DUNIVANT v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RAYMOND DUNIVANT, )

Plaintiff,

v. 1:19CV923

ANDREW SAUL,

Commissioner of Social Security, )

Defendant.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Raymond Dunivant (“Plaintiff”) brought this action pursuant to Sections

205(g) and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g)

and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social

Security denying his claims for Disability Insurance Benefits (“DIB”) and Supplemental

Security Income (“SSI”) under, respectively, Titles II and XVI of the Act. The parties have

filed cross-motions for judgment, and the administrative record has been certified to the Court

for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed applications for DIB and SSI on May 5, 2016, alleging a

disability onset date of April 1, 2015 in both applications. (Tr. at 26, 220-30.)! His applications

denied initially (Ir. at 75-96, 119-26) and upon reconsideration (Tr. at 97-118, 133-50).

Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative

1 Transcript citations refer to the Sealed Administrative Record [Doc. #8].

Law Judge (“ALJ”). (Tr. at 151-52.) On May 22, 2018, Plaintiff, along with his attorney,

attended the subsequent video heating, during which both Plaintiff and an impartial vocational

expett testified. (Ir. at 26.) The ALJ ultimately concluded that Plaintiff was not disabled

within the meaning of the Act (It. at 36), and, on July 11, 2019, the Appeals Council denied

PlaintifPs request for review of the decision, thereby making the ALJ’s conclusion the

Commissionet’s final decision for purposes of judicial review (I'r. at 1-6).

Il LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’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). “The courts ate not to tty the 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 if they ate supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Asttue, 667 F.3d 470, 472 (4th Cir. 2012) G@nternal

quotation 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 Cit. 1992)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

scintilla of evidence but may be somewhat less than a preponderance.” Mastto v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

evidence to justify a tefusal to direct a verdict were the case before a juty, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute its yuadgment for that of the

[ALJ].” Mastto, 270 F.3d at 176 (internal brackets and quotation matks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

tesponsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing 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 cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the burden of proving a disability.” Hall v. Hartis, 658 F.2d 260, 264 (4th Cir.

1981). 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

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged petiod

2 “The Social Secutity Act comptises two disability benefits programs. The Social Security Disability Insurance

Program (SSDD), established by Title II of the Act as amended, 42 U.S.C. § 401 ef seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSD), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 ef seg., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,

in all aspects relevant hete, substantively identical.” Craig, 76 F.3d at 589 n.1.

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

fotecloses a disability designation 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 ate 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 the first two steps, and if

the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,

but falters at step three, ic., “[i]fa claimant’s impairment is not sufficiently severe to equal ot

exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional

capacity (RFC?).” Id. at 179.3 Step four then requites the ALJ to assess whether, based on

that RFC, the claimant can “perform past relevant work”; if so, the clatmant 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, which “requires the [Government] to prove that

3 “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, ot skin impaitments).” Hall, 658 F.2d at 265. “RFC is to be determined by the AL] only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢g, pain).”

Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite [the claimant’s|

impaitments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide

“whether the claimant is able to perform other work considering both [the claimant’s 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 catty 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.

Ill. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since his alleged onset date. ‘The ALJ therefore concluded that Plaintiff met his

burden at step one of the sequential evaluation process. (I't. at 29.) At step two, the AL]

further determined that Plaintiff suffered from the following severe impairments:

lumbat spondylosis; cervical spondylosis; thoracic spondylosis; right inguinal

hernia and umbilical hernia; bilateral carpal tunnel syndrome; and obesity.

(Ir. at 29.) [he AL] found at step three that none of these impairments, individually or in

combination, met or equaled a disability listing. (I't. at 30-31.) Therefore, the ALJ assessed

Plaintiffs RFC and determined that he could perform light work with the following, further

limitations:

he can frequently handle and finger with both upper extremities. [Plaintiff] can

frequently push or pull and teach overhead with the left upper extremity. [He]

can frequently kneel, crouch, stoop, and crawl, can occasionally climb staits and

ramps, can occasionally climb ladders, can never climb ropes and scaffolds, and

can occasionally be exposed to vibrations. [Plaintiff] is able to understand and

remember simple instructions, make simple work-related decisions, and catry

out simple instructions.

at 31.) Based on this determination, the AL] found at step four of the analysis that Plaintiff

could not perform any of his past relevant work. (Tr. at 34.) However, the ALJ concluded at

step five that, given Plaintiffs age, education, work experience, and REC, along with the

testimony of the vocational expert regarding those factors, Plaintiff could perform other jobs

available in the national economy and therefore was not disabled. (Tr. at 35-36.)

Plaintiff now challenges the AL}’s finding at step five. In particular, Plaintiff contends

that two of the three jobs identified by the vocational expert conflict with the Dictionary of

Occupational Titles (“DOT”) in violation of the Fourth Circuit’s holdings in Pearson v.

Colvin, 810 F.3d 204, 210 (4th Cir. 2015), and Thomas v. Berryhill, 916 F.3d 307, 314 4th

Cir. 2019). While Plaintiff concedes that the third job identified by the vocational expett,

matking cletk (DOT 209.587-034, 1991 WL 671802), does not conflict with the DOT, he

further argues that one job cannot, by itself, constitute substantial evidence at step five.

The Fourth Circuit Court of Appeals has recognized that an ALJ has an affirmative

“duty to make an independent identification of apparent conflicts” between VE testimony and

the ptovisions of the Dictionary of Occupational Titles (“DOT”), regardless of whether a

conflict is identified by the VE. Peatson, 810 F.3d at 208-09, 210. In Pearson, because of

this appatent conflict between the VE’s testimony and the DOT, remand was tequited so that

the ALJ could elicit a reasonable “explanation from the expert” before relying on the expert’s

testimony. Id. at 208-209, 211. In 2019, in Thomas v. Berryhill, the Fourth Circuit applied

the principles articulated in Pearson as they related to the DOT’s Reasoning Development

scale. See Thomas v. Berryhill, 916 F.3d 307, 314 (4th Cir. 2019). That scale has six levels—

Level 1 requires the least reasoning ability, and Level 6 requires the most reasoning ability. See

DOT, App. C, 1991 WL 688702.4 The DOT assigns a Reasoning Development Level to each

occupation identified therein. In Thomas, the vocational expert identified three jobs, all with

a Reasoning Level of 2, “tequit[ing] employees to ‘catty out detailed but uninvolved written

ot oral instructions.’ By compatison, Thomas’s RFC limit[ed] her to jobs that involve only

‘short, simple instructions.” Thomas, 916 F.3d at 314 (internal citations omitted). The Fourth

Citcuit found

that Thomas, being limited to short, simple instructions, may not be able to

catty out detailed but uninvolved instructions. This is not a categorical rule—

some instructions, particularly if they are well-drafted, may be simultaneously

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

Thomas’s limitation to short, simple instructions and the VE’s testimony that

Thomas 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 Peatson, we ate satisfied that one exists in this case,

too. We remand so that the ALJ can resolve the conflict in accordance with the

Adrministration’s regulations.

Id. at 314.

Consequently, in Thomas, the Fourth Circuit held that there was an apparent conflict

between jobs requiting Level 2 reasoning and a limitation to “short, simple instructions.” Id.

4 The Reasoning Levels relevant to this case, Level 2 and Level 3, are defined as follows:

LEVEL 3

Apply commonsense understanding to carry out instructions furnished in written, otal, ot

diagrammatic form. Deal with problems involving several concrete variables in or from

standardized situations.

LEVEL 2

Apply commonsense understanding to carry out detailed but uninvolved written or otal

instructions. Deal with problems involving a few concrete vatiables in or from standardized

situations.

U.S. Dept. of Labor, DOT, App. C, 1991 WL 688702.

However, in Lawtence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019), the Fourth Circuit clarified

that this conflict results from the restriction to “short” instructions, rather than the simplicity

of the instructions or tasks.

“Short” is inconsistent with “detailed” because detail and length are highly

cottelated. Generally, the longer the instructions, the more detail they can

include. In contrast, the [AL]] found that Lawrence could perform jobs limited

to “simple, routine repetitive tasks of unskilled work.” There is no comparable

inconsistency between Lawrence’s [RFC] . . . and Level 2’s notions of “detailed

but uninvolved . . . instructions” and tasks with “a few [] variables.”

Id. (citations omitted).

Similarly, in the present case, there is no conflict between Reasoning Level 2 and

Plaintiffs ability “to understand and remember simple instructions, make simple work-related

decisions, and catty out simple instructions.” (I'r. at 31); see Gurley v. Saul, 2:19-cv-869, 2020

WL 6218459 at *7 (D.S.C. June 24, 2020) (“Because Plaintiff was limited to ‘simple,’ rather

than ‘short,’ instructions, there is no appatent unresolved conflict between the ALJ’s RFC

tecommendation and the jobs identified by the vocational expert.”); Turner v. Saul, 5:19-CV-

190-D, 2020 WL 3866669 at *10 (E.D.N.C. June 9, 2020) (“Under Lawrence, a hypothetical

question limiting one to simple, oral instructions, simple, routine tasks, and simple, work-

telated decisions, is materially different from similarly restricting her to short tasks,

instructions, ot decisions. And simple instructions, tasks, or decisions do not create an

apparent conflict with jobs the DOT classifies as reasoning level two.”’).> Plaintiff concedes

°Tn light of this determination, the Court need not teach the further issue of whether there is an unresolved,

apparent conflict between jobs with a Reasoning Level 3 and Plaintiff's RFC limitation to simple instructions

and simple work-related decisions. As further explained below, even if the two Reasoning Level 3 jobs

identified by the vocational expert are eliminated, the AL] was entitled to rely on the expert’s testimony

regarding the Reasoning Level 2 job of marking clerk, so any ertor is harmless.

as much in his brief. Nevertheless, he contends that the ALJ’s identification of only one job

with a Reasoning Level 2, marking clerk, runs afoul of “POMS DI 25025.030, which requites

[the ALJ] . .. to cite three occupations that are examples of work the claimant could do given

his ot het impaitment-telated limitations and restrictions.” (PL.’s Br. [Doc. #12] at 8-9.) Where

only one of the jobs identified by the AL] meets these requirements, Plaintiff argues, “it cannot

be clear that there ate a significant number of jobs in the national economy.” (Pl.’s Br. at 9.)

Howevet, POMS provides guidance to ALJs, but is not binding here and does not have

the force of law. Moreover, as Defendant correctly notes, “the same POMS section on which

Plaintiff relies explains that the adjudicator ‘may cite fewer than three occupations when it is

cleat that jobs exist in significant numbers within fewer than three occupation(s).”” (Def.’s Br.

[Doc. #14] at 12) (quoting POMS DI 25025.030, available at https://secute.ssa.gov/apps10/

poms.nsf/Inx/0425025030). In fact, the relevant sections of the regulations specifically

provide that “[w]ork exists in the national economy when there is a significant number of jobs

(in_one or more occupations) having requirements which [the claimant is] able to meet with

[his] physical or mental abilities and vocational qualifications.” 20 C-F.R. §§ 404.1566),

416.966(b) (emphasis added).

Here, the vocational expert testified that 290,000 marking clerk jobs exist in the

national economy. (Tr. at 35, 70); see Critchley v. Colvin, No. 5:15-cv-08288, 2016 WL

3030211, at *8 (S.D. W. Va. May 4, 2016) (collecting cases) (finding that even 5000 jobs in the

national economy constituted a significant number); see also Hicks v. Califano, 600 F.2d 1048,

1051 n.2 (4th Cir. 1979) (holding that 110 jobs within the region is not “insignificant”); Cole

vy. Colvin, No. 1:13CV868, 2014 WL 4060145, at *4 (M.D.N.C. Aug. 14, 2014) (holding that

2,500 jobs in the state is significant and “the AL] only needs to identify one job that [a

claimant] can perform, given [the claimant’s] RFC and vocational capabilities, that exists in the

national economy in significant numbers.”); Shaw v. Saul, 1:18CV268, 2019 WL 3577550 at

*9 (M.D.N.C. Aug. 6, 2019) (holding “that 103,000 Room Attendant jobs existed in the

national economy... which constitutes a significant number of jobs.”). Because the number

of marking clerk jobs clearly exceeds the number of jobs constituting a “significant numbet”

in the national economy, substantial evidence supports the ALJ’s finding at step five of the

sequential analysis.

In his Reply Brief, Plaintiff for the first time raises a new contention, claiming that the

ALJ’s decision is not supported by substantial evidence because “t]he vocational witness did

not identify her source for the numbets of jobs in the national economy for marking clerks.”

(Reply [Doc. #15] at 6.) However, Plaintiff was requited by this Coutt’s Opening Order [Doc.

#9] to taise any claims in his initial Motion and Brief, setting out his objections to the

Commissioner’s decision “or any aspect of the record which counsel contends is erroneous.”

Therefore, Plaintiffs new challenge to the vocational expert’s testimony based on her failure

to identify the source for the job numbers is not properly before the Court. See Bunton v.

Colvin, No. 1:10CV786, 2014 WL 639618, at *5 (M.D.N.C. Feb. 18, 2014) (collecting social

security decisions recognizing that failure to raise issue in opening memorandum waives that

issue). Moreover, even if this contention were consideted, it would not require remand. The

Supreme Coutt recently rejected a categorical rule that a vocational expert’s failure to provide

data underlying his ot her job estimates precludes the expert’s testimony from setving as

substantial evidence. See Biestek v. Berryhill, 139 S. Ct. 1148 (2019). In addition, in the

ptesent case, the ALJ accepted and relied on the vocational expert’s testimony and there is no

reason to question that determination, particularly where counsel for Plaintiff did not request

the data relied on by vocational expert, or even question her regarding the source of the

numbers, and specifically noted no objection to her testifying as an expert. (Tr. at 66-73); see

also Tim J.S. v. Saul, 4:19CV1709, 2020 WL 1888820 at *8 (E.D. Mo. Apr. 16, 2020) (“Plaintiff

has failed to marshal argument or evidence beyond mere speculation to undermine the

vocational expert’s testimony and thus cannot establish that the ALJ erred by telying on that

testimony.’’).

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be AFFIRMED, that PlaintifPs Motion to Reverse the Judgment of the

Commissioner [Doc. #11] be DENIED, that Defendant’s Motion for Judgment on the

Pleadings [Doc. #13] be GRANTED, and that this action be DISMISSED with prejudice.

This, the 17% day of February, 2021.

/s/ Joi Elizabeth Peake

United States Magistrate Judge