PARKER, JR. v. BERRYHILL

Filing 20

ORDER signed by JUDGE LORETTA C. BIGGS on 03/18/2019 adopting the Magistrate Judge's Recommendation, that the Commissioner's decision finding no disability is VACATED, that Plaintiff's Motion for a Ju dgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing, (ECF No. 9 ), is GRANTED IN PART (i.e., to the extent it requests remand), that the Commissioner's Motion for Judgment on the Pleadings, (ECF No. 11 ), is DENIED, and that this action is REMANDED for further administrative proceedings. A Judgment remanding this matter will be entered contemporaneously with this Order. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BILLY E. PARKER, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV882

ORDER
The Recommendation of the United States Magistrate Judge was filed with the Court
in accordance with 28 U.S.C. § 636(b) and, on February 15, 2019, was served on the parties in
this action. (ECF Nos. 13, 14.) Plaintiff and Defendant each filed Objections to the
Magistrate Judge’s Recommendation, (ECF Nos. 16, 17), as well as responses to the
Objections, (ECF Nos. 18, 19). The Court has appropriately reviewed the Magistrate Judge’s
Recommendation and has made a de novo determination in accord with the Magistrate Judge’s
Recommendation.1 The Court therefore adopts the Magistrate Judge’s Recommendation.

In the Recommendation, the Magistrate Judge noted that “Plaintiff did not provide any citations (much less attach any
materials) to support his assertion that, ‘[a]ccording to the [Bureau of Labor Statistics (‘BLS’), for] almost [two-thirds] of
both the fast food workers and cafeteria attendants[,] crouching, i.e.[,] squatting, is required[ a]nd it is required for almost
one-third of the inspectors and hand packagers.’” (ECF No. 13 at 12-13.) Although Petitioner attached a copy of the
missing BLS materials to his Objections, (see ECF No. 17 at 2; see also ECF Nos. 17-1, 17-2, 17-3), those materials do
not cure the remaining two defects in Plaintiff’s argument as found in the Recommendation, i.e., that the BLS does “not
constitute [a] recognized vocational source[] under the Commissioner’s regulations”, (ECF No. 13 at 13), and that “the
same materials on which Plaintiff relied to demonstrate that all three jobs cited by the [vocational expert] and adopted by
the [Administrative Law Judge] required reaching, reflect that none of those jobs require any crouching” (id. (internal
citations omitted)). Thus, the BLS materials do not ultimately undermine the proposed conclusions in the
Recommendation.
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IT IS THEREFORE ORDERED that the Commissioner’s decision finding no
disability is VACATED, 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,
(ECF No. 9), is GRANTED IN PART (i.e., to the extent it requests remand), that the
Commissioner’s Motion for Judgment on the Pleadings, (ECF No. 11), is DENIED, and that
this action is REMANDED for further administrative proceedings.
A Judgment remanding this matter will be entered contemporaneously with this Order.
This, the 18th day of March 2019.
/s/ Loretta C. Biggs
United States District Judge

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