GARLAND v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARY L. GARLAND, )

)

Plaintiff, )

)

v. ) 1:22CV75

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Mary L. Garland, 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 claim for Disability Insurance

Benefits (“DIB”). (Docket Entry 2.) Defendant has filed the

certified administrative record (Docket Entry 8 (cited herein as

“Tr. __”)), and both parties have moved for judgment (Docket

Entries 13, 17; see also Docket Entry 14 (Plaintiff’s Memorandum);

Docket Entry 18 (Defendant’s Memorandum); Docket Entry 19

(Plaintiff’s Reply)). For the reasons that follow, the Court

should remand this matter for further administrative proceedings.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 213-14), alleging a disability

onset date of January 27, 2018 (see Tr. 213). Upon denial of that

application initially (Tr. 62-75, 111-19) and on reconsideration

(Tr. 76-104, 121-28), Plaintiff requested a hearing de novo before

an Administrative Law Judge (“ALJ”) (Tr. 129-30). Plaintiff, her

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

(Tr. 35-57.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 15-29.) The Appeals

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

188-92, 313-15), thereby making the ALJ’s ruling the Commissioner’s

final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through March 31, 2023.

2. [Plaintiff] has not engaged in substantial gainful

activity since January 27, 2018, the alleged onset date.

. . .

3. [Plaintiff] has the following severe impairments:

obesity; degenerative joint disease of the right

shoulder; and cervical strain.

. . .

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.

. . .

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

capacity to perform light work . . . that is limited to

occasional reaching or lifting to shoulder level with the

right dominant hand; occasional climbing of stairs,

2

stooping, kneeling, crouching, and crawling; and no

exposure to hazards such as unprotected heights or moving

machinery.

. . .

6. [Plaintiff] is capable of performing past relevant

work as a customer service representative. This work

does not require the performance of work-related

activities precluded by [Plaintiff]’s residual functional

capacity.

. . .

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

defined in the . . . Act, from January 27, 2018, through

the date of this decision.

(Tr. 20-28 (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.

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

3

[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

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,

4

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)).1 “To regularize the

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

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

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

1 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).

5

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

[(‘RFC’)] 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).2 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

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

2 “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).

6

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

the ALJ must assess the claimant’s [RFC].” Id. at 179.3 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 567.4

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, 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.

4 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

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.”).

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’s failure to identify and resolve the apparent

conflict between the VE’s testimony and the [Dictionary of

Occupational Titles (‘DOT’)] is error that prevents the ALJ’s Step

4 denial of benefits from being supported by substantial evidence”

(Docket Entry 14 at 5 (bold font and single-spacing omitted); see

also Docket Entry 19 at 1-8); and

2) “[r]emand is appropriate for further consideration [by the

ALJ] of the medical opinion evidence from [Plaintiff]’s orthopedic

specialists” (Docket Entry 14 at 9 (bold font and single-spacing

omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 18 at 4-15.)

1. Conflict Between VE’s Testimony and DOT

In Plaintiff’s first issue on review, she maintains that

“[t]he ALJ’s failure to identify and resolve the apparent conflict

between the VE’s testimony and the [DOT] is error that prevents the

ALJ’s Step 4 denial of benefits from being supported by substantial

evidence.” (Docket Entry 14 at 5 (bold font and single-spacing

omitted); see also Docket Entry 19 at 1-8.) More specifically,

Plaintiff argues that “an apparent and unresolved conflict” existed

8

between the VE’s testimony that an individual (such as Plaintiff)

limited to “‘occasional reaching or lifting to shoulder level with

the right dominant hand’” could perform Plaintiff’s past relevant

work (“PRW”) as a customer service representative (id. (italics

changed to underscoring) (quoting Tr. 22, and referencing Tr. 55-

56)), and the DOT’s characterization of that job as requiring

frequent reaching (see id. at 5-6; see also DOT, No. 249.362-026

(“Order Clerk”), 1991 WL 672320 (G.P.0O. 4th ed. rev. 1991)

(“Reaching: Frequently - Exists from 1/3 to 2/3 of the time”)).°

Plaintiff asserts that the United States Court of Appeals for the

Fourth Circuit has held that Social Security Ruling 00-4p, Policy

Interpretation Ruling: Titles II 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 00-40”), “place[s] an ‘affirmative duty’ on the ALJ to

independently identify apparent conflicts between the DOT and a

VE’s testimony regarding jobs a claimant may perform based on a

hypothetical [question]” (Docket Entry 14 at 7 (quoting Pearson v.

Colvin, 810 F.3d 204, 209 (4th Cir. 2015))), as well as to “obtain

a reasonable explanation [from the VE] for the conflict before [the

ALJ] can rely on the VE’s testimony to support [the denial]

° The VE and the ALJ refer to the “Order Clerk” job in the DOT as “customer

service representative.” (Tr. 28, 55-56.) For ease of reading, this

Recommendation will refer to the job as “customer service representative,” the

name used by the VE and the ALJ.

decision” (id. (citing Pearson, 810 F.3d at 209-10)). According to

Plaintiff, “the ALJ failed to identify this apparent conflict

before relying on the VE’s testimony at Step 4” (id.), because “the

only identified ‘inconsistencies’ by the VE were the VE’s testimony

that the [DOT did not address tolerance for off-task

behaviors/time and absenteeism” (id. at 8 (citing Tr. 56-57)).

Plaintiff further maintains that the Fourth Circuit in Pearson

found that same reaching conflict “apparent” and remanded for the

ALJ to resolve it. (Id. at 8-9 (citing Pearson, 810 F.3d at 206,

210-11).) 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,

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

10

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).

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.

Here, the ALJ asked the VE to classify Plaintiff’s PRW, and

the VE testified that Plaintiff’s prior work for Telvista from 2010

to 2012 assisting customers over the telephone with cell phone

problems (see Tr. 44) constituted the DOT job “customer service

representative,” a sedentary and semi-skilled job. (Tr. 55.) The

11

ALJ thereafter queried the VE whether an “individual .. . limited

to work at the light exertional level” who, inter alia, “could only

occasionally reach or lift to shoulder level with her right

dominant hand” (Tr. 55 (emphasis added)) could perform Plaintiff’s

PRW (Tr. 56). In response, the VE opined that such an individual

could not perform Plaintiff’s other PRW, but could perform

Plaintiff’s PRW as a customer service representative. (Id.)

After cross-examination of the VE by Plaintiff’s attorney

regarding employer tolerance for time off-task and absenteeism, the

following exchange occurred between the ALJ and the VE:

[ALJ: ] Then in the case of those questions, I believe

that covers matters not covered in the [DOT].

What do you rely upon for your answers?

[VE: ] Those are my opinions, which are based upon my

education, training, and experience, Your

Honor.

(Tr. 56-57 (emphasis added) .)

The ALJ subsequently adopted the VE’s testimony as to

Plaintiff’s ability to perform the customer service representative

job:

[Plaintiff] has [PRW] as a truck driver; weaver;

warehouse checker; customer service representative;

machinery assembler; and pizza deliverer. In comparing

[Plaintiff]’s [RFC] with the physical and mental demands

of the job of customer service representative, the [ALJ]

finds that [Plaintiff] is able to perform it as actually

and generally performed. This finding is based on [VE]

testimony. The [VE] testified that her testimony was

consistent with the [DOT] and that, with regard to

limitations that are not specifically addressed by the

12

[DOT], her testimony was based on her education,

training, and experience.

(Tr. 28 (emphasis added) (internal parenthetical citations

omitted) .)

A comparison of post-Pearson cases in this Court supports the

conclusion that the ALJ here neither sufficiently identified nor

resolved the apparent conflict in question. For example, in one

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]?

13

[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

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.).

14

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?

[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

15

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.,

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 [olp. (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 reflects that she

believed that the customer service representative job did not

require more than occasional reaching to shoulder level with the

dominant arm (see Tr. 55); however, unlike in Allen, the VE never

specifically acknowledged the apparent conflict between the DOT’s

description for that job as potentially involving frequent reaching

in any direction and with either arm and the hypothetical’s

restriction to occasional reaching to shoulder level with the

dominant (right) arm, stating only that, as to time off-task and

absenteeism, those matters were “not addressed by the DOT but were

based on [her] education, training and experience” (Tr. 57

(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...

16

breakdown of reaching right versus left,” Crouse, 2019 WL 4015553,

at *4 (emphasis added), the Court found the VE’s testimony

insufficient to identify and resolve the apparent conflict, id. at

*5.

The Commissioner attempts to characterize the apparent

conflict in question as “a misremembering by the VE concerning the

[DOT] classification of Plaintiff’s [PRW] as a telephone operator”

(Docket Entry 18 at 12), offering the following supporting

argument:

Elsewhere in the record, at the state agency, Plaintiff’s

[PRW] for Telvista between 2010 and 2012 was

characterized as a Telephone Solicitor, [DOT] Code

299.357-014 (Tr. 101, 102). Plaintiff described this job

as working as a “telephone operator” and helping people

over the telephone when they had problems with their cell

phones (Tr. 44). The occupation of [T]elephone

[S]olicitor occupation [sic] requires only occasional

reaching. [DOT] No. 299.357-014 (Telephone Solicitor),

1991 WL 672624. This [C]ourt has previously recognized

that the [T]elephone [S]olicitor occupation requires

occasional reaching. Allen[], [] 2018 WL 2025666, at *6

[]. The apparent conflict that Plaintiff asserts that

the ALJ should have resolved may have been nothing more

than a misremembering by the VE concerning the [DOT]

classification of Plaintiff’s [PRW] as a telephone

operator. In these circumstances, because the evidence

supported the ALJ’s finding that Plaintiff’s RFC

permitted her to perform her past sedentary occupation,

Plaintiff has not met her burden of showing harmful

error.

(Docket Entry 18 at 11-12 (emphasis added).) That argument fails

for the simple reason that the ALJ did not, in denying benefits at

step four of the SEP, rely in any way on the opinion of Disability

Adjudicator/Examiner Gabriel Madrid, issued as part of the state

17

agency determination at the reconsideration level of review, that

Plaintiff’s prior work for Telvista constituted the DOT job

Telephone Solicitor (see Tr. 101-103). (See Tr. 28 (stating that

ALJ’s step four finding “[wa]s based on [VE] testimony” (emphasis

added)).) This Court cannot justify the ALJ’s decision based upon

post hoc rationalizations by the Commissioner (particularly not

such rationalizations which involve the level of speculation

employed here). See Anderson v. Colvin, No. 1:10CV671, 2014 WL

1224726, at *1 (M.D.N.C. Mar. 25, 2014) (unpublished) (Osteen, Jr.,

C.J.) (holding that the Court’s “[r]eview of the ALJ’s ruling [wa]s

limited [ ] by the so-called ‘Chenery Doctrine,’ which prohibits

courts from considering post hoc rationalizations in defense of

administrative agency decisions,” and noting that “a reviewing

court ‘must judge the propriety of [agency] action solely by the

grounds invoked by the agency[, and i]f those grounds are

inadequate or improper, the court is powerless to affirm the

administrative action by substituting what it considers to be a

more adequate or proper basis’” (quoting Securities & Exch. Comm’n

v. Chenery Corp., 332 U.S. 194, 196 (1947))).

In short, the ALJ reversibly erred by failing to identify and

resolve the apparent conflict between the VE’s testimony and the

DOT regarding the reaching requirement of the customer service

representative job.

18

2. Orthopedists’ Medical Opinions

In Plaintiff’s second and final assignment of error, she

contends that “[r]emand is appropriate for further consideration

[by the ALJ] of the medical opinion evidence from [Plaintiff]’s

orthopedic specialists.” (Docket Entry 14 at 9 (bold font and

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

although “the ALJ appear[ed] to find the opinion evidence [from

Plaintiff’s orthopedic providers located in Exhibit 10F of the

administrative transcript] consistent and well-supported” (id.

(citing Tr. 27)), Exhibit 10F contains “multiple opinions from two

different orthopedic providers, Dr. [Richard Andrew] Collins and

Dr. [Jeffrey] Beane” (id. (referencing Tr. 960-1001)), and “the

ALJ’s vague reference to the opinion evidence in Exhibit 10F

without identifying which provider’s opinion she was referencing

actually precludes meaningful review” (id. at 9-10 (referencing Tr.

27)). In Plaintiff’s view, “[w]hile the ALJ’s assessment is most

consistent with Dr. Beane’s opinion at [page] 962 [of the

administrative transcript, the ALJ] ignore[d] relevant portions of

[that] opinion[, including] . . . Dr. Beane’s recommendations to

avoid extension . . . [and] sustained flexion of the cervical

spine.” (Id. at 12-13 (emphasis added) (citing Tr. 27-28, 962).)

According to Plaintiff, “the ALJ[’s] fail[ure] to address and

reconcile the probative evidence in the record that conflicts with

her conclusions regarding [Plaintiff]’s RFC” warrants “[r]emand for

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further consideration.” (Id. at 15 (citing 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”)).) Those contentions miss the

mark.

For benefits applications filed on or after March 27, 2017

(such as Plaintiff’s (see Tr. 213-14)), 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 need not

assign an evidentiary weight to medical opinions and prior

administrative medical findings or accord special deference to

treating source opinions. See 20 C.F.R. § 404.1520c(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”).6 Instead, an ALJ must determine and

6 The new regulations define a “medical opinion” as “a statement from a

medical source about what you can still do despite your impairment(s) and whether

you have one or more impairment-related limitations or restrictions” in the

abilities to perform the physical, mental, or other demands of work activity or

to adapt to environmental conditions. 20 C.F.R. § 404.1513(a)(2). Those

regulations also define a “prior administrative medical finding” as a “finding,

other than the ultimate determination about whether [a claimant is] disabled,

about a medical issue made by [the SSA’s] Federal and State agency medical and

psychological consultants at a prior level of review.” 20 C.F.R.

§ 404.1513(a)(5).

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“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) (emphasis added). Moreover, when a medical

source provides more than one opinion or finding, the ALJ will

evaluate the persuasiveness of such opinions or findings “together

in a single analysis” and need not articulate how he or she

considered those opinions or findings “individually.” 20 C.F.R.

§ 404.1520c(b)(1).

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. § 404.1520c(b)(2).7 The ALJ must only 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) —

when the ALJ finds two or more opinions or findings about the same

issue “[e]qually persuasive” in terms of supportability and

7 “Supportability” means “[t]he extent to which a medical source’s opinion

is supported by relevant objective medical evidence and the source’s supporting

explanation.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 404.1520c(c)(1). “Consistency” denotes “the extent to which the opinion is

consistent with the evidence from other medical sources and nonmedical sources

in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 404.1520c(c)(2).

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consistency, 20 C.F.R. § 404.1520c(b) (3). Moreover, “[w]lhen a

medical source provides one or more medical opinions .. ., [the

ALJ] will consider those medical opinions . . . from that medical

source together.” 20 C.F.R. §$ 404.1520c(a) (emphasis added).

Plaintiff began treatment with Dr. Collins (and his

Physician’s Assistant Bryson Stilwell (“PA Stilwell”)) in April

2018, following an on-the-job motor vehicle accident on January 27,

2018, resulting in injury to her right shoulder covered by Workers’

Compensation. (See Tr. 994-95.) Following right shoulder surgery

in August, 2018 (see Tr. 999-1001), Dr. Collins and PA Stilwell

issued the following series of work restrictions for Plaintiff’s

Workers’ Compensation case:

. On November 12, 2018, Dr. Collins released

Plaintiff from care, deemed her at maximum medical

improvement, rated her right shoulder with a 15

percent permanent partial impairment, and opined

that she could return to work with regular duties.

(Tr. 986.);

□ After Plaintiff returned to Dr. Collins in February

2019 with reports of “mild pain” (Tr. 977) rated at

2 out of 10 on the pain scale (see Tr. 976), Dr.

Collins restricted Plaintiff to “light duty

with . . . no lifting over 10 pounds and_no

overhead activity” (Tr. 978 (emphasis added)).

* In March 2019, PA Stilwell continued those same

restrictions. (See Tr. 972.)

° In April 2019, Dr. Collins again released Plaintiff

from care, reiterated his 15 percent permanent

partial impairment rating of Plaintiff’s right

shoulder, and opined that she could “work full duty

based on her right shoulder,” while noting that Dr.

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Beane continued to treat Plaintiff’s “other

problems.” (Tr. 964 (emphasis added) .)

After Plaintiff reported to Dr. Collins on February 11, 2019,

that “her shoulder pain [had] improved,” and that she thought her

“pain clame] from her neck” (Tr. 977), Plaintiff saw Dr. Beane for

the first time the next day (see Tr. 973-75), but he deferred any

work status restrictions to Dr. Collins at that time (see Tr. 975).

Dr. Beane thereafter offered the following recommendations and

continued Dr. Collins’s restrictions in place:

° In March 2019, Dr. Beane noted that he and

Plaintiff “had discussed the concepts of positional

neurapraxia of the cervical nerve roots,” including

“[t]o avoid extension of the cervical spine during

activities of daily living such as that that occurs

in the seated position while utilizing a computer

or driving,” “to avoid sustained overhead activity

which extends the cervical spine,” to maintain

“appropriate sitting posture,” to “La]void[]

sustained flexion,” to engage in “isometric

paracervical strengthening exercises and cervical

stretching exercises to open up and distract the

neuroforamen,” to “[a]void[] a traction injury to

the cervical nerve roots,” and to ‘“‘avoid[]

overextending the arm and elevating the shoulder

with lifting tasks.” Dr. Beane further noted that

he “[c]ontinue[d] . . . [Plaintiff’s] current

restrictions.” (Tr. 970 (emphasis added).)

° In April 2019, Dr. Beane noted that Plaintiff

“currently ha[d] light duty restrictions of no

lifting over 10 [pounds] with the right arm” (Tr.

966 (emphasis added)), as well as stated that

Plaintiff should “[c]lontinue [with] no lifting over

10 pounds or repetitive use of the right arm” (Tr.

967 (emphasis added)).

° In May 2019, Dr. Beane again observed that

Plaintiff “was placed on restriction of no lifting

over 10[ pounds] with [her] right arm” (Tr. 961

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(emphasis added)), reiterated his “discuss[ion]

with Plaintiff about “the concepts of positional

neurapraxia of the cervical nerve roots” (Tr. 962),

and stated that Plaintiff should “[c]ontinue with

her current restrictions [of] no lifting over 10

pounds with the right arm” (id. (emphasis added)).

The ALJ evaluated the opinions of Drs. Collins and Beane as

follows:

The [ALJ] notes that [Plaintiff]’s provider at

EmergeOrtho initially restricted her to no lifting over

ten pounds which is not inconsistent with a limitation to

light exertion which includes occasional lifting of

twenty pounds with both arms. [Plaintiff] was also

restricted to no overhead activity before being cleared

to return to full duty with no overextending of her arm

and no elevated [sic] her shoulder with lifting tasks.

This is accounted for in [Plaintiff’s RFC] by limiting

her to occasional reaching and occasional lifting to

shoulder level with the right upper extremity. Overall,

the limitations assessed by [Plaintiff]’s orthopedist at

EmergeOrtho are well-supported by the documented

examination findings in the records from that facility

and are consistent with the cervical imaging studies and

the subsequent examination findings of decreased neck and

right shoulder range of motion.

(Tr. 27-28 (emphasis added) (internal parenthetical citation

omitted).) Plaintiff challenges that analysis on two grounds,

neither of which establishes a basis for remand.

Plaintiff first asserts that “the ALJ’s vague reference to the

opinion evidence in Exhibit 10F without identifying which

provider’s opinion she was referencing actually precludes

meaningful review.” (Docket Entry 14 at 9-10 (referencing Tr.

27).) In addition, Plaintiff observes that “the ALJ appear[ed] to

conflate Dr. Collins’ opinion - which was specifically limited to

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only [Plaintiff’s] right shoulder impingement – with Dr. Beane’s

opinions even though Dr. Collins’ [sic] specifically noted in April

2019 that the right shoulder was not [Plaintiff]’s only problem and

that Dr. Beane was providing care and recommendations for th[o]se

additional problems.” (Id. at 13 (referencing Tr. 964).)

The ALJ’s use of the singular words “provider” and

“orthopedist” in his above-quoted analysis (Tr. 27) lends some

support to the notion that the ALJ failed to realize that three

different providers at the same orthopedic practice treated

Plaintiff. That apparent oversight by the ALJ, however, does not

preclude meaningful review by this Court because, as the chronology

of opinions from Dr. Collins, PA Stilwell, and Dr. Beane discussed

above makes clear, Dr. Collins issued the restrictions at issue in

this case (see Tr. 978), and PA Stilwell and Dr. Beane just

“continued” them (see Tr. 961 (Dr. Beane’s observation that

Plaintiff “was placed on restriction of no lifting over 10[ pounds]

with [her] right arm” (emphasis added)), 962 (Dr. Beane’s remark

that Plaintiff should “[c]ontinue with her current restrictions”

(emphasis added)), 966 (Dr. Beane’s notation that Plaintiff

“currently had light duty restrictions” (emphasis added)), 967 (Dr.

Beane’s reported plan that Plaintiff should “[c]ontinue [with] no

lifting over 10 pounds or repetitive use of the right arm”

(emphasis added)), 970 (Dr. Beane’s notation that Plaintiff

“currently ha[d] light duty restrictions,” and that he

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“[clontinue[d] . . . [Plaintiff’s] current restrictions (emphasis

added)), $72 (PA Stilwell’s statement that Plaintiff “[c]ontinue

modified work duties” (emphasis added)), 975 (Dr. Beane’s deferral

of any work status restrictions to Dr. Collins)).

Furthermore, Dr. Collins’s restrictions, as well as Dr.

Beane’s and PA Stilwell’s continuation of those restrictions,

limited Plaintiff to no more than 10 pounds of lifting with her

dominant right upper extremity (see Tr. 978), and Plaintiff does

not argue that the ALJ’s light-exertion RFC failed to accommodate

that restriction (see Docket Entries 14, 19). Moreover, although

the phrasing of the reaching component of Dr. Collins’s

restrictions varied over time (compare Tr. 978 (Dr. Collins’s

restriction to “no overhead activity” before later releasing

Plaintiff to full duty (see Tr. 964) (emphasis added)), with Tr.

967 (Dr. Beane’s rephrasing of Dr. Collins’s reaching restriction

as “no . . . repetitive use of the right arm” (emphasis added)),

and 962 (Dr. Beane’s reiteration of Dr. Collins’s 10-pound lifting

restriction on right arm without including reaching limitation)),

Plaintiff similarly makes no argument that the ALJ’s limitation to

occasional reaching and lifting to shoulder level with the right

upper extremity in the RFC (see Tr. 22) failed to capture those

reaching restrictions (see Docket Entries 14, 19).

Second, Plaintiff argues that, “[w]hile the ALJ’s assessment

is most consistent with Dr. Beane’s opinion at [page] 962 [of the

26

administrative transcript, the ALJ] ignore[d] relevant portions of

[that] opinion[, including] . . . Dr. Beane’s recommendations to

avoid extension . . . [and] sustained flexion of the cervical

spine.” (Docket Entry 14 at 12-13 (emphasis added) (citing Tr. 27-

28, 962).) That argument fails, because Dr. Beane’s discussion

with Plaintiff of such matters as avoiding cervical extension while

engaged in daily activities, avoiding sustained cervical flexion

and overhead activity, maintaining good posture, performing certain

cervical exercises, and avoiding arm overextension and shoulder

elevation (see Tr. 962, 970) does not constitute the issuance of

medical opinions, but rather treatment recommendations.8 “Medical

opinions are statements from acceptable medical sources that

reflect judgments about the nature and severity of [the

plaintiff’s] impairment(s), including [the plaintiff’s] symptoms,

diagnosis and prognosis, what [the plaintiff] can still do despite

impairment(s), and [the plaintiff’s] physical or mental

restrictions.” 20 C.F.R. § 404.1527(a)(1) (emphasis added). In

contrast, a recommendation that a patient undertake certain

8 To the extent the ALJ treated Dr. Beane’s recommendation that Plaintiff

avoid overextension of her arm and shoulder elevation when performing lifting

tasks as a medical opinion (see Tr. 27-28), any such error by the ALJ remains

harmless, 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 lead to a different result”), as the ALJ

“accounted” for that recommendation “in the [Plaintiff’s RFC] by limiting her to

occasional reaching and occasional lifting to shoulder level with the right upper

extremity” (Tr. 27).

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ameliorative measures to lessen pain and/or increase functionality

does not equate to a physical restriction or a judgment about what

that patient can still do despite his or her impairments. See

Welch v. Colvin, 566 F. App’x 691, 693–94 (10th Cir. 2014) (finding

that “none of the physicians [the plaintiff] identifie[d] provided

medical opinions about her that, given her impairments, the ALJ was

required to weigh[, but r]ather, each physician simply diagnosed

[the plaintiff’s] impairments and in some cases recommended

treatment for them”); Cruz v. Commissioner of Soc. Sec. Admin., No.

19CV4460, 2020 WL 3567033, at *2 (D. Ariz. July 1, 2020)

(unpublished) (holding that ALJ had no obligation “to address

[doctor’s] statement as a medical opinion,” because doctor “merely

recommended that [the p]laintiff elevate her legs when sitting” and

“did not state it was necessary for work” (internal quotation marks

and brackets omitted)), aff’d sub nom., Cruz v. Kijakazi, No. 20-

16651, 2021 WL 5357231 (9th Cir. Nov. 17, 2021) (unpublished);

Valentine v. Commissioner of Soc. Sec. Admin., No. 1:18CV1887, 2019

WL 4395177, at *11 (N.D. Ohio July 23, 2019) (unpublished) (finding

doctor’s “recommend[ation] . . . that [the plaintiff] elevate his

legs” failed to qualify as “medical opinion[] that [the

plaintiff]’s varicose veins caused work-related functional

limitations” (internal quotation marks omitted)), recommendation

adopted, 2019 WL 4394168 (N.D. Ohio Sept. 13, 2019) (unpublished);

Inscho v. Commissioner of Soc. Sec., No. 17CV114, 2018 WL 4184340,

28

at *1 n.2 (W.D. Pa. Aug. 31, 2018) (unpublished) (deeming the

plaintiff’s “portray[al of consultative psychological examiner]’s

observations as an opinion as to [the p]laintiff’s work-related

limitations [] simply inaccurate,” because “the section of the

evaluation labeled ‘Recommendations,’ the section that came closest

to offering opinions, set forth actions and situations from which

[the p]laintiff would benefit, not things that she could or could

not do”).

In sum, Plaintiff has failed to demonstrate that the ALJ

prejudicially erred in her evaluation of the opinions from

Plaintiff’s orthopedic providers.

III. CONCLUSION

Plaintiff has established an error warranting remand regarding

VE testimony.

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 DOT in accordance with SSR 00-4p and

Pearson. As a result, Plaintiff’s Motion for Summary Judgment

(Docket Entry 13) should be granted in part (i.e., to the extent it

29

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

Pleadings (Docket Entry 17) should be denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 24, 2023

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