Jaques v. Colvin

Filing 22

MEMORANDUM AND ORDER denying Plaintiff's 17 Motion for Summary Judgment; denying Defendant's 21 Motion for Summary Judgment; reversing the Commissioner's judgment in part; remanding case for further proceedings; closing case. Signed by Magistrate Judge Stephanie A Gallagher on 2/20/2018. (dass, 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]

February 20, 2018
LETTER TO COUNSEL
RE:

Christopher Ray Jaques v. Commissioner, Social Security Administration;
Civil No. SAG-17-265

Dear Counsel:
On January 31, 2017, Plaintiff Christopher Ray Jaques petitioned this Court to review the
Social Security Administration’s final decision to deny his claim for Disability Insurance
Benefits. [ECF No. 1]. I have considered the parties’ cross-motions for summary judgment.
[ECF Nos. 17, 21]. 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. Jaques protectively filed his claim for benefits on May 27, 2014, alleging a disability
onset date of May 15, 2009. (Tr. 113-16). His claim was denied initially and on reconsideration.
(Tr. 53-80). A hearing was held on April 29, 2015, before an Administrative Law Judge
(“ALJ”). (Tr. 30-52). Following the hearing, on August 25, 2016, the ALJ determined that Mr.
Jaques was not disabled within the meaning of the Social Security Act during the relevant time
frame. (Tr. 12-29). The Appeals Council denied Mr. Jaques’s request for further review, (Tr. 15), so the ALJ’s decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Mr. Jaques suffered from the severe impairments of “Post-Traumatic
Stress Disorder (PTSD), panic attacks/anxiety, depression, lumbosacral degenerative disc
disease, disturbance of skin sensation, obesity, and obstructive sleep apnea.” (Tr. 18). Despite
these impairments, the ALJ determined that Mr. Jaques retained the residual functional capacity
(“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) except he could perform no
more than occasional bending, stooping, and crouching; he had to avoid operating
motor vehicles; he had to avoid climbing ladders and scaffolds; he was limited to
routine, repetitive tasks; and he had to avoid direct interaction with the general
public.
(Tr. 20). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Jaques could perform several jobs existing in significant numbers in the national economy.
(Tr. 23-24). Accordingly, the ALJ found that Mr. Jaques was not disabled. (Tr. 24-25).

Christopher Ray Jaques v. Commissioner, Social Security Administration;
Civil No. SAG-17-265
February 20, 2018
Page 2
Mr. Jaques raises several arguments in support of his appeal: (1) that the ALJ’s opinion
violated Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) by failing to ascribe RFC restrictions to
address Mr. Jaques’s moderate limitations in concentration, persistence, or pace; (2) that the ALJ
failed to evaluate the effects of Mr. Jaques’s daytime somnolence; and (3) that the ALJ failed to
explain his assignment of substantial weight to the disability rating by the Department of
Veterans Affairs (“VA”), as required by Bird v. Commissioner of Social Security Administration,
699 F.3d 337 (4th Cir. 2012). I concur with Mr. Jaques’s arguments.
First, 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. 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, Subpt. P, App. 1 § 12.00. The relevant listings therein consist 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. § 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.
§ 404.1620a(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). 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

Christopher Ray Jaques v. Commissioner, Social Security Administration;
Civil No. SAG-17-265
February 20, 2018
Page 3
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. 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. Although 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, it held that absent such an explanation,
remand was necessary. Id.
In the instant case, the ALJ found that, Mr. Jaques has “moderate difficulties” in
concentration, persistence, or pace “as he had problems with maintaining focus and problems
with short-term memory due to both his mental impairments and side effects of medications.”
(Tr. 19). According to 20 C.F.R. § 404.1520a(c)(2), the rating of “moderate difficulties” is
supposed to represent the result of application of the following technique:
We will rate the degree of your functional limitation based on the extent to
which your impairment(s) interferes with your ability to function independently,
appropriately, effectively, and on a sustained basis. Thus, we will consider such
factors as the quality and level of your overall functional performance, any
episodic limitations, the amount of supervision or assistance you require, and the
settings in which you are able to function.
20 C.F.R. § 404.1520a(c)(2). Once the technique has been applied, the ALJ is supposed to
include the results in the opinion as follows:
At the administrative law judge hearing and Appeals Council levels, the written
decision must incorporate the pertinent findings and conclusions based on the
technique. The decision must show the significant history, including examination
and laboratory findings, and the functional limitations that were considered in
reaching a conclusion about the severity of the mental impairment(s). The
decision must include a specific finding as to the degree of limitation in each of
the functional areas described in paragraph (c) of this section.
20 C.F.R. § 404.1520a(e)(4). The cursory analysis provided by the ALJ in Mr. Jaques’s case
fails to fulfill these requirements. Without further explanation, I am unable to ascertain whether
the ALJ truly believed Mr. Jaques to have moderate difficulties in concentration, persistence, and
pace, instead of mild or no difficulties, and how those difficulties restrict his RFC to “routine,
repetitive tasks.” (Tr. 20). Indeed, the ALJ’s analysis entirely fails to address Mr. Jaques’s
ability to sustain work over an eight-hour workday. The evidence cited in the Commissioner’s

Christopher Ray Jaques v. Commissioner, Social Security Administration;
Civil No. SAG-17-265
February 20, 2018
Page 4
brief suggests that, perhaps, a finding of mild or no difficulties might be more appropriate, but
does not reconcile the finding of a moderate limitation with a lack of restriction in the RFC
assessment. Def. Mot. 7-8. 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 consider the appropriate level of limitation in the area of concentration,
persistence, or pace and, if a moderate limitation is again found, should explain the reasons for
that finding in order to permit an adequate evaluation of the moderate limitation under the
dictates of Mascio. In remanding for additional explanation, I express no opinion as to whether
the ALJ’s ultimate conclusion that Mr. Jaques is not entitled to benefits is correct.
Second, Mr. Jaques contends that the ALJ did not adequately consider his daytime
somnolence. Pl. Mot. 6. While the Commissioner suggests that the ALJ accounted for daytime
somnolence by prohibiting Mr. Jaques from operating motor vehicles and from climbing ladders
and scaffolds, Def. Mot. 11, daytime somnolence could also have a significant impact on Mr.
Jaques’s ability to sustain concentration, persistence, or pace. Accordingly, in light of the
Mascio argument above, remand on this issue is also warranted.
Finally, Mr. Jaques argues that the ALJ’s evaluation of the VA disability rating decision
was deficient. Pl. Mot. 6-8. The ALJ asserted that he gave Mr. Jaques’s VA disability rating
“substantial weight” as required by Bird. However, the ALJ’s opinion does not explain why,
after giving “substantial weight” to a disability rating finding, in relevant part, 20% disability for
cervical radiculopathy in each upper extremity and 100% unemployability, the ALJ concluded
that “the appropriate limitations related to the impairments have been incorporated into the
[RFC] described above.” (Tr. 23). The RFC assessment in this case clearly renders Mr. Jaques
employable, and incorporates no limitations to address his use of his upper extremities. On
remand, the ALJ should provide a more comprehensive explanation of how his assignment of
“substantial weight” to the VA disability rating translates into the RFC assessment he
determines.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment [ECF No. 17]
is DENIED, and Defendant’s Motion for Summary Judgment [ECF No. 21] 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