Goode v. Social Security Administration Commissioner

Filing 22

REPORT AND RECOMMENDATIONS, Signed by: Magistrate Judge Stephanie A Gallagher on 6/15/2018. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VERONICA R. GOODE

*
*
v.
*
*
COMMISSIONER, SOCIAL SECURITY1 *
*
*************

Civil Case No. PX-17-833

REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-captioned case has been referred to me to
review 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). [ECF NO. 3]. I have considered the parties’ crossmotions for summary judgment and the accompanying memoranda. [ECF Nos. 18, 21]. I find
that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). This Court must uphold the
decision of the Social Security Administration (“SSA”) if it is supported by substantial evidence
and if the SSA employed proper legal standards. 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).
For the reasons set forth below, I recommend that the Court deny both motions, reverse the
SSA’s decision in part, and remand the case to the SSA for further proceedings in accordance
with this report and recommendations.
Ms. Goode applied for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income Benefits (“SSI”) on September 27, 2011, alleging a disability onset date of September

1

Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are
fulfilled by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not
reserved to the Commissioner of Social Security.

13, 2010.2 (Tr. 152-53, 154-59); see also (Tr. 30). Her application was denied initially on
December 7, 2011, and on reconsideration on October 31, 2013. (Tr. 62-68, 70-79, 81-84, 9192). An Administrative Law Judge (“ALJ”) held a hearing on September 16, 2015, at which Ms.
Goode was represented by counsel. (Tr. 28-57). Following the hearing, the ALJ determined that
Ms. Goode was not disabled within the meaning of the Social Security Act prior to September
16, 2014. (Tr. 11-27). On February 7, 2017, the Appeals Council granted Ms. Goode’s request
for review. (Tr. 1-8). After reviewing the record, the Appeals Council dismissed Ms. Goode’s
“request for hearing dealing with the period on or before April 21, 2011, the date of the previous
ALJ decision; adopt[ed] the finding that [Ms. Goode] was not disabled from April 22, 2011 to
September 15, 2014; and affirm[ed] the finding that [Ms. Goode] is disabled from September 16,
2014 through November 10, 2015 . . . .” (Tr. 5-6). The Appeals Council’s decision constitutes
the final, reviewable decision of the Agency.3
The ALJ found that Ms. Goode suffered from the severe impairments of “residual of
reconstructive surgery of weight bearing joint (right knee), spine disorder, obesity, asthma, and
affective disorder.” (Tr. 17). Despite these impairments, the ALJ determined that Ms. Goode
retained the residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except she should not
be required to stand more than thirty minutes before alternating to sitting for thirty
minutes as she performs the work activity. She should do no climbing of ropes,
ladders, or scaffolds but can perform other postural movements such as stooping
2

Notably, the record in the instant case references several different alleged onset dates. See, e.g., (Tr. 15, 17)
(ALJ’s 2015 decision, stating that the alleged onset date was May 13, 2008); (Tr. 30) (September 16, 2015
administrative hearing transcript, indicating that Ms. Goode’s counsel stated that the alleged onset date was
September 13, 2010); (Tr. 53) (September 16, 2015 administrative hearing transcript, in which the ALJ noted that
Ms. Goode “wishe[d] to have her alleged onset date of September 30, 2010 remain to be the date”); (Tr. 156) (Ms.
Goode’s Disability Insurance Benefits application, in which she alleged a disability onset date of September 13,
2010). For the purposes of this recommendation, I will reference the alleged onset date of September 13, 2010,
which was set forth in Ms. Goode’s application for benefits and referenced during the administrative hearing.
3

While the Appeals Council’s decision is the final administrative decision in this case, Ms. Goode’s argument
focuses on the ALJ’s 2015 decision, which was adopted in part by the Appeals Council.

2

on an occasional basis. She should do no work around dangerous machinery or
unprotected heights and should avoid concentrated exposure to environmental
pollutants. She is precluded from performing complex tasks and, due to
concentration and focus problems, would be off task for five percent of the
workday.
(Tr. 19). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Goode could perform jobs existing in significant numbers in the national economy, and that,
therefore, she was not disabled prior to September 16, 2014. (Tr. 22-23).
On appeal, Ms. Goode raises two arguments, including that: (1) the ALJ erroneously
assessed Ms. Goode’s RFC; and (2) the ALJ erroneously evaluated Ms. Goode’s mental
impairment. Pl. Mot. 3-8. I agree that the ALJ’s RFC analysis was inadequate and, therefore, I
recommend remand. In so recommending, I express no opinion as to whether the ALJ’s ultimate
conclusion that Ms. Goode is not entitled to benefits prior to September 16, 2014 is correct.
First, Ms. Goode contends that the ALJ “failed to provide adequate explanation to
support the limitations assessed in his [RFC] assessment.” Id. at 8. Specifically, Ms. Goode
argues that the ALJ “did not explain, and in fact made no attempt to explain how he arrived at his
conclusions that [Ms. Goode] . . . would be precluded from performing complex tasks, and due
to focus and concentration problems, may be off task five percent of the work day.” Id. at 6.
In Mascio v. Colvin, 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 632, 638 (4th Cir. 2015). 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
3

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 functional 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 Fourth Circuit remanded Mascio because the hypothetical the ALJ posed to the

4

VE—and the corresponding RFC assessment—did not include any mental limitations other than
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 Ms. Goode to have “moderate” difficulties in
maintaining concentration, persistence, or pace. (Tr. 18). The ALJ’s analysis stated:
These [medical] records also show that her concentration and attention can vary
anywhere from “good” to “poor,” with it generally being rated no higher than
“fair.” Considering this in combination with her persistent complaints of pain,
discussed in more detail below, a finding that her concentration, persistence, or
pace is moderately impaired is appropriate.
(Tr. 18-19) (internal citations omitted). Additionally, the ALJ noted that Ms. Goode “has had
documented variances in concentration and attention, as well as notable irritation at times.” (Tr.
21). However, the ALJ next observed that Ms. Goode “has had some success with medication
management, and overall her symptoms have been mild.” Id. The ALJ subsequently concluded

5

that Ms. Goode “should not be expected to perform complex tasks. . . . [and] should be expected
to be off task for around five percent of each day.” Id.
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 [ALJ] hearing and [AC] 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.
Id. § 404.1520a(e)(4).
The analysis provided by the ALJ in the instant case fails to fulfill these requirements.
The ALJ’s discussion of the mental health issues is short and does not reconcile the “documented
variances in concentration and attention” with the statement that “overall her symptoms have
been mild.” (Tr. 21). Without further explanation, I am unable to ascertain whether the ALJ
truly believed that Ms. Goode had moderate difficulties in concentration, persistence, or pace,
instead of mild or no difficulties, and how those difficulties restrict her “from performing
complex tasks and, . . . [require her to] be off task for five percent of the workday.” (Tr. 19).
Indeed, the ALJ’s analysis entirely fails to address Ms. Goode’s pace.

In light of this

inadequacy, I must recommend remand the case to the SSA for further analysis consistent with
6

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 limitation.
Second, Ms. Goode argues that the ALJ “failed to properly evaluate evidence of the
severity of [her] mental impairment, as well as the side effects of her medication.” Pl. Mot. 8.
Because I am recommending remand on other grounds, I need not reach the merits of those
contentions. On remand, the ALJ should assess the evidence related to Ms. Goode’s mental
impairment, including the side effects of her medication, and support his determination with
substantial evidence.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment [ECF No. 21];
2. the Court DENY Plaintiff’s Motion for Summary Judgment [ECF No. 18];
3. the Court REVERSE IN PART the SSA’s decision under sentence four; and
4. the Court order the Clerk to REMAND the case to the SSA for further proceedings and
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) 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

7

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: June 15, 2018

/s/
Stephanie A. Gallagher
United States Magistrate Judge

8