The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHELLEY M., )
Plaintiff,
v. 1:22CV641
KILOLO KIJAKAZI,
Acting Commissioner of Social Security, )
Defendant.
MEMORANDUM ORDER AND OPINION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Shelley M. (“Plaintiff”) brought this action pursuant to Section 205(g) of the
Social Security Act (the “Act”), as amended (42 U.S.C. § 405(¢)), to obtain judicial review of a
final decision of the Commissioner of Social Security denying her claim for Disability
Insurance Benefits (“DIB”) under Title II 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 her application for DIB on December 6, 2013, alleging a
disability onset date of November 1, 2013. (Tr. at 134, 366-68.)! Her application was denied
initially (Ir. at 89-108) and upon reconsideration (Ir. at 109-30, 168-75). Thereafter, she
requested an administrative heating de novo before an Administrative Law Judge (“ALJ”).
(Tr. at. 176-78.) On May 17, 2017, Plaintiff, along with her attorney, attended the subsequent
video hearing, at which both Plaintiff and an impartial vocational expert testified. (Tr. at 134.)
Following this hearing, the ALJ concluded that Plaintiff was not disabled within the meaning
of the Act. (Tr. at 146.) However, on September 11, 2019, the Appeals Council remanded
the case for further proceedings. (Tr. at 152-54.) Accordingly, on February 22, 2022, Plaintiff
and her attorney attended a second administrative hearing by telephone. (Tr. at 13.) In his
decision dated March 14, 2022, the ALJ again concluded that Plaintiff was not disabled under
the Act (Tr. at 25), and on June 7, 2022, the Appeals Council denied Plaintiffs request for
review of the decision, thereby making the AL]’s conclusion the Commissionet’s final decision
for purposes of judicial review (Tr. at 2-7).
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 are not to try 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 are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets
and 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 Cir. 1993)
(internal quotation omitted). “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 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 omitted).
“In reviewing for substantial evidence, the court should not undertake to te-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation omitted). “Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472 (internal brackets
and quotation omitted). “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
suppotted 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).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 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
period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?
2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), 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 (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et se., ptovides benefits to
indigent disabled petsons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI; 20 C.E.R. pt. 416 (SSI), governing these two programs ate,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
“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 period
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
forecloses a disability designation and ends the inquity. 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, 1e., “[i]f a claimant’s impairment is not sufficiently severe to equal or
exceed a listed impairment,” then “the AL] must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.3 Step four then requires the ALJ to assess whether, based on
3 “REC 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 requite 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 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 tmpatrments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only after [the AL}] considers
all relevant evidence of a clatmant’s impairments and any related symptoms (¢,g., pain).”” Hines, 453 F.3d at
562-63.
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, which “requires the [Government] to ptove that
a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide
“whether the clatmant is able to perform other work considering both [the claimant’s RFC]
and [the clatmant’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.
Il. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” between her alleged onset date, November 1, 2013, and her date last insured,
December 31, 2018. ‘The ALJ therefore concluded that Plaintiff met her burden at step one
of the sequential evaluation process. (Tr. at 16.) At step two, the AL] further determined that
Plaintiff suffered from the following severe impairments:
lumbar spine degenerative disc disease, osteoarthritis, depression, and anxiety[.]
(Tr. at 16.) The ALJ found at step three that none of the impairments identified at step two,
individually or in combination, met or equaled a disability listing. (Ir. at 16-18.) He therefore
assessed Plaintiffs RFC and determined that she could perform sedentary work with the
following, non-exertional limitations:
[she] is limited to a sit/stand option every hour while remaining on task;
occasional climbing of ramps and staits; no climbing of ladders, ropes, or
scaffolds; occasionally balancing, stooping, kneeling, crouching; no crawling; no
more than occasional exposure to cold and hazards; unskilled work of a routine
repetitive nature (meaning a teasoning level of 1-2) in 2-hour segments; public
contact incidental to work; occasional contact with supervisors and coworkers;
no teamwork for task completion; and no requitements of conflict resolution
ot Cfisis management.
(Tr. at 18.) Based on this determination and the testimony of a vocational expert, the AL]
determined at step four of the analysis that all of Plaintiffs past relevant work exceeded her
REC. (Tt. at 23.) However, the AL] found at step five that, given Plaintiffs age, education,
work experience, RFC, and the testimony of the vocational expert as to these factors, she
could perform other jobs available in significant numbers in the national economy. (Tr. at 23-
25.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr. at 25.)
Plaintiff now taises two challenges to the ALJ’s decision. First, she contends that the
ALJ “failed to identify and obtain a reasonable explanation for the apparent conflict between
the testimony of the Vocational Expert (VE’) and the Dictionary of Occupational Titles
(DOT’).” Second, she atgues that the AL] “erred by failing to resolve the material
inconsistency between his evaluation of the opinion evidence and his [RFC] assessment.”
Br. [Doc. #13] at 1.) After a thorough review of the record, the Court finds that neither
of Plaintiffs arguments require remand.
A. DOT Conflict
As noted above, Plaintiff first challenges the ALJ’s reliance on the VE’s testimony at
step five of the sequential analysis. Specifically, Plaintiff contends that the VE’s testimony
conflicted with the DOT, but that the AL] failed to obtain a reasonable explanation for the
conflict. In Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015), the Fourth Circuit clarified the
steps an ALJ must take to identify and resolve apparent conflicts between a vocational expert’s
testimony and the DOT. Specifically, the Fourth Circuit held that, if an expert’s testimony
apparently conflicts with the DOT, the expert’s testimony can only provide substantial
evidence to support the AL]’s decision if the ALJ received an explanation from the expert
explaining the conflict and determined both (1) that the explanation was reasonable and (2)
that it provided a basis for relying on the expert’s testimony rather than the DOT. Pearson,
810 F.3d at 209-10; see also Rholetter v. Colvin, 639 F. App’x 935, 938 (4th Cir. 2016).
In the instant case, Plaintiff contends that the vocational testimony on which the AL]
relied at step five of the sequential analysis conflicted with the DOT as to all of the identified
jobs. Specifically, the AL] identified three representative jobs available in the national
economy that Plaintiff could perform: Final Assembler (DOT 739.687-010), Semiconductor
Bonder (DOT 726.685-066), and Stringing-Machine Tender (DOT 689.585-018). (Tr. at 24,
56.) Defendant concedes that the job of Final Assembler is performed at the light exertional
level, rather than at the sedentary level set out in Plaintiff's RFC assessment. (Def.’s Br. [Doc.
#14] at 15.) As such, an unresolved apparent conflict exists between this position and the
RFC. However, Defendant contends that no apparent conflicts prevent Plaintiff's
performance of the remaining two jobs.* The Coutt agrees.
+ The administrative decision at Step Five includes a chart that lists all three of the jobs in question as involving
“light” work. (See Tr. at 24.) This appears to be a scrivener’s error, as the DOT clearly defines the jobs of
Semiconductor Bonder and Stringing-Machine Tender as sedentary work, and at the hearing the ALJ solicited
testimony from the VE regarding sedentary positions and the VE identified those positions as sedentary. (Tt.
at 56.) In addition, the substance of the discussion at Step Five contemplated sedentary positions, consistent
with the RFC, noting that if Plaintiff “had the residual functional capacity to perform the full range of sedentary
work, a finding of ‘not disabled’ would be directed by Medical-Vocational Rule 201.28 and 201.21,” and then
identifying the positions as those identified by the VE that would still be available even with the additional
limitations in the RFC. (T'r. at 24.)
With regard to the positions of Semiconductor Bonder and Stringing-Machine Tender,
Plaintiff takes issue with the RFC’s inclusion of “a sit/stand option every 2 hour while
remaining on task.” (Tr. at 18.) In particular, Plaintiff argues that this limitation would result
in standing for an amount of time in excess of what constitutes sedentary work because she
would be required to stand for half an hour and then sit for half an hour, ultimately resulting
in sitting for 4 hours and standing for 4 hours in an 8-hour day. (Pl.’s Br. at 5.) As Plaintiff
notes, the regulations define sedentary work as involving standing and walking for up to 2
hours per 8-hour workday, with the remaining time spent sitting.
However, contrary to Plaintiff's contentions, the RFC in this case does not include a
requirement that Plaintiff must stand for half an hour before returning to a seated position for
half an hour. Instead, the RFC includes a “sit/stand option” that would allow Plaintiff the
option to change position from sitting to standing and from standing to sitting at 30-minute
intervals, and the VE testified that that the positions of Semiconductor Bonder and Stringing
Machine Tender could accommodate that option. Indeed, the VE specifically testified that
the jobs of Semiconductor Bonder and Stringing-Machine Tender allow for sitting and
standing “at will’ (Tr. at 57.) In other words, the VE explained that an individual with
Plaintiffs RFC could perform these jobs while alternating between sitting and standing, as
needed, throughout the day. Thus, the VE in this case clearly identified the sit/stand
requirement for the positions in question as “sit/stand at will” and Plaintiff fails to show that
this testimony resulted in any apparent conflict with the DOT or with the sedentary
requirements of Plaintiff's RFC.
It may be that Plaintiff is intending to assert a per se conflict between the VE and the
DOT for a claimant limited to sedentaty work but with a sit/stand option that would allow
for standing of more than two hours. However, federal district courts in North Carolina have
not found an apparent conflict for claimants limited to light work with a sit/stand option, and
the same analysis would apply here. See Conway v. Saul, No. 1:18CV483, 2019 WL 4102184
at *6 (M.D.N.C. Aug. 29, 2019); Baxley v. Berryhill, No. 1:17CV1048, 2018 WL 5817377 at *6
(M.D.N.C. Nov. 5, 2018) (collecting cases); see also Walls v. Barhnart, 296 F.3d 287, 291-92
(4th Cir. 2002) (noting that a sit/stand option negatively impacts the number of unskilled light
and sedentary jobs available, as recognized in SSR 83-12, but finding no contradiction with
SSR 83-12 where the vocational expert identified unskilled sedentary positions with a sit/stand
option). Plaintiff was limited to less than the full range of sedentary work, specifically to
positions with a sit/stand option as well as the additional limitations set out in the RFC, and
the VE identified positions that she could perform even with the additional limitations. See
Hyatt v. Apfel, 153 F.3d 720, 1998 WL 480722, at *3-4 (4th Cir. 1998) (finding substantial
evidence to support Commissionet’s decision where “the ALJ consulted a VE, who identified
some unskilled sedentary jobs where the worker could alternate between sitting and standing”).
Moreover, even if an apparent conflict did exist, the VE and the ALJ in this case
specifically considered and addressed the issue. During the heating, the ALJ identified areas
not coveted by the DOT, including “sit/stand options in various forms,” and the AL] asked
the VE on what his testimony was based as to those issues. (Tt. at 58-59.) The VE then
explained that he based his testimony as to those elements “on [his own] teseatch, education,
training, and work experience.” (Tr. at 59.) Based on that testimony, the AL] explained in
his decision that “[t]he vocational expert testified that where the DOT does not address
aspects of the claimant’s residual functional capacity with respect to occupations, their
ptofessional expertise indicates that the above listed occupations ate available for someone
with the residual functional capacity of the claimant.” (Tr. at 24.) Thus, to the extent Plaintiff
is attempting to raise a conflict or inconsistency as part of this claim, that issue was sufficiently
addtessed by the VE and the ALJ in any event and would not provide a basis for remand here.
B. Opinion Evidence
In her second argument, Plaintiff contends that the AL] should have included in the
REC all of the limitations contained in the Functional Capacity Evaluation (“FCE”) provided
by physical therapist Adrian Jessen. (Pl’s Br. at 9-11.) For claims, like Plaintiffs, that were
filed before Match 27, 2017, ALJs evaluate the medical opinion evidence in accordance with
20 C.E.R. § 404.1527(c). Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 255 (4th Cir.
2017). “Medical opinions” are “statements from acceptable medical sources that reflect
judgments about the nature and severity of [a claimant’s] tmpairment(s), including [her]
symptoms, diagnosis and prognosis, what [she] can still do despite impairment(s), and [her]
physical or mental restrictions.” Id. (quoting 20 C.F.R. § 404.1527(a)(1)). The regulations
mandate that the ALJ evaluate each medical opinion presented to him, and generally “more
weight is given ‘to the medical opinion of a source who has examined [the claimant] than to
the medical opinion of a medical source who has not examined [her].”’ Id. (quoting 20 C.F.R.
§ 404.1527(c)(1)).
In the present case, Mr. Jessen performed Plaintiffs PCE to determine whether she
could perform the demands of her previous work as an Income Maintenance Caseworker.
10
at 22, 670.) The AL] determined that Mr. Jessen’s opinion that Plaintiff could perform
sedentary work was consistent with the objective and clinical evidence in the record and
accorded it “significant” weight. (T'r. at 22.) Specifically, the AL] found that:
The medical opinions of the claimant’s physical therapist ate accorded
significant weight. They opined [that Plaintiff] could occasionally walk, bend,
and stoop, had the ability to lift 10 pounds frequent and 20 occasionally, and
opined [that Plaintiffs] issues was not “too super bad.” It was also noted that
[Plaintiff] did not achieve heavy or maximum effort with her lifting attempts,
suggesting [that Plaintiff] would possibly be capable of more than she presented
on examination. These medical opinions were given less than a month prior to
[Plaintiff's] alleged onset date, and are consistent with objective and clinical
observations in the record.
(Tr. at 22) Gnternal citations omitted).
Plaintiff argues that the ALJ erred because he gave Mr. Jessen’s opinion “significant
weight” but did not adopt Mr. Jessen’s opinion that Plaintiff could perform no more than
occasional sitting. However, Mr. Jessen specifically found that Plaintiff could perform at “US
Department of Labor Physical Demand Level: Sedentary.” (Tr. at 670.) The AL] gave
significant weight to the opinion and adopted the limitation to positions at the sedentary level.
(Tr. at 22, 24.) Mr. Jessen’s opinion also includes a chart noting that Plaintiffs past work
requited “[s]itttng for extended periods of time,” and as to that requirement Mr. Jessen
described Plaintiff's abilities as limited to “Sitting Occasionally.” (Tr. at 670.) Notably, to the
extent that Mr. Jessen found that Plaintiff was limited with respect to sitting for extended
periods of time, the AL] likewise acknowledged that Plaintiff experienced discomfort “when
remaining in the same position for too long” (Tr. at 20), and that limitation is addressed in the
AL]’s inclusion of the sit/stand option. Indeed, as noted above, all of the jobs identified by
the ALJ at step five of the sequential analysis allow Plaintiff to alternate between sitting and
11
standing at will. Thus, nothing in the RFC requires Plaintiff to sit for extended periods, and
the Court finds no conflict between Mr. Jessen’s opinion and the RFC in this case.
Moreover, even if Mr. Jessen’s FCE could be read, as Plaintiff contends, as an opinion
that Plaintiff should be limited to sitting only occasionally, this opinion would not create a
material conflict with the AL]’s ultimate determination, given the inclusion of the sit/stand
option and given that all of the jobs identified by the ALJ allow Plaintiff to alternate between
sitting and standing at will. Plaintiff contends that “Mr. Jessen’s opinion would seem to
conflict with the ALJ’s finding that [Plaintiff] can perform sedentary work in a seated posture
for exactly one-half of the workday.” (Pl.’s Br. at 9-10.) However, as noted above, the AL]
did not require Plaintiff to sit for 4 hours and stand for 4 hours; the ALJ instead included in
the RFC a “sit/stand option” giving Plaintiff the option to change positions evety 30 minutes.
As discussed above, the VE specifically testified that the jobs of Semiconductor Bonder and
Stringing-Machine Tender allow for sitting and standing “at will,” such that an individual with
Plaintiffs RFC could perform these jobs while alternating between sitting and standing, as
needed, throughout the day. (Tr. at 56-57.) In the circumstances, it does not appear that there
is a material inconsistency between Mr. Jessen’s opinion and the AL]’s ultimate determination
that the ALJ failed to address or that would require remand.
12
IT IS THEREFORE ORDERED that the Commissionet’s decision finding no
disability is AFFIRMED, that Plaintiff's Motion for Judgment Reversing the Commissioner
[Doc. #12] is DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #14]
is GRANTED, and that this action is DISMISSED with prejudice.
This, the 26 day of September, 2023.
/s/ Jot Elizabeth Peake
United States Magistrate Judge
13