MARTIN v. SAUL
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,
Acting Commissioner of Social
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
(Docket Entry 1.)
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);
For the reasons that follow, the Court
should enter judgment for Defendant.
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
Plaintiff applied for DIB (Tr. 154-60), alleging a disability
onset date of July 15, 2007 (see Tr. 154), later amended to
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.
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
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
[Plaintiff] last met the insured status requirements of
the . . . [Act] on September 30, 2012.
[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.
Through the date last insured, [Plaintiff] had the
following severe impairments: lumbar degenerative disc
disease; upper airway resistance syndrome; and obesity.
. . .
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.
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 2 of 19
. . .
. . . [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.
. . .
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.
. . .
[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
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
. . .
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 3 of 19
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).
[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).
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
993 F.2d at 34 (internal 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
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 4 of 19
[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 [(‘SSA’)]
. . .
. . .
detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
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
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 5 of 19
addition to [the claimant’s] medical condition.”
determine whether a claimant is disabled.” Id. (internal citations
This sequential evaluation process (“SEP”) has up to five
“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
Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir.
A finding adverse to the claimant at any of several points
in the SEP forecloses an award and ends the inquiry.
“[t]he first step determines whether the claimant is engaged in
benefits are denied. The second step determines if the claimant is
If not, benefits are denied.”
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
“Through the fourth step, the burden of production and proof is on the
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
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
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
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
“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.
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
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 7 of 19
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.”
(Docket Entry 11 at 3 (bold
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
“‘[s]itting, standing, walking, lifting, carrying, pushing, and
pulling,’” with “‘[e]ach function
. . .
(Docket Entry 11 at 3-4 (quoting SSR 96-8p, 1996 WL 374184, at
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
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.”).
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 8 of 19
(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.”
(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.
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).
The ALJ then
must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
See 20 C.F.R. § 404.1567.
Any non-exertional limitations
may further restrict a claimant’s ability to perform jobs within an
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).
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
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
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
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,
meaningful review,’” id. (internal brackets and ellipsis omitted)
(quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
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”
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
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).
[Plaintiff] can also do sedentary and light work.”
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
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
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
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.,
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.
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”)
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.
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.”
(Tr. 52 (emphasis
limitation to six hours of sitting, standing, and walking in the
hypothetical nonetheless provides the Court with further evidence
of the sitting, standing, and walking limitations found by the ALJ.
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 ALJ’s crediting of
clarification of the sitting, standing, and walking limitations
found by the ALJ.
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
Plaintiff’s subjective complaints of disabling back pain, but found
records and history.
(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
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,
Plaintiff did not challenge the ALJ’s evaluation
subjective symptom reporting. (See Docket Entries 11, 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
Lastly, Plaintiff maintains that the ALJ made no finding as to
the sitting requirements of Plaintiff’s PRW as a tractor-trailer
(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)
(Docket Entry 14 at 7.)
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
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 15 of 19
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
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
“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).
attempt to differentiate between “stooping” and “bending” does not
aid his cause.
(See Docket Entry 11 at 10-11.)
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).
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 16 of 19
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.)
The ALJ also
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
Although Plaintiff deems the RFC determination “inconsistent with
restricted ability . . . to bend over to perform auto mechanic work
due to pain” (Docket Entry 11
at 7 (citing Tr. 47-48)), as
concerning the intensity, persistence and limiting effects of [his]
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,
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.)
That argument ignores the fact that the ALJ expressly
found that Plaintiff could perform his PRW as a tune-up mechanic as
(Tr. 21; see also Tr. 52 (reflecting VE’s
generally performed but that she “[was] not sure as actually
Moreover, the DOT’s job description for “Tune-Up
Plaintiff did not contest the ALJ’s findings regarding Plaintiff’s
subjective symptoms. (See Docket Entries 11, 14.)
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
assignment of error falls short.
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
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.
Case 1:20-cv-00548-NCT-LPA Document 15 Filed 09/09/21 Page 19 of 19
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