FOGLEMAN v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PAUL FOGLEMAN, )

)

Plaintiff, )

)

v. ) 1:19CV78

)

ANDREW M. SAUL, )

Commissioner of Social )

Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Paul Fogleman, brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security,

denying Plaintiff’s claim for Disability Insurance Benefits

(“DIB”). (Docket Entry 1.) Defendant has filed the certified

administrative record (Docket Entry 6 (cited herein as “Tr. __”)),

and both parties have moved for judgment (Docket Entries 9, 11; see

also Docket Entry 10 (Plaintiff’s Memorandum); Docket Entry 12

(Defendant’s Memorandum); (Docket Entry 13 (Plaintiff’s Reply)).

For the reasons that follow, the Court should remand this matter

for further administrative proceedings.

1 The United States Senate confirmed Andrew M. Saul as the Commissioner of

Social Security on June 4, 2019, and he took the oath of office on June 17, 2019.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul

should be substituted for Nancy A. Berryhill as the Defendant in this suit.

Neither the Court nor the parties need take any further action to continue this

suit by reason of the last sentence of section 205(g) of the Social Security Act,

42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of

October 1, 2011. (Tr. 176-77.) Upon denial of that application

initially (Tr. 70-82, 96, 113-16) and on reconsideration (Tr. 97-

112, 118-21), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 122). Plaintiff, his

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 26-69.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 10-22.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6),

and Plaintiff filed an action in this Court seeking judicial review

of the Commissioner’s final decision, Fogleman v. Berryhill, No.

1:16CV913, Docket Entry 2 (M.D.N.C. July 7, 2016). Pursuant to

Defendant’s Uncontested Motion to Remand under Sentence Four of 42

U.S.C. § 405(g), see Fogleman, Docket Entry 14 (Apr. 3, 2017), the

Court remanded the matter for further administrative proceedings,

including evaluation of Plaintiff’s mental impairments, as well as

reevaluation of Plaintiff’s residual functional capacity (“RFC”)

and the Department of Veterans Affairs’ (“VA”) disability rating

(Tr. 496-99). In turn, the Appeals Council remanded the matter

back to the ALJ for further administrative proceedings consistent

with the Court’s order. (Tr. 502-08.)

The ALJ held a second hearing, attended by Plaintiff, his

attorney, and a VE (Tr. 418-70). The ALJ thereafter determined

2

that Plaintiff did not meet the qualifications for disability under

the Act. (Tr. 396-412.) Plaintiff then filed the instant action

seeking judicial review of the ALJ’s decision in this Court.2

In rendering that decision, the ALJ made the following

findings:

1. [Plaintiff] last met the insured status requirements

of the . . . Act on June 30, 2015.

2. [Plaintiff] did not engage in substantial gainful

activity during the period from his alleged onset date of

October 1, 2011 through his date last insured [(“DLI”)]

of June 30, 2015.

3. Through the [DLI], [Plaintiff] had the following

severe impairments: shoulder arthropathy; post-traumatic

stress disorder [(“PTSD”)]; anxiety disorder; and alcohol

use disorder, in remission.

. . .

4. Through the [DLI], [Plaintiff] did not have an

impairment or combination of impairments that met or

medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1.

. . .

5. . . . [T]hrough the [DLI], [Plaintiff] had the [RFC]

to perform medium work . . . except that he can

occasionally reach overhead with his dominant upper

extremity. He can understand, recall, and carry out

simple, routine tasks, involving no more than simple,

2 “[W]hen a case is remanded by a [f]ederal court for further

consideration, the decision of the [ALJ] will become the final decision of the

Commissioner after remand on [a claimant’s] case unless the Appeals Council

assumes jurisdiction of the case. The Appeals Council may assume jurisdiction

based on written exceptions to the decision of the [ALJ] which [a claimant]

file[s] with the Appeals Council or based on its authority . . . to assume

jurisdiction of [a claimant’s ] case even though no written exceptions have been

filed.” 20 C.F.R. § 404.984. Here, the record reflects neither that Plaintiff

filed written exceptions to the ALJ’s decision with the Appeals Council nor that

the Appeals Council assumed jurisdiction of his case under its own authority.

3

short instructions and simple, work-related decisions

with few workplace changes. He can sustain his

concentration and attention for two hours at a time. He

can have occasional interaction with supervisors, but no

interaction with coworkers or the public. He cannot

perform work at a fixed production rate or pace.

. . .

6. Through the [DLI], [Plaintiff] was unable to perform

any past relevant work.

. . .

10. Through the [DLI], considering [Plaintiff’s] age,

education, work experience, and [RFC], there were jobs

that existed in significant numbers in the national

economy that [Plaintiff] could have performed.

. . .

11. [Plaintiff] was not under a disability, as defined

in the . . . Act, at any time from October 1, 2011, the

alleged onset date, through June 30, 2015, the [DLI].

(Tr. 401-11 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Even given

those limitations, the Court should remand this case for further

administrative proceedings.

4

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is substantial evidence.” Hunter,

993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Social Security Commissioner].” Mastro, 270 F.3d at

176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to

5

whether a claimant is disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the Court], therefore, is not whether [the claimant] is disabled,

but whether the ALJ’s finding that [the claimant] is not disabled

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.” Craig v. Chater, 76 F.3d

585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means the “‘inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).3 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

3 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. The Supplemental Security Income Program . . . provides benefits to

indigent disabled persons. The statutory definitions and the regulations . . .

for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal

citations omitted).

6

account a claimant’s age, education, and work experience in

addition to [the claimant’s] medical condition.” Id. “These

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “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 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 [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2

(4th Cir. 1999).4 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

4 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

7

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.5 Step four

then requires the ALJ to assess whether, based on that RFC, the

claimant can “perform past relevant work”; if so, the claimant

does not qualify as disabled. Id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the RFC] and [the claimant’s] vocational capabilities (age,

education, and past work experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65. If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]

remains able to work other jobs available in the community,” the

claimant qualifies as disabled. Hines, 453 F.3d at 567.6

5 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

6 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

8

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ erred by failing to identify and obtain a

reasonable explanation for the apparent conflict between the

testimony of the VE and the [Dictionary of Occupational Titles

(‘DOT’)] regarding the reasoning requirements of the jobs cited at

[s]tep [f]ive of the SEP” (Docket Entry 10 at 5 (bold font and

single-spacing omitted));

2) “[t]he ALJ erred by failing to identify and obtain a

reasonable explanation for the apparent conflict between the

testimony of the VE and the [DOT] regarding the reaching

requirements of the jobs cited at [s]tep [f]ive of the SEP” (id. at

7 (bold font and single-spacing omitted)); and

3) “[t]he ALJ erred by failing to perform a function[-]by[-

]function assessment of the contested functions of reaching and

lifting when assessing the RFC” (id. at 10 (bold font and single-

spacing omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 12 at 9-22.)

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

9

1. Conflict Between VE’s Testimony and DOT Regarding Reasoning

Development Level

In Plaintiff’s first assignment of error, he maintains that

“[t]he ALJ . . . failfed] to identify and obtain a reasonable

explanation for the apparent conflict between the testimony of the

VE and the [DOT] regarding the reasoning requirements of the jobs

[relied upon by the ALJ] at [s]tep [f]live of the SEP” in violation

of Social Security Ruling 00-4p, Policy Interpretation Ruling:

Titles IT and XVI: Use of Vocational Expert and Vocational

Specialist Evidence, and Other Reliable Occupational Information in

Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000) (“SSR 00-4p”),

and Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015). (Docket Entry

10 at 5 (bold font and single-spacing omitted) .) In particular,

Plaintiff points out that all three jobs cited by the VE (and

adopted by the ALJ at step five) involve a Reasoning Development

Level (“RDL”) of 2, (A) which “requires an individual to be capable

of ‘carry[ing] out detailed but uninvolved written or oral

instructions’” (id. (quoting DOT, App’x C (“Components of the

Definition Trailer”), § III (“General Educational Development”),

1991 WL 688702 (emphasis added), and citing DOT, No. 311.677-018

(“Dining Room Attendant”), 1991 WL (G.P.O. 4th ed. rev. 1991), DOT,

No. 381.687-018 (“Cleaner, Industrial”), 1991 WL 673258, and DOT,

No. 920.587-018 (“Packager, Hand”), 1991 WL 687916)), and (B) which

conflicts with the VE’s testimony that an individual limited to

“*‘simple, short instructions’” could perform those jobs (id.

10

(quoting Tr. 404, and referencing Tr. 462-63)).’ Plaintiff asserts

that the United States Court of Appeals for the Fourth Circuit has

held that an apparent conflict exists between the DOT’s

classification of jobs as involving detailed instructions (RDL 2)

and a VE’s testimony that an individual restricted to short, simple

instructions could perform those jobs. (Id. at 6 (citing Thomas v.

Berryhill, 916 F.3d 307, 314 (4th Cir. 2019).) Plaintiff’s

contentions have merit and warrant remand.

SSR 00-4p places an affirmative duty on an ALJ to elicit an

explanation from the VE as to any “apparent unresolved conflict”

between the VE’s testimony and the DOT:

Occupational evidence provided by a VE .. . generally

should be consistent with the occupational information

supplied by the [DOT]. When there is an apparent

unresolved conflict between VE . . . evidence and the

[DOT], the [ALJ] must elicit a reasonable explanation for

the conflict before relying on the VE .. . evidence to

support a determination or decision about whether the

claimant is disabled. At the hearings level, as part of

the [ALJ’s] duty to fully develop the record, the [ALJ]

will inguire, on the record, as to whether or not there

is such consistency.

SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added). ™“[A]n ALJ has

not fulfilled his affirmative duty merely because the [VE] responds

‘yes’ when asked if her testimony is consistent with the [DOT],”

Pearson, 810 F.3d at 208 (internal quotation marks omitted); thus,

’ The VE and the ALJ refer to the “Cleaner, Industrial” job in the DOT as

“Janitor,” the “Dining Room Attendant” job in the DOT as “Dish Washer,” and the

“Packager, Hand” job in the DOT as “Warehouse Worker.” (See Tr. 411, 463.) For

ease of reading, this Recommendation will refer to those jobs by the names used

by the VE and the ALJ.

11

“[t]he ALJ independently must identify . . . where the [VE’s]

testimony seems to, but does not necessarily, conflict with the

[DOT],” id. at 209 (emphasis added); see also id. (rejecting the

Commissioner’s argument that “apparent” conflict meant only

“obvious” one).

Here, the ALJ queried the VE whether an individual limited to

“medium work, except that the individual is able to understand,

recall, and carry out simple, routine tasks involving no more than

simple, short instructions, and simple work-related decisions with

few workplace changes; and is able to sustain concentration and

attention for two hours at a time . . . is unable to interact with

the general public, and unable to interact with coworkers, but can

occasionally interact with supervisors . . . [and] should have no

work at a fixed production rate or pace” could perform Plaintiff’s

past relevant work (“PRW”). (Tr. 462-63.) In response, the VE

opined that such an individual could not perform Plaintiff’s PRW

but could perform other jobs, such as Janitor, Dishwasher, and

Warehouse Worker. (Tr. 463.) The VE then provided the

corresponding DOT codes for the jobs, as well as their incidence in

the national economy. (Id.)

The ALJ subsequently adopted the VE’s testimony as to

Plaintiff’s ability to perform the three jobs in question:

. . . To determine the extent to which [the RFC’s]

limitations erode the unskilled medium occupational base,

through the [DLI], I asked the [VE] whether jobs existed

12

in the national economy for an individual with

[Plaintiff’s] age, education, work experience, and [RFC].

The [VE] testified that given all these factors the

individual would have been able to perform the

requirements of representative occupations such as a

[J]anitor, DOT #381.687-018, which is medium in exertion,

has an SVP of 2 (unskilled), and represents more than

500,000 jobs nationally; a [D]ish [W]asher, DOT #311.677-

018, which is medium in exertion, has an SVP of 2, and

represents more than 300,000 jobs nationally; and a

[W]arehouse [W]orker, DOT #920.587-018, which is medium

in exertion, has an SVP of 2, and represents more than

300,000 jobs nationally.

Pursuant to SSR 00-04p, I have determined that the [VE’s]

testimony is consistent with the information contained in

the [DOT].

Based on the testimony of the [VE], I conclude that,

through the [DLI], considering [Plaintiff’s] age,

education, work experience, and [RFC], [Plaintiff] was

capable of making a successful adjustment to other work

that existed in significant numbers in the national

economy. A finding of “not disabled” is therefore

appropriate . . . .

(Tr. 411 (internal citation omitted).) Plaintiff contends that an

apparent, unresolved conflict exists concerning all three of the

cited jobs. (See Docket Entry 10 at 5-7.)

As argued by Plaintiff, the Fourth Circuit indeed has held

that jobs involving an RDL of 2 apparently conflict with a

limitation to “short, simple instructions,” because RDL 2 entails

“the ability to carry out detailed but uninvolved written or oral

instructions.” Thomas v. Berryhill, 916 F.3d 307, 314 (4th Cir.

2019) (emphasis added). In that regard, the Fourth Circuit noted:

We believe that [the plaintiff], being limited to short,

simple instructions, may not be able to carry out

detailed but uninvolved instructions. This is not a

13

categorical rule - some instructions, particularly if

they are well-drafted, may be simultaneously short,

simple, detailed, and uninvolved. Even so, the conflict

between [the plaintiff’s] limitation to short, simple

instructions and the VE’s testimony that [the plaintiff]

could perform jobs that include detailed but uninvolved

instructions is as apparent as the conflict we identified

in Pearson. Since we held that an apparent conflict

existed in Pearson, we are satisfied that one exists in

this case, too. We remand so that the ALJ can resolve

the conflict in accordance with the [SSA]’s regulations.

Id. (internal footnote omitted); see also Lawrence v. Saul, 941

F.3d 140, 143 (4th Cir. 2019) (finding no inconsistency between the

plaintiff’s limitation to the “simple, routine[,] repetitive tasks

of unskilled work” and ™“[RDL] 2’s notions of ‘detailed but

uninvolved . . . instructions,’” and noting that “key difference

[wa]s that [the plaintiff in Thomas] was limited to ‘short’

instructions[, which wa]s inconsistent with ‘detailed’ because

detail and length are highly correlated”).

In light of Thomas, the ALJ here erred by failing to identify

and resolve the apparent conflict between the DOT’s assignment of

RDL 2 to the jobs of Janitor, Dish Washer, and Warehouse Worker,

and the VE’s testimony that an individual could perform those jobs

if limited to “simple, short instructions” (Tr. 463).

Defendant contends that, in “stark contrast” to Thomas (Docket

Entry 12 at 11), the VE here resolved any apparent conflict between

the cited jobs and the DOT by testifying that the DOT classifies

those jobs as “‘unskilled,’” such that they require “‘*‘little or no

judgment to do simple duties that can be learned on the job ina

14

short period of time’” (id. at 12 (quoting Tr. 463, and citing 20

C.F.R. § 404.1568(a))). Thus, Defendant argues, “regardless of the

DOT reasoning level classification,” a hypothetical person with

Plaintiff’s limitation to simple, short instructions could still

perform those jobs. (Id.)

Defendant’s argument fails because, as recognized by Plaintiff

(see Docket Entry 13 at 1-2), the DOT classifies the jobs at issue

in Thomas as involving Specific Vocational Preparation (“SVP”) 2,

see Thomas, 916 F.3d at 314; see also DOT, No. 209.587-034

(“Marker”), 1991 WL 671802; DOT, No. 727.687-054 (“Final

Inspector”), 1991 WL 679672; DOT, No. 209.667-014 (“Order Caller”),

1991 WL 671807, and jobs involving SVP 2 equate to unskilled work,

see SSR 00-4p, 2000 WL 1898704, at *3 (citing 20 C.F.R.

§ 404.1568). Therefore, under the implicit reasoning of Thomas,

the mere fact that the VE identified all three jobs as “unskilled”

does not resolve the apparent conflict between the jobs’ reasoning

level and Plaintiff’s restriction to simple, short instructions.

Notably, the ALJ made no other attempt to resolve this apparent

conflict, either in his examination of the VE or in the decision

itself. (See Tr. 411, 462-63.)

Defendant next asserts that “Plaintiff cannot show any harmful

error [] because overwhelming evidence in the record supports the

ALJ’s conclusion that [Plaintiff] could meet the mental demands of

simple, routine, unskilled work and follow ‘detailed but uninvolved

15

instructions.’” (Docket Entry 12 at 13 (citing Tr. 403-11).)

Defendant points out that Plaintiff “had a high school diploma and

vocational training as an auto diesel mechanic” and “successfully

performed” his past relevant work “for 26 years . . . and [] only

stopped working to retire and travel after the company that

supplied him with chickens went out of business.” (Id. (citing Tr.

209, 403, 423, 437-38, 608-09, 620).) In addition, Defendant

points to Plaintiff’s “generally normal mental status examinations”

and only “‘mild to moderate’” memory problems (id. (citing Tr. 288,

312, 350, 409, 727, 730, 770)), as well as his abilities to “pay

bills, count change, make simple meals, mow the lawn, shop in

stores, travel to his mountain home, care for himself

independently, and help with household chores” (id. at 14 (citing

Tr. 205-08, 315, 403-04)). Defendant thus argues that the jobs

cited by the VE “fell comfortably within Plaintiff’s mental

functional capacity.” (Id. (quoting Keller v. Berryhill, 754 F.

App’x 193, 199 (4th Cir. 2018), for proposition that, “where

claimant can ‘actually perform’ the occupations identified by the

[VE], any error related to a conflict between the [DOT] and the

[VE’s] testimony is harmless”).) Defendant’s argument fails for

two reasons.

First, Defendant overlooks the fact that the ALJ assigned

“partial weight” to the opinions of the initial-level state agency

psychological consultant (Tr. 408), who opined that Plaintiff

16

experienced “[m]Joderate[] limitat[ion]” (Tr. 77) in his ability to

understand, remember, and carry out detailed instructions (see Tr.

78 (emphasis added)) and expressly found that Plaintiff “would have

difficulty understanding and remembering [such] instructions” (id.

(emphasis added)). Notably, the consultant believed that Plaintiff

could maintain his concentration well enough to perform only “two-

step tasks.” (Id.) The ALJ did not report disagreement with any

of those opinions. (See Tr. 408.)

Second, Defendant overstates the holding in Keller. The

Keller court did not hold that, where a claimant can “‘actually

perform’” the jobs in question, any error related to an apparent,

unresolved conflict between the VE and the DOT qualifies as

harmless (Docket Entry 12 at 14 (quoting Keller, 754 F. App’x at

199)). In actuality, the court in Keller merely noted that, in

finding that an apparent, unresolved conflict existed between jobs

involving RDL 3 and a restriction to simple instructions, the court

neither found the existence of an actual conflict, nor that the

plaintiff could not “actually perform” the jobs in question.

Keller, 754 -F. App’x at 199. Moreover, although Keller

acknowledged that federal courts generally “appll[y] the harmless

error doctrine in reviewing a decision of the Commissioner denying

a benefits claim,” Keller, 754 F. App’x at 199 (citing Patterson v.

Commissioner of Soc. Sec., 846 F.3d 656, 658 (4th Cir. 2017)),

Keller expressly recognized that an unresolved, apparent conflict

17

between a VE’s testimony and the DOT precludes application of the

harmless error doctrine, id. (citing Pearson, 810 F.3d at 210).

In sum, because an apparent, unresolved conflict exists

between the VE’s testimony and the DOT with respect to all three

jobs relied upon by the ALJ, the Commissioner has failed to carry

his burden at step five of the SEP, warranting remand.

2. Conflict Between VE’s Testimony and DOT Regarding Reaching

In Plaintiff’s second issue on review, he asserts that the ALJ

erred by failing to resolve another apparent conflict between the

VE’s testimony and the DOT in violation of Social Security Ruling

O0-4p and Pearson. (See Docket Entry 10 at 7-10.) More

specifically, Plaintiff maintains that “[t]he ALJ erred by failing

to identify and obtain a reasonable explanation for the apparent

conflict between the testimony of the VE and the [DOT] regarding

the reaching requirements of the jobs [relied upon by the ALJ] at

[s]tep [f]live of the SEP.” (Id. at 7 (bold font and single-spacing

omitted) .) In that regard, Plaintiff argues that the DOT’s job

descriptions for all three of the jobs in question reflect either

frequent or constant reaching (id. at 7 (citing DOT, No. 381.687-

018 (“Cleaner, Industrial”), 1991 WL 673258 (“Reaching: Frequently

- Exists from 1/3 to 2/3 of the time”), DOT, No. 311.677-018

(“Dining Room Attendant”), 1991 WL 672696 (“Reaching: Constantly -

Exists 2/3 or more of the time”), and DOT, No. 920.587-018

(“Packager, Hand”), 1991 WL 687916 (“Reaching: Constantly - Exists

18

2/3 or more of the time”)), which conflicts with the VE’s testimony

that an individual limited to only occasional overhead reaching

with the dominant arm could perform those jobs (see id. at 7-8

(referencing Tr. 463). Plaintiff further maintains that the

Fourth Circuit in Pearson found that same conflict “apparent” and

remanded for the ALJ to resolve it. (Id. at 8-10 (citing Pearson,

810 F.3d at 210-12).) Plaintiff’s arguments have merit.

In Pearson, “[t]he ALJ found [the claimant’s] non-dominant arm

could only occasionally reach upward,” but for all three jobs cited

by the VE, “the [DOT] list[ed] frequent reaching as a requirement.”

Pearson, 810 F.3d at 210 (emphasis in original). The Pearson court

further noted that “[t]he [DOT] defines reaching as ‘[e]xtending

hand(s) and arm(s) in any direction.’” Id. (quoting Selected

Characteristics of Occupations Defined in the Revised Dictionary of

Occupational Titles, App’x C (“Physical Demands”), $ 8 (U.S. Dep’t

of Labor 1993) (“SCO”)). The court then observed: “Although the

[DOT] does not expressly state that the occupations identified by

the [VE] require frequent bilateral overhead reaching, the [DOT’s]

broad definition of ‘reaching’ means that they certainly may

require such reaching.” Id. at 211 (emphasis in original). The

court found the ALJ had failed to identify or resolve the apparent

conflict and remanded the case. Id. at 211-12.

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Here, as to reaching, the ALJ and the VE had the following

exchange:

[ALJ:] What would the vocational impact be if we

assume that the person is able to occasionally

reach overhead with the dominant arm?

[VE:] This would continue to allow access to all

samples that I’ve cited for the first

[h]ypothetical, assuming unlimited use of the

non-dominant upper extremity.

[ALJ:] And if the non-dominant is also occasionally

reaching overhead, would that change your

opinion?

[VE:] This will preclude the Warehouse Worker,

however will continue to allow access to the

Dish[ W]asher and the Janitor.

(Tr. 463-64.) During cross-examination of the VE by Plaintiff’s

attorney, this additional exchange occurred:

[ATTY:] If somebody is limited to occasional, not just

overhead, but also reaching out in front of

his body with both the dominant and non-

dominant arms, would any of the job[s] that

you’ve mention be available?

[VE:] No. There are only a very small number of

jobs which accommodate occasional use of both

upper extremities.

. . .

[ALJ:] . . . [H]as your testimony in this case been

consistent with the [DOT]?

[VE:] It has been consistent. Any factor which is

simply not addressed by the DOT are [sic]

based on my training and experience.

(Tr. 465-66 (emphasis added).) A comparison of post-Pearson cases

in this Court supports the conclusion that the ALJ here neither

20

sufficiently identified nor resolved the apparent conflict in

question.

For example, in one recent case, the Court concluded that the

ALJ adequately identified and resolved the apparent conflict:

The ALJ [] asked the VE whether thle] three jobs [in

question] would remain available if the ALJ altered the

hypothetical to reflect no overhead reaching with the

left, non-dominant upper extremity, and the VE responded

that [all three] jobs would remain appropriate. The ALJ

then inquired about the impact that amending the

hypothetical to occasional reaching in all directions

would have on the available jobs, and the VE eliminated

[two] jobs, but testified as follows regarding the

Telephone Solicitor job:

[VE: ] The [T]lelephone [SJolicitor .. .

per the [DOT] lists occasional for

both reaching and handling. It does

not distinguish between _. . .

whether it’s one [extremity], or the

other, or bilateral. . . . But

based on professional experience

with that occasional, it does ...

[c]lertainly fall within the [DOT]

description.

After cross-examination of the VE by [the p]laintiff’s

representative, the following exchange occurred between

the ALJ and the VE:

[ALJ: ] [I]s your testimony consistent with

the [DOT]?

[VE: ] Yes, Your Honor, and there is no

conflict in any of my testimony with

the [DOT] . I would just

specifically state that for those

matters that the [DOT], or the

[SCO], its accompanying volume, do

not address — those issues would be

based on my professional

experience. . . . The [DOT] does

not make a differentiation between

21

bilateral or unilateral use of limbs

or any type of postural

movements. . . . Also

differentiating the types of

reaching whether in any specific

direction, it does not deal with

that. So in those cases that I just

mentioned, those issues with the

testimony would be based upon my

professional experience, but, again,

no conflict with the [DOT].

[T]he ALJ here resolved the apparent conflict between the

DOT’s listings for the three jobs in question reflecting

frequent and occasional reaching, see DOT No. 249.587-018

(“Document Preparer, Microfilming”), 1991 WL 672349; DOT

No. 726.684-110 (“Touch-Up Screener, Printed Circuit

Board Assembly”), 1991 WL 679616; DOT No. 299.357-014

(“Telephone Solicitor”), 1991 WL 672624, and the VE’s

testimony that an individual unable to reach overhead

could perform those jobs. As described above, the VE’s

testimony reflects that he expressly acknowledged that

the DOT neither differentiated between unilateral and

bilateral reaching, nor specifically addressed the

direction of reaching involved and, thus, relied on his

own professional experience to opine that an individual

who could not reach overhead with the left, non-dominant

arm could still perform all three of the jobs in

question.

Allen v. Berryhill, No. 1:17CV277, 2018 WL 2025666, at *6 (M.D.N.C.

May 1, 2018) (unpublished) (internal citations omitted) (emphasis

added), recommendation adopted, slip op. (M.D.N.C. May 23, 2018)

(Biggs, J.).

Conversely, in another case in this district, the ALJ and VE

conducted the following exchange:

[ALJ]: Has all of your testimony today been

consistent with your training, education, and

experience?

22

[VE]: It has, Your Honor, with somewhat outside

[sic] the [DOT] and the companion publications

just with the differentiating with the sit and

stand as well as the breakdown of reaching

right versus left. . . . And that is

consistent with my 25 plus years of doing

[inaudible], talking with employers, doing

jobs, being in the industry.

Crouse v. Saul, No. 1:18CV269, 2019 WL 4015553, at *4 (M.D.N.C.

Aug. 26, 2019) (unpublished) (Peake, M.J.), recommendation adopted,

2019 WL 5783532 (M.D.N.C. Sept. 16, 2019) (unpublished) (Osteen,

Jr., J.). Given that exchange, the Court distinguished Allen based

on the following rationale:

. . . [T]he VE did not identify the specific conflict in

question. Instead, when queried, the VE stated that her

testimony was “somewhat outside the [DOT] and the

companion publications just with the differentiating with

the sit and stand as well as the breakdown of reaching

right versus left.” It is far from clear what this

means. While the quoted testimony appears to be an

effort on the part of the VE to identify some general

conflict between her testimony and the [DOT] regarding

reaching, such a statement is simply too vague and

ambiguous to fairly constitute an identification of the

specific apparent conflict raised by Plaintiff here. As

a result, the Court cannot determine if the ALJ’s step

five finding is supported by substantial evidence.

Nor was the VE’s explanation for the unidentified

reaching conflict susceptible to judicial review. As

noted, the VE apparently tried to reconcile the fact that

her testimony was “somewhat outside the [DOT]” as to the

“breakdown of reaching right versus left,” by stating

that it was “consistent with [her] 25 plus years of doing

[inaudible], talking with employers, doing jobs, being in

the industry.” Again, however, it is far from clear what

all of this means. There is no “breakdown” regarding

“reaching right versus left” in the VE’s testimony or in

the ALJ’s decision. While a VE may resort to personal

experience to explain why her opinion remains reliable

despite an apparent conflict with the [DOT], see, e.g.,

23

Allen v. Berryhill, No. 1:17CV277, 2018 WL 2025666, at *6

(M.D.N.C. May 1, 2018) (Auld, M.J.), [recommendation]

adopted[,] [s]lip [o]p. (M.D.N.C. May 23, 2018) (Biggs,

J.}, that explanation must itself be stated clearly

enough to be susceptible to judicial review.

Crouse, 2019 WL 4015553, at *5 (some internal citations omitted).

In light of the above-quoted cases, the Court should find that

the ALJ here neither sufficiently identified nor resolved the

apparent conflict at issue. The VE’s testimony, pieced together

from direct and cross-examination, reflects that she believed that

none of the three jobs she cited required more than occasional

overhead reaching with the non-dominant arm, that the Dish Washer

and Janitor jobs do not require more than occasional overhead

lifting by both arms, and that none of the jobs could accommodate

occasional, bilateral reaching both overhead and out in front.

(See Tr. 463-65.) However, unlike in Allen, the VE never

specifically acknowledged the apparent conflict between the DOT’s

descriptions for those jobs as involving frequent or constant

reaching in any direction and the hypothetical’s restriction to

occasional overhead reaching, stating only, generically, that

“[alny factor which is simply not addressed by the DOT are [sic]

based on my training and experience.” (Tr. 466 (emphasis added)

Indeed, even in Crouse, where the VE recognized that her testimony

remained “somewhat outside the [DOT] and the companion publications

just with the differentiating with the .. . breakdown of reaching

right versus left,” Crouse, 2019 WL 4015553, at *4 (emphasis

24

added), the Court found the VE’s testimony insufficient to identify

and resolve the apparent conflict, id. at *5.

In short, the ALJ additionally reversibly erred by failing to

identify and resolve the apparent conflict between the VE and the

DOT regarding the reaching requirements of the jobs in question.

3. Function-by-Function Analysis

Plaintiff’s third and final issue on review contends that

“[t]he ALJ erred by failing to perform a function[-]by[-]function

assessment of the contested functions of reaching and lifting when

assessing the RFC” in violation of Social Security Ruling 96-8p,

Policy Interpretation Ruling Titles II and XVI: Assessing Residual

Functional Capacity in Initial Claims, 1996 WL 374184, at *7 (July

2, 1996) (“SSR 96-8p”), and Mascio v. Colvin, 780 F.3d 632 (4th Cir.

2015). (Docket Entry 10 at 10 (bold font and single-spacing

omitted).) In that regard, Plaintiff notes that Mascio requires

remand “‘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.’” (Id. (quoting Mascio, 780 F.3d at 636).)

According to Plaintiff, “[w]hile the ALJ included a limitation to

only occasional overhead reaching with the dominant upper extremity

in the RFC, he d[id] not explain why [Plaintiff] was no similarly

limited to only occasional reaching in front of and across from his

body.” (Id. at 11 (citing Tr. 404) (internal citation omitted).)

25

Plaintiff further asserts that, “despite numerous notations of

shoulder weakness, the ALJ d[id] not explain why he found

[Plaintiff] capable of lifting up to 50 pounds as required for

. . . medium work.” (Id. at 12 (citing Tr. 404) (internal

parenthetical omitted).) Plaintiff’s assertions fall short.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§ 404.1545(a). An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s

impairments, as well as any related symptoms, including pain. See

Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b). The ALJ then

must match the claimant’s exertional abilities to an appropriate

level of work (i.e., sedentary, light, medium, heavy, or very

heavy). See 20 C.F.R. § 404.1567. Any non-exertional limitations

may further restrict a claimant’s ability to perform jobs within an

exertional level. See 20 C.F.R. § 404.1569a(c).

An ALJ need not discuss every piece of evidence in making an

RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d

861, 865 (4th Cir. 2014). However, “the ALJ must both identify

evidence that supports his [or her] conclusion and build an

accurate and logical bridge from that evidence to [that]

conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)

(internal emphasis, quotation marks, and brackets omitted). As to

the role of the function-by-function analysis in that

26

determination, the relevant administrative ruling states: “The RFC

assessment must first identify the individual’s functional

limitations or restrictions and assess his or her work-related

abilities on a function-by-function basis. . . . Only after that

may RFC be expressed in terms of the exertional levels of work,

sedentary, light, medium, heavy, and very heavy.” SSR 96-8p, 1996

WL 374184, at *1.

The Fourth Circuit has addressed this administrative ruling

and the issue of whether an ALJ’s failure to articulate a

function-by-function analysis necessitates remand. See Mascio, 780

F.3d at 636–37. Specifically, it stated “that a per se rule is

inappropriate given that remand would prove futile in cases where

the ALJ does not discuss functions that are irrelevant or

uncontested,” Mascio, 780 F.3d at 636, but that “‘remand 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,’” id. (internal brackets and ellipsis omitted)

(quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).

Here, the ALJ’s decision supplies the necessary “accurate and

logical bridge,” Woods, 888 F.3d at 694 (internal quotation marks

omitted), between his conclusions that Plaintiff’s right shoulder

impairment (A) qualified as severe (see Tr. 402) but (B) that it

did not cause limitations greater than the lifting and carrying

27

requirements of medium work and occasional overhead reaching with

the right (dominant) arm (see Tr. 404).

First, the ALJ’s evaluation of the opinion evidence supports

the RFC. In that regard, the ALJ noted that consultative physical

examiner Dr. Ernest B. Eason found on examination that Plaintiff’s

“shoulders had normal contour, normal abduction and elevation,

backward elevation of forty degrees, and normal internal and

external rotation,” and that “Dr. Eason’s only diagnosis was

[PTSD].” (Tr. 407; see also Tr. 319.) The ALJ afforded

“significant weight” to Dr. Eason’s “opin[ion] that [Plaintiff] had

no functional impairment or impediment with the use of his hands,

and that he could sit, balance, stand, walk, and comprehend.” (Tr.

407 (emphasis added) (referencing Tr. 320).) The ALJ also accorded

only “partial weight” to the state agency medical consultants, who

found that Plaintiff “did not have any physical impairments,”

noting that the “consultants did not have an opportunity to conduct

an in-person evaluation of [Plaintiff].” (Id. (referencing Tr. 87,

103).) In addition, the ALJ assigned “partial weight” to the Third

Party Function Report completed by Plaintiff’s wife that

Plaintiff’s impairments did not cause any limitations in “lifting,

sitting, standing, walking, climbing stairs, squatting, bending,

kneeling, reaching, or using his hands.” (Tr. 409 (emphasis added)

(referencing Tr. 210).)

28

Second, the ALJ’s discussion of the medical evidence relating

to Plaintiff’s shoulder impairment makes clear that the ALJ gave

Plaintiff the benefit of the doubt by including limitations to

medium work and occasional, right-arm overhead reaching in the RFC.

In that regard, the ALJ noted that:

• Plaintiff sought treatment for a shoulder injury in

February 2010, prior to his alleged onset date, and

Physician’s Assistant Debra C. Holmes (“PA Holmes”)

diagnosed him with “right long head biceps tendon

rupture, impingement of the right shoulder, and

osteoarthritis of the [acromioclavicular] joint”

(Tr. 406 (citing Tr. 846));

• PA Holmes noted that Plaintiff’s condition improved

but that “he still experienced some weakness,” as

well as that he had “not return[ed] to her for

further treatment of his right shoulder until June

30, 2015 [his DLI]” (id.); and

• “On June 30, 2015[, Plaintiff] reported to [PA]

Holmes that he was experiencing right shoulder

weakness when pushing down, and that he was having

difficulty shifting car gears and difficulty

bathing and putting on a belt,” but “[PA] Holmes

observed that [Plaintiff] could easily get his hand

behind his head” and “diagnosed him with a probable

chronic rotator cuff tear of the right shoulder”

(id. (emphasis added) (citing Tr. 846-49)).

The ALJ then provided the following analysis supporting his finding

that Plaintiff could perform a reduced range of medium work with

occasional overhead lifting with the dominant arm, notwithstanding

a severe shoulder impairment:

[Plaintiff] had a right shoulder injury in 2010, but the

evidence shows that this improved and caused very little

limitation until around June 2015. However, by the time

of his [DLI] of June 30, 2015, the evidence did not show

that it was causing a significant impairment. I find

29

that this injury would have affected how much [Plaintiff]

could lift and carry, limiting him to medium work, and

that he would have some limitation with his ability to

reach.

(Tr. 410).) That analysis suffices.

Accordingly, Plaintiff’s third assignment of error does not

entitle him to reversal or remand.

III. CONCLUSION

Plaintiff has established errors warranting remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be vacated, and that this matter be remanded

under sentence four of 42 U.S.C. § 405(g) for further

administrative proceedings, to include obtaining the testimony of

a VE to identify and resolve any apparent conflicts between the

VE’s testimony and the VE in accordance with SSR 00-4p and Pearson.

As a result, Plaintiff’s Motion for Judgment on the Pleadings

(Docket Entry 9) should be granted in part (i.e., to the extent it

request remand), and Defendant’s Motion for Judgment on the

Pleadings (Docket Entry 11) should be denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

April 21, 2020

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