PARKER v. COLVIN
Filing
15
MEMORANUDM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE signed on 3/2/2018. RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings (Doc. # 12 ) should be DENIED, and Plaintiff's Motion for Judgment Reversing the Commissioner (Doc. # 10 ) should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEBORAH PARKER,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.
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1:17CV21
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Deborah Parker (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying her claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed applications for Disability Insurance Benefits and
Supplemental Security Income Benefits on May 22, 2013, alleging a disability onset date of
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).
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September 8, 2011. (Tr. at 12, 185-94.)2 Her applications were denied initially (Tr. at 48-79)
and upon reconsideration (Tr. at 80-103). Thereafter, Plaintiff requested an administrative
hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 129-30.) Plaintiff
attended the subsequent hearing on March 15, 2016, along with her attorney and an impartial
vocational expert. (Tr. at 12.) The ALJ ultimately concluded that Plaintiff was not disabled
within the meaning of the Act from her alleged onset date through June 2, 2016, the date of
her decision. (Tr. at 21.) On November 14, 2016, the Appeals Council denied Plaintiff’s
request for review of the decision, thereby making the ALJ’s conclusion the Commissioner’s
final decision for purposes of judicial review. (Tr. at 1-5.) Plaintiff later filed another
application for benefits, which was approved retroactive to June 3, 2016, the date after the
ALJ’s denial. In the present case, she seeks judicial review of the decision denying her claim
through June 2, 2016.
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
ALJ if they are supported by substantial evidence and were reached through application of the
2
Transcript citations refer to the Sealed Administrative Record [Doc. #8].
2
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation 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. 1993)
(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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” 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 that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing 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).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). 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
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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)). 3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “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,” then “the ALJ must assess the claimant’s residual functional
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
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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. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, 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 Government cannot carry its
“evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since September 8, 2011, her alleged onset date. Plaintiff therefore met her burden
“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 workrelated 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.
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at step one of the sequential evaluation process. At step two, the ALJ further determined that
Plaintiff suffered from a single severe impairment:
degenerative disc disease of the cervical and lumbar spines.
(Tr. at 14.) The ALJ found at step three that this impairment failed to meet or equal a disability
listing. (Tr. at 16.) Therefore, the ALJ assessed Plaintiff’s RFC and determined that she could
perform sedentary work, with additional limitations:
[Plaintiff] is able to occasionally climb stairs, stoop, crouch, crawl, and kneel;
never climb ladders; occasionally reach to shoulder level or above on the left
side; and needs to stand every 45 minutes for two to three minutes at a time.
(Tr. at 16.) Based on this determination and the testimony of the vocational expert, the ALJ
found under step four of the analysis that Plaintiff could return to her past relevant work as a
claims consultant. (Tr. at 20.) Therefore, the ALJ concluded that Plaintiff was not disabled
under the Act. (Tr. at 21.)
Plaintiff now raises two challenges to the ALJ’s decision. First, she contends that, at
step four, the ALJ “failed to identify and obtain a reasonable explanation for the apparent
conflict between the testimony of the [vocational expert] and the [Dictionary of Occupational
Titles (“DOT”)] regarding the reaching requirements of Plaintiff’s past relevant work as an
insurance claims consultant.” (Pl.’s Br. [Doc. #11] at 4.) Second, Plaintiff argues that the ALJ
“erred by failing to include any mental limitations in the RFC,” particularly in light of the
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subsequent administrative decision granting her request for benefits once her mental
impairments were included. (Id. at 9.)
A.
Past Relevant Work
Plaintiff first contends that the ALJ erred at step four of the sequential analysis by
finding that she was able to return to her past relevant work. 5 “[U]nder the fourth step of the
disability inquiry, a claimant will be found ‘not disabled’ if he is capable of performing his past
relevant work either as he performed it in the past or as it is generally required by employers
in the national economy.” Pass v. Chater, 65 F.3d 1200, 1207 (4th Cir. 1995) (citing SSR 82–
61); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir. 1990) (“The two tests [in SSR 82–61] are
clearly meant to be disjunctive. If the claimant is found to satisfy either test, then a finding of
not disabled is appropriate.”). Thus, in undertaking the evaluation at step four, the ALJ may
consider whether the plaintiff can perform her past relevant work as she actually performed
it, or whether the plaintiff can perform her past relevant work as generally performed in the
national economy.
The plaintiff has the burden of showing that she can no longer perform her past
relevant work. 20 C.F.R. § 416.920(e); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(noting that through step four of the sequential evaluation process, Plaintiff carries the burden
of production and proof). “Nevertheless, the ALJ still has a duty to make the requisite factual
findings to support his conclusion. In finding that an individual has the capacity to perform
a past relevant job, the [ALJ’s] decision must include a specific finding of fact as to the physical
Plaintiff notes that if the ALJ had determined that she could not return to her past relevant work, a finding
of “disabled” would have been directed under the Medical Vocational Guidelines. (Pl.’s Br. [Doc. #11] at 78.)
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and mental demands of the past job as well as analysis of whether that individual's RFC would
impact her ability to perform such a job.” Boler v. Colvin, 2013 WL 5423647, at *3 (M.D.N.C.
Sept. 26, 2013) (internal citations and quotations omitted). In particular, Social Security
Rulings and Regulations provide that, “[i]n finding that an individual has the capacity to
perform a past relevant job, the determination or decision must contain among the findings
the following specific findings of fact:
1. A finding of fact as to the individual’s RFC.
2. A finding of fact as to the physical and mental demands of the past
job/occupation.
3. A finding of fact that the individual’s RFC would permit a return to his or
her past job or occupation.
Social Security Ruling 82-63, Titles II and XVI: A Disability Claimant’s Capacity To Do Past
Relevant Work, In General, 1982 WL 31386, at *4 (Jan. 1, 1982) (“SSR 82–62”); see also 20
C.F.R. 416.920(e); Alderman v. Barnhart, 297 F. Supp. 2d 876, 879 (W.D. Va. 2003) (“[I]n
finding that an individual has the capacity to perform a past relevant job, the [ALJ’s] decision
must include a specific ‘finding of fact as to the physical and mental demands of the past job’”
as well as analysis of whether that individual’s RFC would impact her ability to perform such
a job).
In the present case, the ALJ concluded, based on the vocational expert’s testimony,
that Plaintiff is able to perform her past relevant work as a claims consultant “as actually and
generally performed.” (Tr. at 21.) However, the DOT describes the job of claims consultant
as requiring frequent reaching, in direct contradiction to the ALJ’s RFC finding that Plaintiff
can only “occasionally reach to shoulder level or above on the left side.” DICOT 241.3628
010, 1991 WL 672250; (Tr. at 16). The ALJ’s decision states that “[p]ursuant to SSR 00-4p,
the undersigned . . . determined that the vocational expert’s testimony is consistent with the
information contained in the [DOT],” but in her very brief examination of the vocational
expert, the ALJ never asked the expert whether her testimony was consistent with the DOT,
let alone elicited any explanation for discrepancies. (Tr. at 21, 45-46.)
As Plaintiff correctly notes, in Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015), the
Fourth Circuit recently clarified the steps an ALJ must take to identify and resolve apparent
conflicts between a vocational expert’s testimony and the DOT. Specifically, the Fourth
Circuit held that, if an expert’s testimony apparently conflicts with the DOT, it can only
provide substantial evidence if the ALJ “received an explanation from the expert explaining
the conflict and determined both that the explanation was reasonable and that it provided a
basis for relying on the expert’s testimony rather than the DOT.” Rholetter v. Colvin, 639 F.
App’x 935, 938 (4th Cir. 2016) (citing Pearson, 810 F.3d at 209–10). Because the ALJ in the
present case took none of the steps required by Pearson, her finding that Plaintiff could return
to her past work as generally performed is unsupported by substantial evidence.
Defendant does not contend that the vocational expert’s testimony is consistent with
the DOT, nor does Defendant dispute the apparent unresolved conflict. However, Defendant
argues that “[i]f a claimant has the RFC to do her past work as actually performed, it is
irrelevant to the step four analysis if the DOT description of the job as generally performed
exceeds the requirements of the claimant’s past work as actually performed.” (Def.’s Br. [Doc.
#13] at 10) (citations omitted). In a recent case in this District, this Court agreed with this
principle, and found such an unresolved conflict harmless where the ALJ made findings
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regarding the Plaintiff’s past work and concluded that she was able to return to her past work
as actually performed. See Way v. Berryhill, 2018 WL 1033275 (M.D.N.C. Feb. 22, 2018).
However, in Way, there was evidence in the record from the claimant specifying the physical
requirements of the position as performed, and the ALJ made specific findings in the decision
based on the claimant’s testimony with respect to the demands of her past work. As noted
above, where an ALJ finds a claimant capable of performing her past work as actually
performed, she must still make the three, specific findings of fact set out in SSR 82–62. Most
importantly for this case, “in finding that an individual has the capacity to perform a past
relevant job, the [ALJ’s] decision must include a specific ‘finding of fact as to the physical and
mental demands of the past job’” as well as analysis of whether that individual’s RFC would
impact her ability to perform such a job. Alderman v. Barnhart, 297 F. Supp. 2d 876, 879
(W.D. Va. 2003); see also SSR 82-62 (“The decision as to whether the claimant retains the
functional capacity to perform past work . . . must be developed and explained fully in the
disability decision.”).
In this case, the vocational expert did not examine any details or provide any testimony
regarding Plaintiff’s prior relevant work, other than to testify that “[s]he’s worked as a claim
clerk I, DOT number 241.362-010, with a strength level of sedentary and an SVP or 4, which
is semi-skilled.” (Tr. at 45.) When asked whether an individual with the limitations reflected
in the RFC could do any of the past work, the vocational expert testified, “The claims clerk I,
Your Honor.” (Tr. at 46.) Thus, the vocational expert described Plaintiff’s past work only by
its description in the DOT and testified that Plaintiff could perform that work as a “claims
clerk I,” without any further testimony or distinction regarding her duties as actually
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performed. Likewise, the ALJ noted with respect to Plaintiff’s past relevant work that “[t]he
vocational expert testified that the claimant has past work per the Dictionary of Occupational
Titles (DOT) as a claims consultant (DOT #241.362-010, sedentary, semiskilled work at SVP
4).” (Tr. at 20.) In finding that Plaintiff was able to return to her past relevant work, the ALJ
stated that:
The vocational expert further testified that if an individual had the claimant’s
residual functional capacity, such an individual could perform the claimant’s
past relevant work as a claims consultant. The vocational expert went on to
state that even if the claimant had to use a cane, the claimant would still be able
to perform her past work as a claims consultant. Accordingly, in comparing the
claimant’s residual functional capacity to the physical and mental demands of
this work [the ALJ found] that the claimant is able to perform it as actually and
generally performed.
(Tr. at 21.) The decision contains no description of, or even a reference to, any demands of
Plaintiff’s past relevant work. Defendant now suggests that this omission is harmless, as
nothing in Plaintiff’s testimony regarding her job explicitly indicates frequent reaching (Def.’s
Br. at 7) (citing Tr. at 31). However, Plaintiff’s testimony regarding her past relevant work
generally described the work but did not specifically address the physical requirements at
issue. 6
Moreover, the record does not include a work history report with any specific
description of the physical demands of the position as performed. See Boler v. Colvin, 2013
WL 5423647 (M.D.N.C. Sept. 26, 2013) (concluding that remand was required where the ALJ
summarily found that the claimant was able to perform her past work as actually performed,
but “the decision is completely void of any further analysis, and no description of Ms. Boler's
Plaintiff described her job duties as being “constantly on the phone with the customer inputting data [and]
transferring calls to the claim representatives or to Customer Service.” (Tr. at 31.) As she correctly notes,
this description arguably “indicates a great deal of reaching for phones, buttons[,] and files, consistent with
the DOT’s description of the job requiring frequent reaching.” (Pl.’s Resp. Br. [Doc. #14] at 2.)
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work as a hotel housekeeper appears in the record” since she “never filled out the work
background sheet associated with her disability application”). In contrast, in the cases cited
by Defendant, substantial evidence was contained in the record to support a finding made by
the ALJ regarding the claimant’s past relevant work. 7 In the present case, the vocational expert
and the ALJ both relied only on the DOT description of a “claims consultant I” to define the
physical demands of Plaintiff’s past work, and did not make any other findings of fact as to
the physical demands of Plaintiff’s past work. As noted above, there is an apparent unresolved
conflict between the DOT and the reaching restrictions included in the RFC. To the extent
See, e.g., Pass v. Chater, 65 F.3d 1200, 1202, 1207 (4th Cir. 1995) (noting that the ALJ “proceeded to examine
Pass’s residual functional capacity and his employment history” and found that “[h]is guard duties involved
sitting on a chair in a booth and monitoring people coming through the gate; there was no strenuous activity
involved in the work” and “Pass concedes that if his position still existed, he would be able to perform the
job”); Finney v. Astrue, No. 1:11CV109, 2014 WL 204213 (M.D.N.C. Jan. 17, 2014) (noting that “[t]he ALJ
also made a finding of fact as to the physical and mental demands of Plaintiff's past job/occupation as a
shipping clerk at a check company, based on her own testimony as to the demands of that job” in light of the
ALJ’s specific findings that the claimant had “‘stated that the job could be performed in either a seated or a
standing position’” and the ALJ’s specific findings that “‘[s]ince the claimant's testimony revealed that her work
as a shipping clerk could be performed in either a sitting or standing position, the claimant remains able to
perform the range of work activity required in her past relevant work’”)(quoting ALJ decision), report and
recommendation adopted, 2014 WL 791848, (M.D.N.C. Feb. 25, 2014), aff’d, 586 Fed. App’x 143 (4th Cir.
2014); Cecchini v. Astrue, No. 5:08-01392, 2010 WL 1404093, at *4 (S.D. W. Va. Mar. 31, 2010) (noting that
“in Claimant’s Work History Report, she reported that the auto sales person job required her to reach only two
out of eight hours per day” and “[s]uch a requirement is consistent with the ALJ’s assessed RFC” and “because
the ALJ found that Claimant could perform some of her past relevant work as she actually performed it, and
because she performed her past relevant work as an auto sales person consistently within the reaching
limitations assessed by the ALJ, the ALJ was not required to rely on vocational expert testimony at step four of
the sequential analysis”); Vachon v. Colvin, No. 2:15-CV-112-JHR, 2015 WL 5736837, at *3 (D. Me. Sept. 29,
2015) (noting that in his work history report “[t]he plaintiff himself had described that job as requiring no
handling” and any errors by the ALJ were therefore harmless); Williamson v. Colvin, No. 1:10CV547, 2014 WL
459850, at *4 ( M.D.N.C. Feb. 5, 2014) (noting that “Plaintiff completed a Disability Report in which he
indicated that his past work as a shipping clerk involved lifting up to 60 to 70 pounds, with frequent lifting of
50 pounds” and “[t]he ALJ thus readily determined, without need of a VE, that Plaintiff's PRW involved
exertional activities which far exceeded his RFC of light work”); Johnson v. Comm’r Soc. Sec., No. 10-14357
2011 WL 5553823, at *6 n.5 (E.D. Mich. Oct. 31, 2011) (“Here, after finding an RFC, the ALJ thoroughly
discussed the duties of Plaintiff’s former job duties and the rationale for finding that the RFC did not preclude
the job of loan officer as performed”); Gonzalez v. Astrue, No. CV 08-1108 AJW, 2009 WL 3756658, at *6
(C.D. Cal. Nov. 5, 2009) (relying on the plaintiff’s vocational report, in which he “stated that his past job as a
dog bather at Petco did not require use of any machines or equipment, involved no technical knowledge or
skills, did not require writing or completing reports, and did not involve supervising others,” which was
consistent with the RFC).
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the ALJ relied on the DOT description to define the physical demands of Plaintiff’s past work,
it is up to the ALJ to resolve this conflict; alternatively, to the extent the ALJ could have
instead made further inquiry and findings regarding the actual duties performed by Plaintiff
and the physical demands of the work as actually performed, that is for the ALJ, not the Court,
to address in the first instance. See also Anderson v. Colvin, No. 1:10CV671, 2014 WL
1224726 (M.D.N.C. March 25, 2014) (“Review of the ALJ’s ruling is limited further by the socalled ‘Chenery Doctrine,’ which prohibits courts from considering post hoc rationalizations in
defense of administrative agency decisions. . . . Under the doctrine, a reviewing court ‘must
judge the propriety of [agency] action solely by the grounds invoked by the agency. . . . If those
grounds are inadequate or improper, the court is powerless to affirm the administrative action
by substituting what it considers to be a more adequate or proper basis.’” (quoting Sec. &
Exch. Comm’n v. Chenery Corp., 332 U.S. 194 (1947)). Therefore, remand is required to
allow the ALJ to make this determination and include the requisite findings. Because this
matter requires remand, the Court need not address the additional issue raised by Plaintiff.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the ALJ for proceedings consistent with this Recommendation. To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #12] should be DENIED, and
Plaintiff’s Motion for Judgment Reversing the Commissioner [Doc. #10] should be
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GRANTED. However, to the extent that Plaintiff’s motion seeks an immediate award of
benefits, it should be DENIED.
This, the 2nd day of March, 2018.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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