CAMERON v. COLVIN

Filing 22

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 06/05/2015, that the Magistrate Judge's Recommendation (Doc. 18 ) is ADOPTED, and that Plaintiff's motion for judgment on the pleadings (Doc. 10 ) is DENIED, that D efendant's motion for judgment on the pleadings (Doc. 16 ) is GRANTED, that the Commissioner's decision is AFFIRMED, and that this action be dismissed with prejudice. A Judgment dismissing this action will be entered contemporaneously with this Order. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRENDA LEE CAMERON,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

1:12CV1352

ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (“Recommendation”) filed
on February 12, 2015, by the Magistrate Judge in accordance with
28 U.S.C. § 636(b).

(Doc. 18.)

In the Recommendation, the

Magistrate Judge recommends that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s motion for
judgment on the pleadings (Doc. 10) be denied, that Defendant’s
motion for judgment on the pleadings (Doc. 16) be granted, and
that this action be dismissed with prejudice.

The

Recommendation was served on the parties to this action on
February 12, 2015 (Doc. 19).

Counsel for Plaintiff filed timely

objections (Doc. 20) to the Recommendation and counsel for
Defendant filed a response to Plaintiff’s objections (Doc. 21).

This court is required 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.”
28 U.S.C. § 636(b)(1).

This court “may accept, reject, or

modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.”

Id.

This court has appropriately reviewed the portions of the
Recommendation to which objections were made and has made a de
novo determination which is in accord with the Magistrate
Judge’s Recommendation.

This court therefore adopts the

Recommendation but will address two of Plaintiff’s objections in
further detail.
Plaintiff asserts two objections to the Magistrate Judge’s
Recommendation: (1) the Magistrate Judge erred in finding no
conflict between the Dictionary of Occupational Titles (DOT) and
the testimony of the vocational expert (VE) and (2) the
Magistrate Judge erred in finding that the new evidence
submitted by Plaintiff was not new and material. (Pl.’s
Objections (Doc. 20).) This court will address both in turn.
With regard to the alleged conflict between (1) the
Administrative Law Judge’s (ALJ) finding that Plaintiff had the

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residual functional capacity (“RFC”) to perform light work with a
sit-stand option and (2) the jobs the VE testified were available
to Plaintiff, this court finds the ALJ’s findings were supported
by substantial evidence. Plaintiff does not disagree with the
ALJ’s RFC calculation or that Plaintiff needs a sit-stand
limitation. Instead, Plaintiff contends that a Policy
Interpretation Ruling issued by Defendant, SSR 00-4p, requires
the ALJ to address the issue further than she did. (Pl.’s
Objections (Doc. 20) at 2.)
The ALJ specifically acknowledged in her report that
“[p]ursuant to SSR 00-4p, the vocational expert’s testimony is
consistent with the information contained in the Dictionary of
Occupational Titles with the exception of her testimony regarding
an opportunity to alternate sitting or standing.” (Tr. at 42.)
This indicates to this court that the ALJ saw a potential
conflict as SSR 00-4p only applies when there is “apparent
unresolved conflict.”1 See SSR 00-4p, Policy Interpretation
Ruling: Titles II & XVI: Use of Vocational Expert and Vocational
1

The Magistrate Judge’s Memorandum Opinion and
Recommendation fully addresses the alternate issue of whether or
not the DOT’s silence on the sit/stand option is a conflict that
triggers the ALJ’s affirmative duty pursuant to SSR 00-4p. (See
Recommendation (Doc. 18) at 17-19.) Therefore, this court will
focus on the alternative issue also raised by Plaintiff namely
that, if there indeed was a conflict, the ALJ did not fulfill
the duty established by SSR 00-4p to resolve that conflict.
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Specialist Evidence, and Other Reliable Occupational Information
in Disability Decisions, 2000 WL 1898704, at *2 (Dec. 4, 2000)
(“SSR 00-4p”).

Thus, SSR 00-4p does not need to be addressed if

there is no conflict, as SSR 00-4p provides:
Resolving Conflicts in Occupational Information
Occupational evidence provided by a VE or VS
generally should be consistent with the occupational
information supplied by the DOT. When there is an
apparent unresolved conflict between VE or VS evidence
and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE
or VS evidence to support a determination or decision
about whether the claimant is disabled. At the
hearings level, as part of the adjudicator's duty to
fully develop the record, the adjudicator will inquire,
on the record, as to whether or not there is such
consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added). Here, as
required by SSR 00-4p, the ALJ specifically asked the VE to
advise if she gave an opinion that conflicts with the DOT and
explain the basis for such an opinion. (Tr. at 81.) The ALJ then
asked the VE about the Plaintiff’s past work. (Id.) The VE
testified that Plaintiff’s past work would fall under the DOT
descriptions of accounts receivable clerk, accounting clerk, and
supervisor accounting clerk. (Id.)

Next, in her hypothetical to

the VE, the ALJ included the sit-stand limitation and the VE
testified that Plaintiff could do her past work with the sitstand limitation. (Id. at 81-82.) In conclusion, the VE listed
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other jobs she felt fit the RFC as stated in the hypothetical
question including the sit-stand limitation. (Id. at 82.)
“Ruling 00–4p acknowledges . . . that neither the Dictionary of
Occupational Titles nor the vocational expert's testimony
automatically trumps when there is a conflict; instead, the ALJ
is obligated to resolve the conflict by deciding if the
vocational expert's explanation for the conflict is reasonable.”
Fisher v. Barnhart, 181 F. App'x 359, 365 (4th Cir. 2006)
(internal quotations omitted). Here, the ALJ’s questions
specifically addressed the issue and the VE’s answers support
the finding that Plaintiff could do the jobs listed by the VE
even with a sit-stand limitation.
As described fully in the Magistrate Judge’s Memorandum
Opinion and Recommendation (Doc. 18), it not clear that the DOT
descriptions conflict with Plaintiff’s RFC at all, because the

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DOT is silent on the sit-stand option.2 To the extent the ALJ
acknowledged a potential conflict by citing SSR 00-4p, through
careful questioning of an expert witness, the ALJ resolved any
potential conflict in satisfaction of her duty stemming from SSR
00-4p. The sequence of questions asked by the ALJ ensured that
the VE knew all of the Plaintiff’s relevant abilities and
limitations, including the sit-stand limitation, when she
responded to the questions regarding the Plaintiff’s ability to
do past work and other possible jobs. The VE’s testimony
indicated that any potential conflict would not preclude
Plaintiff from resuming past work or working in another of the
jobs identified by the VE. This court finds that the ALJ fully

2

Another court in this district addressed the same issue in
Green v. Colvin. There, the court found:
[T]he DOT is silent as to the availability of a
sit/stand option for . . . particular positions. As
such, it was proper for the ALJ to obtain and consider
VE testimony in order to supplement the DOT job
descriptions. The VE was qualified to determine which
jobs an individual with Plaintiff's RFC could perform,
and the ALJ properly relied on the VE's testimony to
find Plaintiff could perform other work that existed
in significant numbers in the national economy.
Green v. Colvin, No. 1:10CV561, 2013 WL 3206114, at *11
(M.D.N.C. June 24, 2013), report and recommendation adopted, No.
1:10-CV-561, 2013 WL 4811705 (M.D.N.C. Sept. 9, 2013).
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developed the record on this issue and her decision on this
point is supported by substantial evidence.3
Plaintiff’s second objection to the Magistrate Judge’s
Recommendation is that the decision not to remand her case for
reconsideration of her credibility with respect to her back pain
based on new evidence was error. (Pl.’s Objections (Doc. 20) at
10.) Plaintiff asserts that new evidence in the form of an x-ray
of her back from February 21, 2012, “shows a much worse
condition than the [] imaging of March 26, 2008,” and gives
3

Plaintiff cites a case in the objections for the first
time for the proposition that where the VE specified light jobs
for Plaintiff but the ALJ limited Plaintiff to two hours
standing and walking, there was a conflict under SSR 00-4p
requiring explanation. See Roberts v. Colvin, No. 13-5256, 2014
WL 6891437 (W.D. Ark. Nov. 5, 2014). The present case differs
from Roberts in several ways. In Roberts, the RFC did not
include a sit-stand limitation at all, but the ALJ included such
a limitation in the hypothetical to the VE. Id. at *3. In the
present action, the ALJ included the sit-stand limitation in the
RFC itself (Tr. at 38) and then included it in the hypothetical
to the VE (Tr. at 82). Unlike Roberts, the present record
indicates that both the ALJ and the VE included Plaintiff’s sitstand limitation in their questions and testimony throughout the
entire hearing. In addition, the VE in Roberts testified that
“her testimony was in accordance with the DOT.” Roberts, 2014 WL
6891437, at *3. In the present action, the VE did not testify
that her testimony was in accordance with the DOT. The VE
testified as an expert in response to questions from the ALJ
that incorporated Plaintiff’s full RFC, including the sit-stand
limitation. (Tr. at 38-39.) That testimony appears to this court
to have been based both on the DOT and the VE’s expertise. This
court therefore agrees with the Magistrate Judge’s analysis of
this issue in the Recommendation.

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weight to Plaintiff’s pain allegations. (Id. at 11.) The
Magistrate Judge addresses this issue fully. (See Recommendation
(Doc. 18) at 8-16.)
Plaintiff asserts that “when . . . the Appeals Council
admits newly submitted evidence to the record and considers it
on request for reconsideration, it is because the Appeals
Council has deemed the evidence to be ‘new and material.’”
(Pl.'s Objections (Doc. 20) at 10.) This is an inaccurate
interpretation of the law. On August 31, 2012, the Appeals
Council informed Plaintiff that “[w]e found no reason under our
rules to review the [ALJ’s] decision.” (Tr. at 5.) In making
their decision, the Appeals Council considered the additional
evidence submitted by Plaintiff. (Id.) “The regulations . . .
specifically permit claimants to submit additional evidence, not
before the ALJ, when requesting review by the Appeals Council.
In such cases, the Appeals Council first determines if the
submission constitutes ‘new and material’ evidence.” Meyer v.
Astrue, 662 F.3d 700, 704 (4th Cir. 2011). Nowhere in the
regulations does it indicate that simply by accepting the new
evidence, the Appeals Council has deemed it new or material. In
the present action, Plaintiff is making assertions regarding the

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Appeals Council and the new evidence that are not supported by
the record.
IT IS THEREFORE ORDERED that the Magistrate Judge’s
Recommendation (Doc. 18) is ADOPTED.

IT IS FURTHER ORDERED that

Plaintiff’s motion for judgment on the pleadings (Doc. 10) is
DENIED, that Defendant’s motion for judgment on the pleadings
(Doc. 16) is GRANTED, that the Commissioner’s decision is
AFFIRMED, and that this action be dismissed with prejudice.
A Judgment dismissing this action will be entered
contemporaneously with this Order.
This the 5th day of June, 2015.

____________________________________
United States District Judge

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