FINNEGAN v. COLVIN
Filing
20
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/19/2017, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 15 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 17 ) be granted, and that this action be dismissed with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LISA FINNEGAN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
)
)
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)
)
)
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)
1:16CV1012
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Lisa Finnegan, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying Plaintiff’s
claims
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
Defendant has filed the certified administrative record
(Docket Entry 10 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 15, 17; see also Docket Entry 16
(Plaintiff’s Memorandum); Docket Entry 18 (Defendant’s Memorandum);
Docket Entry 19 (Plaintiff’s Reply)). For the reasons that follow,
the Court should enter judgment for Defendant.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
September
1,
2008.
(Tr.
239-46.)
Upon
denial
of
those
applications initially (Tr. 76-97, 136-46) and on reconsideration
(Tr. 98-125, 153-70), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 171-76).
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 33-61.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 15-26.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 4-9,
14, 352-57), thereby making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] met the insured status requirements of
the [] Act through December 31, 2012.
2.
[Plaintiff] has not engaged in substantial gainful
activity since September 1, 2008, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
asthma and obesity.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
2
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except [Plaintiff]
can occasionally climb and balance. She can tolerate
occasional exposure to extreme cold, extreme heat,
wetness, humidity, fumes, odors, dusts, gases, poor
ventilation, and hazards. [Plaintiff] requires portable
oxygen during work hours.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as a sales clerk, circulation clerk, and general
clerk. This work does not require the performance of
work-related activities precluded by [Plaintiff’s]
residual functional capacity.
. . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from September 1, 2008, through
the date of this decision.
(Tr.
20-26
(bold
font
and
internal
parenthetical
citations
omitted).)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
3
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ if they are
supported
by
substantial
evidence
and
were
reached
through
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
“Substantial
evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”
Hunter v. Sullivan,
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is
substantial
evidence.”
Hunter,
993
F.2d at
34
(internal
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
4
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability 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 12 months,’” id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
2
regulations
establish
a
The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
. . . provides benefits to indigent disabled persons. The statutory definitions
and the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).
5
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
4
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
5
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
B.
Assignment of Error
In Plaintiff’s sole issue on review, she contends that “[t]he
ALJ fail[ed] to observe the guidance in [Social Security Ruling 004p, Titles II and XVI: Use of Vocational Expert and Vocational
Specialist Evidence, and Other Reliable Occupational Information in
Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000) (“SSR 00-4p”)]
which directs her to inquire about conflicts between the VE’s
testimony and the [Dictionary of Occupational Titles (“DOT”)]; to
identify apparent conflicts; and to resolve any apparent conflicts
before relying on VE testimony.”
(Docket Entry 16 at 11 (citing
Pearson v. Colvin, 810 F.3d 204, 210-11 (4th Cir. 2015)).)
In
particular, Plaintiff argues that (1) “the ALJ never ask[ed] the VE
about
conflicts
[with
the
DOT]
after
propounding
the
final
hypothetical containing . . . ‘the need to have portable [oxygen]
. . . in use during the work day’” (id. at 13 (quoting Tr. 59));
(2) the ALJ failed to identify the apparent conflict between the
VE’s testimony that the jobs he cited would accommodate Plaintiff’s
use of portable oxygen and the DOT’s near silence on the matter
(see id. at 16-26);6 and (3) the VE’s testimony that “there’s
6
Plaintiff contends that the DOT “arguably makes some provision for [oxygen] in
‘other environmental conditions, [which] may include, but are not limited to,
. . . [oxygen] deprivation.’” (Docket Entry 16 at 18 & n.7 (quoting Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles, App’x D, ¶ 14 (U.S. Dep’t of Labor 1993) (“SCO”)).) However, placing the
phrase “oxygen deprivation” in its full context makes clear that the SCO’s “Other
Environmental Conditions” reflects a job condition that could potentially subject
an individual to oxygen deprivation, and does not indicate whether a particular
job would accommodate portable oxygen. The full description reads: “diving in
ocean and being subjected to bends and other conditions associated with high
(continued...)
8
nothing inherently significant about the actual presence of a
portable oxygen device that would impair the functioning of an
individual to perform these jobs” insufficiently resolved the
apparent conflict (see id. at 26-29; see also Tr. 59). Plaintiff’s
argument ultimately fails as a matter of law.
SSR 00-4p places an affirmative duty on an ALJ to elicit an
explanation from the VE as to any “apparent unresolved conflict”
between the VE’s testimony and the DOT:
Occupational evidence provided by a VE . . . generally
should be consistent with the occupational information
supplied by the [DOT].
When there is an apparent
unresolved conflict between VE . . . evidence and the
[DOT], the [ALJ] must elicit a reasonable explanation for
the conflict before relying on the VE . . . evidence to
support a determination or decision about whether the
claimant is disabled. . . . [A]s part of the [ALJ’s]
duty to fully develop the record, the [ALJ] will inquire,
on the record, as to whether or not there is such
consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added).
“[A]n ALJ has
not fulfilled his affirmative duty merely because the [VE] responds
‘yes’ when asked if her testimony is consistent with the [DOT],”
Pearson, 810 F.3d at 208 (internal quotation marks omitted); thus,
“[t]he ALJ independently must identify . . . where the [VE’s]
testimony seems to, but does not necessarily, conflict with the
[DOT],” id. at 209 (emphasis added); see also id. (rejecting the
Commissioner’s
argument
that
an
“apparent”
conflict
“obvious” one).
6
(...continued)
water pressure and oxygen deprivation.”
9
SCO, App’x D, ¶ 14.
meant
an
In
this
case,
the
ALJ
first
queried
the
VE
whether
an
individual with Plaintiff’s age, education, and vocational history,
and who could occasionally lift 20 pounds, frequently lift 10
pounds, stand and walk six hours, sit six hours, occasionally climb
and balance, and tolerate only occasional exposure to extreme cold,
extreme heat, wetness, humidity, fumes, odors, dusts, gases, poor
ventilation and hazards, could perform any past relevant work or
any other jobs existing in significant numbers in the national
economy.
(See Tr. 58.)
In response, the VE opined that such an
individual would remain capable of performing past relevant work as
a sales clerk, general clerk, and circulation clerk as generally
performed, as well as the jobs of cashier, remnant sorter, and
electronics
worker.
(See
id.)
The
VE
then
provided
the
corresponding DOT codes for the latter three jobs, as well as their
incidence in the national economy.
(See Tr. 58-59.)
The ALJ
thereafter asked the VE: “And is your response consistent with the
[DOT]?” (Tr. 59), to which the VE responded: “Yes, your honor”
(id.).
At this point, the ALJ supplemented the first hypothetical
question with “the need to have portable oxygen . . . in use during
the work day” and asked about the impact of that requirement on the
available jobs.
(Id.)
The following exchange occurred:
VE: Your honor, there’s nothing inherently significant
about the actual presence of a portable oxygen device
that would impair the functioning of an individual to
perform these jobs.
10
ALJ: So sales clerk, circulation clerk, general clerk,
cashier, remnant sorter and electronics worker, none of
those are counter indicated to have the presence of
oxygen?
VE:
No.
ALJ: Okay.
And therefore all those jobs
performed . . . when using portable oxygen?
VE:
(Id.)
could
be
Yes.
Following that exchange, Plaintiff’s attorney asked the VE
how many days an individual could miss per month and still maintain
employment.
(Tr. 60.)
In response, the VE testified that “[a]n
individual who would miss two or more days person month . . . would
not be tolerated.” (Id.) After Plaintiff’s counsel confirmed that
she did not have any further questions, the ALJ closed the hearing.
(Id.)
The ALJ did not ask the VE, following his response to the
ALJ’s second hypothetical, whether his testimony harmonized with
the DOT.
(See Tr. 59-60.)
The ALJ subsequently issued a decision finding Plaintiff not
disabled (see Tr. 15-26), which adopted the VE’s testimony both as
to Plaintiff’s ability to perform her past relevant work and other
available jobs:
The [VE] testified that [Plaintiff] has the following
past relevant work: sales clerk ([DOT]# 290.477-014)
light work, SVP 3; circulation clerk ([DOT]# 209.362-010)
sedentary work, SVP 3; and general clerk ([DOT]# 209.562010) light work, SVP 3. In comparing [Plaintiff’s] [RFC]
with the physical and mental demands of this work, the
[ALJ] finds that [Plaintiff] is able to perform it as
generally performed.
The [VE] testified that the
evidence provided did not conflict with the information
contained in the [DOT].
11
. . .
To determine the extent to which [the RFC’s nonexertional limitations] erode the unskilled light
occupational base, the [ALJ] asked the [VE] whether jobs
exist in the national economy for an individual with
[Plaintiff’s] age, education, work experience, and [RFC].
The [VE] testified that given all of these factors the
individual would be able to perform the requirements of
representative occupations such as: cashier ([DOT]#
211.462-0100 SVP 2, with approximately 3K jobs in NC and
150K nationwide; remnant sorter ([DOT]# 789.687-146) SVP
2, with approximately 800 jobs in NC and 50K nationwide;
and electronics worker ([DOT]# 726.687-010) with
approximately 2K jobs in NC and 100K nationwide.
Pursuant to SSR 00-4p, the [ALJ] has determined that the
[VE’s] testimony is consistent with the information
contained in the [DOT].
(Tr. 24-25 (emphasis added) (internal citation omitted).)
Here, the ALJ did not fully discharge her duty under SSR 004p.
Although
the
ALJ
inquired
of
the
VE
after
the
first
hypothetical question whether any conflicts existed between his
testimony and the DOT, and the VE testified that no such conflicts
existed, the ALJ failed to ask the question again after the VE’s
response to the second, dispositive hypothetical which included the
additional limitation regarding Plaintiff’s use of portable oxygen
while at work.
(See Tr. 59.)
However, the ALJ’s error in that
regard remains harmless for two reasons.
See generally Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of
administrative law or common sense requires us to remand a [Social
Security] case in quest of a perfect opinion unless there is reason
to believe that the remand might lead to a different result.”).
12
First, Plaintiff has not shown “where the [VE’s] testimony
seem[ed] to, but d[id] not necessarily, conflict with the [DOT],”
Pearson, 810 F.3d at 209.
Plaintiff insists that a VE’s testimony
automatically conflicts with the DOT whenever the DOT does not
contain
information
about
a
limitation
available jobs can accommodate.
the
VE
testified
the
(See Docket Entry 16 at 16, 19,
24-25, 26; see also Docket Entry 19 at 1-2.)7
However, this
extreme position contradicts Pearson’s holding:
We recognize that [our holding] rejects . . . [the
claimant’s] contention that all possible conflicts must
be identified and resolved. . . . [The claimant’s] view
would require the ALJ to do more than simply compare the
express language of the [DOT] and the [VE’s] testimony,
7
Many of the cases specifically relied on by Plaintiff do not support his
argument that the DOT’s silence regarding a particular limitation automatically
creates a conflict with the VE’s citation of jobs accommodating that limitation
(see Docket Entry 16 at 19, 20, 21, 23), because those cases actually reflect a
direct conflict between the DOT and the VE’s testimony, see, e.g., Fogle v.
Colvin, No. 3:16-CV-32-FDW-DSC, 2016 WL 7322789, at *4 (W.D.N.C. Dec. 15, 2016)
(unpublished) (“[T]he [DOT] is not silent. The definition of light work includes
“a good deal of walking or standing,” and the jobs identified are all catalogued
in the [DOT] as “light work.” The descriptions of the jobs identified by the
[VE] could require standing and/or walking in excess of four hours per day, and
the ALJ did not obtain an explanation for this conflict.” (emphasis added)
(citation omitted)); Bridges v. Colvin, No. 3:14-CV-540-RJC, 2016 WL 854425, at
*4 (W.D.N.C. Mar. 4, 2016) (unpublished) (“The VE was given a hypothetical that
limited [the] [p]laintiff to ‘no more than superficial interpersonal contact with
others’ and required her to ‘avoid concentrated exposure to dust, fumes and
gases.’ However, the VE testified that [the] [p]laintiff could do the jobs of
Laundry Attendant, Day Worker, and Hand Packager. These jobs, according to the
[DOT], may require [the] [p]laintiff to provide assistance and instruction to
customers; to dust furnishings, hallways, and lavatories; or to clean packaging
containers in an environment with frequent exposure to atmospheric conditions.
These job descriptions ‘seem to’ conflict with the ALJ’s RFC finding and,
consequently, the VE’s testimony in response to the ALJ’s hypothetical.”
(citations and footnotes omitted)); Taylor v. Astrue, No. 4:07-CV-160-FL, 2009
WL 50156, at * (E.D.N.C. Jan. 7, 2009) (unpublished) (reversing due to two direct
conflicts between VE and DOT: “(1) the [DOT] assigns a specific vocational
preparation (“SVP”) time equivalent to ‘semi-skilled’ work to two of the three
job categories identified as ‘unskilled’ work by the VE; and (2) the [DOT]
classifies the general clerk position as light” rather than sedentary as the VE
testified).
13
and would allow the claimant to nitpick an ALJ’s or
[VE’s] word choice on appeal.
Pearson, 810 F.3d at 209 (emphasis added).
Pursuant
to
Pearson,
an
ALJ
must
conflicts, but not “all possible” conflicts.
identify
“apparent”
Id.; see also Burns
v. Barnhart, 312 F.3d 113, 128 (3d Cir. 2002) (noting that, because
DOT does not address aptitude levels, DOT and VE testimony “w[ere]
not necessarily inconsistent in this regard, so the duty on the
part of the ALJ to inquire into conflicts did not arise”); Manley
v. Colvin, No. ED CV 16-1179-E, 2016 WL 7191541, at *4 (C.D. Cal.
Dec. 12, 2016) (unpublished) (“There is no obvious or apparent
conflict between the [DOT] and a [VE’s] testimony that a particular
job can accommodate a sit/stand option. To hold otherwise would
mean that [VEs] always create conflicts with the [DOT] whenever
they mention any of the multitude of things about a job not
expressly addressed in the [DOT].
. . . SSR 00-4p [does not]
require the discernment of such omnipresent ‘conflicts.’” (internal
citation, quotation marks, and brackets omitted)); but see Edmond
v. Colvin, No. 8:12-cv-1081-RMG-JDA, 2013 WL 4647516, at * (D.S.C.
July 29, 2013) (unpublished) (holding that, because “a job’s stress
levels are not identified in the [DOT], . . . the VE’s testimony
regarding any job under the [] hypothetical[] which incorporated
the stress level limitation, would be inconsistent with the [DOT]”
(emphasis added)).
Simply put, the mere silence of the DOT on a
14
matter does not create, per se, an apparent conflict between the
VE’s testimony and the DOT.8
Although no apparent conflict arises based solely on the fact
that the DOT does not address the use of portable oxygen at work,
such a conflict could nevertheless exist between the VE’s testimony
and the DOT.
In some cases, an apparent conflict may arise because
the DOT’s description of the applicable jobs’ duties (although not
expressly addressing a condition or circumstance) will appear to
conflict
scenario.
with
In
the
VE’s
that
testimony.
case,
“[t]he
Pearson
ALJ
found
exemplifies
[the
that
claimant’s]
nondominant arm could only occasionally reach upward,” but for all
three jobs cited by the VE, “the [DOT] lists frequent reaching as
a requirement.”
Pearson, 810 F.3d at 210 (emphasis in original).
The court observed: “Although the [DOT] does not expressly state
that the occupations identified by the [VE] require frequent
bilateral
overhead
reaching,
the
[DOT’s]
broad
definition
of
“reaching” means that they certainly may require such reaching.”
Id. at 211 (emphasis in original).
8
The court found the ALJ had
According to Plaintiff, if “courts generally adopted the rule that, when the
[DOT] is silent as to a limitation, there cannot be a conflict[,] . . . where
most nonexertional limitations are concerned, ALJs would never have to observe
SSR 00-4p’s requirements and the ruling would be eviscerated.” (Docket Entry 16
at 23.) This “straw-man” argument does not entitle Plaintiff to relief. In
other words, rejecting Plaintiff’s position that silence on the part of the DOT
always equals apparent conflict with VE testimony does not require the Court to
adopt the view that such silence never creates an apparent conflict. Rather, in
each case, the Court must determine whether the circumstances reflect that the
VE’s testimony “seems to . . . conflict with the [DOT].” Pearson, 810 F.3d at
209.
15
failed to resolve the apparent conflict and remanded the case. Id.
at 211-12.
Moreover, Plaintiff has made no attempt to demonstrate that
the
DOT’s
specific
descriptions
of
the
duties
and
working
environments of her past relevant work or the three other jobs
cited by the VE conflict in any way with Plaintiff’s need to use a
portable oxygen device while working.
26.)
(See Docket Entry 16 at 16-
The Court need not undertake that exercise itself.
See,
e.g., Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152 n.4 (4th
Cir. 2012) (“This issue is waived because [the plaintiff] fails to
develop this argument to any extent in its brief .”); United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[A] litigant has an
obligation to spell out its arguments squarely and distinctly, or
else forever hold its peace.” (internal quotation marks omitted));
Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1
n.1 (M.D.N.C. Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party
should not expect a court to do the work that it elected not to
do.”) Nickelson v. Astrue, No. 1:07CV783, 2009 WL 2243626, at *2
n.1 (M.D.N.C. July 27, 2009) (unpublished) (Dixon, M.J.) (“[A]s
[the plaintiff] failed to develop these arguments in his Brief, the
court will not address them.”).
Under these circumstances, the ALJ’s failure to specifically
ask
the
VE
whether
his
testimony
in
response
to
the
second
hypothetical harmonized with the DOT remains harmless error.
16
See
Critchley v. Colvin, No. 5:15-CV-08288, 2016 WL 3030211, at *8
(S.D.W. Va. May 4, 2016) (unpublished), recommendation adopted,
2016 WL 3033763 (S.D.W. Va. May 26, 2016) (unpublished) (finding
ALJ’s failure to question VE about potential conflicts harmless
where “no conflict, actual or apparent,” existed).
Second, even if an apparent conflict existed, the VE here
resolved
it
by
unequivocally
testifying
that,
in
his
expert
opinion, the presence of a portable oxygen device would not have
any impact on the jobs in question.
(See Tr. 59.)
Plaintiff
nevertheless attacks the VE’s testimony as insufficient:
[T]he record only contains the VE’s unsupported
statements that [Plaintiff] would perform all of the six
jobs in the record, even while using portable [oxygen].
. . . But the VE never stated, as the transcript
demonstrates, whether his testimony was based on the DOT
or, rather, on the VE’s training and expertise, which
failure is also contrary to SSR 00-4p.
(Docket Entry 16 at 27 & n.11 (emphasis added).)
Thus, Plaintiff
essentially argues that prejudicial error occurred when the VE,
testifying in his capacity as an expert, failed to expressly state
that his testimony relied on his own expertise.9
Cases cited by Plaintiff (see Docket Entry 16 at 18-19, 23)
disagree with that assertion:
[The] [p]laintiff argues that the VE’s testimony
conflicts with the [DOT], which does not specifically
indicate whether oxygen may be utilized at the designated
job sites. [The] [p]laintiff, thus, argues the VE’s
9
Notably, Plaintiff had the opportunity to question the VE regarding the basis
for his opinion that the use of a portable oxygen device would not impact the
jobs in question on cross-examination and chose not to do so. (See Tr. 59-60.)
17
response that [the] plaintiff would be able to use
supplemental oxygen, if required, while working as an
information clerk or call-out operator, does not
constitute substantial evidence. [SSR] 00–4p requires
the VE’s testimony to be consistent with the [DOT]. The
[DOT], however, is not the only source of valid
information or the single most definitive authority
covering every relevant job requirement.
Rather, the
VE’s testimony was substantial evidence properly used to
supplement expertise about whether oxygen tanks were
consistent with the type of work permitted by [the]
plaintiff’s RFC, as the [DOT] only offers generic
descriptions and allows for clarification from experts
when there is no direct conflict. Indeed, [VEs] . . .
are specialists in employment and related factors whose
testimony often constitutes substantial evidence upon
which the ALJ can rely, as occurred in this case.
Edwards v. Colvin, No. 4:12CV01977AGF/DDN, 2013 WL 4666344, at *12
(E.D.
Mo.
Aug.
30,
2013)
(unpublished)
(citations
omitted)
(emphasis added); see also Buckley v. Commissioner of Soc. Sec.
Admin., No. 1:14-CV-00124-TLW, 2015 WL 3536622, at *23 (D.S.C. June
4, 2015) (unpublished) (Chief Judge adopting recommendation of
Magistrate Judge) (“[The] [p]laintiff argues that the ALJ failed to
resolve an apparent conflict because of the [DOT’s] silence with
regard to non-exertional limitations in the assessed RFC.
The
[United States Magistrate Judge] is unpersuaded by this argument
. . . .
[T]he ALJ performed his duties under SSR 00–4p and relied
upon the testimony of the VE who is, by definition, an expert with
respect to occupational definitions and requirements.” (emphasis
added)).
Accordingly, Plaintiff has not shown reversible error with
respect to the ALJ’s reliance on (and adoption of) the VE’s
18
testimony as to Plaintiff’s ability to perform her past relevant
work and three other available jobs, notwithstanding her need to
use a portable oxygen device.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
15)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 17)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 19, 2017
19
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