Jones v. Berryhill

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/22/2019. (jrs, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
THOMAS J., II,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 17-3353

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Thomas J., II 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 his
application for disability insurance benefits 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.
14) and Defendant’s Motion for Summary Judgment (ECF No. 17).2 Plaintiff contends that the
administrative record does not contain substantial evidence to support the Commissioner’s
decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that
follow, Plaintiff’s alternative motion for remand (ECF No. 14) is GRANTED.
1

On April 17, 2018, Nancy A. Berryhill became the Acting Commissioner of Social Security.
See 5 U.S.C. § 3346(a)(2); Patterson v. Berryhill, No. 2:18-cv-00193-DWA, slip op. at 2 (W.D.
Pa. June 14, 2018).
2

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.

I
Background
On November 30, 2016, Administrative Law Judge (“ALJ”) Mary C. Peltzer held a
hearing where Plaintiff and a vocational expert (“VE”) testified. R. at 37-75. The ALJ thereafter
found on March 8, 2017, that Plaintiff was not disabled from the alleged onset date of disability
of October 11, 2012, through December 31, 2015, the date last insured. R. at 16-36. In so
finding, the ALJ found that, through the date last insured, Plaintiff had moderate limitation in
concentrating, persisting, or maintaining pace. R. at 22. The ALJ then found that, through the
date last insured, Plaintiff had the residual functional capacity (“RFC”)
to perform sedentary work as defined in 20 CFR 404.1567(a) except: no pushing
or pulling with the left lower extremity; occasional stairs and ramps; no ladders,
ropes, or scaffolds; occasional balancing, stooping, kneeling, and crouching; no
crawling; no reaching overhead with the left upper extremity; frequent handling
and fingering; occasional exposure to extreme cold, vibration, and workplace
hazards such as dangerous moving machinery; no exposure to unprotected
heights; tasks are performed in a static work environment where changes in task
are infrequent and explained when they do occur.
R. at 23. The ALJ determined that, although Plaintiff could not perform his past relevant work
as a parking attendant and truck driver, he was capable through the date last insured of
performing other work, such as an order clerk, charge account clerk, or document preparer. R. at
29-30. Plaintiff thus was not disabled from October 11, 2012, through December 31, 2015, the
date last insured. R. at 31.
After the Appeals Council denied Plaintiff’s request for review, Plaintiff filed on
November 13, 2017, a complaint in this Court seeking review of the Commissioner’s decision.
Upon the parties’ consent, 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 submitted.
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II
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.”

42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).
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).

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20 C.F.R.

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).3
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,
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
3

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.
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consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”

20 C.F.R.

§§ 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),

416.920(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
national economy.

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).
III
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

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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).
IV
Discussion
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling4 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-14,

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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
n.3.
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ECF No. 14-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of his ability to perform the physical and mental demands of work. Id. at 5. In
particular, he argues that the ALJ failed to build an accurate and logical bridge from the evidence
to her assessment of his RFC. Id. at 5-6. He then contends that, although the ALJ found that he
had moderate limitation in concentrating, persisting, or maintaining pace (R. at 22), the ALJ
failed to include any limitation on concentration, persistence, or pace in the RFC assessment. Id.
at 6-7. Rather, according to Plaintiff, the ALJ limited him to the performance of tasks in a static
work environment where changes were explained as they occurred. Id. at 6 (citing R. at 23).
Plaintiff further asserts that the ALJ failed to evaluate properly opinion evidence. Id. at 7-14.
Plaintiff finally contends that the ALJ erroneously evaluated his subjective complaints. Id. at 1418. For the reasons discussed below, the Court remands this case for further proceedings.
SSR 96-8p, 1996 WL 374184 (July 2, 1996), 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
activities, observations).”
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)

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(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, under
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.

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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 limiting Plaintiff’s RFC to tasks “performed in a static work environment
where changes in task are infrequent and explained when they do occur” (R. at 23) does not
account for his moderate limitation in concentrating, persisting, or maintaining pace. See Varga
v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015) (“‘Few if any work place changes’ with limited
‘interaction with coworkers or supervisors’ deals largely with workplace adaptation, rather than
concentration, pace, or persistence.”); Lawson v. Berryhill, Civil No. TJS-17-0486, 2018 WL
1135641, at *4 (D. Md. Mar. 1, 2018); Henry v. Colvin, No. CV 15-3064-KES, 2016 WL
2851302, at *3 (C.D. Cal. May 13, 2016) (“Limiting job-related decision-making is just another
way of limiting the claimant to simple or unskilled work. To say a job has few changes in the
work setting is just another way of saying the job is ‘routine’ or ‘repetitive.’” (citations
omitted)). But see Hardy v. Berryhill, Civil Action No. ADC-16-3709, 2017 WL 3917010, at
*10 (D. Md. Sept. 6, 2017). Although Defendant contends that the error is harmless (Def.’s
Mem. Supp. Mot. Summ. J. 7-8, ECF No. 17-1),
[t]he Court cannot classify the error as harmless because the ALJ’s written
decision is insufficient to permit adequate review. Because the ALJ’s RFC does
not account for all of [Plaintiff’s] limitations, the Court cannot find that the RFC
provides an accurate description of the work that he is able to do on a regular and
continuing basis. In light of the Fourth Circuit’s clear guidance in Mascio, this
case must be remanded so that the ALJ can explain how [Plaintiff’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.
Lawson, 2018 WL 1135641, at *5.
The ALJ also failed to explain how, despite Plaintiff’s moderate limitation in
concentrating, persisting, or maintaining pace, he could remain on task for more than 85% of an

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eight-hour workday. According to the VE, an individual would be unable to maintain the
demands of full-time competitive work with a 15% to 20% loss of productivity. R. at 72. The
ALJ “must both identify evidence that supports [her] conclusion and ‘build an accurate and
logical bridge from [that] evidence to [her] conclusion.’” Woods v. Berryhill, 888 F.3d 686, 694
(4th Cir. 2018) (second alteration in original) (quoting Monroe, 826 F.3d at 189). In particular,
the ALJ “must build a logical bridge between the limitations [she] finds and the VE evidence
relied upon to carry the Commissioner’s burden at step five in finding that there are a significant
number of jobs available to a claimant.” Brent v. Astrue, 879 F. Supp. 2d 941, 953 (N.D. Ill.
2012). An ALJ’s failure to do so constitutes reversible error. See Lewis v. Berryhill, 858 F.3d
858, 868 (4th Cir. 2017). Because the ALJ’s “analysis is incomplete and precludes meaningful
review,” remand is appropriate. Monroe, 826 F.3d at 191.
In short, the inadequacy of the ALJ’s analysis frustrates meaningful review. See Lanigan
v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017) (remanding because, inter alia, ALJ did not build
accurate and logical bridge between claimant’s moderate difficulties in various functional areas
and ALJ’s finding that claimant would not be off task more than 10% of workday); McLaughlin
v. Colvin, 200 F. Supp. 3d 591, 602 (D. Md. 2016) (remanding because ALJ’s decision failed to
explain how, despite claimant’s moderate difficulties in maintaining concentration, persistence,
or pace, she could remain productive for at least 85% of workday, in light of VE’s testimony that
individual “off task” more than 15% of workday because of need to take unscheduled breaks
could not perform any work); Ashcraft v. Colvin, No. 3:13-cv-00417-RLV-DCK, 2015 WL
9304561, at *11 (W.D.N.C. Dec. 21, 2015) (remanding under fourth sentence of 42 U.S.C.
§ 405(g) because court was unable to review meaningfully ALJ’s decision that failed to explain
exclusion from RFC assessment an additional limitation of being 20% off task that VE testified

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would preclude employment). Remand under the fourth sentence of 42 U.S.C. § 405(g) thus is
warranted. See Monroe, 826 F.3d at 189. Because remand is granted on other grounds, the
Court does not address Plaintiff’s remaining arguments. See Testamark v. Berryhill, 736 F.
App’x 395, 399 n.2 (4th Cir. 2018) (per curiam); Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d
Cir. 2003). In any event, the ALJ also should address these other deficiencies identified by
Plaintiff. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002) (on remand,
ALJ’s prior decision has no preclusive effect as it is vacated and new hearing is conducted de
novo).
V
Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 17)
is DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 14) 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: March 22, 2019

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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