# FOGLEMAN v. SAUL

> District Court, M.D. North Carolina · April 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10253467

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253467

## How later opinions describe it (automated extraction)

- rejecting the Commissioner’s argument that “apparent” conflict meant only “obvious” one

## Opinion text

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.

19

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

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253467. Public record. Not legal advice.