BECK v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

APRIL B., )

)

Plaintiff, )

)

v. ) 1:23CV81

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, April B., 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 (the “Commissioner”), denying Plaintiff’s claims for

Disability Insurance Benefits (“DIB”), Supplemental Security Income

(“SSI”), and Disabled Widow’s Insurance Benefits (“DWIB”). (Docket

Entry 1.)1 Defendant has filed the certified administrative record

(Docket Entry 6 (cited herein as “Tr. __”)), and both parties have

submitted dispositive briefs in accordance with Rule 5 of the

Supplemental Rules for Social Security Actions under 42 U.S.C.

1 The Act principally “comprises two disability benefits programs. [DIB]

provides benefits to disabled persons who have contributed to the program while

employed. [SSI] provides benefits to indigent disabled persons. The statutory

definitions and the regulations . . . for determining disability governing these

two programs are, in all aspects relevant here, substantively identical.” Craig

v. Chater, 76 F.3d 585, 589 n.1 (4th Cir. 1996) (internal citations omitted).

An individual establishes the disability-related criteria of DWIB using the same

standards as apply in DIB and SSI claims. See 42 U.S.C. § 402(e)(1)(B)

(incorporating the definition of “disability” in 42 U.S.C. § 423(d)).

§ 405(g) (Docket Entries 10, 13). For the reasons that follow,

the Court should enter judgment for Defendant.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI (Tr. 717-29), alleging a

disability onset date of July 26, 2019 (see Tr. 717, 720, 722).

Upon denial of those applications initially (Tr. 546-69, 598-607)

and on reconsideration (Tr. 570-93, 610-17), Plaintiff requested a

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

(Tr. 618-19), and added a claim for DWIB (Tr. 757-74), alleging the

same onset date (see Tr. 761, 769). Plaintiff, her attorney, and

a vocational expert (“VE”) attended the hearing (Tr. 500-45),

during which Plaintiff amended her onset date to February 14, 2020

(see Tr. 17, 504-06, 775). The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 13-39.)

The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-7, 40-499, 714-16, 876-81), thereby making the ALJ’s

ruling the Commissioner’s final decision for purposes of judicial

review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2024.

2. It was previously found that [Plaintiff] is the

unmarried widow of the deceased insured worker and has

attained the age of 50. [Plaintiff] met the non-

disability requirements for [DWIB] . . . .

2

3. The prescribed period [for DWIB] ends on November

30, 2025.

4. [Plaintiff] has not engaged in substantial gainful

activity since February 14, 2020, the amended onset date.

5. [Plaintiff] has the following severe impairments:

obesity and recurrent nephrolithiasis.

. . .

6. [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.

. . .

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

capacity to perform medium work (lift and carry 50 pounds

occasionally and 25 pounds frequently . . .), except she

should avoid concentrated exposure to loud noise levels;

she should avoid concentrated exposure to respiratory

irritants such as fumes, odors, gases, and poorly

ventilated areas; she should avoid all exposure to

hazardous machinery and unprotected heights; she is able

to work with levels of illumination similar to that found

in typical office settings, but she should not work in

sustained direct sunlight; she is limited to jobs with no

acute hearing requirements as part of the job.

. . .

8. [Plaintiff] is capable of performing past relevant

work as a resident supervisor, receptionist, and director

of community organizations. This work does not require

the performance of work-related activities precluded by

[Plaintiff]’s residual functional capacity.

. . .

In addition to past relevant work, there are other jobs

that exist in significant numbers in the national economy

that [Plaintiff] also can perform, considering

[Plaintiff]’s age, education, work experience, and

residual functional capacity.

. . .

3

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

defined in the .. . Act, from July 26, 2019, through the

date of this decision.

(Tr. 19-32 (bold font and internal parenthetical citations

omitted) .)*

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely

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

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

the Court “must uphold the factual findings of the ALJ if they are

supported by substantial evidence and were reached through

application of the correct legal standard.” Hines, 453 F.3d at 561

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant evidence as a reasonable mind might

The ALJ erroneously found Plaintiff not disabled from July 26, 2019, through

the date of the ALJ’s decision on August 25, 2022 (see Tr. 32), because, as the

ALJ had acknowledged earlier in his decision (see Tr. 17, 19), Plaintiff amended

her onset date to February 14, 2020 (see Tr. 17, 504-06, 775). That error did

not prejudice Plaintiff, however, because a finding that Plaintiff did not

qualify as disabled from July 26, 2019, to August 25, 2022, necessarily

encompasses a finding that she did not so qualify from February 14, 2020, to

August 25, 2022.

accept as adequate to support a conclusion.’” Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402

U.S. 389, 401 (1971)). “It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro

v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal

quotation marks omitted). “If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

is substantial evidence.” Hunter, 993 F.2d at 34 (internal

quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

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

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the Court], therefore, is not whether

[the claimant] is disabled, but whether the ALJ’s finding that [the

claimant] is not disabled is supported by substantial evidence and

was reached based upon a correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

5

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)). “To regularize the

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

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

age, education, and work experience in addition to [the claimant’s]

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of the Soc. Sec. Admin., 174

6

F.3d 473, 475 n.2 (4th Cir. 1999).3 A finding adverse to the

claimant at any of several points in the SEP forecloses an award

and ends the inquiry. For example, “[t]he first step determines

whether the claimant is engaged in ‘substantial gainful activity.’

If the claimant is working, benefits are denied. The second step

determines if the claimant is ‘severely’ disabled. If not,

benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

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

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

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

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.4 Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant

work; if so, the claimant does not qualify as disabled. See id. at

3 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

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

4 “RFC is a measurement of the most a claimant can do despite [the claimant’s]

limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations

require RFC to reflect claimant’s “ability to do sustained work-related physical

and mental activities in a work setting on a regular and continuing basis . . .

[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”

(internal emphasis and quotation marks omitted)). The RFC includes both a

“physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as

“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658

F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers

all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,

pain).” Hines, 453 F.3d at 562-63.

7

179-80. However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the claimant’s RFC] and [the

claimant’s] vocational capabilities (age, education, and past work

experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary

burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.5

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ’s [s]tep 4 findings cannot be supported by

substantial evidence where the ALJ failed to clarify whether

[Plaintiff]’s past relevant work [(‘PRW’)], as identified, were

[sic] composite jobs or not” (Docket Entry 10 at 8 (bold font and

block formatting omitted)); and

2) “[t]he ALJ’s reliance on the VE’s testimony to support an

alternate [s]tep 5 denial of benefits in [Plaintiff]’s claim[s] is

5 A claimant thus can establish disability via two paths through the SEP. The

first path requires resolution of the questions at steps one, two, and three in

the claimant’s favor, whereas, on the second path, the claimant must prevail at

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

the SEP appear to gloss over the fact that an adverse finding against a claimant

on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at

35 (“If the ALJ finds that a claimant has not satisfied any step of the process,

review does not proceed to the next step.”).

8

not supported by substantial evidence where the ALJ failed to

identify and resolve the apparent conflict between the VE’s

testimony and the [Dictionary of Occupational Titles (‘DOT’)]” (id.

at 11 (bold font and block formatting omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 13 at 5-9.)

1. PRW

In Plaintiff’s first assignment of error, she alleges that

“[t]he ALJ’s [s]tep 4 findings cannot be supported by substantial

evidence where the ALJ failed to clarify whether [Plaintiff]’s

[PRW], as identified, were [sic] composite jobs or not.” (Docket

Entry 10 at 8 (bold font and block formatting omitted).) In

particular, Plaintiff points out that the VE could not provide DOT

titles that “encompass[ed] all the job duties performed by

[Plaintiff] in any of [her] three [past relevant] jobs” (id. at 10

(citing Tr. 534-35)) and, instead, provided “[DOT] codes and job

titles [] to the ALJ as a ‘reference’” (id. (quoting Tr. 534-35)).

Moreover, Plaintiff emphasizes that the ALJ asked the VE for other

jobs that fit the hypothetical question, because the ALJ observed

that “it sounds like a lot of the past work is more kind of

composite,” and that Plaintiff “did several different things.”

(Id. at 9 (quoting Tr. 538) (emphasis omitted).) According to

Plaintiff, the ALJ also erred because he “failed to include the

appropriate findings of fact regarding the physical and mental

9

demands of [Plaintiff’s PRW] in the decision as required by [Social

Security Ruling 82-62, Titles IT and XVI: A Disability Claimant’s

Capacity to Do Past Relevant Work, In General, 1982 WL 31386 (1982)

(“SSR 82-627)].” (Id.) Plaintiff’s contentions do not warrant

relief.

“[U]nder the fourth step of the disability inquiry, a claimant

will be found ‘not disabled’ if [she] is capable of performing [her

PRW] either as [she] performed it in the past or as it is generally

required by employers in the national economy.” Pass v. Chater, 65

F.3d = 1200, 1207 (4th Cir. 1995); see _also 20 £C.F.R.

§§ 404.1560 (b) (2), 416.960 (b) (2) .° In other words, a claimant must

demonstrate “an inability to return to her previous work (i1.ée.,

occupation), and not simply to her specific prior job.” DeLoatche

v. Heckler, 715 F.2d 148, 151 (4th Cir. 1983). In making that step

four finding, the regulations permit the ALJ to “use the services

of [VEs] .. ., or other resources, such as the [DOT],” and permit

the VE to “offer relevant evidence within his or her expertise or

knowledge concerning the physical and mental demands of a

claimant’s [PRW], either as the claimant actually performed it or

as generally performed in the national economy,” as well as to

“offer expert opinion testimony in response to a hypothetical

° The Commissioner’s regulations define PRW as “work that [a claimant has] done

within the past 15 years, that was substantial gainful activity, and that lasted

long enough for [the claimant] to learn to do it.” 20 C.F.R. $$ 404.1560 (1),

416.960(b) (1). Plaintiff raises no argument that her PRW as classified by the

VE (see Tr. 534-35) fails to meet any of those requirements. (See Docket Entry

10

question about whether a person with the physical and mental

limitations imposed by the claimant’s medical impairment(s) can

meet the demands of the claimant’s [PRW], either as the claimant

actually performed it or as generally performed in the national

economy.” 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). An ALJ

“may rely on the general job categories of the [DOT] as

presumptively applicable to a claimant’s [PRW],” but “a claimant

may overcome the presumption that the [Commissioner’s]

generalization applies by demonstrating that her duties were not

those envisaged by the framers of the [Commissioner’s] category.”

DeLoatche, 715 F.2d at 151.

Composite jobs have “significant elements of two or more

occupations and, as such, have no counterpart in the [DOT].”

Program Operations Manual System (POMS) DI 25005.020B (“Past

Relevant Work (PRW) as the Claimant Performed It”). Put another

way, PRW “may be a composite job if it takes multiple [DOT]

occupations to locate the main duties of the PRW as described by

the claimant.” Id. However, “[a] former job performed by the

claimant may have involved functional demands and job duties

significantly in excess of those generally required for the job by

other employers throughout the national economy” and, thus, “if the

claimant cannot perform the excessive functional demands and/or job

duties actually required in the former job but can perform the

functional demands and job duties as generally required by

11

employers throughout the economy, the claimant should be found to

be ‘not disabled.’” Social Security Ruling 82-61, Titles II and

XVI: Past Relevant Work – The Particular Job or the Occupation as

Generally Performed, 1982 WL 31387, at *2 (1982) (“SSR 82-61”)

(emphasis added). If the ALJ determines that PRW qualifies as a

composite job, the POMS requires the ALJ to “explain why.” POMS DI

25005.020. Moreover, “[w]hen comparing the claimant’s RFC to a

composite job as the claimant performed it,” the ALJ may find “the

claimant capable of performing the composite job only if he or she

can perform all parts of the job.” Id. (emphasis added).

Furthermore, because “[a] composite job does not have a [DOT]

counterpart,” the ALJ should not find that a claimant can return to

such work “as generally performed in the national economy.” Id.

As an initial matter, Plaintiff’s failure to cross-examine the

VE at the hearing regarding her classification of Plaintiff’s PRW

despite representation by counsel and cross-examination of the VE

on other subjects (see Tr. 539-44), or to raise the issue of

composite jobs at all during the hearing or in post-hearing

objections or briefing, constitutes waiver of her right to now

attack that classification for the first time on judicial review,

see Helton v. Kijakazi, No. 2:21CV15, 2022 WL 3031345, at *6 (W.D.

Va. Aug. 1, 2022) (unpublished) (concluding ALJ “did not err by

failing to evaluate [the plaintiff]’s [PRW] as a composite job[,]”

where “counsel did not raise th[at] issue in the current claim

12

until he appealed it to th[e federal district] court, despite

having ample opportunity to do so[,]” including in opening

statement at hearing or in request for review to Appeals Council),

recommendation adopted, 2022 WL 4003870 (W.D. Va. Sept. 1, 2022)

(unpublished); Jones v. Commissioner of Soc. Sec., No. 4:19CV28,

2020 WL 3076410, at *2 (N.D. Miss. June 10, 2020) (unpublished)

(“[A]t step four, where the claimant retains the burden to

establish that [s]he is unable to perform h[er] PRW, a claimant who

disagrees with the VE’s characterization of [the claimant’s] PRW is

obligated to raise that issue and press it on cross-examination or

else the issue is waived.”), aff’d sub nom., Jones v. Saul, 834 F.

App’x 839 (5th Cir. 2020); Kawelo v. Colvin, No. CV 15-223, 2016 WL

3983223, at *8 (D. Haw. July 25, 2016) (unpublished) (“[The

plaintiff], represented by counsel at the hearing, did not question

or otherwise object to the VE’s testimony based upon the [DOT]’s

classification of her PRW as three different positions.

Consequently, the ALJ, relying on the unrefuted testimony of [the

plaintiff] and the VE, rationally found that [the plaintiff]

performed three separate jobs while employed at the bank.”), aff’d

sub nom., Kawelo v. Berryhill, 732 F. App’x 584 (9th Cir. 2018);

Norman v. Commissioner of Soc. Sec., No. 1:14CV2374, 2016 WL

922741, at *3 (N.D. Ohio Mar. 11, 2016) (unpublished) (“[D]uring

the hearing, where [the] plaintiff was represented by counsel, she

[] did not challenge the VE’s testimony regarding her ability to

13

perform her PRW as a case worker under [DOT] 195.107-010, which is

generally performed at a sedentary exertional level. [On judicial

review], she claims that was an incorrect classification because it

does not address her career concentration on adolescents. She

claims she should be classified under [DOT ] 195.107-114

(Caseworker, Child Welfare), which is generally performed at the

light exertional level. This objection is readily overruled due to

the fact that the alleged misclassification was never raised in any

fashion during the hearing and was never otherwise pointed out to

the ALJ.”).!

Moreover, even if the Court did not find that Plaintiff waived

her right to raise the alleged misclassification of her PRW, she

still cannot prevail in this matter, because she has shown neither

that the VE misclassified Plaintiff’s PRW as a receptionist and

house manager with Path of Hope, nor that the ALJ erred in failing

to find those jobs composite. Plaintiff described her PRW at Path

of Hope, a residential substance abuse rehabilitation program, to

consist of three distinct jobs that she held at different times -

Although Social Security Ruling 00-4p, Titles II and XVI: Use of Vocational

Expert and Vocational Specialist Evidence, and Other Reliable Occupational

Information in Disability Decisions, 2000 WL 1898708 (Dec. 4, 2000) (“SSR □□□

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,

SSR 00-4p, 2000 WL 1898708, at *2 the alleged misclassification of Plaintiff’s

PRW by the VE does not constitute an “apparent unresolved conflict between

VE... evidence and the [DOT],” id., but, rather, a conflict between the VE’s

classification of Plaintiff’s PRW and Plaintiff’s description of such work. See

Harris v. Kijakazi, No. 1:20CV1133, 2022 WL 541438, at *5 (M.D.N.C. Feb. 23,

2022) (unpublished), recommendation adopted, 2022 WL 868003 (M.D.N.C. Mar. 23,

2022) (unpublished) (Biggs, J.). Consequently, Plaintiff’s arguments do not

trigger SSR 00-4p’s requirement that the ALJ independently identify and resolve

apparent conflicts between the VE’s testimony and the DOT.

14

receptionist, development director/residential team leader, and

house manager. (See Tr. 510-16.)° As the following colloquy

between the ALJ and the VE regarding Plaintiff’s PRW shows, the VE

classified those three jobs as the DOT titles Receptionist,

Director, Community Organization, and Residence Supervisor,

respectively:

[ALJ:] . . . [C]ould you please classify [Plaintiff]’s

past work for me?

[VE:] Yes, sir. .. . [T]he house manager, there is not

one [DOT] number that will address everything that was

done under that job, but I can give you one to reference

and it would be resident supervisor. It’s classified as

sedentary and skilled. The SVP is 6. The [DOT] number

is 187.167-186 and as that job was performed, it was

heavy. And the title of receptionist, from what I

understand, there were a lot of duties in that job.

Again, there is not one [DOT] number that’s going to

include all those duties but I can give you the

receptionist [DOT] number to reference. It’s classified

as sedentary and semiskilled. The SVP is 4. The [DOT]

number is 237.367-038 and as that job was performed, it

was medium and I believe that based on the job

responsibilities as it was performed, it would have been

skilled with a [DOT] number of -- I mean an SVP number of

5. The development director, again there isn’t going to

be one [DOT] number that addresses everything that was

done, but I can give you one to reference. It would be

director, community organization. It’s classified as

sedentary and skilled. The SVP is 8. The [DOT] number

is 187.167-234 and as _ that job was performed, it was

heavy.

(Tr. 534-35 (emphasis added) (citing DOT, No. 237.367-038

(“Receptionist”), 1991 WL 672192 (G.P.0. 4th ed. Rev. 1991), DOT,

® Plaintiff’s work history reports either did not describe any of the duties of

those positions (see Tr. 784-93, 817-24), or described all of her duties in the

three different roles at Path of Hope together (see Tr. 821). Thus, this

Recommendation focuses on Plaintiff’s testimony regarding her three different

Path of Hope jobs in evaluating this assignment of error.

15

No. 187.167-186 (“Residence Supervisor”), 1991 WL 671408, and DOT,

No. 187.167-234 (“Director, Community Organization”), 1991 WL

671420).) The VE testified in response to the ALJ’s dispositive

hypothetical question that an individual with Plaintiff’s RFC could

perform “[t]he receptionist position . . . as it’s defined in the

[DOT] and as it was actually performed,” the “resident

supervisor . . . as it’s defined in the [DOT], but not as it was

actually performed[, a]nd the director, community

organization . . . as it’s defined in the [DOT] only.” (Tr. 537.)

Following that testimony, the ALJ asked the VE to provide

other jobs available in significant numbers in the national economy

responsive to the hypothetical:

[ALJ:] . . . Now, although you did provide me with a

couple jobs that [the hypothetical individual] could

perform both as actual and general as past work, just so

I have a clear record, could you please provide me

several other jobs that this hypothetical individual

could perform within those limitations?

[VE:] And that’s at the medium level, yes, sir.

[ALJ:] Yes, ma’am.

[VE:] Okay. I’ll look them up here.

[ALJ:] . . . And the reason I’m asking for more jobs, it

sounds like a lot of the past work is more kind of

composite. [Plaintiff] did several different things, so

I just want to find out –

[VE:] Right, right. I’m looking it up. I’m pulling it

up right now, Your Honor.

(Tr. 537-38 (emphasis added).) The ALJ adopted the VE’s testimony

regarding Plaintiff’s ability to return to her PRW, and did not

16

make any finding regarding whether any of Plaintiff’s PRW qualified

as a composite job. (See Tr. 31.)

Significantly, despite arguing that Plaintiff’s PRW qualifies

as composite jobs, Plaintiff has not attempted to make any argument

as to which other DOT titles apply to her former job duties, or

even identified which specific duties of each Path of Hope job the

corresponding DOT title cited by the VE fails to capture

(see Docket Entry 10 at 8-11). See POMS DI 25005.020B (explaining

that composite jobs have “significant elements of two or more

occupations and, as such, have no counterpart in the [DOT],” and

that PRW “may be a composite job if it takes multiple [DOT]

occupations to locate the main duties of the PRW as described by

the claimant” (emphasis added)). Instead, Plaintiff now seizes

upon the ALJ’s comment about the potential for Plaintiff’s PRW to

qualify as composite jobs (see Tr. 538), despite having failed to

probe that subject on cross-examination at the hearing (see Tr.

539-44), together with the VE’s response of “[r]light, right” (Tr.

538), as a sufficient basis for the Court to find reversible error

on the issue of composite jobs. The Court should reject that

approach.

The full context of the ALJ’s exchange with the VE makes clear

that, at most, the ALJ acknowledged the possibility that some of

Plaintiff’s prior jobs for Path of Hope could qualify as composite.

(See Tr. 537-38.) The ALJ did not specifically find that the jobs

17

qualified as composite during the hearing (see id.), and solicited

additional jobs from the VE out of an abundance of caution to

ensure a “clear record” (Tr. 537). Similarly, the Court should not

find that the VE’s response of “[rJight, right” (Tr. 538) to the

ALJ’s statement regarding the potential of composite jobs equates

to affirmative testimony from the VE that Plaintiff’s prior Path of

Hope jobs, in fact, qualified as composite.® Importantly, the VE

only provided one DOT title to account for each of Plaintiff’s

prior Path of Hope jobs (see Tr. 534-35), and did not, at any time,

offer an opinion that those prior jobs constituted composite jobs

(see Tr. 532-44).

Moreover, in contrast to the facts here, district courts

within the Fourth Circuit have found reversible error when an ALJ

failed to address the composite issue despite specific evidence at

the hearing that a prior job encompassed two or more DOT titles.

See Robert C. v. Commissioner of Soc. Sec. Admin., No. CV 22-1935,

2023 WL 6126062, at *5 (D. Md. Sept. 19, 2023) (unpublished)

(remanding for ALJ “to explain whether or why he rejected [the

pllaintiff’s argument that his PRW was a composite job,” where that

“question . . . was a genuine issue raised and discussed at the

hearing before the ALJ,” “[the p]laintiff’s counsel argued that

[the p]laintiff’s PRW was a composite job comprised of elements of

‘insulator’ and ‘business manager[,]’” and “[e]vidence in support

Rather, the context of that exchange indicates that the VE simply affirmed an

understanding of the nature of the ALJ’s request.

18

of th[at] contention was presented to the ALJ, including [the

pllaintiff’s testimony[, ] work history reports[,] and [a] letter

[from the plaintiff’s employer] . . . indicating that [the

pllaintiff’s job duties . . . regularly involved exertional tasks

that exceeded the [DOT]’s description of the work” (emphasis

added)}; Rice v. Commissioner of Soc. Sec., No. 1:22CV12, 2023 WL

2396334, at *6 (W.D.N.C. Mar. 7, 2023) (unpublished) (finding

reversible error where the “[c]laimant described his [PRW] as dual

roles, and the VE categorized [the c]laimant’s PRW as a combination

of estimator and project manager” with “two different [DOT]

titles,” but “ALJ did not address the VE’s description of the

project manager and estimator jobs as combo jobs” (internal

quotation marks and citation omitted) (emphasis added)); Lewis v.

Saul, No. 1:17CV1115, 2020 WL 33118, at *4 (M.D.N.C. Jan. 2, 2020)

(unpublished) (Peake, M.J.) (finding ALJ erred by neglecting to

find PRW a composite job, where “evidence show[ed] that [the

pllaintiff worked several jobs simultaneously during her time with

her former employer .. . and was required to perform the duties of

several different jobs on any given workday” and “both [the

pllaintiff and the [VE] considered [the p]laintiff’s marker/tagger

duties to be sub-points of her more general position as a warehouse

or distribution worker” (emphasis added)), recommendation adopted,

slip op. (M.D.N.C. Feb. 28, 2020) (Tilley, Jr., S.J.); Carothers v.

Saul, No. 1:18CV330, 2019 WL 4979978 at *3 (W.D.N.C. Oct. 08, 2019)

19

(unpublished) (remanding where VE classified the claimant’s PRW as

a “receptionist/general clerk,” which reflected two different DOT

numbers and exertional levels, but ALJ failed to analyze PRW as

composite job); Jacob N. v. Berryhill, No. 5:17CV57, 2018 WL

4688741, at *5–7 (W.D. Va. Sept. 28, 2018) (unpublished) (remanding

for ALJ to properly address composite job issue at step four, where

the plaintiff “submitted a post-hearing memorandum in which he

objected to . . . [the] VE[]’s classification of [the plaintiff’s

PRW] as a residence supervisor[,]” and attached “written opinion”

from vocational specialist, who “concluded that the residence

supervisor position as defined in the [DOT] did not accurately

reflect the duties of [the plaintiff]’s prior job[,] . . . that she

was unable to locate any [DOT] title that matched [the plaintiff]’s

job duties[, and] . . . that [the plaintiff]’s [PRW] was a

composite job” of multiple DOT titles (internal quotation marks

omitted); Jones v. Colvin, No. 3:15CV195, 2016 WL 786626, at *4

(E.D. Va. Feb. 4, 2016) (unpublished) (holding that “ALJ clearly

should have considered whether [the p]laintiff’s [PRW] constituted

a composite job[,]” where the plaintiff testified that his PRW

“encompassed several duties” including “whatever [] the company

asked of him,” and VE “had only one job to [classify as PRW], but

she did so using two different [DOT] classifications” (emphasis

added)), recommendation adopted, 2016 WL 816792 (E.D. Va. Feb. 26,

2016) (unpublished); Yoakum v. Commissioner of Soc. Sec., No.

20

1:14CV74, 2015 WL 1585745, at *23 (N.D.W. Va. Apr. 9, 2015)

(unpublished) (deeming remand required where ALJ failed to address

composite issue and “testimony of both [the p]laintiff and the VE

at the administrative hearing demonstrate[d] that [the p]laintiff’s

[PRW] involved two distinct [DOT] positions” (emphasis added));

Plumb v. Astrue, No. 8:10CV3090, 2012 WL 768058, at *6 (D.S.C. Mar.

7, 2012) (unpublished) (finding remand appropriate for ALJ to

determine whether PRW constituted composite job, where ALJ did not

discuss VE’s classification of the claimant’s PRW as two different

DOT jobs).

Furthermore, as explained in more detail below, a comparison

of Plaintiff’s testimony regarding the duties of her three jobs at

Path of Hope with the duties in the VE’s corresponding DOT titles

supports the conclusion 1) that the ALJ erred by not evaluating

whether Plaintiff’s development director/residential team leader

job qualified as a composite job, but 2) that Plaintiff, who

carried the burden of proof at step four of the SEP, did not

overcome the presumption that the DOT titles cited by the VE and

adopted by the ALJ accurately captured her duties as a receptionist

and a house manager with Path of Hope.

a. Development Director/Residential Team Leader

Concerning the development director portion of the job,

Plaintiff testified that she planned and executed fundraising

events such as motorcycle rides, golf tournaments, cook-offs, and

21

raffles, filled out grant applications, solicited donations,

attended board meetings, coordinated with Goodwill and the United

Way, and gave speeches on behalf of Path of Hope. (See Tr. 513-

14.) With respect to the residential team leader portion,

Plaintiff stated that she supervised 20 to 27 staff members who

lived on site, including training, hiring, firing, performance

appraisals, and scheduling, took residents once per week to

recreational activities such as volleyball or softball while the

clinical team met, and called 911 when residents had medical

emergencies such as substance withdrawals or seizures. (See Tr.

511, 513-14.) Regarding the exertional requirements of the job as

a whole, Plaintiff indicated that she spent from 60 to 70 percent

of the time standing or walking and that she lifted 50 to 60

pounds. (See Tr. 514.)

The DOT provides the following description of the duties of

sedentary job “Director, Community Organization”:

Directs activities of organization to coordinate

functions of various community health and welfare

programs: Organizes and develops planning program to

ascertain community requirements and problems in specific

fields of welfare work, and to determine agency

responsibility for administering program. Surveys

functions of member agencies to avoid duplication of

efforts and recommends curtailment, extension,

modification, or initiation of services. Advises health

and welfare agencies in planning and providing services

based on community surveys and analyses. Reviews

estimated budgets of member agencies. Prepares and

releases reports, studies, and publications to promote

public understanding of and support for community

programs. May recruit and train volunteer workers. May

organize and direct campaign for solicitation of funds.

22

May visit agency sites to evaluate effectiveness of

services provided.

DOT, No. 187.167-234 (“Director, Community Organization”), 1991 WL

671420 (emphasis added). Those duties sufficiently capture

Plaintiff’s administrative, fundraising, coordination, and

promotional responsibilities as the development director at Path of

Hope, as well as one of the supervisory duties that Plaintiff

performed as the residential team leader, e.g., training.

Moreover, although the DOT’s “Director, Community Organization” job

does not list Plaintiff’s responsibilities to take the residents to

recreational activities once per week during clinical team meetings

and to handle emergency calls on their behalf, those relatively

small differences constitute normal variations inherent in the

specific settings of jobs and would not have compelled the ALJ to

find the development director/residential team leader job a

composite job. See Lourdes V. v. Berryhill, No. 2:18CV2157, 2019

WL 1639746, at *3 (C.D. Cal. Apr. 15, 2019) (unpublished) (“[W]hile

the occupation identified by the VE may not be a precise match with

[the p]laintiff’s job . . ., it is entirely consistent with [the

p]laintiff’s own description of her job,” and “[the plaintiff]

cites no authority for the proposition that the variation in [job]

setting necessarily precludes the conclusion reached by the VE.”);

Dawn H. v. Berryhill, No. 3:17CV1927, 2019 WL 281289, at *6 (D. Or.

Jan. 22, 2019) (unpublished) (“Although the [DOT] description does

not precisely match [the p]laintiff’s description of her

23

work . : the [c]ourt concludes that the ALJ did not

err . . . [because the plaintiff’s] work was analogous ... .”).

Moreover, although the exertional levels of Plaintiff’s

development director/residential team leader job at Path of Hope

(heavy) (see Tr. 514), and the DOT job “Director, Community

Organization” (sedentary), see DOT, No. 187.167-234, 1991 WL

672192, differ, SSR 82-61 makes clear that exertional level

disparities, in and of themselves, do not render a former job

composite, see SSR 82-61, 1982 WL 31387, at *2 (explaining that

“former job performed by the claimant may have involved functional

demands and job duties significantly in excess of those generally

required for the job by other employers throughout the national

economy” and, thus, “if the claimant cannot perform the excessive

functional demands and/or job duties actually required in the

former job but can perform the functional demands and job duties as

generally required by employers throughout the economy, the

claimant should be found to be ‘not disabled’” (emphasis added)).

However, the DOT job “Director, Community Organization” fails

to capture Plaintiff’s full supervisory duties, i.e., hiring,

firing, performance appraisals, and scheduling, which appear to

constitute the main duties of the residential team leader portion

of the job in question. See POMS DI 25005.020B (“The claimant’s

PRW may be a composite job if it takes multiple [DOT] occupations

to locate the main duties of the PRW as described by the claimant.”

24

(emphasis added)). Accordingly, if the Court finds that Plaintiff

has not waived her right to raise the composite job argument, the

record evidence establishes that the ALJ erred, at a minimum, in

not evaluating whether Plaintiff’s development director/residential

team leader job qualified as a composite job.'° However, that error

remains harmless because, as discussed below, the ALJ did not err

with respect to his findings regarding the receptionist and house

manager jobs at step four. 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

guest of a perfect opinion unless there is reason to believe that

the remand might lead to a different result”).

b. Receptionist

With respect to Plaintiff’s receptionist job with Path of

Hope, she testified that she held that position for approximately

six to nine months (see Tr. 511), and that her duties consisted of

handling telephone calls, performing client intake, and conducting

tours of the eight-acre campus, as well as that the job entailed

standing and walking for greater than 50 percent of the time and

10 If, in fact, the development director/residential team leader job constituted

a composite job, then the ALJ erred at step four by finding that Plaintiff

remained able to perform that job as generally performed (see Tr. 31). See POMS

25005.020B (advising that, because “[a] composite job does not have a [DOT]

counterpart,” the ALJ should not find that a claimant can return to such work “as

generally performed in the national economy.”). Moreover, because the ALJ

limited Plaintiff to medium exertion work (see Tr. 26), the ALJ could not have

found Plaintiff capable of performing the development director/residential team

leader job as she actually performed it at the heavy exertional level (see Tr.

514).

25

lifting items weighing 50 or more pounds, such as food supplies,

suitcases, and file boxes (see Tr. 512).

In turn, the DOT describes the Receptionist job as sedentary

and includes the following duties:

Receives callers establishment, determines nature of

business, and directs callers to destination: Obtains

caller’s name and arranges for appointment with person

called upon. Directs caller to destination and records

name, time of call, nature of business, and person called

upon. May operate PBX telephone console to receive

incoming messages. May type memos, correspondence,

reports, and other documents. ... May issue visitor’s

pass when required. May make future appointments and

answer inguiries [ INFORMATION CLERK (clerical)

237.367-022]. May perform variety of clerical duties

[ADMINISTRATIVE CLERK (clerical) 219.362-010] and other

duties pertinent to type of establishment. May collect

and distribute mail and messages.

DOT, No. 237.367-038 (“Receptionist”), 1991 WL 672192 (emphasis

added). Both job descriptions involve the primary duties of

handling telephone calls and visitors. Moreover, given the DOT

job’s allowance of “other duties pertinent to the type of

establishment,” id., Plaintiff’s performance of tours of the

facility would not render the “Receptionist” DOT title

inappropriate. See Lourdes V., 2019 WL 1639746, at *3 (“[W]hile

the occupation identified by the VE may not be a precise match with

[the p]laintiff’s job .. ., it is entirely consistent with [the

pllaintiff’s own description of her job,” and “[the plaintiff]

26

cites no authority for the proposition that the variation in [job]

setting necessarily precludes the conclusion reached by the VE.”).7!

Cc. House Manager

Plaintiff testified that she held this role at Path of Hope

for less than one year, because she worked from 5 p.m. until the

next morning five days per week. (See Tr. 515.) In that job, she

managed a halfway house for 11 women to live in for up to one year,

which involved checking residents in, performing medication checks,

administering medications twice per day, taking residents to

appointments, cooking meals sometimes, cleaning, ensuring the

residents did their chores and remained safe, and training new

staff. (See Tr. 511, 515-16.) Exertionally, Plaintiff stated that

she stood or walked greater than 75 percent of the time, and lifted

from 50 to 75 pounds. (See Tr. 515.)

The DOT job title “Residence Supervisor,” rated as sedentary,

entails the following responsibilities:

Coordinates variety of activities for residents of

boarding school, college fraternity or sorority house,

care and treatment institution, children’s home, or

similar establishment: Orders supplies and determines

need for maintenance, repairs, and furnishings. Assigns

rooms, assists in planning recreational activities, and

supervises work and study programs. Counsels residents

in identifying and resolving social or other problems.

Compiles records of daily activities of residents.

Chaperones group-sponsored trips and social functions.

Ascertains need for and secures services of physician.

Answers telephone and sorts and distributes mail. May

tt Again, the exertional differences between Plaintiff’s Path of Hope job (heavy)

and the DOT title in question (sedentary) do not compel the conclusion the

position constitutes a composite job. See SSR 82-61, 1982 WL 31387, at *2.

27

escort individuals on trips outside establishment for

shopping or to obtain medical or dental services. May

hire and supervise activities of housekeeping personnel.

May plan menus.

DOT, No. 187.167-186 (“Residence Supervisor”), 1991 WL 671408

(emphasis added). Those duties fairly approximate the

responsibilities Plaintiff described in her job as a house manager,

except that the DOT job envisions the possibility of planning menus

and supervising housekeepers, see id., whereas Plaintiff testified

that she cooked sometimes, and that she and the residents performed

the housekeeping chores themselves (see Tr. 515). Such relatively

minor differences, however, do not establish that Plaintiff’s house

manager job qualified as composite. See Joe N. v. Commissioner of

Soc. Sec., No. 19CV1384S, 2021 WL 4316556, at *6 (W.D.N.Y. Sept.

23, 2021) (unpublished) (rejecting “[the p]laintiff’s argument that

his job involved restraining youth, and therefore d[id] not exactly

match the [Residence Supervisor] job[] the VE discussed,” because

“[d]lescriptions of [a] claimant’s jobs often differ from the [DOT]

without there being reversible error” (citing Jasinski v. Barnhart,

341 F.3d 182, 185 (2d Cir. 2003) (noting that “[m]any specific jobs

differ from those jobs as they are generally performed, and the

[VE] may identify those unique aspects without contradicting the

[DoT].”))).*°

' Once again, the purely exertional differences between Plaintiff’s house

manager job at Path of Hope (heavy) and the DOT title “Residence Supervisor”

(sedentary) do not mandate a finding that the house manager job constitutes a

composite job. See SSR 82-61, 1982 WL 31387, at *2.

28

In sum, Plaintiff’s first assignment of error does not

establish a basis for remand.’*? Furthermore, even if the ALJ had

erred in failing to find Plaintiff’s PRW qualified as composite

jobs, that error would still remain harmless. See _ generally

Fisher, 869 F.2d at 1057. As discussed in more detail below, the

ALJ did not err in making his alternate, step-five finding that

other jobs existed in significant numbers in the national economy

that Plaintiff could perform.

Plaintiff additionally contends that the ALJ erred because he “failed to

include the appropriate findings of fact regarding the physical and mental

demands of [Plaintiff’s PRW] in the decision as required by SSR 82-62.” (Docket

Entry 10 at 9.) The ALJ described Plaintiff’s PRW by DOT title, exertional

level, and Specific Vocational Preparation (“SVP”) level (see Tr. 31), and found

that Plaintiff remained able to perform all three of her prior jobs as generally

performed, i.e., “as defined in the [DOT]” (id.). Thus, the DOT’s descriptions

of the physical and mental demands of the jobs in question suffice under SSR 82-

62. See Cyr v. Berryhill, No. 1:17CV798, 2017 WL 6459565, at *11 (D.S.C. Dec.

12, 2017) (unpublished) (“[The ALJ ] made a finding of fact as to the physical

and mental demands of [the p]laintiff’s PRW to the extent that [the ALJ] cited

the [DOT] numbers and exertional and skill levels the VE indicated in his

testimony for [the p]laintiff’s PRW.. . .”), recommendation adopted, 2017 WL

6442195 (D.S.C. Dec. 18, 2017) (unpublished); Thomas v. Astrue, No. 0:08CV2847,

2010 WL 844756, at *7 (D.S.C. Mar. 3, 2010) (unpublished) (“[T]he court finds

that the ALJ provided specific findings of fact as to the physical and mental

demands of [the plaintiff]’s [PRW] by providing the exact [DOT] number and name

of his [PRW].”); Benson-White v. Astrue, No. 0:08CV2366, 2009 WL 2988694, at *5

(D.S.C. Sept. 17, 2009) (unpublished) (“To the extent that the ALJ’s failure to

specifically enumerate the job duties is error, it is harmless, as he found that

[the plaintiff] could perform [his PRW] as it is generally performed, and the job

duties are specifically enumerated in the [DOT].” (internal quotation marks

omitted)). Additionally, to the extent the ALJ erred by not further identifying

the physical and mental demands of Plaintiff’s PRW, that error remains harmless.

See generally Fisher, 869 F.2d at 1057. Plaintiff made no attempt to show how

the ALJ’s failure to makes those findings under SSR 82-62 prejudiced her claims

(see Docket Entry 10 at 11-16), further precluding relief on that front, see

Lattimore v. Saul, No. 2:18CV2976, 2020 WL 2499660, at *5 (D.S.C. Jan. 31, 2020)

(unpublished) (rejecting the plaintiff’s argument that the ALJ failed to make

findings regarding physical and mental demands of PRW, “[b]ecause [the plaintiff

d[id] not allege any specific inconsistencies between her RFC and the [DOT]’s

description of her [PRW] as generally performed”), recommendation adopted, 2020

WL 1316531 (D.S.C. Mar. 20, 2020) (unpublished).

29

2. Conflicts Between VE’s Testimony and DOT

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

contends that “[t]he ALJ’s reliance on the VE’s testimony to

support an alternate [s]tep 5 denial of benefits in [Plaintiff]’s

claim[s] is not supported by substantial evidence where the ALJ

failed to identify and resolve the apparent conflict between the

VE’s testimony and the [DOT].” (Docket Entry 10 at 11 (bold font

and block formatting omitted).) In particular, Plaintiff maintains

that apparent, unresolved conflicts existed between 1) the DOT’s

description of the Stores Laborer job as requiring “occasional

climbing,” and “the ALJ’s restriction to avoid all exposure to

unprotected heights” (id. at 13 (citing Tr. 26)), 2) the DOT’s

rating of the Textile Laborer job as “requir[ing] exposure [to]

loud noise levels,” and “the ALJU’s restriction to ‘avoid

concentrated exposure to loud noise levels’” (id. (quoting Tr.

26)), and 3) the DOT’s characterization of the Bagger job as

involving occasional exposure “to weather conditions and direct

sunlight” and the “ALJ’s RFC” (id.), which precludes “work in

sustained direct sunlight” (Tr. 26). Plaintiff asserts that the

ALJ's “fail[ure] to identify th[os]e apparent conflict[s] between

the VE’s testimony and the [DOT] or [to] elicit an explanation from

the VE that would resolve th[ose] conflict[s]” (id. at 13-14)

violates Social Security Ruling 00-4p, Titles II and XVI: Use of

Vocational Expert and Vocational Specialist Evidence, and Other

30

Reliable Occupational Information in Disability Decisions, 2000 WL

1898708 (Dec. 4, 2000) (“SSR 00-4p”), and Pearson v. Colvin, 810

F.3d 204, 209-11 (4th Cir. 2015) (id. at 11-16). Those arguments

fall short.

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. . . . [A]s part of the [ALJ’s]

duty to fully develop the record, the [ALJ] will inquire,

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]

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 “obvious”

one).

In this case, the ALJ first queried the VE whether an

individual with Plaintiff’s age, education, and work history, who

31

could perform medium work, but, as relevant here, should “avoid[]

concentrated exposure to loud noise levels,” as well as “all

exposure to . . . unprotected heights,” and should “not work in

sustained direct sunlight” (Tr. 536), could perform any unskilled,

medium-exertion jobs (see Tr. 537-38). In response, the VE opined

that such an individual could perform the DOT jobs of Stores

Laborer, Bagger, and Textile Laborer, and provided the

corresponding DOT codes for the three jobs, as well as their

incidence in the national economy. (See Tr. 538.) Following that

exchange, the ALJ asked the VE whether her testimony

“[wa]ls . . . consistent with the [DOT],” and the VE responded

affirmatively “with the exception that [the DOT] d[id] not address

levels of lighting such as office setting lighting or direct

sunlight or no acute hearing required” and that, as to those

subjects, she testified based on her “education and experience.”

(Id.) On cross-examination, Plaintiff’s counsel pointed out to the

VE that the DOT rates the Textile Laborer job as involving exposure

to loud noise (see Tr. 540), and the VE replaced the Textile

Laborer job with the DOT job Childcare Attendant and provided that

job’s incidence in the national economy (see Tr. 542).

The ALJ subseguently adopted the VE’s testimony to find, at

step five of the SEP, that “[Plaintiff wa]s capable of making a

successful adjustment to other work that exists in significant

numbers in the national economy” (Tr. 32). More specifically:

32

To determine the extent to which [the RFC’s non-

exertional limitations] erode the unskilled medium

occupational base, the [ALJ] asked the [VE] whether jobs

exist in the national economy for an individual with

[Plaintiff’s] age, education, work experience, and [RFC].

The [VE] testified that given all of these factors the

individual would be able to perform the requirements of

representative occupations such as store laborer ([DOT]

922.687-0584; 365,000 jobs nationally); grocery bagger

(([DOT] 920.687-014; 955,000 jobs nationally); textile

laborer ([DOT] 589.687-026; 265,000 jobs nationally).

All of these jobs have an SVP of 2.

Pursuant to SSR 00-4p, I have determined that the [VE]’s

testimony is consistent with the information contained in

the [DOT]. The [VE] testified that although the [DOT]

does not address levels of lighting and acute hearing

requirements, that portion of [her] testimony was based

on [her] education, training and experience in the field.

(Id. (emphasis added) .)

As an initial matter, the ALJ neglected to acknowledge in his

decision the VE’s change from the Textile Laborer job to the

Childcare Attendant job. (See id.) As the VE removed the Textile

Laborer job from consideration due to the DOT’s rating of that job

as involving exposure to loud noise (see Tr. 542), the ALJ erred at

step five by finding that Plaintiff remained able to perform that

job (see Tr. 32). That error, however, remains harmless under the

circumstances here, as Plaintiff has not shown that apparent,

unresolved conflicts existed with respect to the remaining jobs of

Stores Laborer and Bagger. See generally Fisher, 869 F.2d at 1057.

a. Stores Laborer

Plaintiff argues that the DOT’s listing for Stores Laborer

reflects that the job requires “occasional climbing” (Docket Entry

33

10 at 13 (referencing DOT, No. 922.687-058 (“Laborer, Stores”),

1991 WL 688132)), as well as that the DOT’s companion volume, the

Selected Characteristics of Occupations Defined in the Revised

Dictionary of Occupational Titles (“SCO”), elaborates that climbing

“includes ‘ascending or descending ladders, stairs, scaffolding,

ramps, poles and the like’” and that “‘body agility is emphasized’”

(id. (quoting SCO, App’x C (“Physical Demands”))). In Plaintiff’s

view, the climbing requirement of the Stores Laborer job conflicts

with the RFC’s “restriction to avoid all exposure to unprotected

heights.” (Id. (citing Tr. 26).)

Plaintiff’s argument attempts to conflate the postural

limitation of climbing with the environmental limitation of

exposure to unprotected heights. Significantly, the ALJ did not

limit Plaintiff’s ability to climb ramps, stairs, ladders, ropes,

and scaffolds at all in the RFC (see Tr. 26) or dispositive

hypothetical question (see Tr. 536). Moreover, the DOT indicates

that Stores Laborer job does not involve “[hJjigh [e]xposed

[p]laces,” DOT, No. 922.687-058 (“Laborer, Stores”), 1991 WL

688132), and Plaintiff did not cite (and the undersigned’s research

did not reveal) any authority that a preclusion of exposure to

unprotected heights apparently (let alone actually) conflicts with

a job requiring occasional climbing. Indeed, the United States

Court of Appeals for the Ninth Circuit has held that even an RFC

restriction to no climbing of ladders, ropes, and scaffolds does

34

not conflict with the Stores Laborer’s requirement of occasional

climbing:

. . . [C]limbing ladders, ropes, or scaffolds is not a

requirement for every job as a[ Stores Laborer].

Although the [DOT] does list “[c]limbing . . .

[o]ccasionally” in the “task element” statement for the

[Stores Laborer] occupation, that statement explains that

a[ Stores Laborer] performs “any combination of [the]

following tasks” — not that every [Stores Laborer] must

perform every task listed. DOT, 922.687-058 (Laborer,

Stores), 1991 WL 688132. Furthermore, among those

[Stores Laborers] whose work does involve occasional

climbing, the [DOT] does not state that the [wor]kers

must climb ladders, ropes, or scaffolds; they may also be

climbing stairs or ramps, for instance, which is not

prohibited by [the plaintiff]’s RFC. Therefore, there

was no conflict between the [DOT] and the VE’s testimony

that [the plaintiff] could work as a[ Stores Laborer],

even though the [DOT] includes “[c]limbing . . .

occasionally” as a possible task.

Maxwell v. Saul, 840 F. App’x 896, 898–99 (9th Cir. 2020) (internal

citations omitted). Accordingly, Plaintiff has not shown that the

ALJ failed to identify and resolve any apparent conflicts with

respect to the Stores Laborer job.

b. Bagger

With regard to the Bagger job, Plaintiff asserts that “the

express language for th[at] job . . . reveals that [it] requires

that the worker go outside which would expose them to weather

conditions and direct sunlight.” (Docket Entry 10 at 13.) In

particular, Plaintiff notes that the DOT’s “job description

indicated that a bagger will ‘push car[t] to customer’s

vehicle . . . [and] place groceries into customer’s vehicle[,

c]ollect shopping carts from parking lots and surrounding

35

areas[,] . . . [and mlay assist in unloading delivery trucks.’”

(Id. (quoting DOT, No. 920.687-014 (“Bagger”), 1991 WL 687964).)

In Plaintiff’s view, the Bagger job’s “occasional exposure to

weather, which necessitates going outside, would also expose the

worker to direct sunlight.” (Id.)

Notably, Plaintiff’s contentions gloss over the ALJ’s

qualifier “sustained” in the RFC’s preclusion of work involving

“sustained direct sunlight” (Tr. 26 (emphasis added)). (See Docket

Entry 10 at 13.) Thus, although the DOT’s description of the

Bagger’s duties include “push[ing] cart[s] to [a] customer’s

vehicle, upon request” and “[c]ollecting shopping carts from [the]

parking lot,” and “[mjlay” include “assist[ing] in unloading

delivery trucks,” DOT, No. 920.687-014 (“Bagger”), 1991 WL 687964

(emphasis added), those activities entail only brief, episodic

exposure to direct sunlight rather than “sustained” exposure, as

precluded by the ALJ’s RFC (Tr. 26).

Moreover, although the DOT indicates that the Bagger job

involves “[e]xposure to [w]leather[ o]ccasionally,” or “up to 1/3 of

the time,” DOT, No. 920.687-014 (“Bagger”), 1991 WL 687964,

Plaintiff did not cite (and the undersigned’s research did not

locate) any authority for the proposition that an RFC’s preclusion

of work involving exposure to “sustained direct sunlight” (Tr. 26

(emphasis added)) conflicts with a job requiring occasional

exposure to weather (see Docket Entry 10 at 11-16). The word

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“sustained” denotes a length of time continuing for an extended

period without interruption, see https://merriam-

webster.com/dictionary/sustained (last visited Nov. 29, 2023),

whereas the DOT defines “[o]ccasionally” to mean “up to 1/3 of the

time,” DOT, No. 920.687-014 (“Bagger”), 1991 WL 687964, which caps

the total amount of time a worker could face exposure in a workday

but does not address the length of time each exposure would take.

Notably, as the DOT’s duties for Bagger make clear, a worker’s

exposures to the weather or direct sunlight would consist of brief,

episodic stints outside rather than long, sustained exposures, DOT,

No. 920.687-014 (“Bagger”), 1991 WL 687964. As such, Plaintiff has

not shown that the ALJ failed to identify and resolve any apparent

conflicts regarding the Bagger job.

Put simply, Plaintiff’s second issue on review fails to

demonstrate a basis for remand.

III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, and that this action be

dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

December 18, 2023

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