SPURLOCK v. BERRYHILL
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/8/2018; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for a Judgment Reversing o r 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 14 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALYSSA A. SPURLOCK,
NANCY A. BERRYHILL,
Acting Commissioner of Social
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Alyssa A. Spurlock, 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
(Docket Entry 1.)
Defendant has filed the
certified administrative record (Docket Entry 9 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 11, 14; see also Docket Entry 12 (Plaintiff’s Memorandum);
Docket Entry 15 (Defendant’s Memorandum)).
For the reasons that
follow, the Court should enter judgment for Defendant.
Plaintiff applied for SSI. (Tr. 180-88.) Upon denial of that
application initially (Tr. 74-92, 114-17) and on reconsideration
(Tr. 93-113, 121-25), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 130-32).
attended the hearing.
The ALJ subsequently ruled
that Plaintiff did not qualify as disabled under the Act.
25.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-5, 6-8, 273-75), 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:
[Plaintiff] has not engaged in substantial gainful
activity since April 2, 2013, the application date.
. . .
[Plaintiff] has the following severe impairments:
coronary artery disease; obesity; and anxiety with
. . .
[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.
. . .
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . in that she is able
to lift, carry, push, and/or pull 20 pounds occasionally
and 10 pounds frequently. [Plaintiff] is unable to climb
occasionally climb ramps and stairs. [Plaintiff] can
frequently balance. [Plaintiff] must avoid work with
concentrated exposure to fumes, odors, dusts, gases, and
poor ventilation. [Plaintiff] can have no exposure to
unprotected heights or dangerous machinery. [Plaintiff]
can perform simple, routine, and repetitive tasks
involving only 1 to 3 step instructions. [Plaintiff] can
perform work with no high production demands. [Plaintiff]
can have occasional
. . .
[Plaintiff] is unable to perform any past relevant
. . .
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [Act], since April 2, 2013, the date the
application was filed.
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).
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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).
the Court “must uphold the factual findings of the ALJ if they are
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
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
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
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
[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
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.
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]
‘sequential evaluation process’ to determine whether a claimant is
This sequential evaluation process (“SEP”) has up to five
“The claimant (1) must not be engaged in ‘substantial
The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program . . . provides benefits to disabled persons who have contributed
to the program while employed.
[SSI] . . . provides benefits to indigent
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
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).2
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,
the ALJ must assess the claimant’s residual functional capacity
Id. at 179.3
Step four then requires the ALJ to assess
“Through the fourth step, the burden of production and proof is on the
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
“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 . . .
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
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
Hines, 453 F.3d at 567.4
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
[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.
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.”).
1) “the ALJ accepted vocational testimony that appears to
conflict with the [Dictionary of Occupational Titles (‘DOT’)] yet
he failed to obtain an explanation from the [VE]” (Docket Entry 12
at 2 (bold font omitted)); and
2) “the ALJ d[id] not give a complete function-by-function
analysis of the nonexertional mental functions associated with
[Plaintiff’s] difficulties in the broad areas of functioning and
d[id] not make a complete finding as to [Plaintiff’s] mental [RFC]”
(id. at 9 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
(Docket Entry 15 at 9-25.)
1. Conflicts Between the VE’s Testimony and the DOT
In Plaintiff’s first issue on review, she contends that the
ALJ erred by failing to resolve three 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 (Dec. 4, 2000) (“SSR 00-4p”), and Pearson v. Colvin, 810
F.3d 204 (4th Cir. 2015).
(See Docket Entry 12 at 2-9).
Plaintiff’s mental RFC can perform the jobs of Marker (DOT No.
209.587-034, 1991 WL 671802 (4th ed. rev. 1991)), Stock Checker,
Apparel (DOT No. 299.667-014, 1991 WL 672642)), and Final Inspector
(DOT No. 727.687-054, 1991 WL 679672)) (see Tr. 69) conflicts with
the DOT in three respects: (1) the mental RFC’s limitation to
simple, routine, repetitive tasks (“SRRTs”) involving one to three
step instructions conflicts with the Reasoning Development Level
(“RDL”) of 2 required by all three of the VE’s cited jobs (see
Docket Entry 12 at 5-7); (2) the mental RFC’s restriction to no
high production demands conflicts with the Final Inspector and
Marker jobs, both of which “appear to require a production pace
per the [DOT] description” (id. at 7); and (3) the mental RFC’s
limitation to occasional interaction with others in the workplace
conflicts with the description in the Occupational Information
Network (“O*Net”) of the degree of interpersonal contact required
by the Final Inspector and Marker jobs (id. at 8-9).
contentions fall short.
SSR 00-4p places an affirmative duty on an ALJ to elicit an
explanation from the VE as to any “apparent unresolved conflict”
between the VE’s testimony and the DOT:
Occupational evidence provided by a VE . . . generally
should be consistent with the occupational information
supplied by the [DOT].
When there is an apparent
unresolved conflict between VE . . . evidence and the
[DOT], the [ALJ] must elicit a reasonable explanation for
the conflict before relying on the VE . . . evidence to
support a determination or decision about whether the
claimant is disabled. At the hearings level, as part of
the [ALJ’s] duty to fully develop the record, the [ALJ]
will inquire, on the record, as to whether or not there
is such consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added).
“[A]n ALJ has
not fulfilled his affirmative duty merely because the [VE] responds
‘yes’ when asked if her testimony is consistent with the [DOT],”
Pearson, 810 F.3d at 208 (internal quotation marks omitted); thus,
“[t]he ALJ independently must identify . . . where the [VE’s]
testimony seems to, but does not necessarily, conflict with the
[DOT],” id. at 209 (emphasis added); see also id. (rejecting the
Commissioner’s argument that an “apparent” conflict meant only an
As relevant to the instant case, the ALJ queried the VE
whether an individual limited to SRRTs involving one to three step
instructions, no high stress or high production demands, and
occasional interaction with others, could perform any other jobs
existing in significant numbers in the national economy.
In response, the VE opined that such an individual would
remain capable of performing the jobs of Marker, Stock Checker
(Apparel), and Final Inspector, and provided the corresponding DOT
codes for the three jobs, as well as their incidence in the
(See Tr. 69.)
The ALJ thereafter asked the VE
whether the description of interaction in the Final Inspector and
Marker jobs as “Taking Instructions-Helping” would “infringe upon
the occasional interaction with others in the workplace,” and the
VE responded that the jobs involved only “superficial interaction
(Tr. 70; see also Tr. 71 (reflecting VE’s testimony
that the fifth digits of the jobs’ DOT codes indicated less
intensive interaction with others).) The VE subsequently confirmed
that she knew of no other conflicts between her testimony and the
(See Tr. 71-72.)
The ALJ adopted the VE’s testimony as to Plaintiff’s ability
to perform the three jobs in question:
To determine the extent to which [the RFC’s nonexertional limitations] erode the unskilled light
occupational base, the [ALJ] asked the [VE] whether jobs
exist in the national economy for an individual with
[Plaintiff’s] age, education, work experience, and [RFC].
The [VE] testified that given all of these factors the
individual would be able to perform the requirements of
representative occupations, that are unskilled (SVP 2)
and are performed at the light exertional level, such as
a marker, [DOT] 209.587-034, with approximately 280,000
jobs available in the national economy; store clerk [sic]
(apparel), [DOT] 299.667-014, with approximately 60,000
jobs available in the national economy; and a final
inspector, [DOT] 727.687-054, with approximately 80,000
jobs available in the national economy.
Pursuant to SSR 00-4p, [the ALJ] ha[s] determined that
the [VE’s] testimony is consistent with the information
contained in the [DOT].
Based on the testimony of the [VE], [the ALJ] conclude[s]
that, considering [Plaintiff’s] age, education, work
experience, and [RFC], [Plaintiff] is capable of making
a successful adjustment to other work that exists in
significant numbers in the national economy.
(Tr. 24 (emphasis added).)
a. RDL 2
Plaintiff maintains that the mental RFC’s limitation to SRRTs
involving one to three step instructions conflicts with the RDL of
2 required by all three jobs cited by the VE, because RDL 2 entails
“the ability to follow oral or written detailed instructions.”
(Docket Entry 12 at 5 (emphasis in original).)
that the United States Court of Appeals for the Fourth Circuit has
“held in an unpublished case, ‘that there is an apparent conflict
between an RFC that limits [the claimant] to one-to-two step
instructions and [RDL] 2, which requires the ability to understand
detailed instructions.’” (Id. at 5-6 (quoting Henderson v. Colvin,
643 F. App’x 273, 277 (4th Cir. 2016)).)
Plaintiff concedes that
Henderson addressed a mental RFC involving only one to two step
instructions, rather than one to three step instructions as in the
instant case, but argues that “a number of district courts in the
Fourth Circuit have since invoked Henderson and found an apparent
conflict between [an RDL] of 2 or 3 and a[n RFC] limitation to
(Id. at 6 (citing Dewalt-Gallman v. Berryhill, Civ. No.
9:16-2332-PMD-BM, 2017 WL 2257418, at *3-4 (D.S.C. May 5, 2017)
(unpublished), recommendation adopted, 2017 WL 2225133 (D.S.C. May
22, 2017) (unpublished), Lorch v. Berryhill, No. 3:16-CV-00076-RJC,
2017 WL 1234203, at *5 (W.D.N.C. Mar. 31, 2017) (unpublished),
Adkins v. Berryhill, No. 1:15-CV-000001-RLV, 2017 WL 1089194, at *4
(W.D.N.C. Mar. 21, 2017) (unpublished), and Owens v. Berryhill,
Civ. No. 9:15-4830-RMG-BM, 2017 WL 627405, at *7 (D.S.C. Feb. 2,
2017) (unpublished), recommendation adopted, 2017 WL 634696 (D.S.C.
Feb. 15, 2017) (unpublished)).)
As an initial matter, Henderson’s facts differ in a material
way from the circumstances of the instant case.
A job’s RDL
reflects the degree of analytical ability required by the job, with
the levels arranged in ascending order of complexity from level 1
to level 6.
See generally DOT, App’x C (“Components of the
(GED)”), 1991 WL 688702.
A job with RDL 1 entails the abilities to
“[a]pply commonsense understanding to carry out simple one- or
situations encountered on the job.”
Id. (emphasis added).
contrast, a position rated at RDL 2 requires a worker to “[a]pply
commonsense understanding to carry out detailed but uninvolved
written or oral instructions . . . [and] [d]eal with problems
Id. (emphasis added).
Thus, in Henderson, because the ALJ limited the claimant to
one to two step instructions (matching RDL 1), the jobs cited by
the VE rated at RDL 2 would require, at a minimum, an ability to
See Henderson, 643 F. App’x at 276-77.
ALJ did not solicit an explanation from the VE or otherwise resolve
that conflict in Henderson, the Fourth Circuit remanded.
Here, however, the ALJ limited Plaintiff to one to three
step instructions which, on its face, requires more mental ability
than the one to two step instructions of RDL 1.
Henderson does not compel the Court to find an apparent conflict
between the limitation to one to three step instructions in this
case and RDL 2.
Plaintiff also points to post-Henderson district court cases
in the Fourth Circuit which have “found an apparent conflict
between [an RDL] 2 or 3 and a[n RFC] limitation to [SRRTs].”
at 6 (citing Dewalt-Gallman, 2017 WL 2257418, at *3-4, Lorch, 2017
WL 1234203, at *5, Adkins, 2017 WL 1089194, at *4, and Owens, 2017
WL 627405, at *7).)
As an initial matter, Lorch, Adkins, and Owens
all hold that an apparent conflict exists between SRRTs and RDL 3,
a level of reasoning more complex than the RDL of 2 involved in
this case and, therefore, those cases should not guide the Court’s
reasoning here. See Lorch, 2017 WL 1234203, at *5; Adkins, 2017 WL
1089194, at *4; Owens, 2017 WL 627405, at *7.
Further, although Dewalt-Gallman (and other District of South
Carolina cases cited therein) found an apparent conflict between
SRRTs and RDL 2, see Dewalt-Gallman, 2017 WL 2257418, at *3-4, the
majority of post-Henderson district court cases within the Fourth
Circuit, including two recent decisions from other judges of this
Court, have found no such conflict between RDL 2 and SRRTs, see
(M.D.N.C. Jan. 3, 2018) (Webster, M.J.) (unpublished) (“Plaintiff’s
repetitive in nature with routine changes in the work environment
is not inconsistent with [RDL 2] jobs”), recommendation adopted,
2018) (Eagles, J.);
Berryhill, No. 1:16CV1310, slip op. at 5-6 (M.D.N.C. Nov. 17, 2017)
(Webster, M.J.) (unpublished) (“The majority of courts that have
implicitly, that a limitation to SRRTs is not inconsistent with the
adopted, slip op. (M.D.N.C. Dec. 20, 2017) (Eagles, J.); Testamark
v. Berryhill, No. 3:16CV202 (REP), 2017 WL 4544899, at *11 (E.D.
Va. Aug. 21, 2017) (unpublished) (“[T]he ALJ limited Plaintiff to
simple, routine tasks consistent with the detailed yet uninvolved
instructions involved in positions requiring [RDL] 2. Had the
record supported an RFC that restricted [the p]laintiff to no more
than one-to two-step instructions, like the claimant in Henderson,
then an apparent conflict would have existed for the ALJ to
But [the p]laintiff’s case presents no such conflict.
Thus, the ALJ discharged her responsibility when she asked the VE
about the consistency between his opinion and the [DOT].
no apparent conflict existed — and not merely because the VE
testified that none existed — the ALJ did not need to obtain
further explanation.”), recommendation adopted, 2017 WL 4544893
(E.D. Va. Oct. 11, 2017) (unpublished); Roundtree v. Berryhill, No.
4:15-CV-00154-F, 2017 WL 398368, at *3 (E.D.N.C. Jan. 30, 2017)
(unpublished) (deeming Henderson “distinguishable” and finding no
apparent conflict between SRRTs and RDL 2); see also Marshall v.
Barnhart, Civ. No. 01-2211, 2002 WL 32488432, at *9-10 (D. Md.
Sept. 27, 2002) (unpublished) (finding that a claimant limited to
performing “simple, repetitive 1, 2, 3 step tasks” could perform
job with [RDL 3]).
As no apparent conflict existed between the RFC’s limitation
to one to three step instructions and the RDL of 2 required by the
VE’s cited jobs, the ALJ did not err by failing to identify and
resolve such conflict.
b. No High Production Demands
Next, Plaintiff contends that the mental RFC’s prohibition of
“high production demands” (Tr. 18) conflicts with two of the jobs
cited by the VE, Final Inspector and Marker, because those jobs
“appear to be production jobs.”
(Docket Entry 12 at 7.) According
to Plaintiff, the Final Inspector job “is either part of or at the
end of the production process of storage batteries . . . [a]nd the
crosswalk in the [DOT] description for the [F]inal [I]nspector job
shows it is in the ‘Production Inspectors, Testers, Graders,
Sorters, Samplers, Weighers’ category of jobs.”
The O*Net includes “crosswalks,” or “cross references,” between the O*Net’s job
classification system and the DOT’s system. www.onetcenter.org/questions(last
accessed Feb. 8, 2018); see also www.onetonline.org/crosswalk/DOT (containing the
Plaintiff further asserts that the Marker job “also appears to
require a production pace per the [DOT] description . . . [and]
[t]he crosswalk in the [DOT] description for th[at] job is also
Weighers.’” (Id. (referencing Docket Entry 12-1 (DOT description
With regard to both jobs, Plaintiff maintains that
(Id. at 7-8 (referencing Docket Entries 12-6,
12-7, and 12-8 (O*Net materials regarding production inspectors,
As an initial matter, the mere fact that a worker performs the
Final Inspector job in a production setting does not mean that the
job requires high production demands. More significantly, however,
the DOT description of the Final Inspector job’s duties does not
reflect such demands:
Tests polarity connections on finished storage batteries
and inspects final assembly for defects: Positions metal
prongs of testing unit over terminals of intercell
connecting straps and observes bulb on testing unit that
lights when cell arrangement is correct.
assembly for defects, such as omission of symbol on
battery posts, uneven sealing, and cracked covers.
DOT No. 727.687-054, 1991 WL 679672.
With regard to the Marker job, Plaintiff misidentifies the
“crosswalk” for the job in the DOT as “Production Inspectors,
O*Net’s DOT crosswalk search function) (last accessed Feb. 8, 2018).
Testers, Graders, Sorters, Samplers, Weighers.”
at 7 (referencing Docket Entry 12-1).)
(Docket Entry 12
The materials Plaintiff
relies upon actually reflect the crosswalk as “Marking Clerks.”
(Docket Entry 12-1.)
Moreover, Plaintiff made no attempt to
elaborate on which duties in the DOT description for the Marker job
“appear to require a production pace.”
That failure forecloses relief.
(Docket Entry 12 at 7.)
See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (“[A] litigant has an obligation to
spell out its arguments squarely and distinctly, or else forever
hold its peace.” (internal quotation marks omitted)); Hughes v. B/E
Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C.
Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party should not
expect a court to do the work that it elected not to do.”).
Plaintiff’s assertion that “[t]he O*Net seems to indicate [the
pace/setting jobs” (Docket Entry 12 at 7-8 (referencing Docket
Entries 12-6, 12-7, and 12-8)) fails for two reasons.
Plaintiff did not buttress her vague claim that the O*Net “seems to
indicate” that those jobs qualify as “production pace/setting jobs”
with any supporting facts.
Plaintiff attached 30 pages of
materials from the O*Net to the brief in support of her instant
motion (see Docket Entries 12-6 through 12-9), but merely cited
(Docket Entry 12 at 8).
Plaintiff should not expect the Court to
sift through 30 pages of materials to piece together her argument.
See Zannino, 895 F.2d at 17; Hughes, 2014 WL 906220, at *1 n.1.
Second, and more importantly, SSR 00-4p requires ALJs to
identify and resolve apparent conflicts only between the VE’s
testimony and the DOT.
See SSR 00-4p, 2000 WL 1898704, at *2
(“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 . . .
explanation for the conflict before relying on the VE . . .
evidence to support a determination or decision about whether the
claimant is disabled.”); Walker v. Berryhill, No. CV 16-01040-KES,
2017 WL 1097171, at *3 (C.D. Cal. Mar. 23, 2017) (unpublished)
(observing that, apart from the DOT, “SSR 00-4p d[oes] not impose
a similar requirement [that the ALJ identify and resolve] conflicts
between VE testimony and the other documents administratively
noticed in 20 C.F.R. § 416.966(d)”)6
The Commissioner’s regulations do not expressly recognize the O*Net as a
vocational resource upon which ALJs can rely, see 20 C.F.R. § 416.966(d) (stating
that Commissioner “will take administrative notice of reliable job information
available from various governmental and other publications,” and listing as
“example[s]” the DOT, County Business Patterns (“CBP”), Census Reports,
Occupational Analyses prepared for the Commissioner by state employment agencies,
and the Occupational Outlook Handbook (“OOH”)). However, “the last publication
of the [DOT] was in 1991, [and] the last significant update of the occupation
information it contains occurred with the 1977 edition.” Boston v. Colvin, No.
4:14-CV-206-D, 2016 WL 721563, at *15 (E.D.N.C. Feb. 2, 2016) (unpublished),
recommendation adopted, No. 4:14-CV-206-D, 2016 WL 738762 (E.D.N.C. Feb. 23,
2016) (unpublished) (citing Government Accountability Office (“GAO”) Report
12–420, Highlight: Modernizing SSA Disability Programs (June 2012)).
result, the O*Net has replaced the DOT as the federal government’s primary source
Moreover, Plaintiff does not cite to any other authority to
support her argument that ALJs must identify and resolve apparent
conflicts between the VE’s testimony and the O*Net (see Docket
Entry 12 at 7-8), and other courts have rejected Plaintiff’s
position, see Malfer v. Colvin, Civ. No. 12-169J, 2013 WL 5375775,
at *5 (W.D. Pa. Sept. 24, 2013) (unpublished) (“[W]hile the [DOT]
appears on the list of governmental and other publications from
which the agency can take ‘administrative notice of reliable job
information,’ the O*NET does not. Thus, even if the VE’s testimony
was in conflict with 0*NET, there is no requirement that the VE’s
omitted)); Ryan v. Astrue, 650 F. Supp. 2d 207, 218 (N.D.N.Y. 2009)
(“[The p]laintiff argues that the VE’s testimony does in fact
[The p]laintiff appears to be basing this argument on
his application of O*Net.
O*Net is misplaced.
However, [the p]laintiff’s reliance on
Even if the VE’s testimony was in conflict
with O*Net, there is no requirement that the VE’s testimony comply
Astrue, Civ. No. C08–1198–RSM, 2009 WL 1120027 at *3 (W.D. Wash.
http://www.onetcenter.org/overview.html, and the Commissioner plans to develop
an Occupational Information System to supplant the DOT as the Social Security
Administration’s primary vocational resource, see 73 Fed. Reg. 78864-01, 2008 WL
5329223 (Dec. 23, 2008); Dimmett v. Colvin, 816 F.3d 486, 489 (7th Cir. 2016)
(noting that the Commissioner, “while aware of the obsolescence of the [DOT]
. . ., hasn’t endorsed the O*NET and . . . is developing its own parallel
Apr. 24, 2009) (unpublished) (“[The] plaintiff provides no basis
for relying on a perceived conflict between the O-NET and the
. . . SSR 00-4p . . . specifically require[s]
the resolution of conflicts between the [DOT] and a VE’s testimony.
. . . [The p]laintiff fails to provide any support for a contention
that the creation of the O-NET altered this requirement.”).7
Accordingly, Plaintiff has not demonstrated a conflict between
the VE’s testimony and the DOT with respect to the mental RFC’s
restriction against high production demands.
c. Occasional Interaction with Others
Plaintiff additionally maintains that the RFC’s limitation to
occasional interaction with others conflicts with (1) the O*Net’s
Research did not reveal any cases finding that an ALJ erred by not identifying
and resolving an apparent conflict between the VE’s testimony and the O*Net in
light of SSR 00-4p. Although courts have remanded cases for the ALJ and/or VE
to consider updated job descriptions in the O*Net, those cases occurred not in
the context of apparent, unresolved conflicts under SSR 00-4p, but where the
obsolescence of the particular DOT job descriptions in question rendered the
ALJ’s step five finding unsupported by substantial evidence. See, e.g., Dimmett
v. Colvin, 816 F.3d 486, 490 (7th Cir. 2016) (relying on O*Net’s more recent job
descriptions for self-service laundry and dry cleaning attendant and dining room
attendant to demonstrate the “fatally weak testimony” by the VE); Cunningham v.
Astrue, 360 F. App’x 606, 615 (6th Cir. 2010) (“[T]he VE’s dependence on the
[DOT] listings alone does not warrant a presumption of reliability. E.g., O*NET
Resource Center, http://www.onetcenter.org/datacollection.html (last visited Jan.
4, 2010). As such, we remand to the Commissioner for consideration of whether
the [DOT] listings, specifically the document preparer and security camera
monitor descriptions, were reliable in light of the economy as it existed at the
time of the hearing before the ALJ.”); Sinclair v. Berryhill, 266 F. Supp. 3d
545, 558–59 (D. Mass. 2017) (remanding case “where . . . more current job
descriptions [in the O*Net] raise[d] doubts about the [VE’s] (. . . and
Commissioner’s) reliance on the [DOT’s]” archaic job descriptions); Feeley v.
Commissioner of Social Security, No. 14-4970, 2015 WL 3505512 (D.N.J. June 3,
2015) (unpublished) (finding ALJ erred by adopting VE’s testimony based on DOT’s
obsolete job description for telephone quotation clerk, and deeming O*Net’s more
updated job description more appropriate for VE’s consideration).
Plaintiff has not sought relief based on the obsolescence of the DOT’s job
descriptions for Final Inspector, Marker, and Stock Checker (Apparel). (See
Docket Entry 12 at 2-9.)
descriptions of the degree of interaction required by the Final
Inspector and Marker jobs (see Docket Entry 12 at 8 (referencing
“Laborers and Freight, Stock, and Material Movers, Hand” occupation
who experience only occasional verbal communication (see id. at 9
(referencing Docket Entry 12-9)). However, as discussed above, SSR
00-4p requires the ALJ to identify and resolve apparent conflicts
only between the VE’s testimony and the DOT, see SSR 00-4p, 2000 WL
1898704, at *2, and Plaintiff has failed to cite any authority that
conflicts between the VE’s testimony and either the O*Net or the
Bureau of Labor Statistics (see Docket Entry 12 at 8-9).
In sum, Plaintiff’s first issue on review fails as a matter of
2. Mental RFC
In Plaintiff’s second and final assignment of error, she
alleges that “the ALJ d[id] not give a complete function-byfunction analysis of the nonexertional mental functions associated
with [Plaintiff’s] difficulties in the broad areas of functioning
and d[id] not make a complete finding as to [Plaintiff’s] mental
[RFC]” (id. at 9 (bold font omitted)), in violation of Social
Security Ruling 96-8p, Policy 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 12 at 9-15). In
particular, Plaintiff attacks the sufficiency of the mental RFC in
two 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 11
(bold font omitted)); and (2) failed to “provide the required
detailed assessment of the effect of [Plaintiff’s] difficulties in
social functioning on her ability to engage in sustained work
activities” (id. at 14 (bold font omitted)).
Those arguments miss
At steps two and three of the SEP, the ALJ must assess the
degree of functional limitation resulting from Plaintiff’s mental
disorders in the listing of impairments.
See 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 12.00; 20 C.F.R. § 416.920a(b)(2) & (c)(2).
As relevant to the instant case, paragraphs B of Listings 12.04
(“Affective Disorders”) and 12.06 (“Anxiety Related Disorders”)
each contain four broad functional areas: 1) activities of daily
living; 2) social functioning; 3) concentration, persistence, or
pace; and 4) episodes of decompensation.
See 20 C.F.R. Pt. 404,
The ALJ’s decision must include a specific
finding of the degree of limitation in each of those functional
20 C.F.R. § 416.920a(e)(4).
However, the paragraph B
criteria limitations do not constitute an RFC assessment.
96–8p, 1996 WL 374184, at *4 (emphasis added).
Rather, the ALJ
uses those limitations to evaluate the severity of Plaintiff’s
mental impairments at steps two and three of the SEP.
“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
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
Patterson v. Astrue, No. 1:08–CV–109–C, 2009 WL 3110205, at *5
(N.D. Tex. Sept. 29, 2009) (unpublished).
Plaintiff first maintains that the ALJ failed to account for
(See Docket Entry 12 at 11-14.)
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 11-
12 (quoting Mascio, 780 F.3d at 638 (internal quotation marks
discusse[d] only [Plaintiff’s] capability to perform simple and
routine tasks, not her ability to stay on task.”
(Id. at 12.)
Plaintiff additionally faults the ALJ for according “great weight”
to the opinions of the state agency psychological consultants (Tr.
21), who each opined that Plaintiff “may experience difficulty
maintaining attention [and] concentration for extended periods of
time” (Tr. 87, 107), but then failing to incorporate those opinions
into the mental RFC.
(See Docket Entry 12 at 12-13.)
arguments do not warrant relief.
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].”
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 [CPP] 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 [CPP] 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
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (magistrate judge’s 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 “[SRRTs] involving only 1 to 3 step instructions . . .
with no high production demands . . . [and only] occasional
interaction with others in the workplace” (Tr. 18) sufficiently
accounted for Plaintiff’s moderate limitation in CPP.
First, the ALJ noted that Plaintiff “allege[d] disability
based on symptoms of her mental impairments, e.g., difficulty
concentrating and getting along with others,” but concluded that
“the record as a whole, does not fully corroborate the disabling
Plaintiff, and that Plaintiff’s “mental impairments were stable
with medication and individual therapy.”
The ALJ further
persistence and limiting effects of [her] symptoms [we]re not
entirely consistent with the medical evidence and other evidence in
the record,” noting that “[a] careful review of the medical and
other evidence of record . . . revealed stark contrasts between
[Plaintiff’s] allegations and the objective and clinical findings.”
Plaintiff has not challenged the ALJ’s evaluation of
Plaintiff’s subjective complaints.
(See Docket Entry 12.)
treatment, making the following, pertinent observations:
Consultative examiner Dr. Ronald D. Franklin “noted
that [Plaintiff’s] thought processes were concrete
depersonalizations” (Tr. 21; see also Tr. 340);
Dr. Franklin “determined that [Plaintiff] was able
to sustain attention to perform simple repetitive
tasks” (Tr. 17; see also Tr. 391);
“[D]espite her mental impairments, [Plaintiff]
concentration” (Tr. 17; see also Tr. 348);
During ongoing therapy, Plaintiff “was engaged” and
“made progress toward her treatment goals” (Tr. 21;
see also Tr. 371-85, 558-632); and
sessions multiple times” and “it would appear that
[Plaintiff] did not think her symptoms were that
severe, as she did not consistently participate in
individual therapy, [from] which she could have
benefit[t]ed” (Tr. 21; see also Tr. 560, 563, 565,
571, 574, 587, 596-602, 604, 612, 613, 616, 617,
Third, the ALJ also discussed and weighed the opinion evidence
(See Tr. 21-22.)
Notably, the ALJ gave “great weight” to the
opinions of the state agency psychological consultants (Tr. 21),
who each opined that, despite moderate deficit in CPP (see Tr. 82,
102), Plaintiff remained “capable of performing SRRTs . . . in low
stress environments [with] limited social demands” (Tr. 88, 108).
Although Plaintiff faults the ALJ for failing to incorporate the
consultants’ opinion that Plaintiff “may experience difficulty
maintaining attention [and] concentration for extended periods of
time” (Tr. 87, 107 (emphasis added)) into the mental RFC (see
Docket Entry 12 at 12-13), Plaintiff overlooks the fact that the
consultants ultimately concluded that, despite Plaintiff’s possible
difficulty in maintaining attention and concentration for extended
periods of time, she remained capable of performing SRRTs if
provided a low stress environment and limited social demands (see
Tr. 88, 108).
Fourth, the ALJ’s restriction to “no high production demands”
in the RFC (Tr. 18) “reasonably related to a moderate limitation in
(unpublished), recommendation adopted, slip op. (M.D.N.C. Sept. 21,
2016) (Osteen, Jr., C.J.).
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,
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
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 “[SRRTs] involving only 1 to 3 step instructions
. . . with no high production demands . . . [and only] occasional
interaction with others in the workplace” (Tr. 18) sufficiently
accounted for Plaintiff’s moderate limitation in CPP.
b. Social Functioning
Plaintiff faults the ALJ’s decision-making with respect to her
ability to function socially in two respects: the ALJ (1) failed to
explain what “occasional interaction with others” means, i.e.,
telephone, via email, via text, etc.” (Docket Entry 12 at 14
(citing Tr. 18)); and (2) “d[id] not fully explain in the [RFC]
what effect on [Plaintiff’s] ability to engage in work activity is
caused by her [moderate] limitation in social functioning” (id.
Those arguments fail.
restricted Plaintiff’s contact with the public, supervisors, and
co-workers to accommodate Plaintiff’s moderate limitation in social
functioning (see Docket Entry 12 at 14-15; see also Tr. 18), he
faults the ALJ for failing to define the term “interaction,” which
allegedly “left the Court to guess what [the ALJ] mean[t] and
allowed the [VE] to use [her] own definition without explanation”
(Docket Entry 12 at 14).
This line of argument entitles Plaintiff
to no relief.
As an initial matter, Plaintiff has not shown why the term
“interaction” warrants explanation beyond its common, every day
meaning. (See Docket Entry 12 at 14.)
Nor does it appear he could.
See Watts v. Berryhill, No. 3:16-CV-00850-FDW, 2017 WL 6001639, at
*4 (W.D.N.C. Dec. 4, 2017) (unpublished) (“[The p]laintiff further
contends the ALJ must explain what it means by interpersonal
The [c]ourt disagrees.
The meaning of interpersonal
interaction is not ambiguous: it covers all communication between
https://premium.oxforddictionaries.com/us/english/ (last visited
Nov. 8, 2017) (‘Relating to relationships or communication between
Even more significantly, the VE did not express any difficulty
in understanding the meaning of “occasional interaction” in the
ALJ’s hypothetical (see Tr. 69-72), and Plaintiff’s representative,
despite an opportunity for cross-examination, declined to question
“interaction,” or whether the jobs cited by the VE accommodated a
restriction to occasional interaction with others (see Tr. 71).
Commissioner of Soc. Sec., No. 1:12-cv-126, 2013 WL 428751, at *7
(S.D. Ohio Feb. 1, 2013) (holding that, “despite the purported
vagueness of the term [superficial], any error would be harmless as
the VE was able to understand the term and testified that there
were jobs in the local and national economy that [the] plaintiff
Plaintiff’s contention that the ALJ “d[id] not fully explain
in the [RFC] what effect on [Plaintiff’s] ability to engage in work
functioning” (id. at 14-15) also lacks merit.
First, the ALJ gave
“great weight” to the opinions of the state agency psychological
consultants (Tr. 21), who each concluded that Plaintiff remained
capable of jobs with “limited social demands” (Tr. 88, 108),
functioning, respectively (see Tr. 82, 102).
neither disputes the ALJ’s finding of moderate limitation in social
functioning (see Tr. 16) and description of Plaintiff’s ability to
engage in social activities (see Tr. 17), nor makes any attempt to
show how a moderate limitation in social functioning should have
further impacted the ALJ’s RFC beyond the limitation to occasional
interaction with others (see Docket Entry 12 at 14-15). Under such
decision-making with regard to Plaintiff’s social functioning.
In short, Plaintiff’s second assignment of error does not
entitle her to reversal or remand.
Plaintiff has not established an error warranting relief.
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 14) be granted, and that this action be
dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 8, 2018
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