STUESSY v. O'MALLEY

Filing 14

MEMORANDUM OPINION AND ORDERsigned by MAG/JUDGE L. PATRICK AULD on 3/6/202, that the Commissioner's decision finding no disability is AFFIRMED, and that this action is DISMISSED with prejudice. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JENNA S.,
Plaintiff,
v.
LELAND C. DUDEK,
Acting Commissioner of Social
Security,
Defendant.1

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)
)
)
)
)
)
)
)
)
)

1:24CV383

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Jenna S., brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of the
final decision of Defendant, the Acting Commissioner of Social
Security

(the

“Commissioner”),

denying

Disability Insurance Benefits (“DIB”).

Plaintiff’s

claim

for

(Docket Entry 2.)

The

Commissioner has filed the certified administrative record (Docket
Entry

6

(cited

herein

as

“Tr.

__”)),

and

both

parties

have

submitted dispositive briefs in accordance with Rule 5 of the
Supplemental Rules for Social Security Actions under 42 U.S.C.
§ 405(g) (Docket Entry 10 (Plaintiff’s Brief); Docket Entry 11
(Commissioner’s Brief); Docket Entry 13 (Plaintiff’s Reply)).

1

For

President Donald J. Trump appointed Leland C. Dudek as the Acting
Commissioner of the Social Security Administration on February 17, 2025.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland C. Dudek
should substitute for Martin J. O’Malley as the defendant in this suit. No
further action need be taken to continue this suit by reason of the last sentence
of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

the reasons that follow, the Court will enter judgment for the
Commissioner.2
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 183-86), alleging a disability
onset date of December 31, 2012 (see Tr. 183-84).3
that

application

initially

(Tr.

71-78,

Upon denial of

86-90)

and

on

reconsideration (Tr. 79-85, 92-95), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 98).
Plaintiff, her attorney, and a vocational expert (“VE”) attended
the hearing.

(Tr. 34-70.)

The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act.

(Tr. 14-33.)

The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 143-45), thereby making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In

rendering

that

decision,

the

ALJ

made

the

following

findings later adopted by the Commissioner:
1.
[Plaintiff] last met the insured status requirements
of the . . . Act on March 31, 2018.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her (amended) alleged

2

On consent of the parties, this “case [wa]s referred to [the undersigned]
United States Magistrate Judge [] to conduct all proceedings . . ., to order the
entry of judgment, and to conduct all post-judgment proceedings []herein.”
(Docket Entry 9 at 1.)
3

Plaintiff later amended her onset date to December 1, 2014. (See Tr. 17,
39, 199.)

2

onset date of December 1, 2014 through her date last
insured of March 31, 2018.
. . .
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: degenerative disc disease
(DDD), degenerative joint disease (DJD), osteoarthritis,
bursitis, insomnia, fibromyalgia, depressive disorder,
anxiety disorder, personality disorder, and posttraumatic
stress disorder (PTSD).
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform light
work . . . except frequent reach, handle, finger, and
feel; occasionally use ramps and stairs, balance, stoop,
knee[l], and crouch; no workplace hazards, such as
machinery, heights, ladders, ropes, and scaffolds; in a
low stress environment with no production pace, frequent
contact with supervisors and coworkers, occasional
contact with the public, and has the ability to adapt to
occasional changes in the workplace setting.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.

was

. . .
10. Through
the
date
last
insured,
considering
[Plaintiff]’s age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
3

11. [Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from December 1, 2014, the
(amended) alleged onset date, through March 31, 2018, the
date last insured.
(Tr.

19-30

(bold

font

and

internal

II.

DISCUSSION

parenthetical

citations

omitted).)

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has

not established entitlement to relief under the extremely limited
review standard.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead, “a

reviewing

of

court

must

uphold

the

factual

findings

the

ALJ

[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
4

Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

“If

there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
5

engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

423(d)(1)(A)).4

§

“To

regularize

the

adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account

a

claimant’s

age,

education,

and

work

experience

addition to [the claimant’s] medical condition.”

Id.

regulations

process’

establish

a

‘sequential

evaluation

in

“These
to

determine whether a claimant is disabled.” Id. (internal citations
omitted).
This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

4

The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . provides benefits to
indigent disabled persons. The statutory definitions and the regulations . . .
for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).

6

other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).5

A finding adverse to the

claimant at any of several points in the SEP forecloses an award
and ends the inquiry.

For example, “[t]he first step determines

whether the claimant is engaged in ‘substantial gainful activity.’
If the claimant is working, benefits are denied.
determines

if

the

claimant

benefits are denied.”

is

‘severely’

The second step

disabled.

If

not,

Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177.

Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].”

Id. at 179.6

Step four

then requires the ALJ to assess whether, based on that RFC, the

5

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6

“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

7

claimant can “perform past relevant
does not qualify as disabled.

work”; if so, the claimant

Id. at 179-80.

However, if the

claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.

If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
Hines, 453 F.3d at 567.7

claimant qualifies as disabled.
B.

Assignment of Error

Plaintiff’s first and only assignment of error maintains that
“[t]he ALJ erred by failing to define the non-vocationally-relevant
RFC limitation to work ‘in a low stress environment with no
production pace,’ thereby limiting this Court’s review of the RFC
restrictions

and

jobs

cited

at

[s]tep

[f]ive

of

the

SEP

in

violation of . . . precedent [from the United States Court of
Appeals for the Fourth Circuit].”

7

(Docket Entry 10 at 3 (bold font

A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).

8

and block formatting omitted); see also Docket Entry 13 at 1-4.)
In particular, Plaintiff notes that, in Thomas v. Berryhill, 916
F.3d 307 (4th Cir. 2019), the Fourth Circuit held that an RFC
precluding
pace

.

.

“‘work
.

did

requiring
not

give

a

[the

production
court]

rate

enough

or

demand

information

to

understand what those terms mean[, which ] makes it difficult, if
not impossible, for [the court] to assess whether their inclusion
in [the plaintiff]’s RFC is supported by substantial evidence.’”
(Docket Entry 10 at 4 (quoting Thomas, 916 F.3d at 312) (internal
quotation marks omitted).)

In Plaintiff’s view, the ALJ’s failure

to “include sufficient additional information to understand and
review the meaning of the ALJ’s production-related limitation” (id.
at 11) prevents the Court from determining if 1) “the productionrelated

limitation

[concentration,

accounts

persistence,

for

or

pace

Plaintiff’s
(‘CPP’)]

moderate

deficits”

under

Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) (Docket Entry 10 at
11), and 2) “VE testimony regarding the availability of the jobs
cited for an individual with [those] production-related limitations
conflicts with the [Dictionary of Occupational Titles’ (‘DOT’s’)]
description of the requirements of each job” (id. at 12 (bold font,
underscoring,
reasonable

to

and

block

expect

formatting
that

each

omitted)),
of

the

when
jobs

“it
the

is
ALJ

cited . . . could require work that exceeds a limitation to ‘a low

9

stress environment with no production pace’” (id. at 13 (quoting
Tr. 23)).
a.

Plaintiff’s contentions miss the mark.

CPP/Mascio
The Fourth Circuit has held that “the ability to perform

simple tasks differs from the ability to stay on task[,]” and that
“[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”

Mascio, 780 F.3d at 638.

However, as a

neighboring district court has explained:
Mascio does not broadly dictate that a claimant’s
moderate impairment in [CPP] always translates into a
limitation in the RFC. Rather, Mascio underscores the
ALJ’s duty to adequately review the evidence and explain
the decision . . . . An ALJ may account for a claimant’s
limitation with [CPP] by restricting the claimant to
simple, routine, unskilled work where the record supports
this conclusion, either through physician testimony,
medical source statements, consultative examinations, or
other evidence that is sufficiently evident to the
reviewing court.
Jones v. Colvin, No. 7:14CV273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (magistrate judge’s recommendation adopted by
district judge) (unpublished) (emphasis added); see also Hutton v.
Colvin, No. 2:14CV63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16,
2015)

(unpublished)

(finding

reliance

on

Mascio

“misplaced,”

because ALJ “gave abundant explanation” for why the plaintiff could
perform unskilled work despite moderate limitation in CPP, by
highlighting

his

daily

opinions).

Here,

the

activities
ALJ’s

and

decision

treating
provides

physicians’
a

sufficient

explanation as to how restrictions to work “in a low stress
10

environment with no production pace” involving “frequent contact
with supervisors and coworkers,” “occasional contact with the
public,” and “occasional changes in the workplace setting” (Tr. 23)
adequately accounted for Plaintiff’s moderate deficit in CPP.
As an initial matter, the ALJ discussed Plaintiff’s statements
that she had “trouble completing tasks[ and] concentrating” (Tr. 24
(referencing Tr. 233)), that her “‘[mental impairments] affect[ed
her] ability to communicate, withstand public stresses, and be
affective [sic] as demanded in the work field,’” and that “‘[she]
ha[d]

breakdowns,

crying

spells,

and

mood

problems

w[ould] not put up with’” (id. (quoting Tr. 228)).

employers

However, the

ALJ found “no persuasive corroborating evidence for duration,
frequency,

intensity

disabling.”

(Id.)

of

symptoms

and

limitations

alleged

as

Notably, Plaintiff did not challenge the ALJ’s

assessment of Plaintiff’s subjective symptom reporting.

(See

Docket Entries 10, 13.)
Additionally, the ALJ summarized Plaintiff’s mental health
treatment, making the following, pertinent observations:
•

“treatment records from October 5, 2014, indicated
a history of depression and anxiety, and upon
examination, [Plaintiff] appeared to have a flat
affect, but she had a normal mood, and she was
alert and oriented times three” (Tr. 25 (citing Tr.
290));

•

“[Plaintiff] did attend counseling regularly during
2014
and
2015
but
her
treatment
was
conservative . . . [with] no hospitalizations, no
urgent care, no intensive outpatient treatment, no
11

suicidal
or
homicidal
ideation,
and
hallucinations” (id. (citing Tr. 282-445));

no

•

“on June 15, 2016, [Plaintiff] was alert and
oriented times three” (Tr. 26 (citing Tr. 320)),
“and on June 19, 2016, she noted 4 panic attack[s]
during her pregnancy, but she was ‘doing well’ and
she was prescribed Valium” (id. (quoting Tr. 346));

•

“on July 1, 2016, [Plaintiff] was ‘stable’ on
Zoloft, she denied suicidal ideation and homicidal
ideation, and she was ‘doing well’” (id. (quoting
Tr. 316)); and “on August 2, 2016, she was doing
‘well’, her mood was stable on Zoloft 25 mg, and
she denied suicidal or homicidal ideation” (id.
(quoting Tr. 314)); and

•

“[Plaintiff] attended 8 months of in person, hands
on classes to become an esthetician, that implies
greater . . . mental ability than she alleges” (id.
(referencing Tr. 48, 50)).

All

of

those

findings

support

the

ALJ’s

more

general

observations regarding the intensity, persistence, and limiting
effects of Plaintiff’s mental symptoms that:
the
record[]
demonstrates
[her
mental
status
examinations] remain[ed] fairly unremarkable throughout
the time period under consideration with some variation
in
mood/affect
but
without
other[]
signs
of
psychopathology; and although [she] had been noted to be
tearful on a very few occasions, [] during most visits[,
she] presented as labile; and often her mood and affect
were unremarkable, no cognitive issues were indicated,
there were no signs of psychosis, no ongoing signs of
psychomotor abnormalities, and she was not noted to
present as socially inappropriate.
(Id.)

In turn, that observation supports the ALJ’s finding that,

despite moderate limitation in CPP, Plaintiff remained able to
perform

a

limited

range

of

low

(See Tr. 23.)
12

stress,

non-production

work.

Lastly,

the

ALJ’s

non-production

restriction,

in

and

of

itself, adequately accounts for Plaintiff’s moderate limitation in
CPP.

See Grant v. Colvin, No. 1:15CV515, 2016 WL 4007606, at *9

(M.D.N.C. July 26, 2016) (unpublished) (finding non-production
restriction “facially addresse[d] moderate . . . limitation in the
claimant’s ability to stay on task” (internal quotation marks
omitted)), recommendation adopted, slip op. (M.D.N.C. Sept. 21,
2016) (Osteen, C.J.).

Moreover, Plaintiff’s arguments regarding

the insufficiency of the ALJ’s non-production restriction here fail
for the following two reasons.
First, despite Plaintiff’s assertion in this Court that the
ALJ

failed

to

sufficiently

define

work

“‘in

a

low

stress

environment not at production pace’” (Docket Entry 10 at 3 (bold
font omitted) (quoting Tr. 23)), at the hearing before the ALJ,
Plaintiff

(through

counsel)

failed

to

cross-examine

the

VE

regarding the meaning of that non-production restriction, or how
the six jobs the VE cited adhered to that restriction (see Tr. 6768).

As a result, Plaintiff has forfeited, in this Court, her

challenge

under

Thomas

non-production restriction.

to

the

sufficiency

of

the

ALJ’s

See Coyier v. Saul, Civ. No. 20-1899,

2021 WL 2173425, at *2 (7th Cir. May 27, 2021) (unpublished)
(holding that the plaintiff “waived any challenge to the VE’s
testimony by failing to ask any questions to reveal shortcomings in
the job-number estimates”); Shaibi v. Berryhill, 883 F.3d 1102,
13

1109 (9th Cir. 2017) (“[A]t least when claimants are represented by
counsel,

they

must

raise

all

issues

and

evidence

at

their

administrative hearings in order to preserve them on appeal.”);
Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (finding
that the claimant’s failure to raise issue before ALJ “waived [the
claim] from
1:10CV786,

being
2014

raised

WL

on

639618,

appeal”);
at

*5

Bunton

(M.D.N.C.

v.

Colvin,

Feb.

18,

No.

2014)

(unpublished) (deeming issue on judicial review waived where the
plaintiff “failed to mount any opposition . . . to the view that he
retained the capacity to do the [jobs proffered by the VE], despite
. . . the opportunity . . . to question the VE about . . . those
positions”), recommendation adopted, slip op. (M.D.N.C. Mar. 10,
2014) (Schroeder, J); Stepinski v. Astrue, No. CA 11–183, 2012 WL
3866678, at *9–10 (D.R.I. Aug. 6, 2012) (unpublished) (“The [c]ourt
views unfavorably the silence of [the p]laintiff’s counsel at the
hearing regarding the omission about which he now complains.
Reversal and remand . . . would encourage other counsel to remain
silent in similar circumstances.

This [c]ourt is disinclined to

provide such an incentive[ ] . . . [and] finds that [the p]laintiff
waived this issue by failing to raise it before the ALJ.” (internal
citations

omitted)),

recommendation

adopted,

2012

WL

3863812

(D.R.I. Sept. 5, 2012) (unpublished); Young v. United States Comm’r
of Soc. Sec., No. CV08-0474, 2009 WL 2827945, at *13 (W.D. La.
Sept. 1, 2009) (unpublished) (“[C]laimants should not be permitted
14

to scan the record for implied or unexplained conflicts . . ., and
then present that conflict as reversible error, when the conflict
was not deemed sufficient to merit adversarial development in the
administrative hearing.”).8
Second, even if Plaintiff had not forfeited her right to raise
this issue on review, it still fails on its merits.

In Thomas, the

Fourth Circuit held that the ALJ’s preclusion of “work requiring a
production rate or demand pace[ ] did not give [the court] enough
information to understand what those terms mean.” Thomas, 916 F.3d
at

312

(emphasis

added)

(internal

quotation

marks

omitted).

Shortly thereafter, 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

8

for

[his]

well-documented

Plaintiff disputes that she forfeited the right to contest the
sufficiency of the ALJ’s non-production restriction by failing to raise the issue
at the ALJ’s hearing, arguing that “the burden of resolving vocational issues at
the hearing falls to the ALJ, not to the claimant[.]” (Docket Entry 13 at 1; see
also id. at 2 (quoting Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015), for
proposition that Social Security Ruling 00-4p, Policy Interpretation Ruling:
Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence,
and Other Reliable Occupational Information in Disability Decisions, 2000 WL
1898704 (Dec. 4, 2000) (‘SSR 00-4p’), “‘require[s] the ALJ to make an independent
identification of conflicts’” between the VE’s testimony and the information
contained in the DOT (emphasis added)).) However, Plaintiff’s argument that the
ALJ’s insufficient non-production restriction prevents the Court from determining
whether the ALJ adequately accounted for Plaintiff’s moderate CPP limitation in
the RFC under Mascio does not involve an allegation that an apparent, unresolved
conflict exists between the VE’s testimony and the DOT, and, thus, neither
Pearson nor SSR 00-4p provides a basis for the Court to overlook Plaintiff’s
forfeiture of that issue.

15

limitations in [CPP].”

Perry v. Berryhill, 765 F. App’x 869, 872

(4th Cir. 2019) (emphasis added).
Significantly, the Fourth Circuit has affirmed cases with RFCs
limiting claimants to work at a non-production pace, see, e.g.,
King v. Berryhill, No. 3:18CV1, 2019 WL 1317732, at *2 (W.D.N.C.
Mar. 22, 2019) (unpublished) (“non-production pace”), aff’d sub
nom. King v. Saul, 787 F. App’x 170 (4th Cir. 2019); Michaels v.
Colvin, No. 3:15CV388, 2016 WL 8710975, at *1, 7 (W.D.N.C. Mar. 25,
2016) (unpublished) (“nonproduction pace rates”), aff’d sub nom.
Michaels v. Berryhill, 697 F. App’x 223 (4th Cir. 2017). Moreover,
Thomas and Perry “did not create a categorical rule that failing to
define certain terms constitutes a reversible error,” Taylor v.
Saul, No. 3:19CV468, 2020 WL 4340536, at *6 (E.D. Va. July 27,
2020) (unpublished), but, rather, “clarified that a reviewing
court’s ability to understand phrases such as ‘production rate o[r]
pace’ in an ALJ’s opinion depends on the phrase’s context and use,”
Katherine M. A. v. Saul, No. 3:19CV649, 2021 WL 1207739, at *10
(E.D. Va. Feb. 2, 2021) (unpublished), recommendation adopted, 2021
WL 1206799 (E.D. Va. Mar. 30, 2021) (unpublished).
As another judge of this Court reasoned:
In [Perry], 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[n RFC] 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’
16

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, [765 F. App’x at
872] n.1. As in Sizemore, and unlike in Perry, the ALJ
here provided the necessary ‘descriptors,’ limiting [the
p]laintiff to ‘a low stress, low production environment
with no rigid quota and occasional exposure to people.’
Accordingly, Perry does not justify remand in this
action.
Ross v. Berryhill, No. 1:17CV1145, 2019 WL 1430129, at *1 (M.D.N.C.
Mar. 29, 2019) (unpublished) (Schroeder, C.J.) (emphasis added)
(internal parenthetical citation omitted).
As in Ross (and consistent with Sizemore, as construed in
Perry), the ALJ here provided the additional descriptors “low
stress

environment,”

“frequent

contact

with

supervisors

and

coworkers, occasional contact with the public,” and “occasional
changes in [the] workplace setting.”

(Tr. 23.)

Those descriptors

“help[] to explain the restriction intended by the ALJ, and allow[
the

Court]

to

evaluate

whether

that

restriction

adequately

accounted for [Plaintiff’s CPP] limitations,” Perry, 765 F. App’x
at 872 n.1.9

Furthermore, Perry’s holding that the ALJ failed to

9

Plaintiff cites certain cases in an attempt to suggest that the
additional descriptors must specifically modify the non-production limitation to
pass muster under Thomas and Perry. (Docket Entry 13 at 3-4 (citing Christopher
J. v. O’Malley, No. 1:23CV743, 2024 WL 3400525, at *6 (M.D.N.C. July 12, 2024)
(unpublished) (no “quota-based work”), Kirkman v. Saul, No. 1:19CV555, 2020 WL
5111223, at *5 (M.D.N.C. Aug. 31, 2020) (unpublished) (no “fast paced production
requirements”), recommendation adopted, slip op. (M.D.N.C. Aug. 31, 2020)
(Osteen, J.), Beckstrom v. Saul, No. 1:19CV746, 2020 WL 1929021, at *7 (M.D.N.C.
Apr. 21, 2020) (unpublished) (no “assembly line work”), recommendation adopted,
slip op. (M.D.N.C. May 15, 2020) (Eagles, J.), Vang v. Saul, No. 1:18CV255, 2019
WL 4220934, at *9 n.10 (M.D.N.C. Sept. 5, 2019) (unpublished) (no “fast paced”

17

adequately explain the meaning of a “non-production oriented work
setting,” Perry, 765 F. App’x at 872 (emphasis added), explains why
Barr v. Kijakazi, No. 1:22CV455, Docket Entry 17 (M.D.N.C. June 2,
2023) (unpublished) (Webster, M.J.) (relied on by Plaintiff (see
Docket Entry 10 at 5, 12, 16-18; see also Docket Entry 13 at 2-3))
does not aid Plaintiff’s cause.

In Barr, another judge of this

Court

explanation

of

the

and

that

restriction

remanded

for

further

“non-production

work

setting,”

deemed

phrase

“remarkably similar to the one found impermissibly vague in Perry,”
Barr, No. 1:22CV455, Docket Entry 17 at 11 (emphasis added). Here,
the ALJ barred production pace work, not work in a production work
setting.

(See Tr. 23.)

production rate work), recommendation adopted, slip op. (M.D.N.C. Sept. 23, 2019)
(Schroeder, C.J.), Ross, 2019 WL 1430129, at *1 (“low stress, low production
environment with no rigid quota”), and Martinez v. Berryhill, No. 3:17CV186, 2018
WL 709971, at *4 (W.D.N.C. Feb. 5, 2018) (unpublished) (precluding work on
“assembly line”)).)
Here, as in Ross and Sizemore, the ALJ included the
clarifying descriptor of “low stress environment” (Tr. 23), which directly
informs any reasonable understanding of the nonproduction limitation.
In
addition, the Court has recently issued decisions finding no Thomas/Perry error
where the additional descriptors did not directly modify the non-production
restriction, but still provided important context sufficient to permit meaningful
judicial review. See Matthew S. v. Colvin, No. 1:23CV991, 2024 WL 5245155, at
*6 (M.D.N.C. Dec. 30, 2024) (unpublished) (“simple, routine tasks,” “simple
work-related decisions,” “occasional changes in the workplace setting,” “no
complex decision making,” occasional interaction “with supervisors and
coworkers,” and no interaction “with the public”); Ricky F. v. O’Malley, No.
1:23CV720, 2024 WL 4333136, at *5 (M.D.N.C. Sept. 27, 2024) (unpublished) (Peake,
M.J.) (“simple routine tasks and simple work related decisions,” “occasional
changes in the workplace setting,” and “frequent[ interaction] with supervisors
and coworkers but never with the public”); Shaw v. Kijakazi, No. 1:20CV581, 2021
WL 3079905, at *8 (M.D.N.C. July 21, 2021) (unpublished) (“simple work-related
decisions,” “occasional interaction with the public,” and “frequent interaction
with co-workers and supervisors”), recommendation adopted, No. 1:20CV581, 2021
WL 6202788 (M.D.N.C. Aug. 23, 2021) (unpublished) (Osteen, J.).

18

Put simply, Plaintiff has demonstrated neither that the ALJ’s
non-production restriction (read in context) prevents the Court
from meaningfully reviewing the ALJ’s compliance with Mascio, nor
that the ALJ erred under Mascio.
b.

Conflict Between VE’s
Production Restriction

Testimony

and

DOT

Regarding

Non-

Plaintiff’s contention that the ALJ’s failure to “include
sufficient additional information to understand and review the
meaning of the ALJ’s production-related limitation” (Docket Entry
10 at 11) prevents the Court from “determin[ing] if VE testimony
regarding the availability of the jobs cited for an individual with
[those] production-related limitations conflicts with the [DOT]’s
description of the requirements of each job” (id. at 12 (bold font,
underscoring, and block formatting omitted)) fares no better.

To

begin, the VE here did not express any difficulty in understanding
the

meaning

production

of

the

words

pace

work”

(Tr.

“low
65)

stress
in

environment”

responding

to

and

the

“no

ALJ’s

dispositive hypothetical question (see Tr. 65-66),10 and provided

10

Significantly, the DOT’s definition of “light work” includes the words
“production rate pace”:
[A] job should be rated [l]ight [w]ork . . . when the job requires
working at a production rate pace entailing the constant pushing
and/or pulling of materials even though the weight of those
materials is negligible. NOTE: The constant stress and strain of
maintaining a production rate pace, especially in an industrial
setting, can be and is physically demanding of a worker even though
the amount of force exerted is negligible.
DOT, App’x C (“Components of the Definition Trailer”), § IV (“Physical Demands
- Strength Rating”), 1991 WL 688702 (emphasis added).

19

six jobs that fit within the ALJ’s non-production restriction (see
Tr. 65-67).

Although Plaintiff (through counsel) declined to

cross-examine the VE during the hearing regarding how those jobs
adhered

to

the

non-production

restriction

(see

Tr.

67-68),

Plaintiff now asserts that the DOT’s job duty descriptions for all
six of those jobs “could require work that exceeds a limitation to
‘a low stress environment with no production pace’” (Docket Entry
10 at 13 (emphasis added); see also id. at 13-16 (quoting DOT job
descriptions for DOT, No. 209.687-026 (“Mail Clerk”), 1991 WL
671813 (G.P.O. 4th ed. rev. 1991), DOT, No. 222.687-022 (“Routing
Clerk”), 1991 WL 672133, DOT, No. 207.685-014 (“PhotocopyingMachine Operator”), 1991 WL 671745, DOT, No. 979.687-026 (“TypeCopy Examiner”), 1991 WL 688696, DOT, No. 739.684-094 (“Lamp-Shade
Assembler”), 1991 WL 680137, and DOT, No. 713.687-018 (“Final
Assembler”), 1991 WL 679271)).
The Court rejects that line of argument because, the mere fact
that jobs like Lamp Shade Assembler and Final Assembler could
involve work in a production setting does not compel a finding that
those jobs actually involve a production pace.

See Martinez v.

Berryhill, No. 3:17CV186, 2018 WL 709971, at *4 (W.D.N.C. Feb. 5,
2018) (unpublished) (“[The p]laintiff argues that the[ jobs of
dowel inspector and getterer] are involved with the production
process

of

dowels

and

incandescent

lamps,

respectively,

and

therefore must conflict with the limitation of not working at a
20

production rate pace. The [c]ourt cannot agree, as such a conflict
implies that being involved with the production of any good in any
way implies a production rate or pace.

Nothing in the [DOT]’s

description for dowel inspector or getterer has anything to do with
rate or pace, which is what the limitation in question was designed
to restrict.”), aff’d sub nom. Martinez v. Saul, 776 F. App’x 175
(4th Cir. 2019). Moreover, Plaintiff’s subjective opinion that all
six

jobs

“could

reasonably

require

more

than

a

‘low

stress

environment’” and “more than ‘no production pace’” (Docket Entry 10
at 13-16 (emphasis added) (quoting Tr. 23)) does not outweigh the
ALJ’s reliance on the DOT and the VE’s testimony, see Nace v.
Colvin, No. EDCV 14-641, 2015 WL 2383833, at *9 (C.D. Cal. May 18,
2015) (unpublished) (“[The p]laintiff’s personal opinion is not a
reliable

source

of

job

information,

and

she

cites

no

legal

authority for her contention that the [c]ourt should overlook the
two designated sources of reliable job information in this case the [DOT] and the VE’s testimony - in favor of [the plaintiff’s]
own subjective beliefs.”).
In

light

of

the

foregoing

analysis,

assignment of error does not warrant relief.

21

Plaintiff’s

sole

III. CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding

no

disability

is

AFFIRMED,

and

that

this

action

DISMISSED with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 6, 2025

22

is