United States District Court, D. Maryland
Commissioner, Social Security Administration;
STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
October 18, 2018, Plaintiff Brenda C. 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 14, 15, 16. 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 9, 2015,
alleging an onset date of December 13, 2012. Tr. 190-96. Her
claim was denied initially and on reconsideration. Tr.
110-12, 116-17. A hearing was held on October 18, 2017,
before an Administrative Law Judge (“ALJ”). Tr.
35-84. 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. 19-29. 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 impairment of affective disorder.
Tr. 21. Despite this impairment, the ALJ determined that
Plaintiff retained the residual functional capacity
perform a full range of work at all exertional levels but
with the following nonexertional limitations: simple, routine
tasks not at a production pace; can only occasionally adjust
to changes in work place settings; can only occasionally
interact with supervisors, coworkers, and the public; and
will be absent one day per month.
Tr. 24. 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 significant numbers in the national
economy, specifically the positions of dayworker, linen room
attendant, and industrial cleaner. Tr. 27-29. Therefore, the
ALJ concluded that Plaintiff was not disabled during the
relevant time frame. Tr. 29.
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 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, 765 Fed.Appx. 869, 872
(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 that
distinction is meaningless because 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 “not at a production
pace, ” with no further definition of that phrase. Tr.
80. The term “production pace” appears to be
analogous to the terms 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, or,
alternatively, that the ALJ's failure to define the
limitation was harmless error. ECF 15-1 at 5-7. In
Crocetti v. Comm'r, Soc. Sec. Admin., 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. Whether or not the VE may have believed she
understood the term, under current Fourth Circuit law, more
specific definition is required to allow this Court to
determine whether the ALJ has built a “logical
bridge” between the evidence and his conclusion.
the argument about harmless error, given the Fourth
Circuit's discussion of the phrases “production
rate” or “demand pace” in Thomas,
916 F.3d at 312, this Court cannot adequately say whether the
ALJ's inclusion of the phrase “not at a production
pace” in Plaintiff's RFC limitation was harmless.
Because “production pace” is not defined or
mentioned in the relevant section of the DOT, any assessment
as to whether the positions of day worker, linen room
attendant, or janitor/industrial cleaner require work at a
production pace would be based on this Court's lay
understanding of the meaning of that term. Under the Fourth
Circuit's guidance in Thomas, this Court is
unable to engage in that analysis without an adequate
explanation from the ALJ of the definition of
“production pace” that he intended to apply to
reasons set forth herein, Plaintiff's Motion for Summary
Judgment, ECF 14, is DENIED and Defendant's Motion for
Summary Judgment, ECF 15, 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