# GARLAND v. KIJAKAZI

> District Court, M.D. North Carolina · February 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10653678

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** February 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653678

## How later opinions describe it (automated extraction)

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

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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.

22

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
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653678. Public record. Not legal advice.