United States District Court, D. Maryland
Commissioner, Social Security Administration;
LETTER TO COUNSEL
18, 2018, Plaintiff Michael C. petitioned this Court to
review the Social Security Administration's
(“SSA's”) final decision to deny his claim
for Supplemental Security Income. ECF 1. I have considered
the parties' cross-motions for summary judgment, and
Plaintiff's reply. ECF 16, 18, 19. 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.
filed the instant claim for benefits on October 15, 2015,
alleging an onset date of July 29, 2013. Tr. 172-80.
His claim was denied initially and on reconsideration. Tr.
98-101, 105-10. A hearing was held on March 15, 2017, before
an Administrative Law Judge (“ALJ”). Tr. 36-64.
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. 17-31. The Appeals
Council declined review, Tr. 1-7, making the ALJ's
decision the final, reviewable decision of the SSA.
found that, during the relevant time frame, Plaintiff
suffered from the severe impairments of “traumatic
brain injury status post gunshot wound to the face, blind in
the right eye secondary to self-inflicted gunshot wound,
post-traumatic left arm weakness (non-dominant) and mood
disorder.” Tr. 19. Despite these impairments, the ALJ
determined that Plaintiff retained the residual functional
capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 416.967(a) except
sitting for 6 hours and standing and walking for no more than
5 hours of an 8-hour day. He can lift and carry 10 pounds
occasionally and frequently with the right upper extremity
and lift 5 pounds with the left upper extremity. He is
limited to frequent climbing, no climbing of ladders, ropes,
or scaffolds and frequent balancing. Reaching with the left
upper extremity is limited to occasional and is limited to
occasional handling and fingering with the left, non-dominant
upper extremity. He should avoid dangerous machinery and
unprotected heights. He has monovision and would have
incomplete peripheral vision. He is limited to simple and
detailed work with no production rate paced
Tr. 23. After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Plaintiff
could not perform his past relevant work as a sales clerk or
tattoo artist, but could perform one job existing in the
national economy, specifically the job of surveillance system
monitor. Tr. 30-31. Therefore, the ALJ concluded that
Plaintiff was not disabled. Tr. 31.
raises three primary arguments on appeal: (1) that the ALJ
erred in considering his moderate limitations in
concentration, persistence, and pace when formulating his RFC
assessment; (2) that the ALJ failed to reconcile an apparent
conflict between the RFC assessment and the job identified by
the VE; and (3) that the ALJ's determination that he
could perform the job of surveillance system monitor was not
supported by substantial evidence, since the job is obsolete.
I agree that the ALJ's consideration of Plaintiff's
limitations in concentration, persistence, and pace was
insufficient under governing Fourth Circuit law, and that the
ALJ failed to identify and address an apparent conflict
regarding the VE's testimony, 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.
Plaintiff contends that the ALJ's assessment of his
concentration, persistence, and pace was erroneous. The ALJ
determined that Plaintiff had “moderate”
difficulties in that functional area, and addressed that
limitation by restricting Plaintiff to “simple and
detailed work, ” and “no production rate paced
jobs.” Tr. 22, 23. This Court's ability to review
the limitation to “no production rate paced jobs”
is hampered by a lack of definition, as addressed by the
Fourth Circuit's recent opinion in Thomas v.
Berryhill, 916 F.3d 307 (4th Cir. 2019). 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 Plaintiff's case, the RFC assessment contains
an equivalent limitation to “no production rate paced
jobs, ” without further definition of those terms. Tr.
23. Absent such a definition, I cannot ascertain whether the
limitation suffices to address Plaintiff's moderate
limitation in concentration, persistence, or pace. On remand,
then, the ALJ should ensure that the RFC assessment and
related analysis comports with Thomas.
Plaintiff argues the RFC assessment was inconsistent with the
required reasoning level of the job of surveillance system
monitor. The ALJ is required to address any conflicts or
apparent conflicts between the VE's testimony and the
information contained in the Dictionary of Occupational
Titles (“DOT”). See Pearson v. Colvin,
810 F.3d 204, 208-10 (4th Cir. 2015); see also SSR
00-4p, 2000 WL 1898704, at *2 (S.S.A Dec. 4, 2000) (“At
the hearings level, as part of the adjudicator's duty to
fully develop the record, the adjudicator will inquire, on
the record, as to whether or not there is such
consistency.”) Although the RFC assessment refers to
“simple and detailed work, ” Tr. 23, the
hypothetical question posed to the VE limited the
hypothetical claimant to “simple work, ” Tr.
58-59. The VE responded by identifying a single position:
Surveillance-System Monitor (DOT Code 379.367-010). Tr. 59.
According to the DOT, that position requires a Reasoning
Level of 3, U.S. Dep't of Labor, Dictionary of
Occupational Titles § 379.367-010 (4th ed. 1991),
1991 WL 673244, which requires the ability to “[a]pply
commonsense understanding to carry out instructions furnished
in written, oral, or diagrammatic form, ” and
“[d]eal with problems involving several concrete
variables in or from standardized situations, ”
id. App. C. The Fourth Circuit has explained that
“an apparent conflict exists between a limitation to
simple tasks and Reasoning Development Level 3 jobs.”
Keller v. Berryhill, 754 Fed.Appx. 193, 198 (4th
Cir. 2018) (unpublished) (citing an internal Social Security
Administration memorandum); see also Thomas v.
Berryhill, 916 F.3d 307, 313-14 (4th Cir. 2019) (holding
apparent conflict existed between limitation to “short,
simple instructions” and jobs requiring Reasoning Level
2). Thus, the ALJ should have identified the apparent
conflict and explored the issue with the VE to determine
whether, in fact, Plaintiff was capable of performing the
proposed monitoring work.
final argument, regarding the obsolescence of the job of
surveillance system monitor, is not persuasive as stated.
Plaintiff contends that the Aviation and Transportation
Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2001) and
the Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135 (2002), created the Transportation Security
Administration (“TSA”) and rendered it
responsible for security over “all modes of
transportation.” ECF 16-1 at 20-21. Plaintiff thus
cites the statutory requirements for TSA's surveillance
system monitors, listed at 49 U.S.C. § 44935, and argues
that those requirements are inconsistent with the position of
surveillance system monitor set forth in the DOT.
flaw in Plaintiff's argument is that the TSA's
authority does not extend over all public transportation
terminals. For example, cities maintain their own subway,
bus, and commuter train systems, without using TSA employees.
Certainly, there are reasons to question whether the job of
Surveillance System Monitor, as described in the DOT from
more than thirty years ago, remains viable in the current
economy. See Britton v. Berryhill, No. 4:17 CV 1956
DDN, 2018 WL 4332062, at *5 (E.D. Mo. Sept. 11, 2018)
(describing a scholarly article concluding that all 58 sample
surveillance system monitor positions studied required
“physical or mental duties substantially in excess of
those contained in the DOT's description”).
However, the statutory requirements for a TSA employee,
alone, do not establish that the position is now obsolete in
all public transportation terminals.
the informal nature of this letter, it should be flagged as
an opinion. A separate order will issue.
STEPHANIE A. GALLAGHER UNITED ...