dear Counsel:
On April 26, 2016, Plaintiff Rosita Thomas petitioned this Court to review the Social
Security Administration’s (“SSA”) final decision to deny her claims for Supplemental Security
Income (“SSI”) and Disability Insurance Benefits (“DIB”). (ECF No. 1). I have considered the
parties’ cross-motions for summary judgment. (ECF Nos. 15, 18). 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.
Ms. Thomas filed her claims for benefits in December, 2009, alleging a disability onset
date of April 11, 2003. (Tr. 300-05). Her claims were denied initially and on reconsideration.
(Tr. 172-79, 186-89). A hearing was held on Novmeber 22, 2011, before an Administrative Law
Judge (“ALJ”). (Tr. 56-92). Following the hearing, the ALJ determined that Ms. Thomas was
not disabled within the meaning of the Social Security Act. (Tr. 149-64). On April 16, 2013, the
Appeals Council (“AC”) issued a decision remanding the case for further consideration. (Tr.
165-69). A second hearing was held on April 1, 2014. (Tr. 93-144). Following that hearing, the
ALJ again determined that Ms. Thomas was not disabled. (Tr. 37-55). This time, the AC denied
Ms. Thomas’s request for review, (Tr. 7-12), so the ALJ’s 2014 decision constitutes the final,
reviewable decision of the Agency.
In that decision, the ALJ found that Ms. Thomas suffered from the severe impairments of
“seizure disorder, major depressive disorder, diabetes, obesity, degenerative disc disease, and
hypertension.” (Tr. 43). Despite these impairments, the ALJ determined that Ms. Thomas
retained the residual functional capacity (“RFC”) to:
perform light work, as defined in 20 CFR 404.1567(b) and 416.967(b), including
the ability to occasionally lift and/or carry 20 pounds; frequently lift and/or carry
10 pounds; stand and/or walk for a total of six hours in an eight-hour workday; sit
for a total of six hours in an eight-hour workday; push and/or pull, including the

Rosita Thomas v. Commissioner, Social Security Administration
Civil No. SAG-16-1229
March 29, 2017
Page 2
operation of hand and/or foot controls, as much as they can lift and/or carry;
occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds;
occasionally balance, stoop, kneel, and crouch; never crawl; no exposure to
hazards such as unprotected heights or moving mechanical parts; retains the
ability to understand, remember and carry out instructions concerning simple
tasks; occasional interaction with coworkers; no interaction with the general
public; can make simple decisions constantly and complex decisions occasionally.
(Tr. 44-45). After considering the testimony of a vocational expert (“VE”), the ALJ determined
that Ms. Thomas could perform jobs existing in significant numbers in the national economy and
that, therefore, she was not disabled. (Tr. 49-50).
Ms. Thomas raises several arguments on appeal: (1) that the ALJ committed error under
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015); and (2) that the ALJ did not adequately explain
his assignments of weight to various medical sources. I concur that the ALJ committed an error
under Mascio, and remand is therefore appropriate. In so holding, I express no opinion regarding
whether the ALJ’s ultimate conclusion that Ms. Thomas is not disabled is correct or incorrect.
In Mascio, the Fourth Circuit 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.” 780 F.3d at 638 (internal
quotation marks and citations omitted) (joining the Third, Seventh, Eighth, and Eleventh
Circuits). The Fourth Circuit indicated that an ALJ might cure his error by explaining why a step
three finding of a moderate difficulty in concentration, persistence, or pace does not translate into
a limitation in a claimant’s RFC. Id. Like in Mascio, the ALJ in this case determined at step
three that Ms. Thomas suffered from moderate difficulties in concentration, persistence, or pace,
but in assessing Ms. Thomas’s RFC, the ALJ stated that she “retains the ability to understand,
remember and carry out instructions concerning simple tasks[,]…can make simple decisions
constantly and complex decisions occasionally.” (Tr. 44, 45).
As in other cases confronted by this Court in the wake of Mascio, it seems entirely
possible that the ALJ may have erred by finding moderate, rather than mild or no, difficulties at
step three. See, e.g., Powell v. Colvin, Civil No. SAG-14-3233 (D. Md. Jun. 12, 2015). The
ALJ’s sole proffered reason for finding moderate difficulties (specifically “intermittent reports of
medication side effects such as tiredness”) seems to support the notion that Ms. Thomas has only
mild problems sustaining concentration. (Tr. 44). However, the ALJ’s RFC analysis did not
specifically address his evaluation of Ms. Thomas’s ability to sustain concentration, despite
noting that two State agency psychological consultants found “moderate limitations in sustained
concentration and persistence.” (Tr. 48). While the Commissioner suggests that any Mascio
error would be harmless, the discussion is simply insufficient to allow me to assess how the ALJ
reconciled the apparently contradictory evidence regarding Ms. Thomas’s ability to work
consistently over an eight-hour workday. See Mascio, 780 F.3d at 637 (declining to hold that the
ALJ’s lack of reasoning constituted harmless error “[b]ecause we are left to guess about how the

Rosita Thomas v. Commissioner, Social Security Administration
Civil No. SAG-16-1229
March 29, 2017
Page 3
ALJ arrived at his conclusions”). I must therefore remand the case to the Commissioner for
further analysis consistent with the Fourth Circuit’s mandate in Mascio.
With respect to the assignments of weight to the medical sources, while they would not
likely have justified remand standing alone, I note that the ALJ’s analysis is not extensive. For
example, as to the State agency consultants, the ALJ assigned them “limited weight” because
“they did not have the benefit of viewing the complete record or interviewing the claimant”
without explaining how those steps might have altered their conclusions. (Tr. 48). On remand,
then, the ALJ should review the assignment of weight to each medical source and determine
whether further explanation is warranted.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (ECF No. 15)
is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 18) 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