Gibson v. Saul

Filing 18

MEMORANDUM to Counsel. Signed by Magistrate Judge Deborah L. Boardman on 3/31/2021. (kw2s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
DEBORAH L. BOARDMAN
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax: [phone]
[e-mail]

March 31, 2021

LETTER TO COUNSEL
RE:

Sheila G. v. Saul
Civil No. DLB-19-3549

Dear Counsel:
On December 13, 2019, plaintiff petitioned this Court to review the Social Security
Administration’s (“SSA’s”) final decision to deny her claim for Disability Insurance Benefits.
ECF 1. I have considered the parties’ cross-motions for summary judgment and plaintiff’s
response. ECF 15 (“Pl.’s Mot.”); ECF 16 (“Def.’s Mot.”); ECF 17 (“Pl.’s Resp.”). I find no
hearing necessary. See Loc. R. 105.6 (D. Md. 2018). This Court must uphold the denial if the
SSA employed correct legal standards in making findings supported by substantial evidence. 42
U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I will
deny both motions, reverse the Commissioner’s decision in part, and remand the case to the
Commissioner for further consideration. This letter explains my rationale.
Plaintiff filed her claim for benefits on January 27, 2015, alleging an onset date of
December 20, 2014. Administrative Transcript (“Tr.”) 213-14. The SSA denied her claims
initially and on reconsideration. Tr. 74, 86. An Administrative Law Judge (“ALJ”) held a hearing
on July 11, 2018. Tr. 22-66. Following the hearing, the ALJ determined plaintiff was not disabled
within the meaning of the Social Security Act until May 28, 2018, at which point plaintiff became
an individual of advanced age and disabled under the facts and circumstances of her claim. Tr.
91-103. The Appeals Council found plaintiff became an individual of advanced age on August
15, 2018. Tr. 5-7. The Appeals Council adopted the ALJ’s opinion as to the period between
plaintiff’s alleged onset date and August 15, 2018. Tr. 5-7. Because the Appeals Council denied
plaintiff’s request for review as to the period between her alleged onset date and August 15, 2018,
the ALJ’s decision constitutes the final, reviewable decision of the SSA. Tr. 4-7; see Sims v. Apfel,
530 U.S. 103, 106-07 (2000); 20 C.F.R. § 422.210(a).
The ALJ found plaintiff severely impaired by “rheumatoid arthritis and depression.” Tr.
93. Despite these impairments, the ALJ determined plaintiff retained the residual functional
capacity (“RFC”) to:

Sheila G. v. Saul
Civil No. DLB-19-3549
March 31, 2021
Page 2
Perform light work as defined in 20 C.F.R. 404.1567(b) except no climbing of
ladders, ropes, or scaffolds; occasional climbing of stairs or ramps; frequent
bilateral handling, grasping, or fingering; work limited to simple routine tasks in a
low stress job, defined as frequent interaction with the public and frequent decisionmaking.1
Tr. 96. After considering the testimony of a vocational expert (“VE”), the ALJ determined plaintiff
could not perform her past relevant work as a paralegal or secretary but could perform other jobs
existing in significant numbers in the national economy. Tr. 101. Therefore, the ALJ concluded
plaintiff was not disabled up until May 28, 2018, when plaintiff became an individual of advanced
age. Tr. 103. As explained above, the Appeals Council ultimately amended plaintiff’s date of
disability to August 15, 2018. Tr. 4-7.
On appeal, plaintiff argues that the ALJ’s step-three determination is unsupported by
substantial evidence and that the ALJ’s decision fails to comply with the requirements of Mascio
v. Colvin, 780 F.3d 632 (4th Cir. 2015). I agree that the ALJ’s decision does not comply with the
requirements of Mascio v. Colvin. Accordingly, I remand but express no opinion as to plaintiff’s
ultimate entitlement to benefits.
In Mascio, the Fourth Circuit remanded for three distinct reasons, including, as pertinent
to this case, the inadequacy of the ALJ’s evaluation of the plaintiff’s “moderate difficulties” in
concentration, persistence, or pace (“CPP”). 780 F.3d at 638. The ability to concentrate, persist,
or maintain pace is one of four broad functional areas that an ALJ is required to consider when
evaluating a claimant’s mental impairments. 2 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §
12.00(A)(2)(b); see 20 C.F.R. § 416.920a (explaining the “special technique” for evaluating the
severity of a claimant’s mental impairments). The ALJ assigns a rating based on the extent to
which the claimant’s impairment “interferes with [her] ability to function independently,
appropriately, effectively, and on a sustained basis.” 20 C.F.R. § 416.920a(b), (c)(2). The ALJ
uses a five-point scale to rate a claimant’s degree of limitation in the four areas: none, mild,
moderate, marked, or extreme. Id. § 416.920a(c)(4). A moderate limitation signifies that the
claimant has only a fair ability to function in the relevant area of mental functioning. 20 C.F.R.
Pt. 404, Subpt. P, App’x 1 § 12.00(F)(2)(c).
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
unskilled work, despite the ALJ’s determination that the claimant had moderate difficulties in
maintaining CPP at step three. 780 F.3d at 637-38. The Fourth Circuit specifically held that an
“ALJ does not account for a claimant’s limitations in [CPP] by restricting the hypothetical question
The Court assumes the ALJ intended to communicate that “low stress jobs” do not involve frequent interaction or
decision-making.
1
The other three areas are: (1) the ability to understand, remember, or apply information; (2) the ability to interact
with others; and (3) the ability to adapt or manage oneself. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00(A)(2)(b) (the
“paragraph B” criteria).
1

Sheila G. v. Saul
Civil No. DLB-19-3549
March 31, 2021
Page 3
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 CPP did not translate into a limitation in the claimant’s RFC, it held that absent such an
explanation, remand was necessary. Id. The Court recently observed that Mascio “did not impose
a categorical rule that requires an ALJ to always include moderate [CPP] limitations as a specific
limitation in the RFC.” Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020) (finding that the
ALJ adequately explained the RFC’s mental limitations where the RFC did not include a specific
limitation addressing the plaintiff’s moderate limitation in concentration, persistence, or pace).
In this case, the ALJ found that plaintiff had a moderate CPP limitation at step three. Tr.
96. The ALJ’s analysis stated:
With regard to concentrating, persisting, or maintaining pace, the claimant has a
moderate limitation before the established onset date. In a Function Report
completed by the claimant, she reported trouble with sustaining attention and
concentration. The claimant also testified that her medications cause drowsiness,
though I note she denied any medication side effects in her Function Report.
Additionally, Dr. Malik, the psychiatric consultative examiner, found the
claimant’s recall memory was normal, she was able to spell the word “world”
correctly forward and backward, and she was able to execute a simple three-step
command. Further, I note that the claimant has not been diagnosed with, or treated
for, any attention-disorder. As such, I find that the claimant has only moderate
limitation[s] in concentration, persistence, or maintaining pace.
Tr. 96 (internal citations omitted).
Plaintiff argues the above finding by the ALJ necessitates either an additional limitation in
plaintiff’s RFC determination or an explanation as to why the ALJ omitted such a limitation in
view of plaintiff’s moderate CPP limitation. Pl.’s Mot. at 18-25. The Commissioner disagrees,
arguing the ALJ adequately explained her RFC determination by reference to specific portions of
the medical record. Def.’s Mot. at 7-10. The Commissioner cites Shinaberry for support, arguing
that “a limitation to simple, routine, repetitive tasks or unskilled work…is appropriate when the
ALJ explains why the record evidence supports the limitation.” Def.’s Mot. at 10 (internal
quotation marks omitted). In her response, plaintiff argues Shinaberry does not control because
“the evidence here does not demonstrate that [p]laintiff has retained the capacity to maintain [CPP]
without accommodation.” Pl.’s Resp. at 9. Because I agree with plaintiff the ALJ did not
adequately explain how plaintiff could be expected to maintain CPP considering her moderate CPP
limitation, I remand.

Sheila G. v. Saul
Civil No. DLB-19-3549
March 31, 2021
Page 4
In Shinaberry, the Fourth Circuit resisted the plaintiff’s call for remand because the
plaintiff experienced a lifelong, borderline intellectual disability during her a significant work
history and medical opinions provided substantial evidence for the ALJ’s RFC determination. 952
F.2d at 119. Shinaberry’s condition persisted, constantly and steadily, throughout her life. Id.
Thus, her 20-year work history as a custodian and maintenance technician provided evidence that
Shinaberry could engage in simple, routine, repetitive tasks even though her borderline intellectual
disability did affect her CPP capabilities. Id. at 122, 118. In addition to the evidence of her gainful
employment while under the disability responsible for her CPP limitations, the record contained
evidence from medical consultants, one of whom opined that Shinaberry “would have limits in her
ability to complete a workweek in a job requiring reading and math calculation, because of her
weakness in her processing skills…[and] that her concentration and task persistence were
adequate….” Id. at 122. Other evidence in the record from the psychological consultants’ mental
assessments suggested Shinaberry would be limited with respect to complex tasks. Id. at 121-22.
The Fourth Circuit ultimately concluded, “[U]nlike in Mascio, the ALJ in this case addressed
Shinaberry’s lifelong, borderline intellectual disability, including her moderate limitations in
[CPP].” Id. at 122. Thus, in Shinaberry, the ALJ did account for the plaintiff’s moderate CPP
limitation with a nonexertional RFC limited to “jobs requiring only simple, routine, repetitive
tasks” because the plaintiff’s limitation was directly related to the complexity of the task. Id. at
120.
While I agree with the Commissioner that Shinaberry instructs that no per se rule demands
another limitation in plaintiff’s RFC determination here, I disagree with the Commissioner that the
present case is analogous to Shinaberry. See Def.’s Mot. at 10, 8. Here, the ALJ did not cite
evidence in the record suggesting that plaintiff’s moderate CPP limitation did not affect her ability
to maintain CPP in a certain work setting. See Tr. 98-101. The Commissioner likewise does not
point to a medical opinion in the record that would both explain and provide substantial evidence
for the ALJ’s RFC determination in light of plaintiff’s CPP limitations. See Def.’s Mot. at 8-10.
Rather, the ALJ and the Commissioner seem to reason that the evidence in the record suggests
plaintiff did not really experience a CPP limitation. See Tr. 98 (“…[W]hen considering the
relatively normal findings on objective examination despite the claimant receiving only routine
and conservative treatment, I find that the record does not support any greater limitations.”).
Here, the ALJ herself found, after a review of the record, that plaintiff was moderately
limited in CPP. See Tr. 96. The ALJ’s later citation of evidence in the record suggesting plaintiff’s
limitation in CPP was something less than moderate makes the ALJ’s findings, at the bare
minimum, internally consistent. Phrased differently, the ALJ does not cite evidence in the record
in arguing that plaintiff’s moderate CPP limitation does not translate to a CPP limitation in a certain
work setting, as the ALJ did in Shinaberry. See Shinaberry, 952 F.2d at 122. The ALJ here
generally cites evidence in the record and contradicts her previous finding that plaintiff
experienced a CPP limitation at all. “Without further explanation, I am unable to ascertain whether
the ALJ truly believed [plaintiff] to have moderate difficulties in [CPP], instead of mild, or no
difficulties, and how those difficulties restrict her RFC to” “simple[,] routine tasks.” Brocato v.
Smm’r Soc. Sec. Admin., No. SAG-16-2540, 2017 WL 3084382, at *3 (D. Md. July 19, 2017); Tr.
96. Accordingly, remand is appropriate.

Sheila G. v. Saul
Civil No. DLB-19-3549
March 31, 2021
Page 5
For the reasons set forth herein, plaintiff’s motion for summary judgment, ECF 15, is
denied, and the Commissioner’s motion for summary judgment, ECF 16, is denied. Pursuant to
sentence four of 42 U.S.C. § 405(g), the SSA’s judgment is reversed in part due to inadequate
analysis. The case is remanded for further proceedings in accordance with this opinion.
Despite the informal nature of this letter, it should be flagged as an opinion. A separate
order follows.
Sincerely yours,
/s/
Deborah L. Boardman
United States Magistrate Judge