Rose, Jr. v. Berryhill

Filing 23

ORDER denying 17 Motion for Judgment on the Pleadings and granting 19 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 1/9/2018. (Stouch, L.)

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. IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:17-CV-7-BO
MARION F. ROSE, JR.,
Plaintiff,

v.
NANCY A. BERRYHILL,
Acting Commissioner ofSocial Security,
Defendant.

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ORDER

This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on these matters before the undersigned on December 21, 2017, at Raleigh, North
Carolina. For the reasons discussed below, the decision of the Commissioner is affirmed.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the
final decision of the Commissioner denying his claim for supplemental security income (SSI)
pursuant to Title XVt of the Social Security Act. Plaintiff applied for SSI on January 24, 2012,
alleging disability since January l, 2009. After initial denials, a hearing was held before an
Administrative Law Judge (ALJ) who issued an unfavorable ruling.

The Appeals Council

remanded plaintiffs claim to the ALJ for further consideration. The ALJ conducted a second
hearing on January 11, 2016, and by decision entered March 2, 2016, plaintiffs claim was denied.
The decision of the ALJ became the final decision of the Commissioner when the Appeals Council
denied plaintiffs request for review. Plaintiff then timely sought review of the Commissioner's
decision in this Court.

DISCUSSION
Under the Social Security Act, 42 U.S.C. §§ 405(g), and 1383(c)(3), this Court's review of
the Commissioner's decision is limited to determining whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Johnson v.

Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and citation omitted).

An individual is considered disabled 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 [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual "shall be determined to be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other line of substantial gainful
work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation process
to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant
bears the burden of proof at steps one through four, but the burden shifts to the Commissioner at
step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision regarding disability
can be made at any step of the process the inquiry ceases. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
At step one, ifthe Social Security Administration determines that the claimant is currently
engaged in substantial gainful activity, the claim is denied. If not, then step two asks whether the
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claimant has a severe impairment or combination of impairments. If the claimant has a severe
impairment, it is compared at step three to those in the Listing of Impairments ("Listing") in 20
C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or medically equals a Listing,
disability is conclusively presumed. If not, at step four, the claimant's residual functional capacity
(RFC) is assessed to determine if the claimant can perform his past relevant work. If so, the claim

is denied. If the claimant cannot perform past relevant work, then the burden shifts to the
Commissioner at step five to show that the claimant, based on his age, education, work experience,
and RFC, can perform other substantial gainful work. If the claimant cannot perform other work,
then he is found to be disabled. See 20 C.F.R. § 416.920(a)(4).
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful
activity since his application date. Plaintiffs bipolar I disorder; antisocial personality disorder,
lumbar degenerative disc disease, and obesity were considered severe impairments at step two but
were not found alone or in combination to meet or equal a Listing at step three. At step four, the
ALJ concluded that plaintiff had the RFC to perform light work with limitations and found that
plaintiff was unable to perform his past relevant work as a laborer. At step five, the ALJ found
that, considering plaintiffs age, education, work experience, and RFC, jobs existed in significant
numbers in the national economy which plaintiff could perform, including small parts assembler,
electronics worker, laundry folder, table worker, glass checker, and garment sorter. Thus, the ALJ
concluded that plaintiff was not disabled as of the date of her decision.

In this appeal, plaintiff first contends that the ALJ failed to give a full explanation of the
nonexertional mental functions associated with plaintiffs mental impairments and that the RFC
finding is flawed. Plaintiff further contends that the ALJ improperly relied on the testimony of a

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vocational expert that conflicts with the Dictionary of Occupational Titles (DOT) without first
obtaining an explanation in violation of SSR 00-4p.
An ALJ makes an RFC assessment based on all of the relevant medical and other evidence.
20 C.F.R. § 404.1545(a)(3). In regard to plaintiffs non-exertional limitations, the ALJ found that
plaintiff had mild restrictions in activities of daily living, moderate difficulties in social
functioning, and moderate difficulties in maintaining concentration persistence or pace. Tr. 30.
The ALJ found that, overall, the evidence supported a conclusion that plaintiffs mental
impairments have shown a good response to medication and that plaintiff remained functional
though his abilities were reduced by his impairments. Tr. 38. In determining plaintiffs RFC, the
ALJ, in addition to exertional limitations, found that plaintiff could perform simple, routine, and
repetitive tasks not at a production rate, could make simple work-related decisions, could have
occasional contact with supervisors and occasional incidental contact with co-workers, and no
interaction with the general public. Tr. 31.
Plaintiff relies on the holding in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), where
the Fourth Circuit joined with other circuits in finding that a restriction to simple, routine tasks or
unskilled work does not account for a plaintiffs limitations in concentration, persistence, and pace,
to contend that the ALJ's RFC did not properly account for his mental limitations. However,
unlike the ALJ in Mascio, the ALJ here did not simply limit plaintiff to simple, routine, repetitive
tasks or unskilled work. Rather, the ALJ included further specific limitations regarding the pace
of work plaintiff could perform, the kinds of decisions that plaintiff could make at work, and the
nature and extent of the contact plaintiff could maintain with supervisors, co-workers, and the
public. See, e.g., Weeks v. Colvin, No. 5:14-CV-155-D, 2015 WL 5242927, at *2 (E.D.N.C. Sept.

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8, 2015) (limitations including occasional contact with general public and few workplace changes
sufficiently accounts for limitations in concentration and persistence); see also Russo v. Astrue,
421 F. App'x 184, 192 (3d Cir. 2011) (limitation to non-quota work sufficient to account for
moderate difficulties in concentration, persistence, and pace). The ALJ further included specific
examples of the limitations imposed, including describing "occasional incidental contact with c0workers" as a brief greeting. The Court finds that the ALJ's limitations reflected in the RFC
adequately address the plaintiffs mental limitations and that the RFC is supported by substantial
evidence.
Plaintiff next contends that there is an unaddressed conflict between the RFC limitation to
non-production pace work and the jobs identified by the vocational expert (VE) because some of
the jobs identified by the VE appear to be production jobs. Social Security Ruling 00-4p requires
that an ALJ must "identify and obtain a reasonable explanation for any conflicts between
occupational evidence provided by VEs . . . and information in the Dictionary of Occupational
Titles" and must "explain in the . . . decision how any conflict that has been identified was
resolved." SSR 00-4p. "An expert's testimony that apparently conflicts with the Dictionary can
only provide substantial evidence if the ALJ has received this explanation from the expert and
determined that the explanation is reasonable and provides a basis for relying on the testimony
rather than the Dictionary." Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015).
Here, the VE affirmatively stated that her testimony was consistent with the DOT. Tr.
86. However, "an ALJ has not fulfilled his affirmative duty merely because the vocational expert
responds 'yes' when asked ifher testimony is consistent with the Dictionary." Pearson, 810 F.3d
at 208 (internal alterations, quotation, citation omitted). Plaintiff specifically identifies the job of

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small parts operator as being in apparent conflict with the ALJ' s limitation to non-production
paced work, but the VE in this matter identified several jobs which would exist in significant
numbers in the national economy which plaintiff could perform. Thus, even if the small parts
operator job were found to be in conflict with the RFC, such error would be harmless as other jobs
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were identified and plaintiff has failed to make a sufficient showing that any of the remaining jobs
are in apparent conflict with the DOT. See Pearson, 810 F.3d at 209 (rejecting Pearson's claim
that all possible conflicts must be identified and resolved). For example, the job of electronics
worker, DOT number 726.687-010, does not include any reference to production pace or similartype work. See https://occupationalinfo.org/72/726687010.html. The VE testified that there are
38,900 of these positions nationally. Tr. 85. This is sufficient to satisfy the Commissioner's
burden at step five. See Hodges v. Apfel, 203 F.3d 820 (4th Cir. 2000) (unpublished table decision).
CONCLUSION
Having conducted a full review of the record and decision in this matter, the Court finds
that the decision as a whole is supported by substantial evidence and that the correct legal standard
was applied. Accordingly, plaintiffs motion for judgment on the pleadings [DE 17] is DENIED
and defendant's motion for judgment on the pleadings [DE 19] is GRANTED. The decision of
the 'Commissioner is AFFIRMED.

SO ORDERED, this

_f__ day of January, 2018.
T RRENCE W. BOYLE
UNITED STATES DISTRI T JUDGE

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