United States District Court, D. Maryland
Commissioner, Social Security Administration;
4, 2018, Plaintiff Nora P. 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 reply. ECF 18, 19, 20. I find that no hearing
is necessary. See Loc. R. 105.6 (D. Md. 2018). This
Court must uphold the decision of the SSA if it is supported
by substantial evidence and if the SSA employed proper legal
standards. See 42 U.S.C. §§ 405(g),
1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Under that standard, I will deny both motions,
reverse the judgment of the SSA, and remand the case to the
SSA for further analysis pursuant to sentence four of 42
U.S.C. § 405(g). This letter explains my rationale.
prior denial of benefits, Plaintiff filed the instant claim
for benefits on May 9, 2012, alleging an onset date of August
11, 2007. Tr. 156-57. Her claim was denied initially
and on reconsideration. Tr. 88-91, 93-94. A hearing was held
on June 19, 2014, before an Administrative Law Judge
(“ALJ”). Tr. 25-57. Following the hearing, the
ALJ determined that Plaintiff was not disabled within the
meaning of the Social Security Act during the relevant time
frame. Tr. 9-24. The Appeals Council declined review. Tr.
1-5. Plaintiff then appealed the decision to this Court, and
the case was remanded for further consideration. Tr. 682-84.
An ALJ held a second hearing on February 21, 2018. Tr.
633-77. On March 30, 2018, the ALJ issued an opinion again
denying benefits. Tr. 618-32. The ALJ's 2018 decision is
the final, reviewable decision of the SSA. See 20
C.F.R. § 404.984 (ALJ's decision after Federal court
remand is final decision unless Appeals Council assumes
Plaintiff's date last insured was December 31, 2009, she
had to establish a disability onset on or before that date,
leaving her less than a one-month window from her amended
alleged onset date within which to prove disability. Tr. 623.
The ALJ found that, during the relevant time frame, Plaintiff
suffered from the severe impairments of “trigeminal
neuralgia, anxiety, and depression.” Tr. 623. Despite
these impairments, the ALJ determined that Plaintiff retained
the residual functional capacity (“RFC”) to:
perform medium work as defined in 20 CFR 404.1567(c) except
she could have only occasional exposure to extreme cold,
extreme heat, wetness, humidity, vibration, fumes, odors,
dust, gases, poor ventilation, no hazards; and no fast pace
or strict production requirements.
Tr. 625. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could not perform her past relevant work, but could perform
other jobs existing in the national economy, specifically the
representative occupations of box bender, mold filler, and
hand packager. Tr. 629-30. Therefore, the ALJ concluded that
Plaintiff was not disabled during the relevant time frame.
raises two primary arguments on appeal: (1) that the
ALJ's step five conclusion was not supported by
substantial evidence because the hypothetical posed to the VE
was flawed; and (2) that the ALJ erred by failing to properly
consider Plaintiff's diagnosis of fibromyalgia. ECF 18-1
at 9-26. I agree with Plaintiff's first argument, and I
therefore grant remand under sentence four. In remanding for
further explanation, I express no opinion as to whether the
ALJ's ultimate conclusion that Plaintiff is not entitled
to benefits is correct.
with the successful argument, Plaintiff cites the recent
opinion of the Fourth Circuit in Thomas v.
Berryhill, 916 F.3d 307 (4th Cir. 2019) for the
proposition that remand is warranted where a limitation
proposed by the ALJ in his hypothetical limitation is not
defined by common meaning, regulation, or the DOT. ECF 18-1
at 11. In Thomas, the Fourth Circuit held that the
ALJ's failure to define “production rate or demand
pace” was fatal to the RFC assessment, because the lack
of clarity frustrated appellate review. Id. at
312-13. In this case, Plaintiff presents the argument as a
flaw in the hypothetical presented to the VE instead of a
flaw in the RFC assessment, although the deficient RFC
assessment would also infect the hypothetical based on that
assessment. Plaintiff is correct that the ALJ presented the
VE with a hypothetical including “no fast pace, or
strict production requirements, ” with no further
definition of those terms. Tr. 673-74. The term “strict
production requirements” is directly analogous to the
term deemed problematic in Thomas, and, as this
Court has previously noted, “Different individuals can
have different conceptions of what work is or is not
‘fast.'” Crocetti v. Comm'r. Soc.
Sec., Civil No. SAG-17-1122 (D. Md. June 6, 2018).
Therefore, remand is warranted to allow the ALJ to clarify
the RFC assessment and hypothetical to the VE, in order to
establish that the VE's testimony constitutes substantial
evidence supporting the ALJ's conclusion.
also contests the ALJ's evaluation of her fibromyalgia
diagnosis, suggesting that the ALJ's evaluation
misapprehends the incurable nature of fibromyalgia. ECF 18-1
at 12-26. To substantiate her claim that she was diagnosed
with fibromyalgia prior to her date last insured, Plaintiff
cites only to records from a single medical appointment, on
March 20, 2008, at which Plaintiff reported having a history
of fibromyalgia diagnosis. Tr. 283, 380. The examining
doctor neither affirmed the diagnosis nor related the
symptoms Plaintiff reported to fibromyalgia. See,
e.g., Tr. 283 (diagnosing facial neuralgia and
headache). Plaintiff, who bears the burdens of production and
proof at step two, did not submit any medical records
demonstrating which medical provider had diagnosed
fibromyalgia before the March 20, 2008 appointment, or which
diagnostic criteria supported the diagnosis. See Hunter
v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (noting
that the evidentiary burdens rest on the claimant).
Accordingly, I find no error, on the current record, in the
ALJ's application of SSR 12-2p, 2012 WL 3104869 (S.S.A.
July 25, 2012). Since the case is being remanded on other
grounds, on remand, the ALJ should address any
fibromyalgia-related evidence in accordance with SSR 12-2p.
the informal nature of this letter, it should be flagged as
an opinion. A separate order will issue.
Stephanie A. Gallagher United ...