Bellosi v. Kijakazi

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHAMBERS OF 6500 Cherrywood Lane TIMOTHY J. SULLIVAN Greenbelt, Maryland 20770 UNITED STATES MAGISTRATE JUDGE Telephone: (301) 344-3593

January 25, 2022 LETTER TO COUNSEL:

RE: Kimberly B. v. Kilolo Kijakazi, Acting Commissioner of Social Security Civil No. TJS-20-2877

Dear Counsel:

On October 5, 2020, Plaintiff Kimberly B. petitioned this Court to review the Social Security Administration’s final decision to terminate her disability insurance benefits (“DIB”). ECF No. 1. The parties have filed cross-motions for summary judgment. ECF Nos. 16 & 21. These motions have been referred to the undersigned with the parties’ consent pursuant to 28 U.S.C. § 636 and Local Rule 301.1 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 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 grant the Acting Commissioner’s motion and deny the Plaintiff’s motion. This letter explains my rationale.

Kimberly B. was found disabled and entitled to DIB on February 1, 2013. Tr. 13. On November 3, 2016, the Commissioner determined that Kimberly B. was no longer disabled as of November 1, 2016. Tr. 13, 81, 98-99. Kimberly B. sought reconsideration, but the adverse determination was upheld by a Disability Hearing Officer. Tr. 102-17. After a hearing on October 29, 2019 (Tr. 35-62), an Administrative Law Judge (“ALJ”) issued an opinion on December 11, 2019, finding that Kimberly B.’s disability ceased on November 1, 2016, but that she became disabled again on November 18, 2018 (Tr. 9-34). The Appeals Council denied Kimberly B.’s request for review, making the ALJ’s decision the final, reviewable decision of the agency. Tr. 1-6.

The ALJ evaluated Kimberly B.’s claim using the sequential process for determining whether a disability has ended as set forth in 20 C.F.R.§ 404.1594.2 The ALJ determined that the

1 This case was originally assigned to Judge Boardman. On June 30, 2021, it was reassigned to Judge Coulson. On December 31, 2021, it was reassigned to me.

2 An ALJ follows an eight-step sequential analysis to determine whether a recipient of DIB continues to be disabled. See Dowling v. Comm’r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021) (citing 20 C.F.R. § 404.1594(f)(1)-(8)). At step one, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1594(f)(1). At step two, the “comparison point decision” was the decision on February 1, 2013, finding Kimberly B. disabled. Tr. 15. She was found disabled because her stomach cancer met the severity of an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1 (the “Listings”). Id. The ALJ found that Kimberly B. had not engaged in substantial gainful activity since the alleged onset date of disability and that she did not have since November 1, 2016, an impairment or combination of impairments that met or medically equaled the severity of an impairment in the Listings. Tr. 15-18. The ALJ found that medical improvement had occurred on November 1, 2016, which related to Kimberly B.’s ability to work, because by that date her stomach cancer no longer met or medically equaled a listed impairment. Tr. 18. Even though Kimberly B. continued to have severe impairments since November 1, 2016, the ALJ determined that she retained the RFC since that date and before November 18, 2018, “to perform light work as defined in 20 CFR 404.1567(b) EXCEPT: [she] is able to perform simple, routine tasks; able to interact with supervisors on a frequent basis and with coworkers and the public on an occasional basis.” Tr. 18-19. After considering the testimony of a vocational expert (“VE”), the ALJ determined that Kimberly B. could not perform past relevant work since November 1, 2016. Tr. 26. She, however, could perform from November 1, 2016, to November 17, 2018, several jobs existing in significant numbers in the national economy. Tr. 26-27. She thus was not disabled from November 1, 2016, to November 17, 2018, but became disabled again on November 18, 2018, through the date of the ALJ’s decision. Tr. 27-28.

Kimberly B. argues that the ALJ’s determination of her RFC from November 1, 2016, to November 17, 2018, does not account for her moderate limitation in concentrating, persisting, or maintaining pace (“CPP”), and therefore runs afoul of the Fourth Circuit’s decision in 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 [claimant] 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. When an ALJ finds that a claimant has limitations in concentration, persistence, or 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. The Fourth Circuit, however, “did not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC.” Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020). Rather, when “medical evidence demonstrates that a claimant can

ALJ determines whether the claimant has an impairment, or a combination of impairments, that meets or medically equals the criteria of a listed impairment. Id. § 404.1594(f)(2). At step three, the ALJ determines whether medical improvement has occurred, id. § 404.1594(f)(3), and, at step four, whether the medical improvement is related to the claimant’s ability to work, id. § 404.1594(f)(4). At step five, the ALJ will determine whether an exception to medical improvement applies in those cases where the ALJ did not find a medical improvement or found that the medical improvement was not related to the claimant’s ability to work. Id. § 404.1594(f)(5). At step six, the ALJ determines whether the claimant’s impairments are severe. Id. § 404.1594(f)(6). At step seven, the ALJ assesses the claimant’s residual functional capacity (“RFC”), and whether the claimant can perform past relevant work. Id. § 404.1594(f)(7). The analysis concludes at step eight where the ALJ determines whether other work exists that the claimant can perform given his or her age, education, past work experience, and RFC. Id. § 404.1594(f)(8). engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations.” Id. (quoting Winschel, 631 F.3d at 1180).

Here, the ALJ found that, since November 1, 2016, Kimberly B. had a moderate limitation in her ability to concentrate, persist, or maintain pace. Tr. 16-17. The ALJ noted the opinion of F. Ewell, Ph.D., the state agency psychological consultant who opined that Kimberly B. “experiences moderate limitations in her ability to maintain attention and concentration for extended periods and complete a normal workday and workweek without interruptions.” Tr. 23. Dr. Ewell ultimately opined that, despite these moderate mental limitations, Kimberly B. “[m]aintains [the] ability to perform tasks from [a] mental health stand point.” Tr. 91. The ALJ found Dr. Ewell’s opinion regarding Kimberly B.’s moderate limitations in her ability to maintain attention and concentration and to complete a normal workday and workweek were supported by her history of counseling and mood symptoms. Tr. 23.

The ALJ thus “explain[ed] how substantial evidence supports his conclusion as to [Kimberly B.’s] CPP abilities in a work setting.” Terri S. v. Saul, Civil No. DLB-19-3607, 2021 WL 168456, at (D. Md. Jan. 19, 2021) (Boardman, J.), reconsideration denied sub nom. Terri S. v. Kijakazi, No. DLB-19-3607, 2021 WL 5395960 (D. Md. Nov. 18, 2021); see Shinaberry, 952 F.3d at 121 (holding that ALJ’s finding that limited claimant with moderate limitations in concentration, persistence, and pace to performing “simple, routine, and repetitive tasks” accounted for claimant’s mental limitations where ALJ “discussed in detail the psychological evaluations performed by the SSA psychological consultants” and other evidence); Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (rejecting argument that remand was required under Mascio because ALJ failed to specifically account for claimant’s moderate difficulties with regard to concentration, persistence and pace, because more detailed medical findings provided substantial support for RFC limitations). The Fourth Circuit’s reasoning in Sizemore “did not depend upon whether the ALJ ‘adopted’ a particular medical source opinion in whole or in part.” Terri S., 2021 WL 168456, at . Rather, the Fourth Circuit in Sizemore was concerned with whether substantial evidence supported the ALJ’s RFC determination. Id.; see Sizemore, 878 F.3d at 80-81. “The ALJ’s discussion of Dr. [Ewell’s] opinion with respect to [Kimberly B.’s] work capabilities and her mental limitations makes clear the ALJ relied on substantial evidence in finding that [her] moderate CPP limitation did not require other RFC limitations.” Terri S., 2021 WL 168456, at (citing Sizemore, 878 F.3d at 81). Because the ALJ applied correct legal standards and made findings supported by substantial evidence, Kimberly B.’s argument that remand is warranted under Mascio is without merit. For the reasons set forth above, Kimberly B.’s Motion for Summary Judgment (ECF No. 16) will be DENIED, and the Acting Commissioner’s Motion for Summary Judgment (ECF No. 21) will be GRANTED. 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

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHAMBERS OF 6500 Cherrywood Lane TIMOTHY J. SULLIVAN Greenbelt, Maryland 20770 UNITED STATES MAGISTRATE JUDGE Telephone: (301) 344-3593

March 11, 2022 LETTER TO COUNSEL:

RE: Kimberly B. v. Kilolo Kijakazi, Acting Commissioner of Social Security Civil No. TJS-20-2877

Dear Counsel:

Presently pending is Plaintiff Kimberly B.’s Motion to Reconsider (ECF No. 25) the Court’s January 25, 2022, order (ECF No. 24) granting summary judgment in favor of the Social Security Administration (the “SSA” or the “Acting Commissioner”). Plaintiff asks the Court to reconsider its decision to affirm the SSA’s final decision (ECF No. 23). I have reviewed Plaintiff’s motion (ECF No. 25) and the Acting Commissioner’s response (ECF No. 26). No hearing is necessary. See Loc. R. 105.6. For the reasons set forth below, Plaintiff’s motion is denied.

On October 5, 2020, Plaintiff petitioned the Court for review of the SSA’s final decision to terminate her disability insurance benefits. ECF No. 1. Plaintiff argued that the SSA’s decision failed to comply with the requirements of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). ECF No. 16. The Court found that the ALJ’s decision was supported by substantial evidence and that the ALJ adequately explained the reasoning with respect to Plaintiff’s moderate limitation in concentrating, persisting, or maintaining pace (“CPP”) (ECF No. 23). Kimberly B. v. Kijakazi, Civil No. TJS-20-2877, 2022 WL 214518 (D. Md. Jan. 25, 2022). The Court thus denied Plaintiff’s motion for summary judgment, granted the Acting Commissioner’s motion for summary judgment, and affirmed the SSA’s final decision under 42 U.S.C. § 405(g). ECF Nos. 23-24. Plaintiff then filed her motion to reconsider. ECF No. 25.

Plaintiff has filed her motion to reconsider under Local Rule 105.10. ECF No. 25 at 1. The pending motion, filed within twenty-eight days of the Court’s order granting the Acting Commissioner’s summary judgment motion, is construed as a Rule 59(e) motion to alter or amend a judgment. See Terri S. v. Kijakazi, No. DLB-19-3607, 2021 WL 5395960, at (D. Md. Nov. 18, 2021) (Boardman, J.). “[A] final judgment may be amended under Rule 59(e) in only three circumstances: ‘(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.’” Travis X. C. v. Saul, No. GJH-18-1210, 2020 WL 6684636, at (D. Md. Nov. 12, 2020) (Hazel, J.), aff’d sub nom. Carr v. Kijakazi, No. 20-2226, 2022 WL 301540 (4th Cir. Feb. 1, 2022) (unpublished). A Rule 59(e) motion

“may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” “[M]ere disagreement does not support a Rule 59(e) motion.” Such limitations on Rule 59(e) motions are necessary because “[w]ere it otherwise, then there would be no conclusion to motions practice, each motion becoming nothing more than the latest installment in a potentially endless serial that would exhaust the resources of the parties and the [C]ourt—not to mention its patience.” “[G]ranting a motion for reconsideration is an extraordinary remedy, which should be used sparingly.”

Id. (alterations in original) (citations omitted).

For purposes of this motion for reconsideration, the Court will not reiterate the law and facts cited in its January 25, 2022, decision affirming the termination of benefits. Kimberly B., 2022 WL 214518, at -2. Rather, the Court incorporates them by reference and briefly summarizes the ruling. The Court affirmed the SSA’s final decision to terminate benefits because the decision complied with the Mascio requirement that an ALJ explain how substantial evidence supports his conclusion as to Plaintiff’s CPP abilities in a work setting. Specifically, the state agency psychological consultant, F. Ewell, Ph.D., opined that, despite Plaintiff’s moderate limitations in her ability to maintain attention and concentration for extended periods and to complete a normal workday and workweek without interruptions, she retained the residual functional capacity (“RFC”) to perform tasks (namely, unskilled work) from a mental health standpoint (Tr. 23, 90-91, 92). The Court thus affirmed the SSA’s final decision because Dr. Ewell’s opinion constituted substantial evidence to support the ALJ’s conclusion as to Plaintiff’s CPP abilities in a work setting, which did not require other RFC limitations. Id. at (citing Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020); Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017)).

Plaintiff argues that the Court legally erred in relying on Shinaberry and Sizemore when it found that the ALJ’s decision comported with Mascio’s requirements. ECF No. 25 at 5-13. I find no legal error, however. “Mascio does not require that an ALJ credit all evidence of a potential CPP limitation. The narrow, technical error in Mascio was the [ALJ’s] summarily accounting for a moderate CPP limitation with simple, routine tasks or unskilled work.” Terri S., 2021 WL 5395960, at (citing Mascio, 780 F.3d at 638). “Subsequent Fourth Circuit decisions confirm that an ALJ may account for a moderate CPP limitation with an RFC determination that a claimant can complete simple, routine tasks provided the conclusion is supported by substantial evidence.” Id. (citing Shinaberry, 952 F.3d at 121–22; Sizemore, 878 F.3d at 80–81). To the extent that Plaintiff argues that Dr. Ewell’s opinion cannot constitute substantial evidence for a claimant’s CPP-related capabilities because the ALJ did not accommodate every limitation contained in the opinion, the Fourth Circuit rejected that argument in Sizemore. Id.

Further, this Court previously considered and rejected Plaintiff’s argument that an ALJ necessarily violates the rule set forth in Mascio by failing to include in the RFC determination all limitations referenced in an opinion to which an ALJ affords substantial weight. Id. (citing Angela E. v. Kijakazi, Civil No. DLB-20-1888, 2021 WL 4290285, at –4 (D. Md. Sept. 20, 2021) (Boardman, J.); Kenneth L. v. Kijakazi, Civil No. SAG-20-624, 2021 WL 4198408, at (D. Md. Sept. 15, 2021) (Gallagher, J.)). In short, the ALJ cited substantial evidence supporting his conclusion that Plaintiff could maintain CPP when confined to simple, routine tasks (Tr. 19, 23). Thus, no error under Mascio occurred. See id.; accord Tiffany M. v. Kijakazi, Civil No. TJS-21770, 2022 WL 137980, at -3 (D. Md. Jan. 14, 2022). Last, to the extent that Plaintiff raises arguments not previously raised in her motion for summary judgment or in her response to the Acting Commissioner’s motion for summary judgment (ECF Nos. 16 & 22), those arguments are unavailing because, as noted above, “Rule 59(e) may not be used to raise new arguments or present novel legal theories that could have been raised prior to judgment.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 404 (4th Cir. 1998).

For the reasons set forth above, Plaintiff’s motion for reconsideration (ECF No. 25) is DENIED. Despite the informal nature of this letter, it should be flagged as an opinion. A separate order follows.

Sincerely yours,

/s/ Timothy J. Sullivan United States Magistrate Judge