Couch v. Commissioner of the Social Security Administration
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION for 18 Report and Recommendation. The court adopts the Report, ECF No. 18, as modified herein and affirms the Commissioners decision. Signed by Honorable Sherri A Lydon on 1/28/25. (swel, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Natasha B. C.,1
Plaintiff,
vs.
Michelle King, Acting Commissioner of
Social Security Administration,2
Defendant.
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Case No.: 4:23-cv-5473-SAL
OPINION AND ORDER
This matter is before the court for review of the December 3, 2024 Report and
Recommendation of United States Magistrate Judge Thomas E. Rogers, III (the “Report”), made
in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (D.S.C.). [ECF No. 18.] In the
Report, the magistrate judge recommends the Commissioner’s final decision denying Plaintiff’s
claim for Supplemental Security Income be affirmed. Id. Plaintiff filed timely objections to the
Report. [ECF No. 19.] Defendant filed a timely reply to Plaintiff’s objections. [ECF No. 23.]
Plaintiff filed a timely sur reply to the Commissioner’s reply. [ECF No. 25.] For the reasons
outlined below, the court adopts the Report as modified herein and affirms the Commissioner’s
final decision.
STANDARD OF REVIEW
The scope of federal court review under 42 U.S.C. § 405(g) 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.
1
The Committee on Court Administration and Case Management of the Judicial Conference of
the United States has recommended that, due to significant privacy concerns in social security
cases, federal courts should refer to claimants only by their first names and last initials.
2
Michelle King was named as Acting Commissioner on January 20, 2025. Pursuant to Fed. R.
See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d 287, 290
(4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). “Under the
substantial-evidence standard, a court looks to an existing administrative record and asks
whether it contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.”
Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). “Substantial evidence” is “more than a mere scintilla,” and means only “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at
103 (quoting Consolidated Edison, 305 U.S. at 229).
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
“even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775
(4th Cir. 1972).
REVIEW OF A MAGISTRATE JUDGE’S REPORT
The magistrate judge makes only a recommendation to the court. The recommendation
carries no presumptive weight, and the responsibility to make a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making a
de novo determination of those portions of the Report to which specific objections are made, and
the court may accept, reject, or modify, in whole or in part, the recommendation of the
magistrate judge, or recommit the matter to the magistrate judge with instructions. See 28 U.S.C.
§ 636(b)(1). Without specific objections to portions of the Report, this court need not explain its
reasons for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
Civ. P. 25(d), she is substituted as a party to this action.
2
1983). It must “only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Diamond v. Colonial Life & Acc. Ins., 416 F.3d 310, 316 (4th Cir.
2005) (citing Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
The Report sets forth the administrative proceedings and applicable law, which the court
incorporates herein without a full recitation. [ECF No. 18.] Briefly, following a hearing, the ALJ
found Plaintiff had severe impairments of spine disorders, respiratory disorders, obesity, Adie’s
pupil syndrome, borderline intellectual function, and affective disorder and anxiety disorder. See
id. at 2. The ALJ concluded Plaintiff had a residual functional capacity to perform sedentary
work with additional limitations. Id. at 3 (detailing exertional, postural, and other limitations).
As a result, Plaintiff was unable to perform any of her past relevant work, but, considering her
age, education, and work experience, there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform. Id. at 3. Thus, the ALJ concluded Plaintiff had not
been under a disability since the date of her application in August 2020.
Plaintiff objects to the magistrate judge’s findings that the Acting Commissioner met her
burden of showing that there were a significant number of jobs in the national economy that
Plaintiff could perform. Given the specificity of Plaintiff’s objections, the court reviews them de
novo.
Plaintiff’s arguments are essentially twofold: the number of jobs testified to by the
vocational expert (“VE”) was inaccurate, as significantly fewer jobs were reflected in job
number data from Job Browser Pro/SkillTRAN (“Job Brower Pro”); and the Commissioner has
failed to meet her burden to show a significant number of jobs existed for an individual with
Plaintiff’s residual functional capacity (“RFC”). See generally ECF No. 19.
3
The court considers the procedural history noteworthy. During the hearing, the VE
testified that an individual of Plaintiff’s vocational profile with the described RFC could perform
jobs as touch up screeners, document preparers, and ampoule sealers. Tr. at 62–63. He reported
that there are 12,000 positions as touch up screeners, 90,000 positions as document preparers,
and 25,000 positions as ampoule sealers in the national economy. Id. A review of the hearing
transcript reveals that neither the administrative law judge (“ALJ”) nor Plaintiff’s counsel
questioned the source from which the VE derived the job numbers provided. See Tr. at 59–65.
The ALJ subsequently issued a decision relying on the VE’s testimony regarding the number of
available jobs in the representative occupations to conclude Plaintiff was “capable of making a
successful adjustment to other work that exists in significant numbers in the national economy”
and thus was not disabled. Tr. at 34. Following the ALJ’s decision, Plaintiff’s counsel submitted
to the Appeals Council a Job Browser Pro report that estimated the existence of 1,072 touch up
screener positions, 15,661 document preparer positions, and 646 ampoule sealer positions in the
national economy. Tr. 385–93.
Plaintiff presented the arguments identified above in her brief, but also argued that an
apparent conflict existed between the RFC assessment and the description of the job of document
preparer in the Dictionary of Occupational Titles (“DOT”). The Commissioner conceded the
apparent conflict. Therefore, the magistrate judge excluded the number of document preparer
positions identified in evaluating whether the ALJ erred at step five. [ECF No. 14 at 18.]
The court must now assess whether the two remaining jobs—touch up screener and
ampoule sealer—existed in significant enough numbers to support the ALJ’s step-five finding.
At step five, the ALJ evaluates the RFC assessment, along with the claimant’s age, education,
and work experience to determine whether an adjustment to other work is possible. 20 C.F.R. §
416.920(a)(4)(v). “[T]he Commissioner bears the burden to prove that the claimant is able to
4
perform alternative work.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987)). ALJs rely on VEs to determine whether claimants can
transfer their skills to other jobs and to identify specific occupations that match their
qualifications. SSR 00-4p, 2000 WL 1898704, at *2 (2000); 20 C.F.R. § 416.966(e). “In order to
support a finding that [a claimant] is not disabled at this fifth step of the sequential evaluation
process, [the ALJ is] responsible for providing evidence that demonstrates that other work exists
in significant numbers in the national economy that [the claimant] can do, given [her] residual
functional capacity and vocational factors. 20 C.F.R. § 416.960(c)(2). “Work exists in the
national economy where there is a significant number of jobs (in one or more occupations)
having requirements which [the claimant] is able to meet with [her] physical or mental abilities
and vocational qualifications.” 20 C.F.R. § 416.966(b).
Plaintiff maintains the magistrate judge erred by concluding the job numbers provided by
Job Browser Pro were unreliable. [ECF No. 19 at 3.] She argues Job Browser Pro “culls
information from the DOT, county business patterns, census reports, occupational analysis, and
the [Occupational Outlook Handbook]” and that the sources from which it draws information are
considered by the Commissioner to be reliable sources of information pursuant to 20 C.F.R. §
416.966(d). Id. (quoting Collins v. Berryhill, C/A No. 3:17-cv-633 (MHL), 2018 WL 4232888,
at *11 (E.D. Va. Aug. 20, 2018)).
But contrary to Plaintiff’s argument, the magistrate judge did not categorically reject Job
Browser Pro data as unreliable. Instead, the magistrate judge distinguished this case from
Grigsby v. Kijakazi, C/A No. 2:21-1553-TLW-MGB, 2022 WL 3088558, at *12–14 (D.S.C. July
14, 2022), adopted by 2022 WL 3086494 (Aug. 2, 2022). In Grigsby, the plaintiff declined to
question the VE during the hearing about job numbers but later submitted conflicting data to the
Appeals Council. Id. The Grigsby court acknowledged that a plaintiff could challenge VE
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testimony by probing the expert’s sources and methodology, including citing data from Job
Browser Pro. Id. at *13. The magistrate judge in the current case misinterpreted Grigsby in
concluding that Job Browser Pro data could not serve as a valid basis for challenging VE
testimony because it is not a source explicitly listed under § 416.966(d).” [ECF No. 18 at 8–9.]
In fact, the Grigsby court specifically recognized Job Browser Pro as an acceptable source of
data for this purpose. Id. at 13–14.
Job Browser Pro compiles data from primary sources recognized by the Social Security
Administration and has been cited as reliable by both the SSA and multiple courts, including this
one. See 20 C.F.R. § 416.966(d) (noting sources from which the agency will take administrative
notice of reliable job information); see also Collins, 2018 WL 4232888, at *11 (referencing
Memorandum from Susan Swansiger, Dir., Div. of Field Procedures, SSA, to Reg’l Mgmt.
Officers (Dec. 28, 2009) (listing Job Browser Pro as an acceptable version of the DOT and
stating the program met the requirements of SSR 00-4p) and finding “the VE properly relied on
data that she retrieved from Job Browser Pro”); Chavez v. O’Malley, 96 F.4th 1016, 1023 (7th
Cir. 2024); White v. Kijakazi, 44 F.4th 828, 837 (9th Cir. 2022); Grigsby 2022 WL 3088558, at
*14 (D.S.C. July 14, 2022), adopted by 2022 WL 3086494.
But the reliability of Job Browser Pro as a source for VE calculations does not mean raw
data from Job Browser Pro, without expert interpretation, is inherently reliable. As noted by the
magistrate judge, the Social Security Administration has expressly cautioned it does not
specifically endorse the proprietary algorithm used by SkillTRAN, the developer of JOB
Browser Pro. The SSA further advises ALJs not to take administrative notice of SkillTRAN data
added after the DOT was last updated in 1991. [ECF No. 18 at 9 n.6 (citing SSA Emergency
Message EM-21065 REV).]
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Plaintiff claims the magistrate judge erred in finding she had not shown good cause for
failing to present the Job Browser Pro data before the ALJ’s decision. She contends the Appeals
Council accepted and exhibited the data without citing a lack of good cause for its late
submission and merely stated it “found no reason under [the Commissioner’s] rules” to review
the ALJ’s decision. [ECF No. 19 at 4.] The court recognizes the Appeals Council did not exclude
the Job Browser Pro data provided by Plaintiff, as it was included in counsel’s brief. Tr. at 1, 4.
Moreover, the Appeals Council did not specifically find Plaintiff had failed to demonstrate good
cause for the delayed submission. Even so, as the magistrate judge correctly noted “SSA
guidance treats legal argument submissions to the Appeals Council different than evidence
submissions.” [ECF No. 18 at 10 n.7.] Because the Job Browser Pro data was attached to a legal
argument submission, the Appeals Council could not reject it in the same way it could reject new
evidence. Still, the Appeals Council expressly stated it had considered the reasons Plaintiff
disagreed with the ALJ’s decision and found they did not provide a basis for changing the ALJ’s
decision. In other words, the Appeals Council concluded the Job Browser Pro data was not
probative.
In Wischmann v. Kijakazi, 68 F.4th 498, 506–07 (9th Cir. 2023), the Ninth Circuit
considered a situation similar to that presented here. It concluded the claimant had not submitted
probative evidence to the Appeals Council where he submitted Job Browser Pro data that was
inconsistent with the VE’s estimates but did not indicate that data was “produced using the same
methodology as that used by the VE.” Id. The court wrote:
The letter states only that Job Browser Pro produced a lower number of positions
available nationally . . .. But the letter provides no information about how the job
numbers were produced, other than the name of the software program used. A
software program, however, is merely a tool that must be used appropriately to
produce reliable results. Given that SkillTRAN’s Job Browser Pro software is
meant to assist a VE in performing a complex matching exercise of various
sources of information from official and private sources . . . experience in using
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the program and interpreting the output would ordinarily be necessary to produce
probative results. But the letter does not state who produced the outputs—whether
a VE with expertise in developing job numbers or the attorney himself, who has
“no identified expertise in calculating job figures in the national economy.”
Kilpatrick [v. Kijakazi], 35 F.4th [1187,] 1194 [(9th Cir. 2022)]. Nor does the
letter establish that the attorney replicated a methodology that was set forth by the
VE at the hearing. In addition, the letter provides no information about what
queries were entered into the computer program, what variables were changed, or
what filters were applied to the data. Nor does the letter state which version of the
program was used, so we do not know whether the information used by the
program was current or out of date. See id. (noting that where the claimant’s
attorney used “data that was roughly seven years old at the time” to calculate the
job-number estimates, “there [were] obvious reasons to question [the]
methodology”).
Nor do the six pages of attached printout support the letter’s assertions. Neither
the letter nor the pages themselves state that the printout data was produced with
Job Browser Pro. The raw data set out on these pages . . . is not comprehensible to
a lay person, and Wischmann does not provide the interpretation necessary to
make the pages meaningful to a court . . . .
Id. at 507.
Here, counsel’s letter to the Appeals Council merely states “[a]ccording to Job Browser
Pro only 1072 touch-up screener jobs, only 15661 document preparer jobs, and only 646
ampoule sealer jobs exist in the national economy. (See Attached).” Tr. at 379. The attached data
shows it was a “[r]eport produced from SkillTRAN Online Services” and “shows employment at
the Full-Time level of the year 2023.” Tr. at 385–93. It is unclear, however, “who produced the
outputs,” “what queries were entered into the computer program, what variables were changed,
or what filters were applied to the data.” See Wischmann, 68 F.4th at 507. These factors are
particularly relevant as reflected in the SSA emergency message cited by the magistrate judge in
a footnote. See ECF No. 18 at 9 n.6 (citing SSA Emergency Message EM-21064 REV) (“Those
with vocational expertise use various approaches to arrive at informed estimates of numbers of
jobs that exist within a DOT occupation. Results may differ given the method used for the
estimate.”). The data also lacks interpretation from a qualified expert. The court finds persuasive
8
the Ninth Circuit’s reasoning in Wischmann and concludes the Appeals Council did not err in
declining to remand the case or in finding the Job Browser Pro data failed to provide a basis for
changing the ALJ’s decision in absence of further information and explanation.3
The magistrate judge, citing Biestek, 587 U.S. at 105, correctly noted the Supreme Court
has held that a VE’s testimony may serve as substantial evidence even in the absence of
supporting data. In Biestek, the court explained that although “an applicant may probe the
strength of testimony by asking an expert about (for example) her sources and methods,” “even
without significant testing, a factfinder may conclude that testimony has sufficient indicia of
reliability.” Id. at 107. Given this authority, the magistrate judge reasonably concluded the VE’s
“over twenty-five years of experience, three degrees, several credentialed certifications, both
academic and non-academic job experiences, uncountable conference, seminar, and workshop
presentations, ten published books from 2022 to 2005, numerous peer-reviewed journal articles,
book chapters, awards, committee service, university service, and community service, and four
monographs from 2021 to 1983” allowed “the ALJ [to] reasonably rely upon [his] testimony in
meeting the . . . burden at Step Five.” [ECF No. 18 at 11.]
Plaintiff argues the ALJ failed to find the job numbers reflected in the Job Browser Pro
data constituted significant numbers. [ECF No. 19 at 5.] This argument lacks merit. As the
magistrate judge noted, Plaintiff “did not question the VE’s qualifications or the source of his job
numbers” at the hearing nor present the Job Browser Pro numbers to the ALJ after the hearing
though several months passed before the ALJ issued his decision. [ECF No. 18 at 9–10.] As a
The court recognizes this finding presents a departure from the court’s finding in Grisby but
notes the court in Grigsby did not consider factors relevant to the probative value of the data and
its decision conflicts with this court’s action in Gerald v. Kijakazi, C/A No. 6:20-cv-3446-BHHKFM, 2021 WL 8014692, at *13 (D.S.C. Oct. 27, 2021), adopted by 2022 WL 669626 (Mar. 27,
2022).
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result, the ALJ had no opportunity to address whether the job numbers in the Job Browser Pro
data constituted “significant numbers.”
Plaintiff also asserts the magistrate judge erred in finding that the Job Browser Pro data
sufficiently supported the Commissioner’s burden of proving Plaintiff’s RFC allowed her to
perform a significant number of jobs in the economy. [ECF No. 19 at 4–5.] The magistrate judge
noted in a footnote that “[e]ven if Plaintiff’s statement of job numbers were accepted, those
numbers would still be a ‘significant number.’” [ECF No. 18 at 8 n.5.] That said, as discussed
above, the raw numbers presented lacked sufficient indicia of reliability. Having determined the
magistrate judge reasonably concluded the Job Browser Pro data was not probative, the court
declines to address whether the numbers meet the regulatory definition of “significant numbers.”
Instead, the court considers only whether the number of jobs identified by the ALJ satisfies the
regulatory standard.
Plaintiff contends that even if the VE’s job numbers are credited, they are not “significant
numbers.” [ECF No. 19 at 7.] She cites Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309 (11th
Cir. 2021), and argues that, because the ALJ relied on the combined total of jobs from all three
job descriptions in concluding a significant number of jobs existed, it is unclear whether he
would have reached the same conclusion without including the number of document preparer
positions. Id.; see also ECF No. 25 at 5–7. She further argues the ALJ failed to consider the
relevant factors outlined by the Tenth Circuit in Allen v. Barnhart, 357 F.3d 1140, 1144 (10th
Cir. 2004), before concluding that a significant number of jobs existed. Id. Additionally, she
maintains the Fourth Circuit has not specifically held 37,000 jobs in the national economy
qualify significant numbers.
In Viverette, 13 F.4th at 1317–18, the court concluded, based on the record before it, that
remand was necessary because it found an apparent conflict between the DOT and one of the
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three jobs the VE testified to, which the ALJ relied on to meet the burden at step five. The court
wrote:
As noted, the VE testified that there are 104,000 document preparer positions
available nationally, 7,000 final assembler positions available nationally, and
14,000 check weigher positions available nationally. The ALJ referenced this
testimony collectively and concluded that Mr. Viverette “is capable of making a
successful adjustment to other work that exists in significant numbers in the
national economy.” D.E. 13-2 at 32. But she apparently treated the three
occupations (one of which we must here assume is off the table) cumulatively for
purposes of the “significant numbers” determination, for she did not make any
findings about how many jobs were available in the national economy for each of
the occupations. In other words, the ALJ did not make a finding about how many
final assembler or check weigher jobs were available nationally or whether the
number of final assembler and check weigher jobs, either separately or
cumulatively, constituted a significant number, absent the document preparer
jobs.
Viverette, 13 F.4th at 1318.
Viverette is further distinguishable from the instant case in that the plaintiff in Viverette
raised issues with the job numbers the VE identified during cross-examination at the hearing.
Indeed, as noted by the court in Viverette,
In Mr. Viverette's case the VE testified that there were 14,000 check weigher jobs
nationally, but on cross-examination stated that this number included the total of
sedentary unskilled jobs within the relevant SOC code. Significantly, she also said
that she did not know whether the other DOT occupations within the SOC code
required level 1 or level 2 reasoning or something higher. See D.E. 13-2 at 55–57.
Because we have now held that there is an apparent conflict between level 3
reasoning and a limitation to simple, routine, and repetitive tasks, and because the
VE did not take the additional step mandated in Goode to estimate what portion of
jobs within the relevant SOC code Mr. Viverette can perform, the 14,000 number
for the check weigher position may be overstated. As a result, a “remand [here]
would [not] be an idle and useless formality.” N.L.R.B. v. Wyman-Gordon Co.,
394 U.S. 759, 766 n.6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969).
Id. at 1319. Here, there was no similar concern as to the jobs that remained after the document
preparer job was eliminated because Plaintiff did not question the VE regarding the specific jobs
he identified.
11
The Eleventh Circuit’s decision in Viverette is not controlling authority, and the Fourth
Circuit has not addressed the issues it raises. Courts within the Fourth Circuit that have
considered Viverette have found it unconvincing and have distinguished the cases before it for
reasons that also apply in this case. For example, in Armstrong v. Commissioner of Social
Security Administration, the court chose not to apply the Eleventh Circuit’s holding in Viverette,
based on the following reasoning:
[E]ven assuming there is a conflict with regard to the occupation of “cleaner,” the
representative occupations of “kitchen helper” (for which the vocational expert
testified that there are 45,000 jobs nationally) and “hand packager” (for which the
vocational expert testified there are 77,000 jobs nationally) remain available and,
since Plaintiff “can perform at least one job that exists in significant numbers in
the national economy, the ALJ properly concluded that Plaintiff is not disabled
under the Act.” Richardson v. Berryhill, 5:15-cv-173-RJC-DSC, 2019 WL
1354042, at *4 (W.D.N.C. Mar. 26, 2019); see also McCall v. Saul, 844 F. App’x
680, 681 (4th Cir. 2021) (citing with approval cases holding that 25,000 and
11,000 jobs nationwide, respectively, were significant); Carpenter, 2023 WL
7726706, at *5 n.3 (“In Viverette, the ALJ’s error meant there were only 7,000
jobs available nationally. ‘[C]ourts around the country have generally held that at
least 10,000 positions in the national economy is a ‘significant number,” and so, it
is no surprise that the Viverette court found that the ALJ’s finding was not based
on substantial evidence. Here, Plaintiff would be left with 134,000 jobs in the
national economy, a clear distinguishing fact.”) (internal citations omitted).
Id., C/A No. 3:23-124-MR-WCM, 2024 WL 463311, at *3 (W.D.N.C. Jan. 4, 2024), adopted by
2024 WL 460262 (Feb. 5, 2024).
Likewise, in Carpenter v. Acting Commissioner of Social Security Administration, C/A
No. 5:23-37-KDB, 2023 WL 7726706, at *5 n.3 (W.D.N.C. Nov. 15, 2023), the court found
Viverette distinguishable, noting:
In Viverette, the ALJ referenced the VE’s testimony collectively and “apparently
treated the three occupations . . . cumulatively . . . for she did not make any
findings about how many jobs were available in the national economy for each of
the occupations.” Viverette, 13 F.4th at 1318. Here, however, the ALJ’s decision
included a chart which identified each representative occupation and the number
of jobs nationally for each. (AR 42). The ALJ expressly made a finding as to
those numbers by finding that the VE had reasonably accounted for any conflicts
between the DOT and RFC in reaching those numbers and using them, in
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combination with other factors such as the claimant’s age, education, work
experience, and RFC to conclude that Carpenter had other work available to him
and so he was not disabled. Id.
And the court reached a similar finding in Ronnie K. v. O’Malley, C/A No. 1:23-324, 2024 WL
3695205, at *12–13 (M.D.N.C. Aug. 7, 2024).
Plaintiff finds further fault with the ALJ’s significant numbers assessment and cites Allen
v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004), in which the court specified factors it had
previously “recognized should guide the ALJ’s commonsense judgment, such as ‘the level of
[Allen’s] disability; the reliability of the [VE’s] testimony; the distance [Allen] is capable of
travelling to engage in the assigned work; the isolated nature of the jobs; [and] the types and
availability of such work.’” But Plaintiff has pointed to, and the court’s research has revealed, no
case in which this court or the Fourth Circuit has recognized these factors as persuasive.
Accordingly, the court finds no error in the ALJ’s decision not to consider the factors set forth by
the Tenth Circuit in Allen.
Here, elimination of the document preparer position leaves 12,000 touch up screener jobs
and 25,000 ampoule sealer jobs, both exceeding the 10,000-job threshold cited in Armstrong and
Carpenter. The ALJ also included the following chart in his decision, reflecting his express
consideration of the number of available jobs in each position:
REPRESENTATIVE
OCCUPATIONS
Touch Up Screener
Document Preparer
Ampoule Sealer
D.O.T #
STRENGTH/SKILL/SVP
726.684-110
249.587-018
559.687-014
Sedentary/unskilled/2
Sedentary/unskilled/2
Sedentary/unskilled/2
Available in the
NATIONAL economy
12,000
90,000
25,000
The ALJ further concluded the VE’s testimony did not conflict with the DOT but supplemented
the DOT’s information with his education, training, and professional experience. Based on this
testimony, along with Plaintiff’s age, education, and RFC, the ALJ determined that Plaintiff was
13
capable of adjusting to other work existing in significant numbers in the national economy.
These findings closely align with those of the ALJ in Carpenter. Although Plaintiff argues the
distinction in Carpenter is inconsequential—pointing out that the ALJ in Viverette had also
identified the job numbers testified to in his decision, ECF No. 25 at 6 (citing Viverette, 13 F.4th
at 1313)—the court notes a key difference. In Carpenter and the present case, the ALJ presented
the job numbers in a chart format, explicitly recognizing the individual numbers for each
identified job.
The magistrate judge appropriately noted that “[a]n ALJ need only identify one job
existing in significant numbers in the national economy to meet the fifth step burden.” [ECF No.
18 at 12 (citing 20 C.F.R. § 416.966(b)).] He correctly concluded that the ALJ found Plaintiff
capable of performing jobs of touch up screener and ampoule sealer, with 12,000 and 25,000
positions existing in the national economy, respectively. Relying on precedent within the Fourth
Circuit, the magistrate judge determined these constituted “significant numbers” as defined by
the regulations and interpreted by the courts. See ECF No. 18 at 13–14 (citing Hicks v. Califano,
600 F.2d 1048, 1051 n.2 (4th Cir. 1979); Hodges v. Apfel, 2000 WL 121251 (4th Cir. 2000); Best
v. Berryhill, 2017 WL 685601, at *4 (E.D.N.C. Feb. 3, 2017), adopted by 2017 WL 684184
(E.D.N.C. Feb. 21, 2017); Kimberly M. v. Kijakazi, 2023 WL 492794, at *8 (E.D. Va. July 11,
2023), adopted by 2023 WL 4977756 (Aug. 3, 2023) (collecting cases)).
The magistrate judge provided a well-reasoned explanation supporting his conclusion that
substantial evidence supported the ALJ’s step five finding, and that Plaintiff was not disabled
under the Social Security Act. Thus, the court overrules Plaintiff’s objections.
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CONCLUSION
After a thorough review of the Report, the applicable law, and the record, the court
adopts the Report, ECF No. 18, as modified herein and affirms the Commissioner’s decision.
IT IS SO ORDERED.
January 28, 2025
Columbia, South Carolina
Sherri A. Lydon
United States District Judge
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