# BECK v. KIJAKAZI

> District Court, M.D. North Carolina · December 18, 2023

URL: https://www.frixlaw.com/law-library/cases/10653702

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** December 18, 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/10653702

## 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 guest of a perfect opinion unless there is reason to believe that the remand might lead to a different result”
- 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].”
- rejecting the Commissioner’s argument that “apparent” conflict meant “obvious” one

## Opinion text

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

36

“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
37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653702. Public record. Not legal advice.