UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-1076

WILLIAM PERRY,

Plaintiff - Appellant,

v.

NANCY A. BERRYHILL, Acting Commissioner of Social Security,

Defendant - Appellee,

and

CAROLYN COLVIN, Commissioner of the Social Security Administration,

Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-00132-CMH-IDD)

Argued: December 12, 2018 Decided: March 8, 2019

Before AGEE, DIAZ, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished opinion. Judge Harris wrote the opinion, in which Judge Agee and Judge Diaz joined.

ARGUED: Christine P. Benagh, COLLIER~BENAGH LAW, P.L.L.C., Washington, D.C., for Appellant. Kimere Jane Kimball, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Douglas K.W. Landau, ABRAMS & LANDAU LTD., Herndon, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Nora Koch, Regional Chief Counsel, Victor Pane, Supervisory Attorney, Maija DiDomenico, Assistant Regional Counsel, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PAMELA HARRIS, Circuit Judge:

William Tyrone Perry appeals the denial of his applications for disability

insurance benefits and supplemental security income under the Social Security Act. An

Administrative Law Judge denied Perry’s applications in part because she determined

that Perry could perform work in a “non-production oriented work setting.” But that

phrase has no established regulatory definition, and the judge did not explain it. As a

result, we cannot assess whether a limitation to “non-production oriented work setting[s]”

properly accounts for Perry’s impairments, and we therefore vacate and remand for

further administrative proceedings.

I.

In 2012, William Tyrone Perry suffered a stroke, leaving him with speech,

memory, and concentration problems; seizures and hand tremors; vision impairment; and

elevated blood pressure. Based on those impairments, Perry applied to the Social

Security Administration for disability insurance benefits and supplemental security

income.

An Administrative Law Judge (“ALJ”) denied Perry’s applications because she

found that Perry was not “disabled” within the meaning of the Social Security Act. An

individual is “disabled” under the Act if he is unable “to 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.”

(d)(1)(A) (defining

3 disability for purposes of disability insurance benefits); see also

§ 1382c(a)(3)(A)

(adopting same definition for purposes of supplemental security income).

To determine whether an individual qualifies as “disabled” under this definition,

ALJs use the “five-step sequential evaluation process” outlined in the Social Security

Administration’s regulations.

(a)(4), 416.920(a)(4). The first

three steps ask “(1) whether the claimant is working; (2) if not, whether she has a severe

impairment; and (3) if she does, whether the impairment meets or equals a listed

impairment,” so that it may be treated as categorically disabling. Patterson v. Comm’r of

Soc. Sec. Admin.,

(4th Cir. 2017) (internal quotation marks omitted).

If the claimant satisfies all three of these steps, then he qualifies as “disabled.”

But if – as here – the claimant satisfies steps one and two, but not step three, then

the ALJ continues the analysis, and assesses the claimant’s residual functional capacity –

that is, “the most [the] claimant can still do despite all of [his] medically determinable

impairments.” Woods v. Berryhill,

(4th Cir. 2018) (internal quotation

marks omitted). The ALJ then proceeds to step four to consider whether, in light of that

residual functional capacity, the claimant can perform his past relevant work. See

If

the claimant cannot, then the ALJ moves to the fifth and final step, and determines

whether the claimant’s residual functional capacity allows him to “perform[] other work

. . . that exists in significant numbers in the national economy.”

(internal quotation

marks omitted). Only if the answer to this question also is “no” will the claimant qualify

as “disabled” under step five. See

4 Here, at steps one and two, the ALJ determined that Perry was not employed and

that he suffered from severe physical and mental impairments. But because those

impairments did not match the impairments listed in the regulations, the ALJ could not

find conclusively that Perry was disabled after step three. At that point, the ALJ properly

moved on to assess Perry’s residual functional capacity.

Through that assessment, the ALJ determined that Perry’s physical and mental

capacity both were limited as a result of his stroke. Of particular relevance here are

Perry’s mental limitations: Perry, the ALJ concluded, had the mental capacity to perform

only “unskilled work” in a “non-production oriented work setting.” A.R. 36. The ALJ

did not explain what she meant by “non-production oriented work setting,” nor how that

limitation addressed Perry’s mental impairments.

Based on this residual functional capacity assessment, the ALJ concluded under

step four that Perry was unable to perform his prior work as a plumber, and so moved to

the fifth and final step of the process. To inform her analysis under step five, the ALJ

asked a vocational expert whether there were jobs in the national economy that an

individual could perform if that individual were capable of unskilled work in a non-

production oriented work setting. The vocational expert testified that there were three

such jobs: mail clerk, garment sorter, and price marker. Based on that testimony, the

ALJ determined that Perry could perform other work that existed in the national

economy, and so concluded that he was not disabled within the meaning of the Social

Security Act. Accordingly, the ALJ denied Perry’s applications for benefits.

5 Perry sought review in the district court, alleging numerous errors in the ALJ’s

analysis. The Social Security Commissioner defended the ALJ’s decision, and both

parties moved for summary judgment based on the administrative record. The magistrate

judge agreed with the Social Security Commissioner, and recommended that the district

court grant the Commissioner’s summary judgment motion. The district court adopted

that recommendation, and entered judgment on behalf of the Commissioner. This timely

appeal followed.

II.

We review de novo a district court’s decision on a motion for summary judgment.

Woods,

. “We will affirm the Social Security Administration’s disability

determination when an ALJ has applied correct legal standards and the ALJ’s factual

findings are supported by substantial evidence.”

(internal quotation marks omitted).

A.

We begin with Perry’s challenge to the ALJ’s residual functional capacity

assessment. According to Perry, the ALJ erred in conducting that assessment, in part

because she failed to adequately explain how she arrived at her conclusions. Because we

agree with Perry that the ALJ’s residual functional capacity assessment is “lacking in the

analysis needed for us to review meaningfully [her] conclusions,” Mascio v. Colvin,

, 636–37 (4th Cir. 2015), we vacate and remand for further proceedings.

For this court to meaningfully review an ALJ’s residual functional capacity

assessment, the ALJ “must include a narrative discussion describing how the evidence

6 supports each conclusion.”

at 636 (quoting Social Security Ruling 96-8p,

, 34,478 (July 2, 1996)). The ALJ, in other words, “must both identify

evidence that supports his conclusion and build an accurate and logical bridge from [that]

evidence to his conclusion.” Woods,

(emphases and alteration in

original) (internal quotation marks omitted). Otherwise, “we are left to guess about how

the ALJ arrived at his conclusions” and, as a result, cannot meaningfully review them.

Mascio,

.

Here, the ALJ found that Perry’s ongoing mental impairments limited his residual

functional capacity in two ways: Perry could perform only “unskilled work,” and that

work could occur only in a “non-production oriented work setting.” A.R. 36. “Unskilled

work” is a term of art that is defined in the regulations. See

(a),

416.968(a). But no analogous regulatory definition exists for the “non-production

oriented work setting” specified by the ALJ, or for any other similar term. Nor, as we

recently recognized, are such descriptions commonly used in our case law or otherwise

self-explanatory. Thomas v. Berryhill, __ F.3d __,

, at *3 (4th Cir.

2019) (ALJ erred by failing to explain meaning of restriction to jobs that do not require

“a production rate or demand schedule”). And finally, the ALJ offered no explanation of

her own for what she meant when she used the phrase “non-production oriented work

setting” in assessing Perry’s residual functional capacity. As a result, we “remain

uncertain as to what the ALJ intended,” Mascio,

, and cannot

meaningfully assess whether there is a “logical bridge” between the evidence in the

record and the ALJ’s conclusion, Woods,

.

7 The missing explanation in this case is particularly important because it is

undisputed that Perry’s stroke left him with limitations in concentration, persistence, and

pace. And those limitations, as we have held, are not accounted for adequately by the

portion of the ALJ’s assessment that restricts Perry to “unskilled work.” See Mascio,

(“[A]n ALJ does not account for a claimant’s limitations in concentration,

persistence, and pace by restricting [the claimant] to simple, routine tasks or unskilled

work.” (internal quotation marks omitted)). If those limitations are addressed at all, that

is, then it must be through the ALJ’s reference to a “non-production oriented work

setting.” But, again, we do not know what the ALJ intended when she used that phrase.

As a result, it is difficult, if not impossible, to evaluate whether restricting Perry to a

“non-production oriented work setting” properly accounted for Perry’s well-documented

limitations in concentration, persistence, and pace. See Thomas,

, at *3

(ALJ’s failure to explain meaning of restriction to jobs not requiring “a production rate or

demand schedule” made it “difficult, if not impossible,” to determine whether that

restriction was supported by substantial evidence); see also Varga v. Colvin,

(7th Cir. 2015) (ALJ’s failure to define “fast paced production” made it

impossible to “assess whether a person with [the claimant’s] limitations could maintain

the pace proposed”). 1

1 We note that in Sizemore v. Berryhill,

(4th Cir. 2017), we found that an ALJ had adequately explained a residual functional capacity assessment that restricted the claimant, in part, to “non-production jobs.” But in contrast to this case and to Thomas, the ALJ in Sizemore provided additional context, explaining that the claimant could perform work only in a “low stress” setting, without any “fast-paced (Continued) 8 Because the ALJ’s failure to explain the meaning of “non-production oriented

work setting” requires us “to guess about how [she] arrived at [her] conclusions” and

leaves us “uncertain as to what [she] intended,” we conclude that her assessment is

“lacking in the analysis needed for us to review meaningfully [her] conclusions,” Mascio,

780 F.3d at 636–37. Accordingly, we vacate and remand. In so doing, we express no

opinion as to whether the ALJ’s residual functional capacity assessment was correct; we

ask simply that the ALJ give us a “clearer window into her reasoning,” Thomas,

, at *4. 2

B.

Perry raises several other challenges to the ALJ’s decision. Having carefully

considered the record provided on appeal and the arguments of the parties, we reject

Perry’s remaining challenges for the reasons stated by the magistrate judge and the

district court. See Perry v. Berryhill, No. 1:17-cv-00132 (E.D. Va. Dec. 14, 2017); Perry

v. Berryhill, No. 1:17-cv-00132 (E.D. Va. Sept. 27, 2017). In short, we agree that the

work” or “public contact,” to account for moderate limitations in concentration, persistence and pace.

(internal quotations omitted). Those descriptors helped to explain the restriction intended by the ALJ, and allowed us to evaluate whether that restriction adequately accounted for the claimant’s limitations.

. 2 Perry urges us to hold that the ALJ in fact did not properly account for his limitations in concentration, persistence, and pace, either in her residual functional capacity assessment or in the hypotheticals posed to the vocational expert on the basis of that assessment. We will not attempt to resolve that issue here. As discussed above, the ALJ’s failure to provide an adequate explanation of her residual functional capacity assessment makes it impossible for us to determine whether that assessment – and particularly the portion restricting Perry to jobs in a “non-production oriented work setting” – properly accounts for Perry’s limitations.

9 ALJ’s step three determination is supported by substantial evidence, that the ALJ did not

err in failing to order additional cognitive testing, that the ALJ adequately considered the

conflicting evidence in the record, and that the ALJ assigned appropriate weight to the

opinions of the state agency physicians and psychologists who reviewed the medical and

nonmedical evidence in the record.

III.

For the foregoing reasons, we vacate the district court’s order granting summary

judgment to the Commissioner, and remand to the district court with instructions to

vacate the denial of benefits and remand for further administrative proceedings consistent

with this opinion.

VACATED AND REMANDED

10