Jefferson v. Berryhill

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 3/22/2019. (km4s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
TONETTE J.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration
Defendant.

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Civil Action No. CBD-18-1047

MEMORANDUM OPINION
Tonette J. (“Plaintiff”) brought this action under 42 U.S.C. § 405(g) seeking judicial
review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”). Commissioner denied Plaintiff’s claim for Supplemental Security Income
Benefits (“SSI”) under Title XVI of the Social Security Act. Before the Court are Plaintiff’s
Motion for Summary Judgment (“Plaintiff’s Motion”), ECF No. 15, and Commissioner’s Motion
for Summary Judgment (“Commissioner’s Motion”), ECF No. 16. The Court has reviewed the
motions, related memoranda, and the applicable law. No hearing is deemed necessary. See
Local Rule 105.6 (D. Md.). For the reasons presented below, the Court hereby DENIES
Plaintiff's Motion and DENIES Commissioner’s Motion, but REVERSES and REMANDS the
Administrative Law Judge’s decision pursuant to the fourth sentence of 42 U.S.C. § 405(g) for
further proceedings.

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I.

Procedural Background
On April 21, 2014, Plaintiff filed for SSI under Title XVI, alleging disability beginning

November 1, 2012. R. 10, 216-25. Plaintiff alleged disability due to “bi-polar disorder, panic
disorder, asthma, agoraphobia; [and a history] of ovarian cancer.” R. 59. Plaintiff’s claims were
initially denied on July 14, 2014, and upon reconsideration on January 16, 2015. R. 10, 59-64,
66-68. An administrative hearing was held on May 23, 2016, at which Plaintiff was granted an
adjournment to obtain representation. R. 10, 28-31. Plaintiff later requested a second
adjournment, which was granted on October 24, 2016. R. 10, 170-71. Ultimately, a second
hearing was held on February 27, 2017, with Plaintiff’s attorney present. R. 10, 178, 183, 201,
204-09. At that hearing, Plaintiff amended her alleged onset date to be May 31, 2016. R. 10, 36.
On April 25, 2017, Plaintiff’s claim was denied. R. 10-22. Plaintiff sought review by the
Appeals Council, which concluded on February 22, 2018, that there was no basis for granting the
Request for Review. R. 1-4.
II.

Standard of Review
On appeal, the Court has the power to affirm, modify, or reverse the decision of the

administrative law judge (“ALJ”) “with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g) (2019). The Court must affirm the ALJ’s decision if it is supported by
substantial evidence and the ALJ applied the correct law. Id. (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive.”); see also Russell v. Comm’r of Soc. Sec., 440 F. App’x 163, 164 (4th Cir.
2011) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). “In other words, if the
ALJ has done his or her job correctly and supported the decision reached with substantial
evidence, this Court cannot overturn the decision, even if it would have reached a contrary

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result on the same evidence.” Schoofield v. Barnhart, 220 F. Supp. 2d 512, 515 (D. Md.
2002). Substantial evidence is “more than a mere scintilla.” Russell, 440 F. App’x at 164.
“It means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Hays,
907 F.2d at 1456 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal
quotation marks omitted) (“It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance. If there is evidence to justify a refusal to direct a
verdict were the case before a jury, then there is substantial evidence.”).
The Court does not review the evidence presented below de novo, nor does the Court
“determine the weight of the evidence” or “substitute its judgment for that of the Secretary
if his decision is supported by substantial evidence.” Hays, 907 F.2d at 1456 (citations
omitted); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (“[T]he
language of § [405(g)] precludes a de novo judicial proceeding and requires that the court
uphold the Secretary’s decision even should the court disagree with such decision as long as
it is supported by ‘substantial evidence.’”). The ALJ, not the Court, has the responsibility to
make findings of fact and resolve evidentiary conflicts. Hays, 907 F.2d at 1456 (citations
omitted). If the ALJ’s factual finding, however, “was reached by means of an improper
standard or misapplication of the law,” then that finding is not binding on the Court.
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (citations omitted).
The Commissioner shall find a person legally disabled under Title XVI if she is unable
“to do 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.” 20 C.F.R. § 416.905(a)

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(2012). The Code of Federal Regulations outlines a five-step process that the Commissioner
must follow to determine if a claimant meets this definition:
1) Determine whether the plaintiff is “doing substantial gainful activity.” 20 C.F.R.
§ 416.920(a)(4)(i) (2012). If she is doing such activity, she is not disabled. If she is not
doing such activity, proceed to step two.
2) Determine whether the plaintiff has a “severe medically determinable physical or mental
impairment that meets the duration requirement in § 416.909, or a combination of
impairments that is severe and meets the duration requirement.” 20 C.F.R.
§ 416.920(a)(4)(ii) (2012). If she does not have such impairment or combination of
impairments, she is not disabled. If she does meet these requirements, proceed to step
three.
3) Determine whether the plaintiff has an impairment that “meets or equals one of [the
C.F.R.’s] listings in appendix 1 of this subpart and meets the duration requirement.” 20
C.F.R. § 416.920(a)(4)(iii) (2012). If she does have such impairment, she is disabled. If
she does not, proceed to step four.
4) Determine whether the plaintiff retains the “residual functional capacity” (“RFC”) to
perform “past relevant work.” 20 C.F.R. § 416.920(a)(4)(iv) (2012). If she can perform
such work, she is not disabled. If she cannot, proceed to step five.
5) Determine whether the plaintiff can perform other work, considering her RFC, age,
education, and work experience. 20 C.F.R. § 416.920(a)(4)(v) (2012). If she can
perform other work, she is not disabled. If she cannot, she is disabled.
Plaintiff has the burden to prove that she is disabled at steps one through four, and
Commissioner has the burden to prove that Plaintiff is not disabled at step five. Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
The RFC is an assessment that represents the most a claimant can still do despite any
physical and mental limitations on a “regular and continuing basis.” 20 C.F.R. § 416.945(b)-(c)
(2012). In making this assessment, the ALJ must consider all relevant evidence of the claimant’s
impairments and any related symptoms. See 20 C.F.R. § 416.945(a). The ALJ must present 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,

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observations),” and must then “explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184 at *7
(S.S.A. July 2, 1996). “Ultimately, it is the duty of the [ALJ] reviewing the case, and not the
responsibility of the courts, to make findings of fact and to resolve conflicts of evidence.” Hays,
907 F.2d at 1456 (citing King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)).
III.

Analysis
The ALJ evaluated Plaintiff’s claim using the five-step sequential evaluation process. R.

11-22. At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful
activity since April 21, 2014, the date of her application for SSI. R. 12. At step two, under 20
C.F.R. § 416.920(c), the ALJ determined that Plaintiff has the following severe impairments:
“bipolar disorder, panic disorder, post-traumatic stress disorder, and opiate dependence.” R. 12.
The ALJ stated that these impairments were “severe” as they “impose more than minimal
functional limitations on the claimant’s ability to perform basic work activities and have lasted or
are expected to last for more than twelve months.” R. 12. In step three, the ALJ determined that
Plaintiff “does not have an impairment or a combination of impairments that meet or medically
equal the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (20
C.F.R. §§ 416.920(d), 416.925, and 416.926; SSR 17-2p).” R. 13. At step four, the ALJ
determined that Plaintiff has the RFC to:
[P]erform light work as defined in 20 CFR 416.967(b) except she can frequently
climb ramps, stairs, and kneel. She can occasionally climb ladders, ropes, or
scaffolds. She can occasionally push or pull foot controls with the right lower
extremity. She requires the opportunity to sit for a minute or two after standing
between 30 to 60 minutes. Mentally, she is capable of performing simple,
routine, and repetitive tasks. She can have occasional contact with coworkers and
supervisors, but no contact with the public.

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R. 16. At step five, the ALJ determined that Plaintiff was not capable of performing any of her
past relevant work. R. 20. However, the ALJ concluded that “there are jobs that exist in
significant numbers in the national economy that [Plaintiff] can perform.” R. 20. The ALJ
relied upon the testimony of a vocational expert when making this determination. R. 20-21.
Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social
Security Act. R. 21-22.
On appeal, Plaintiff argues that the Court should enter judgment as a matter of law in her
favor alleging several legal errors and ways in which the ALJ’s decision was not based on
substantial evidence. Mem. in Supp. of Pl.’s Mot. for Summary J. (“Pl’s Mem.”) 5-16. For the
reasons set forth below, the Court hereby DENIES Plaintiff's Motion, DENIES Commissioner’s
Motion, REVERSES the ALJ’s decision, and REMANDS the matter for further proceedings.
A. The RFC fails to sufficiently account for Plaintiff’s moderate limitations in
concentration, persistence, or pace as it fails to address Plaintiff’s ability to sustain
the identified RFC for a full workday.
Plaintiff argues the RFC limitation to “simple, routine and repetitive tasks” runs afoul of
the Fourth Circuit’s explicit holding in Mascio as it fails to reconcile the ALJ’s finding of her
moderate limitations with maintaining concentration, persistence, or pace with the minimal
limitations included in the RFC. Pl.’s Mem. 11-12 (citing Mascio v. Colvin, 780 F.3d 632 (4th
Cir. 2015)). Plaintiff specifically argues the ALJ erred in failing to include a durational
limitation in the RFC assessment or to provide an explanation for why one was not necessary.
Pl.’s Mem. 12. Commissioner counters that the ALJ did in fact meet the requirements of Mascio
as he provided an explanation for why Plaintiff’s moderate limitations in concentration,
persistence, or pace are sufficiently accounted for by the RFC limitations. Mem. of Law in
Supp. of Def.’s Mot. for Summary J. (“Comm’r’s Mem.”) 10-12. Commissioner asserts that the

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ALJ implicitly addressed whether Plaintiff needed any durational limitations as an “RFC
assessment reflects the claimant’s capacity for work activity on a ‘regular and continuing basis.’”
Comm’r’s Mem. 12-13 (citing 20 C.F.R. § 416.945).
In Mascio, the Fourth Circuit held that a RFC assessment must account for an ALJ’s step
three finding of moderate limitations in concentration, persistence, or pace beyond limiting a
claimant to performing only “simple, routine tasks or unskilled work.” Mascio, 780 F.3d at 638.
This Court further clarified that, “[p]ursuant to Mascio, once an ALJ has made a step three
finding that a claimant suffers from moderate difficulties in concentration, persistence, or pace,
the ALJ must either include a corresponding limitation in her RFC assessment, or explain why
no such limitation is necessary.” Talmo v. Comm’r, Soc. Sec., Civ. No. ELH-14-2214, 2015 WL
2395108, at *3 (D. Md. May 19, 2015). To satisfy this requirement, an ALJ “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).” Mascio, 780 F.3d at 636 (quoting SSR 96–8p, 61 Fed. Reg. at 34,478) (internal
quotation marks omitted). “In other words, the ALJ must both identify evidence that supports
his conclusion and ‘build an accurate and logical bridge from [that] evidence to his conclusion.’”
Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis original) (quoting Monroe v.
Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (citation omitted)).1 This Court has previously held

The functional area of concentration, persistence, or pace, “refers to the abilities to focus
attention on work activities and stay on task at a sustained rate.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 12.00(E)(3) (2012). Since Mascio, courts have reviewed various ALJs’ attempts to
include corresponding limitations in their RFC assessments for moderate limitations in this
functional area. See, e.g., Wilson v. Comm’r, Soc. Sec. Admin., Civ. A. No. ADC-17-2666, 2018
WL 3941946, at *5 (D. Md. Aug. 16, 2018) (holding limitations for interactions with other
individuals do not address concentration, persistence, or pace; rather they address social
functioning); McDonald v. Comm’r, Civ. No. SAG-16-3041, 2017 WL 3037554, at *4 (D. Md.
July 18, 2017) (concluding “a RFC restriction that [the claimant could] perform ‘simple, routine,
1

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that—in addition to determining the work functions a claimant is able to do—Mascio requires an
ALJ to either include an explicit limitation addressing a claimant’s ability to sustain those
functions throughout a full workday or a sufficiently clear explanation as to why a durational
limitation is not necessary.2
Here, Plaintiff was found to have moderate limitations in “concentrating, persisting, or
maintaining pace.” R. 14. The ALJ specifically noted at step three that Plaintiff did not have a
“serious limitation in the abilities to focus attention or stay on task, given [Plaintiff’s]
improvement with treatment and lack of complaints with completing tasks on an ongoing basis.”
R. 15. In assessing Plaintiff’s RFC, the ALJ determined that, “[m]entally, [Plaintiff] is capable
of performing simple, routine, and repetitive tasks.” R. 16. After reviewing and summarizing
the evidence in the record, the ALJ stated, “I have found [Plaintiff] would be limited to low

and repetitive tasks involving only simple work-related decisions with few if any workplace
changes and only occasional supervision’ ” was insufficient to meet Mascio requirements);
Steele v. Comm’r, Soc. Sec., Civ. No. MJG-15-1725, 2016 WL 1427014, at *4 (D. Md. Apr. 11,
2016) (citing SSR 96-9P) (holding that when a RFC includes durational limitations an ALJ must
consider that the normal 8-hour workday already includes breaks approximately every two (2)
hours and provide further explanation as to how limiting someone to breaks every two hours
“adequately accounts for a moderate limitation in the ability to stay on task” or else it does not
meet the Mascio requirements); Henig v. Colvin, Civ. No. TMD-13-1623, 2015 WL 5081619, at
*12 (D. Md. Aug. 26, 2015) (listing cases) (finding the ALJ’s determination that a claimant
should be excluded from “work involving significant stress, such as production-line type work”
sufficient to meet Mascio requirements for corresponding limitations for moderate difficulties in
concentration, persistence, or pace).
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See, e.g., Parker v. Comm’r, Soc. Sec. Admin., Civ. A. No. ADC-18-0554, 2019 WL 247539, at
*7 (D. Md. Jan. 17, 2019) (“Although the ALJ determined the functions she believed [the
claimant] could perform, she failed to discuss [the claimant’s] ability to perform those functions
throughout a full workday as required by Mascio.”); Folsom v. Berryhill, Civ. No. TMD 161681, 2017 WL 4354875, at *3 (D. Md. Sept. 30, 2017) (remanding the case as the ALJ “did not
explain how [the evidence] demonstrated that [the claimant] could persist through an eight-hour
workday”); Miles v. Comm’r, Soc. Sec. Admin., Civ. No. SAG-16-1397, 2016 WL 6901985, at
*2 (D. Md. Nov. 23, 2016) (“There is no corresponding restriction for the finding of moderate
difficulties in concentration, persistence, or pace, such that it addresses [the claimant’s] ability to
sustain work throughout an eight-hour workday.”).
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stress, unskilled work, with limited social interactions, but find the evidence does not support
any additional limitations.” R. 20. While this addresses what type of work functions Plaintiff
could sustain, the ALJ did not explicitly address whether Plaintiff could sustain those work
functions for a full workday. Further, a review the evidence he cited indicates the ALJ was
aware that Plaintiff’s medicine made her drowsy and that she suffered at times from panic
attacks. R. 16-18. The ALJ cites to treatment notes and appears to dismiss Plaintiff’s complaints
of drowsiness as an infrequent issue or the result of poorly timing the dosages. R. 19. However,
in these same treatment notes, Plaintiff also discusses her overall experiences with medications
she is taking. R. 487. Plaintiff reports that certain medications are not “lasting the whole day.”
R. 487. Therefore, in addition to not explicitly addressing whether Plaintiff would be able to
maintain persistence or pace throughout a full workday, there is evidence that the very
medications that permit her to function might not last a full workday. Accordingly, remand is
warranted on this issue and the ALJ is ordered to provide an assessment as to whether Plaintiff
would be able to sustain the RFC over a full 8-hour workday.
B. The ALJ properly assessed the medical opinions in evidence by providing both the
weight he afforded to each opinion as well as a sufficient explanation for his
decision, thus permitting judicial review.
Plaintiff argues that the ALJ failed to provide sufficient explanations for the weights he
assigned to the medical opinions included in the record. Pl.’s Mem. 9. Specifically, Plaintiff
argues the ALJ used “undefined adjectives (little and some) in assigning weight to every single
medical source RFC assessment of record” but “[a]t no point . . . does the ALJ ever define these
adjectives nor does he disclose . . . what proportion of weight was assigned to the various
medical source statements.” Pl.’s Mem. 9. Commissioner counters that Plaintiff appears to
focus on the ALJ’s choice of words and ignores the fact that the ALJ provided additional

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explanations within his decision for the weight he afforded each opinion. Comm’r’s Mem. 6-7.
Commissioner argues the Court should decline to adopt a per se rule that such terms require
remand and instead “focus on the ALJ’s explanation as a whole to understand how the ALJ
evaluated the opinion evidence in question.” Comm’r’s Mem. 7-8. According to Commissioner,
the ALJ in this case did provide such explanations for his determinations of weight. Comm’r
Mem. 8. For the reasons that follow, the Court agrees with Commissioner on this issue.
An ALJ has a duty to explain her decision so as to enable meaningful judicial review.
See Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987). A denial of benefits is not supported
by substantial evidence if the ALJ “has [not] analyzed all evidence and . . . sufficiently explained
the weight he has given to obviously probative exhibits.” Gordon v. Schweiker, 725 F.2d 231,
236 (4th Cir. 1984) (citing Arnold v. Secretary, 567 F.2d 258, 259 (4th Cir. 1977)); see also
Murphy, 810 F.2d at 437 (holding that an ALJ failed to “explicitly indicate” the weight he
afforded two medical opinions when he failed to provide the reasons for why he credited one
doctor’s opinion over another doctor’s conflicting opinion); Durham v. Apfel, 225 F.3d 653,
2000 WL 1033060, at *5 (4th Cir. 2000) (per curium) (citing Gordon, 725 F.2d at 236) (stating
an ALJ must “analyze[] all evidence and [ ] sufficiently explain[ ] the weight he has given to
obviously probative exhibits” or it prevents judicial review). Additionally, “the ALJ is required
to give ‘controlling weight’ to opinions proffered by a claimant’s treating physician so long as
the opinion is ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case
record.” Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (citing to 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2)); see also Sharp v. Colvin, 660 F. App’x 251, 256 (4th Cir. 2016)
(same). An ALJ can assign a lesser degree of weight to a treating physician’s medical opinion

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but must provide an explanation for this decision and support it with evidence in the record. See
Lewis, 858 F.3d at 867-68 (finding the ALJ’s rejection of the treating physician’s opinion as
“perfunctory” as his explanation “span[ned] only four lines and overlook[ed] critical aspects of
[the plaintiff’s medical treatment history”). This Court has not found terms such as “little” or
“some” to be per se insufficient so long as there is some explanation given as to how or why the
ALJ assigned that degree of weight. See, e.g., Lacek v. Colvin, Civ. A. No. CBD-13-2046, 2014
WL 2865992 (D. Md. June 23, 2014). In Lacek, the ALJ only assigned weight to three out of the
seventeen opinions in the record, “and for those three opinions he merely stated that he gave
them ‘some’ or ‘very minimal’ weight.” Id. at *7. This Court determined that this “glaring lack
of substance and weighing of the opinion evidence” left it “without an adequate understanding of
how the ALJ reached essential decisions.” Id. In remanding the case back for further
proceedings, this Court held that, “[a]lthough ‘administrative verbosity’ is not required, the ALJ
must conduct analysis and an explanation that allows a reviewing Court to understand the
conclusions he reached and why he reached them.” Id. at *8.
Here, the ALJ reviewed several medical opinions that were included in Plaintiff’s record
and afforded them varying weights ranging from little to some. R. 19. For each opinion, the
ALJ also stated specific reasons for why these weights were given. R. 19 (noting several
providers’ opinions did not accord with their treatment notes, offered “no rationale” for their
determinations, or gave opinions as to overall disability that were reserved to the ALJ). In one
instance, the ALJ gave Plaintiff’s treating physician’s opinion “no more than some weight.” R.
19. However, the ALJ stated this was because the doctor’s own notes did not support the
“extreme [physical] limitations” the doctor opined Plaintiff suffered. R. 19. This Court has
deemed such reasoning to be a sufficient explanation for assigning less than controlling weight to

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a treating physician’s opinion. See, e.g., Sharp, 660 F. App’x at 257 (finding the ALJ’s
reasoning that “the claimant’s reported limitations were not supported by [the physician’s] office
notes” was a sufficient explanation for the assignment of “little weight”). Accordingly, remand
is not necessary on this issue.
C. The ALJ failed to obtain a sufficient explanation from the VE as to whether there
were sufficient jobs in the national economy that Plaintiff could perform in light of
the admitted conflicts between her testimony and the DOT.
Plaintiff argues that the ALJ failed to obtain an acknowledgement of whether there was
any conflict between her testimony and the DOT as they related to the jobs identified at step five.
Pl.’s Mem. 13. Plaintiff asserts this error was prejudicial to her as her RFC limitations for social
function would preclude her from doing any of the jobs identified by the ALJ as they are defined
in DOT, thus undermining the ALJ’s finding that she was not disabled. Pl.’s Mem. 14.
Commissioner counters that the ALJ is only required to ask the VE if the evidence conflicts with
the DOT and, if it appears that it does, to “obtain a reasonable explanation for the apparent
conflict.” Comm’r’s Mem. 14. Commissioner asserts that the ALJ in this case did comply with
this responsibility. Comm’r’s Mem. 14. Commissioner further argues that there is no apparent
conflict between the VE’s testimony and the DOT. Comm’r’s Mem. 14-15.
As previously stated, at step five of the analysis the ALJ must determine whether the
plaintiff can perform other work, considering her RFC, age, education, and work experience. 20
C.F.R. § 416.920(a)(4)(v). To make this determination, an ALJ relies primarily on the
Dictionary of Occupational Titles (DOT).3 Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)
(citing SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000)).

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The Dictionary of Occupational Titles, and its companion, Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational Titles (hereinafter, “DOT” refers
to both documents), are Social Security Administration resources that list occupations existing in
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The ALJ “may also use” a [VE] to address complex aspects of the employment
determination, including the [VE’s] observations of what a particular job requires in
practice or the availability of given positions in the national economy. Because the
[VE’s] testimony can sometimes conflict with the [DOT], the Social Security
Administration has promulgated a multi-page, formal ruling to “clarif[y the] standards for
the use of [VEs]” at ALJ hearings. The Ruling requires that the ALJ “inquire, on the
record, . . . whether” the [VE’s] testimony “conflict[s]” with the [DOT], and also requires
that the ALJ “elicit a reasonable explanation for” and “resolve” conflicts between the
[VE’s] testimony and the [DOT]. The ALJ must, by determining if the [VE’s]
explanation is “reasonable,” resolve conflicts “before relying on the [VE’s] evidence to
support a determination or decision about whether the claimant is disabled.”
Id. at 207-08 (citing SSR 00-4p, 2000 WL 1898704 at *1-2). However, the Fourth Circuit
[E]xpressly declined to expand the ALJ’s duty to include inquiry as to
“all possible conflicts,” because it would impermissibly “require the ALJ to do
more than simply compare the express language of the [DOT] and the vocational
expert’s testimony, and would allow the claimant to nitpick an ALJ’s or expert’s
word choice on appeal.”
Eddie v. Berryhill, No. 5:16-CV-801-D, 2017 WL 4002147, at *6 (E.D.N.C. Aug. 24,
2017), report and recommendation adopted, No. 5:16-CV-801-D, 2017 WL 3995813 (E.D.N.C.
Sept. 11, 2017) (citing Pearson, 810 F.3d at 209 (emphasis added)). Rather, the Fourth Circuit
limited the ALJ’s duty to identifying “apparent” conflicts, which it held to mean “that the ALJ
must identify where the expert’s testimony seems to, but does not necessarily, conflict with the
[DOT]. For the Ruling [SSR 00-4p] explains that ‘[i]f the [VE]’s . . . evidence appears to
conflict with the [DOT], the adjudicator will obtain a reasonable explanation for the apparent
conflict.’” Pearson, 810 F.3d at 209 (quoting SSR 00-04p, 2000 WL 1898704) (emphasis in
original).

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).
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For example, the ALJ determined in Pearson that the claimant’s “nondominate arm could
only occasionally reach upward.” Id. at 210. However, the VE testified the claimant could
perform three occupations where the DOT listings included “frequent reaching as a
requirement.” Id. (emphasis original) (citing DOT listings). The Pearson court determined that
because the DOT’s “broad definition of ‘reaching’ means that [the occupations identified by the
VE] certainly may require [bilateral overhead] reaching” there was an apparent conflict between
the VE’s testimony and the DOT. Id. at 211. The Court concluded that it was the “purview of
the ALJ [and not the Court] to elicit an explanation from the expert as to whether these
occupations do, in fact, require frequent bilateral overhead reaching.” Id. The Court further
explained that such conflicts do not necessarily mean a claimant must be found unable to
perform an identified job. Id. Rather, it meant the ALJ must directly address the conflict with
the aid of the VE and determine whether there are “a significant number of these positions” that
do not require the identified limitation so that the ALJ “can properly find [the claimant] not
disabled.” Id. (noting resolution of the conflict would involve testimony from the VE as to
specific numbers of positions available in light of additional restrictions); see also Lawson v.
Berryhill, Civ. No. TJS-17-0486, 2018 WL 1135641, at *4 (D. Md. Mar. 1, 2018) (reversing the
ALJ’s decision as not based on sufficient evidence in part due to the fact that, after the VE
testified how many positions exist nationwide in identified occupations, the ALJ “failed to
specify how many positions exist in the local and national economy that could accommodate
individuals such as” the plaintiff); Gautreau v. Colvin, Civ. No. 2:15CV81, 2016 WL 1314314,
at *12 (E.D. Va. Feb. 26, 2016), report and recommendation adopted, A. No. 2:15CV81, 2016
WL 1298122 (E.D. Va. Mar. 31, 2016), aff’d sub nom. Gautreau v. Berryhill, 685 F. App’x 260
(4th Cir. 2017) (finding the VE’s testimony provided substantial evidence to support the ALJ’s

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decision where the VE testified that there was a conflict between the DOT and her testimony for
a position she identified but also “testified that she drastically reduced the number of available . .
. positions . . . to account for the limits imposed by [the claimant’s RFC]”).
Here, the ALJ found Plaintiff had moderate limitations with “interacting with others.” R.
14. The ALJ summarized that Plaintiff’s “overall symptoms, while reflecting some anxiety and
irritability at times, were generally controlled with medication and are not consistent with a
serious limitation” on social interactions. R. 14. Subsequently, the ALJ included a limitation in
Plaintiff’s RFC that she have only “occasional contact with coworkers and supervisors, but no
contact with the public.” R. 16. During the hearing, the ALJ posed a hypothetical to the VE that
comported with the final RFC determination he made. R. 54. This included a limitation to only
“occasional contact with coworkers and supervisors, but no contact with the public.” R. 54. The
VE testified that Plaintiff could perform the jobs of “bench packagers,” “sorter,” and
“inspection.” R. 21, 54-55. She further testified that these jobs existed in numbers ranging
between 285,000 and 320,000. R. 54-55. After the VE testified in response to both the ALJ’s
questions and Plaintiff’s counsel’s questions, the ALJ specifically asked whether the VE’s
testimony was “in accordance with the DOT.” R. 56. The VE responded:
Other than the sitting and the standing, as well as the non-exertional limitations and the
absenteeism rates, as well as time off-task, which is not addressed by the DOT or
companion publications; therefore it would be based on my education, training,
experience performing direct job placement services and labor market research
consistently for the last 22 years.
R. 57. In his written decision, the ALJ acknowledged that there were inconsistencies between
the VE’s testimony and the DOT, but found the VE’s explanation that—“based on her
undisputed training, education, and experience”—Plaintiff’s limitations would not preclude her
from a significant number of positions to be reasonable. R. 21 (citing SSR 00-4p). Further, the

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DOT listings for these jobs do not include any mention of public interactions nor do they appear
to be positions that would likely involve such interactions.4 However, while the VE did give an
estimate of the number of positions available nationwide for each of the jobs the VE identified,
there is no indication that someone with Plaintiff’s specific limitations would qualify for every
one of the positions. See Gautreau, 2016 WL 1314314 at *12. Accordingly, remand is
warranted on this issue. The ALJ is directed to not only conduct the two-step inquiry outlines in
Pearson, he should also inquire whether the number of jobs available in the national economy
are ones that Plaintiff would qualify for given her RFC. See Pearson, 810 F.3d at 211.

A “bench packer” is cited to a position also known as a “bin filler” which is describe as
involving the following tasks: “Packs tobacco filler leaves in storage bin, positioning leaves in
rows to prevent breakage. Covers leaves with rubber sheet and closes bin.” DICOT 922.687010 (G.P.O.), 1991 WL 688120. A “sorter” is described as conducting the following tasks:
4

Sorts agricultural produce, such as bulbs, fruits, nuts, and vegetables: Segregates
produce on conveyor belt or table, working as crewmember, according to grade,
color, and size, and places produce in containers or on designated conveyors.
Discards cull (inferior or defective) items and foreign matter. Bunches, ties, and
trims produce, such as asparagus, carrots, celery, and radishes. Picks out choice
produce to be used as cappers (top layers on marketing containers). Packs produce
in boxes, barrels, baskets, or crates for storage or shipment.
DICOT 529.687-186 (G.P.O.), 1991 WL 674781. Finally, “inspection” is cited to a position as
an “inspector,” which is described as conducting the following tasks:
Inspects battery containers to determine if finishing and dimensional
specifications are met: Examines battery containers for surface defects, such as
cracks and damaged terminal posts. Verifies dimensional specifications of battery
containers, using templates or other measuring devices. Places covers over cell
partitions of battery containers to determine if spacing requirements are met.
DICOT 727.687-066 (G.P.O.), 1991 WL 679675.
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D. As this matter is being remanded, the issue concerning the requested evidence from
Plaintiff’s earlier claim is rendered moot.
Plaintiff argues the ALJ failed to comply with statutory regulations by failing to provide
her with a copy of the evidence from her 2008 claim despite her request that it be included. Pl.’s
Mem. 15 (citing “20 C.F.R. 912(a)-(b)”). Plaintiff asserts this evidence was “absolutely critical
in light of the fact that [the Commissioner] saw it fit to obtain no medical records at the initial
decision level, and only one medical document at the reconsideration level.” Pl.’s Mem. 15.
Commissioner presents several arguments to counter Plaintiff’s assertions on this issue. First,
Commissioner points out that the section of the regulation at issue was deleted in 2017 when the
new rules governing how ALJ were to evaluate evidence were issued. Comm’r’s Mem. 16.
Commissioner asserts that these new rules apply to the ALJ’s decision in Plaintiff’s case as the
decision was issued after the new rules came into effect. Comm’r’s Mem. 6. Second,
Commissioner argues that the ALJ is only required to “develop [Plaintiff’s] complete medical
history for at least the last 12 months preceding the month in which the application is filed
‘unless there is reason to believe that development of an earlier period is necessary.’” Comm’r’s
Mem. 16 (citing “20 C.F.R. § 416.912(d) (prior); 20 C.F.R. § 416.912(b)(1) (current)”). Third,
Commissioner points out that Plaintiff failed to raise the missing evidence at the hearing despite
having legal representation. Comm’r’s Mem. 16-17. And finally, Commissioner asserts Plaintiff
has not shown she suffered any prejudice resulting from the failure to include these records.
Comm’r’s Mem. 17.
“Pursuant to 20 C.F.R. § 416.912(d), the ALJ must develop the claimant’s complete
medical history for at least the 12 months preceding the month in which the claimant filed his
application.” Bush v. Colvin, No. CV 1:14-4917-RMG-SVH, 2016 WL 1238006, at *11 (D.S.C.
Mar. 22, 2016), report and recommendation adopted, No. CV 1:14-4917-RMG, 2016 WL
17

1273494 (D.S.C. Mar. 29, 2016). Accordingly, the ALJ in this matter was only required to
develop Plaintiff’s medical history as far back as April 2013. Further, Plaintiff has failed to
establish how the ALJ’s alleged failure to obtain these documents prejudiced her. “Prejudice to
the claimant is established where ‘the [Commissioner’s] decision might reasonably have been
different had that evidence been before her when her decision was rendered.’” Smith v.
Barnhart, 395 F. Supp. 2d 298, 305 (E.D.N.C. 2005) (quoting Sims v. Harris, 631 F.2d 26, 28
(4th Cir.1980) (quoting King v. Califano, 599 F.2d 597, 599 (4th Cir.1979)) (internal quotations
omitted). Here, Plaintiff does not explain how the evidence included in the 2008 claim would
change the outcome of her current claim where the period at issue began in 2016. Plaintiff seems
to allude to the fact that the state agency assessments of her RFC might have provided support
for a different finding as to her limitations but gives no specifics. Pl.’s Mem. 15. The Court also
notes that Plaintiff has been represented by the same counsel from the hearing stage through this
appeal. Nowhere in the hearing transcript does Plaintiff’s counsel appear to have raised the issue
of the missing information to the attention of the ALJ. See R. 35-36. However, the Court is
troubled by the possibility that a request submitted to Commissioner for documents in
Commissioner’s possession might have been ignored or misplaced. As this matter is being
remanded for other reasons, any harm that may have resulted from the ALJ’s alleged failure to
obtain these documents is rendered moot. For future proceedings, the ALJ is advised to
explicitly address any requests for evidence Commissioner might receive and the reasoning for
why he may have declined to comply with them.

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IV.

Conclusion
Based on the foregoing, the Court hereby DENIES Plaintiff's Motion, DENIES

Commissioner’s Motion, REVERSES the ALJ’s decision, and REMANDS this matter for
further proceedings in accordance with the instructions articulated in these findings and in this
Court’s prior rulings.

March 22, 2019

/s/
Charles B. Day
United States Magistrate Judge

CBD/clc

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