Opinion
C. A. 9:22-cv-03439-DCN-MHC
01-19-2024
William G.H.,[1] Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Plaintiff William G.H. (Plaintiff) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 8.
In November 2020, Plaintiff filed applications for DIB and SSI under Titles II and XVI, respectively, of the Act, alleging disability beginning June 18, 2018. See R.pp. 237-41, 261. His applications were denied initially and upon reconsideration, resulting in Plaintiff requesting a hearing before an ALJ. R.pp. 56-125.
On July 8, 2022, a telephonic hearing was held before an ALJ, at which Plaintiff, who was represented by counsel, and a vocational expert testified. R.pp. 42-55. At the hearing, Plaintiff amended his alleged onset date to July 26, 2019. R.p. 46. On July 19, 2022, the ALJ issued a decision wherein he found Plaintiff not disabled. R.pp. 19-41. Plaintiff requested review of the ALJ's decision by the Appeals Council, and on September 8, 2022, the Appeals Council denied Plaintiff's request, making the ALJ's decision final. R.pp. 1-6. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceed his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g);Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Plaintiff was disabled from the amended alleged onset date of July 26, 2019. R.pp. 22-34. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
2. The claimant has not engaged in substantial gainful activity since July 26, 2019, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: monocular vision; spine disorder; hernia; depressive disorder; anxiety disorder, and attention deficit hyperactivity disorder (ADHD). (20 CFR 404.1520(c) and 416.920(c))....
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)....
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he cannot climb ladders, ropes or scaffolds. He can occasionally do postural activities. He is limited to frequent but not constant depth/peripheral vision work. He should avoid hazards and unprotected heights. The claimant is limited to unskilled tasks and occasional changes in the work setting, with no public interaction. He may miss one day of work per month....
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965)....
7. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a)....
8. The claimant has not been under a disability, as defined in the Social Security Act, from July 26, 2019, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).R.pp. 25-33.
IV. DISCUSSION
Plaintiff presents two arguments in support of remand. First, Plaintiff argues that the ALJ did not properly explain the basis for the RFC finding that Plaintiff would be absent from work one day per month. ECF No. 9 at 1, 4-19. Second, Plaintiff argues the ALJ failed to resolve obvious and apparent conflicts between the vocational expert's (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”). Id. at 1, 19-29. For the reasons that follow, the undersigned concludes that the Commissioner's decision should be affirmed.
A. The ALJ's RFC Assessment
Plaintiff argues that the ALJ erred in finding that he may miss one day of work per month without providing an explanation why he would not miss more days per month. ECF No. 9 at 419. The Commissioner contends this argument is without merit because it is based on a misreading of the state agency physicians' prior administrative medical findings. ECF No. 10 at 7.
1. RFC Assessment Generally
“RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996). A claimant's RFC, which represents “the most [he] can still do despite [his] limitations,” must be based on all the relevant evidence in the case record and should account for all of the claimant's medically determinable impairments, including those that are not severe. Id.; 20 C.F.R. §§ 404.1545(a), 416.945(a).
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
In evaluating an RFC, an ALJ must “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect his ability to work.'” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe, 826 F.3d at 188). “‘Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work' of which he believes the claimant to be capable.” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting Monroe, 826 F.3d at 179).
The RFC assessment must include a narrative discussion describing how all the relevant evidence supports each conclusion and must cite “specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184 at *7. “The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id.
In assessing the RFC, the ALJ must explain how any material inconsistencies or ambiguities in the record were resolved, SSR 96-8p, 1996 WL 374184 at *7, and he must “build an accurate and logical bridge from the evidence to his conclusions,” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Consequently, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311. The ALJ's logical explanation is just as important as the ALJ's discussion of evidence and his conclusion. Id. “[R]emand may be appropriate where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (citations and internal quotation marks omitted).
2. The ALJ's Decision
Plaintiff argues that the ALJ's RFC is not supported by substantial evidence because “there is nothing in the evidence of record that demonstrates specifically [that Plaintiff] ‘may miss one day of work per month,' and the ALJ failed to explain the basis for this finding.” ECF No. 9 at 14 (quoting RFC). Plaintiff acknowledges that the state agency psychological consultants found he may need “to miss no more than an occasional day due to his mental illness.” Id. (quoting R.pp. 73, 113). Plaintiff further notes that SSR 83-10 defines “occasional” to mean “occurring from very little up to one-third of the time.” Id. Based on this definition, Plaintiff maintains that “the agency consultants' opinions could reasonably be read to indicate [Plaintiff] would miss up to one-third of his scheduled workdays.” Id. He argues that, while “the ALJ explained how the other mental RFC limitations (unskilled work, occasional changes in the work setting, no public interaction) accounted for [Plaintiff's] psychiatric conditions and moderate limitations in concentration and interaction with others, and mild limitations in adapting or managing himself,” the ALJ “failed to explain how he arrived at the ‘may miss one day of work per month' limitation or why being absent one day per month is more appropriate than a work-preclusive limitation to two days per month.” Id. at 14-15 (noting that the VE testified that Plaintiff would be precluded from performing competitive work if he missed two days per month). Plaintiff maintains that absent an explanation, the RFC limitation of “may miss one day of work per month” is “arbitrary and therefore unsupported by substantial evidence.” Id. at 15.
The Commissioner responds that Plaintiff's argument is without merit because it is based on a misreading of the state agency physicians' prior administrative medical findings:
Rather than taking the prior administrative medical finding at face value, Plaintiff takes a convoluted position, citing Social Security Ruling 83-10, that the use of the word “occasional” means that he would be absent up to one-third of the days in a month (Pl.'s Br. at 14). SSR 83-10 does not support Plaintiff's position. Rather, the SSR explains the use of the word occasionally as meaning from very little up to one-third of the time in relation to exertional requirements of jobs, such as lifting, carrying, standing, walking, and sitting. See 1983 WL 31251, at *5-*6. Plaintiff cites no authority that use of the word occasional in reference to absences per month is used in the same manner. Plaintiff also points to no other evidence in the record, such as a competing medical source opinion, that supports a finding that he would be absent from work two or more days per month. Finding that “occasionally” as used in this context would also lead to the absurd result of the state agency psychological consultants finding that Plaintiff would be absent up to one-third of the month-a limitation that would render him unable to work-yet nevertheless concluding that he was not disabled (Tr. 73, 94, 113, 124).ECF No. 10 at 7-8. The Commissioner maintains that the RFC allowing for Plaintiff to miss up to one day of work per month due to his mental limitations was a reasonable conclusion supported by the record and should be affirmed. Id. at 9-11.
Upon review, the undersigned finds no basis for remand on this issue. The ALJ assessed the following RFC for Plaintiff:
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he cannot climb ladders, ropes or scaffolds. He can occasionally do postural activities. He is limited to frequent but not constant depth/peripheral vision work. He should avoid hazards and unprotected heights. The claimant is limited to unskilled tasks and occasional changes in the work setting, with no public interaction. He may miss one day of work per month.R.p. 28 (emphasis added).
The ALJ then stated that in making this finding, he “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p,” and he “considered the medical opinion(s) and prior administrative medical finding(s) in accordance with the requirements of 20 CFR 404.1520c and 416.920c..” R.p. 28.
The ALJ summarized Plaintiff's testimony from the hearing as follows:
At the hearing, in July 2022, the claimant testified that he cannot work because of constant pain due to a hernia and neck pain. He must be completely still due to his severe pain. Nerve impingement prevents him from holding onto objects. His monocular vision also prevents him from focusing without hurting his neck. ADHD prevents him from concentrating on all, but the simplest of tasks. His depression prevents him from maintaining emotional stability. (See Hearing testimony).R.p. 29.
After discussing the evidence related to Plaintiff's physical impairments, the ALJ then discussed the evidence related to Plaintiff's mental impairments:
The evidence concerning the claimant's mental impairments also fails to demonstrate the presence of disabling limitations. The claimant has been diagnosed with depression, anxiety and ADHD. The claimant sees a psychiatrist, Mari Asper, M.D., about every three months via telehealth appointments (6F; 8F; 13F; 16F; 19F). He has complained of symptoms such as depression, anxiety and difficulty concentrating. He has been prescribed medication such as Adderall and Zoloft (20F/7).
This degree of treatment is consistent with some degree of mental limitation. However, the claimant has not been psychiatrically hospitalized since his alleged onset date. Although the claimant reported to the emergency department once, he was discharged the same day. The record shows that, in June 2020, the claimant was presented to a primary care provider to establish new patient care. The claimant endorsed active suicidal ideation in that he had no reason to live, and he had a plan to jump off the Ravenel Bridge. The claimant wa[s] sent to the to the emergency department to be evaluated by psychiatry. At the emergency department, the claimant denied any suicidal thoughts or ideations. The claimant was discharged in stable condition the same day after his examination showed he was not suicidal and had a normal mood (3F/6; 4F/10). In addition, the claimant told Dr. Asper that [he] was sent to the emergency department because the primary care provider “kept pressing me about my depression issues and I just wasn't comfortable so I said some things I shouldn't have said” (19F/21). Therefore, while the claimant's treatment history supports some degree of limitation, it is not consistent with a disabling degree of limitation.
The claimant's mental status exam findings do not support the presence of disabling limitations. The claimant's mental status exams have revealed an anxious affect and occasional difficulty attending to tasks (4F/7; 6F/5; 19F/10, 13; 17; 21). These findings are consistent with some degree of limitation in the ability to sustain concentration and interact with others.
However, the claimant's mental status exams often revealed no abnormalities, and generally reflect: appropriate dress, hygiene, and grooming; normal cognition and memory; cooperative demeanor; normal thought processes, content, and associations, and appropriate affect, mood and speech (3F/6;6F/5; 8F/4; 13F/7, 9; 19F/10, 13, 17, 21). These mental status exam findings suggest that the claimant's mental symptoms are not as persistent or limiting as the claimant's allegations might suggest. The findings of normal speech, behavior, and appearance suggest that the claimant can get along appropriately with those with whom he has established a rapport. Therefore, while the claimant should not interact with the public, he does not have significant limitations in interacting with supervisors and co-workers. In terms of his ability to sustain concentration and adapt/manage himself, his symptoms[] would preclude his ability to perform complex or detailed tasks. However, the relative normalcy of his mental status exams, including intact memory and cognition, demonstrate that he can perform simple, routine, and repetitive tasks, with occasional changes in the work setting, consistent with unskilled work activity.R.pp. 30-31.
The ALJ then considered the medical opinions and prior administrative medical findings as follows:
In January 2022, Dr. Asper, the claimant's psychiatrist, opined that the claimant has an “adequate” ability to relate to others and complete tasks. The claimant has a “good” ability to complete simple and routine tasks and basic activities of daily living (16F/18F). I find Dr. Asper's opinion persuasive. She is the claimant's treating psychiatrist and her opinion is consistent with her exam findings, which shows cooperative behavior, normal thought process, and good memory and cognitive ability (see 6F, 8F, 13F, 19F).
The State Agency psychological consultants, Rebekah Jackson., and Blythe Farish-Ferrer, Ph.D., determined that the claimant can attend to and perform simple tasks for two plus hours at a time without special supervision. He can attend work regularly, needing to miss no more than an occasional day due to his mental illness. He can accept supervision, but may not be suited for work with the general public. He can use public transportation, make work related decisions, and protect himself from work related safety hazards (1A/2A; 9A/10A). I find these determinations generally persuasive because they provided a detailed narrative and cited the record, which showed that during offices visits and upon examinations, the claimant was alert and orientated, cooperative, and had intact memory and intact concentration.
The State Agency Medical Consultants, Stephen Wissman, M.D., and Stacie Weil, M.D., determined that the claimant can perform a light exertional range of activities, except he can occasionally climb ladders/ropes/scaffolds. He can frequently climb ramp/stairs, balance, and stoop. His depth perception is limited to
frequently. He should avoid concentrated exposure to work hazards (1A/2A; 9A/10A). I find these determinations generally persuasive. They are supported by a detailed narrative and specific cites to the record, which shows generally normal exam findings.
I note that the record contains a physical consultative examination (12F). The examiner, Adebola Rojugbokan, M.D., only opined that the claimant can see out of the right eye, hear and reason. I do not find this opinion persuasive. It is vague and does not provide functional limitations in vocationally relevant terms.R.pp. 31-32. The ALJ then concluded that “the above residual functional capacity assessment is supported by the claimant's objective findings, his treatment history, and the record as a whole.” R.p. 32.
Here, the ALJ's decision includes the narrative discussion required by SSR 96-8p and contains sufficient information to allow meaningful review. The ALJ explained that while Plaintiff's treatment history (which did not include in-patient psychiatric treatment) supports some degree of limitation, it is not consistent with a disabling degree of limitation. R.p. 30. The ALJ also explained that Plaintiff's mental status exams often revealed no abnormalities and that these findings “suggest that [Plaintiff's] mental symptoms are not as persistent or limiting as [Plaintiff's] allegations might suggest.” R.pp. 30-31. He summarized the State Agency psychological consultants' determinations that Plaintiff “can attend work regularly, needing to miss no more than an occasional day due to his mental illness,” and he explained that he found these determinations “generally persuasive because they provided a detailed narrative and cited the record.” R.pp. 3132. Thus, the ALJ discussed the evidence and opinions, providing a logical explanation of how he resolved conflicting evidence, why he found Plaintiff's treatment history and medical evidence inconsistent with a disabling degree of limitation, and why he found the psychological consultants' determinations persuasive. The ALJ's RFC conclusion that Plaintiff may miss up to one day of work per month is logical in light of the above-described discussion, as it is consistent with the psychological consultants' determination that Plaintiff can attend work regularly, missing only an occasional day of work. Thus, the undersigned finds that the ALJ's RFC analysis was proper. See Thomas, 916 F.3d at 311 (“Thus, a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.”).
Plaintiff relies on Daniel v. Saul, 6:19-CV-02792-BHH-KFM, 2020 WL 8083665 (D.S.C. Dec. 18, 2020), to support his argument that the ALJ did not adequately explain the basis for finding that the claimant would be absent from work one day per month. ECD No. 9 at 16-19. However, in Daniel, multiple treating providers opined that the claimant would miss “at least three days of work per month,” evidence that directly conflicted with the ALJ's finding that the claimant would miss no more than one day per month. 2020 WL 8083665, at *5. Here, however, the only opinion in the record that made a finding as to absences per month was that of the state agency psychological consultants, whose assessments the ALJ adopted. See R.pp. 31, 73, 94, 113, 124.
Unlike the ALJ in Daniel, the ALJ in this case did not fail to consider and reconcile conflicting evidence. Plaintiff did not testify at the administrative hearing that he must be absent from work multiple days a month or that he is routinely incapacitated for days. Moreover, Plaintiff does not identify any particular impairment, allegation, or symptom that the ALJ failed to adequately consider, nor does he cite to evidence suggesting that he was more limited than the RFC. See 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”); 20 C.F.R. § 404.1512(a) (“[Y]ou have to prove to us that you are . . . disabled. You must inform us about or submit all evidence known to you that relates to whether or not you are . . . disabled.”).
Nonetheless, Plaintiff argues in his Reply that “there is dispute among the parties regarding the meaning of state consultant findings that [Plaintiff] ‘can attend work regularly, needing to miss no more than an occasional day due to his mental illness,'” and he notes that the “ALJ apparently interpreted this finding to mean [Plaintiff] ‘may miss one day of work per month,'” which Plaintiff describes as “an unexplained conclusion that hinders judicial review of the basis for the ALJ's denial of benefits.” ECF No. 11 at 4. To the extent Plaintiff is asserting that the psychological consultants' use of the term “occasional day” created conflicting evidence that needed to be resolved, it was for the ALJ to resolve that conflict. See Hancock, 667 F.3d at 472 (“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.”). As Plaintiff himself points out, the ALJ did just that by limiting Plaintiff to missing one day of work per month. This court is not left to guess as to how the ALJ resolved this alleged conflict or ambiguity, and it is not appropriate for the court to reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. See id.
The ALJ was required to create a narrative discussion that builds “an accurate and logical bridge from the evidence to his conclusion,” Monroe, 826 F.3d at 189, which the ALJ did in his comprehensive discussion of the medical and non-medical evidence, Plaintiff's alleged symptoms, and the medical opinions of record. The ALJ considered Plaintiff's complaints and explained why the evidence did not support greater RFC restrictions. This narrative discussion allows the court to see how the evidence in the record-both medical and nonmedical-supports the ALJ's RFC determination. The court is not “left to guess” at how the ALJ reached his RFC determination, and the undersigned finds that the ALJ's conclusion is supported by substantial evidence. See Mascio, 780 F.3d at 637. Accordingly, remand is not warranted on this issue.
B. Resolving Conflicts Between VE Testimony and the DOT
Plaintiff also argues the ALJ did not properly resolve apparent conflicts between the VE's testimony and the DOT, such that his finding at step five is not supported by substantial evidence. The Commissioner argues that there is no apparent or obvious conflict between the DOT descriptions and the RFC and that substantial evidence supports the ALJ's finding at step five that there existed work in significant numbers that Plaintiff could perform despite his limitations. ECF No. 10 at 11-13 (citing 20 C.F.R. § 404.1566(b) (the Commissioner's step five burden of production is met if there are a significant number of jobs in the national economy “in one or more occupations” that an individual can perform)).
As part of the ALJ's duty at step five of the sequential process, the ALJ must resolve any apparent conflicts between a VE's testimony and the DOT. See Pearson v. Colvin, 810 F.3d 204, 208-11 (4th Cir. 2015); Pol'y Interpretation Ruling: Titles II & Xvi: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR 00-4p, 2000 WL 1898704 (S.S.A. Dec. 4, 2000). The United States Court of Appeals for the Fourth Circuit has explained that
[a]n ALJ cannot rely unquestioningly on a VE's testimony. Rather, an ALJ must ensure that any “apparent” conflicts between the [DOT] and the VE's testimony are reasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must ask the VE whether his or her testimony conflicts with the DOT. If the answer is “yes,” the ALJ “must elicit a reasonable explanation for the conflict before relying on” the testimony. Id. But even if the VE answers “no,” the ALJ has an affirmative “duty to make an independent identification of apparent conflicts.” Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in which a VE's testimony “seems to, but does not necessarily,” conflict with the “express language” of the DOT-even if the conflict is not “obvious.” Id. at 209.Thomas, 916 F.3d at 313.
At Step Five, the ALJ explained as follows:
To determine the extent to which these limitations erode the unskilled light occupational base, I asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative occupations such as hand packager (No. 559.687-074, SVP 2, Light), with approximately 142,000 jobs in the national economy; sorter (No. 788.687-106, SVP 2, Light), with approximately 170,000 jobs in the national economy, and blending tank tender helper (No. 520.687-066, SVP 2, Light), with approximately 2450,000 jobs in the national economy.
Pursuant to SSR 00-4p, I have determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles. Based on the testimony of the vocational expert, I conclude that, considering the claimant's age, education, work experience, and residual functional capacity, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. A finding of “not disabled” is therefore appropriate under the framework of the above-cited rule.R.p. 33.
As Plaintiff notes in his brief, this number appears to be a scrivener's error, as the VE testified to 245,000 jobs at the hearing. See ECF No. 9 at 19; R.p. 54.
Plaintiff argues that an apparent conflict exists between the limitation that Plaintiff must “avoid hazards” and the descriptions contained in the DOT of two jobs identified by the VE, the blending tank tender helper and the sorter. ECF No. 9 at 27. Regarding the job of blending tank tender helper, DOT 520.687-066, Plaintiff argues as follows:
Specifically, a blending tank tender helper appears to perform the job in the presence of industrial hazards, specifically, moving mechanical parts: the job requires a worker to direct the filling of industrial holding tanks, signaling industrial truck operators to guide positioning of barrels, holding a barrel in contact with a tank opening, turning the valve of the tank, and cleaning equipment and floors. DOT 520.687-066. As the DOT entry for blending tank tenders indicates, these tanks contain mechanical agitators, which it is reasonable to assume are hazardous. DOT 520.685-030. A person limited to avoiding hazards thus could not perform this job.ECF No. 9 at 27.
Regarding the job of sorter, DOT 788.687-106, Plaintiff argues that
[t]he sorter job appears to be performed in the presence of industrial hazards, specifically moving mechanical parts: a person performing this job must gather and sort scrap leather from industrial cutting operations. DOT 788.687-106. An industrial cutting operation appears to be a hazard with moving mechanical parts, thus a person limited to avoiding hazards could not perform this job.ECF No. 9 at 27. Plaintiff contends that the ALJ did not identify or resolve these apparent conflicts, such that “the ALJ's Step Five finding that a significant number of jobs exist that [Plaintiff] can perform despite his RFC is not supported by substantial evidence.” Id. at 27-28 (citing R.p. 33; Pearson, 810 F.3d at 209-10; SSR 00-4p).
In Pearson, the RFC and the hypothetical posed to the VE limited the claimant to occasional “overhead reaching,” but the DOT listed frequent “reaching” as a requirement for each occupation identified by the VE. Pearson, 810 F.3d at 210. The Fourth Circuit found that there was an apparent conflict between the VE's testimony and the DOT requiring resolution, because overhead reaching may be contemplated within the meaning of “reaching.” Id. at 211. The court thus concluded that the ALJ should have elicited testimony from the VE to determine “exactly what form of reaching the stated occupations require and whether the claimant can fulfill those requirements.” Id. (explaining that the VE “must testify to how many of these positions do not require frequent bilateral overhead reaching” because an ALJ “can only find a claimant not disabled at step five of the analysis if the Commissioner proves that the claimant can perform other work that ‘exist[s] in significant numbers in the national economy'” (quoting 20 C.F.R. § 404.1560(c))); id. at 209-10 (“[I]f the ALJ does not elicit this explanation, then the expert's testimony cannot provide substantial evidence to support the ALJ's decision. An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT].”).
As Plaintiff notes in his brief, see ECF No. 9 at 22, “hazards” are defined in SSR 96-9p as including “moving mechanical parts of equipment, tools, or machinery; electrical shock; working in high, exposed places; exposure to radiation; working with explosives; and exposure to toxic, caustic chemicals.” SSR 96-9p, 1996 WL 374185, at *9. Despite Plaintiff's interpretation of the job duties listed in the DOT, each job's description expressly states that these particular individual hazards are “Not Present - Activity or condition does not exist.” See Blending Tank Helper, DOT No. 520.687-066, 1991 WL 674063; Scrap Sorter, DOT No. 788.687-106 (G.P.O.), 1991 WL 681197.
Although Plaintiff speculates that these jobs could involve exposure to hazards, see ECF No. 11 at 7-8, the Fourth Circuit in Pearson expressly declined to expand the ALJ's duty to include inquiry as to “all possible conflicts,” because it would impermissibly “require the ALJ to do more than simply compare the express language of the [DOT] and the vocational expert's testimony, and would allow the claimant to nitpick an ALJ's or expert's word choice on appeal.” 810 F.3d at 209 (emphasis added). Here, the express language in the DOT's descriptions for the occupations identified by the VE makes clear that hazards are “Not Present - Activity or condition does not exist.” See Blending Tank Helper, DOT No. 520.687-066 (G.P.O.), 1991 WL 674063; Scrap Sorter, DOT No. 788.687-106 (G.P.O.), 1991 WL 681197; see also Inspector and Hand Packager, DOT No. 559.687-074 (G.P.O.), 1991 WL 683797.
For the reasons set forth above, Plaintiff has not demonstrated an apparent, unresolved conflict between the VE's testimony and the DOT based on Plaintiff's limitation to avoiding hazards. See Trout v. Kijakazi, No. CV 0:20-4286-PJG, 2022 WL 538213, at *3-4 (D.S.C. Feb. 23, 2022) (finding Plaintiff cannot demonstrate an apparent, unresolved conflict where the DOT description for the jobs identified by the VE stated that hazards are “not present”); Eddie v. Berryhill, No. 5:16-CV-801-D, 2017 WL 4002147, at *5-6 (E.D. N.C. Aug. 24, 2017) (finding there was no apparent conflict for the ALJ to resolve between the VE's testimony and the DOT description for electronics worker where the DOT listed the pulmonary irritants the ALJ was concerned with as “Not Present”), report and recommendation adopted, No. 5:16-CV-801-D, 2017 WL 3995813 (E.D. N.C. Sept. 11, 2017). Accordingly, substantial evidence supports the ALJ's determination at step five, and Plaintiff has not shown remand is warranted on this basis.
Though Plaintiff did not raise the following point in his briefs, the undersigned notes that the ALJ did not ask the VE at the administrative hearing whether there were any conflicts between the VE's testimony and the information provided in the DOT. See R.pp. 53-54. Although an ALJ is required to ask the VE on the record whether there are conflicts, see SSR 00-4p, 2000 WL 1898704, at *2, courts generally find an ALJ's failure to question the VE about potential conflicts to be harmless where no apparent conflict exists. See Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (finding that the ALJ's failure to ask about conflict between the VE testimony and DOT was harmless error because no conflict existed); Edwards v. Berryhill, No. 5:16-cv-00197-RJC, 2018 WL 1176067 at *5 (W.D. N.C. March 6, 2018) (“While ALJs have the affirmative duty to ask the VE if the evidence she produced conflicts with the DOT, a violation of that duty does not always warrant remand. An ALJ commits harmless error when she fails to inquire as to conflicts between the VE testimony and the DOT when no conflict existed in the first place”); Critchley v. Colvin, No. 5:15-CV-08288, 2016 WL 3030211, at *8 (S.D. W.Va. May 4, 2016) (finding ALJ's failure to question VE about potential conflicts harmless where “no conflict, actual or apparent,” existed), recommendation adopted, 2016 WL 3033763 (S.D. W.Va. May 26, 2016); Allen v. Comm'r of Soc. Sec. Admin., No. 8:13-CV-03477-TLW, 2015 WL 5315941, at *18 (D.S.C. Sept. 9, 2015) (finding ALJ's failure to comply with SSR 00-4p by asking the VE about conflicts to be harmless error); see also Vannoy v. Comm'r of Soc. Sec. Admin., No. 5:20-CV-00176-WCM, 2022 WL 392508, at *6 (W.D. N.C. Feb. 7, 2022) (finding that ALJ's failure to make inquiry into conflict did not require remand); Henry v. Berryhill, No. 2:16-CV-3884-PMD-MGB, 2018 WL 1319015, at *8 (D.S.C. Jan. 19, 2018) (finding ALJ's failure to ask VE if conflict existed to be harmless error), report and recommendation adopted, No. 2:16-CV-3884-PMD-MGB, 2018 WL 1305716 (D.S.C. Mar. 13, 2018). Because there were no apparent conflicts, the undersigned concludes that any error in this regard was harmless.
V. CONCLUSION
It is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead 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. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).