Thomas M. DiGirolamo United States Magistrate Judge

MEMORANDUM OPINION GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND

Plaintiff Jennifer S. seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying her applications for disability insurance benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment and alternative motion for remand (ECF No. 16) and Defendant's Motion for Summary Judgment (ECF No. 19). Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner's decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Plaintiff's alternative motion for remand (ECF No. 16) is GRANTED.

I

Background

Following the Court's remand in Jennifer S. v. Berryhill, Civil No. TMD 17-2487, 2018 WL 5112407 (D. Md. Oct. 19, 2018), Administrative Law Judge ("ALJ") Thomas Mercer Ray held a supplemental hearing on July 15, 2019, in Washington, D.C., where Plaintiff and a vocational expert ("VE") testified. R. at 941-78. The ALJ thereafter found in a partially favorable decision on October 29, 2019, that Plaintiff was not disabled before July 26, 2019, but became disabled on that date through the date of the ALJ's decision. The ALJ also found that Plaintiff was not disabled at any time through December 31, 2013, the date last insured. R. at 789-824. In so finding, the ALJ found that Plaintiff had not engaged in substantial, gainful activity since Plaintiff's alleged onset date of disability of December 11, 2011, and that she had severe impairments, including, among other things, affective mood disorder and anxiety-related disorder. R. at 797-99. Since December 11, 2011, however, she did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. R. at 799-803. In comparing the severity of Plaintiff's mental impairments to the listed impairments, the ALJ found that Plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace before the established onset date. R. at 801-02.

The ALJ then found that, since December 11, 2011, Plaintiff had the residual functional capacity ("RFC")

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except [Plaintiff] can frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl and can only occasionally climb ropes, ladders, or scaffolds. [Plaintiff] also retains the ability to concentrate, persist and stay on pace with regard to performing simple, 1-4 step, routine repetitive tasks where such is performed in a low-stress work environment, defined as requiring only occasional decision

making and occasional changes in the work setting; where there would only be occasional contact with co-workers, supervisors, and the public; and which would not require a fast pace or production quotas such as would customarily be found working on an assembly line.

Plaintiff filed on February 26, 2020, a complaint in this Court seeking review of the Commissioner's decision. Upon the parties' consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case then was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

II

Disability Determinations and Burden of Proof

The Social Security Act defines a disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003). "If at any step a finding of disability or nondisability can be made, the [Commissioner] will not review the claim further." Thomas, 540 U.S. at 24, 124 S. Ct. at 379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).

First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see whether the claimant has a "severe" impairment, i.e., an impairment or combination of impairments that significantly limits the claimant's physical or mental ability to do basic work activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c), 404.1522(a), 416.920(c), 416.922(a).

Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.

Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant's RFC to determine the claimant's "ability to meet the physical, mental, sensory, and other requirements" of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but the Commissioner is responsible for developing the claimant's "complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant's] own medical sources." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

Fifth, if the claimant's RFC as determined in step four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant's RFC as determined at step four, age, education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner must prove not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

III

Substantial Evidence Standard

The Court reviews an ALJ's decision to determine whether the ALJ applied the correct legal standards and whether the factual findings are supported by substantial evidence. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court "is not whether [Plaintiff] is disabled, but whether the ALJ's finding that [Plaintiff] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Id. The Court's review is deferential, as "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion. See Hancock, 667 F.3d at 472; see also Biestek v. Berryhill, 587 U.S. ___, 139 S. Ct. 1148, 1154 (2019).

In evaluating the evidence in an appeal of a denial of benefits, the court does "not conduct a de novo review of the evidence," Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986), or undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, "[t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court." Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).

IV

Discussion

Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 (July 2, 1996). Pl.'s Mem. Supp. Mot. Summ. J. 4-15, ECF No. 16-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function assessment of her ability to perform the physical and mental demands of work. Id. at 6. In particular, she contends that, among other things, the ALJ failed to account accurately for her limitations in concentration, persistence, or pace in the RFC assessment. Id. at 11-13. According to Plaintiff, the ALJ also failed to explain his determination that an individual with a moderate limitation in concentrating, persisting, or maintaining pace would be capable of maintaining concentration, attention, and pace throughout the entire workday without limitation. Id. at 13-14. Plaintiff also argues that the ALJ failed to evaluate properly the opinions of the state agency physicians. Id. at 14-15. Plaintiff finally maintains that the ALJ erroneously evaluated her subjective complaints. Id. at 15-19. For the reasons discussed below, the Court remands this case for further proceedings.

SSR 96-8p, 1996 WL 374184 (July 2, 1996), explains how adjudicators should assess RFC and instructs that the RFC

"assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions" listed in the regulations. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." The Ruling further explains that the residual functional capacity "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)."

The Court turns first to Plaintiff's argument that the ALJ failed to evaluate properly the opinion of Dr. Suansilppongse, the state agency medical consultant who opined that Plaintiff had the mental capacity for simple work-related activity involving one- to two-step tasks. Pl.'s Mem. Supp. Mot. Summ. J. 14-15, ECF No. 16-1. According to Plaintiff, although the ALJ "accorded significant weight to the opinions of Dr. Suansilppongse, he did not limit [her] to one to two step tasks in his [RFC] assessment, and instead determined that [she] was capable of performing simple, routine, repetitive one to four step tasks." Id. at 15. However, the job of cleaner/housekeeper, which was one of the jobs that the VE testified was available to an individual with this RFC (R. at 812, 972, 974), involves reasoning level one, which according to the Dictionary of Occupational Titles (the "DOT") involves applying "commonsense understanding to carry out simple one- or two-step instructions" and dealing "with standardized situations with occasional or no variables in or from these situations encountered on the job." DOT 323.687-014, 1991 WL 672783. Thus, the ALJ's error, if any, in failing to incorporate a limitation to one- to two-step tasks in the RFC assessment provides no basis for remand.

Plaintiff next argues that the ALJ's RFC assessment failed to account for her moderate limitation in concentrating, persisting, or maintaining pace. Pl.'s Mem. Supp. Mot. Summ. J. 11-13, ECF No. 16-1. The Fourth Circuit held in Mascio that "an ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). "[T]he ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. The court in Mascio remanded the case for the ALJ to explain why the claimant's moderate limitation in concentration, persistence, or pace at step three did not translate into a limitation in the claimant's RFC. Id. The Fourth Circuit, however, "did not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC." Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020). Rather, when "medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations." Id. (quoting Winschel, 631 F.3d at 1180).

Here, the limitations in the ALJ's hypothetical to the VE and in the corresponding RFC assessment to simple, routine, repetitive tasks, with "occasional decision making"; "occasional changes in the work setting"; and "occasional contact with co-workers, supervisors, and the public" (R. at 803; see R. at 971), do not account for Plaintiff's moderate limitation in concentrating, persisting, or maintaining pace. See Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015) ("'Few if any work place changes' with limited 'interaction with coworkers or supervisors' deals largely with workplace adaptation, rather than concentration, pace, or persistence."); Mascio, 780 F.3d at 638; Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009) (per curiam) (rejecting contention that "the ALJ accounted for [the claimant's] limitations of concentration, persistence, and pace by restricting the inquiry to simple, routine tasks that do not require constant interactions with coworkers or the general public"); Henry v. Colvin, No. CV 15-3064-KES, 2016 WL 2851302, at *3 (C.D. Cal. May 13, 2016) ("Limiting job-related decision-making is just another way of limiting the claimant to simple or unskilled work.").

Further, even if the ALJ meant to account for Plaintiff's moderate limitation in concentrating, persisting, or maintaining pace by limiting her to work not requiring "a fast pace or production quotas such as would customarily be found working on an assembly line," "there is no basis to suggest that eliminating jobs with strict production quotas or a fast pace may serve as a proxy for including a moderate limitation on concentration, persistence, and pace." DeCamp v. Berryhill, 916 F.3d 671, 676 (7th Cir. 2019) (per curiam); see Paul v. Berryhill, 760 F. App'x 460, 465 (7th Cir. 2019) ("[T]he ALJ's reference to 'flexible pace' is insufficient to account for [the claimant's] difficulties maintaining focus and performing activities within a schedule, because the reference excludes only production-pace employment. Without more, the VE cannot determine whether someone with [the claimant's] limitations could maintain the proposed pace or what the proposed pace even is." (citation omitted)). In any event, "this Court cannot determine whether the ALJ's findings were supported by substantial evidence without an explanation of the terms 'production pace or strict production quotas.'" Geneva W. v. Comm'r, Soc. Sec. Admin., Civil No. SAG-18-1812, 2019 WL 3254533, at *3 (D. Md. July 19, 2019). "[A] case can be remanded when the sole error of the ALJ is the failure to define 'non-production oriented work setting.'" Ursula G. v. Comm'r, Soc. Sec. Admin., Civil No. SAG-18-1841, 2019 WL 2233978, at *3 (D. Md. May 23, 2019) (citing Perry v. Berryhill, 765 F. App'x 869, 872-73 (4th Cir. 2019)); see Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019) (determining that ALJ's failure to define "production rate or demand pace" terms made it "difficult, if not impossible," for court to assess whether substantial evidence supported their inclusion in claimant's RFC). Although the ALJ defined "production quotas" as those that "would customarily be found working on an assembly line" (R. at 803, 971), "even if 'the VE's testimony does not evince any confusion about the terms of the hypothetical, the Court has an independent duty to determine if the ALJ supported [the ALJ's] findings with substantial evidence.'" Taishika C. v. Saul, Civil No. DLB-19-1994, 2020 WL 2994487, at *3 (D. Md. June 4, 2020) (quoting Geneva W., 2019 WL 3254533, at *3); see Mischler v. Berryhill, 766 F. App'x 369, 376 (7th Cir. 2019) (finding that an ALJ's failure to define "no piecework or fast moving assembly line type work" limitation, without more, made it impossible for a VE to assess whether a claimant with that limitation could maintain the proposed pace (citing Varga, 794 F.3d at 815)); Butler v. Berryhill, No. 1:18CV59, 2019 WL 442377, at *11 (N.D. Ind. Feb. 4, 2019) (rejecting Commissioner's argument that ALJ's limiting claimant to work that did not require "production-rate pace (e.g. assembly line work)" adequately described how often claimant would be off task during workday). 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." Geneva W., 2019 WL 3254533, at *3. "On remand, the ALJ will need to establish for how long, and under what conditions, [Plaintiff] is able 'to focus [her] attention on work activities and stay on task at a sustained rate.'" Thomas, 916 F.3d at 312 n.5 (second alteration in original) (quoting 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00E(3)).

The ALJ also failed to explain how, despite Plaintiff's moderate limitation in concentrating, persisting, or maintaining pace, she could be productive or remain on task for at least 90% of an eight-hour workday. See Lanigan v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017) (remanding because, inter alia, ALJ did not build accurate and logical bridge between claimant's moderate difficulties in various functional areas and ALJ's finding that claimant would not be off task more than 10% of workday). "Notably, it appears the ALJ disregarded testimony from the VE about a person with limitations in concentration, persistence, and pace." Winsted v. Berryhill, 923 F.3d 472, 477 (7th Cir. 2019). The VE testified that no work in the national economy would be available to an individual who would be off task more than 10% of the time or absent from work more than eight or nine days a year. R. at 975-76. "But the ALJ failed to incorporate this opinion anywhere in the RFC, leaving the RFC altogether uninformed by considerations of off-task time or unplanned leave." Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019).

Plaintiff also asserts that the ALJ erroneously evaluated her subjective complaints. Pl.'s Mem. Supp. Mot. Summ. J. 15-19, ECF No. 16-1. The ALJ noted that Plaintiff was able to drive short distances, shop in stores for groceries, dress and bathe herself, travel on a cruise ship, fold the laundry, climb the stairs in her home, prepare simple meals occasionally, clean the toilet, play games, pay bills, read romance novels, and watch television. R. at 806, 807. "A claimant's inability to sustain full-time work due to pain and other symptoms is often consistent with her ability to carry out daily activities," however. Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 101 (4th Cir. 2020). Thus, "[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them." Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018). Plaintiff reported that she shopped for only fifteen minutes at a time and spent ten minutes preparing meals. R. at 1287-88. She washed laundry and cleaned her bathroom for fifteen minutes once a week. R. at 1288. Her husband helped her go up and down steps. R. at 951. During her cruise she stayed in her room, watched television, and walked around with a crutch. R. at 967. The ALJ here did not "explain how those activities showed that [Plaintiff] could sustain a full-time job" and could actually perform the tasks required by light work. Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 269 (4th Cir. 2017); see Arakas, 983 F.3d at 100; Krauser v. Astrue, 638 F.3d 1324, 1333 (10th Cir. 2011) ("As for watching television, that is hardly inconsistent with [the claimant's] allegations of pain and related concentration problems." (citing Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004))). The Court remands this case to afford the ALJ the opportunity to do so.

In short, "a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. The second component, the ALJ's logical explanation, is just as important as the other two." Thomas, 916 F.3d at 311. The ALJ "must both identify evidence that supports his conclusion and 'build an accurate and logical bridge from [that] evidence to his conclusion.'" Woods, 888 F.3d at 694 (alteration in original) (quoting Monroe, 826 F.3d at 189). An ALJ's failure to do so constitutes reversible error. Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017). Because "meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion," the Court remands this case for further proceedings. Thomas, 916 F.3d at 311 (citing Woods, 888 F.3d at 694).

Because the Court remands this case on other grounds, the Court need not address Plaintiff's remaining arguments. In any event, the ALJ also should address these other issues raised by Plaintiff. See Tanner v. Comm'r of Soc. Sec., 602 F. App'x 95, 98 n.* (4th Cir. 2015) (per curiam) ("The Social Security Administration's Hearings, Appeals, and Litigation Law Manual 'HALLEX' notes that the Appeals Council will vacate the entire prior decision of an administrative law judge upon a court remand, and that the ALJ must consider de novo all pertinent issues.").

V

Conclusion

For the reasons stated above, Defendant's Motion for Summary Judgment (ECF No. 19) is DENIED. Plaintiff's Motion for Summary Judgment (ECF No. 16) is DENIED. Plaintiff's alternative motion for remand (ECF No. 16) is GRANTED. Defendant's final decision is REVERSED under the fourth sentence of 42 U.S.C. § 405(g). This matter is REMANDED for further proceedings consistent with this opinion. A separate order will issue. Date: May 26, 2021

/s/_________

Thomas M. DiGirolamo

United States Magistrate Judge