ROSS v. BERRYHILL

Filing 16

ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 03/29/2019 adopting the Magistrate Judge's Recommendation, that the Commissioner's decision finding no disability is AFFIRMED, that Plaintiff's Motio n for a Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing (Doc. 7 ) is DENIED, that Defendant's Motion for Judgment on the Pleadings (Doc. 9 ) is GRANTED, and that this action is DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with this Order. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TARA D. ROSS,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social )
Security,
)
)
Defendant.
)

1:17CV1145

ORDER
The Recommendation of the United States Magistrate Judge was
filed with the court in accordance with 28 U.S.C. § 636(b) and, on
February 27, 2019, was served on the parties in this action.
(Docs. 11, 12.)

Plaintiff objected to the Recommendation.

(Docs.

13, 14.)
Among her objections, Plaintiff urges remand under the Fourth
Circuit’s recent decision in Perry v. Berryhill, No. 18-1076, __
F. App’x __, 2019 WL 1092627 (4th Cir. Mar. 8, 2019).
Doc. 14.)

(See, e.g.,

That decision is unpublished, so it is not precedential

and is generally entitled only to the weight of its persuasive
reasoning.

See Collins v. Pond Creek Mining Co., 468 F.3d 213,

219 (4th Cir. 2006).

In that decision, the Fourth Circuit found

fault with “the ALJ’s reference to a ‘non-production oriented work
setting,’” as the Fourth Circuit “d[id] not know what the ALJ

intended when she used that phrase,” making it “difficult, if not
impossible, to evaluate whether restricting [the plaintiff] to a
‘non-production oriented work setting’ properly accounted for
[his] well-documented limitations in concentration, persistence,
and pace [(‘CPP’)].”
at *3.

Perry, __ F. App’x at __, 2019 WL 1092627,

In so doing, the Fourth Circuit specifically distinguished

its decision in Sizemore v. Berryhill, 878 F.3d 72 (4th Cir. 2017),
where it “found that an ALJ had adequately explained a residual
functional capacity assessment that restricted the claimant, in
part, to ‘non-production jobs,’” as “the ALJ in Sizemore provided
additional context, explaining that the claimant could perform
work only in a ‘low stress’ setting, without any ‘fast-paced work’
or ‘public contact,’ to account for moderate limitations in [CPP],”
which “descriptors helped to explain the restriction intended by
the ALJ, and allowed [the Fourth Circuit] to evaluate whether that
restriction adequately accounted for the claimant’s limitations.”
Perry, __ F. App’x at __, 2019 WL 1092627, at *3 n.1.

As in

Sizemore, and unlike in Perry, the ALJ here provided the necessary
“descriptors,” limiting Plaintiff to “a low stress, low production
environment with no rigid quota and occasional exposure to people”
(Tr. 26).

Accordingly, Perry does not justify remand in this

action.
The court has appropriately reviewed the portions of the
Magistrate Judge’s report to which objection was made and has made
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a de novo determination, which is in accord with the Magistrate
Judge’s report.

The court therefore adopts the Magistrate Judge’s

Recommendation.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is AFFIRMED, that Plaintiff’s Motion for a
Judgment Reversing or Modifying the Decision of the Commissioner
of Social Security, or Remanding the Cause for a Rehearing (Doc.
7) is DENIED, that Defendant’s Motion for Judgment on the Pleadings
(Doc. 9) is GRANTED, and that this action is DISMISSED WITH
PREJUDICE.
A

Judgment

dismissing

this

action

will

be

entered

contemporaneously with this Order.

/s/
Thomas D. Schroeder
United States District Judge
March 29, 2019

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