                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-2088


BONNILYN A. MASCIO,

                 Plaintiff − Appellant,

           v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security,

                 Defendant – Appellee,

           and

MICHAEL J. ASTRUE, Commissioner of Social Security,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.     Louise W.
Flanagan, District Judge. (2:11-cv-00065-FL)


Argued:   December 11, 2014                 Decided:   March 18, 2015


Before AGEE, DIAZ, and FLOYD, Circuit Judges.


Reversed and remanded with instructions by published opinion.
Judge Diaz wrote the opinion, in which Judge Agee and Judge
Floyd joined.


ARGUED: David J. Cortes, ROBERTI, WITTENBERG, LAUFFER, WICKER &
CINSKI, P.A., Durham, North Carolina, for Appellant.     Mark J.
Goldenberg, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland,
for Appellee.     ON BRIEF: Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.




                              2
DIAZ, Circuit Judge:

     Bonnilyn         Mascio          appeals         the       Social           Security

Administration’s      denial     of     her     application         for   supplemental

security     income    benefits.          Because       we     conclude      that    the

administrative law judge erred by not conducting a function-by-

function   analysis,    by     ignoring       (without       explanation)        Mascio’s

moderate      limitation       in      her      ability        to     maintain        her

concentration, persistence, or pace, and by determining Mascio’s

residual functional capacity before assessing her credibility,

we reverse and remand.



                                         I.

                                         A.

     Mascio     alleges        that     she      is     disabled          from     severe

degenerative     disc       disease,         carpal     tunnel        syndrome,      and

adjustment    disorder. 1       In     2008,    an    administrative         law    judge

(“ALJ”) found that Mascio was not disabled, but the district


     1
       An “adjustment disorder” is “a disorder the essential
feature of which is a maladaptive reaction to an identifiable
psychological stress, or stressors, that occurs within weeks of
the onset of the stressors and persists for as long as 6 months;
the maladaptive nature of the reaction is indicated by
impairment in occupational (including school) functioning, or in
usual social activities or relationships with others, or with
symptoms that are in excess of a normal or expectable reaction
to the stressor.” Stedman’s Medical Dictionary 259610 (28th ed.
2006).



                                          3
court reversed and the case was remanded to a second ALJ for

another hearing and disability determination.                       The second ALJ

found    that   Mascio   was    not   disabled     from     March    15,   2005,    to

November 30, 2009. 2         Mascio lost her administrative appeal and

filed    a   complaint   in    the    district     court,    which     granted     the

Commissioner’s motion for judgment on the pleadings and upheld

the denial of benefits.         This appeal followed.

                                        B.

     We review de novo a district court’s decision on a motion

for judgment on the pleadings.               Korotynska v. Metro. Life Ins.

Co., 474 F.3d 101, 104 (4th Cir. 2006).                     We will affirm the

Social Security Administration’s disability determination “when

an ALJ has applied correct legal standards and the ALJ’s factual

findings are supported by substantial evidence.”                    Bird v. Comm’r

of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).                      Mascio

does not dispute the ALJ’s factual findings but argues that the

ALJ made four legal errors by (1) not conducting a function-by-

function     analysis;   (2)    not    including     Mascio’s       concentration,

persistence,     or   pace     limitation     in   his    hypothetical      to     the

vocational expert; (3) determining Mascio’s residual functional

capacity before assessing her credibility; and (4) not applying

     2
       While her first appeal was pending, the Social Security
Administration approved Mascio’s application for benefits from
an onset date of December 1, 2009.



                                         4
the so-called “great weight rule” to Mascio’s subjective claims

of pain.

      Before      turning       to   Mascio’s         arguments,      we    provide     an

overview of the five-step sequential evaluation that ALJs use to

make disability determinations.

                                           C.

      The Social Security Administration regulations describe the

five-step     process     in    detail.         See    20    C.F.R.    § 416.920(a)(4)

(2014).      To summarize, the ALJ asks at step one whether the

claimant has been working; at step two, whether the claimant’s

medical impairments meet the regulations’ severity and duration

requirements;      at    step    three,    whether          the   medical    impairments

meet or equal an impairment listed in the regulations; at step

four, whether the claimant can perform her past work given the

limitations caused by her medical impairments; and at step five,

whether the claimant can perform other work.

      The    first      four    steps     create      a     series    of    hurdles     for

claimants to meet.          If the ALJ finds that the claimant has been

working (step one) or that the claimant’s medical impairments do

not   meet     the      severity     and    duration          requirements         of   the

regulations (step two), the process ends with a finding of “not

disabled.”        At    step     three,    the     ALJ      either    finds    that     the

claimant     is   disabled      because     her    impairments        match    a    listed



                                            5
impairment       or    continues          the    analysis.             The    ALJ       cannot    deny

benefits at this step.

       If    the    first     three       steps       do    not    lead       to    a    conclusive

determination,         the    ALJ    then        assesses        the    claimant’s         residual

functional capacity, which is “the most” the claimant “can still

do    despite”      physical        and    mental       limitations           that       affect       her

ability to work.          Id. § 416.945(a)(1).                    To make this assessment,

the    ALJ    must      “consider          all    of       [the     claimant’s]           medically

determinable impairments of which [the ALJ is] aware,” including

those not labeled severe at step two.                        Id. § 416.945(a)(2).

       The ALJ then moves on to step four, where the ALJ can find

the claimant not disabled because she is able to perform her

past work.         Or, if the exertion required for the claimant’s past

work exceeds her residual functional capacity, the ALJ goes on

to step five.

       At    step     five,   the     burden          shifts      to    the   Commissioner            to

prove, by a preponderance of the evidence, that the claimant can

perform other work that “exists in significant numbers in the

national       economy,”            considering             the        claimant’s          residual

functional capacity, age, education, and work experience.                                         Id.

§§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429.                                 The Commissioner

typically      offers        this    evidence          through         the    testimony          of    a

vocational expert responding to a hypothetical that incorporates

the    claimant’s       limitations.              If       the    Commissioner           meets    her

                                                  6
burden, the ALJ finds the claimant not disabled and denies the

application for benefits.

       In this case, at step one, the ALJ determined that Mascio

had not been working.           At step two, he found that Mascio had

four       severe     impairments--degenerative      disc     disease,     carpal

tunnel syndrome, adjustment disorder, and a history of substance

abuse--that, alone or together, met the regulations’ duration

requirement.            At   step   three,   he     decided    that      Mascio’s

impairments did not meet or equal any of the impairments listed

in the regulations.

       The ALJ then found that Mascio had the residual functional

capacity to perform “light work,” 3 except that she was further

limited to “chang[ing] between sitting and standing every 30

minutes       (‘sit/stand      option’);     only    occasional         climbing,

balancing,      bending,     stooping,   crouching   or     crawling;    no     more

than       frequent    fingering;   no   exposure     to    hazards      such    as
       3
           The regulations define light work as

       lifting no more than 20 pounds at a time with frequent
       lifting or carrying of objects weighing up to 10
       pounds.   Even though the weight lifted may be very
       little, a job is in this category when it requires a
       good deal of walking or standing, or when it involves
       sitting most of the time with some pushing and pulling
       of arm or leg controls.   To be considered capable of
       performing a full or wide range of light work, [the
       claimant] must have the ability to do substantially
       all of these activities.

20 C.F.R. § 416.967(b).



                                         7
unprotected      heights    or    dangerous      machinery;       and,       due    to   her

adjustment disorder, only unskilled work.”                      A.R. 492.          At step

four, he concluded that Mascio could not perform her past work

based on her residual functional capacity.                        Finally, at step

five,     he    found   that     Mascio       could     perform       other    work      and

therefore was not disabled.



                                          II.

        With    this    background       in     mind,     we    turn     to        Mascio’s

contentions of error.

                                          A.

        Mascio first argues that the ALJ erred in assessing her

residual       functional     capacity    because        he    did     not    conduct     a

function-by-function analysis.                We agree that, on the facts of

this case, the ALJ’s failure to perform this analysis requires

remand.

        Mascio’s argument rests on Social Security Ruling 96-8p, 4

which     explains      how      adjudicators         should         assess        residual

functional capacity.             The Ruling instructs that the residual

functional       capacity      “assessment        must        first     identify         the

individual’s functional limitations or restrictions and assess

     4
       The Ruling’s title is “Policy Interpretation Ruling Titles
II and XVI: Assessing Residual Functional Capacity in Initial
Claims.”



                                           8
his   or   her   work-related       abilities       on    a    function-by-function

basis, including the functions” listed in the regulations. 5                        SSR

96-8p, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996).                        “Only after

that may [residual functional capacity] be expressed in terms of

the exertional levels of work, sedentary, light, medium, heavy,

and very heavy.”          Id.     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).”      Id. at 34,478.

      Mascio     contends       that    the     ALJ      did    not    follow    these

procedures.      The Commissioner responds that Mascio’s argument is

“moot” because the ALJ found at step four that Mascio could not

perform her past work.             We, however, find the Commissioner’s

argument    unconvincing        because    ALJs     clearly      use    the   residual


      5
       The listed functions are the claimant’s (1) physical
abilities,   “such   as   sitting,    standing,  walking,  lifting,
carrying,   pushing,    pulling,   or    other  physical  functions
(including manipulative or postural functions, such as reaching,
handling, stooping or crouching)”; (2) mental abilities, “such
as limitations in understanding, remembering, and carrying out
instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting”; and (3) other
work-related abilities affected by impairments “such as skin
impairment(s), epilepsy, impairment(s) of vision, hearing or
other senses, and impairment(s) which impose environmental
restrictions.” 20 C.F.R. § 416.945(b)-(d).



                                           9
functional capacity finding at steps four and five.                              See id. at

34,475-76; see also id. at 34,476 (“At step 5 of the sequential

evaluation process, . . . [w]ithout a careful consideration of

an    individual’s     functional        capacities      to   support         [a   residual

functional capacity] assessment based on an exertional category,

the adjudicator may either overlook limitations or restrictions

that would narrow the ranges and types of work an individual may

be able to do, or find that the individual has limitations or

restrictions that he or she does not actually have.” (emphasis

added)).

       Alternatively,          the    Commissioner    urges        us    to   join      other

circuits that have rejected a per se rule requiring remand when

the     ALJ   does    not      perform     an   explicit       function-by-function

analysis.      See, e.g., Cichocki v. Astrue, 729 F.3d 172, 177 (2d

Cir. 2013) (per curiam) (citing cases from the Sixth, Seventh,

Eighth, and Ninth Circuits).                 We agree that a per se rule is

inappropriate        given     that    remand    would   prove          futile     in   cases

where the ALJ does not discuss functions that are “irrelevant or

uncontested.”        Id.       But declining to adopt a per se rule does

not end our inquiry.             In that regard, we agree with the Second

Circuit that “[r]emand may be appropriate . . . where an ALJ

fails    to   assess       a    claimant’s      capacity      to    perform        relevant

functions,     despite         contradictory     evidence      in       the   record,     or



                                           10
where     other     inadequacies          in       the     ALJ’s     analysis        frustrate

meaningful review.”          Id.     We find this to be such a case.

      Here, the ALJ has determined what functions he believes

Mascio can perform, but his opinion is sorely lacking in the

analysis needed for us to review meaningfully those conclusions.

In   particular,       although         the    ALJ        concluded       that   Mascio    can

perform      certain      functions,          he       said    nothing      about      Mascio’s

ability     to    perform     them       for       a    full   workday.          The   missing

analysis     is   especially       troubling             because    the     record     contains

conflicting        evidence        as     to           Mascio’s     residual        functional

capacity--evidence that the ALJ did not address.

      For     example,       the        administrative             record     includes     two

residual functional capacity assessments (Exhibits 12F and 20F)

by   state       agency     disability         examiners.             These      assessments

conflict with each other.                 Exhibit 12F states that Mascio can

lift 50 pounds, but Exhibit 20F limits her to 20 pounds.                                   Yet

the ALJ’s findings are more consistent with Exhibit 20F, about

which   he    said     nothing.           To   make        matters     worse,       the   ALJ’s

discussion of Exhibit 12F trails off right where he was poised

to announce the weight he intended to give it:




                                               11
A.R. 496 (emphasis added).

        Because we are left to guess about how the ALJ arrived at

his     conclusions       on    Mascio’s         ability     to   perform       relevant

functions      and   indeed,      remain     uncertain       as   to   what     the   ALJ

intended, remand is necessary.

                                            B.

        Mascio    next    argues     that    the      ALJ    presented      a   legally

insufficient hypothetical to the vocational expert. 6                           The ALJ

asked the expert if jobs existed for a hypothetical person with

Mascio’s age, education, and work experience, where the claimant

is “limited to light work but [can] sit or stand at will about

every     30     minutes,      and   [can]       do   only    occasional        postural

activities       such    as    balancing,    stooping,        kneeling,     crouching,

      6
       We find it appropriate to address Mascio’s other alleged
errors because they could recur on remand.



                                            12
crawling and climbing; [but cannot be] expos[ed] to hazardous

conditions such as heights or moving machinery; and can do . . .

frequent fingering.”           A.R. 586.        Notably, the hypothetical said

nothing about Mascio’s mental limitations.

       The vocational expert responded that there were unskilled,

light work jobs for that person, including office helper, order

caller, and warehouse checker. 7             The ALJ’s hypothetical, together

with the vocational expert’s unsolicited addition of “unskilled

work,”      matched    the    ALJ’s     finding    regarding      Mascio’s   residual

functional capacity.           Thus, the hypothetical was incomplete only

if   the     ALJ    failed     to   account       for   a   relevant    factor     when

determining Mascio’s residual functional capacity.                      According to

Mascio,      that     is   precisely      what     happened--the       ALJ   did   not

consider her mental limitations despite crediting at step three

Mascio’s diagnosis of an adjustment disorder and also finding

that       Mascio   had      moderate     difficulties       in    maintaining     her

concentration, persistence, or pace as a side effect of her pain

medication.




       7
        Although the ALJ’s hypothetical said nothing about
“unskilled work,” the expert added that limitation to her
response. The regulations define unskilled work as “work which
needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.”       20 C.F.R.
§ 416.968(a).



                                           13
      The Commissioner argues that the ALJ properly excluded any

limitation for concentration, persistence, or pace because the

ALJ (1) disbelieved Mascio’s need for pain medication because

she   had   been   convicted   of   selling   her   prescription   pain

medication and had lied to her doctor about using marijuana; and

(2) disbelieved Mascio’s claim that her pain medication caused

daytime fatigue because she never sought treatment for this side

effect. 8

      As to the first point, the ALJ’s analysis does not go as

far as the Commissioner’s does.          The ALJ concluded only that

Mascio’s conviction and lie “make[] her statements that her pain

is as limiting as she has alleged less credible.”            A.R. 496

(emphasis added).     The ALJ did not find that she suffered from

no pain or that she never took medication for it.

      As to the second point, it is true that the ALJ concluded

that Mascio’s allegation that her pain caused daytime fatigue

was “less credible” because she did not complain about this side

effect to her doctors.     A.R. 496.     But this leaves us to wonder


      8
       The Commissioner also says that the ALJ properly excluded
the limitation for concentration, persistence, or pace because
Mascio did not attend five scheduled follow-up appointments with
a mental health counselor.    But those appointments related to
her adjustment disorder, not side effects from pain medication.
And, despite Mascio not following up for treatment, the ALJ
credited Mascio’s adjustment disorder as requiring a limitation
to unskilled work.



                                    14
if the ALJ found her claim of fatigue partially or completely

incredible, particularly since the ALJ elsewhere concluded that

Mascio’s pain medication “impacts her thought processes.”                              A.R.

491.    We think this inconsistency needs to be explained.

       In addition, we agree with other circuits 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.”                      Winschel v. Comm’r

of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the

Third, Seventh, and Eighth Circuits).                   As Mascio points out, the

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.

       Perhaps    the      ALJ     can        explain    why      Mascio’s       moderate

limitation in concentration, persistence, or pace at step three

does    not    translate       into    a      limitation   in        Mascio’s    residual

functional capacity.             For example, the ALJ may find that the

concentration, persistence, or pace limitation does not affect

Mascio’s      ability    to    work,     in    which    case    it     would    have   been

appropriate to exclude it from the hypothetical tendered to the

vocational expert.            See id. at 1181.          But because the ALJ here

gave no explanation, a remand is in order.




                                              15
                                                C.

       Next, Mascio contends that the ALJ erred by determining her

residual functional capacity before assessing her credibility.

We   agree        that     the   ALJ     erred,      and   that     the    error   was    not

harmless.

       Mascio’s argument stems from the ALJ’s use of the following

language in his opinion:

       After careful consideration of the evidence, the
       undersigned   finds  that   the  claimant’s  medically
       determinable impairments could reasonably be expected
       to cause the alleged symptoms; however, the claimant’s
       statements concerning the intensity, persistence and
       limiting effects of these symptoms are not credible to
       the extent they are inconsistent with the above
       residual functional capacity assessment.

A.R.       495.       We    agree      with     the    Seventh      Circuit     that     this

boilerplate 9 “gets things backwards” by implying “that ability to

work       is   determined       first    and   is    then    used    to    determine     the

claimant’s credibility.”               Bjornson, 671 F.3d at645.

       The        boilerplate      also    conflicts         with    the     agency’s     own

regulations, which direct the ALJ to “determine the extent to

which       [the     claimant’s]         alleged      functional          limitations    and

restrictions due to pain or other symptoms can reasonably be


       9
       As the government concedes, this language comes from a
template “drafted by the Social Security Administration for
insertion into any administrative law judge’s opinion to which
it pertains.”   Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th
Cir. 2012).



                                                16
accepted as consistent with the medical signs and laboratory

findings    and       other     evidence       to    decide       how    [the    claimant’s]

symptoms    affect       [his    or     her]       ability       to   work.”         20   C.F.R.

§ 416.929(a).          Thus, the ALJ here should have compared Mascio’s

alleged functional limitations from pain to the other evidence

in the record, not to Mascio’s residual functional capacity.

      The boilerplate also suggests that the ALJ acted contrary

to the agency’s rulings.                Social Security Ruling 96-8p defines

residual functional capacity as “an administrative assessment of

the   extent      to    which     an    individual’s             medically      determinable

impairment(s), including any related symptoms, such as pain, may

cause physical or mental limitations or restrictions that may

affect    his    or    her    capacity        to    do     work-related         physical    and

mental activities.”           SSR 96-8p, 61 Fed. Reg. at 34,475 (emphasis

added).         And    when     explaining          that    the       residual    functional

capacity    “assessment          must    be     based       on    all    of    the    relevant

evidence in the case record,” Ruling 96-8p’s illustrative list

includes    “[e]ffects          of     symptoms,         including       pain,       that    are

reasonably attributed to a medically determinable impairment.”

Id. at 34,477 (second emphasis added).                        Thus, a claimant’s pain

and residual functional capacity are not separate assessments to

be compared with each other.                       Rather, an ALJ is required to

consider a claimant’s pain as part of his analysis of residual

functional capacity.

                                               17
        The ALJ’s error would be harmless if he properly analyzed

credibility elsewhere.             But here, the ALJ did not.                 The ALJ gave

three    reasons       for    rejecting       Mascio’s      statements        as   to    pain:

Mascio        (1)   had     not    complied        with    follow-up     mental         health

treatment; (2) had lied to her doctor about using marijuana; and

(3)     had     been      convicted     for     selling      her    prescription         pain

medication.

       The first reason has nothing to do with pain.                          With respect

to the second and third reasons, the ALJ concluded that they

made Mascio’s “statements that her pain is as limiting as she

has    alleged      less     credible.”         A.R.      496.     Yet   in    determining

Mascio’s residual functional capacity, the ALJ chose to credit

some, but not all, of her statements.

       For example, Mascio testified that “she cannot walk more

than about 100 feet, can stand for only 30 minutes, and can only

lift about 15 pounds.”                 A.R. 495.           It appears that the ALJ

credited the second statement, by including the sit/stand option

in his finding as to residual functional capacity.                             But despite

Mascio’s assertion that she was limited in her ability to walk

and lift, the ALJ found that Mascio could perform “light work,”

which includes lifting up to 20 pounds and performing “a good

deal    of     walking.”          20   C.F.R.      § 416.967(b)      (defining          “light

work”).        Nowhere, however, does the ALJ explain how he decided

which of Mascio’s statements to believe and which to discredit,

                                              18
other than the vague (and circular) boilerplate statement that

he did not believe any claims of limitations beyond what he

found   when    considering   Mascio’s      residual      functional      capacity.

The ALJ’s lack of explanation requires remand.

                                       D.

      Lastly,     Mascio   maintains        that    the   ALJ     erred     by     not

following the so-called “great weight rule” when evaluating her

alleged pain.       We conclude that no such rule exists in this

circuit, and we are not persuaded to adopt it.

      According to Mascio, ALJs must afford “great weight” to

subjective evidence regarding a claimant’s allegation that she

suffers from debilitating pain whenever it is uncontradicted or

supported by substantial evidence.                 She relies on two of our

unpublished decisions to support this proposition.                     See Felton-

Miller v. Astrue, 459 F. App’x 226, 229 n.1 (4th Cir. 2011);

Smith v. Astrue, 457 F. App’x 326, 329 (4th Cir. 2011).

      Of course, unpublished opinions in this circuit do not bind

us.     Moreover, Mascio misreads the cases.                  Right before the

language   from    Felton-Miller   and       Smith    that    Mascio      quotes    to

support her argument, we noted that our cases have recognized

“that   subjective    evidence   may     be    entitled      to   great    weight.”

Felton-Miller, 459 F. App’x at 229 n.1 (emphasis added); Smith,

457 F. App’x at 329 (emphasis added).                Read in context, we were

not articulating a per se rule requiring that ALJs afford great

                                       19
weight to subjective evidence or else be reversed.                           Rather, we

were     merely     stating    the    obvious--that           an       ALJ   faced     with

uncontradicted       subjective      evidence    of       a    claimant’s       pain    is

likely to credit that evidence if the ALJ otherwise finds the

claimant credible.          See Combs v. Weinberger, 501 F.2d 1361, 1363

(4th Cir. 1974).           Similarly, an ALJ evaluating a record with

substantial evidence to support a claimant’s pain allegations

may well credit that evidence.

       We   also    note   that   adopting     Mascio’s        prescriptive          “great

weight      rule”   would     conflict    with      the       regulations       and    the

deference owed to the agency.             The regulations direct an ALJ to

take into account “all of the available evidence,” not only the

claimant’s pain allegations.               20 C.F.R. § 416.929(c)(1).                   In

addition, this court must affirm an ALJ’s determination when

supported by substantial evidence.               Bird v. Comm’r of Soc. Sec.

Admin., 699 F.3d 337, 340 (4th Cir. 2012).                         And it is possible

for    substantial     evidence      to   support     both         a   claimant’s      pain

allegations and the ALJ’s decision that the claimant’s pain does

not affect her ability to work to the extent that the claimant

alleges.      Because Mascio’s proposed “great weight rule” is both

unnecessary and unworkable, we decline to adopt it.




                                          20
                                    III.

     For   the   reasons   given,   we     reverse   the   district   court’s

judgment and remand with instructions to vacate the denial of

benefits and remand for further administrative proceedings.



                             REVERSED AND REMANDED WITH INSTRUCTIONS




                                     21
