Opinion
5:21-CV-527-M
01-31-2023
MICHELLE MCKOY BYRD, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-14, -17] pursuant to Fed.R.Civ.P. 12(c). Claimant Michelle McKoy Byrd (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). Claimant filed a response to Defendant's motion, [DE-19], the time for further responsive briefing has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on December 1,2016, alleging disability beginning November 26,2013. (R. 10, 153-60). The claim was denied initially and upon reconsideration. (R. 10, 69-97). A hearing before an Administrative Law Judge (“ALJ”) was held on January 9, 2019, at which Claimant, unrepresented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 10, 34-68). On October 7, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 7-25). On August 15, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . 42 U.S.C. § 405(g). Substantial evidence is
“evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
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 [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the . first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).
In this case, Claimant alleges that substantial evidence does not support the ALJ's step four findings and the ALJ erred by (1) failing to afford Claimant a full and fair hearing, (2) failing to account for Claimant's mild limitations in her ability to interact with others and to concentrate, persist, or maintain pace, and (3) failing to investigate and make findings about the lifting, carrying, standing, and walking requirements of Claimant's past relevant work as actually performed. Pl.'s Mem. [DE-15] at 8-19.
The page number referenced is from the CM/ECF footer whereas here it differs from the document's internal page number.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant did not engage in substantial gainful activity from the alleged onset date of November 26, 2013 through the date last insured of March 31, 2019. (R. 12). Next, the ALJ determined Claimant had the severe impairments of osteoarthritis of the knees bilaterally, osteoarthritis of the hips bilaterally, morbid obesity, degenerative disc disease of the lumbar spine status post laminectomy with continuing stenosis, degenerative disc disease of the cervical spine, asthma, history of pulmonary embolism, and hypertension. (R. 13). The ALJ also found that “claimant's medically determinable mental impairment of depression did not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and was therefore nonsevere.” (R. 13-14). At step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 14-15).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform sedentary work with the following additional limitations:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. “Sitting” generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404. Suboart P. Appendix 2. Table 1. Id.
claimant must avoid climbing ladders, ropes, and scaffolding as well as crawling and no more than occasional climbing of ramps and stairs, balancing, stooping, kneeling, and crouching. The claimant is limited to occasional push/pull of the bilaterally lower extremities. The claimant must also avoid working at unprotected heights. The claimant is limited to occasional exposure to extreme cold and humidity as well as to fumes, odors, or other pulmonary irritants.(R. 15-19). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical and other evidence. (R. 16).
At step four, the ALJ concluded Claimant was capable of performing the requirements of her past relevant work as a caseworker and thus, was not under a disability during the relevant period. (R. 19-20).
V. DISCUSSION
Claimant testified that she previously worked as a judicial service coordinator monitoring a caseload of people on probation and assigned to community service. (R. 45). She was required to attend several court sessions a week, and if a person was placed on probation she would collect their information and process them in the system. Id. On court days her job entailed a great deal of sitting in the courtroom, she carried files from her office to court, and sometimes she had to walk to an interview room or holding cell. (R. 46). On her office days she was up and down but could not quantify how often. Id. Claimant also worked as a child support agent responding to complaints by conducting research on cases and answering questions. (R. 47). She mostly sat at her desk and worked at a computer but would also attend court dates. Id.
The VE classified both of these positions under the DOT occupation of caseworker, DOT 195.107-010, which is sedentary as generally performed, but one of the positions was actually performed by Claimant at the light exertion level. (R. 60). The VE testified in response to a hypothetical consistent with Claimant's RFC that she could perform her past work as a caseworker as generally performed and the sedentary caseworker job as she actually performed it. (R. 61).
Claimant contends the ALJ's step four conclusion that she could return to her past work as a caseworker is not supported by substantial evidence and that the ALJ's errors-failing to afford Claimant a full and fair hearing, failing to account for Claimant's mild limitations in her ability to interact with others and to concentrate, persist, or maintain pace, and failing to investigate and make findings about the lifting, carrying, standing, and walking requirements of Claimant's past relevant work as actually performed-prejudiced Claimant at step four. Pl.'s Mem. [DE-15] at 819.
A. The Administrative Hearing
Claimant, who was unrepresented at the hearing, contends that she was deprived of a full and fair administrative hearing because she was not informed that she could cross-examine the VE and there are evidentiary gaps in the record on the impact of Claimant's mental impairments on her RFC and the ability to perform her past work. Id. at 12-13. Defendant contends the ALJ provided a full and fair hearing. Def.'s Mem. [DE-18] at 5-9.
A claimant has a right to procedural due process at a hearing before an ALJ. Richardson v. Perales, 402 U.S. 389, 401-02 (1971). That right includes the opportunity to cross-examine witnesses. Townley v. Heckler, 748 F.2d 109, 114 (2d Cir. 1984); 5 U.S.C. § 556 (“A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.”). Claimants are entitled to “a full and fair hearing of their claims,” and “[w]hile lack of representation by counsel is not by itself an indication that a hearing was not full and fair, it is settled that where the absence of counsel created clear prejudice or unfairness to the claimant, a remand is proper.” Sims v. Harris, 631 F.2d 26, 27-28 (4th Cir. 1980) (citations and internal footnote omitted). Moreover, “in pro se cases, Administrative Law Judges have a duty to assume a more active role in helping claimants develop the record.” Id. (citation omitted).
The ALJ thoroughly explained the function of the VE to Claimant and how the ALJ would question the VE, and the ALJ offered to answer any questions of Claimant after the VE testified. (R. 57-58). The ALJ did not, however, inform Claimant of her right to cross-examine the VE. Even so, the failure did not deprive Claimant of a full and fair hearing where she has demonstrated no prejudice as a result of the ALJ's error.
Claimant argues that because she did not have the opportunity to cross-examine the VE, there is no evidence on the impact of her mental impairments on her RFC and ability to perform her past work. Pl.'s Mem. [DE-15] at 13. Claimant confuses the roles of the ALJ and the VE.
Vocational experts are not experts in [medicine] who are qualified to render opinions on how the claimant's ailments might be reflected in his capabilities; rather, they are employment experts who know the mental and physical demands of different types of work. Fisher v. Barnhart, 181 Fed.Appx. 359, 365 (4th Cir. 2006).Robinson v. Colvin, No. 2:12-CV-58-FL, 2014 WL 347401, at *3 (E.D. N.C. Jan. 30, 2014). It would not have been appropriate for Claimant to question the VE regarding the impact of her mental impairments on her RFC or ability to perform her past work. Id. (“It is the role of the ALJ, not the VE, to determine a claimant's limitations.”) (citing 20 C.F.R. § 404.1546(c)). Rather, it is the VE's role to testify regarding the impact of functional limitations, as determined by the ALJ, on the ability to perform work. Id. at * 10. Thus, Claimant was not prejudiced by not having the opportunity to cross-examine the VE regarding the impact of her mental impairments on her RFC and ability to perform her past work. See Davis v. Acting Comm 'r of the Soc. Sec. Admin., No. 2:17-CV-01392-RBH, 2018 WL 4272158, at *7 (D.S.C. Sept. 7, 2018) (failure to instruct the plaintiff that she could cross-examine the vocational expert did not require remand because the plaintiff failed to demonstrate prejudice); cf. Jumper v. Colvin, No. 5:14-CV-112-RJC, 2015 WL 4921482, at *4 (W.D. N.C. Aug. 18, 2015) (concluding the ALJ's failure to “touch upon the Plaintiff's right to cross-examine the VE” was prejudicial where there was a potential apparent conflict between the DOT and the VE's testimony that could have been addressed on cross-examination).
The ALJ fully questioned Claimant about the physical demands of her past work. (R. 4547). The VE classified both of her past positions under the DOT occupation of caseworker, DOT 195.107-010, which is sedentary as generally performed, but one of the positions was actually performed by Claimant at the light exertion level. (R. 60). The ALJ first posed a hypothetical to the VE at the light exertion level that included the postural and environmental limitations ultimately imposed in the RFC, and the VE testified that such an individual could perform Claimant's past work as a caseworker as generally and actually performed. Id. The ALJ altered the hypothetical from light to sedentary but retained the other limitations, and the VE concluded that an individual so limited could perform Claimant's work as a caseworker as it is generally performed and could perform Claimant's sedentary caseworker job as she actually performed it. (R. 61). The ALJ also posed hypotheticals to the VE that included non-exertional limitations (e.g., SVP one or two; routine, repetitive tasks; not fast-paced; and no production quotas) at the light and sedentary level, which the VE opined would preclude past work. (R. 62). The ALJ questioned the VE regarding the impact of time off task during the day on employ ability, and the VE indicated that being off task for fifteen percent or more of the work day would preclude employment. (R. 62-63). The ALJ also inquired into the tolerable number of days an individual could be out of work each month. (R. 63).
The ALJ fully questioned the VE based on multiple hypotheticals with a variety of mental, postural, and environmental limitations. Claimant does not identify any errors in classifying her past work or any specific line of inquiry the ALJ failed to explore with the VE. Accordingly, Claimant was not prejudiced by the ALJ's failure to inform her she could cross-examine the VE, and Claimant received a full and fair hearing.
B. Claimant's Mild Limitations in her Mental Functional Capacity
Claimant contends the ALJ failed to account in the RFC for her mild limitations in her ability to interact with others and to concentrate, persist, or maintain pace, and doing so would likely preclude her past work as generally performed. Pl.'s Mem. [DE-15] at 14-17. Defendant contends the ALJ properly evaluated Plaintiff's mental impairments and was under no duty to account for mild limitations in the RFC. Def's Mem. [DE-18] at 9-13.
The ALJ determined that Claimant's mental impairment of depression did not cause more than a minimal limitation in her ability to perform basic mental work activities and was therefore nonsevere, and the ALJ found that Claimant had no more than mild limitations in each of the four functional areas. (R. 13, 19). The ALJ noted that Claimant did not list on her disability report form a mental health impairment among the medical conditions that limited her ability to work, (R. 13, 185), and despite reporting depressive symptoms and being diagnosed with depression, Claimant routinely declined medication management and did not pursue mental health treatment, (R. 13, 545-46, 697, 710). Claimant complained of memory problems but a neuropsychological assessment found her memory to be within normal limits with the exception of word-linking skills. (R. 13, 703). The ALJ noted that Claimant reported some limitations with social functioning but attributed it to her pain. (R. 14). Claimant reported that she spends time with others, mostly talking on the phone daily, but does not visit with them often because they are working, she sometimes wants to be left alone, and she attends church and bible study on a regular basis. (R. 200-01). Ultimately, the ALJ did not impose any limitations related to Claimant's mental functioning in the RFC. (R. 15, 19).
Claimant first argues that a caseworker interacts with others constantly, and the ALJ should have asked the VE questions about how a mild limitation in interacting with others would affect her ability to work as a caseworker or explain why limitations were not necessary. Pl.'s Mem. [DE-15] at 14-15. Again, this argument misconstrues the role of the VE. As explained above, the ALJ must first determine what, if any, functional limitations are appropriate and then question the VE about how and functional limitations impact the ability to do certain types of work. Robinson, 2014 WL 347401, at *10. Here, the ALJ imposed no limitations regarding Claimant's ability to interact with others. (R. 15). The ALJ does not have to question the VE about limitations he did not find credible, and Claimant points to no evidence in the record that would support a limitation in interacting with others. See Wynn v. Kijakazi, No. 2:20-CV-00015-M, 2021 WL 5227359, at *9 (E.D. N.C. Aug. 12, 2021) (finding no error where the hypothetical questions included all the limitations set forth in the claimant's RFC determination, and the claimant failed to establish that she had additional limitations), report and recommendation adopted, 2021 WL 4443427 (E.D. N.C. Sept. 28, 2021).
Additionally, the court can follow the ALJ's reasoning in not imposing limitations on interactions with others where there is no evidence in the record to support such a limitations. Claimant's depression was nonsevere, she declined medication management and did not pursue other treatment, and no medical provider or state agency consultant opined that Claimant required a functional limitation in this area. See Simmons v. Kijakazi, No. 3:21-CV-165, 2022 WL 4229918, at *7 (N.D. W.Va. Aug. 23, 2022) (finding no error in the ALJ's decision not to include mental functional limitations in the RFC where the claimant's depression was nonsevere, there were no more than mild limitations in the four functional areas, and the ALJ sufficiently explained at step three that the claimant's mild mental limitations did not result in more than a minimal limitation on the ability to perform work-like activities), report and recommendation adopted, No. 3:21-CV-165, 2022 WL 4227529 (N.D. W.Va. Sept. 13, 2022).
Claimant also argues that the ALJ failed to account for Claimant's mild limitation on the ability to concentrate, persist, and maintain pace. Pl.'s Mem. [DE-15] at 15-17. As an initial matter, the holding in Mascio v. Colvin, 780 F.3d. 632 (4th Cir. 2015), that an ALJ must account for a claimant's moderate limitations in concentration, persistence, or pace in the RFC or explain why no limitation is necessary, has not been extended by the Fourth Circuit to mild limitations in this functional area, and “[t]he weight of post-Mascio authority among the district courts in the Fourth Circuit does not favor extending Mascio to mild limitations in the broad functional areas.” Antle v. Kijakazi, No. 1:21-CV-561, 2022 WL 3576802, at *16 (M.D. N.C. Aug. 19, 2022), report and recommendation adopted, 2022 WL 4109660 (M.D. N.C. Sept. 8, 2022). The ALJ thoroughly discussed the sparse medical evidence regarding Claimant's depression, (R. 13-14), including that she refused medication treatment and did not seek other mental health treatment, and found there was no evidence to support any cognitive limitations. (R. 14). The court can trace the ALJ's decision not to impose a functional limitation in the RFC for Claimant's mild limitation in concentration, persistence, or pace, and substantial evidence supports the decision. See Gilbert v. Berryhill, No. 5:16-CV-00100-MOC, 2017 WL 1196452, at *3 (W.D. N.C. Mar. 29, 2017) (affirming the ALJ's determination that mental limitations in the RFC were not required for a claimant with mild limitation in concentration, persistence, or pace where the ALJ discussed the relevant evidence and Mascio did not per se require imposition of limitations).
Finally, Claimant takes issue with the ALJ not specifically asking the VE how often a caseworker could be off task. Pl.'s Mem. [DE-15] at 15. The ALJ engaged in the following colloquy with the VE regarding time off task:
Q: As a general proposition, employers don't want their employees to be off task during the day. With that being said, if an employee did go off task during the day, in your opinion, what percentage of the day could they be off task before they'd be disciplined or fired?
A Depending on the assigned duties and responsibilities, there'd be a range from less than 5% up to but not including 15% cumulative.
Q: So if I were to add to my prior hypothetical that the individual would be off task for more than 15% of the workday, that'd be job-preclusive in your opinion, no jobs there.
A: That's correct, Your Honor.(R. 62-63). The ALJ ultimately did not impose an off-task restriction in the RFC, so the off-task tolerance for a caseworker is immaterial. See Lori S. v. Kijakazi, No. CV 21-2034-BAH, 2022 WL 1721192, at *2 (D. Md. May 27, 2022) (finding no error regarding the ALJ's failure to address the VE's testimony as to time off task where the ALJ did not adopt a time-off-task limitation). As discussed above, Claimant has failed to demonstrate the ALJ erred by not including functional limitations in the RFC related to Claimant's nonsevere depression. Therefore, there was no error in the ALJ's failure to obtain more specific testimony from the VE regarding a time-off-task tolerance for the caseworker occupation. See Capps v. Berryhill, No. 1:19 CV 37, 2020 WL 398723, at *7 (W.D. N.C. Jan. 23, 2020) (“An ALJ is only required to include in his hypothetical to the VE and in the claimant's RFC limitations that the ALJ finds to be supported by substantial evidence.”).
C. Requirements of Claimant's Past Relevant Work
Claimant contends the ALJ did not reconcile evidence showing that both her past jobs as a caseworker had physical demands exceeding the sedentary level, and thus, Claimant's past relevant work as actually performed conflicts with her RFC. Pl.'s Mem. [DE-15] at 17-19. Defendant contends that substantial evidence supports the ALJ's finding that Claimant can perform her past relevant work. Def's Mem. [DE-18] at 13-16.
Upon assessing a claimant's RFC, the ALJ compares the RFC with the physical and mental demands of the claimant's past relevant work and then determines whether the claimant's impairments prevent her from performing such work. 20 C.F.R. §§ 404.1520(e), (f), 404.1560. “Past work experience must be considered carefully to assure that the available facts support a conclusion regarding the claimant's ability or inability to perform the functional activities required in this work,” and “[t]he claimant is the primary source for vocational documentation.” S.S.R. 8262, 1982 WL 31386, at *3 (Jan. 1, 1982). In determining a claimant's ability to do past relevant work, the ALJ must consider the following:
1. the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements;
2. medical evidence establishing how the impairments] limit[ ] [his or her] ability to meet the physical demands and mental requirements of such work; and
3. in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles [“DOT”], etc., on the requirements of the work as generally performed in the economy.Id.
“[A] claimant will be found ‘not disabled' if he is capable of performing his past relevant work either as he performed it in the past or as it is generally required by employers in the national economy.” Pass, 65 F.3d at 1207 (citing SSR 82-61, 1982 WL 31387, at *2). In other words, a claimant must show “an inability to return to [his] previous work (i.e., occupation), and not simply to [his] specific prior job.” DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir. 1983). “An ALJ ‘may rely on the general job categories of the Dictionary as presumptively applicable to a claimant's prior work.'” Parker v. Colvin, No. 4:13-CV-38-FL, 2014 WL 2604282, at *2 (E.D. N.C. June 11,2014) (internal alteration omitted) (quoting DeLoatche, 715 F.2d at 151). “The same label, however, may be used in a variety of ways.” Id., at *2 (quoting DeLoatche, 715 F.2d at 151). “Accordingly, a ‘claimant may overcome the presumption that the [Commissioner]'s generalization applies by demonstrating that [his] duties were not those envisaged by the framers of the [Commissioner] 's category.” Id. (quoting DeLoatche, 715 F.2d at 151).
The ALJ fully questioned Claimant about the physical demands of her past work. (R. 4547). The VE classified both of her past positions under the DOT occupation of caseworker, DOT 195.107-010, which is sedentary as generally performed, but one of the positions was actually performed by Claimant at the light exertion level. (R. 60). Even assuming Claimant performed both her prior jobs at the light exertion level, the ALJ determined that she could return to her prior work as generally performed at the sedentary level based on the VE's testimony, in response to a hypothetical consistent with Claimant's RFC, that she could perform her past work as a caseworker as generally performed. (R. 61). As SSR 82-61 explains,
A former job performed by the claimant may have involved functional demands and job duties significantly in excess of those generally required for the job by other employers throughout the national economy. Under this test, if the claimant cannot perform the excessive functional demands and/or job duties actually required in the former job but can perform the functional demands and job duties as generally required by employers throughout the economy, the claimant should be found to be “not disabled.”1982 WL31387, at *2 (1982); see Harris v. Kijakazi, No. 1:20-CV-1133, 2022 WL 541438, at *6 (M.D. N.C. Feb. 23, 2022) (“[T]he mere fact that Plaintiff's [past relevant work], as generally performed in the national economy, involves less strenuous duties than her actual work with the American Red Cross does not invalidate the VE's classification.”), report and recommendation adopted, No. 1:20CV1133, 2022 WL 868003 (M.D. N.C. Mar. 23, 2022). Claimant does not challenge the VE's classification of her two past jobs under the DOT occupation of caseworker and takes issue only with Claimant's ability to perform her past relevant work as it was actually performed. See Brooks v. Berryhill, No. 2:16-CV-80-FL(2), 2018 WL 944382, at *7 (E.D. N.C. Jan. 23, 2018) (“That Plaintiff previously worked as a medical assistant at the medium exertional level is of no moment because, according to the uncontroverted testimony of the VE, that job is generally performed at the light exertional level and is consistent with Plaintiff's RFC.”) (internal citation omitted) (citing Pass, 65 F.3d at 1207), report and recommendation adopted, 2018 WL 943935 (E.D. N.C. Feb. 16, 2018). Claimant has failed to demonstrate error in the ALJ's step four conclusion that she could perform her past work as a caseworker as generally performed at the sedentary level. Accordingly, Claimant's challenge to the ALJ's step four conclusion lacks merit.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-14] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-17] be ALLOWED, and the final decision of the Commissioner be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 14, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).