JACKSON v. COLVIN

Filing 13

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/01/2017, that the Commissioner's decision finding no disability be vacated and that the matter be remanded under sentence four o f 42 U.S.C. § 405(g), for further administrative proceedings consistent this Recommendation. As a result, Plaintiff's Motion for a Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Caus e for a Rehearing (Docket Entry 8 ) should be granted in part (i.e., to the extent it requests remand as to conflicts between the VE's testimony and the DOT) and Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) should be denied. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LAURA L. JACKSON,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.

1:16CV1162

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Laura L. Jackson, 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 6 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 8, 11; see also Docket Entry 9 (Plaintiff’s Memorandum);
Docket Entry 12 (Defendant’s Memorandum)).

For the reasons that

follow,

matter

the

Court

should

remand

this

for

further

administrative proceedings.

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 an onset date of January
22, 2009. (Tr. 203-04.) Upon denial of that application initially
(Tr. 73-87, 110-14) and on reconsideration (Tr. 88-106, 116-20),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”)

(Tr.

121-22).

Plaintiff,

her

vocational expert (“VE”) attended the hearing.

attorney,

and a

(Tr. 35-72.)

The

ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act.

(Tr. 8-28.)

The Appeals Council thereafter denied

Plaintiff’s request for review (Tr. 1-7), 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] meets the insured status requirements of
the [] Act through September 30, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since January 22, 2009, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease; spinal disorder; fibromyalgia;
somatoform disorder and depressive disorder.
. . .
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 she can
occasionally climb ramps and stairs but never climb
ladders, ropes or scaffolds. [Plaintiff] can occasionally
balance, stoop, kneel, crouch and crawl.
She can
occasionally reach overhead, bilaterally, but otherwise
has no limitations with reaching, fingering, feeling or
handling. [Plaintiff] should avoid concentrated exposure
to extreme cold and extreme heat as well as vibration,
hazardous machinery and heights. Finally, [Plaintiff] is
capable of performing simple, routine tasks, in a task
oriented, non-production pace job, where she can interact
appropriately with others.
. . .
6.

[Plaintiff] has no past relevant work.

. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from January 22, 2009, through the
date of this decision.
(Tr.

13-27

(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).

3

Even given those limitations, the Court should remand this case for
further administrative proceedings.
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

4

allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

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,

2

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

education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘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

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

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,
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
(continued...)

7

B.

Assignments of Error

Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “the ALJ [failed to] give a complete function-by-function
analysis of the nonexertional mental functions associated with
[Plaintiff’s] difficulties in the broad areas of functioning and
[failed to] make a complete finding as to [Plaintiff’s] mental
[RFC]” (Docket Entry 9 at 2 (bold font omitted)); and
(2)

“the

ALJ

accepted

.

.

.

vocational

testimony

that

apparently conflicts with the [Dictionary of Occupational Titles
(“DOT”)] yet she failed to obtain an explanation from the [VE]”
(id. at 10 (bold font omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 12 at 3-14.)
1. Mental RFC
In Plaintiff’s first assignment of error, she contends that
“the ALJ [failed to] give a complete function-by-function analysis
of the nonexertional mental functions associated with [Plaintiff’s]
difficulties in the broad areas of functioning” (Docket Entry 9 at
2),

in

violation

of

Social

Security

5

Ruling

96-8p,

Policy

(...continued)
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.”).

8

Interpretation

Ruling

Titles

II

and

XVI:

Assessing

Residual

Functional Capacity in Initial Claims, 1996 WL 374184 (July 2,
1996) (“SSR 96-8p”), and Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015) (see Docket Entry 9 at 2-10).

In particular, Plaintiff

attacks the sufficiency of the mental RFC in three respects: the
ALJ (1) did not “account for [Plaintiff’s] difficulties with
concentration, persistence or pace [(“CPP”)]” or “make a finding as
to [her] ability to stay on task” (id. at 4 (bold font omitted));
(2) failed to make a reviewable finding as to Plaintiff’s social
functioning and failed to complete a “detailed assessment of the
effect of [Plaintiff’s] difficulties in social functioning on her
ability to engage in work activities” (id. at 8 (internal quotation
marks omitted)); and (3) neglected to “provide an explanation of
the effect of [Plaintiff’s] restrictions in activities of daily
living on her ability to engage in work activity” (id. at 9 (bold
font omitted)).

Plaintiff’s contentions miss the mark.

At steps two and three of the SEP, the ALJ must assess the
degree of functional limitation resulting from Plaintiff’s mental
impairments

pursuant

to

criteria

in

the

disorders in the listing of impairments.

corresponding

mental

See 20 C.F.R. Pt. 404,

Subpt. P, App’x 1, § 12.00; 20 C.F.R. § 404.1520a(b)(2) & (c)(2).
As relevant to the instant case, paragraphs B of Listings 12.04
(“Affective [D]isorders”) and 12.07 (“Somatoform [D]isorders”) each
contain four broad functional areas: 1) activities of daily living;

9

2) social functioning; 3) concentration, persistence, or pace; and
4) episodes of decompensation.

See 20 C.F.R. Pt. 404, Subpt. P,

App’x 1, §§ 12.04B & 12.07B; see also 20 C.F.R. § 404.1520a(c)(3).
The ALJ’s decision must include a specific finding of the degree of
limitation

in

each

§ 404.1520a(e)(4).

of

those

functional

areas.

20

C.F.R.

However, the paragraph B criteria limitations

do not constitute an RFC assessment.
*4 (emphasis added).

SSR 96–8p, 1996 WL 374184, at

Rather, the ALJ uses those limitations to

evaluate the severity of Plaintiff’s mental impairments at steps
two and three of the SEP.

Id.

“The mental RFC assessment used at steps 4 and 5 of the [SEP]
requires a more detailed assessment by itemizing various functions
contained in the broad categories found in paragraphs B and C,”
id., and includes consideration of Plaintiff’s “abilities to:
understand, carry out, and remember instructions; use judgment in
making

work-related

decisions;

respond

appropriately

to

supervision, co-workers and work situations; and deal with changes
in a routine work setting,” id. at *6.

Thus, the regulations do

not require the ALJ to incorporate word-for-word the limitations
found in evaluating the severity of mental impairments into either
the RFC or any hypothetical question.

See Yoho v. Commissioner of

Soc. Sec., No. 98–1684, 1998 WL 911719, at *3 (4th Cir. Dec. 31,
1998) (unpublished) (holding ALJ has no obligation to transfer
paragraph B findings verbatim to hypothetical question(s)); accord

10

Patterson v. Astrue, No. 1:08–CV–109–C, 2009 WL 3110205, at *5
(N.D. Tex. Sept. 29, 2009) (unpublished).
A.

CPP
Plaintiff first maintains that the ALJ failed to account for

Plaintiff’s

moderate

determination.

deficits

in

CPP

in

(See Docket Entry 9 at 4-7.)

the

mental

RFC

In that regard,

Plaintiff argues that, pursuant to Mascio, “‘an ALJ does not
account for a claimant’s limitations in [CPP] by restricting the
hypothetical question to simple, routine tasks or unskilled work .
. . [because] the ability to perform simple tasks differs from the
ability to stay on task[,] [and] [o]nly the latter limitation would
account for a claimant’s limitation in [CPP].’” (Id. at 5 (quoting
Mascio, 780 F.3d at 638 (internal quotation marks omitted)).)
According to Plaintiff, the ALJ’s “finding that [Plaintiff] is
capable of performing simple, routine tasks, in a task oriented,
non-production pace job” does not address Plaintiff’s ability to
stay on task (id. at 5 (citing Tr. 17, 26)), especially in light of
the VE’s testimony that mental symptoms that adversely impacted CPP
for 20 percent of the workday would preclude all competitive work
(id. at 6 (citing Tr. 69)).

Plaintiff’s argument falls short.

The United States Court of Appeals for the Fourth Circuit has
held that “the ability to perform simple tasks differs from the
ability to stay on task” and that “[o]nly the latter limitation
would account for a claimant’s limitation in [CPP].”

11

Mascio, 780

F.3d

at

638.

However,

as

a

neighboring

district

court

has

explained:
Mascio does not broadly dictate that a claimant’s
moderate impairment in concentration, persistence, or
pace always translates into a limitation in the RFC.
Rather, Mascio underscores the ALJ’s duty to adequately
review the evidence and explain the decision . . . . An
ALJ may account for a claimant’s limitation with
concentration, persistence, or pace by restricting the
claimant to simple, routine, unskilled work where the
record supports this conclusion, either through physician
testimony, medical source statements, consultative
examinations, or other evidence that is sufficiently
evident to the reviewing court.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (Magistrate Judge’s Report & Recommendation
adopted by District Judge) (unpublished) (emphasis added).

Here,

the ALJ’s decision provides a sufficient explanation as to why
limitations

in

the

RFC

to

“simple,

routine

tasks

in

a

task

oriented, non-production pace job” (Tr. 17) sufficiently accounted
for Plaintiff’s moderate limitation in CPP.
First, the ALJ discussed Plaintiff’s testimony regarding her
mental symptoms (see Tr. 18), but concluded that Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely credible” (Tr. 21),
and that Plaintiff’s “claims of loss of a capacity to concentrate
and [] memory loss are not clearly indicated in any examination”
(Tr.

22).

Plaintiff

does

not

directly

evaluation of her subjective complaints.

12

challenge

the

ALJ’s

(See Docket Entry 9.)

Second,

the

ALJ

summarized

Plaintiff’s

mental

health

treatment, making the following, pertinent observations:
•

“mental status examinations . . . showed someone
who is able to function without evidence of a
reduced mental or emotional capacity”

•

Plaintiff “was described as having . . . adequate
attention and concentration”

•

“it does not appear that [Plaintiff] ever sought
individual treatment for her mental impairments.”

•

Plaintiff remained able to work (albeit not at the
level of substantial gainful activity) after the
alleged onset date despite her mental impairments
for several years

(Tr. 22 (emphasis added) (internal citations omitted).)
Third, the ALJ also discussed and weighed the opinion evidence
as

it

related

to

Plaintiff’s

ability

to

function

mentally.

(See Tr. 25-26.) Notably, the ALJ gave “great weight” to the state
agency psychological consultants’ opinions that, despite moderate
deficit in CPP (see Tr. 78, 95), Plaintiff remained “capable of
following routine, simple and repetitive tasks” (Tr. 82; see also
Tr.

101

(finding

Plaintiff

“capable

of

performing

simple,

repetitive tasks with good understanding and persistence”)), and
“capable of attention and concentration for at least 2 hours at a
time” (Tr. 82-83, 102 (emphasis added)).
Fourth, the ALJ’s restriction to “a task oriented, nonproduction pace job” (Tr. 17) in the RFC “reasonably related to a
moderate limitation in Plaintiff’s ability to stay on task,” Grant
v. Colvin, No. 1:15CV515, 2016 WL 4007606, at *6 (M.D.N.C. July 26,
13

2016) (unpublished), recommendation adopted, slip op. (M.D.N.C.
Sept. 21, 2016) (Osteen, Jr., C.J.).6

In that regard:

[T]he weight of authority in the circuits that rendered
the rulings undergirding the Fourth Circuit’s holding in
Mascio supports the view that the non-production
restriction adopted in this case sufficiently accounts
for [the p]laintiff’s moderate limitation in CPP.
Moreover, that approach makes sense.
In Mascio, the
Fourth Circuit held only that, when an ALJ finds moderate
limitation in CPP, the ALJ must either adopt a
restriction that addresses the “staying on task” aspect
of CPP-related deficits (which a restriction to simple
tasks does not, at least on its face) or explain why the
CPP limitation of that particular claimant did not
necessitate a further restriction regarding “staying on
task.” Where, as here, the ALJ has included a specific
restriction that facially addresses “moderate” (not
“marked” or “extreme,” see 20 C.F.R. § 416.920a(c)(4))
limitation in the claimant’s ability to stay on task,
i.e., a restriction to “non-production oriented” work,
Mascio does not require further explanation by the ALJ,

6

The Court recently held that “a mental RFC . . . which prohibits production
pace work but allows for ‘goal oriented work’” did not “sufficiently account[]
for [the p]laintiff’s moderate limitation in [CPP].” Williamson v. Colvin, No.
1:14CV884, 2016 WL 1735889, at *7 (M.D.N.C. May 2, 2016) (unpublished) (Auld,
M.J.), recommendation adopted, slip op. (M.D.N.C. Aug. 4, 2016) (Biggs, J.).
Williamson differs from the instant case in two significant respects. First, the
ALJ in Williamson failed to provide an adequate explanation for the moderate
limitation in CPP at step three of the SEP, failed to weigh the opinions of the
state agency psychological consultants, who each opined that the plaintiff had
no limitation in CPP, and erroneously relied on the plaintiff’s attendance at
secretary classes 25 years prior to the amended onset date to support his mental
RFC finding. Id. at*7-8. Thus, under the totality of the circumstances, the ALJ
failed to adequately explain why a limitation to non-production but goal oriented
work sufficiently accounted for moderate limitation in CPP. Contrast Scott v.
Berryhill, No. 1:16CV48, 2017 WL 500000, at *8 (M.D.N.C. Feb. 7, 2017)
(unpublished) (Auld, M.J.) (where ALJ expressly found in RFC that the plaintiff
could “maintain [CPP] to stay on task for 2-hour periods over the course of a
typical 8-hour workday in order to perform [simple tasks]”, limitation to “no
production-pace or quota-based work, rather a goal-oriented job primarily dealing
with things as opposed to people” adequately accounted for moderate limitation
in CPP) (first emphasis in original), recommendation adopted, slip op. (M.D.N.C.
Mar. 1, 2017) (Eagles, J.).
Second, “goal-oriented” work more closely
approximates production or quota type jobs than “task-oriented” work, given that
all work, in some degree or respect, entails the performance of “tasks.” Thus,
an ALJ precluding production or quota work while still allowing “goal-oriented”
jobs must explain why a claimant with moderate deficit in CPP who remains unable
to perform production or quota work can still perform “goal-oriented” work.

14

at least absent some evidentiary showing by the claimant
(not offered here) that he or she cannot perform even
non-production-type work because of his or her particular
CPP deficits.
Grant, 2016 WL 4007606, at *9; see also id. at *7-9 (discussing
authority addressing “non-production” restrictions).
Under these circumstances, the ALJ adequately explained why
limitations to simple, routine tasks, and a task oriented, nonproduction

pace

job

(see

Tr.

17)

sufficiently

accounted

for

Plaintiff’s moderate limitation in CPP, see Hutton v. Colvin, No.
2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16, 2015)
(unpublished) (finding reliance on Mascio “misplaced” and that ALJ
“gave abundant explanation” for why unskilled work adequately
accounted for claimant’s moderate limitation in CPP, where ALJ
relied on the claimant’s daily activities and treating physicians’
opinions of claimant’s mental abilities).
B. Social Functioning
Plaintiff faults the ALJ’s decision-making with respect to her
ability to function socially in two respects: (1) the ALJ’s finding
that Plaintiff had “no to mild” difficulties in social functioning
(Tr. 16) “prevents meaningful review by the Court,” in that it
“cannot determine if [that] finding is supported by substantial
evidence” (Docket Entry 9 at 7); and (2) the ALJ does not explain
or define what she meant by limiting Plaintiff to a job “‘where she
can interact appropriately with others’” (id. at 8 (quoting Tr.
17)).

Those arguments fail.
15

Plaintiff cites no authority for the argument that an ALJ
fails

to

comply

with

the

regulatory

requirement

to

rate

a

claimant’s degree of limitation in an area of functioning by
finding that a claimant has “no to mild” limitation in that
functional area.

See 20 C.F.R. § 404.1520a(c)(4) (providing that

ALJs utilize a “five-point scale” consisting of “[n]one, mild,
moderate, marked, and extreme” to “rate the degree of limitation in
. . . activities of daily living[,] social functioning[,] and
[CPP]”). To the contrary, the Court can meaningfully interpret the
ALJ’s “no to mild” finding in social functioning as an indication
that Plaintiff’s difficulties in that area fell, at most, at the
lowest end of the mild range.
1:16CV140,

2017

WL

1755968,

See, e.g., Harris v. Berryhill, No.
at

*4

(M.D.N.C.

May

4,

2017)

(unpublished) (Auld, M.J.) (finding, in similar context, that ALJ’s
analysis

“provides

an

accurate

and

logical

bridge

.

.

.

by

concluding . . . that Plaintiff’s CPP deficit fell, at most, toward
the mild end of the moderate designation” (internal quotation marks
omitted)), recommendation adopted, slip op. (M.D.N.C. May 25, 2017)
(Biggs, J.).
Plaintiff’s contention that the ALJ failed to explain or
define her limitation of Plaintiff to a job “where she can interact
appropriately with others” (Tr. 17) similarly lacks merit. Read in
the context of the record as a whole, the ALJ’s finding that
Plaintiff “can interact appropriately with others” simply meant

16

that ALJ did not find that Plaintiff had any specific restrictions
arising out of the mild limitation in social functioning.

That

interpretation finds support in the fact that the ALJ gave “great
weight”

to

the

opinions

of

the

state

agency

psychological

consultants (Tr. 25), who each concluded that Plaintiff “should
have few social difficulties with peers and supervisors in the
performance setting generally being able to interact appropriately
with

the

public,

supervisors”

(Tr.

[and]
83,

accept
102

constructive

(emphasis

criticism

from

despite

mild

added)),

limitation in social functioning (see Tr. 78, 95).
Moreover, Plaintiff neither disputes the ALJ’s finding of mild
limitation in social functioning and description of Plaintiff’s
reported ability to engage in social activities (see Tr. 16), nor
makes

any

attempt

to

show

how

a

mild

limitation

in

social

functioning should have further impacted the ALJ’s RFC (see Docket
Entry

9

at

meaningfully

7-8).
review

Under
the

such

ALJ’s

circumstances,
decision-making

the
with

Court
regard

can
to

Plaintiff’s social functioning.
C. Activities of Daily Living
Plaintiff contends that the ALJ did “not discuss what effect,
if any, [Plaintiff’s] restrictions in activities of daily living
have on her ability to engage in work activity on a sustained
basis.”

(Id. at 9.)

According to Plaintiff, “[i]f there is no

effect on the [RFC] due to the restrictions in [activities of daily

17

living,] the ALJ needs to explain how she reached that conclusion
and identify the evidence that supports that conclusion.”
10 (citing Mascio, 780 F.3d at 636).)

(Id. at

Plaintiff’s contention

warrants no relief.
As an initial matter, some district courts within the Fourth
Circuit have extended the holding in Mascio to require an ALJ to
either

include

restrictions

in

the

RFC

arising

out

of

mild

limitations in the broad areas of functioning or justify the
omission of such restrictions.

See, e.g., Ashcraft v. Colvin, No.

3:13CV00417RLVDCK, 2015 WL 9304561, at *9 (W.D.N.C. Dec. 21, 2015)
(unpublished) (“[S]ince Mascio was decided, the majority of other
courts in North Carolina have similarly found that, where an ALJ
determines that a claimant suffers from ‘mild’ or ‘moderate’
limitations in his or her activities of daily living, social
functioning, and ability to maintain [CPP] and such limitations are
unaccounted for in the RFC, or their absence is unexplained in the
analysis

surrounding

the

ALJ’s

RFC

determination,

remand

is

required.”); Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015 WL
1756480, at *3 (W.D.N.C. Apr. 17, 2015) (unpublished) (“While the
court agrees with the Commissioner’s argument that the fact that
the ALJ found mild limitations in the paragraph B criteria does not
necessarily translate to a work-related functional limitation,
Mascio clearly imposes on the Commissioner a duty to explain why
such mild mental health impairments found at step two do not

18

translate into work-related limitations when [the] plaintiff’s RFC
for work is considered.”).

Assuming that Mascio applies even in

the context of mild limitations in the broad areas of functioning
(i.e., the lowest of four levels above “none”), the ALJ here
sufficiently explained why Plaintiff’s mild limitations in daily
activities did not translate into further restrictions in the RFC.
Here, Plaintiff neither disputes the ALJ’s finding of mild
limitation in daily activities (see Tr. 16) and description of
Plaintiff’s reported daily activities (see Tr. 16, 20, 21, 23, 25),
nor makes any attempt to show how a mild limitation in daily
activities should have further impacted the ALJ’s RFC (see Docket
Entry 9 at 9-10).

Further, the ALJ gave “great weight” to the

opinion of the state agency psychological consultants (Tr. 25), who
each concluded that Plaintiff remained “capable of performing
simple, routine tasks with good understanding and persistence” (Tr.
82, 102), despite mild limitation in ability to perform daily
activities (see Tr. 78, 95).

The ALJ’s analysis thus provides “an

accurate and logical bridge,” Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000), between the finding of mild deficits in daily
activities and the RFC determination.
In sum, the ALJ complied with Mascio and supported his RFC
determination with substantial evidence.

19

2. Conflict Between the VE’s Testimony and the DOT
In Plaintiff’s second and final issue on review, she asserts
that the ALJ erred by failing resolve two apparent conflicts
between the VE’s testimony and the DOT in violation of Social
Security Ruling 00-4p, Policy Interpretation Ruling: Titles II and
XVI: Use of Vocational Expert and Vocational Specialist Evidence,
and

Other

Reliable

Occupational

Information

in

Disability

Decisions, 2000 WL 1898704, at *1 (Dec. 4, 2000) (“SSR 00-4p”), and
Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015).
9 at 10-15.)

(See Docket Entry

More specifically, Plaintiff maintains that (1) the

Mail Clerk (DOT No. 209.687-026, 1991 WL 671813 (4th ed. rev.
1991)) and Office Helper (DOT No. 239.567-010, 1991 WL 672232) jobs
identified

by

the

VE

in

response

to

the

ALJ’s

dispositive

hypothetical question (see Tr. 67-68) (and adopted by the ALJ (see
Tr. 27)) each require frequent reaching, in conflict with the RFC’s
limitation to occasional overhead reaching bilaterally (see Tr. 17)
(Docket Entry 9 at 12-14); and (2) the Mail Clerk job carries a
Reasoning Level of 3, DOT No. 209.687-026, 1991 WL 671813, in
conflict with the RFC’s limitation to simple, routine tasks (see
Tr. 17) (Docket Entry 9 at 14-15).
Plaintiff asserts that SSR 00-4p “require[s] the ALJ (not the
[VE]) to ‘[i]dentify and obtain a reasonable explanation’ for
conflicts between the [VE’s] testimony and the [DOT], and to
‘[e]xplain in the determination or decision how any conflict that

20

has been identified was resolved.’” (Id. at 11 (quoting SSR 00-4p,
2000 WL 1898704, at *1).)

According to Plaintiff, “the ALJ did not

elicit an explanation from the [VE] for these apparent conflicts[,]
[n]or did [she] provide a resolution of these apparent conflicts in
the written decision.”

(Id. at 12 (citing Tr. 27, 67-70).)

Plaintiff’s arguments have merit and warrant remand.
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 adjudicator 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. 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).

“[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 meant only an
“obvious” one).

21

In this case, the ALJ queried the VE whether an individual
with Plaintiff’s age, education, and work experience, with the RFC
to

lift

and

carry

at

the

light

level

of

exertion,

able

to

occasionally climb ramps and stairs, never climb ladders, ropes, or
scaffolds, occasionally balance, stoop, kneel, crouch, and crawl,
occasionally

reach

overhead

bilaterally,

and

who

must

avoid

concentrated exposure to extreme cold, extreme heat, vibration,
hazardous machinery, and heights, could perform any other jobs
existing in significant numbers in the national economy.
67.)

(See Tr.

In response, the VE opined that such an individual would

remain capable of performing the jobs of Mail Clerk, Office Helper,
and Assembler of Small Products, DOT No. 706.684-022 (Assembler,
Small Products), 1991 WL 679050.

(See Tr. 68.)

The VE then

provided the corresponding DOT codes for the three jobs, as well as
their incidence in the national economy.
thereafter

asked

the

VE:

“Are

any

of

(See id.)
your

The ALJ

descriptions

or

classifications in conflict with the [DOT]?” (Tr. 70), to which the
VE responded: “No, your honor” (id.).
The ALJ subsequently issued a decision finding Plaintiff not
disabled (see Tr. 8-28), which adopted the VE’s testimony as to
Plaintiff’s ability to perform the Mail Clerk and Office Helper
jobs:
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
22

[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:
(1) Mail Clerk ([DOT] 209.687-026), which is
considered light, unskilled work ([Specific
Vocational Preparation (“SVP”)] 2), and of
which there are approximately 99,140 jobs
nationally and 3,370 in North Carolina; and
(2) Office Helper ([DOT] 239.567-010), which
is considered light, unskilled work (SVP 2),
and of which there are approximately 74,060
nationally and 1,600 in North Carolina.
Pursuant to SSR 00-4p, [the ALJ] has determined that the
[VE’s] testimony is consistent with the information
contained in the [DOT].
(Tr. 27 (emphasis added).)
As Plaintiff argues (see Docket Entry 9 at 12), both the Mail
Clerk and Office Helper jobs require frequent reaching, DOT No.
209.687-026 (Mail Clerk), 1991 WL 671813; DOT No. 239.567-010
(Office Helper), 1991 WL 672232.

Although the DOT does not

specifically address overhead reaching, under Pearson, an apparent
conflict nevertheless exists between the VE’s testimony and the
DOT.

In that case, “[t]he ALJ found [the claimant’s] nondominant

arm could only occasionally reach upward,” but for all three jobs
cited

by

the

requirement.”

VE,

“the

[DOT]

lists

frequent

reaching

as

a

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

23

[DOT’s]

broad

definition

of

“reaching” means that they certainly may require such reaching.”
Id. at 211 (emphasis in original).

The court found the ALJ had

failed to resolve the apparent conflict and remanded the case. Id.
at 211-12.
Pearson controls the instant case and mandates remand.

The

ALJ here neither recognized nor resolved the apparent conflict
between the VE’s testimony that an individual limited to occasional
overhead reaching bilaterally could perform the jobs of Mail Clerk
and Office Helper (see Tr. 67-68), and the DOT’s description of
those jobs as entailing frequent reaching, DOT No. 209.687-026
(Mail Clerk), 1991 WL 671813; DOT No. 239.567-010 (Office Helper),
1991 WL 672232.

(See Tr. 27, 67-70.)

In response, Defendant does not address Pearson, but contends
that Plaintiff’s argument regarding an apparent conflict between
the VE’s testimony and the DOT regarding the jobs of Mail Clerk
and/or Office Helper fails for two reasons.
at 12-13.)

(See Docket Entry 12

First, Defendant maintains that “the ALJ’s [RFC]

assessment is less limiting than Plaintiff asserts,” because the
RFC (and hypothetical question) “included Plaintiff’s inability to
do any reaching overhead bilaterally, and otherwise no other
reaching

limitations.”

(Id.

at

12.)

Second,

“Plaintiff’s

representative did not point out any such conflict while examining
the VE” (id. (citing Tr. 70)), and thus Plaintiff “was required to
show that the conflict was ‘obvious enough that the ALJ should have

24

picked upon on [it] without any assistance’” (id. (quoting Zirnsak
v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014) (in turn quoting Terry
v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009))).

Neither of these

contentions has merit.
First, although Defendant claims Plaintiff misidentified the
ALJ’s reaching limitation, Defendant erroneously states that the
RFC and hypothetical question “included Plaintiff’s inability to do
any reaching overhead bilaterally.”

(See id. (emphasis added).)

In fact, the ALJ limited Plaintiff to occasional overhead reaching
bilaterally (see Tr. 17), and Plaintiff correctly described that
limitation in brief (see Docket Entry 9 at 12).
Second, the Pearson court, in interpreting the language of SSR
00-4p, placed the burden of identifying apparent conflicts between
the VE’s testimony and the DOT squarely upon the ALJ, and expressly
rejected the Commissioner’s position that such burden only arises
in connection with “obvious” conflicts.

Pearson, 810 F.3d at 209

(holding that “[t]he ALJ independently must identify . . . where
the [VE’s] testimony seems to, but does not necessarily, conflict
with the [DOT]” (emphasis added)); see also id. (rejecting the
Commissioner’s argument that an “apparent” conflict meant only an
“obvious” one).

Thus, although the Third and Seventh Circuits (as

evidenced in the Zirnsak and Terry decisions) may take a different
approach, those cases do not control here.

25

Defendant further asserts that “Plaintiff only refers to two
of the seven jobs that the VE identified at the hearing, and
Plaintiff does not allege that any of the other five jobs that the
VE identified apparently conflicted with the [DOT].” (Docket Entry
12 at 10.)
that

In that regard, Defendant points out the VE’s testimony

Plaintiff

could

perform

her

past

relevant

work

as

a

Housekeeping Cleaner (see Tr. 67), the light, unskilled job of
Assembler of Small Products, as well as the sedentary, unskilled
jobs of Order Clerk, Charge-Account Clerk, and Document Preparer
(see id. at 11 (citing Tr. 67-69, and 20 C.F.R. § 404.1567(b)
(providing that, if an individual can perform light work, that
individual can also perform sedentary work))), but that “Plaintiff
does not argue that her reaching limitations preclude her from
performing

these

.

.

.

unskilled

jobs”

(id.).

Defendant’s

contentions fail for two reasons.
First, the VE did testify in response to the dispositive
hypothetical that Plaintiff could perform both her past relevant
work as a Housekeeping Cleaner and the job of Assembler of Small
Products (see Tr. 67-68), and did testify in response to a second
hypothetical limiting the individual to two hours of standing
and/or walking in an eight-hour workday that such an individual
could perform the jobs of Order Clerk, Charge Account Clerk, and
Document Preparer (see Tr. 68-69).

However, the ALJ neither

adopted any of those jobs at steps four and five of the SEP in her

26

decision (see Tr. 26-27), nor included a restriction to two hours
of standing and/or walking in the RFC (see Tr. 17).
Second, and more significantly, the DOT reflects that all of
those jobs require frequent reaching, DOT No. 323.687-014 (Cleaner,
Housekeeping), 1991 WL 672783; DOT No. 706.684-022 (Assembler,
Small Products), 1991 WL 679050; DOT No. 209.567-014 (Order Clerk,
Food and Beverage), 1991 WL 671794; DOT No. 205.367-014 (ChargeAccount Clerk), 1991 WL 671715; DOT No. 249.587-018 (Document
Preparer, Microfilming), 1991 WL 672349.

Thus, even had the ALJ

adopted those jobs, the same apparent conflict would exist between
the VE’s testimony and the DOT.
In short, the ALJ failed to comply with SSR 00-4p and Pearson
by neglecting to identify and resolve the apparent conflict between
the

VE’s

testimony

that

an

individual

limited

to

occasional

overhead reaching bilaterally could perform the jobs of Mail Clerk
and Office Helper (see Tr. 67-68), and the DOT’s description of
those jobs as entailing frequent reaching, DOT No. 209.687-026
(Mail Clerk), 1991 WL 671813; DOT No. 239.567-010 (Office Helper),
1991 WL 672232.

(See Tr. 27, 67-70.)

In light of the recommendation to remand the case, and the
likelihood that, upon rehearing, the ALJ will pose new hypothetical
questions to a VE, the Court need not address Plaintiff’s argument
that an apparent conflict also exists between the VE’s testimony
that an individual limited to simple, routine tasks could perform

27

the jobs of Mail Clerk and Office Helper (see Tr. 67-68), and the
DOT’s description of those jobs as requiring a Reasoning Level of
3, DOT No. 209.687-026 (Mail Clerk), 1991 WL 671813; DOT No.
239.567-010 (Office Helper), 1991 WL 672232.
at

14-15.)

specifically

However,

because

addressed

whether

the
a

(See Docket Entry 9

Fourth

conflict

Circuit
exists

has

not

between

a

limitation to simple, routine tasks and jobs with a Reasoning Level
of 3, and because this Court has found that such a conflict indeed
exists, see Mullis v. Colvin, No. 1:11-cv-22, 2014 WL 575722, at
*9-11 (M.D.N.C. Feb. 11, 2014) (unpublished) (Webster, M.J.),
recommendation

adopted, (M.D.N.C.

May

29,

2014)

(unpublished)

(Osteen, Jr., C.J.), the ALJ should expressly resolve any such
conflict on remand.7
III.

CONCLUSION

Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under

sentence

four

of

42

U.S.C.

§

405(g),

for

further

administrative proceedings consistent this Recommendation.

As a

result, Plaintiff’s Motion for a Judgment Reversing or Modifying
the Decision of the Commissioner of Social Security, or Remanding

7

Although not argued by either party (see Docket Entries 9, 12), the ALJ also
neglected to include in the dispositive hypothetical question any of the mental
limitations she included in the RFC (compare Tr. 17, with Tr. 67-68). That
omission additionally renders the ALJ’s step five finding unsupported by
substantial evidence.

28

the Cause for a Rehearing (Docket Entry 8) should be granted in
part (i.e., to the extent it requests remand as to conflicts
between the VE’s testimony and the DOT) and Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 11) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 1, 2017

29