Smith v. Kijakazi

CHAMBERS OF 101 WEST LOMBARD STREET

BRENDAN A. HURSON BALTIMORE, MARYLAND 21201

UNITED STATES MAGISTRATE JUDGE (410) 962-0782

MDD_BAHChambers@mdd.uscourts.gov

October 7, 2022

LETTER TO ALL COUNSEL OF RECORD

Re: Shawn S., v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration

Civil No. 21-3180-BAH

Dear Counsel:

On December 15, 2021, Plaintiff Shawn S. (“Plaintiff”) petitioned this Court to review the

Social Security Administration’s (“SSA’s” or “Commissioner’s” or “Defendant’s”) final decision

to deny Plaintiff’s claim for Social Security benefits. ECF 1. This case was then referred to me

with the parties’ consent. See 28 U.S.C. § 636; Loc. R. 301 (D. Md. 2021). I have considered the

record in this case, ECF 10, the parties’ cross-motions for summary judgment, ECFs 13 and 14,

and Plaintiff’s reply, ECF 15. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2021).

This Court must uphold the decision of the SSA if it 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 Plaintiff’s motion, GRANT

Defendant’s motion, and AFFIRM the Commissioner’s decision. This letter explains why.

I. PROCEDURAL BACKGROUND

Plaintiff filed a Title XVI application for Supplemental Security Income (“SSI”) benefits

on August 13, 2015, alleging a disability onset of March 25, 2014. Tr. 295–301. Plaintiff’s claim

was denied initially and on reconsideration. Tr. 123, 130. On June 5, 2018, an Administrative

Law Judge (“ALJ”) held a hearing. Tr. 50–83. Following the hearing, on July 5, 2018, the ALJ

determined that Plaintiff was not disabled within the meaning of the Social Security Act1 during

the relevant time frame. Tr. 27–49. The Appeals Council denied Plaintiff’s request for review,

Tr. 6–10, so the ALJ’s decision became the final, reviewable decision of the SSA.

Plaintiff then filed an action seeking review of the ALJ’s decision in this Court. See Shawn

S. v. Berryhill, No. 19-01188-DLB (D. Md. filed Apr. 23, 2019). On July 17, 2020, then-United

States Magistrate Judge Deborah Boardman remanded the case to the Commissioner for further

proceedings. Tr. 642–47. On September 15, 2020, the Appeals Council vacated the final decision

of the Commissioner and another ALJ hearing was ordered. Tr. 639. That hearing occurred on

March 23, 2021. Tr. 592–629. The ALJ issued an opinion on April 21, 2021, finding Plaintiff not

disabled. Tr. 564–90. The Appeals Council again denied Plaintiff’s request for review. Tr. 557–

60. Accordingly, the ALJ’s April 21, 2021, decision constitutes the final, reviewable decision of

1 42 U.S.C. §§ 301 et seq.

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the SSA. Sims v. Apfel, 530 U.S. 103, 106–07 (2000); see also 20 C.F.R. § 422.210(a).

II. THE ALJ’S DECISION

Under the Social Security Act, disability is defined as the “inability 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[.]” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.905(a).

The ALJ is required to evaluate a claimant’s disability determination using a five-step sequential

evaluation process. See 20 C.F.R. § 416.920. “Under this process, an ALJ evaluates, in sequence,

whether the claimant: ‘(1) worked during the alleged period of disability; (2) had a severe

impairment; (3) had an impairment that met or equaled the requirements of a listed impairment;

(4) could return to her past relevant work; and (5) if not, could perform any other work in the

national economy.’” Kiser v. Saul, 821 F. App’x 211, 212 (4th Cir. 2020) (citation omitted)

(quoting Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)).

Here, at step one, the ALJ determined that Plaintiff has not engaged in substantial gainful

activity since August 13, 2015. Tr. 569. At step two, the ALJ found that Plaintiff suffered from

the severe impairments of “back disorder (diagnosed 6/2020), obesity, anxiety, Borderline

Intellectual Functioning, affective disorders, learning disability, and schizophrenia (20 CFR

416.920(c)).” Tr. 569. The ALJ also determined that Plaintiff suffered from several non-severe

impairments including edema, thyroid disorder, hyperlipidemia, and asthma. Tr. 570. At step

three, the ALJ determined that Plaintiff “does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Tr. 571. Despite

Plaintiff’s impairments, the ALJ determined that Plaintiff retained the residual functional capacity

(“RFC”) to perform:

medium work as defined in 20 CFR 416.967(c) except she is further limited to

frequently climbing ramps and stairs, occasionally climbing ladders, ropes or

scaffolds, frequently balancing, stooping, kneeling, crouching or crawling. She

cannot work around unprotected heights or dangerous machinery. She is further

limited to understanding, remembering and applying simple and routine

instructions and attending and concentrating for extended periods with simple and

routine tasks at work that is not at production pace (meaning no strict production

requirements or rapid assembly line work where co-workers are side by side and

the work of one affects the work of others). She can occasionally interact with the

general public, coworkers and supervisors. She can make simple, work-related

decisions and can have few changes in the routine work setting.

Tr. 575. The ALJ determined that Plaintiff has no past relevant work. Tr. 583. However, the ALJ

determined that given “the claimant’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that the claimant

can perform (20 CFR 416.969 and 416.969(a)).” Tr. 583. Specifically, the ALJ determined that

October 7, 2022

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Plaintiff could perform the requirements of “Industrial Cleaner (D.O.T.#: 381.687-018),” 2 “Hand

Packager (D.O.T.#: 920.587-018),” “laundry worker (DOT # 361.685-018),” and “Laborer, Stores

(D.O.T.#: 922.687-058).” Tr. 584. Therefore, the ALJ concluded that Plaintiff was not disabled.

Tr. 584.

III. LEGAL STANDARD

A disability determination must be affirmed so long as the agency applied correct legal

standards and the factual findings are supported by substantial evidence. Britt v. Saul, 860 F.

App’x 256, 259 (4th Cir. 2021) (citing Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)).

Substantial evidence “means—and means only—‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id. (quoting Biestek v. Berryhill, 139 S. Ct.

1148, 1154 (2019)). “It consists of ‘more than a mere scintilla of evidence but may be somewhat

less than a preponderance.’” Id. (quoting Craig, 76 F.3d at 589).

IV. ANALYSIS

Plaintiff raises one over-arching issue on appeal, specifically that the ALJ erroneously

failed to provide a sufficient RFC including Plaintiff’s limitations on “concentration, persistence,

and pace.” ECF 13-1 at 9–19. Plaintiff acknowledges that this argument is identical to the one

Plaintiff successfully raised before Judge Boardman when this matter was last before this Court.

Id. at 11. Plaintiff concedes that the ALJ attempted to cure the defect identified by Judge

Boardman but alleges that the ALJ’s “efforts were materially flawed and remain unsupported by

substantial evidence.” Id.

Plaintiff’s first sub-argument hinges on one paragraph included in Plaintiff’s RFC in which

the ALJ attempted to explain how a restriction to “understanding, remembering, and applying

simple and routine instructions” might help to address a moderate limitation in “concentration,

persistence, and pace.” Tr. 583. In the challenged paragraph, the ALJ notes that an individual

might be unable to perform “detailed work,” such as “analyzing numbers and inputting numerical

data into a system” because such work “is going to require better concentration for extended

periods” of time. Tr. 583. However, the ALJ continued, “an individual” could, “for example,

buff[] a floor, which allows for an individual’s mind to wander to some degree, while still

performing the buffing task adequately.” Tr. 583. “As understood in this way,” the ALJ

concluded, “a restriction to understanding, remembering and applying simple and routine

2 The “DOT” is shorthand for the Dictionary of Occupational Titles. The Fourth Circuit has

explained that “[t]he Dictionary of Occupational Titles, and its companion, Selected

Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles . . . , are

[SSA] resources that list occupations existing in the economy and explain some of the physical

and mental requirements of those occupations. U.S. Dep’t of Labor, Dictionary of Occupational

Titles (4th ed. 1991); U.S. Dep’t of Labor, Selected Characteristics of Occupations Defined in the

Revised Dictionary of Occupational Titles (1993).” Pearson v. Colvin, 810 F.3d 204, 211 n.1 (4th

Cir. 2015).

October 7, 2022

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instructions, when considered more deeply, does assist with concentration, persistence or

maintaining pace limitations.” Tr. 583.

Plaintiff challenges this paragraph as a “vocational opinion” that the ALJ was not qualified

to render. ECF 13-1, at 1. Plaintiff contends that the ALJ was speaking directly to Plaintiff’s

limitations, and thus should have asked the vocational expert (“VE”) to explain and define

“detailed work as it relates to concentration,” in order to ascertain a more accurate list of jobs that

Plaintiff could perform. Id. Instead, Plaintiff alleges that the ALJ manufactured a definition (and

corresponding limitation) “out of thin air,” and thus “erred by citing her own vocational assessment

as substantial evidence to support her conclusion that ‘a restriction to understanding, remembering

and applying simple and routine instructions’ sufficiently accommodates Plaintiff’s limitations

maintaining concentration, persistence, or pace.” Id. (citing Tr. 583).

Defendant counters that the ALJ properly accounted for Plaintiff’s moderate limitations in

concentration, persistence, and pace in the hypothetical and in the RFC. ECF 14-1, at 6. As to the

ALJ’s own vocational assessment, Defendant argues that these “hypothetical limitations” were

“dicta regarding a further, unnecessary, interpretation of how these limitations might relate to

certain aspects of work activity.” Id. at 9. Defendant argues that the ALJ’s statement regarding

“detailed work” was a meaningless detour and “it in no way undermines the discussion [the ALJ]

already provided, which indicates the specific limitation she found, and how it is accommodated

within the [RFC].” Id.

As a threshold matter, it is unclear whether the challenged paragraph was addressing

Plaintiff’s specific limitations or, as Defendant asserts, was meaningless “dicta” offered to further

explain how a limitation on certain types of directions might address a limitation on concentration,

persistence, and pace. At no point in the paragraph is Plaintiff specifically mentioned as the

paragraph references only a generalized “individual.” Further, the paragraph seems to address

limitations on concentration and persistence, both areas where the ALJ determined that Plaintiff

had no limitations. Tr. 582 (“As to concentration and persistence, the claimant has not made

significant allegations in these areas, has specifically indicated the ability to start and complete

tasks, and she has been largely found to be within normal ranges in these areas. As such, the

undersigned does not find it necessary to provide restrictions for concentration or persistence.”).

Thus, there is strong support for the argument that this paragraph was little more than an

“unnecessary” discussion with no impact on Plaintiff’s RFC.

Even if the paragraph was specific to Plaintiff, I do not find that it constitutes error. A

short summary of the history of this case shows why. The parties both acknowledge that the

challenged RFC was an attempt to address Judge Boardman’s explicit instructions on remand.

Previously, a different ALJ found that Plaintiff had a “moderate” limitation in “maintaining

concentration, persistence, and pace,” but only provided an RFC limitation on “simple, routine,

repetitive work in an environment with few, if any, workplace changes.” Tr. 643. In Mascio, the

Fourth Circuit held that a moderate limitation in “concentration, persistence, or pace” must be

accompanied by a limitation addressing the ability to “stay on task,” or a detailed explanation as

to why no such limitation is needed. Mascio, 780 F.3d at 638. Since the ALJ failed to include

such a limitation or an explanation as to why none was needed, Judge Boardman ordered remand.

October 7, 2022

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Tr. 646.

On remand, the ALJ clarified that “the record does not support any more than mild

concentration or persistence limitations[.]” Tr. 573. However, the ALJ determined that Plaintiff

did have a “moderate” limitation as to “pace.” Tr. 573. As such, the ALJ expanded Plaintiff’s

RFC by limiting Plaintiff “to understanding, remembering and applying simple and routine

instructions and attending and concentrating for extended periods with simple and routine tasks[.]”

Tr. 575. The ALJ also limited Plaintiff to making “simple, work-related decisions,” Tr. 575, as

well as to “understanding, remembering and applying simple and routine instructions,” and

performing “simple and routine tasks at work,” Tr. 582. The ALJ also added a limitation that

Plaintiff could “not [work] at production pace (meaning no strict production requirements or rapid

assembly line work where co-workers are side by side and the work of one affects the work of

others).” Tr. 575.

This final limitation related to assembly line work was likely added in response to Judge

Boardman’s remand order and, standing alone, satisfied the need to address Plaintiff’s moderate

limitation on “concentration, persistence, and pace.” See April K. v. Kijakazi, No. 21-1538-BAH,

2022 WL 2793048, at *5 (D. Md. July 15, 2022) (“Missing from Plaintiff's argument is the fact

that the ALJ did account for Plaintiff's limitations in ‘maintaining concentration, persistence, and

pace’ by determining that Plaintiff can only work at a ‘consistent pace, but not at a production

pace, such as on an assembly line or work involving monthly or hourly quotas.’”). Of course, the

ALJ also added an additional concentration, persistence, and pace-based limitation to

“understanding, remembering and applying simple and routine instructions.” Tr. 582. Both

limitations were included in the hypothetical offered to the VE. Tr. 622.

Plaintiff does not seriously challenge the inclusion of these two limitations in the

hypothetical or the RFC.3 Instead, Plaintiff alleges that the explanation offered for the instruction

limitation went beyond the boundaries of the ALJ’s expertise. Specifically, Plaintiff claims that

this “occupational assessment” did not originate with the DOT or from the VE, and was simply

“unqualified conjecture” that necessitates remand. ECF 15, at 2. I disagree.

First, the ALJ’s statements had no impact on the RFC and instead represented an attempt

to explain why a limitation on “understanding, remembering and applying simple and routine

instructions” was added. As noted, this limitation came in response to Judge Boardman’s order

that the ALJ either add a limitation to address a deficit in “concentration, persistence, and pace,”

or explain why one was not needed. That the ALJ decided to both—add a limitation and explain

3 Such a challenge would be futile. Indeed, the limitation on following instructions that is the

target of Plaintiff’s appeal is arguably not supported by the record, and thus unnecessary, because

the lone moderate limitation found by the ALJ was to Plaintiff’s ability to maintain “pace.” Tr.

573 (“While the record does not support any more than mild concentration or persistence

limitations, due to the claimant’s noted processing speed problems, she is considered to have a

moderate limitation in pace, and therefore is limited in concentration, persistence or pace to

moderate.”). As noted, this limitation is adequately addressed by the prohibition on assembly-line

work.

October 7, 2022

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it—is not error. It was arguably unnecessary, since Plaintiff’s moderate impairment related to

“pace” was already addressed through a different limitation on assembly-line work. Most

importantly, since the limitation on “understanding and applying simple and routine instructions”

is based in substantial evidence and generally unchallenged, it is hard to fathom why an

explanation for its inclusion, however flawed, would require remand. See Fisher v. Bowen, 869

F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative law or common sense requires

us to remand a case in quest of a perfect opinion unless there is reason to believe the remand might

lead to a different result.”).

I also do not agree that ALJ’s observation as to how a limitation on instructions might

address a deficit in “concentration, persistence, and pace” required an expert’s opinion. To the

contrary, the ALJ was simply offering a commonsense observation of the kind an ALJ is permitted

to make. See, e.g., Geisler v. Comm’r, Soc. Sec. Admin., No. SAG-14-2857, 2015 WL 4485459,

at *2 (D. Md. July 21, 2015) (“For example, common sense dictates that if Mr. Geisler is incapable

of reading, he also cannot be expected to perform a job that involves writing.”). I also note that

the regulatory framework cited by Plaintiff does not require that an ALJ’s discussion of the type

of work a claimant can perform be entirely based on the DOT or the testimony of a VE. Instead,

the relevant regulation notes that an ALJ determining whether jobs exist in the national economy

will take “notice of” the DOT, among other sources, and, when determining “whether [a

claimant’s] work skills can be used in other work and the specific occupations in which they can

be used, . . . may use the services of a vocational expert or other specialist.”4 20 C.F.R.

§ 416.966(e)5 (emphasis added).

Simply put, the ALJ addressed Plaintiff’s impairments, accommodated them in the RFC,

and then offered an arguably unnecessary explanation for one of those accommodations. The ALJ

consulted the VE and presented hypotheticals including the challenged limitation. This is precisely

what an ALJ is required to do. See Shinaberry v. Saul, 952 F.3d 113, 122 (4th Cir. 2020) (“In sum

. . . the ALJ in this case addressed Shinaberry’s lifelong, borderline intellectual disability,

including her moderate limitations in concentration, persistence, or pace[,] explained why the

psychological evidence and Shinaberry’s statements support a mental limitation to simple, routine,

and repetitive tasks[, a]nd included the mental limitation in the hypothetical question posed to the

vocational expert.”). As such, I find no error in the ALJ’s discussion of “detailed work.”

Plaintiff’s second sub-argument is that the ALJ’s limitation to “detailed work”—however

flawed and baseless—should have been incorporated into hypotheticals to the VE and resulted in

a finding that Plaintiff can only perform jobs with a General Education Development (“GED”)

4 The other regulation cited by Plaintiff, SSR 00-4p, provides that the ALJ “has an affirmative

responsibility to ask [a VE] about any possible conflict between [the VE’s] evidence and . . . the

DOT.” SSR 00–4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). Plaintiff attempts to manufacture a

conflict between the Plaintiff’s GED Reasoning Level and the RFC, which the Court rejects later

in this opinion.

5 Plaintiff cited to 20 C.F.R. § 404.1566, the analogous regulation that governs Title II applications.

Because Plaintiff here filed under Title XVI, 20 C.F.R. § 416.966 governs.

October 7, 2022

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level of 1. ECF 13-1, at 17.6 Plaintiff avers that such a finding is supported by the findings of

“the State agency psychological consultants” who opined that Plaintiff can only remember and

understand “short and simple instructions[.]” Id. (citing Tr. 102). Defendant counters that the ALJ

did not find that a limitation to understanding “short” instructions, and one is not warranted on this

record. ECF 14-1, at 11. Accordingly, the RFC and questioning of the VE were “consistent with

the regulations and supported by substantial evidence.” ECF 14-1, at 11. I agree.

GED Level 2 jobs require that a claimant can “[a]pply commonsense understanding to

carry out detailed but uninvolved written or oral instructions.” DOT, App. C, 1991 WL 688702.

In Thomas v. Berryhill, the Fourth Circuit held that a claimant who is “limited to short, simple

instructions, may not be able to carry out detailed but uninvolved instructions” as required to

perform GED Level 2 work. 916 F.3d 307, 314 (4th Cir. 2019). Plaintiff’s argument hinges on

my finding that limitations on “applying simple and routine instructions,” Tr. 575, on making

“simple, work-related decisions,” Tr. 582, and on performing “detailed work,” Tr. 583, all found

by the ALJ, are indistinguishable from limitation on the application of “short, simple instructions”

as discussed in Thomas. Thus, even assuming that the ALJ’s reference to “detailed work” was

directed at Plaintiff and implicated GED levels at all,7 a finding that Plaintiff can perform GED

Level 2 jobs is only appropriate if the inability to perform detailed work, which is not included in

the description of GED Level 2 work, is indistinguishable from the inability to understand and

carry out detailed instructions, which is.

Fortunately, the Fourth Circuit has spoken on this exact issue. Applying Thomas, and

contrary to Plaintiff’s argument here, the Fourth Circuit has found that there is a meaningful

difference between a limitation to jobs involving “short, simple instructions,” and work that limits

a claimant to “simple, routine, repetitive tasks.” Lawrence v. Saul, 941 F.3d 140, 141 (4th Cir.

2019) (emphasis added). Focusing on the fact that the claimant in Thomas was limited to “short”

instructions, the Fourth Circuit determined that “short” means something different than “detailed”

because “detail and length are highly correlated.” Id. at 143. Thus, the Lawrence Court held that

the performance of “jobs limited to ‘simple, routine repetitive tasks of unskilled work’” is not

inconsistent with a GED Reasoning Level 2. Id.

Here, the ALJ limited Plaintiff to the “understanding, remembering, and applying” of

“simple and routine” instructions and the performance of “simple and routine” tasks. Tr. 575.

6 Though Plaintiff earlier challenged the basis for the ALJ’s additional explanation, Plaintiff’s

second argument relies on it being true. ECF 13-1, at 17 (“This explanation regarding Plaintiff’s

inability to perform “detailed” work is supported by substantial evidence, as the record indeed

confirms that Plaintiff suffers limitations with understanding and remembering ‘detailed’

instructions.”).

7 As previously discussed, it is not clear that the ALJ intended to limit Plaintiff to non-detailed

work. Instead, the ALJ offered a generic explanation of how a limitation on certain types of

instructions, if needed, might address a deficit on concentration, persistence, and pace. ECF 14-

1, at 10–11.

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This finding is consistent with Lawrence. What mattered in Lawrence was the absence of a

limitation on “short” instructions, a limitation that similarly is not present in Plaintiff’s RFC. See

Lawrence, 941 F.3d at 143. In fact, the lone reference to such a limitation is only found in a report

by a state agency consultant and not explicitly adopted by the ALJ. Tr. 102.8 Thus, as with the

claimant in Lawrence, the ALJ here found that Plaintiff can perform jobs limited to “simple and

routine instructions” and “simple and routine tasks.” Tr. 575; see Lawrence, 941 F.3d at 143

(noting that the ALJ found the claimant able to “perform jobs limited to ‘simple, routine, repetitive

tasks of unskilled work”). Such a limitation is not inconsistent with “Level 2’s notions of ‘detailed

but uninvolved . . . instructions’ and tasks with ‘a few [ ] variables.’” Lawrence, 941 F.3d at 143

(citing DOT, App. C, 1991 WL 688702).

It is true that there are decisions holding that limitations quite similar to Plaintiff’s preclude

GED Level 2 jobs. See Johnson v. Berryhill, No. 5:17-CV-548-FL, 2019 WL 1294643, at *3

(E.D.N.C. Mar. 20, 2019) (“The court sees no meaningful distinction between short, simple

instructions and simple and routine tasks.”); Grier v. Berryhill, No. 1:18-1605-JMC-SVH, 2019

WL 2061588, at *14 (D.S.C. Mar. 13, 2019), report and recommendation adopted sub nom. Grier

v. Comm’r of Soc. Sec. Admin., No. 1:18-CV-01605-JMC, 2019 WL 1723601 (D.S.C. Apr. 18,

2019) (finding a limitations on the performance of “simple routine tasks,” “understand[ing],

remember[ing] and follow[ing] simple instructions,” “mak[ing] simple work-related decisions,”

and “tolerat[ing] routine changes in [the] work setting” limited a claimant to jobs with “a GED

reasoning level of one[.]”). However, these cases pre-dated Lawrence and presented different facts

and claimant limitations than are present here. In any event, Plaintiff’s argument that the inability

to perform “detailed work” is the same thing as the inability to carry out “detailed instructions”

did not survive Lawrence, and I find no error in the ALJ’s analysis as to this point.9

Plaintiff concludes by arguing that the ALJ should have found “Plaintiff is only capable of

8 Though the ALJ gave some portions of the report of the state agency consultants “great weight,”

this assessment of weight was specifically applied to findings related to “B1, B2, B3, and B4

criterion.” Tr. 581. The ALJ made no finding as to the statement that Plaintiff is “capable of

understanding and remembering short and simple instructions.” Tr. 102. Moreover, the state

agency consultant found that “[w]hile [Plaintiff] may have a mental impairment, it does not appear

to be of a disabling proportions[, and Plaintiff] appears capable of performing simple, unskilled

repetitive assignments [and] tasks in a setting [with] limited public interaction.” Tr. 102. This

statement makes no mention of limitations on instructions and generally comports with the

requirements of a GED Level 2 job.

9 Remand would not ensue on this point even if Lawrence had not been decided. The ALJ

repeatedly stated that the only moderate limitation Plaintiff suffered was a limitation on

maintaining “pace.” Tr. 573, 582. Thus, even if it was error to treat “detailed work” differently

than “detailed instructions,” it doesn’t necessarily follow that remand is warranted as the ALJ

sufficiently explained why Plaintiff could perform work at GED Level 2 despite this limitation

and included a separate, pace-based limitation on assembly line work.

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‘understanding and remembering short and simple instructions[.]’” ECF 15, at 11 (citing Tr. 102).

The bulk of this argument comes in Plaintiff’s reply brief, which ordinarily would preclude this

Court’s review. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A

party waives an argument by failing to present it in its opening brief or by failing to ‘“develop [its]

argument”—even if [its] brief takes a passing shot at the issue.’” (quoting Brown v. Nucor Corp.,

785 F.3d 895, 923 (4th Cir. 2015) (Agee, J. dissenting))). Regardless, though Plaintiff does point

out numerous pieces of evidence shedding light on Plaintiff’s ability to concentrate, Plaintiff

ignores that the ALJ similarly cited to, and discussed, evidence addressing the same issue and

ultimately determined that Plaintiff’s concentration was not severely limited. Tr. 578–82.

“This court does not reweigh evidence or make credibility determinations in evaluating

whether a decision is supported by substantial evidence; ‘[w]here conflicting evidence allows

reasonable minds to differ,’ we defer to the Commissioner’s decision.” Fiske v. Astrue, 476 F.

App’x 526, 527 (4th Cir. 2012) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)

(per curiam)). Although reasonable minds may differ as to whether Plaintiff’s concentration

impairment rises to the level of needing an additional RFC limitation, the Court defers to the ALJ’s

determination because it is supported by substantial evidence.

V. CONCLUSION

For the reasons set forth herein, Plaintiff’s motion for summary judgment, ECF 13, is

DENIED and Defendant’s motion for summary judgment, ECF 14, is GRANTED. Pursuant to

sentence four of 42 U.S.C. § 405(g), the SSA’s judgment is AFFIRMED The clerk is directed to

CLOSE this case.

Despite the informal nature of this letter, it should be flagged as a Memorandum Opinion.

A separate implementing Order follows.

Sincerely,

/s/

Brendan A. Hurson

United States Magistrate Judge