Travis v. Social Security Administration

Filing 19

REPORT AND RECOMMENDATIONS re 17 MOTION for Summary Judgment filed by Social Security Administration Signed by: Judge Magistrate Judge Stephanie A Gallagher. Signed by Magistrate Judge Stephanie A Gallagher on 3/28/2017. (ah4s, Deputy Clerk) Modified on 3/28/2017 (c/m 3/28/2017 ah4s, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SALANNA BUSH TRAVIS

*
*
v.
*
Civil Case No. PWG-16-1867
*
COMMISSIONER, SOCIAL SECURITY
*
*
*************
REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-referenced case has been referred to me
for review of the parties’ dispositive motions and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). The Plaintiff, Salanna Bush Travis, who is
appearing pro se, did not file a motion for summary judgment and did not respond to the
Commissioner’s Motion for Summary Judgment.1
pending Motion for Summary Judgment.

I have considered the Commissioner’s

[ECF No. 17].

This Court must uphold the

Commissioner’s decision if it is supported by substantial evidence and if proper legal standards
were employed. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). I find that no hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the reasons set forth below, I recommend that the
Commissioner’s motion be denied, the decision of the Commissioner be reversed in part, and the
case be remanded pursuant to sentence four of 42 U.S.C. § 405(g).
Ms. Travis protectively filed her applications for disability insurance benefits and
disabled widow’s benefits, alleging a disability onset date of July 31, 2011. (Tr. 161-69). Her
applications were denied initially and on reconsideration. (Tr. 80-93, 96-111). A hearing was
held on September 29, 2014. (Tr. 42-77). After the hearing, the Administrative Law Judge
1

On February 24, 2017, this Court sent Ms. Travis a Rule 12/56 letter, informing her that she had seventeen (17)
days to respond to the Commissioner’s Motion for Summary Judgment. [ECF No. 18].

(“ALJ”) issued an opinion denying benefits. (Tr. 21-41).

The Appeals Council (“AC”) denied

review, making the ALJ’s decision the final, reviewable decision of the Agency. (Tr. 1-7).
The ALJ found that, during the relevant time frame, Ms. Travis suffered from the severe
impairments of “degenerative joint disease in the left knee, degenerative disc disease of the
cervical spine, Lyme disease, depressive disorder, and anxiety disorder.” (Tr. 28). Despite these
impairments, the ALJ determined that Ms. Travis retained the residual functional capacity
(“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b), with the following
limitations: only occasional lifting and/or carrying of a maximum of 20 pounds;
lifting and carrying 10 pounds or less on a frequent basis; standing/walking six
hours in an eight-hour workday; sitting six hours in an eight-hour workday;
frequent climbing of ramps/stairs; only occasional climbing of ladders and
scaffolds; frequent balancing, kneeling, stooping, crouching, and crawling. The
claimant’s pushing, pulling, and operation of hand and foot controls is limited to
10 pounds of force on a frequent basis and 20 pounds of force on an occasional
basis. The claimant retains the ability to understand, remember and carry out
instructions concerning simple, routine tasks on a constant basis. The claimant
retains the ability to understand, remember, and carry out instructions concerning
complex tasks on a frequent basis. Finally, the claimant is able to constantly
make simple decisions, frequently make complex decisions, and frequently
interact with supervisors, coworkers, and the public.
(Tr. 29-30). After considering testimony from a vocational expert (“VE”), the ALJ determined
that there were jobs existing in significant numbers in the national economy that Ms. Travis
could perform. (Tr. 35-36). Therefore, the ALJ concluded that Ms. Travis was not disabled.
(Tr. 36).
I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart,
386 F. Supp. 2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review
of a pro se action challenging an adverse administrative decision, including: (1) examining
whether the Commissioner’s decision generally comports with regulations, (2) reviewing the
ALJ’s critical findings for compliance with the law, and (3) determining from the evidentiary
2

record whether substantial evidence supports the ALJ’s findings). For the reasons described
below, while substantial evidence supports some portions of the ALJ’s decision, the analysis is
deficient under the recent Fourth Circuit opinions in Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015) and Fox v. Colvin, 632 Fed. App’x 750, 2015 WL 9204287 (4th Cir. Dec. 17, 2015).
Accordingly, I recommend remand.
At step one, the ALJ found in Ms. Travis’s favor that she had not engaged in substantial
gainful activity since her alleged onset date, and that she met the non-disability requirements for
disabled widow’s benefits. (Tr. 28). At step two, the ALJ found the severe impairments listed
above. Id. The ALJ found no non-severe impairments. Id.
At step three, the ALJ specifically considered physical Listings 1.02 and 1.04, but
concluded that Ms. Travis did not allege or establish that either Listing had been met or equaled.
Id. The ALJ also applied the special technique for evaluation of mental impairments to consider
Listings 12.04 and 12.06. (Tr. 28-29). The ALJ concluded, among other findings, that Ms.
Travis had moderate difficulties in concentration, persistence, or pace. (Tr. 29).
In considering the appropriate RFC assessment, the ALJ analyzed the medical evidence
derived from treatment notes and consultative examinations, including the results of objective
testing. (Tr. 30-33). The ALJ summarized the types of treatment Ms. Travis has received,
including relatively mild objective findings, and specifically noted that her orthopedic surgeon
had stated that she would “need to return [to work] in some capacity.” (Tr. 32). The ALJ further
noted improvement with iontophoresis and physical therapy. Id. With respect to mental health
issues, the ALJ noted that the opinion from a licensed clinical social worker did not constitute an
acceptable medical source, was not based on a lengthy treatment relationship, and was

3

uncorroborated by other record evidence. (Tr. 34). The ALJ concluded, following the analysis,
that Ms. Travis’s assertions were not entirely credible. Id.
Continuing at step four, the ALJ found that Ms. Travis was unable to perform her past
relevant work as a bus attendant, call center worker, and real estate worker. (Tr. 35). At step
five, the ALJ posed hypotheticals to the VE to determine whether a person with each set of
hypothetical criteria would be able to find work. (Tr. 66-73). Ultimately, the ALJ determined
that Ms. Travis’s RFC matched one of the hypotheticals he had posed. (Tr. 69-71). The VE
cited several jobs in response to that hypothetical, and the ALJ relied on that VE testimony in his
opinion. (Tr. 71, 35-36).
The function of this Court is not to review Ms. Travis’s claims de novo or to reweigh the
evidence of record. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) (citing 42 U.S.C.
§ 405(g) and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather, this Court is to
determine whether, upon review of the whole record, the Commissioner’s decision is supported
by substantial evidence and a proper application of the law. See Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990); see also 42 U.S.C. § 405(g). I am unable to recommend that finding here.
While this case was pending, the Fourth Circuit issued its opinion in Mascio, a Social
Security appeal in the Eastern District of North Carolina. In Mascio, the Fourth Circuit
determined that remand was warranted for several reasons, including a discrepancy between the
ALJ’s finding at step three concerning the claimant’s limitation in concentration, persistence, and
pace, and his RFC assessment. 780 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,

4

Subpt. P, App. 1 § 12.00. Most listings therein consist of: (1) a brief statement describing its
subject disorder; (2) “paragraph A criteria,” which consists of a set of medical findings; and (3)
“paragraph B criteria,” which consists of a set of impairment-related functional limitations. Id.
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,
based on the extent to which the claimant’s impairment “interferes with [the claimant’s] ability
to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. §
404.1520a(c)(2). 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.; see 20 C.F.R. § 404.1520a(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, along 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 your ability
to function.” Id. at § 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. at § 12.00(C)(3). Social Security
regulations do not define marked limitations in concentration, persistence, or pace “by a specific
number of tasks that [a claimant is] unable to complete.” Id. The regulations, however, offer

5

little guidance on the meaning of “moderate” limitations in the area of concentration, persistence,
or pace.
The RFC assessment is distinct, but not wholly independent, from the ALJ’s application
of the special technique at step three. In Mascio, the Fourth Circuit voiced its agreement 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 (joining the Third, Seventh, Eighth, and Eleventh Circuits) (citation and
internal quotation marks omitted). The Fourth Circuit explained that “the 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. In so holding, however, the
Fourth Circuit noted the possibility that an ALJ could offer an explanation regarding why a
claimant’s moderate limitation in concentration, persistence, or pace at step three did not
translate into a limitation in the claimant’s RFC assessment, such that the apparent discrepancy
would not constitute reversible error.
In this case, at step three, the ALJ’s analysis consisted, in its entirety, of the following:
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. In this case, the undersigned considered the claimant’s tendency to
constantly reflected [sic] on her physical impairments to the detriment of her
sustained connection.
(Tr. 29). The ALJ does not explain the phrase “sustained connection.” With respect to relevant
limitations in the RFC assessment, the ALJ determined that, “The claimant retains the ability to
understand, remember and carry out instructions concerning simple, routine tasks on a constant
basis.” (Tr. 30). In the RFC analysis, the ALJ says little about concentration, persistence, or
pace, but simply assigns “little weight” to the opinion of Ms. Travis’s treating social worker,
who believed her to have “concentration deficiencies.” (Tr. 33, 34).
6

In light of the ALJ’s finding of moderate limitations in concentration, persistence, or
pace, under Mascio, more analysis is required to justify the lack of an RFC limitation addressing
concentration and persistence. Remand is therefore appropriate. In recommending remand, I
express no opinion as to whether the ALJ’s ultimate conclusion that Ms. Travis is not entitled to
benefits is correct or incorrect.
In addition, in Fox, the Fourth Circuit clarified the evidentiary requirements needed to
support an ALJ’s finding at step three of the sequential evaluation. Step three requires the ALJ to
determine whether a claimant’s impairments meet or medically equal any of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Listings describe each of the major body
system impairments that the Agency “consider[s] to be severe enough to prevent an individual
from doing any gainful activity, regardless of his or her age, education, or work experience.” 20
C.F.R. § 404.1525(a).
In Fox, regarding his findings at step three of the sequential evaluation, the ALJ stated:
Although the claimant has ‘severe’ impairments, they do not meet the criteria of
any listed impairments described in Appendix 1 of the Regulations. (20 CFR,
Subpart P, Appendix 1). No treating or examining physician has mentioned
findings equivalent in severity to the criteria of any listed impairment, nor does
the evidence show medical findings that are equivalent to those of any listed
impairment of the Listing of Impairments. In reaching this conclusion, the
undersigned has considered, in particular, sections 9.00(B)(5) and 11.14.
2015 WL 9204287 at *4. The Fourth Circuit held that the ALJ’s analysis was deficient because it
consisted of conclusory statements and did not include “any ‘specific application of the pertinent
legal requirements to the record evidence.’” Id. (quoting Radford v. Colvin, 734 F.3d 288, 29192 (4th Cir. 2013)). That is, the ALJ did not apply any findings or medical evidence to the
identified disability listings and “offered nothing to reveal why he was making his decision.”

7

Radford, 734 F.3d at 295 (emphasis in original). The Fourth Circuit also rejected the notion that
failure to engage in meaningful analysis at step three could constitute harmless error where the
evidence of record otherwise demonstrated that the claimant did not meet a listing. 2015 WL
9204287, at *4. Rather, the Fox Court emphasized that it is not this Court’s role to “engage[ ] in
an analysis that the ALJ should have done in the first instance,” or “to speculate as to how the
ALJ applied the law to its findings or to hypothesize the ALJ’s justifications that would perhaps
find support in the record.” Id. at *4-*5. The Court noted that it could not conduct a meaningful
review “when there is nothing on which to base a review.” Id. at *4.
The ALJ’s opinion in Ms. Travis’s case is strikingly similar to that in Fox. The opinion
reads:
After considering the medical evidence of record, the undersigned found that no
treating or examining physician has mentioned findings – either singularly or in
combination – equivalent in severity to the criteria to any listed impairment,
including Listings 1.02, 1.04. Additionally, the claimant has not alleged that she
has an impairment that meets or equals any listing.
(Tr. 28). Despite the fact that Ms. Travis’s representative was not arguing that any particular
listing was met or equaled, the ALJ believed that ample evidence warranted identification of two
separate listings. However, the ALJ then provided no discussion of the criteria of those listings.
The opinion thus fails to meet Fox’s requirement of a “specific application of the pertinent legal
requirements to the record evidence,” and I recommend remand for the ALJ to provide an
adequate explanation.2

2

The Commissioner has previously argued that Fox is not binding precedent because it is not a published decision.
Fox is nevertheless indicative of how the Fourth Circuit would likely view an analogous case, as it did in its recent
decision in Brown v. Colvin, 639 Fed. App’x 921, 2016 WL 502918 (4th Cir. Feb. 9, 2016). In Brown, the Court was
presented with a similar step three analysis and echoed its reasoning from Fox. Specifically, the Brown Court stated
“[W]e do not accept Brown’s and the Commissioner’s invitations to review the medical record de novo to discover
facts to support or refute the ALJ’s finding at Step Three, and it was error for the district court to do so.” 2016 WL
502918, at *2.

8

CONCLUSION
For the reasons set forth above, I respectfully recommend that the Court DENY
Defendant’s Motion for Summary Judgment, [ECF No. 17]; REVERSE IN PART the decision of
the Commissioner; REMAND the case to the Commissioner under sentence four of 42 U.S.C. §
405(g) for further proceedings in accordance with this Report and Recommendations; and order
the Clerk to CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b)(2) and Local Rule
301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: March 28, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

9