United States District Court, D. Maryland
Commissioner, Social Security Administration;
STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
6, 2018, Plaintiff Marion J. petitioned this Court to review
the Social Security Administration's
(“SSA's”) final decision to deny his claim
for Disability Insurance Benefits. ECF 1. I have considered
the parties' cross-motions for summary judgment, and
Plaintiff's reply. ECF 14, 16, 17. 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 June 15, 2015, alleging an onset date of June
1, 2008. Tr. 151-55. His claim was denied initially and on
reconsideration. Tr. 121-24, 128-29. A hearing was held on
August 30, 2017, before an Administrative Law Judge
(“ALJ”). Tr. 71-104. 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. 22-33. The Appeals Council declined review, Tr.
6-11, so the ALJ's decision constitutes the final,
reviewable decision of the SSA.
Plaintiff's date last insured was December 31, 2008, he
had to establish a disability onset on or before that date,
leaving him a seven-month window from his alleged onset date
within which to prove disability. Tr. 24. The ALJ found that,
during the relevant time frame, Plaintiff suffered from the
severe impairment of “degenerative joint disease of the
right knee and right shoulder, by history.” Tr. 25.
Despite this impairment, the ALJ determined that Plaintiff
retained the residual functional capacity (“RFC”)
perform light work as defined in 20 CFR 404.1567(b), except
the claimant could only occasionally stoop and squat but
never crawl or climb. He could not perform any work overhead.
In addition, he was limited to performing simple, repetitive,
non-production job tasks.
Tr. 27. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could not perform his past relevant work, but could perform
other jobs existing in significant numbers in the national
economy. Tr. 31-33. Therefore, the ALJ concluded that
Plaintiff was not disabled during the relevant time frame.
raises one primary argument on appeal: 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 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.
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 14-1
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. 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 “non-production job tasks, ” with no
further definition of that term. Tr. 101. The term
“non-production job tasks” appears to be
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
argues that this Court has previously held that a similar RFC
limitation was subject to a common understanding, or,
alternatively, that the ALJ's failure to define the
limitation was harmless error. ECF 16-1 at 6, 7. 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. Given the Fourth Circuit's
understanding of the phrases “production rate” or
“demand pace” in Thomas, 916 F.3d at
312, or lack thereof, this Court cannot adequately say
whether the ALJ's inclusion of “non-production job
tasks” in the RFC limitation was harmless.
reasons set forth herein, Plaintiff's Motion for Summary
Judgment, ECF 14, is DENIED and Defendant's Motion for
Summary Judgment, ECF 16, is DENIED. Pursuant to sentence
four of 42 U.S.C. § 405(g), the SSA's judgment is
REVERSED IN PART due to inadequate analysis. The case is
REMANDED for further proceedings in accordance with this
opinion. The Clerk is directed to CLOSE this case.
the informal nature of this letter, it should be flagged as
an opinion. A separate order will issue.