MARTIN v. SAUL

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 9/9/2021; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's M otion for Judgement Reversing the Decision of the Commissioner of Social Security (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that this action be dismissed with prejudice. (Hicks, Samantha)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICKEY EDWARD MARTIN,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant.1

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)
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)
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)
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1:20CV548

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rickey Edward Martin, 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 7 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Brief);
Docket

Entry

13

(Defendant’s

(Plaintiff’s Reply)).

Memorandum);

Docket

Entry

14

For the reasons that follow, the Court

should enter judgment for Defendant.

1
President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties
need take any further action 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).

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 1 of 19

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 154-60), alleging a disability
onset date of July 15, 2007 (see Tr. 154), later amended to
September

4,

2011

(see

Tr.

15).

Following

denial

of

that

application initially (Tr. 58-64, 77, 78-81) and on reconsideration
(Tr. 66-76, 77, 83-85), Plaintiff requested a hearing de novo
before an Administrative Law Judge (“ALJ”) (Tr. 89-90). Plaintiff,
his attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 27-57.)

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 12-21.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
238-39), 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:
1.

[Plaintiff] last met the insured status requirements of
the . . . [Act] on September 30, 2012.

2.

[Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
September 4, 2011 through his last date insured of
September 30, 2012.

3.

Through the date last insured, [Plaintiff] had the
following severe impairments: lumbar degenerative disc
disease; upper airway resistance syndrome; and obesity.

. . .
4.

Through the date last insured, the claimant did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
2

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 2 of 19

. . .
5.

. . . [T]hrough the date last insured, [Plaintiff] had
the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) with the following
exceptions: He can frequently climb ramps and stairs. He
can frequently climb ladders, ropes, or scaffolds. He
can frequently stoop.

. . .
6.

Through the date last insured, [Plaintiff] was capable of
performing his past relevant work as a tune-up mechanic
and a tractor-trailer truck driver. This work did not
require the performance of work-related activities
precluded by [Plaintiff]’s residual functional capacity.

. . .
7.

(Tr.

[Plaintiff] was not under a disability, as defined in the
. . .
Act, at any time from September 4, 2011, the
alleged onset date, through September 30, 2012, the date
last insured.

17-21

(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.”

Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

However, “the scope

of [the Court’s] review of [such a] decision

. . .

limited.”

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.

3

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 3 of 19

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, “a

reviewing

of

court

must

uphold

the

factual

findings

the

ALJ

[underlying the denial of benefits] 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, 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) (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
allows reasonable minds to differ as to whether a claimant is

4

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 4 of 19

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 [(‘SSA’)]
has

. . .

promulgated

. . .

detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into
account

a

claimant’s

age,

education,

and

work

experience

in

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

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 5 of 19

addition to [the claimant’s] medical condition.”

Id.

regulations

process’

establish

a

‘sequential

evaluation

“These
to

determine whether a claimant is disabled.” Id. (internal citations
omitted).
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 [RFC] to (4) perform [the
claimant’s]

past

work

or

(5)

any

other

work.”

Albright

v.

Commissioner of 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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 6 of 19

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 [RFC].”

Id. at 179.4

Step four

then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant
does not qualify as disabled.

work”; if so, the claimant

See id. at 179-80.

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

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
567.5

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 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.
5

A claimant thus can qualify as disabled 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
(continued...)

7

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 7 of 19

B.

Assignment of Error

Plaintiff’s sole assignment of error asserts that “[t]he ALJ
committed reversible error by failing to conduct a proper functionby-function analysis of [Plaintiff’s] exertional and nonexertional
capacities and by failing to explain how the evidence supports the
hearing decision’s [RFC] assessment.”
font

and

single-spacing

(Docket Entry 11 at 3 (bold

omitted).)

In

particular,

Plaintiff

maintains that 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”),
“explicitly requires the ALJ to address all seven exertional
strength

capacities

of

[Plaintiff]”

in

the

RFC,

including

“‘[s]itting, standing, walking, lifting, carrying, pushing, and
pulling,’” with “‘[e]ach function

. . .

considered separately.’”

(Docket Entry 11 at 3-4 (quoting SSR 96-8p, 1996 WL 374184, at
*5).)

Plaintiff further insists that “[t]he ALJ’s RFC assessment

is inadequate to establish that [Plaintiff] retains the ability to
perform medium work because the ALJ failed to address [Plaintiff’s]
exertional capacity to sit, stand, walk, or bend,” and “[t]he RFC
. . . does not specify how many hours of an 8-hour workday
[Plaintiff] can sit, stand, or walk, or how much bending he can

5

(...continued)
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.”).

8

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 8 of 19

do.”

(Id. at 7 (citing Tr. 18-20).)

According to Plaintiff,

“[t]he United States Court of Appeals for the Fourth Circuit has
held that it is a reversible error for an ALJ to fail to explain
how the evidence supports a finding that [a] claimant can perform
the functional requirements of an exertional level of work.”

(Id.

(citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)).)
Those contentions fail to warrant relief.
RFC measures the most a claimant can do despite any physical
and mental limitations.
§ 404.1545(a).

See Hines, 453 F.3d at 562; 20 C.F.R.

An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s
impairments, as well as any related symptoms, including pain.
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b).

See

The ALJ then

must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
heavy).

See 20 C.F.R. § 404.1567.

Any non-exertional limitations

may further restrict a claimant’s ability to perform jobs within an
exertional level.

See 20 C.F.R. § 404.1569a(c).

An ALJ need not

discuss every piece of evidence in making an RFC determination, see
Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir.
2014); however, “the ALJ must both identify evidence that supports
his [or her] conclusion and build an accurate and logical bridge
from that evidence to [that] conclusion,” Woods, 888 F.3d at 694
(internal emphasis, quotation marks, and brackets omitted).

9

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 9 of 19

As to the role of the function-by-function analysis in the RFC
determination, the relevant administrative ruling states: “The RFC
assessment

must

first

identify

the

individual’s

functional

limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis . . . .

Only after that

may RFC be expressed in terms of the exertional levels of work,
sedentary, light, medium, heavy, and very heavy.”

SSR 96-8p, 1996

WL

addressed

374184,

at

*1.

The

Fourth

Circuit

has

this

administrative ruling and the issue of whether an ALJ’s failure to
articulate a function-by-function analysis necessitates remand.
See Mascio v. Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015).
Specifically, the Fourth Circuit stated “that a per se rule is
inappropriate given that remand would prove futile in cases where
the

ALJ

does

not

discuss

functions

that

are

irrelevant

or

uncontested,” id. at 636, but that “‘remand may be appropriate
where an ALJ fails to assess a claimant’s capacity to perform
relevant functions, despite contradictory evidence in the record,
or

where

other

inadequacies

in

the

ALJ’s

analysis

frustrate

meaningful review,’” id. (internal brackets and ellipsis omitted)
(quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
1.

Sitting, Standing, and Walking Limitations
Plaintiff’s contention that the ALJ’s decision violated SSR

96-8p and Woods because “[t]he RFC . . . does not specify how many
hours of an 8-hour workday [Plaintiff] can sit, stand, or walk”

10

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 10 of 19

(Docket Entry 11 at 7 (citing Tr. 18-20)) falls short for five
reasons.
First, the ALJ found that Plaintiff retained the RFC to
perform medium work “as defined in 20 CFR 404.1567(c)” (Tr. 18
(emphasis added)), which regulation defines medium work as “lifting
no more than 50 pounds at a time with frequent lifting or carrying
of objects weighing up to 25 pounds,” 20 C.F.R. § 404.1567(c).
Moreover,

that

[Plaintiff]

can

regulation
do

medium

further
work,

emphasizes

[the

ALJ]

that,

determine[s]

[Plaintiff] can also do sedentary and light work.”

“[i]f
that

Id.; see also

Social Security Ruling 83–10, Titles II and XVI: Determining
Capability to Do Other Work – the Medical–Vocational Rules of
Appendix 2, 1983 WL 31251, at *5 (1983) (“SSR 83-10”) (providing
that sedentary work entails the ability to sit for a “total [of]
approximately 6 hours of an 8-hour workday” and that light work
involves

the

capability

to

stand

and

walk

“for

a

total

of

approximately 6 hours of an 8-hour workday” (emphasis added)).)
Thus, the ALJ’s citation to Section 404.1567(c) (see Tr. 18)
permits the Court to ascertain the sitting, standing, and walking
limitations found by the ALJ, see Hacker v. Saul, No. 5:20CV132,
2021 WL 852197, at *3, *5 (N.D.W. Va. Feb. 18, 2021) (unpublished)
(finding no error in ALJ’s expression of RFC as “sedentary work as
defined in 20 C.F.R. § 416.967(a)” where the court could look to
the SSA’s definition of sedentary work to determine exertional

11

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 11 of 19

limits of such work), recommendation adopted, 2021 WL 851879
(N.D.W. Va. Mar. 5, 2021) (unpublished).6
Second,

SSR

83-10

further

expounds

on

the

regulatory

definition of medium work as follows:
“Frequent” means occurring from one-third to two-thirds
of the time . . . . A full range of medium work requires
standing or walking, off and on, for a total of
approximately 6 hours in an 8-hour workday in order to
meet the requirements of frequent lifting or carrying
objects weighing up to 25 pounds.
As in light work,
sitting may occur intermittently during the remaining
time . . . . The considerable lifting required for the
full range of medium work usually requires frequent
bending-stooping . . . . However, there are a relatively
few occupations in the national economy which require
exertion in terms of weights that must be lifted at times
(or involve equivalent exertion in pushing or pulling),
but are performed primarily in a sitting position, e.g.,
taxi
driver,
bus
driver,
and
tank-truck
driver
(semiskilled jobs).

6

Plaintiff deems the Commissioner’s reference to SSR 83-10 to interpret
the ALJ’s RFC assessment “invalid,” because “the ALJ’s RFC assessment on its face
cites only 20 C.F.R. § 404.1520(f) [sic]” (Docket Entry 14 at 2 (referencing
Docket Entry 13 at 7-8, and citing Tr. 18)), which “defines only the lifting and
carrying requirements of medium work” and “does not refer to SSR 83-10” (id. at
3; see also Docket Entry 11 at 7-8). Plaintiff cites no authority precluding
courts from looking to long-standing SSA policies regarding the exertional
requirements of medium work to construe the limitations indicated by an ALJ’s RFC
(see Docket Entries 11, 14), and cases hold to the contrary, see, e.g., Daniels
v. Saul, No. 2:20CV230, 2021 WL 667945, at *7 (S.D.W. Va. Jan. 26, 2021)
(unpublished) (“SSR 83-10 specifies that a ‘full range of light work requires
standing or walking, off and on, for a total of approximately 6 hours of an
8-hour workday,’ and ‘[s]itting may occur intermittently during the remaining
time[’ and, t]hus, by finding that [the c]laimant could perform light work
without any additional standing, walking, or sitting limitations, the ALJ
concluded that [the c]laimant could stand and walk for approximately six hours
in an eight-hour workday with intermittent sitting.” (internal citation
omitted)), recommendation adopted, 2021 WL 665534 (S.D.W. Va. Feb. 19, 2021)
(unpublished); see also Harrison v. Colvin, No. 1:10CV18, 2013 WL 1661096, at *2
(M.D.N.C. Apr. 17, 2013) (unpublished) (Eagles, J.)(relying on applicable
regulations and SSR 83-10 to hold that, “by finding that [the plaintiff] was
capable of performing light work, the ALJ implicitly found that she was capable
of standing or walking for approximately six hours in an eight-hour work day”).
Accordingly, the Court should look to SSR 83-10 in this case to help assess the
ALJ’s sitting, standing, and walking limitations in the RFC.

12

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 12 of 19

SSR 83-10, 1983 WL 31251, at *6 (emphasis added).

That Ruling thus

explicitly recognizes that, despite the fact that most medium jobs
require only intermittent sitting, i.e., up to 2 hours in an 8-hour
workday, jobs exist, such as Plaintiff’s past relevant work (“PRW”)
as

a

tractor-trailer

truck

driver,

that

entail

the

lifting

requirements of medium work and require the ability to sit for up
to 6 hours in an 8-hour workday.
Third, the ALJ specified how many hours Plaintiff could sit,
stand, and walk in his hypothetical question to the VE.
51-52.)

(See Tr.

The ALJ asked the VE if an individual who could, inter

alia, “sit, stand, and walk six hours” remained able to perform
Plaintiff’s PRW, and the VE responded, “[y]es.”
added).)

Although

the

ALJ

did

not

(Tr. 52 (emphasis

reiterate

the

specific

limitation to six hours of sitting, standing, and walking in the
RFC

(see

Tr.

18),

his

inclusion

of

that

limitation

in

the

hypothetical nonetheless provides the Court with further evidence
of the sitting, standing, and walking limitations found by the ALJ.
Fourth,

the

ALJ

afforded

“great

weight”

to

the

reconsideration-level state agency medical consultant (Tr. 20), who
opined that Plaintiff remained able to sit, stand, and walk for up
to 6 hours in an 8-hour workday (Tr. 72).
the

consultant’s

opinion

therefore

The ALJ’s crediting of
supplies

additional

clarification of the sitting, standing, and walking limitations
found by the ALJ.

13

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 13 of 19

Fifth, Plaintiff’s contention that the RFC contradicts his
hearing testimony that he has significantly restricted ability to
sit while driving a truck due to pain (see Docket Entry 11 at 7
(citing

Tr.

44,

47-48))

fails,

because

the

ALJ

considered

Plaintiff’s subjective complaints of disabling back pain, but found
Plaintiff’s

testimony

records and history.

“unpersuasive”

in

light

of

his

medical

(Tr. 19; see also id. (finding Plaintiff’s

“statements concerning the intensity, persistence and limiting
effects of [his] symptoms are not entirely consistent with the
medical evidence and other evidence in the record”).)7

The ALJ

supported that finding by pointing out that Plaintiff’s back pain
responded well to epidural injections (see Tr. 19), specifically
noting Plaintiff’s self-report of a decrease in pain from an eight
to a zero on a ten-point pain scale following epidural treatment in
December 2011 (see Tr. 20 (citing Tr. 351)).

The ALJ additionally

cited examination notes showing that Plaintiff had intact motor
function, no muscle atrophy, normal gait, full range of motion, and
negative straight leg raise tests. (See Tr. 19-20 (citing Tr. 31828, 356-59).)

The ALJ’s decision thus permits the Court to

ascertain the sitting, standing, and walking restrictions the ALJ
found in the RFC, i.e., that Plaintiff remained capable of sitting,

7
Plaintiff did not challenge the ALJ’s evaluation
subjective symptom reporting. (See Docket Entries 11, 14.)

of

Plaintiff’s

14

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 14 of 19

standing, and walking for up to six hours each in an eight-hour
workday.
Lastly, Plaintiff maintains that the ALJ made no finding as to
the sitting requirements of Plaintiff’s PRW as a tractor-trailer
truck driver.

(See Docket Entry 14 at 7.)

According to Plaintiff,

“[b]y failing to make th[at] finding[], the ALJ had no basis to
make the comparison of [Plaintiff]’s RFC with the demands of his
[PRW] as required by 20 C.F.R. § 404.1520(f) and [Social Security
Ruling 82-62, Titles II and XVI: a Disability Claimant’s Capacity
to Do Past Relevant Work, in General, 1982 WL 31386, at *4 (1982)
(“SSR 82-62”)].”

(Docket Entry 14 at 7.)

Plaintiff’s argument,

however, glosses over the distinction between finding that he
remained able to perform his PRW (A) as he actually performed it or
(B) as generally performed in the national economy.

See 20 C.F.R.

§ 404.1560(b)(2) (providing that, at step four of the SEP, an ALJ
can find a claimant not disabled by determining that the claimant
can perform PRW either as actually previously performed by the
claimant or as generally performed in the national economy). Here,
the ALJ explicitly found that Plaintiff retained the RFC to perform
his PRW as a tractor-trailer truck driver as generally performed.
(Tr. 21; see also Tr. 52 (containing VE’s testimony that Plaintiff
could perform his PRW as generally performed but that she “[was]
not sure as actually performed”).) Moreover, the corresponding job
description for “Tractor-Trailer-Truck Driver” in the Dictionary of

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Occupational Titles (“DOT”) as cited by the VE (see Tr. 51)
categorizes that job as medium work, see DOT, No. 904.383-010, 1991
WL 687703 (G.P.O. 4th ed. rev. 1991), which, as discussed above,
requires the ability to sit for up to six hours in an 8-hour
workday, see 20 C.F.R. § 404.1567(c) (explaining that, “[i]f [a
claimant] can do medium work, [the ALJ] determine[s] that [the
claimant] can also do sedentary . . . work”); SSR 83-10, 1983 WL
31251, at *5 (providing that sedentary work entails the ability to
sit for a “total [of] approximately 6 hours” (emphasis added)).8
2.

Bending Limitation
Plaintiff next contends that the “RFC assessment . . . does

not specify . . . how much bending he can do.”
7 (referencing Tr. 18).)

(Docket Entry 11 at

That argument misses the mark, as the ALJ

specifically found in the RFC that Plaintiff remained able to
“stoop” frequently.

(Tr. 18.)

“Stooping” entails “bending the

body downward and forward by bending the spine at the waist,”
Social Security Ruling 85-15, Titles II and XVI: Capability to Do
Other Work - the Medical-Vocational Rules as a Framework for
Evaluating Solely Nonexertional Impairments, 1985 WL 56857, at *7
(1985) (“SSR 85-15”) (emphasis added).

Moreover, Plaintiff’s

attempt to differentiate between “stooping” and “bending” does not
aid his cause.

(See Docket Entry 11 at 10-11.)

Because Plaintiff

8
Plaintiff neither objected to the VE’s categorization of his PRW driving
a truck as DOT job number 904.383-010, “Tractor-Trailer-Truck Driver,” at the
hearing (see Tr. 53-56), nor argued on judicial review that such classification
constituted error (see Docket Entries 11, 14).

16

Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 16 of 19

defined

“bending”

as

“leaning

over,

bending

over

the

engine

compartment of a car” (Tr. 54), i.e., a less demanding postural
movement than stooping, a finding that Plaintiff could “stoop”
frequently necessarily means that he could also “bend” (as defined
by Plaintiff) frequently.9
Furthermore, the ALJ supported his finding that Plaintiff
remained capable of frequent stooping with substantial evidence.
The ALJ discussed Plaintiff’s medical records showing normal gait,
stable standing posture, and normal flexion, extension, and lateral
bending. (See Tr. 19-20 (citing Tr. 318-28, 356-59.)
credited

the

reconsideration

level

state

The ALJ also

agency

medical

consultant’s opinion that Plaintiff could frequently stoop (see Tr.
20, 72), and noted that no treating, consulting, or non-examining
medical source of record opined that Plaintiff “ha[d] debilitating
functional

limitations

or

that

he

[wa]s

disabled”

(Tr.

20).

Although Plaintiff deems the RFC determination “inconsistent with
[Plaintiff’s]

hearing

testimony”

regarding

his

“significantly

restricted ability . . . to bend over to perform auto mechanic work
due to pain” (Docket Entry 11
discussed

above,

the

ALJ

found

at 7 (citing Tr. 47-48)), as
that

Plaintiff’s

“statements

concerning the intensity, persistence and limiting effects of [his]

9
Additionally, the ALJ and reconsideration-level state agency medical
consultant (whose opinions the ALJ credited (see Tr. 20)) did not limit
Plaintiff’s ability to crouch (“bending the body downward and forward by bending
both the legs and spine,” SSR 85-15, 1985 WL 56857, at *7) at all (see Tr. 18,
72).

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Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 17 of 19

symptoms [we]re not entirely consistent with the medical evidence
and other evidence in the record for the reasons explained in th[e
ALJ’s] decision” (Tr. 19; see also Tr. 20 (“In sum, the . . . [RFC]
assessment is supported by [the reconsideration-level state agency
medical consultant’s] physical assessment, by clinical evidence
showing that [Plaintiff’s] physical capacities remained largely
intact, and by evidence showing that his lumbar symptoms were
treatable with epidural injections.”)).10
Lastly, Plaintiff maintains that the ALJ made no finding as to
the bending requirements of Plaintiff’s PRW as a tune-up mechanic.
(See Docket Entry 14 at 7.)

According to Plaintiff, “[b]y failing

to make th[at] finding[], the ALJ had no basis to make the
comparison of [Plaintiff]’s RFC with the demands of his [PRW] as
required by 20 C.F.R. § 404.1520(f) and SSR 82-62.”
14 at 7.)

(Docket Entry

That argument ignores the fact that the ALJ expressly

found that Plaintiff could perform his PRW as a tune-up mechanic as
generally performed.
opinion

that

(Tr. 21; see also Tr. 52 (reflecting VE’s

Plaintiff

remained

able

to

perform

his

PRW

as

generally performed but that she “[was] not sure as actually
performed”).)
Mechanic”

as

“[s]tooping”

Moreover, the DOT’s job description for “Tune-Up
provided
would

by

occur

the
only

VE

(see

Tr.

51)

“[o]ccasionally,”

reflects
see

that

DOT,

No.

10
Plaintiff did not contest the ALJ’s findings regarding Plaintiff’s
subjective symptoms. (See Docket Entries 11, 14.)

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Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 18 of 19

620.281-066, 1991 WL 685263, i.e., less often than the RFC’s
restriction to frequent stooping (see Tr. 18).11
In

light

of

the

foregoing

analysis,

Plaintiff’s

sole

assignment of error falls short.
III.

CONCLUSION

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
Judgement Reversing the Decision of the Commissioner of Social
Security (Docket Entry 10) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 12) be granted, and that
this action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 9, 2021

11
Plaintiff neither objected to the VE’s classification of his PRW working
on automobiles as DOT job number 620.281-066, “Tune-Up Mechanic,” at the hearing
(see Tr. 53-56), nor argued on judicial review that such categorization amounted
to error (see Docket Entries 11, 14). Plaintiff’s Reply does complain that the
VE “testified that[,] based on h[er] knowledge and the [DOT] description of tuneup mechanic, that occupation requires a worker to bend over the engine of a car
‘more than occasionally’ (Tr. 54-55). The VE did not specify whether frequent
or constant such bending is required ([i]d.).” (Docket Entry 14 at 6.) If the
VE had believed that the tune-up mechanic job required constant bending (i.e.,
more than the frequent bending which the ALJ effectively found Plaintiff could
do by finding that he could frequently stoop (understood as encompassing bending
and reaching toward the floor, see SSR 85-15, 1985 WL 56857, at *7)), the VE
would have testified that the job required more than frequent bending (not more
than occasional bending). Accordingly, the VE’s testimony on point (i.e., that
the tune-up mechanic job as generally performed requires more than occasional
bending) does not conflict with the ALJ’s finding that Plaintiff (who could
perform frequent bending, i.e., more than occasional bending) could perform the
tune-up mechanic job as generally performed.

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