Rozzelle v. Berryhill
ORDER denying 11 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. The Clerk of Court is directed to close this case. Signed by District Judge Robert J. Conrad, Jr on 3/7/2018. (eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
LERONE D. ROZZELLE,
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security Administration,
THIS MATTER comes before the Court on Lerone D. Rozzelle’s (“Plaintiff’s”)
Motion for Summary Judgment, (Doc. No. 11), and Memorandum in Support, (Doc.
No. 12), Nancy A. Berryhill’s (“Defendant’s or Commissioner’s”) Motion for Summary
Judgment, (Doc. No. 13), and Memorandum in Support, (Doc. No. 14).
Plaintiff seeks judicial review of Defendant’s denial of his social security claim.
(Doc. No. 1). On October 7, 2013, Plaintiff filed his application for supplemental
security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 405 et
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill
has been substituted for Acting Commissioner Carolyn W. Colvin as the defendant in
seq. (Doc. Nos. 10 to 10-1: Administrative Record (“Tr.”) at 249–51). Plaintiff’s
application was denied initially and upon consideration. (Tr. 22, 142-145, 173-176).
On October 8, 2015, a hearing was held in front an Administrative Law Judge
(“ALJ”). (Tr. 40-77). On November 17, 2015, the ALJ issued a decision finding
Plaintiff not disabled. (Tr. 19–39). The Appeals Council denied review of the ALJ’s
decision on January 12, 2017, making the ALJ’s opinion the final decision of
Defendant. (Tr. 1–6). Plaintiff now appeals the ALJ’s decision, requesting this Court
to issue a remand pursuant to 42 U.S.C. §405(g).
The question before the ALJ was whether the claimant is disabled under
section 1614(a)(3)(A) of the Social Security Act. (Tr. 22). To establish entitlement to
benefits, Plaintiff has the burden of proving that he was disabled within the meaning
of the Social Security Act. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The ALJ
ultimately concluded that Plaintiff was not under a disability at any point in the
relevant timeframe. (Tr. 33–34).
The Social Security Administration has established a five-step sequential
evaluation process for determining if a person is disabled. 20 C.F.R. § 404.1520(a).
The five steps are:
(1) whether claimant is engaged in substantial gainful activity—if yes,
(2) whether claimant has a severe medically determinable physical or
mental impairment, or combination of impairments that meet the
duration requirement in § 404.1509—if no, not disabled;
(3) whether claimant has an impairment or combination of impairments
that meets or medically equals one of the listings in appendix 1 and
meets the duration requirement—if yes, disabled;
(4) whether claimant has the residual functional capacity (“RFC”) to
perform his or her past relevant work—if yes, not disabled; and
(5) whether considering claimant's RFC, age, education, and work
experience he or she can make an adjustment to other work—if yes,
See 20 C.F.R. § 404.1520(a)(4)(i–v). In this case, the ALJ determined at the fifth step
that Plaintiff was not disabled. (Tr. at 33–34).
To begin with, the ALJ concluded that Plaintiff had not engaged in any
substantial gainful activity since October 7, 2013, Plaintiff’s application date. (Tr.
At the second step, the ALJ found that Plaintiff had the following severe
impairments: “learning disability; hypertension; osteoarthritis; and history of
cervical fracture.” (Id.). At the third step, the ALJ determined that Plaintiff did not
have an “impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 C.F.R. 404, Subpart P, Appendix
1.” (Tr. 25).
Next, the ALJ assessed Plaintiff's RFC and found that he retained the capacity
sedentary work as defined in 20 CFR 416.967(a) except he can
never climb ladders, ropes, or scaffolds, frequently climb ramps
and stairs; frequently stoop, occasionally crouch, occasionally
kneel, and occasionally crawl. He can engage in occasional
interaction with the public and frequent interaction with coworkers. He is limited to jobs with no exposure to unprotected
heights or dangerous moving machinery. He is limited to
performing simple, routine, repetitive tasks that are not at a
production rate pace, and that involve only occasional reading and
(Tr. 28). In making his finding, the ALJ specifically stated that he “considered all
symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence.” (Id.). The ALJ
further opined that he “considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and 416.927 and SSRs [Social Security Rulings]
96-2p, 96-5p, 96-6p and 06-3p.” (Id.).
At the fourth step, the ALJ found that Plaintiff could not perform his past
relevant work. (Tr. 32). Finally, at the fifth and final step, the ALJ concluded that,
after “[c]onsidering [Plaintiff's] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.” (Tr. 33). Therefore, the ALJ determined that
Plaintiff was not disabled. (Tr. 34).
II. STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's
review of a final decision of the Commissioner to: (1) whether substantial evidence
supports the Commissioner's decision, Richardson v. Perales, 402 U.S. 389, 390, 401
(1971); and (2) whether the Commissioner applied the correct legal standards, Hays
v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Hunter v. Sullivan, 993 F.2d
31, 34 (4th Cir. 1992) (per curiam). The District Court does not review a final decision
of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986);
King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v. Richardson, 483 F.2d
773, 775 (4th Cir. 1972). As the Social Security Act provides, “[t]he findings of the
[Commissioner] as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). In Smith v. Heckler, the Fourth Circuit noted that
“substantial evidence” has been defined as being “more than a scintilla and do[ing]
more than creat[ing] a suspicion of the existence of a fact to be established. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401);
see also Seacrist v. Weinberger, 538 F.2d 1054, 1056–57 (4th Cir. 1976) (“We note
that it is the responsibility of the [Commissioner] and not the courts to reconcile
inconsistencies in the medical evidence . . . .”).
The Fourth Circuit has long emphasized that it is not for a reviewing court to
weigh the evidence again, nor to substitute its judgment for that of the Commissioner,
assuming the Commissioner's final decision is supported by substantial evidence.
Hays, 907 F.2d at 1456; see also Smith v. Schweiker, 795 F.2d at 345; Blalock, 483
F.2d at 775. Indeed, this is true even if the reviewing court disagrees with the
outcome—so long as there is “substantial evidence” in the record to support the final
decision below. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
Plaintiff asserts that the ALJ’s decision contains two broad errors. Plaintiff
argues that the ALJ failed to: (1) give a full function-by-function analysis of the
nonexertional mental functions associated with Plaintiff’s mental impairments; and
(2) obtain an explanation for apparent conflicts between the VE’s testimony and the
Dictionary of Occupational Titles. (Doc. No. 12 at 5).
A. The ALJ Properly Analyzed Plaintiff’s Mental RFC.
Plaintiff first claims that the ALJ failed to explain Plaintiff’s ability to stay on
task in light of his moderate limitation in concentration, persistence or pace (“CPP”).
(Doc. No. 12 at 7). This failure, Plaintiff argues, violates the rule set out in Mascio v.
Colvin, where the Fourth Circuit found that “the ability to perform simple tasks
differs from the ability to stay on task.” 780 F.3d 632, 638 (4th Cir. 2015). Only the
ability to stay on task would account for a moderate limitation in CPP. Id.
Plaintiff’s argument is not persuasive. Plaintiff focuses solely on the RFC’s
limitation of simple, routine, repetitive tasks and completely ignores the limitation of
“not at a production rate pace.” (Tr. 28). This latter limitation addresses Plaintiff’s
ability to stay on task, even in light of his moderate limitation in CPP. See Sizemore
v. Berryhill, 878 F.3d 72 (4th Cir. 2017); Jarek v. Colvin, No. 3:14CV620-FDW-DSC,
2015 WL 10097516, at *5 (W.D.N.C. Sept. 4, 2015), report and recommendation
adopted, No. 314CV00620FDWDSC, 2016 WL 626566 (W.D.N.C. Feb. 16, 2016), aff'd,
672 F. App'x 332 (4th Cir. 2017); Michaels v. Colvin, No. 3:15CV388-RJC-DSC, 2016
WL 8710975, at *7 (W.D.N.C. Mar. 25, 2016), report and recommendation adopted,
No. 315CV00388RJCDSC, 2016 WL 5478014 (W.D.N.C. Sept. 26, 2016), aff'd sub
nom. Michaels v. Berryhill, 697 F. App'x 223 (4th Cir. 2017) (“Consistent with Mascio,
the ALJ limited the RFC not only to simple routine repetitive tasks but also to “work
in a nonproduction pace rates....”).
Next, Plaintiff argues that the ALJ failed to fully account for Plaintiff’s
moderate limitation in social functioning in the RFC analysis. (Doc. No. 12 at 9). In
Plaintiff’s RFC, the ALJ limited Plaintiff to engaging in “in occasional interaction
with the public and frequent interaction with co-workers.” (Tr. 28). Plaintiff states
that the ALJ should have made a determination as to how Plaintiff would accept
instructions and criticism from supervisors. (Doc. No. 12 at 10).
The Court finds no gap in the ALJ’s reasoning where no question ever existed
regarding Plaintiff’s interaction with supervisors or his respect with authority
figures. In fact, the ALJ stated that his ultimate RFC finding “takes into account the
mental difficulties alleged by the claimant.” (Tr. 31). In his function report, Plaintiff
was asked if he gets along with authority figures. (Tr. 381). Plaintiff answered,
“Alright I guess.” (Id.). Plaintiff also stated in his report that he was never fired due
to problems getting along with other people. (Id.). At his hearing, Plaintiff repeated
this fact when he stated that he was fired from his previous job not because he failed
to work well with others, but because he was consistently late. (Tr. 59–60). The ALJ
found no evidence in the record that Plaintiff would have any social function problems
with supervisors. In his Step Three analysis, when the ALJ concluded that Plaintiff
had a moderate limitation in social functioning, the ALJ found that:
[i]n social functioning, the claimant has no more than moderate
difficulties. The education records documented behavioral difficulties in
the classroom when the claimant was quite young, but this improved
over the course of a few years. During the period at issue, the claimant
reported engaging in social activity, but not all the time. He denied
needing reminders to go out or someone to accompany him, and denied
difficulty getting along with others. He denied being fired or laid off due
to problems getting along with others. The evidence does not support
marked limitations in this area.
(Tr. 27) (citations omitted). Unlike in Mascio, there is no conflicting evidence in the
record to trouble the Court about a missing limitation in Plaintiff’s interaction with
supervisors. Mascio, 780 F.3d at 637.
B. There Exist No Apparent Conflicts between the DOT and the VE’s
Plaintiff also argues that the ALJ erred by failing to identify and reconcile
apparent conflicts between the Dictionary of Occupational Titles (“DOT”) and the
Vocational Expert’s (“VE”) testimony. (Doc. No. 12 at 11).
In Pearson v. Colvin, the Fourth Circuit clarified that the ALJ has two duties
when it comes to assessing VE testimony:
First, the ALJ must ‘[a]sk the [vocational expert] ... if the evidence he or
she has provided conflicts with information provided in the [Dictionary]’;
and second, ‘[i]f the [vocational expert]'s ... evidence appears to conflict
with the [Dictionary ],’ the ALJ must “obtain a reasonable explanation
for the apparent conflict.’ Notably, this second requirement is so
independent of the first that it does not rest on the vocational expert's
identification of a conflict.
810 F.3d 204, 208 (4th Cir. 2015) (quoting SSR 00–4p). The Fourth Circuit has
interpreted this second duty to include an independent investigation by the ALJ of
any apparent conflicts. Id. at 209. This “apparent” conflict standard requires the
ALJ to identify where the VE's “testimony seems to, but does not necessarily, conflict
with the [DOT].” Id.
To begin with, Plaintiff argues that the VE’s testimony conflicts not only with
the DOT, but with O*Net (Occupational Information Network) as well. Plaintiff cites
no authority to support the proposition that the ALJ must discuss apparent conflicts
between the VE testimony and O*Net. In fact, it is the view of some courts that no
such duty exists. Spurlock v. Berryhill, No. 1:17CV411, 2018 U.S. Dist. LEXIS 20777,
at *21–22 (M.D.N.C. Feb. 8, 2018) (citing Malfer v. Colvin, Civ. No. 12-169J, 2013
U.S. Dist. LEXIS 136296, 2013 WL 5375775, at *5 (W.D. Pa. Sept. 24, 2013)
(unpublished); Ryan v. Astrue, 650 F. Supp. 2d 207, 218 (N.D.N.Y. 2009; Willis v.
Astrue, Civ. No. C08-1198-RSM, 2009 U.S. Dist. LEXIS 134941, 2009 WL 1120027 at
*3 (W.D. Wash. Apr. 24, 2009) (unpublished)). SSR 00-4p only requires the ALJ to
identify and resolve apparent conflicts between the VE's testimony and the DOT, not
other administrative materials. (Id.) (citing Walker v. Berryhill, No. CV 16-01040KES, 2017 U.S. Dist. LEXIS 42524, 2017 WL 1097171, at *3 (C.D. Cal. Mar. 23, 2017)
(unpublished); SSR 00-4p, at *4-5, 2000 WL 1898704, at *2). In the absence of
Plaintiff supporting his argument, Court does not believe that the ALJ has an
affirmative duty to seek out and resolve apparent conflicts between the VE’s
testimony and O*Net when the VE did not rely on O*Net for their conclusions. See
Nguyen v. Colvin, No. SACV 13-01338-DFM, 2014 WL 2207058, at *3 (C.D. Cal. May
28, 2014) (unpublished) (“[I]t is immaterial whether Plaintiff's RFC is compatible
with the requirements of her past relevant work as determined by O*NET because
the VE did not consult that source. Rather, the VE relied upon the DOT….”).
Turning to the VE’s testimony, it was suggested that, given Plaintiff’s RFC, he
could perform the jobs of dowel inspector, (DOT number 669.687-014); toy stuffer,
(DOT number 731.685-014); and stem mounter, (DOT number 725.684-018). (Tr. 6970). Plaintiff argues that each of these jobs conflict with the limitation of nonproduction pace. (Doc. No. 12 at 13–15). The Court disagrees.
To begin with, the Court has previously found the role of dowel inspector does
not apparently conflict with non-production pace limitations.
In Martinez v.
Berryhill, the plaintiff argued that a conflict existed because the role of dowel
inspector involved the production process of dowels. No. 3:17-CV-186, 2018 WL
709971, at *4 (W.D.N.C. Feb. 5, 2018). However, the Court did not find Plaintiff’s
argument persuasive. The conflict proposed by the plaintiff “implie[d] that being
involved with the production of any good in any way implies a production rate or pace.
Nothing in the DOT's description for dowel inspector … has anything to do with rate
or pace, which is what the limitation in question was designed to restrict.” Id.
The Court turns next to the jobs of toy stuffer and stem mounter. According to
the DOT, a toy stuffer:
[t]ends machine that blows filler into stuffed-toy shells: Inserts precut
supporting wire into shell. Places shell opening over stuffing machine
nozzle. Depresses pedal to blow cotton or chopped foam rubber filler into
shell to impart shape to toy. Places stuffed toy in tote box. Records
production. May stuff toys by hand.
STUFFER, DICOT 731.685-014. A stem mounter “[f]astens tungsten wire (filament)
to glass stem to form mount for electric light bulb: Loops wire over hooks on glass
stem held in revolving table and clinches hooks in place, using pliers. Cements ends
to lead wires, using brush and carbon cement.” STEM MOUNTER, DICOT 725.684018. Like the Court found in Martinez, the jobs suggested for Plaintiff do not hint at
what pace Plaintiff would be expected to work. Plaintiff would be involved in the
production of products, but a conflict with the RFC would require a suggestion that
Plaintiff would work as a fast pace, such as on an assembly line or conveyer belt. See
Martinez, 2018 WL 709971, at *4 (finding a “tenuous” conflict between an RFC
limiting non-production pace and the job of a lens inserter, which the DOT stated
required placing materials on a conveyer belt); Lorch v. Berryhill, No. 3:16-cv-00076RJC, 2017 WL 1234203, at * (W.D.N.C. Mar. 31, 2017) (finding a conflict in the job of
small-parts assembler when the DOT described the role as working "on assembly line
to mass produce small products.”).
Nor is the Court convinced by Plaintiff’s argument that the proposed jobs
conflict with the RFC’s limitation to sedentary work. (Doc. No. 12 at 14). All three
entries in the DOT clearly label the jobs of dowel inspector, toy stuffer, and stem
mounter as “sedentary work.” DOWEL INSPECTOR, DICOT 669.687-014; STEM
MOUNTER, DICOT 725.684-018; STUFFER, DICOT 731.685-014.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff's Motion for Summary Judgment, (Doc. No. 11), is DENIED;
is GRANTED; and
3. The Clerk of Court is directed to close this case.
Signed: March 7, 2018
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