LOCKARD v. BERRYHILL

Filing 17

ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 07/25/2018, that the Magistrate Judge's Recommendation (Doc. 13 ) is ADOPTED. FURTHER that Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing (Doc. 9 ) is DENIED, that Defendant's Motion for Judgment on the Pleadings (Doc. 11 ) is GRANTED, that the Commissioner's decision is AFFIRMED, and that this action is dismissed with prejudice. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID R. LOCKARD,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV358

ORDER
This matter is before this court for review of the
Recommendation filed on June 8, 2018, by the Magistrate Judge in
accordance with 28 U.S.C. § 636(b). (Doc. 13.) In the
Recommendation, the Magistrate Judge recommends that Plaintiff’s
Motion for Judgment (Doc. 9) be denied, that Defendant’s Motion
for Judgment on the Pleadings (Doc. 11) be granted, and that the
final decision of the Commissioner be upheld. The Recommendation
was served on the parties to this action on June 8, 2018. (Doc.
14.) Counsel for Plaintiff filed timely objections (Doc. 15) to
the Recommendation. Defendant’s counsel filed a response (Doc.
16) to Plaintiff’s objections.
This court is required to “make a de novo determination of
those portions of the [Magistrate Judge’s] report or specified

proposed findings or recommendations to which objection is
made.”

28 U.S.C. § 636(b)(1). This court “may accept, reject,

or modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . .

[O]r recommit the

matter to the [M]agistrate [J]udge with instructions.” Id.
Plaintiff’s objections have no merit. The only objection
warranting specific discussion is Plaintiff’s contention that
the Administrative Law Judge’s (“ALJ”) step five finding that
Plaintiff can work in positions such as a photo splicer and
marker/labeler is not supported by substantial evidence. (Doc.
15 at 11.) Even if the splicer position were obsolete by the
advancement of digital technology as Plaintiff contends (id.),
there are still enough (192,000) marker/labeler positions
available to constitute substantial evidence in support of the
ALJ’s step five determination. (Tr. 35, 110-111.)1

See, e.g.,

Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979) (110
jobs constitute a significant number). Any error here is
harmless. Plaintiff also purports to identify an apparent
conflict between the marker/labeler position and the
Occupational Outlook Handbook description of that position (Doc.

Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 7.)
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15 at 10); however, an ALJ is not required to address apparent
conflicts between a vocational expert’s testimony and the
Occupational Outlook Handbook. See, e.g., Poe v. Comm'r of Soc.
Sec., 342 F. App’x 149, 158 (6th Cir. 2009) (unpublished);
Street v. Berryhill, Docket No. 1:17-cv-00204-FDW, 2018 WL
1935866, at *6 (W.D.N.C. Apr. 24, 2018) (unpublished); Gandara
v. Berryhill, No. 2:16-cv-01191 AC, 2017 WL 4181091, at *4 (E.D.
Cal. Sept. 20, 2017) (unpublished); Baldwin v. Comm’r of Soc.
Sec., Case No. 3:13-cv-389, 2015 WL 4540436, at *5 (S.D. Ohio
Feb. 24, 2015) (unpublished).
In sum, this court has appropriately reviewed the portions
of the Recommendation to which objections were made and has made
a de novo determination which is in accord with the Magistrate
Judge’s Recommendation. This court therefore adopts the
Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge’s
Recommendation (Doc. 13) is ADOPTED. IT IS FURTHER ORDERED that
Plaintiff’s Motion for Judgment Reversing or Modifying the
Decision of the Commissioner of Social Security, or Remanding
the Cause for a Rehearing (Doc. 9) is DENIED, that Defendant’s
Motion for Judgment on the Pleadings (Doc. 11) is GRANTED, that
the Commissioner’s decision is AFFIRMED, and that this action is
dismissed with prejudice.
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A Judgment dismissing this action will be entered
contemporaneously with this Order.
This the 25th day of July, 2018.

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United States District Judge

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