Cercoply v. Commissioner of the Social Security Administration

Filing 26

ORDER: The Commissioner's decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and this case is REMANDED to the Commissioner for further administrative action. Signed by Magistrate Judge Thomas E Rogers, III on 9/27/2016. (gnan )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
NORMAN CERCOPLY,

)
)
Plaintiff,
)
)
-vs)
)
)
CAROLYN W. COLVIN,
)
Commissioner of Social Security;
)
)
Defendant.
)
__________________________________ )

Civil Action No.: 4:15-cv-0729-TER

ORDER

This is an action brought pursuant to Section 205(g) of the Social Security Act, as
amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the
Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB).
The only issues before the Court are whether the findings of fact are supported by substantial
evidence and whether proper legal standards have been applied. A telephone conference was held
on September 22, 2016.
I. RELEVANT BACKGROUND
A.

Procedural History
Plaintiff filed an application for DIB on February 26, 2008, alleging inability to work since

May 20, 2007. His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed
a request for a hearing. A hearing was held on September 3, 2009, at which time the Plaintiff and
a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued a partiallyfavorable decision on November 19, 2009, finding that Plaintiff was not disabled prior to
September 21, 2009. (Tr.18-23). Plaintiff filed a request for review of the ALJ’s decision, which

the Appeals Council denied on June 24, 2011, making the ALJ’s decision the Commissioner’s
final decision. (Tr. 1-4). Plaintiff filed an action in this court on August 18, 2011. The court
reversed the Commissioner’s decision and remanded the case in an order dated February 22, 2013.
See Cercoply v. Commissioner of Social Security, No. 4:11-cv-2186-TER (D.S.C. Feb. 22, 2013).
On April 15, 2013, the Appeals Council affirmed the decision that Plaintiff is disabled
commencing September 21, 2009, and remanded to the ALJ for “further proceedings consistent
with the order of the court.” (Tr. 463). The ALJ held a second hearing on November 21, 2013,
and issued a written decision on March 19, 2014, finding Plaintiff was not disabled for the period
of May 20, 2007, through September 20, 2009. (Tr. 402-409). The Appeals Council denied
Plaintiff’s request for review. (Tr. 384-386, 390-394). This appeal followed.
B.

Plaintiff’s Background and Medical History
1.

Introductory Facts

Plaintiff was born on September 21, 1954, and was 52 years old at the time of the alleged
onset. (Tr. 131, 418). Plaintiff completed his education through high school and has past relevant
work experience as a manager, subcontractor, construction superintendent, and carpenter. (Tr.
222, 418). Plaintiff alleges disability due to blindness in his right eye, additional visual problems
and depression. (Tr. 129-134, 153).
C.

The Administrative Process and the ALJ’s Decision
In the decision of March 19, 2014, the ALJ made the following findings of fact and

conclusions of law:
1.

The claimant last met the insured status requirements of the Social Security
Act through December 31, 2012.

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2.

The claimant did not engage in substantial gainful activity during the period
from his alleged onset date of May 20, 2007, through September 20, 2009
(20 CFR 404.1571 et seq.).

3.

During the relevant period, the claimant had the following severe
impairments: retinal detachment of the right eye and proliferative
vitreoretinopathy (20 CFR 404.1520(c)).

4.

During the relevant period, 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
(20 CFR 404.1520(d), 404.1525, and 404.1526).

5.

After careful consideration of the entire record, I find that during the
relevant period, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except that the claimant was
precluded from jobs requiring climbing ropes and ladders and he must avoid
moving machinery. He is unable to perform jobs requiring depth perception
or use of vision of the right side, is limited to occasional near visual acuity
and no working with crowds of people.

6.

During the relevant period, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on September 21, 1954, and was 52 years old, which
is defined as an individual closely approaching advanced age, on the alleged
date (20 CFR 404.1563).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Through the date last insured, considering the claimant’s age, education,
work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that the claimant
could have performed (20 CFR 404.1569, 404.1569(a)).

11.

The claimant was not under a disability, as defined in the Social Security
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Act, at any time from May 20, 2007, the alleged onset date through
September 20, 2009 (20 CFR 404.1520(g)).
(Tr. 402-409).
II. DISCUSSION
The Plaintiff argues that the ALJ erred in his decision, and that reversal and remand are
appropriate in this case. Specifically, Plaintiff raises the following issues in his brief, quoted
verbatim:

I.

The ALJ reversibly erred by refusing, under the guise of “interpretation,”
to comply with the order of the district court.

II.

Even had the ALJ not erroneously exceeded the scope of this Court’s
remand order, his determination that Mr. Cercoply can perform the newly
identified jobs cannot be deemed supported by substantial evidence, as it is
based upon an improper rejection of the evidence from Dr. Hecker as well
as other errors.

Pl. Brief 1.
The Commissioner argues that the ALJ's decision is supported by substantial evidence.
A.

LEGAL FRAMEWORK
1.

The Commissioner's Determination–of–Disability Process

The Act provides that disability benefits shall be available to those persons insured for
benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42
U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: 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 at least
12 consecutive months. 42 U.S.C. § 423(d)(1)(A).

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To facilitate a uniform and efficient processing of disability claims, regulations
promulgated under the Act have reduced the statutory definition of disability to a series of five
sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76
L.Ed.2d 66 (1983) (discussing considerations and noting “need for efficiency” in considering
disability claims). An examiner must consider the following: (1) whether the claimant is engaged
in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;1 (4) whether such impairment
prevents claimant from performing PRW;2 and (5) whether the impairment prevents him from
doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five
steps” of the Commissioner's disability analysis. If a decision regarding disability may be made
at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if
Commissioner can find claimant disabled or not disabled at a step, Commissioner makes

1

The Commissioner's regulations include an extensive list of impairments (“the Listings”
or “Listed impairments”) the Agency considers disabling without the need to assess whether
there are any jobs a claimant could do. The Agency considers the Listed impairments, found at
20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20
C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of
the Listed impairments for at least one year, he will be found disabled without further
assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant
must establish that his impairments match several specific criteria or be “at least equal in severity
and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530,
110 S.Ct. 885, 107 L.Ed.2d 967 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct.
2287, 96 L.Ed.2d 119 (1987) (noting the burden is on claimant to establish his impairment is
disabling at Step 3).
2

In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant's past relevant work to make a finding at the
fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20
C.F.R. § 404.1520(h).
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determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is
customarily performed in the economy or as the claimant actually performed the work. See 20
C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82–62 (1982). The claimant
bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. §
423(d) (5).
Once an individual has made a prima facie showing of disability by establishing the
inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence
that claimant can perform alternative work and that such work exists in the regional economy. To
satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the
existence of jobs available in the national economy that claimant can perform despite the existence
of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th
Cir.2002). If the Commissioner satisfies that burden, the claimant must then establish that he is
unable to perform other work. Hall v. Harris, 296 F.3d 287, 264–65 (4th Cir.1981); see generally
Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (regarding
burdens of proof).
2.

The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope
of that federal court review is narrowly-tailored to determine whether the findings of the
Commissioner are supported by substantial evidence and whether the Commissioner applied the
proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S.
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389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir.1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the
evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir.1971); see Pyles v. Bowen, 849 F.2d
846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.1986)). Rather,
the court must uphold the Commissioner's decision if it is supported by substantial evidence.
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir.2005). Thus, the court must carefully scrutinize the entire record to assure there is a
sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek,
438 F.2d at 1157–58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.1964). If there
is substantial evidence to support the decision of the Commissioner, that decision must be affirmed
“even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775
(4th Cir.1972).
B.

ANALYSIS
1.

The ALJ’s Compliance with District Court Order

Plaintiff first argues that the ALJ erred by going outside the scope of this court’s remand
order. In the first action before this court, Plaintiff argued that the ALJ erred in failing to resolve
a conflict between the testimony of the vocational expert (VE) and the Dictionary of Occupational
Titles (DOT). (Tr. 447). In the first action, the ALJ established the following RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b). He is unable to perform work requiring climbing ropes or
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ladders, and must avoid moving machinery. He is unable to perform jobs requiring
depth perception, use of vision on the right side, fine visual acuity and working
within crowds of people.
(Tr. 20-21). In response to the hypothetical posed to him with these same restrictions, the VE
identified three jobs Plaintiff could perform: machine tender, sorter and garment sorter. (Tr. 4748). The VE testified specifically that these jobs did not require fine visual acuity. (Tr. 48).
Counsel for Plaintiff submitted a post-hearing brief to the ALJ in which he “pointed out that the
DOT/SCO job descriptions for the jobs cited the the VE showed that ‘near acuity’ was required
either ‘frequently’ or ‘constantly.’” (Tr. 224-40). The ALJ did not address this argument in his
hearing decision and found, based on the VE’s testimony, that jobs existed in significant numbers
in the national economy that Plaintiff could have performed. (Tr. 23).3
On appeal to this court, Defendant conceded that a conflict existed with respect to two of
the jobs identified by the VE, machine tender and sorter, but not with respect to the garment sorter
position. (Tr. 453). Defendant argued that there was no conflict between the hypothetical relied
upon by the VE, identifying a worker “unable to perform jobs requiring . . . fine visual acuity,” and
the DOT’s requirement for garment sorter of “near vision, or clarity of vision at 20 inches or less.”
(Tr. 450). This court found that this argument amounted to post-hoc rationalization, which was
not within the ALJ’s decision, and, thus, remanded the case “for an explanation as to the conflict,
and/or finding by the ALJ as to whether the occupation of garment sorter is in conflict with the
testimony of the VE. If the ALJ finds there is a conflict, he should resolve the conflict or find that

3

This finding was made with respect to the period from May 20, 2007, the alleged onset
date, to September 20, 2009, the day before Plaintiff turned fifty-five and his age category
changed. (Tr. 23). Plaintiff was awarded benefits beginning September 21, 2009. (Tr. 24).
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the Plaintiff is unable to perform any jobs in the national economy.” (Tr. 454 (emphasis added)).
The Appeals Council then vacated the Commissioner’s final decision and remanded the
case for further proceedings consistent with this court’s order. (Tr. 461-465). The Appeals
Council instructed the ALJ to offer Plaintiff the opportunity for a hearing, take any further action
needed to complete the administrative record, and issue a new decision on the issue of disability.
(Tr. 464).
A second hearing was held on November 21, 2013. (Tr. 415-432). The ALJ asked the VE
to consider an individual who: (1) was 52 years old and had a 12th grade education; (2) could
perform light work but was unable to perform work climbing ropes or ladders; (3) had to avoid
moving machinery; (4) could not work with crowds of people; and (5) could not perform jobs
requiring depth perception, use of vision on the right side and fine visual acuity. (Tr. 420). The VE
asked the ALJ to repeat the visual limitations, and at that time the ALJ added that he was
restricting the individual to occasional fine visual acuity because Plaintiff’s doctor said that
Plaintiff had “significantly” less fine visual acuity than the average person. (Tr. 420-421). The VE
noted that the DOT describes fine visual acuity as near acuity, which was essentially things
involving reading and close work. (Tr. 421). Given this, the VE explained that the individual could
not perform the occupation of garment sorter because it required frequent (and not occasional) near
acuity. (Tr. 421-22).
Over Plaintiff’s counsel’s objection, the ALJ then questioned the VE on whether there were
other unskilled jobs that someone with Plaintiff’s vocational profile and RFC could perform. (Tr.
420-23). The VE testified that given these factors, the individual could perform the requirements
of ticket distributor (DOT 221.667-010; 3760 jobs/272,910 jobs); room service clerk (DOT
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324.577-010; 160 jobs/18,410 jobs); and garment bagger (DOT 920.687-018; 9850 jobs/666,860
jobs). (Tr. 423). At the end of the hearing, the ALJ agreed to hold the record open so Plaintiff
could submit additional vocational evidence from Benson Heckler, Ph.D, a vocational expert with
Rehabilitation Associates. (Tr. 431-32).4
Consistent with his hypothetical to the VE in the second hearing, the ALJ changed the RFC
in his decision and found that Plaintiff
had the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except that the claimant was precluded from jobs requiring climbing
ropes and ladders and he must avoid moving machinery. He is unable to perform
jobs requiring depth perception or use of vision of the right side, is limited to
occasional near visual acuity and no working with crowds of people.
(Tr. 405). Thus, the RFC changed from finding that Plaintiff was unable to perform jobs requiring
fine visual acuity, to finding that Plaintiff is limited to occasional near visual acuity. Nevertheless,
even under this amended RFC, the ALJ found, based upon the VE’s testimony, that Plaintiff would
not be able to perform the job of garment sorter as previously determined because, according to
the DOT, that job required frequent near accuity. (Tr. 407). However, because the VE was able
to identify other jobs in significant numbers in the national economy that Plaintiff could perform,
the ALJ found that Plaintiff was not disabled. (Tr. 407-08).
Plaintiff argues that the ALJ erred in changing Plaintiff’s RFC and eliciting additional
testimony from the VE regarding other jobs Plaintiff could perform once the VE testified that
Plaintiff could not perform the job of garment sorter. Plaintiff argues that this court’s order
remanding the case to the ALJ limited the scope of the ALJ’s duties to either (1) explaining and,

4

These newly identified jobs and Dr. Benson’s testimony are discussed below with
respect to Plaintiff’s second allegation of error.
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if possible, resolving the conflict between the VE’s testimony and the DOT regarding the garment
sorter job or (2) finding that the Plaintiff was unable to perform any jobs in the national economy.
Defendant argues that the ALJ complied with the court’s order, and that Plaintiff’s interpretation
of the order is inconsistent with the law, which requires that an individual be found disabled only
if he is unable to make an adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). Defendant
argues that the ALJ only clarified the RFC and that the clarification, if error, was harmless.
Defendant further argues that the VE at the 2009 hearing, by identifying three jobs, identified only
a sampling of jobs he believed could be performed by someone with the limitations set forth in the
hypothetical.
The Supreme Court has noted that a district court’s remand order in a social security case
“will often include detailed instruction concerning the scope of the remand, the evidence to be
adduced, and the legal or factual issues to be addressed.” Sullivan v. Hudson, 490 U.S. 877, 885
(1989). “Deviation from the court’s remand order in the subsequent administrative proceedings
is itself legal error, subject to reversal on further judicial review.” Id. at 885-86 (citing Hooper v.
Heckler, 752 F.2d 83, 88 (4th Cir. 1985); Mefford v. Gardner, 383 F.2d 748, 758–759 (6th Cir.
1967)). Courts within this circuit have held that an ALJ’s failure to remain within the scope of the
district court’s remand order constitutes error and requires a second (or third) remand. See, e.g.,
Myers v. Colvin, No. 4:14-cv-32, 2015 WL 3830972 (E.D.Va. June 18, 2015); Berry v. Astrue,
No. 3:05–1170, 2008 WL 927546, at *2–3 (S.D.W.Va. April 4, 2008).
The Myers court included a thorough discussion of the applicable law in finding that the
ALJ erred when he, upon remand from the district court, assigned a new RFC rather than

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addressing the errors found by the district court regarding his analysis of the plaintiff’s credibility5
and his failure to resolve a discrepancy between the VE and the DOT. Myers, 2015 WL 3830972
at *17. The court noted that the appropriate legal doctrine to consider is the mandate rule, which
“is merely a specific application of the law of the case doctrine, [which] in the absence of
exceptional circumstances, [ ] compels compliance on remand with the dictates of a superior court
and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Id. at
*16 (citing U.S. v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal quotations omitted). “Thus, upon
remand, the trial court is required to ‘implement both the letter and the spirit of the mandate, taking
into account the [District Court's] opinion and the circumstances it embraces.’” Id. (citing Bankers
Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3rd Cir.1985)). After noting that the
Fourth Circuit had not specifically addressed this issue6 and discussing case law both within and
outside the circuit, the court determined that “the appellate court need not have expressly decided
the issue for it to have binding force on the trial court; rather, the issue need only have been
‘necessarily implicated’ in the appellate court's decision.” Id. at *18. For example, in Berry v.
Astrue, No. 3:05–1170, 2008 WL 927546 (S.D.W.Va. April 4, 2008), after the district court
remanded for the purpose of reconsidering the claimant's mental impairments, the ALJ also
reevaluated the claimant's physical impairments. Id. at *4. The initial ALJ had previously

5

The court recognized that a change in the credibility analysis could reasonably result in a
change to the RFC. Myers, 2015 WL 3830972 at *17. However, the ALJ did not change his
credibility analysis at all and, thus, the court found there was no basis for him to reconsider the
RFC. Id.
6

The court did note that the Fourth Circuit has held that an issue “expressly” decided by
the district court may not be relitigated by the ALJ. Id. at *18 (citing Hooper v. Heckler, 752
F.3d 83, 84-85 (4th Cir. 1985)).
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determined that the claimant could perform only sedentary work, while the ALJ after remand
determined that the claimant could perform light work. Id. The court held that the ALJ was
foreclosed from reconsidering the claimant’s physical RFC when the remand order directed him
to “obtain additional evidence about, and to reevaluate, claimant's mental impairment(s),” and
“[t]here was no direction given to the Commissioner relative to his physical impairments or
residual functional capacity.” Id. at *2-3. The court in Myers stated that “[t]he very sequential
nature of the ALJ's determination” lends itself to the conclusion that a finding made in one step
is necessarily implicated in any error identified in any subsequent step because the findings in each
step build off the analysis of those before. Id. at *19.
While the parties here focus on the ALJ’s decision to seek additional testimony from the
VE regarding other jobs Plaintiff could perform, the undersigned is troubled with the other issue
raised by Plaintiff, that is, the fact that the ALJ changed Plaintiff’s RFC, potentially to his
detriment, by providing less restrictions than that initial, unchallenged RFC. Here, as in Myers,
the only error found upon Plaintiff’s first appeal to this court was the ALJ’s failure to address the
discrepancy between the testimony of the VE and the DOT. In fact, this was the only error raised
by Plaintiff in his appeal. The undersigned remanded the case solely for the purpose of addressing
that discrepancy. However, the ALJ went outside the scope of that remand by changing Plaintiff’s
RFC.
As set forth above, the original RFC included the limitation that Plaintiff was “unable to
perform jobs requiring . . . fine visual acuity.” (Tr. 20-21). The new RFC provides that Plaintiff
“is limited to occasional near visual acuity.” (Tr. 405). Defendant characterizes the change as
merely a clarification of the visual limitations as requested by the VE. See Def. Resp. p. 6.
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However, while the ALJ did change the word from “fine” to “near” based upon the VE’s request
for clarification and his testimony that the DOT uses the word “near” rather than “fine,” the ALJ
reduced the restriction by adding “occasionally” on his own. (Tr.420-21).7 This addition is not
simply a clarification, but makes the new RFC less restrictive than the original RFC, which was
outside of the purpose for the remand.
Defendant argues that if the change in the RFC was error, it was harmless and does not
require remand. See Ngarurih v. Ashcroft, 371 F.3d 182, 190, n.8 (4th Cir. 2004) (reversal of
administrative ruling is unnecessary if the error was harmless). The additional jobs identified by
the VE, which Plaintiff argues itself was error, all listed near visual acuity as “not present.” See
DOT, Work-Ticket Distributor, 1991 WL 672062; Room-Service Clerk, 1991 WL 672789; and
Bagger, 1991 WL 687965. Thus, Defendant argues, the change in the RFC was harmless because
the same jobs would have been identified even if the ALJ had kept the “unable to perform jobs
requiring . . . fine visual acuity” language. However, Defendant’s harmlessness argument includes
an assumption about how the VE will testify. “Information contained in the DOT is not conclusive
evidence of the existence of jobs in the national economy; however, it can be used to establish a
rebuttable presumption.” English v. Shalala, 10 F.3d 1080, 1084–85 (4th Cir.1993) (citing
DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir.1983)). In fact, Plaintiff’s expert, Dr. Heckler,
testified that none of these jobs could be performed by a person with the original RFC identified
by the ALJ. (Tr. 608-28). Thus, the court cannot conclude that the change in the RFC, which was
outside the scope of the remand order, was harmless.

7

This testimony reveals that the ALJ’s use of the word “fine” is consistent with the
DOT’s use of the word “near.” (Tr. 421).
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Plaintiff also argues that the ALJ’s decision to elicit additional testimony from the VE
regarding other jobs Plaintiff could perform fell outside the scope of the remand order and was,
thus, error. The ALJ addressed his decision to do so in his hearing decision:
The claimant argues that according to the District Court Order, if I find that he
cannot perform the garment sorter job, I must find that he is disabled. I disagree.
I interpret the Court’s language regarding ‘resolving the conflict’ to mean that I
should determine if the garment sorter job could be performed by someone with the
claimant’s residual functional capacity, or if not, if there are other jobs which the
claimant could perform. I come to this conclusion because, under the regulations,
the Administrative Law Judge is required to find a claimant not disabled if he can
make an adjustment to other work 20 C.F.R. [§] 404.1520(a)(4)(v). If the Court
Order were interpreted to mean that the claimant should be found disabled if he
could not perform the garment sorter job even if there were other jobs he could
perform, it would be inconsistent with the regulations.
(Tr. 403). Thus, Defendant argues that, by finding Plaintiff could not perform the occupation of
garment sorter and then asking the VE for other jobs, the ALJ did not ignore the portion of the
remand order which required him to “find that the Plaintiff is unable to perform any jobs in the
national economy.” (Tr. 454). Rather, he simply did not reach that step because he “resolve[d]
the conflict” by finding other jobs. (Tr. 454). While the undersigned does not necessarily agree
with the ALJ’s characterization that in reaching the “other jobs” issue, he was simply resolving
the conflict, nevertheless, the ALJ did not go outside the spirit of the remand order when he asked
the VE for additional testimony as to whether there were other jobs in the national economy that
Plaintiff could perform. Although it could have been worded more carefully, the court’s direction
that the ALJ should, if he was unable to resolve the conflict, “find that the Plaintiff is unable to
perform any jobs in the national economy” contemplates that Plaintiff is “unable to perform any
jobs in the national economy.” This, in turn, contemplates that the ALJ will question the VE about
whether there were any other jobs Plaintiff could perform because the ALJ cannot come to that
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conclusion on his own. See, e.g., Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983). As noted
by the ALJ in his decision, “if the Court Order were interpreted to mean that the claimant should
be found disabled if he could not perform the garment sorter job even if there were other jobs he
could perform, it would be inconsistent with the regulations.” (Tr. 403). Thus, the ALJ did not err
by soliciting additional evidence from the VE, although the VE testimony presented in the second
hearing was not accurate because it was based upon the amended RFC, which, as discussed above,
was error.
“If the reviewing court decides that the ALJ's decision is not supported by substantial
evidence, it may affirm, modify, or reverse the ALJ's ruling ‘with or without remanding the cause
for a rehearing.’ ” Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013) (citing 42 U.S.C. §
405(g)). It is appropriate to reverse without remanding for further proceedings if “the record does
not contain substantial evidence to support a decision denying coverage under the correct legal
standard and ... reopening the record for more evidence would serve no purpose.” Breeden v.
Weinberger, 493 F.2d 1002, 1012 (4th Cir.1974). Here, reopening the record would serve the
purpose of allowing the VE to provide the testimony that was originally anticipated from the first
remand order, that is, whether there are other jobs in the national economy that can be performed
by someone with the original RFC. Indeed, “this circuit requires remand when an ALJ has relied
on improper VE testimony.” Walls v. Barnhart, 296 F.3d 287, 291 (citing English v. Shalala, 10
F.3d 1080, 1084-85 (4th Cir. 1993)). Therefore, remand for further proceedings rather than an
award of benefits is proper here.

In sum, the ALJ erred by going outside the scope of original

remand order when he amended Plaintiff’s RFC, but he did not err by eliciting additional
testimony from the VE regarding whether there are other jobs in the national economy which
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Plaintiff can perform. Thus, upon this second remand, the ALJ shall present to the VE the
hypothetical based on the RFC originally found in the first hearing decision and elicit from the VE
whether there are jobs available in the national economy that Plaintiff could perform.8
III. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner’s
decision in the instant case. The court cannot, however, conduct a proper review based on the
record presented. Pursuant to the power of the Court to enter a judgment affirming, modifying, or
reversing the Commissioner’s decision with remand in social security actions under sentence four
of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and
1338(c)(3), the Commissioner’s decision is reversed pursuant to sentence four of 42 U.S.C. §
405(g) and this case is REMANDED to the Commissioner for further administrative action as set
forth above.

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
September 27, 2016
Florence, South Carolina

8

During the telephone conference on September 22, 2016, the parties were invited to
submit authority as to whether it is appropriate to award benefits or to remand when the
“sampling” of jobs identified by a VE at Step 5 turns out to be inconsistent with the RFC
established by the ALJ. Neither party submitted a supplemental brief.
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