MEMORANDUM AND RECOMMENDATION

ROBERT B. JONES, JR., Magistrate judge.

This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-17, -22] pursuant to Fed. R. Civ. P. 12(c), and Claimant's response in opposition to the Commissioner's motion, [DE-25]. Claimant filed this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.

I. STATEMENT OF THE CASE

Claimant protectively filed an application for a period of disability and DIB on June 16, 2014, alleging disability beginning June 3, 2014. (R. 178-81). His claim was denied initially and upon reconsideration. (R. 89-124). A hearing before the Administrative Law Judge ("ALJ") was held on April 19, 2016, at which Claimant was represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 50-88). On August 23, 2016, the ALJ issued a decision denying Claimant's request for benefits. (R. 25-47). Claimant then requested a review of the ALJ's decision by the Appeals Council, (R. 21-24), and submitted additional evidence as part of his request, (R. 1599-1626). After reviewing and incorporating the additional evidence, the Appeals Council denied Claimant's request for review on September 2, 2016. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.

II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh. conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

III. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:

Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chafer, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).

In this case, Claimant generally alleges the following errors: (1) failure of the Appeals Council to remand based on additional evidence showing a subsequent VA disability rating of 100%; and (2) failure to incorporate non-exertional limitations on the ability to stay on task where the ALJ first found Claimant was moderately impaired in the maintenance of concentration, persistence, or pace. Pl.'s Mem. [DE-18] at 1.

IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since the alleged onset date. (R. 30). Next, the ALJ determined Claimant had the following severe impairments: ples planus (also known as flat feet), degenerative joint disease of the subtalar joints, a depressive disorder, posttraumatic stress disorder ("PTSD"), degenerative disc disease of the lumbar spine, and obesity. Id. The ALJ also found Claimant had the following non-severe impairments: sleep apnea, gastroesophageal reflux disease, hypertension, tinea pedis (also known as athlete's foot), erectile dysfunction, and certain bilateral hand, wrist, and shoulder conditions. (R. 30-31). At step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 32-34). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in mild restriction in activities of daily living and social functioning, and moderate difficulties with regard to concentration, persistence, or pace, with no episodes of decompensation. (R. 33). Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform medium work1 with postural and environmental restrictions as follows:

(R. 34). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work. (R. 40). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Claimant can perform. (R. 41).

V. DISCUSSION

Claimant contends the ALJ failed to account for his inability to stay "on task" in the RFC, specifically arguing the finding that Claimant can perform "simple, routine, and repetitive" work does not sufficiently account for Claimant's moderate difficulties in concentration, persistence, or pace. Pl.'s Mem. [DE-18] at 8-10. Claimant relies on Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) in support of an argument that the ALJ's limitations do not address Claimant's ability to stay "on task" which is required for any work. Pl.'s Mem. [DE-18] at 9. The Commissioner counters that the ALJ also included a limitation to "generally moderate noise levels" and that the ALJ properly explained how Claimant's limitations were accounted for in the RFC. Def.'s Mem. [DE-23] at 8-9.

In Mascio, the Fourth Circuit held that "an ALJ does not account `for a claimant's limitation in concentration, persistence, or pace by restricting the hypothetical question to simple, repetitive 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) (joining the Third, Seventh, and Eighth Circuits)). The court explained that "the ability to perform simple tasks differs from the ability to stay on task" and that loftily the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. The court also indicated that there could be instances where a limitation in concentration, persistence, or pace does not affect the claimant's ability to work and would be appropriately excluded from the RFC. Id. In such circumstances, however, an explanation from the ALJ is required. Id.

Here, the ALJ found Claimant to have moderate difficulties with regard to concentration, persistence, or pace. (R. 33). The RFC formulated by the ALJ, while it provided a limitation to simple, routine, and repetitive tasks, does not adequately address Claimant's ability to stay on task as required by Mascio. The limitations imposed by the ALJ relate to task complexity, and the court has previously held that a limitation to performing simple tasks with few workplace changes addressed difficulties with concentration and persistence, but not pace. See Weeks v. Colvin, No. 5:14-CV-155-D, 2015 WL 5242927, at *2 (E.D.N.C. Sept. 8, 2015); see also Guyton v. Colvin, No. 7:15-CV-59-FL, 2016 WL 716515, at *3-4 (E.D.N.C. Feb. 5, 2016). The ALJ did not adopt a limitation to address Claimant's moderate difficulty in maintaining the pace necessary to stay on task and it is not evident from the ALJ's decision why such limitation would not be necessary. The court does not find that the additional limitation of "generally moderate noise levels" addresses the ability to stay on task, as proffered by the Commissioner. Further, contrary to the Commissioner's position, the court finds that the ALJ did not explain "how [Claimant]'s limitations translated into work restrictions finding a limitation to simple, routine, and repetitive work with a noise restriction to adequately account for [Claimant]'s limitations." Def.'s Mem. [DE-23] at 9. Rather, in discussing Claimant's mental impairments, the ALJ recounted the medical records, such as reported symptoms of sadness, limited motivation, social anxiety, panic-inducing flashbacks, nightmares, anger, and memory deficits, then described medical findings of "good impulse control, judgment, and insight," and finally recited his prescribed medications. (R. 36). Nowhere in the ALJ's discussion does he relate these medical findings to the RFC determination to reconcile the requirements of Mascio. Accordingly, it is recommended that the matter be remanded for the ALJ to address this deficiency.

Claimant also contends that the case should be remanded because he was found 100% disabled by the VA three months before the ALJ's decision was rendered, but did not receive a copy of that decision until after the ALJ rendered his unfavorable decision. Pl.'s Mem. [DE-18] at 6. The Appeals Council considered the new VA disability rating in its denial for reconsideration, and incorporated the rating into the record. (R. 5). However, Claimant contends that, pursuant to Bird v. Commissioner of Social Security, disability decisions by other governmental agencies must be given substantial weight absent clear reasons to deviate from this standard when determining a claimant's eligibility for Social Security disability benefits. Pl.'s Mem. [DE-18] at 6-7 (citing 699 F.3d 337 (4th Cir. 2012)). Given the need for remand on the other issue, it is recommended that the ALJ also consider the new VA disability rating rendered on July 27, 2016, in accordance with the Fourth Circuit's holding in Bird.

VI. CONCLUSION

For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-17] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-22] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 12, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed within 14 days of the filing of the objections.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).