United States District Court, D. Maryland
Mark Coulson United States Magistrate Judge
January 2, 2019 Patricia W. (“Plaintiff”)
petitioned this Court to review the Social Security
Administration's (“SSA”) final decision to
deny her claims for Supplemental Security Income
(“SSI”). (ECF No. 1). I have considered the
parties' cross-motions for Summary Judgment, and
Plaintiff's reply. (ECF Nos. 15, 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 for further analysis pursuant to sentence
four of 42 U.S.C. § 405(g). This letter explains my
protectively filed her application for SSI on July 23, 2014,
alleging an onset date of February 19, 2010. (Tr. 164-173).
Her claims were denied initially, and again on
reconsideration. (Tr. 109-10). A hearing was held on May 10,
2017 before ALJ Raghav Kotval. Id. at 12-32.
Following the hearing, the ALJ determined that Plaintiff was
not disabled within the meaning of the Social Security Act
during the relevant time frame. Id. The Appeals
Council affirmed (Tr. 1-6), and consequently the ALJ's
decision constitutes the final, reviewable decision of the
arriving at the decision to deny Plaintiff's claim, the
ALJ followed the five-step sequential evaluation of
disability set forth in the Secretary's regulations. 20
C.F.R. § 416.920. “To summarize, the ALJ asks at
step one whether the claimant has been working; at step two,
whether the claimant's medical impairments meet the
regulations' severity and duration requirements; at step
three, whether the medical impairments meet or equal an
impairment listed in the regulations; at step four, whether
the claimant can perform her past work given the limitations
caused by her medical impairments; and at step five, whether
the claimant can perform other work.” Mascio v.
Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). If the
first three steps do not yield a conclusive determination,
the ALJ then assesses the claimant's residual functional
capacity (“RFC”), “which is ‘the
most' the claimant ‘can still do despite'
physical and mental limitations that affect her ability to
work, ” by considering all of the claimant's
medically determinable impairments regardless of severity.
Id. at 635 (quoting 20 C.F.R. § 416.945(a)(1)).
The claimant bears the burden of proof through the first four
steps of the sequential evaluation. If he makes the requisite
showing, the burden shifts to the Social Security
Administration at step five to prove “that the claimant
can perform other work that ‘exists in significant
numbers in the national economy,' considering the
claimant's residual functional capacity, age, education,
and work experience.” Lewis v. Berryhill, 858
F.3d 858, 862 (4th Cir. 2017) (internal citations omitted).
case, at step one, the ALJ found that Plaintiff had not
engaged in “substantial gainful activity” since
July 23, 2014. (Tr. 17). At step two, the ALJ determined that
during the relevant time frame, Plaintiff suffered from the
severe impairments of “osteoarthritis of the right
knee, arthritis of the left knee, degenerative disc disease
of the lumbar spine, obesity, fibromyalgia, undifferentiated
and mixed connective tissue disease, asthma, edema of the
lower extremities, and affective disorder.”
Id. At step three, the ALJ found that Plaintiff does
not have an impairment or combination of impairments that
meet or medically equal the severity of any of the listed
impairments set forth in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id. at 37-38. Then, “[a]fter
consideration of the entire record, ” the ALJ
determined that Plaintiff has the RFC to:
[P]erform sedentary work as defined in 20 CFR 416.967(a)
except the claimant can lift, carry, push, and pull 10 pounds
occasionally and less than ten pounds frequently. She can sit
for six hours in an eight-hour workday, and stand and walk
for two hours in an eight-hour workday. The claimant should
never climb ladders, ropes, or scaffolds. The claimant could
occasionally climb ramps, stairs, balance, and stoop, kneel,
crouch, and crawl. The claimants can perform simple, routine
tasks, not at a production pace. She must avoid all exposure
to concentrated odors, gases, fumes, or poor ventilation. Due
to the combined effects of the claimant's conditions, she
would be off task for ten percent of a workday. (Tr. 20).
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.
(Tr. 26-27). Therefore, the ALJ concluded that Plaintiff was
not disabled during the relevant time frame. Id. at
Court reviews an ALJ's decision to ensure that the
ALJ's findings are supported by substantial evidence and
were reached through application of correct legal standards.
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion, ” which “consists of more
than a mere scintilla of evidence but may be less than a
preponderance.” Id. In accordance with this
standard, the Court does not “undertake to reweigh
conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the ALJ.”
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005). Instead, “[w]here conflicting evidence allows
reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the
appeal, Plaintiff sets forth two arguments: (1) the ALJ erred
by setting forth an inadequate hypothetical, rending the
ALJ's RFC determination and step-five conclusion
unsupported by substantial evidence (ECF No. 15 at 9); and
(2) the ALJ failed to conduct a function-by function
assessment, specifically, he did not explain his finding that
Plaintiff would be “off task for ten percent of a
workday” due to the combined effects of her conditions.
(ECF No. 15 at 12).
with Plaintiff that the ALJ's conclusion was not
supported by substantial evidence because the hypothetical
posed to the VE was flawed. The ALJ's hypothetical to the
included the term “non-production job tasks, ”
but provided no definition of such. (Tr. 65-68). The phrase
“not at the production pace” appears to be
analogous but that deemed problematic by the Court of Appeals
for the Fourth Circuit in Thomas v. Berryhill, 916
F.3d 307, 313-14 (4th Cir. 2019). In Thomas, the
Court 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. App'x 869 (4th Cir. 2019)
(unpublished) (remanding for ALJ's failure to define
“non-production oriented work setting”). Given
the Fourth Circuit's criticism of the phrases
“production rate” or “demand pace” in
Thomas, or lack thereof, this Court cannot
adequately say whether the ALJ's inclusion of
“non-production job tasks” in the RFC limitation
was harmless. See Marion J. v. Comm'r, Soc.
Sec., No. SAG-18-2407, 2019 WL 2290496, at *2 (D. Md.
May 29, 2019). 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.
Marion, 2019 WL 2290496, at *2.
Plaintiff identifies that the ALJ failed to provide an
explanation for his conclusion that “[d]ue to the
combined effects of the claimant's conditions,
[Plaintiff] would be off task for ten percent of a
workday.” (Tr. 20). Aside from this mention in the RFC
assessment, the only other dialogue pertaining to the
percentage occurred during the hearing. The VE testified that
if Plaintiff were only off task for 10% of the day, there
would be jobs available for her to perform, but that if she
were to be off task any more than 10%, there would not be.
Id. at 70. The VE clarified that this explanation
was based on experience, rather than the DOT. Id. In
addition, Plaintiff's Counsel asked the VE if the
aforementioned jobs would still be able to be performed in a
“competitive work environment, ” if the
hypothetical individual was required to elevate her legs at
least four hours a day. Id. at 71. The VE responded
that this would eliminate such work, and such would likely
require a special, beneficent employer that would tolerate
that. Id. Plaintiff's Counsel asked if,
basically, the VE was saying that such a requirement would
amount to Plaintiff being more than 10% off task, and the VE
evidence described by the ALJ certainly suggests
that Plaintiff would have difficulty staying on task
throughout an entire workday. In its briefing the
Commissioner sketches the ALJ's thorough analysis of the
case as a whole. (ECF No. 16-1 at 13). Even so, the ALJ
failed to explain how he reached the conclusion of 10%. This
Court is not in a position to determine, in the first
instance, whether Plaintiff would be off-task 10%, 15 %, 5%
or 13 % of the time. Kane, 2018 WL 2739961, at *2.
Given the VE's testimony, rendering the percentage of
time off-task to be work-preclusive, the ALJ failed to
fulfill the duty of explanation on this issue, and remand is
warranted. See Sheila K v. Comm'r, No.
SAG-17-cv-01252, 2018 WL 2739961, at *1 (D. Md. May 14, 2018)
(assigning a precise percentage of time off-task constituted
a critical part of the disability determination); Petry
v. Comm'r, Soc. Sec. Admin., No. SAG-16-cv-464, 2017
WL 680379, at *2 (D. Md. Feb. 21, 2017) (requiring specific
explanation as to how the ALJ's percentage was
calculated, as one percent increase could preclude
competitive employment). Absent further explanation, the
Court is unable to ascertain how the ALJ determined the ten
percent figure and how that determination impacted the RFC
assessment. In remanding for additional explanation, I
express no opinion as to whether the ALJ's conclusion
that Plaintiff is not entitled to benefits is correct.
reasons set forth herein, Plaintiff's Motion for Summary
Judgment (ECF No. 15) is DENIED, and
Defendant's Motion for Summary Judgment (ECF No. 16) is
DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g),
the SSA's is REVERSED, and the case is REMANDED for