SCOTT v. COLVIN

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/31/2017, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for a Judgment Reversi ng or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that this action be dismissed with prejudice.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID LEON SCOTT,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.1

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1:16CV1107

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, David Leon Scott, 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

Benefits (“DIB”).

Plaintiff’s

claim

(Docket Entry 1.)

for

Disability

Insurance

Defendant has filed the

certified administrative record (Docket Entry 9 (cited herein as
“Tr. __”)) and both parties have moved for judgment (Docket Entries
11, 13); see also Docket Entry 12 (Plaintiff’s Brief), Docket Entry
14 (Defendant’s Memorandum)).

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, alleging a disability onset date of
June 4, 2012.

(Tr. 146-48.)

Upon denial of that application

initially (Tr. 51-60, 78-82) and on reconsideration (Tr. 61-73, 8487), Plaintiff requested a hearing de novo before an Administrative
Law Judge (“ALJ”) (Tr. 88-89).

Plaintiff, his attorney, and a

vocational expert (“VE”) attended the hearing.

(Tr. 24-50.)

The

ALJ subsequently ruled that Plaintiff did not qualify as disabled
under

the

Act.

(Tr.

10-20.)

The

Appeals

Council

denied

Plaintiff’s request for review (Tr. 1-5, 8-9, 223-30), 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] meets the insured status requirements of
the [] Act through December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 4, 2012, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
annular tear and degenerative disc disease of the lumbar
spine at L4-5 and facet arthropathy of the lumbar spine.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1.
. . .

2

5.
[Plaintiff] has the residual functional capacity to
perform sedentary work . . . except would need the option
to stand for a couple of minutes a couple of times per
hour. [Plaintiff] can frequently climb ramps and stairs,
balance, and stoop, and can occasionally kneel, crouch
and crawl. [Plaintiff] cannot climb ladders, ropes or
scaffolds.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as a production coordinator. 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, [Plaintiff] has also acquired work skills from
past relevant work that are transferable to other
occupations with jobs existing in significant numbers in
the national economy.
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from June 4, 2012, through the
date of this decision.
(Tr.

15-20

(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, 390 (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) (internal citations and
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.
The Supplemental Security Income Program . . . 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. (internal citations omitted).

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.

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, he asserts that he
submitted new and material evidence to the Appeals Council which
“competes with the evidence underlying [the] ALJ’s decision, . . .
[and about] which no fact finder has made any finding . . . or
attempted to reconcile that evidence with the conflicting and
supporting evidence in the record” and thus warrants remand under
Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011).

(Docket Entry

9 at 6). In particular, Plaintiff contends that “a job description
from [Plaintiff’s] employer, Pepsi Bottling Ventures, for his past
work as a ‘Pre-Sell Account Manager’ (Tr. 225-26)” (id. at 3) and
a consultative vocational opinion classifying that past work as the
medium

exertion

Occupational

“Driver,

Titles

Sales

(“DOT”),

No.

Route”

job,

292.353-010,

Dictionary
1991

WL

of

672567

(G.P.O. 4th ed. rev. 1991) (Tr. 229-30), conflict with the VE’s
testimony

(which

the

ALJ

adopted

(see

Tr.

19))

categorizing

Plaintiff’s past work into two separate jobs, “Driver, Sales Route”
and the sedentary exertion job “Production Coordinator,” DOT, No.
221.167-018, 1991 WL 671999 (Tr. 45), and opining that Plaintiff
retained the RFC to perform the job of Production Coordinator as
generally performed (Tr. 47).
Plaintiff

further

(Docket Entry 9 at 3-6.)

maintains

that

“[a]t

best

the

job

[Plaintiff] was performing was a composite job . . . which entails
duties that are performed at different exertional levels.” (Id. at

8

4 (quoting Social Security Ruling 82-61, Titles II and XVI: Past
Relevant Work – The Particular Job or the Occupation as Generally
Performed, 1982 WL 31387, at *2 (1982) (“SSR 82-61”) (“[C]omposite
jobs have significant elements of two or more occupations and, as
such, have no counterpart in the [DOT].

Such situations will be

evaluated according to the particular facts of each individual
case.” (emphasis by Plaintiff)).)
Plaintiff’s
Operations

past
Manual

job

was

System

in

According to Plaintiff, “‘if

fact

(“POMS”)

a
DI

composite

job,

25005.020B]

[Program

would

have

prohibited the ALJ from deciding whether Plaintiff could perform
his past relevant work as it is generally performed.’”

(Id. at 5

(quoting Shealy v. Colvin, Civ. No. 8:13CV2383-RMG, 2015 WL 467726,
at *13 (D.S.C. Feb. 4, 2015) (unpublished) (District Judge adopting
recommendation of Magistrate Judge).)
Plaintiff additionally points out that “[t]he ALJ found, based
on the testimony of the [VE], that [Plaintiff] ha[d] transferable
skills from his past work but that testimony was based upon
consideration by the [VE] of the wrong job[] [and that t]herefore,
it is not known if [Plaintiff] did in fact acquire those skills and
. . . the [VE’s] testimony is not substantial evidence.”
(referencing Tr. 19, 47)).
ALJ’s)

error

education,

and

Plaintiff further deems the VE’s (and

prejudicial,
previous

(Id.

because,

work

given

experience,

Plaintiff’s

Rule

201.14

of

age,
the

Medical-Vocational Guidelines (“Grids”) would direct a conclusion

9

of “Disabled,” if Plaintiff did not acquire any transferable skills
from his past work.6

Plaintiff’s contentions ultimately do not

warrant relief.
“[T]he

Appeals

Council

is

required

to

consider

new

and

material evidence relating to the period on or before the date of
the ALJ decision in deciding whether to grant review.”

Wilkins v.

Secretary, Dep’t of Health & Human Servs., 953 F.2d 93, 95 (4th
Cir.

1991).

Commissioner’s
cumulative.”

“Evidence

is

regulations]

new

within

if

it

is

the
not

meaning

of

duplicative

[the
or

Id. at 95–96; see generally Associate Comm’r of

Hearings and Appeals, Soc. Sec. Admin., Pub. No. 70–074, Hearings,
Appeals,

Litig.,

and

Law

(LEX)

Manual,

§

I–3–306(A)

(1990).

“Evidence is material if there is a reasonable possibility that the
new evidence would have changed the outcome.” Wilkins, 953 F.2d at
96 (citing Borders v. Heckler, 777 F.2d 954, 956 (4th Cir. 1985)).
Here, the Appeals Council considered Plaintiff’s new evidence and
incorporated it into the record (see Tr. 2, 4, 5, 223-30), but
concluded that the evidence did “not provide a basis for changing
the [ALJ’s] decision” (Tr. 2).

6

“The Grids categorize jobs by their physical-exertion requirements, namely,
sedentary, light, medium, heavy, and very heavy. There are numbered tables for
the sedentary, light, and medium level (tables 1, 2, and 3, respectively), and
a specific rule for the heavy and very heavy levels. Based on the claimant’s
RFC, the ALJ must first determine which table to apply, i.e., if the claimant’s
RFC limits him to a sedentary exertional level, then Table No. 1 is the
appropriate table. Next, based on the claimant’s age, education, and previous
work experience, the [table or] rule directs a finding of ‘disabled’ or ‘not
disabled.’” Black v. Astrue, No. 3:09CV599, 2010 WL 2306130, at *4 (E.D. Va.
Apr. 26, 2010) (unpublished) (internal citations and footnotes omitted),
recommendation adopted, 2010 WL 2306136 (E.D. Va. June 3, 2010) (unpublished).

10

As an initial matter, a review of Plaintiff’s descriptions of
his past work (see Tr. 28-29, 169, 201) confirms that his prior job
properly

corresponds

exertion),

rather

to

the

than

the

Driver,

Sales

Production

Route

job

Coordinator

(medium

(sedentary

exertion) job. Plaintiff indicated that, as a Pre-Sell Account
Manager, he “stock[ed] drinks, buil[t] displays, r[o]de from store
to store, . . . [and] lift[ed] and carr[ied] drinks to coolers and
displays all day long.”

(Tr. 201.)

Moreover, he reported that he

lifted a maximum of 50 pounds, with frequent lifting of 25 pounds,
and

utilized

machines,

tools,

and

equipment,

knowledge and skills, and completed reports.

used

technical

(Id.; see also Tr.

169 (reflecting that Plaintiff “stock[ed] and order[ed] drinks”).)
The

“Pre-Sell

corroborates

Account

Manager”

Plaintiff’s

job

description

descriptions, and

(Tr.

indicates

225-26)
that the

primary job duties include:
•

Develop[ing] all assigned accounts relative to
sales volume, market share, product distribution,
space allocation, and customer service.

•

Tak[ing] inventory and plac[ing] orders for future
delivery to avoid out-of-stocks and reduction of
out-of-date product.

•

Rotat[ing] products, clean[ing] shelving, and
stock[ing] product from the store’s backroom onto
the shelves and display[ing] in coolers and vending
equipment.

•

Sell[ing] and execut[ing] promotions, solicit[ing]
placement of equipment and sell[ing] sufficient
product inventory.

11

•

Provid[ing] excellent customer service to assigned
accounts; creat[ing] and maintain[ing] goodwill
with all customers.

•

Creat[ing] and utiliz[ing] point of sale signage.

•

Complet[ing] required paperwork in an accurate and
timely manner maintaining legibility.

•

[Performing] other duties as assigned.

(Tr. 225.)
In

contrast,

the

Production

Coordinator

job

lists

the

following as the primary duties:
Schedules and coordinates flow of work within or between
departments
of
manufacturing
plant
to
expedite
production: Reviews master production schedule and work
orders, established priorities for specific customer
orders, and revises schedule according to work order
specifications, established priorities, and availability
or capability of workers, parts, material, machines, and
equipment. Reschedules identical processes to eliminate
duplicate machine setups.
Distributes work orders to
department,
denoting
number,
type,
and
proposed
completion date of units to be produced. Confers with
department supervisors to determine progress of work and
to provide information on changes in processing methods
received from methods or engineering department.
Compiles reports concerning progress of work and downtime
due to failures of machines and equipment to apprise
production planning personnel of production delays.
Maintains inventory of materials and part needed to
complete production.
DOT, No. 221.167-018, 1991 WL 6781999.

With nearly all of the

duties focusing on a manufacturing environment, the Production
Coordinator job simply does not encompass any of Plaintiff’s
reported prior duties.7

Thus, the record does not support the VE’s

7

Indeed, the Court should not find that Plaintiff’s prior work even constituted
a composite job consisting of duties of both the Driver, Sales Route job and the
(continued...)

12

conclusion that Plaintiff’s prior work qualified as the Production
Coordinator job (see Tr. 45) and, as the ALJ limited Plaintiff to
a sedentary RFC (see Tr. 16), Plaintiff clearly did not retain the
RFC to perform the medium exertion Driver, Sales Route job.
The Court nonetheless should deny relief because the new
evidence

lacks

materiality,

i.e.,

it

presents

no

reasonable

possibility of a different outcome, Wilkins, 953 F.2d at 95.

The

VE testified to three other sedentary occupations which Plaintiff
had transferable skills to perform (see Tr. 47-48) and the ALJ
adopted that testimony at step 5 of the SEP (see Tr. 19).

Although

the ALJ noted in her decision that the VE found Plaintiff had
acquired transferable skills from the Production Coordinator job
(see id. (“The [VE] testified that [Plaintiff’s past relevant work
as a production coordinator was skilled with a specific vocational
preparation (SVP) code of 6 and required the following skills:
information gathering and organization, service orientation, and
time

management.”),

the

VE

did

not,

in

fact,

so

limit

testimony:
[ALJ]:

[W]ould
there
have
been
skills
that
[Plaintiff] acquired in his past work that
would be transferable to occupations at a
light or sedentary level?

[VE]:

Yes, your honor, just one second. Information
gather
in
an
organization,
service
orientation, time management, coordination,

7

(...continued)
Production Coordinator job.

13

her

and . . . those skills are transferable into
other jobs.
(Tr. 47 (emphasis added).)

Thus, the VE merely opined that

Plaintiff acquired those skills from his “past work” (Tr. 47),
which the VE had divided into two jobs - Driver, Sales Route and
Production Coordinator (see Tr. 45).

The Driver, Sales Route job

carries an SVP of 3, which qualifies the job as semi-skilled.

See

DOT, No. 292.353-010, 1991 WL 672567. Transferable skills can flow
from both skilled and semi-skilled past work.

See, e.g., Elliott

v. Astrue, No. 3:09CV185, 2010 WL 545963, at *7-8 (E.D. Va. Feb.
16, 2010) (unpublished).
Plaintiff’s descriptions of his past work (see Tr. 28-29, 169,
201) (confirmed by the Pre-Sell Account Manager job description
(Tr. 225-26)) make clear that the skills of information gathering,
service

orientation,

time

management,

and

coordination

would

reasonably flow from the performance of Plaintiff’s semi-skilled
past work, which he performed for a period of over ten years (see
Tr. 29). Thus, the VE’s testimony provides substantial evidence to
support

the

ALJ’s

ultimate

finding

that

Plaintiff

possessed

transferable skills to adjust to the semi-skilled, sedentary work
cited by the VE (Tr. 47-48) and adopted by the ALJ (Tr. 19).
In sum, Plaintiff’s sole issue on review fails to entitle him
to relief.

14

III.

CONCLUSION

Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for a
Judgment Reversing or Modifying the Decision of the Commissioner of
Social Security, or Remanding the Cause for a Rehearing (Docket
Entry 11) be denied, that Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 13) be granted, and that this action be
dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 31, 2017

15