MILLER v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TRAVIS MILLER, )

)

Plaintiff, )

)

v. ) 1:21CV97

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Travis Miller, brought this action pursuant to the

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

final decision of Defendant, the Acting Commissioner of Social

Security, denying Plaintiff’s claims for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket

Entry 1.) Defendant has filed the certified administrative record

(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have

moved for judgment (Docket Entries 11, 13; see also Docket Entry 12

(Plaintiff’s Memorandum); Docket Entry 14 (Defendant’s Memorandum);

Docket Entry 15 (Plaintiff’s Reply)). For the reasons that follow,

the Court should enter judgment for Defendant.

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul 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 and SSI (Tr. 241-52), alleging a

disability onset date of October 1, 2017 (see Tr. 241, 244, 246).

Upon denial of those applications initially (Tr. 63-88, 115-25) and

on reconsideration (Tr. 89-112, 127-44), Plaintiff requested a

hearing de novo before an Administrative Law Judge (“ALJ”)

(Tr. 145-46). Plaintiff, his attorney, and a vocational expert

(“VE”) attended the hearing. (Tr. 31-62.) The ALJ subsequently

ruled that Plaintiff did not qualify as disabled under the Act.

(Tr. 12-25.) The Appeals Council thereafter denied Plaintiff’s

request for review (Tr. 4-9, 235-40), thereby making the ALJ’s

ruling the Commissioner’s final decision for purposes of judicial

review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the [] Act through December 31, 2023.

2. [Plaintiff] has not engaged in substantial gainful

activity since October 1, 2017, the alleged onset date.

. . .

3. [Plaintiff] has the following severe impairments:

Intellectual Disability, Post-Traumatic Stress Syndrome,

Panic Disorder, Bell’s Palsy, and Carpal Tunnel Syndrome.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

2

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform a full range of work at all

exertional levels but with the following nonexertional

limitations: [he] is limited to frequent but not

continuous handling with the dominant right hand. [He]

can frequently engage in talking and is limited to

performing unskilled work consisting of routine tasks not

at a production rate pace. [He] can maintain

concentration[,] persistence and pace for two-hour

period[s] during [a] workday. [He] is limited to

occasional interaction with supervisors, co-workers, and

[the] public. [He] requires a stable work environment,

which means few and infrequent changes to the work

routine.

. . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . .

10. Considering [Plaintiff’s] age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

. . .

11. [Plaintiff] has not been under a disability, as

defined in the [] Act, from October 1, 2017, through the

date of this decision.

(Tr. 17-25 (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 [the Court’s] review of [such a] decision . . . is extremely

3

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

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

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,

the Court “must uphold the factual findings of the ALJ 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, 401 (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) (brackets and internal

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 Commissioner].” Mastro, 270 F.3d at 176 (internal

4

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

[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)).2 “To regularize the

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

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

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

to disabled persons who have contributed to the program while employed. [SSI]

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).

5

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.

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 the Soc. Sec. Admin., 174 F.3d 473, 475

n.2 (4th Cir. 1999).3 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,

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

3 “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

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

6

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 residual functional capacity

(‘RFC’).” Id. at 179.4 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. See 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 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 Commissioner 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 567.5

4 “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.

5 A claimant thus can establish disability 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 at

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

(continued...)

7

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 err[ed] at step 5 [of the SEP] in relying upon

the testimony of a VE who could not testify to the use of a

reliable method for determining the numbers of jobs existing in the

national economy for particular [Dictionary of Occupational Titles

(‘DOT’)]-coded occupations” (Docket Entry 12 at 7 (bold font and

single-spacing omitted); see also Docket Entry 15 at 1-3); and

2) “[t]he ALJ err[ed] by finding an RFC unsupported by

substantial evidence” (Docket Entry 12 at 10 (bold font and single-

spacing omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 14 at 7-22.)

1. VE Testimony Regarding Job Numbers

Plaintiff’s first issue on review argues that “[t]he ALJ

err[ed] at step 5 [of the SEP] in relying upon the testimony of a

VE who could not testify to the use of a reliable method for

determining the numbers of jobs existing in the national economy

for particular [DOT]-coded occupations.” (Docket Entry 12 at 7

(bold font and single-spacing omitted); see also Docket Entry 15 at

5 (...continued)

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.”).

8

1-3.) More specifically, Plaintiff points to the VE’s testimony

“that she got her [job] numbers from the Occupational Employment

Quarterly (OEQ)” (id. at 8 (citing Tr. 59)), and “that th[o]se

numbers are not provided for each [DOT] code, but are grouped by []

Standard Occupational Classification[ (‘*SOC’)] codes” (id. at 9

(citing Tr 59)). Plaintiff further emphasizes that “a particular

SOC code involves .. . multiple [DOT] occupations,” and that “each

[DOT occupation] within an SOC classification does not necessarily

have the same skill or exertional requirements.” (Id.) Plaintiff

notes that, on cross-examination, the VE “testified that she

adjusted the number from the SOC code to reflect the specific [DOT]

code cited. . . by exertional and skill level,” and characterized

her method as “an approximation” and “the best information that we

have available.” (Id. (citing Tr. 59).)

Plaintiff explains that he filed a post-hearing brief

“object[ing] to the method the VE used to determine number of jobs

available in the economy” (id. at 7 (citing Tr. 327-29)), because

“the VE failed to offer any understandable method for the

derivation of the job numbers for the specific [DOT]-coded

occupations cited” (id. (citing Tr. 328)). In that brief,

Plaintiff additionally faulted the ALJ for failing “to elicit an

understandable explanation of the VE’s methods . . . on

re-direct.” (Id. (citing Tr. 60-61).) In Plaintiff’s view, the

ALJ erred in overruling Plaintiff’s post-hearing objections,

because the ALJ took the position “that the numbers provided by the

VE [we]re reliable because [Plaintiff] ‘ha[d] not provided any

evidence indicating any job provided by the [VE wa]s isolated and

only exist[ed] in very limited numbers in relatively few locations,

which would indicate a significant number of jobs were not

available.’” (Id. at 8 (quoting Tr. 24) (internal quotation marks

omitted).) According to Plaintiff, “it is not [Plaintiff] who must

prove that there are not a significant number of jobs existing in

the economy; rather it is the Commissioner’s burden at step five to

prove that there are.” (Id. (citing Shinaberry v. Saul, 952 F.3d

113, 119 (4th Cir. 2020)).) Plaintiff thus contends that, “because

the VE could not give an understandable account for how she derived

the estimated number of jobs from the data she was employing,

. . . [t]he decision must be vacated, reversed, and remanded for a

new hearing.” (Id. at 10 (citing Cunningham v. Berryhill, No.

3:19CV54, 2020 WL 400638, at *4 (W.D.N.C. Jan. 23, 2020)

(unpublished) (in turn citing Boston v. Colvin, 4:14CV206, 2016 WL

721563, at *13 (E.D.N.C. Feb. 2, 2016)))). Plaintiff’s contentions

fall short.

The ALJ here queried the VE whether an individual with

Plaintiff’s age, education, and past work experience, as well as

limited to Plaintiff’s RFC, could perform any jobs existing in

significant numbers in the national economy (see Tr. 55-56) and, in

response, the VE opined that such an individual could not perform

10

any of Plaintiff’s past relevant work, but would remain capable of

performing the jobs of “warehouse worker, [DOT] number 922.687-

058[, ] a medium job with a[ Specific Vocational Preparation

(‘SVP’)] of 2 with an estimated [] 100,000 jobs in the

[INAUDIBLE,] . . . floor worker, [DOT] number 381.687-034[, ] a

medium [job] with an SVP of 2 and there’s an estimated [] 1,362,000

jobs in the U.S.[, a]nd . . . laundry folder, [DOT] number 369.687-

018[, ] a medium job with an SVP of 2 and there’s an estimated []

445,000 jobs in the U.S.” (Tr. 57 (emphasis added)).

On cross-examination, Plaintiff’s counsel and the VE had the

following exchange:

[ATTY] . . . [D]oes the [DOT] help provide job numbers

for you?

[VE] Does the – no.

[ATTY] Okay, where do you get your numbers?

[VE] From the [OEQ].

. . .

[ATTY] Are you using anything else?

[VE] No.

[ATTY] Okay. The OEQ, the publisher of that, is a

private company and not the [g]overnment [a]gency,

correct?

[VE] Correct.

[ATTY] And OEQ, they arrive at their numbers by providing

averages that the – from the sources that [sic] the

[U.S.] Department of Labor and the Census Bureau, is that

correct?

11

[VE] Yes.

[ATTY] And the numbers that they provide, the Census

Bureau and the Department of Labor, are those provided by

[DOT] code?

[VE] No, those are provided by SOC codes.

[ATTY] Okay and SOC codes, those are broader definitions

than [DOT] codes and they contain multiple [DOT] codes,

correct?

[VE] Yes.

[ATTY] And each [DOT] code within the SOC code does not

necessarily have the same skill or exertional

requirements, correct?

[VE] Yeah, so the - what I do, I cross-reference the

[DOT] code with the census code and SOC code to find the

most appropriate SOC code for the [DOT] title.

[ATTY] Okay. And you adjusted the number from the SOC

code to reflect the specific [DOT] code that you cited,

correct?

[VE] Yes.

[ATTY] And how did you do that; how’d you separate those

numbers?

[VE] They’re, they’re by exertional and skill level.

[ATTY] Okay, but how did you separate the SOC, where they

give a very broad number, down to the specific [DOT]

level? How did you get a specific number for the code

that you’d cited or are those number[s] not for those

specific code, are they for the SOC?

[VE] No, so I cross-referenced the [DOT] codes with the

census codes and the SOC codes to find the most

appropriate SOC for the [DOT] title.

[ATTY] That, okay, that - I, I think I understand your,

your cross-referencing, but what I’m asking is how - so,

the SOC codes, let’s just say it contains ten jobs. How,

how do you get down to the specific [DOT] numbers? What

do you mean by cross-reference?

12

[VE] I, I think I answered that question with the cross-

referencing.

[ATTY] Okay, I guess I’m, I’m struggling to understand

exactly what that means. I mean I understand that there

are multiple exertion levels, but what I’m saying is, an

SOC group says that there’s a million and a half jobs and

it contains ten different jobs, how do you get down to

the [DOT] number of those when you’re not provided with

that by either of the –

[VE] They are provided –

[ATTY] OEQ or the –

[VE] They are broken down by the skill and exertion

level. And that is an approximation, so that’s what I

used. And that is the most, the best information that we

have available.

[ATTY] Okay, so it’s not necessarily by [DOT] as much as

it is just by exertional and skill level.

[VE] Yes.

[ATTY] Okay and the numbers that you provided, those are

also for full-time positions only, correct?

[VE] They are 18 percent[] part-time jobs.

[ATTY] Okay. So it, it includes some jobs that may not

meet this, that full-time requirement?

[VE] Correct.

(Tr. 58-61 (emphasis added).)

Following the hearing, Plaintiff’s counsel submitted

objections to the VE’s testimony (see Tr. 327-29), arguing that

“[t]he VE’s testimony was flawed and unreliable because the VE did

not demonstrate a reliable method for adjusting the numbers of jobs

provided by the [OEQ] down to the specific [DOT] codes she

13

provided” (Tr. 327). In particular, Plaintiff lodged the following

complaint against the VE’s job numbers:

When asked if the VE had adjusted the provided numbers to

only give the numbers for the [DOT] coded occupations and

not the entire SOC code the VE stated she had done so.

When questioned regarding the method for making such a

calculation (which the [Bureau of Labor Statistics

(‘BLS’)], Census Bureau, nor OEQ provide] the VE stated

she cross-referenced the exertional levels and skill

levels given by the [DOT] coded occupations. When asked

exactly what the process is, the VE simply restated the

same information, cross-referencing exertional levels and

skill levels. Counsel asked one more question,

confirming that the only method and source used was the

cross-referencing the OEQ and [DOT], to which the VE

responded in the affirmative.

(Tr. 328.)

The ALJ subsequently adopted the VE’s testimony as to

Plaintiff’s ability to perform the three jobs in question, as well

as the jobs’ incidence in the national economy (see Tr. 23-24), and

then resolved Plaintiff’s objections to the VE’s jobs numbers as

follows:

The [VE] testified that she relied on job numbers

provided by [OEQ]. As noted by [Plaintiff]’s

representative, the OEQ is published by U.S. Publishing,

a private company. The job data is derived from the U.S.

Department of Labor ([BLS]) and the U.S. Department of

Commerce (Census Bureau). The OEQ provides job data by

[SOC] codes []. The [VE] testified that she cross-

references[] the job codes from the [DOT], the US Census

Bureau and the SOC to determine the appropriate SOC code

to use for the representative jobs that she identifies.

The OEQ also provides job number estimates for a

particular SOC based on exertional and skill level.

14

The issue pertaining to jobs available is whether a

significant number of jobs exist in the national economy.

While an estimate on the number of jobs available is

useful for evaluating this issue, a significant number of

jobs does not pertain to any particular numerical

standard. [Plaintiff]’s representative has not provided

any evidence indicating any job provided by the [VE] is

“isolated and only exists in very limited numbers in

relatively few locations,” which would indicate a

significant number of jobs were not available. 20 CFR

404.1566, 416.966. The [VE] has provided job numbers,

which do indicate a large number of jobs are available.

Additionally, there is no evidence offered that another

[VE] would offer more persuasive testimony. An exact

number of jobs need not be provided; rather, the burden

at Step 5 of the [SEP] is to show that a significant

number of jobs exist within the confines of the

hypothetical. The [VE], as an impartial [VE], is

qualified for the purposes of the testimony at the

hearing and is qualified to provide an estimate of jobs

by referencing data that has long been recognized by the

[SSA] as adequate. The [ALJ] finds no reason to question

the testimony of the impartial [VE] - despite the

objections raised —- and finds that a sufficient number of

jobs exist in the cited positions. Any objection to

these job numbers on the ground that the [VE]’s

methodology for determining numbers of jobs is not

reliable on this basis is overruled.

(Tr. 24-25 (emphasis added) .)

Contrary to Plaintiff’s allegations (see Docket Entry 12 at

8), the ALJ’s above-quoted discussion of Plaintiff’s objections

adequately addressed the matter. The ALJ specifically discussed

Plaintiff’s argument that the VE did not sufficiently explain her

methodology for adjusting job numbers by noting that (1) “[t]he OEQ

[] provides job number estimates for a particular SOC based on

exertional and skill level” (Tr. 24) (2) “a significant number of

jobs does not pertain to any particular numerical standard” (id.)

and “[a]n exact number of jobs need not be provided” (Tr. 25), and

15

(3) “[t]he [VE ] provided job numbers, which do indicate a large

number of jobs are available” (id.). Furthermore, the ALJ did not

inappropriately place the step five burden on Plaintiff by

observing that Plaintiff’s counsel offered neither “any evidence

indicating any job provided by the [VE wa]s ‘isolated and only

exist[ed] in very limited numbers in relatively few locations,’

which would indicate a significant number of jobs were not

available” (Tr. 24 (quoting 20 C.F.R. §§ 404.1566, 416.966)), nor

“evidence [] that another [VE] would offer more persuasive

testimony” (Tr. 25). The ALJ clearly found that the VE’s testimony

satisfied the Commissioner’s step-five burden to show the existence

of a significant number of jobs available in the national economy

(see Tr. 23-25) and, thus, to prevail on post-hearing objections to

that determination, Plaintiff must come forward with a showing

sufficient to counter that finding. The ALJ merely found that

Plaintiff did not do so. (See Tr. 24-25.)

Moreover, Plaintiff’s contention that “the VE failed to offer

any understandable method for the derivation of the job numbers for

the specific [DOT]-coded occupations cited” (Docket Entry 12 at 7;

see also Docket Entry 15 at 1-3) misses the mark. Here, the VE

specifically testified that she adjusted the number of jobs she

cited to account for DOT occupations within the applicable SOC

16

codes at higher skill levels than Plaintiff’s unskilled RFC.°

Plaintiff simply has not demonstrated how that methodology

qualifies as unreliable. (See Docket Entries 12, 15.) As

addressed by a neighboring district court:

[C]ourts have consistently upheld an ALJ’s reliance ona

VE’s proposed job numbers derived from OFQ data when the

VE further adjusts the number of jobs in the broader OEQ

category to a number that reflects the number of jobs for

the cited [DOT] occupation and provides □ reasonable

basis for having done so.

These cases illustrate that, despite the lack of

specificity of the OEFQ job incidence data, it is possible

for a VE to make a reasonable adjustment to reflect

[DOT]-specific job numbers by calling on other available

sources as well as professional experience.

Boston, 2016 WL 721563, at *11-12 (emphasis added); see also

Taylor v. Colvin, No. CIV.A. 140573, 2015 WL 3603957, at *14 (E.D.

La. June 5, 2015) (unpublished) (upholding ALJ’s decision where

“the VE quite clearly testified that the job numbers that she

provided for [OEQ] Census Code 540 were only for light, unskilled

positions, as required by the ALJ’s hypothetical question, and not

the other 13 positions that fell under the [DOT] job title which

included skilled and semiskilled occupations”); Small v. Colvin,

No. 1:12CV236, 2013 WL 1912892, at *8 (D. Me. Mar. 30, 2013)

(unpublished) (approving VE’s reliance on SOC code job numbers

where he provided DOT-specific job numbers based on knowledge that

Given that the ALJ found Plaintiff capable of work at all exertional levels

(see Tr. 20), the VE would not have needed to eliminate any job numbers for jobs

at higher exertional levels than Plaintiff’s RFC.

17

one of DOT jobs constituted “predominant job” of three jobs within

broader SOC code and personal observation of newspaper job openings

for particular DOT job), recommendation adopted, 2013 WL 1912862

(D. Me. May 8, 2013) (unpublished); Nichols v. Astrue, No. CIV.A.

10-11641, 2012 WL 474145, at *12 (D. Mass. Feb. 13, 2012)

(unpublished) (finding no error where VE adjusted job numbers from

SOC code to reflect only DOT occupations that would accommodate the

claimant’s standing/walking limitation); see also Liskowitz v.

Astrue, 559 F.3d 736, 745 (7th Cir. 2009) (finding no error in

ALJ’s reliance on VE’s testimony and refusing to “impose impossible

burdens on the VE” where “VE testified that she had ‘no way of

knowing’ how many of the jobs that she had identified were

part-time jobs” because that “information was not contained in the

data sources on which she based her testimony,” and the plaintiff’s

“counsel conceded . . . that no government data source contain[ed]

th[at] information”).

Moreover, even if the VE failed to sufficiently explain the

methodology she utilized to adjust the job numbers from SOC codes

to DOT codes, the ALJ’s overruling of Plaintiff’s objection on that

point constitutes harmless error under the circumstances of this

case. See generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.

1989) (observing that “[n]o principle of administrative law or

common sense requires us to remand a case in quest of a perfect

opinion unless there is reason to believe that the remand might

18

lead to a different result”). Even if some of the DOT occupations

within the applicable SOC codes for warehouse worker, floor worker,

and laundry folder entailed higher skill levels than Plaintiff’s

unskilled RFC and/or part-time jobs, the VE testified that over 1.3

million floor worker jobs existed in the national economy. “[F]ar

smaller figures would still suffice to satisfy the Commissioner’s

[step five] burden.” Guiton v. Colvin, 546 F. App’x 137, 142 (4th

Cir. 2013) (citing Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th

Cir. 1979) (finding 110 jobs in state significant number of jobs)).

Accordingly, the Court should find “that the jobs numbers the VE

provided, although perhaps somewhat imprecise, were sufficiently

reliable to support the ALJ’s conclusion.” Guiton, 546 F. App’x at

142-43.

In light of the foregoing analysis, Plaintiff’s first

assignment of error falls short.

2. Dr. Joseph Appollo’s Opinions7

In Plaintiff’s second and final issue on review, he maintains

that “[t]he ALJ err[ed] by finding an RFC unsupported by

substantial evidence.” (Docket Entry 12 at 10 (bold font and

single-spacing omitted).) In particular, Plaintiff asserts that

“[t]he ALJ f[ou]nd[] the opinions of [Dr.] Appollo[ ] ‘somewhat

7 Although Plaintiff characterized his second issue on review in its heading as

arguing that the ALJ “f[ound] an RFC unsupported by substantial evidence” (Docket

Entry 12 at 10 (bolt font omitted)), the crux of Plaintiff’s second assignment

of error relates to his contention that the ALJ erred in evaluating the opinions

of consultative psychological examiner Dr. Joseph Appollo (see id. at 11-12).

19

persuasive,’ due to objective evidence in the record which ‘[wa]s

not fully consistent’ with the opinion, . . . [b]ut the ALJ d[id]

not identify objective evidence that [wa]s inconsistent with Dr.

Appollo’s opinion.” (Id. at 11 (quoting Tr. 22).) Plaintiff

additionally challenges the ALJ’s finding that Dr. Appollo’s

opinions “‘overly rely on [Plaintiff]’s subjective statements’”

(id. (quoting Tr. 22)), noting that “Dr. Appollo administered a

mental status exam, which is an objective assessment” (id. (citing

Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017))), that

resulted in him finding that Plaintiff had “borderline ability to

understand, retain, and follow instructions, below average ability

to sustain attention to perform simple, repetitive tasks,” and

“moderate difficulty in the ability to tolerate stress and pressure

associated with day-to-day work activity” (id. at 12 (citing Tr.

367)). According to Plaintiff, “the ALJ should have adopted Dr.

Appollo’s limitations on [Plaintiff]’s ability to tolerate stress

and pressure” (id. (referencing Tr. 367)) and “that[,] if a

hypothetical individual is not able to maintain two-hour work

periods, the VE responded that no competitive work would be

possible” (id. (citing Tr. 57)). Plaintiff further points out

that, “if the ALJ had added a limitation that an individual

requires close supervision, meaning that a supervisor is required

to check on the person at least twice a day to verify they [sic]

are doing the job properly and at an acceptable pace, the VE

20

responded that no competitive work would be possible.” (Id.

(citing Tr. 57).) For the reasons explained below, Plaintiff’s

arguments fail as a matter of law.

For benefits applications filed on or after March 27, 2017

(such as Plaintiff’s (see Tr. 241-52)), the SSA has enacted

substantial revisions to the regulations governing the evaluation

of opinion evidence. See Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL

168819 (Jan. 18, 2017). Under the new regulations, ALJs are no

longer required to assign an evidentiary weight to medical opinions

or to accord special deference to treating source opinions. See 20

C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not

defer or give any specific evidentiary weight, including

controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from [a

claimant’s] medical sources”). Instead, an ALJ must determine and

“articulate in [the] . . . decision how persuasive [he or she]

find[s] all of the medical opinions and all of the prior

administrative medical findings in [a claimant’s] case record.” 20

C.F.R. §§ 404.1520c(b), 416.920c(b) (emphasis added). In

evaluating the persuasiveness of an opinion or finding, the SSA

deems supportability and consistency “the most important factors”

and thus the ALJ must address those two factors in evaluating the

persuasiveness of an opinion or a finding. 20 C.F.R.

21

§§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ must address the three

other persuasiveness factors — the nature and extent of the medical

source’s relationship with the claimant and area of specialization,

as well as the catch-all “other factors that tend to support or

contradict” the opinion/finding, 20 C.F.R. §§ 404.1520c(c)(3)-(5),

416.920c(c)(3)-(5) — only when the ALJ finds two or more opinions

or findings about the same issue “[e]qually persuasive” in terms of

supportability and consistency, 20 C.F.R. §§ 404.1520c(b)(3),

416.920c(b)(3).

On July 17, 2019, Dr. Appollo conducted a consultative

psychological examination of Plaintiff (see Tr. 363-68), at which

Dr. Appollo documented Plaintiff’s subjective statements that he

“witnessed a good deal of violence in his household while growing

up,” that he “was a victim of a car hijacking and robbery in his

early 20s” that involved the firing of a gun, that he “ha[d]

ongoing problems with sleep” and “some periods of flashbacks,” that

he “d[id] not like to be around people” and “[wa]s easily startled

and jumpy,” and “suffer[ed] panic attacks” that “occur one time a

week or sometimes more frequently.” (Tr. 364.) Dr. Appollo

further noted that Plaintiff reported “feel[ing] sad and depressed”

and that “people [we]re against him,” as well as that he “had

difficulty getting along with coworkers and management” at his last

job. (Id.)

22

On mental status examination, Dr. Appollo recorded that

Plaintiff “appeared very neat and clean in his appearance,” that he

“was pleasant, friendly and open,” that “[r]apport was easily

established,” and that “[e]ye contact was established and

maintained.” (Tr. 365.) In addition, Dr. Appollo documented no

abnormalities in Plaintiff’s speech (see id.) or thoughts (see Tr.

366), and reported that, although Plaintiff’s “emotional state was

characterized by feelings of depression,” he “showed a normal

amount of range of affect and emotional responsiveness,” as well as

that his “emotional expression was appropriate to the thought

content and situation.” (Id.) Dr. Appollo observed that Plaintiff

encountered some difficulties with tasks testing his attention and

concentration (see id.), as well as performing subtraction and

division calculations (see Tr. 367), and rated his “intellectual

functioning . . . in the borderline range” (id.), but noted that

his “recent memory skills appeared intact” (Tr. 366), and that he

“had adequate insight into his problems” (Tr. 367).

As a result of Plaintiff’s subjective symptom reporting and

the mental status examination findings, Dr. Appollo diagnosed

Plaintiff with “Post Traumatic Stress Disorder, rule out,” “[p]anic

disorder, rule out,” and “[i]ntellectual disability, mild, rule

out” (Tr. 376), and provided the following opinions:

[Plaintiff] does have the ability to conform to social

standards, rules and regulations. He does have the

ability to cooperate with authority figures and interact

with peers.

23

. . .

[Plaintiff] has borderline ability to understand, retain

and follow instructions. [He] has below average ability

to sustain attention to perform simple repetitive tasks.

[He] has a history of not getting along with his fellow

workers and supervisors. [He] also reports he is easily

angered and tends to argue.

[He] continues to have some symptoms of PTSD and anxiety.

He continues to suffer from panic attacks. [He] would

have moderate difficulty in the ability to tolerate

stress and pressure associated with day-to-day work

activity.

. . .

PROGNOSIS: Guarded

. . . [He] has minimal skills to manage his funds. He

would better perform this task by some assistance.

(Tr. 366-68 (emphasis added).)

The ALJ analyzed the opinions of Dr. Appollo as follows:

The medical opinions of consultative examiner [Dr.]

Appollo[ ] are somewhat persuasive. Dr. Appollo

personally examined [Plaintiff], and opined that [he]

would have difficulty with the ability to understand,

remember, or apply information and performing simple

repetitive tasks, and tolerating stress. However, [Dr.

Apollo’s] medical opinions overly rely on [Plaintiff]’s

subjective statements, and are not fully consistent with

the objective evidence in the record. While the record

indicates [Plaintiff] has some functional limitations

consistent with [Dr. Appollo’s] medical opinions, it is

not fully consistent. As a result, the [ALJ] finds these

medical opinions to be only somewhat persuasive.

(Tr. 22 (emphasis added) (internal parenthetical citation

omitted).) As discussed above, Plaintiff challenges the ALJ’s

evaluation of Dr. Appollo’s opinions on two grounds, neither of

which establish grounds for remand.

24

Plaintiff first faults the ALJ for finding Dr. Appollo’s

opinions “not fully consistent” with the objective evidence of

record, but failing to identify what “objective evidence” conflicts

with Dr. Appollo’s opinions. (Docket Entry 12 at 11 (quoting Tr.

22).) Although the ALJ did not specifically identify the objective

evidence that conflicted with Dr. Appollo’s opinions (see Tr. 21-

22), the Court should discern no error from that omission. The

record contains only two medical records during the relevant

period, beyond Dr. Appollo’s assessment – 1) an emergency room

visit on October 12, 2018, at which Plaintiff complained of left-

sided facial numbness and weakness, headache, and lower back pain

(see Tr. 339-43), and 2) a consultative medical evaluation

conducted by Dr. Stephen Burgess on June 24, 2019 (see Tr. 372-76).

At the emergency room visit, the examining physician noted that

Plaintiff had normal mood, affect, judgment, and thoughts, and did

not appear agitated (see Tr. 341), and Dr. Burgess observed that

Plaintiff’s “[i]ntellectual functioning appear[ed] normal,” that

his “[r]ecent and remote memory for medical events [wa]s good,” and

that he “was cooperative with the exam” (Tr. 373), as well as that

Plaintiff’s cognition, mood, and affect “appear[ed] normal” with

“no evidence of suicidal or homicidal ideation[, ] hallucinations,

delusions, or paranoia” (Tr. 375). Thus, the only other objective

evidence of Plaintiff’s mental functioning in the record did not

harmonize with Dr. Appollo’s opinions. Under such circumstances,

25

the ALJ did not err by discounting Dr. Appollo’s opinions, in part,

because they did not fully cohere with the objective evidence of

record. (See Tr. 22.)

Plaintiff also objects to the ALJ’s finding that Dr. Appollo’s

opinions “‘overly rely on [Plaintiff]’s subjective statements’”

(Docket Entry 12 at 11 (quoting Tr. 22)), and points out that “Dr.

Appollo administered a mental status exam, which is an objective

assessment” (id. (citing Buck, 869 F.3d at 1049)). That argument

fails, however, because the fact that Dr. Appollo conducted an

objective assessment of Plaintiff’s mental functioning does not

preclude a finding of over-reliance on Plaintiff’s subjective

statements in forming opinions. As noted above, Dr. Appollo found

Plaintiff “pleasant, friendly and open,” with “[r]apport [] easily

established,” and “[e]ye contact [] established and maintained”

(Tr. 365) and thus Dr. Appollo based his statement that Plaintiff

“ha[d] a history of not getting along with his fellow workers and

supervisors” and “report[ed] he [wa]s easily angered and tend[ed]

to argue” (Tr. 367) on Plaintiff’s subjective statements rather

than any objective findings. Similarly, Dr. Appollo did not make

any observations on mental status examination of anxiety,

jumpiness, panic symptoms, or PTSD symptoms (see Tr. 365-67) and

thus his statement that Plaintiff “continue[d] to have some

symptoms of PTSD and anxiety . . . [and] suffer from panic attacks”

that would result in “moderate difficulty in the ability to

26

tolerate stress and pressure associated with day-to-day work

activity” (Tr. 367) again relied on Plaintiff’s subjective reports

rather than any objective findings. As the ALJ did not err in

discounting Dr. Appollo’s opinions based, in part, on his over-

reliance on Plaintiff’s subjective symptom reporting, the ALJ

labored under no obligation to “adopt[] Dr. Appollo’s limitations

on [Plaintiff]’s ability to tolerate stress and pressure” (Docket

Entry 12 at 12 (referencing Tr. 367)).8

In sum, Plaintiff’s second and last assignment of error lacks

merit.

III. CONCLUSION

Plaintiff has not established an error warranting remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

Judgment on the Pleadings (Docket Entry 11) be denied, that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

April 4, 2022

8 Plaintiff’s argument that the ALJ should have included in the dispositive

hypothetical question to the VE “a limitation that [the hypothetical] individual

require[d] close supervision, meaning that a supervisor [wa]s required to check

on the person at least twice a day to verify they [sic] are doing the job

properly and at an acceptable pace” (Docket Entry 12 at 12) fares no better. Dr.

Appollo did not even offer that opinion (see Tr. 363-68) and thus Plaintiff has

simply not shown that any record evidence warranted the inclusion of such a

limitation.

27