Mims v. Commissioner of Social Security
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 8/28/2017. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RANI E. MIMS,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Civil No. TMD 16-2813
MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Rani E. Mims seeks judicial review under 42 U.S.C. § 405(g) of a final decision
of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying her
application for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment and alternative motion for
remand (ECF No. 13), Defendant’s Motion for Summary Judgment (ECF No. 16), and Plaintiff’s
“Reply Brief” (ECF No. 19).2 Plaintiff contends that the administrative record does not contain
substantial evidence to support the Commissioner’s decision that she is not disabled. No hearing
On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
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.
is necessary. L.R. 105.6. For the reasons that follow, Plaintiff’s alternative motion for remand
(ECF No. 13) is GRANTED.
Plaintiff was born in 1970, has a college education, and previously worked as a flight
attendant, computer security specialist, and user support specialist. R. at 29, 193. Plaintiff
protectively filed an application for DIB on May 28, 2015, alleging disability beginning on
January 1, 2013, due to adjustment disorder, depressive disorder, sleep disorder, radiculopathy,
and degenerative joint disease. R. at 19, 158-59, 192. The Commissioner denied Plaintiff’s
application initially and again on reconsideration, so Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. at 67-99, 104, 108-11. On February 16, 2016, ALJ
Francine L. Applewhite held a hearing in Washington, D.C., at which Plaintiff and a vocational
expert (“VE”) testified. R. at 36-66. On March 30, 2016, the ALJ issued a decision finding
Plaintiff not disabled from the alleged onset date of disability of January 1, 2013, through the
date of the decision. R. at 16-35. Plaintiff sought review of this decision by the Appeals
Council, which denied Plaintiff’s request for review on June 23, 2016. R. at 1-6, 2495-2511.
The ALJ’s decision thus became the final decision of the Commissioner.
See 20 C.F.R.
§ 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 2083 (2000).
On August 9, 2016, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. After the parties consented, this case was transferred to a United
States Magistrate Judge for final disposition and entry of judgment.
The case then was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
Summary of Evidence
Plaintiff’s Disability Rating from the Department of Veterans Affairs
On May 19, 2015, the Department of Veterans Affairs (the “VA”) found Plaintiff’s
overall or combined disability rating to be 90%, effective January 1, 2013. R. at 187. The VA
found Plaintiff to be “[t]otally disabled as a result of a service-connected disability and the
inability to secure or follow a substantially gainful occupation, evaluated at 100%,” effective
January 8, 2015. R. at 181; see R. at 187. The VA found Plaintiff to be entitled to individual
unemployability effective January 1, 2013, because she was “unable to secure or follow a
substantially gainful occupation as a result of service-connected disabilities.” R. at 185; see 38
C.F.R. § 4.16(a).
State Agency Medical Consultants
On July 22, 2015, a state agency consultant, A. Serpick, M.D., assessed Plaintiff’s
physical residual functional capacity (“RFC”). R. at 73-74. Dr. Serpick opined that Plaintiff
could (1) lift and/or carry fifty pounds occasionally and twenty-five 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 73. Dr. Serpick
further opined that, although she only occasionally could climb ladders, ropes, and scaffolds,
Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 74.
On July 29, 2015, a state agency consultant, D. Walcutt, Ph.D., using the psychiatric
review technique (“PRT”) under 20 C.F.R. § 404.1520a, evaluated Plaintiff’s mental
impairments under Listings 12.04 and 12.06 relating to affective disorders and anxiety-related
disorders (R. at 71-72). See 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04, 12.06. Dr. Walcutt
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 repeated episodes of decompensation of extended
duration. R. at 71. Dr. Walcutt did not find evidence to establish the presence of the criteria
under paragraph C of the applicable listing. R. at 72. Dr. Walcutt thus assessed Plaintiff’s
mental RFC (R. at 74-76) and opined that she was moderately limited in her ability to
(1) maintain attention and concentration for extended periods; (2) work in coordination with or in
proximity to others without being distracted by them; (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; (4) accept
instructions and to respond appropriately to criticism from supervisors; (5) maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness; and to
(6) respond appropriately to changes in the work setting.
Plaintiff otherwise was not
significantly limited. R. at 75-76.
In assessing Plaintiff’s mental RFC, Dr. Walcutt opined:
[Plaintiff] functions in a generally independent fashion and can meet various
personal needs from a mental standpoint. [Plaintiff] is capable of completing
daily living functions within the constraints of mental and cognitive status. This
individual manages within a basic routine. A/C fluctuates at times due to the
effects of the conditions. [Plaintiff] appears to have the ability to interact and
relate with others socially. [Plaintiff] can adequately negotiate in the general
community. [Plaintiff] retains the capacity to perform simple tasks from a mental
R. at 76.
On November 4, 2015, another state agency consultant, Janet Anguas-Keiter, Psy.D.,
again used the PRT to evaluate Plaintiff’s mental impairments under Listings 12.04 and 12.06.
R. at 86-87.
Dr. Anguas-Keiter 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 86. The consultant did not find evidence to establish the presence of
the criteria under paragraph C of the applicable listing. R. at 86. Dr. Anguas-Keiter ultimately
affirmed Dr. Walcutt’s assessment of Plaintiff’s mental RFC. R. at 89-92.
On November 9, 2015, another state agency consultant, W. Hakkarinen, M.D., again
assessed Plaintiff’s physical RFC. R. at 88-89. Dr. Hakkarinen 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 eighthour workday; and (4) perform unlimited pushing and/or pulling. R. at 88. Dr. Hakkarinen also
opined that, although she only occasionally could climb ladders, ropes, and scaffolds, Plaintiff
had no manipulative, visual, communicative, or environmental limitations. R. at 89.
The ALJ summarized Plaintiff’s testimony in her decision:
In [Plaintiff’s] testimony, she stated that she has severe social function limitations
and her medical records support these assertions [R. at 1352-56, 1360-63, 13711924, 2194-2494]. However, . . . she has not always been compliant with
prescribed medications [R. at 1352-56]. She noted that she attends psychological
therapy only once every three months despite having paid healthcare and while
she claimed to have severe social limitations, she admitted that she goes to her
Synagogue every Saturday and to the gym every day. She further testified that
her concentration is so limited that she could not watch a television program, but
she drives a car and travels to distant places independently. Physically, she cited
severe pain with lifting and postural maneuvers, but again, she exercises daily and
has treated her pain symptoms very conservatively with physical therapy and
medications. She also stated that despite her alleged physical limitations, she has
recently vacationed in California, India, and Israel.
R. at 27-28; see R. at 42-60.
The VE testified that a hypothetical individual with the same age, education, and work
experience as Plaintiff and with the RFC outlined below in Part III could not perform Plaintiff’s
past work but could perform the light jobs of inspector, housekeeper, or packer.3 R. at 62-64.
Such an individual who would be able to remain on task only 95% of an eight-hour workday
would remain able to perform these jobs. R. at 64. An individual who was off task 20% or more
of an eight-hour workday could not perform any work, however. R. at 64. According to the VE,
her testimony, with the exception of her testimony regarding the percentages of time off task,
was consistent with the Dictionary of Occupational Titles.4 R. at 64. A person absent from work
two to three days per month would not be able to maintain work. R. at 65. A person requiring
two additional breaks in the morning and two additional breaks in the afternoon would not be
able to maintain work. R. at 65.
Summary of ALJ’s Decision
On March 30, 2016, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of January 1, 2013; and (2) had an
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
“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). “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).
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 inspector, housekeeper, or packer. R. at
21-30. The ALJ thus found that she was not disabled from January 1, 2013, through the date of
the decision. R. at 30.
In so finding, the ALJ found that Plaintiff had moderate difficulties with regard to
concentration, persistence, or pace. R. at 22. “She cited problems with memory, completing
tasks, concentration, understanding, following instructions, and handling stress or changes in
routine in her function reports, but she also noted that she had no problems handling her personal
finances, enjoyed reading, and could concentrate well enough to drive a car without issues[.]” R.
at 22 (citing R. at 218-30, 240-52).
The ALJ then found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except occasional
climbing of ladders, ropes, scaffolds, stairs, or ramps; occasional stooping,
crouching, crawling, or kneeling; work in a low stress job defined as occasional
interaction with the public, co-workers, or supervisors and able to remain on task
95% or more of an eight-hour workday.
R. at 23.
The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [her] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent with the evidence
for the reasons explained in this decision.” R. at 24. The ALJ gave “little weight” to Plaintiff’s
100% disability rating from the VA because “the ultimate issue of disability for the Social
Security Administration is reserved to the Commissioner,” because disability determinations of
other governmental agencies “are not entitled to any particular weight in determining disability
for Social Security purposes,” and because the “VA criteria differ from the Social Security
Administration criteria in regards to what constitutes a finding of disability.” R. at 28 (citing 20
C.F.R. § 404.1527(e); Social Security Ruling 06-3p).5 R. at 28. The ALJ gave the opinions of
the state agency psychological consultants “great weight” because they were consistent with the
medical evidence. R. at 28.
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.”
§§ 423(d)(2)(A), 1382c(a)(3)(B).
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
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,
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.
§§ 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).6
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,
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.
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
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.”
§§ 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),
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
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
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).
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).
Plaintiff contends that the ALJ’s RFC assessment does not account for her moderate
limitations in maintaining concentration, persistence, or pace. Pl.’s Mem. Supp. Mot. Summ. J.
8-11, ECF No. 13-1. Plaintiff further asserts that the ALJ erred in failing to evaluate her 100%
service-connected disability and individual unemployability ratings. Id. at 3-8. Plaintiff also
maintains that the ALJ erred in failing to evaluate properly the opinions of Plaintiff’s treating
sources. Id. at 11-22. Plaintiff finally argues that the ALJ erred in assessing her credibility. Id.
at 22-23. As discussed below, because inadequacy of the ALJ’s analysis frustrates meaningful
review, the Court remands this case for further proceedings.
Social Security Ruling 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
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
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 “a low stress job defined as occasional interaction with the public, coworkers, or supervisors” (R. at 23; see R. at 62-63) 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’s decision, moreover, fails to explain how, despite
Plaintiff’s moderate difficulties in maintaining concentration, persistence, or pace, she would be
able to “remain on task 95% or more of an eight-hour workday.” R. at 23, 28. Remand under
the fourth sentence of 42 U.S.C. § 405(g) is warranted here 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). While “there is no rigid requirement that the ALJ specifically refer to every
piece of evidence in [her] 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 [her] conclusion,’” which the
ALJ did not do so here. Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000)). An ALJ’s failure to do so constitutes reversible error. Lewis v. Berryhill, 858
F.3d 858, 868 (4th Cir. 2017).
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.
Plaintiff further contends that the ALJ erred by failing to evaluate her disability and
unemployability ratings by the VA. Pl.’s Mem. Supp. Mot. Summ. J. 3-8, ECF No. 13-1.
Although the ALJ gave “little weight” to the VA’s disability rating (R. at 28), the Fourth Circuit
recognizes that “both the VA and Social Security programs serve the same governmental
purpose of providing benefits to persons unable to work because of a serious disability.” Bird v.
Comm’r of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012) (citing McCartey v. Massanari,
298 F.3d 1072, 1076 (9th Cir. 2002)). “Both programs evaluate a claimant’s ability to perform
full-time work in the national economy on a sustained and continuing basis; both focus on
analyzing a claimant’s functional limitations; and both require claimants to present extensive
medical documentation in support of their claims.” Id. (quoting McCartey, 298 F.3d at 1076).
“Because the purpose and evaluation methodology of both programs are closely related, a
disability rating by one of the two agencies is highly relevant to the disability determination of
the other agency.”
Thus, “in making a disability determination, the SSA must give
substantial weight to a VA disability rating,” but “an ALJ may give less weight to a VA
disability rating when the record before the ALJ clearly demonstrates that such a deviation is
Here, other than citing § 404.1527(e) and Social Security Ruling 06-3p, the ALJ does not
provide “persuasive, specific, valid reasons” for giving less weight to the VA’s disability rating
“that are supported by the record.” McCartey, 298 F.3d at 1076; see Chambliss v. Massanari,
269 F.3d 520, 522 (5th Cir. 2001) (per curiam) (ALJ must adequately explain valid reasons for
not giving great weight to VA rating). “This is improper, and the Court finds that remand on this
ground is also proper – particularly where the case is being remanded on other issues – so that
the ALJ can fully consider the VA’s ultimate finding that [Plaintiff] was 100% disabled.”
Caincross v. Colvin, No. 115CV01637JMSMPB, 2016 WL 3882024, at *7 (S.D. Ind. July 15,
Further, the ALJ “neglected to address the VA’s [total disability, individual
unemployability] determination and its individualized assessment that [Plaintiff] was unable to
secure or follow a course of substantial, gainful work due to that disability.” Lee v. Colvin, No.
2:16CV61, 2016 WL 7404722, at *7 (E.D. Va. Nov. 29, 2016), report and recommendation
adopted, No. 2:16-CV-61, 2016 WL 7404698 (E.D. Va. Dec. 21, 2016). The Court “cannot
determine if findings are unsupported by substantial evidence unless the [Commissioner]
explicitly indicates the weight given to all of the relevant evidence.” Gordon v. Schweiker, 725
F.2d 231, 235 (4th Cir. 1984).
Thus, “[i]n failing to consider the VA’s [total disability,
individual unemployability] determination, the ALJ committed a legal error and violated Bird’s
requirement to attribute substantial weight to VA disability determinations or provide cogent
reasons for declining to do so.” Lee, 2016 WL 7404722, at *7. Because this error was not
harmless, see id. at *8-9, remand is warranted on this ground as well, and the Court need not
address Plaintiff’s remaining arguments. See Bird, 699 F.3d at 342 n.3 (concluding that ALJ
committed error of law and declining to address ALJ’s credibility findings or likely weight of
evidence on remand).
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 16) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 13) is GRANTED. Defendant’s final decision is
REVERSED 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: August 28, 2017
Thomas M. DiGirolamo
United States Magistrate Judge
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