Burgess v. Saul

Filing 27

ORDER adopting 24 Memorandum and Recommendations; denying 17 Motion for Judgment on the Pleadings; granting 19 Motion for Summary Judgment. Signed by Chief US District Judge Richard E. Myers II on 1/19/2023. (McNally, Kimberly)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Case No. 5:21-cv-00131-M

RICKY LANE BURGESS,
Plaintiff,
ORDER

V.

KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.

This matter comes before the court on the Memorandum and Recommendation ("M&R")
of United States Magistrate Judge Robert T. Numbers, II [DE 24] with respect to the parties' crossmotions for judgment on the pleadings [DE 17, 19]. Plaintiff Ricky Burgess filed a timely
objection [DE 26].
The court may accept, reject, or modify, in whole or in part, the recommendation; receive
further evidence; or recommit the matter to the magistrate judge with instructions. 28 U.S.C.

§ 636(b)(l); accord Mathews v. Weber, 423 U.S. 261 , 271 (1976). "The Federal Magistrates Act
requires a district court to make a de novo determination of those portions of the magistrate judge's
report or specified proposed findings or recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (cleaned up); see 28 U.S .C.

§ 636(b). Absent timely objection, "a district court need not conduct a de novo review, but instead
must only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation." Diamond, 416 F.3d at 315 (cleaned up).

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Plaintiff objects to the M&R's finding that the residual functioning capacity ("RFC")
articulated in the hypothetical question posed to the vocational expert did not limit Plaintiff to
standing four hours in an eight-hour workday.

DE 26 at 1-2.

Plaintiff contends that the

hypothetical RFC "may support a finding that he would stand for four hours" and "sit for a total
of four hours," which is "inconsistent with the full range of light work." Id. at 2. If Plaintiff is
correct, then the testimony of the vocational expert would conflict with the information in the
Dictionary of Occupational Titles ("DOT") because the testimony identified jobs that required an
RFC that exceeds the RFC articulated in the hypothetical question. On the other hand, if the RFC
did not limit Plaintiff to standing four hours in an eight-hour workday, as the M&R concluded,
then there is no conflict between the testimony of the vocational expert and the information
contained in the DOT because the testimony identified jobs that could accommodate an RFC that
"mirrored Burgess's RFC" as articulated in the hypothetical question to the expert. DE 24 at 8.
The court restates for purposes of de novo review the relevant legal standards with respect
to the issue concerning Plaintiffs objection. The Regulations permit the testimony of a vocational
expert to determine "whether [a claimant's] work skills can be used in other work and the specific
occupations in which they can be used. " 20 C.F.R. §§ 404.1566(e), 416.966(e). For a vocational
expert's testimony to be relevant, an ALJ's hypothetical question must represent the entirety of
the claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009). However, before relying on a
vocational expert's testimony, an administrative law judge must identify and obtain a "reasonable
explanation for any conflicts" between occupational evidence provided by the vocational expert
and information in the DOT. SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). The administrative
law judge must also explain how any conflict that has been identified was resolved. Id. The Fourth

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Circuit has interpreted SSR 00-4p as placing an "affirmative duty" on the administrative law judge
to independently identify conflicts between the vocational expert's testimony and the DOT.

Pearson v. Colvin, 810 F.3d 204, 208-10 (4th Cir. 2015) ("An ALJ has not fully developed the
record if it contains an unresolved conflict between the expert's testimony and the [DOT].").
The court is satisfied that the M&R came to the correct conclusion with respect to the
hypothetical RFC. The RFC did not limit Burgess to standing four hours. Rather, the RFC was
limited to standing or sitting for six hours with an option to sit or stand "at 30-minute intervals."
DE 13 at 74. The relevant portion concerning the scope of the hypothetical RFC reflects this
finding:
The individual can stand and/or walk for about six hours out of an eight-hour
workday and sit for up to six hours out of an eight-hour workday .... The individual
requires a sit/stand option at 30 minute intervals throughout the workday.
Id. at 73-74 (emphasis added). The administrative law judge clearly articulated an RFC allowing

for a maximum standing or sitting time of six hours in an eight-hour workday and a sit/stand option
that would be available at 30-minute intervals.
Plaintiff contends that the sit/stand option implies an RFC that is limited to a four-hour
maximum of sitting and standing. DE 26 at 2 ("If Burgess stood for 30 minutes and then sat for
30 minutes throughout an eight-hour workday, he would sit for a total of four hours and stand for
a total of four hours."). Plaintiffs argument appears to ignore the express six-hour maximum
capacities for sitting and standing. Moreover, Plaintiffs argument misconstrues the periodic
nature of the sit/stand option. The option does not provide an option to sit for 30 minutes at a time
or stand for 30 minutes at a time. Rather, the option provides for the hypothetical individual's
choice to sit or stand for an unspecified amount of time "at 30-minute intervals." DE 13 at 73-74.

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Therefore, the M&R did not err in its finding that the hypothetical RFC did not limit Burgess to
standing a total of four hours in an eight-hour workday.
In conclusion, the court overrules Plaintiffs objection [DE 26]. Further, upon careful
review of the uncontested portions of the M&R and the record presented, and finding no clear
error, the court ADOPTS the recommendation of the magistrate judge as its own. For the reasons
stated therein, Plaintiffs motion for judgment on the pleadings [DE 17] is DENIED, and
Defendant's motion for judgment on the pleadings [DE 19] is GRANTED.

SO ORDERED this

(

~day of January, 2023.

~

RICHARD E. MYERS II
CHIEF UNITED STA TES DISTRICT JUDGE

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