United States District Court, D. Maryland
Commissioner, Social Security Administration;
20, 2018, Plaintiff Ursula G. petitioned this Court to review
the Social Security Administration's
(“SSA's”) final decision to deny her claims
for Disability Insurance Benefits and Supplementary Security
Income. 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.
protectively filed her claims for benefits on October 3,
2012, alleging an onset date of April 21, 2011. Tr. 396-409.
Her claims were denied initially and on reconsideration. Tr.
164-73, 178-81. Following two extensions of time to gather
additional medical records and allow Plaintiff time to find
counsel, Tr. 41-68, a hearing was held on December 16, 2016,
before an Administrative Law Judge (“ALJ”), Tr.
69-115. 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. 15-29. The
Appeals Council declined review, Tr. 1-6, so the ALJ's
decision constitutes the final, reviewable decision of the
found that, during the relevant time frame, Plaintiff
suffered from the severe impairments of “mild COPD;
asthma; obesity; history of ischemic heart disease with prior
stenting in 2010 and 2015; coronary artery disease;
congestive heart failure; hypertension; depressive disorder;
anxiety disorder; and opioid dependence.” Tr. 17.
Despite these impairments, the ALJ determined that Plaintiff
retained the residual functional capacity (“RFC”)
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that she is further limited to: never
climbing ladders, ropes, or scaffolds; occasional balancing,
stooping, kneeling, crouching, crawling, and climbing ramps
or stairs; no more than occasional exposure to extreme heat
and cold, wetness, humidity, fumes, odors, gases, and poor
ventilation; understanding, remembering and carrying out
simple instructions; doing simple, routine work that is not
at a production pace; and breaks would be within customary
tolerance (one 15-minute break in the morning, one 15-minute
break in the afternoon, and a 30-minute lunch break).
Tr. 21. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could perform her past relevant work, or, alternatively,
could perform other jobs existing in significant numbers in
the national economy. Tr. 26-28. Therefore, the ALJ concluded
that Plaintiff was not disabled during the relevant time
frame. Tr. 28-29.
raises two arguments on appeal: (1) that the ALJ's
listing analysis was deficient; and (2) that the ALJ's
step five conclusion was not supported by substantial
evidence because the hypothetical posed to the VE was flawed.
I agree with Plaintiff's arguments, 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 Plaintiff's listing argument, she argues the ALJ
inadequately analyzed Listing 3.02, because the ALJ did not
discuss whether Plaintiff satisfied the requirements of
3.02(C)(2) or 3.02(C)(3). At step three of the five-step
sequential evaluation, the SSA determines whether a
claimant's impairments meet or equal any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). Listings 3.00 et seq. pertain to
respiratory disorders, and Listing 3.02 specifically
addresses “Chronic respiratory disorders due to any
cause except [cystic fibrosis].” 20 C.F.R. Pt. 404,
Subpt. P, App. 1 §§ 3.00, 3.02 (2017). A chronic
respiratory disorder can meet Listing 3.02 by satisfying any
one of four subsections, lettered A through D. Id.
§ 3.02. Subsection C requires “[c]hronic
impairment of gas exchange demonstrated by” satisfying
one of three further numbered subsections. Id.
the ALJ discussed Listing 3.02, and cited to evidence in the
medical record showing Plaintiff did not meet the
requirements of 3.02(A), 3.02(B), 3.02(C)(1), and 3.02(D).
See Tr. 18-19. However, the ALJ did not cite to any
evidence pertaining to the requirements of 3.02(C)(2) and
3.02(C)(3). See Id. Plaintiff argues this error
requires remand, and cites to a specific medical record she
claims satisfies the requirements of 3.02(C)(3). ECF 18-1 at
15 (citing a pulse oximetry measurement at Tr. 1088). The SSA
argues that the cited pulse oximetry measurement does not
fully satisfy the requirements to meet the listing, because
it does not include a “graphical printout . . . and a
concurrent, acceptable pulse wave as the regulations
require.” ECF 19-1 at 8; see 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 3.00(H)(2)(e)(ii). The Court is
convinced there is enough potential support in the record
that it cannot disregard the ALJ's lack of explanation as
mere harmless error. See Radford v. Colvin, 734 F.3d
288, 295-96 (4th Cir. 2013) (holding that the ALJ's lack
of explanation at step three rendered it “impossible
for a reviewing court to evaluate whether substantial
evidence supports the ALJ's findings.”).
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 is not
defined by common meaning, regulation, or the Dictionary of
Occupational Titles (“DOT”). ECF 14-1 at 17-18.
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. 916 F.3d at 312;
see also Perry v. Berryhill, No. 18-1076, __ F.
App'x, __ 2019 U.S. App. LEXIS 6969 (4th Cir. Mar. 8,
2019) (unpublished) (remanding for ALJ's failure to
define “non-production oriented work setting”).
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 work “not at a production pace,
” with no further definition of that term. Tr. 106,
111. The term “production pace” is directly
analogous to the term deemed problematic in Thomas.
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.
argues that this Court has previously held that a similar RFC
limitation was subject to a common understanding. In
Crocetti v. Commissioner, Social Security
Administration, Civil No. SAG-17-1122, 2018 U.S. Dist.
LEXIS 95697 (D. Md. June 6, 2018), this Court did uphold a
similar RFC provision. Critically, however, Crocetti
noted that, “[n]o precedent, binding or otherwise,
requires an additional definition to be presented in order
for a hypothetical containing the phrase ‘production
rate pace' to be understandable to a VE.”
Id. at *5. That position cannot be maintained in the
wake of Thomas.
also argues that the Fourth Circuit remanded Thomas
for multiple reasons, and that Thomas should not be
read to require remand every time an ALJ uses the terms
“production rate or demand pace, ” or similar
such terms, without explanation. Shortly after
Thomas, the Fourth Circuit decided Perry,
2019 U.S. App. LEXIS 6969. While Perry is an
unpublished decision, and therefore not binding precedent in
this Circuit, it supports the proposition that a case can be
remanded when the sole error of the ALJ is the failure to
define “non-production oriented work setting.”
Id. at *9. Additionally, Perry attempted to
distinguish the previous case of Sizemore v.
Berryhill, 878 F.3d 72 (4th Cir. 2017). Perry,
2019 U.S. App. LEXIS 6969, at *9 n.1. In Sizemore,
the Fourth Circuit affirmed an ALJ's denial of benefits
in which the ALJ included an RFC limitation to “work
only in [a] low stress [setting] defined as non-production
jobs [without any] fast-paced work [and] with no public
contact.” 878 F.3d at 79 (alterations in original). The
Fourth Circuit in Perry explained that the
additional “descriptors” in Sizemore
“helped to explain the restriction intended by the ALJ,
and allowed us to evaluate whether that restriction
adequately accounted for the claimant's
limitations.” Perry, 2019 U.S. App. LEXIS
6969, at *9 n.1.
the RFC did not contain the “descriptors” present
in Sizemore. Rather, the RFC limitation to
“simple, routine work that is not at a production pace,
” Tr. 21, is directly analogous to the RFC limitation
in Thomas where the claimant was limited to the
ability to “follow short, simple instructions and
perform routine tasks, but no work requiring a production
rate or demand pace, ” 916 F.3d at 310. The SSA's
citation to Michaels v. Berryhill, 697 Fed.Appx. 223
(4th Cir. 2017) (unpublished), is unpersuasive, as that
opinion was simply a one paragraph decision affirming the
district court's judgment, and did not contain any
discussion of the phrase “nonproduction pace
rates.” Additionally, while the phrase production rate
pace is used in an appendix to the DOT, a definition is not
provided. U.S. Dep't of Labor, Dictionary of
Occupational Titles, App. C (4th ed. 1991), 1991 WL
the SSA argues that even if the ALJ committed error by not
explaining the production pace limitation, it was harmless,
because the ALJ found Plaintiff only had a mild limitation in
concentration, persistence, or pace. In Thomas, the
claimant argued that the ALJ failed to account for her
moderate limitations in concentration, persistence and pace.
916 F.3d at 312 n.5. In a footnote, the Fourth Circuit stated
it “decline[s] to resolve that question . . . [because]
[w]ithout further explanation, we simply cannot tell whether
the RFC finding-particularly the portion restricting Thomas
to jobs that do not require a ‘production rate' or
‘demand pace'- properly accounts for Thomas's
moderate limitations in concentration, persistence, and
pace.” Id. Following the Fourth Circuit's
reasoning, the lack of a definition of ...