ONEAL v. COLVIN

Filing 19

ORDER signed by JUDGE LORETTA C. BIGGS on 9/5/2017 adopting the Magistrate Judge's Recommendation 15 ; that Plaintiff's Motion for Judgment on the Pleadings (ECF No. 11 ) is DENIED, that Defendant's Motion for Judgment on the Pleadings (ECF No. 13 ) is GRANTED, that the final decision of the Commissioner is upheld, and that this action is dismissed with prejudice. A Judgment dismissing this action will be entered contemporaneously with this Order. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PENNY A. ONEAL,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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1:16CV253

ORDER
On August 2, 2017, in accordance with 28 U.S.C. § 636(b), the Recommendation of
the United States Magistrate Judge was filed and served on the parties in this action, and a
copy was given to the court.
Within the time limitation set forth in the statute, counsel for Plaintiff objected to the
Recommendation. The court has made a de novo determination which is in accord with the
Magistrate Judge’s Recommendation. None of these objections has merit, however, the court
pauses to mention one in particular.
Specifically, Plaintiff contends for the first time that the ALJ erred in failing to resolve
a conflict between the vocational expert (“VE”) testimony and the Dictionary of Occupational
Titles (“DOT”). (ECF No. 17 at 2-5.)

This objection lacks merit for several reasons. First,

issues, such as this one, “raised for the first time in objections to the magistrate judge's
recommendation[,] are deemed waived.” Deaver v. Colvin, No. 5:13cv05776, 2014 WL
4639888, at *7 (S.D. W. Va. Sept. 16, 2014) (unpublished) (citations omitted). Second,
contrary to Plaintiff’s position, the VE resolved any conflict by noting that the job of hand

packager would be reduced based on the standing and walking requirement for four hours per
day, and that the other jobs remained unchanged.1 (Tr. 53.) Third, even assuming Plaintiff is
correct, which is not the case, any error is harmless because the ALJ still found, that based on
VE testimony, there were 55,000 jobs nationally for the job of hand packager. (Id.) See
Hicks v. Califano, 600 F.2d 1048, 1051 (4th Cir. 1979) (“We do not think that the
approximately 110 jobs testified to by the vocational expert constitute an insignificant
number.”) The court therefore adopts the Magistrate Judge’s Recommendation.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Judgment on the
Pleadings (ECF No. 11) is DENIED, that Defendant’s Motion for Judgment on the Pleadings
(ECF No. 13) is GRANTED, that the final decision of the Commissioner is upheld, and that
this action is dismissed with prejudice. A Judgment dismissing this action will be entered
contemporaneously with this Order.
This, the 5th day of September, 2017.

/s/ Loretta C. Biggs
United States District Judge

1

Transcript citations refer to the Administrative Transcript of Record filed manually with the
Commissioner’s Answer. (ECF No. 8.)

2