Lopez v. Berryhill

Filing 14

LETTER OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 10/10/2018. (tds, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE

6500 Cherrywood Lane
Greenbelt, Maryland 20770
Telephone: [phone]

October 10, 2018
LETTER TO COUNSEL:
RE:

Christian Lopez v. Nancy A. Berryhill, Acting Commissioner of Social Security1
Civil No. TJS-17-2315

Dear Counsel:
On August 14, 2017, Plaintiff Christian Lopez (“Mr. Lopez”) petitioned this Court to
review the Social Security Administration’s final decision to deny his claims for disability
insurance benefits (“DIB”). (ECF No. 1.) The parties have filed cross-motions for summary
judgment. (ECF Nos. 12 & 13.) These motions have been referred to the undersigned with the
parties’ consent pursuant to 28 U.S.C. § 636 and Local Rule 301.2 Having considered the
submissions of the parties, I find that no hearing is necessary. See Loc. R. 105.6. This Court must
uphold the decision of the agency if it is supported by substantial evidence and if the agency
employed the proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin, 780
F.3d 632, 634 (4th Cir. 2015). Following its review, this Court may affirm, modify, or reverse
the Acting Commissioner, with or without a remand. See 42 U.S.C. § 405(g); Melkonyan v.
Sullivan, 501 U.S. 89 (1991). Under that standard, I will deny both motions and remand the case
for further proceedings. This letter explains my rationale.
In his application for DIB, Mr. Lopez alleged a disability onset date of January 31, 2013.
(Tr. 202.) His application was denied initially and on reconsideration. (Tr. 177-80, 186-87.) A
hearing was held before an Administrative Law Judge (“ALJ”) on July 14, 2016 (Tr. 70-115),
and the ALJ found that Mr. Lopez was not disabled under the Social Security Act (Tr. 55-65).
The Appeals Council denied Mr. Lopez’s request for review (Tr. 1-6), making the ALJ’s
decision the final, reviewable decision of the agency.
The ALJ evaluated Mr. Lopez’s claim for benefits using the five-step sequential
evaluation process set forth in 20 C.F.R. § 404.1520. At step one, the ALJ found that Mr. Lopez
was not engaged in substantial gainful activity, and had not been engaged in substantial gainful
activity since January 31, 2013. (Tr. 57.) At step two, the ALJ found that Mr. Lopez suffered
from the following severe impairments: opioid dependence, alcohol dependence, post-traumatic
stress disorder, Generalized Anxiety Disorder (GAD), panic disorder, and major depression. (Id.)
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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.
2
This case was originally assigned to Magistrate Judge Stephanie A. Gallagher. On July
10, 2018, the case was reassigned to me.

At step three, the ALJ found that Mr. Lopez’s impairments, separately and in combination, failed
to meet or equal in severity any listed impairment as set forth in 20 C.F.R., Chapter III, Pt. 404,
Subpart P, App. 1 (“Listings”). (Tr. 20.) The ALJ determined that Mr. Lopez retained the
residual functional capacity (“RFC”):
to perform a full range of work at all exertional levels but with the following
nonexertional limitations: he is limited to performing simple, routine tasks. He
can frequently have contact with supervisors, co-workers, and the public. He
would be exposed to occasional changes in the routine work setting. Any time offtask can be accommodated by normal breaks.
(TR. 59.)
At step four, relying on the testimony of a vocational expert, the ALJ determined that Mr.
Lopez was unable to perform past relevant work as salesperson and project manager. (Tr. 63.)
At step five, relying on the testimony of a vocational expert, the ALJ determined that there are
jobs that exist in significant numbers in the national economy that Mr. Lopez can perform,
including industrial cleaner, production helper, and picker/packer. (Tr. 64.) Therefore, the ALJ
found that Mr. Lopez was not disabled under the Social Security Act. (Tr. 65-65.)
Mr. Lopez raises two issues in this appeal. First, he argues that the ALJ did not provide a
sufficient narrative discussion in connection with the RFC assessment. (ECF No. 12-1 at 3-8.)
Second, he argues that the ALJ did not evaluate pertinent evidence about his subjective
complaints. (Id. at 8-11.) After a careful review of the ALJ’s decision and the evidence in the
record, I find that the ALJ did not adequately account for Mr. Lopez’s limitations in
concentration, persistence, and pace in the RFC assessment. Because the ALJ did not properly
assess Mr. Lopez’s RFC, the findings made by the ALJ in reliance on the RFC cannot be said to
be based on substantial evidence. In light of this finding, I decline to address Mr. Lopez’s other
argument.
Mr. Lopez argues that the ALJ’s RFC assessment fails to take into account his limitations
in maintaining concentration, persistence, and pace. (Id. at 13-19.) In support of this argument,
he relies on Mascio, 780 F.3d 632. In Mascio, the Fourth Circuit held 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 (quoting
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). This is because “the
ability to perform simple tasks differs from the ability to stay on task.” Id. Where an ALJ finds
that a claimant has limitations in concentration, persistence, and pace, the ALJ is required to
incorporate these limitations into the claimant’s RFC or explain why they do not “translate into
[such] a limitation.” Id.
In the decision, the ALJ discussed Mr. Lopez’s moderate limitations with regard to
concentration, persistence, and pace as part of the step three analysis:
With regard to concentration, persistence or pace, the claimant has moderate
difficulties.
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(Tr. 58.) The ALJ acknowledged Mr. Lopez’s testimony that he “has difficulty with focus.” (Id.)
The ALJ went on to note that Mr. Lopez has a valid driver’s license, operates a vehicle, watches
sports television for several hours each day, reads material related to Alcoholics Anonymous,
and uses a computer to search for directions. (Id.) The ALJ’s finding that Mr. Lopez has
moderate limitations with regard to concentration, persistence, and pace is supported by
substantial evidence. (See Tr. 88-89, 100, 152-59, 167-69, 171, 250, 269, 724.)
However, the ALJ’s RFC assessment does not account for these moderate limitations.
The RFC assessment limits Mr. Lopez to performing work involving “simple, routine tasks.” (Tr.
59.) Limiting Mr. Lopez to work that involves only “simple, routine tasks” does not account for
his moderate difficulties in concentration, persistence, and pace. See Mascio, 780 F.3d at 638.
Mr. Lopez might be able to perform simple, routine tasks for a short period of time but unable to
sustain his performance for a full workday and workweek. In addition, the ALJ’s finding that
“[a]ny time off-task can be accommodated by normal breaks” (Tr. 59) does not adequately
account for Mr. Lopez’s ability to concentrate and stay on task. See Ludlow v. Comm'r, Soc. Sec.
Admin., No. SAG-15-3044, 2016 WL 4466790, at *2 (D. Md. Aug. 23, 2016) (noting that “the
restriction to working in 2-hour intervals does not adequately account for a moderate limitation
in the ability to stay on task, absent further explanation) (citing SSR 96-9p). The ALJ provided
no explanation for why normal breaks would sufficiently address Mr. Lopez’s concentration and
persistence limitations. Furthermore, the ALJ did not address how Mr. Lopez’s pace limitations
impact his ability to work.
The Commissioner argues that this case is distinguishable from Mascio because the ALJ
“did not merely limit Plaintiff to simple, routine tasks,” as the ALJ “specifically noted that time
off task would be accommodated by normal breaks” and “gave a detailed description of the kinds
of instructions and decisions that Plaintiff could handle given his mental limitations.” (ECF No.
13-1 at 10.) Neither of these statements by the ALJ sufficiently address Mr. Lopez’s moderate
difficulties in concentration, persistence, and pace. The Commissioner cites two cases from this
Court where other judges have found that “even a limitation to just ‘simple, routine, repetitive
work tasks’ suffices under Mascio” so long as the ALJ provides a clear explanation that
additional limitations are not warranted. (Id.) In Dean v. Comm’r, Social Sec. Admin, No. SAG14-1127, 2015 WL 1431548, *1-2 (D. Md. Mar. 26, 2016), Judge Gallagher held that an “ALJ
provided a clear explanation of the reason for assessing a moderate limitation in the first place,
and then a clear explanation of why, despite that moderate limitation, the claimant would not
have issues persisting in a given task.” Claiborne v. Comm’r, Soc. Sec. Admin., No. SAG-141918, 2015 WL 2062184, at *3 (D. Md. May 1, 2015) (distinguishing Dean). But the Court’s
analysis in Dean is distinguishable from this case for the same reasons that it was in Claiborne.
See also Miles v. Comm’r, No. SAG-16-1397, 2016 WL 6901985, at *2 (D. Md. Nov. 23, 2016)
(finding that because there was no “corresponding restriction for the finding of moderate
difficulties in concentration, persistence, or pace, such that it addresses [the claimant’s] ability to
sustain work throughout an eight-hour workday,” the Court was “unable to ascertain from the
ALJ’s decision the reason for the finding of moderate, as opposed to mild or no, limitation in the
area of concentration, persistence, or pace.”)
Based on this record, the Court is unable to find that the RFC determination by the ALJ
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represents an accurate characterization of Mr. Lopez’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis. The ALJ’s
decision is insufficient to permit adequate review. Without additional explanation by the ALJ,
the Court is unable to review the ALJ’s findings to determine whether they are supported by
substantial evidence and without legal error.
In light of the Fourth Circuit’s clear guidance in Mascio, this case must be remanded so
that the ALJ can explain how Mr. Lopez’s limitations in the areas of concentration, persistence,
and pace can be incorporated into the RFC assessment, or why no additional limitation is
necessary to account for these difficulties. See Miles v. Comm’r, No. SAG-16-1397, 2016 WL
6901985, at *2 (D. Md. Nov. 23, 2016) (finding that because there was no “corresponding
restriction for the finding of moderate difficulties in concentration, persistence, or pace, such that
it addresses [the claimant’s] ability to sustain work throughout an eight-hour workday,” the
Court was “unable to ascertain from the ALJ’s decision the reason for the finding of moderate, as
opposed to mild or no, limitation in the area of concentration, persistence, or pace.”); see also
Folsom v. Berryhill, No. TMD-16-1681, 2017 WL 4354875, at *3 (D. Md. Sept. 30, 2017)
(finding that an ALJ’s failure to explain how a claimant’s concentration could persist through an
eight-hour workday required remand because such an error “precludes meaningful review”);
Thomas v. Comm’r, Soc. Sec. Admin., No. SAG-16-1229, 2017 WL 1193990, at *2 (D. Md. Mar.
29, 2017) (declining to consider whether an error might be harmless where an ALJ’s “RFC
analysis did not specifically address [a claimant’s] ability to sustain concentration” despite
findings that he had “moderate limitations in sustained concentration and persistence”). On
remand, the ALJ should either account for Mr. Lopez’s moderate limitations in concentration,
persistence, and pace, or explain why they do not “translate into [such] a limitation.” Mascio,
780 F.3d at 638. The Court makes no finding as to the merits of the ALJ’s ultimate conclusion
that Mr. Lopez is not disabled.
For the reasons set forth herein, both parties’ motions for summary judgment (ECF Nos.
12 & 13) are DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g), the Acting
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. An
implementing Order follows.
Sincerely yours,
/s/
Timothy J. Sullivan
United States Magistrate Judge

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