CRAWFORD v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KELLY C., )

Plaintiff,

v. 1:23CV956

LELAND DUDEK,

Acting Commissioner of Social Security, )

Defendant.

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Kelly C. (“Plaintiff”) brought this action pursuant to Sections 205(g) and

1631(¢)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and

1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security

denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”) undet, respectively, Titles II and XVI of the Act. The patties have filed cross-

motions for judgment, and the administrative record has been certified to the Court for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed applications for DIB and SSI on July 27, 2020, alleging a

disability onset date of March 1, 2019 in both applications. (Tr. at 20, 309-22.)1 Her

applications were denied initially (Ir. at 92-141, 170-76) and upon reconsideration (Tr. at 142-

69, 182-89). Thereafter, Plaintiff requested an administrative hearing de novo before an

Administrative Law Judge (“ALJ”). (Tt. at. 190-92.) On January 31, 2023, Plaintiff, along

1 Transcript citations refer to the Sealed Administrative Record [Doc. #3].

with her non-attorney representative, attended the subsequent online video hearing, at which

both Plaintiff and an impartial vocational expert testified. (Ir. at 20.) Following this hearing,

the ALJ concluded that Plaintiff was not disabled within the meaning of the Act (Tr. at 34),

and on May 25, 2023, the Appeals Council denied Plaintiffs request for review of the decision,

thereby making the ALJ’s conclusion the Commissioner’s final decision for purposes of

judicial review (Ir. at 6-11).

Il. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL) if they are supported by substantial evidence and were reached through application of the

correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (nternal

quotation omitted).

“Substantial evidence means “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”’ Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

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

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to te-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

AL)’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).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

“The Commissioner uses a five-step ptocess to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

©The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDI), established by Title II of the Act as amended, 42 U'S.C. § 401 et seq,, provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C-E-R. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 1.1.

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the 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 the first two steps, and if

the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, ie., “[i]f a clatmant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.9 Step four then requires the ALJ to assess whether, based on

that RFC, the claimant can “perform past relevant work’ if so, the claimant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requites the [Government] to prove that

3 “RFC is a measurement of the most a claimant can do despite [the clatmant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect clatmant’s “ability to do sustained work-

telated 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 clatmant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexerttional 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 (¢.g., pain).”

Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide

“whether the claimant is able to perform other work considering both [the clatmant’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 Government cannot carry its

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

Il. DISCUSSION

In the present case, the ALJ found that, although Plaintiff worked after her alleged

disability onset date, this work did not rise to the level of “substantial gainful activity.” The

ALJ therefore concluded that Plaintiff met her burden at step one of the sequential evaluation

ptocess. (I't. at 23.) At step two, the ALJ further determined that Plaintiff suffered from the

following severe impairments:

status-post tight ankle fracture with reconstruction, degenerative disc disease of

the cervical and lumbar spine, obesity, major depressive disorder, and panic

disorder without agoraphobia|.]

(Tr. at 23.) The ALJ found at step three that none of the impairments identified at step two,

individually or in combination, met or equaled a disability listing. (Tr. at 23-25.) The ALJ

therefore assessed Plaintiffs RFC and determined that she could perform light work with the

following, addition limitations:

[Plaintiff can] lift and carry twenty pounds occasionally and ten pounds

frequently. She can stand and/or walk, with normal breaks, for six hours in an

eight-hour workday; and she can sit, with normal breaks, for six hours in an

eight-hour workday. She [can] frequently push or pull with the right lower

extremity. [Plaintiff can] frequently climb ropes and stairs; occasionally . . .

climb laddets, topes, and scaffolds; and frequently . . . balance on level, even

ground. She can tolerate occasional exposute to unguarded, moving,

mechanical parts and unprotected heights. [Plaintiff] can understand,

remember, and catty out simple, one-to-three-step instructions and tasks; and

she can maintain attention and concentration for two-hour periods to complete

an eight-hour workday and forty-hour workweek. She [can] frequently . . .

interact with coworkers, supervisors, and the general public; and she can adapt

to occasional workplace changes.

(Tr. at 25-26.) Based on this determination and the testimony of a vocational expert, the AL]

determined at step four of the analysis that all of Plaintiffs past relevant work exceeded her

REC. (Tr. at 32.) However, the ALJ found at step five that, given Plaintiffs age, education,

work experience, RFC, and the testimony of the vocational expert as to these factors, she

could perform other jobs available in significant numbers in the national economy. (Tr. at 33.)

Therefore, the AL] concluded that Plaintiff was not disabled under the Act. (I'r. at 34.)

Plaintiff now taises two challenges to the AL]’s decision. First, she contends that the

AL] “erred by failing to apply the correct legal standards when evaluating Plaintiffs

psychological impairments and formulating the RFC.” (PL’s Br. [Doc. #10] at 4.) In

particular, she challenges the ALJ’s analysis of her treatment records and mental status

examinations in evaluating her depression and panic disorder. Second, Plaintiff argues that

the AL] “failed to identify and provide a reasonable explanation resolving the conflict between

the testimony of the VE and the DOT regarding the frequency of changes involved in the

jobs cited at Step Five of the [sequential evaluation process].” (PL’s Br. at 7.) After a thorough

review of the record, the Court finds that neither of these contentions merit remand.

A. Subjective symptom analysis

Plaintiff first argues that the ALJ erred in her evaluation of the limiting effects of

Plaintiffs psychological disorders—depression and panic disorder—on her ability to work. In

patticular, Plaintiff contends that the AL] erroneously relied on “‘normal’ objective medical

evidence” when evaluating the consistency of Plaintiffs testimony. (Pl.’s Br. at 5.)

When evaluating a claimant’s symptoms, the AL]’s decision must “contain specific

reasons for the weight given to the individual’s symptoms, be consistent with and supported

by the evidence, and be clearly articulated so the individual and any subsequent reviewer can

assess how the adjudicator evaluated the individual’s symptoms.” Social Security Ruling

(“SSR”) 16-3p, Titles I] and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p,

2017 WL 5180304, at *10 (Oct. 25, 2017) (“SSR 16-3p”); see also 20 C.F.R. §§ 404.1529,

416.929. In Arakas v. Comm’r of Soc. Sec., 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit

clarified the procedure an AL] must follow when assessing a clatmant’s statements:

When evaluating a claimant’s symptoms, ALJs must use the two-step

framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029

(Mar. 16, 2016). First, the ALJ must determine whether objective medical

evidence presents a “medically determinable impairment” that could reasonably

be expected to produce the claimant’s alleged symptoms. 20 C.F.R.

§ 404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.

Second, after finding a medically determinable impairment, the AL] must assess

the intensity and persistence of the alleged symptoms to determine how they

affect the claimant’s ability to work and whether the claimant is disabled. See 20

C.F.R. § 404.1529(0.); SSR 16-3p, 2016 WL 1119029, at *4. At this step,

objective evidence is not required to find the claimant disabled. SSR 16-3p, 2016

WL 1119029, at *4-5. SSR 16-3p recognizes that “[s]ymptoms cannot always

be measured objectively through clinical or laboratory diagnostic

techniques.” Id. at *4. Thus, the AL] must consider the entire case record and

may “not disregard an individual’s statements about the intensity, persistence,

and limiting effects of symptoms solely because the objective medical evidence

does not substantiate” them. Id. at *5.

983 F.3d at 95.

In Arakas, 983 F.3d at 97, the Fourth Circuit further explained that some conditions,

such as fibromyalgia, simply do not manifest themselves in objective signs and symptoms.

983 F.3d at 97. Several yeats later, in Shelley C. v. Comm’r of Soc. Sec. Admin., 61 F.4th 341,

361-62 (4th Cir. 2023), the court extended the reasoning in Arakas to include psychological

impairments, and depression in particular. Because the symptoms of both fibromyalgia and

depression were “entirely subjective,” the ALJs in these cases erred by “requiring that [the

claimants’] subjective statements be validated by objective medical support.” Shelley C., 61

F4th at 361-62 (quoting Arakas, 983 F.3d at 96).

Plaintiff now argues that the AL] in the present case also improperly relied on objective

evidence to discount Plaintiffs subjective statements. However, in this case, the AL] did not

requite that Plaintiffs subjective statements be validated by objective tests or reports. Instead,

the ALJ’s decision reflects that the ALJ considered all of the testimony and the record as a

whole, and concluded that “statements concerning the intensity, persistence, and limiting

effects of [Plaintiff's] symptoms [were] not entirely consistent with the medical evidence and

other evidence in the record.” (Tr. at 26-27.) In making this finding with regard to Plaintiffs

mental impairments, the AL] first addressed the “Paragraph B” criteria:

State agency psychological consultant Jennifer Fulmer Ph.D. reviewed the

available evidence on 03/23/2021 and assessed the claimant with a marked

limitation in her ability to concentrate, persist, and maintain pace, and with mild

limitations in all other paragraph B criteria (Ex. 3A, 4A). Upon a request for

reconsideration, state agency psychological consultant Keith Noles Ph.D.

reviewed the evidence on 08/26/2021 and assessed the claimant with moderate

limitations in her ability to maintain concentration, persistence, and pace, and

to adapt or manage oneself. He assessed mild limitations in the claimant’s ability

to interact with others and to understand, remember, and apply information

(Ex. 7A, 8A). The undersigned finds that Dr. Noles’ assessment is consistent

with the following evidence.

In understanding, remembering, or applying information, the claimant has a

mild limitation. She testified that she has problems with her memory, and she

stated in her adult function report that she needs reminders to take her

medications. She also reported, however, that she can follow written

instructions, manage finances, and prepare simple meals (Ex. 6E). In addition,

her neurologist documented intact memory with no cognitive impairment (Ex.

3F, 9F, 12F), and mental health providers consistently noted normal memory

(Ex. 4F, 5F, 11F). This evidence indicates that the claimant can understand,

remember, and catty out simple, one-to-three-step instructions.

In interacting with others, the claimant has a mild limitation. She alleged in her

adult function report that she does not attend social activities regularly but said

that she tries to spend time with family and occasionally attends church (Ex.

6E). The claimant testified that she panics in social situations. Although mental

health providers documented anxious and depressed mood and affect, they

regularly described the claimant as cooperative. In addition, she consistently

reported that her panic symptoms were conttolled with medications (Ex. 4F,

5F, 11F). The claimant exhibited a solemn mood and a flat affect when

examined by Dr. Sims (Ex. 7F) but demonstrated normal mood, affect, and

behavior when treated by primary care provider nurse practitioner (NP)

Kimberly Donze (Ex. 8F). Based on the evidence, the claimant can interact

frequently with coworkers, supervisors, and the general public.

With regard to concentrating, persisting, or maintaining pace, the claimant has

a moderate limitation. She alleged that she can pay attention only fifteen to thirty

minutes (Ex. 6E), and she testified that she has poor concentration. Although

mental health providers noted that she was distracted through March 2019,

psychiatric mental health nurse practitioner (PMHNP) Sugatee Ganzman noted

on 12/09/2019 that the claimant exhibited coherent, logical, and appropriate

thought process and described her concentration as adequate (Ex. 4F at p. 25).

The claimant continued to demonstrate adequate concentration through

09/12/2022 (Ex. 11F at p. 4). In addition, neurologist Robert Snyder M.D.

noted normal attention and concentration (Ex. 3F, 9F, 12F). Consequently, the

claimant can maintain attention and concentration for two-hour periods to

complete an eight-hour workday and forty-hour workweek.

As for adapting or managing oneself, the claimant has experienced a moderate

limitation. She alleged no difficulty with self-care but reported that she does not

react well to stress ot to changes in her routine (Ex. 6E). The claimant was

described as poorly groomed and disheveled by her mental health provider on

02/07/2018 (Ex. 4F at p. 178), and Dr. Sims noted that she was disheveled with

ditty clothes and poor hygiene (Ex. 7F). In contrast, Dr. Snyder described the

claimant as well-groomed on 08/23/2019 (Ex. 3F at p. 6), and mental health

providers documented no deficits in dress, grooming, or hygiene after

02/07/2018 (Ex. 4F, 5F, 11F). Beginning on 09/21/2021, PMHNP Ganzman

began noting that the claimant was making unrealistic decisions (Ex. 11F), but

Dr. Snyder documented no deficits in insight or judgment (Ex. 9F, 12F). Prior

to September 2021, providers consistently noted normal insight and judgment

(Ex. 2F, 3F, 4F). The claimant is able, therefore, to adapt to occasional

workplace changes.

There is no evidence of marginal adjustment, defined as the minimal capacity

to adapt to changes in the claimant’s environment or to demands not already

patt of her daily life. Instead, the claimant has reported that she can operate

independently with such daily tasks as grooming, cleaning, shopping alone, and

helping her father care for her niece and nephew. She routinely drives alone,

works part-time, and shops for her boyfriend (Exhibit 6E, testimony).

(Tr. at 24-25.) The ALJ thus relied on multiple factors in determining the impact of Plaintiffs

mental impaitments on her ability to function, including the opinion of the state agency

psychological consultant Dr. Noles, Plaintiffs reported activities including her own reports of

her ability to follow written instructions, manage finances, prepare simple meals, care for

herself, spend time with family, attend church, shop for herself and her boyfriend, drive, care

for her niece and nephew, and work part-time, as well as Plaintiffs reports regarding the

effectiveness of medications and the assessments by Plaintiffs treating providers of the impact

of het impairments on her functioning and their observations during her appointments.

Likewise, in setting the RFC, the AL]’s analysis included the longitudinal psychiatric

treatment record, the opinions of the State agency psychological consultants, and Plaintiffs

own statements and reports. (Tr. at 29-32.) As part of the process, the ALJ recounted and

considered at length the testimony and other statements provided by Plaintiff. As set out in

the administrative decision, Plaintiff completed an adult function report in which she reported

the following mental limitations:

[Plaintiff] alleged difficulty sleeping due to racing thoughts and said that she

needs temindets to take het medication. She reported that she can follow

written instructions, but oral directions sometimes need to be repeated. She

stated that she does not attend social activities regularly, but she tries to spend

time with family, runs errands, shops for groceries, and occasionally attends

church. [Plaintiff] alleged that she can pay attention only fifteen to thirty

10

minutes but said that she can drive, manage her finances, run errands, and

follow instructions. She reported that she does not react well to sttess or to

changes in her routine.

(T'r. at 26) (citing Tr. at 385-395). At her hearing, Plaintiff further “stated that she has poor

memory and concenttation, and she panics in social situations. She also said that she socializes

only with her family and her boyfriend.” (Tr. at 26.) However, the ALJ also noted that

Plaintiff reported that she often does her boyfriend’s grocery shopping for him because “he

has teally bad social anxiety.” (It. at 25, 26, 78.) She also routinely helped her father care for

sistet’s children, ages 9 and 14. (Tr. at 25, 30, 79.) Most notably, the ALJ noted that Plaintiff

worked part-time throughout the time period at issue as a home health aide. (It. at 23, 25, 30,

31, 56-57, 921, 1173, 1178, 1183, 1188, 1193.) Plaintiff described this work as rewarding (Tr.

at 921), and reported to her psychiatric nurse practitioner, Sugaree Ganzman, in September

2021, that she would like to increase her workload and take on more patients. (I'r. at 1193;

see also Tr. at 57.)4 The AL] further noted that Plaintiffs allegations of panic attacks in social

situations wete inconsistent with her own statements to her providers, in which “she

consistently report[ed] that panic symptoms [were] controlled with medications.” (Ir. at 31;

see also Tt. at 30, 24, 904, 910, 921, 1183, 1188, 1198, 1203.)

When assessing the extent to which mental limitations restrict Plaintiffs ability to work,

the ALJ also considered the assessments provided by Plaintiffs treating providers on

examination. The AL] found, for example, that Plaintiffs “reports of poor memory and

concenttation [were] inconsistent with universal evidence of normal memory and typically

1 At the hearing, Plaintiff testified that she did not believe she could do this job full time because of her physical

impaitments, although she also noted ongoing issues with forgetfulness. (Tr. at 57-59, 70-71.)

11

normal attention, concentration, judgment, and insight, despite depressed or anxious mood

and affect.” (Tr. at 31, 30, 859, 877, 880, 915, 920, 925, 973, 1078-79, 1102, 1141, 1145, 1179,

1204.) In addition, the State agency psychological consultants considered the evidence in the

context of the entire record when positing their opinions. As set out in the administrative

decision,

Jennifer Fulmer Ph.D, reviewed the available evidence on 03/23/2021 and

found that [Plaintiff] can understand and remember simple instructions and can

sustain concentration for simple tasks. [Dr. Fulmer] stated that [Plaintiff] is

capable of maintaining socially appropriate behavior. Upon a request for

reconsideration, state agency psychological consultant Keith Noles Ph.D.

reviewed the evidence on 08/26/2021 and [concurred] with Dr. Fulmet’s

findings|,] except that he added that [Plaintiff] can adapt to low demand, low

stress work and [can handle the] social demands [required to perform] simple,

routine, repetitive tasks.

(Tr. at 31, 112-15, 128-29, 135-38, 146-48, 152-54, 161, 165-67.) In making his findings, Dr.

Noles further noted that an “[o]verall review of the [record] suggests [Plaintiffs] mental

condition is largely secondary to multiple situational stressors including chronic pain and

family responsibilities.” (Tr. at 167.) The ALJ found the consultants’ opinions persuasive and

utilized them when formulating Plaintiff's RFC. (Ir. at 26, 31.)

Plaintiff makes no specific objections to the mental RFC limitations included in this

case, not does she suggest the need for additional limitations. Plaintiffs sole contention is

that the ALJ erred by considering objective medical evidence at_all when assessing her

resttictions stemming from her depression and panic disorder. However, Fourth Circuit

ptecedent does not direct factfinders to ignore evidence of a treating provider’s assessments

5 To the extent Plaintiff contends the limitation to “occasional workplace changes” conflicts with the jobs

identified at Step Five of the sequential analysis, the Court addresses this argument in subsection B of this

Opinion.

12

on examination when formulating an RFC, and here the ALJ specifically considered all of “the

medical evidence and other evidence in the record” (Tr. at 27), including Plaintiffs reports of

symptom control with medication, her ongoing part-time work as a caregiver for elderly

patients, and the assessments of her functioning by her treating providers (Ir. at 31). See

Clifford E. v. O’Malley, No. 1:23CV704, 2024 WL 3105669, at *9-10 (M.D.N.C. June 24,

2024); Marty W. v. O’Malley, No. 1:23CV128, 2024 WL 1256268 at *11-12 (M.D.N.C. Match

25, 2024); Lasharne W. v. Commissioner, Soc. Sec. Admin., No. SAG-21-2603, 2023 WL

2414497, at *4 (D. Md. Mar. 8, 2023); Anthony P. v. O’Malley, No. 1:22CV291, 2024 WL

965608, at *3 (E.D. Va. Mat. 6, 2024) (“[T]he ALJ in this case did not dismiss [the plaintiffs]

subjective complaints based entirely upon the belief that they wete not corroborated by the

medical evidence; nor did the AL] require that [the plaintiffs] subjective statements be

validated by objective medical support. Rather, in assessing [the plaintiffs] subjective

complaints, the AL] considered [the plaintiffs] ability to complete ... myriad . . . daily

activities, [his] own statements about his condition, and [his] treating providet’s observations

of [the plaintiffs] functioning. Fourth Circuit precedent does not suggest that ALJs should

ignote objective evidence such as this; instead, Shelley C. and Arakas prevent ALJs from

requiting claimants to provide medical evidence that would be impossible to produce given

specific medical conditions. The ALJ weighed the [plaintiff's] subjective complaints

apptopriately under those holdings and did not impose undue demands.”).

Conttaty to Plaintiffs contentions, the ALJ in the present case did not requite that

Plaintiffs complaints of debilitating mental symptoms be validated by objective medical

evidence. Rather, in accordance with 20 C.F.R. §§ 404.1529 and 416.929, SSR 16-3p, and

13

relevant case law, the AL] considered the medical evidence, including the assessments by

Plaintiff's treating providers upon examination, as one of many factors when evaluating her

subjective complaints, and the ALJ also specifically noted and relied on the opinion of state

agency psychologist Dr. Noles, Plaintiffs own teports of her ability to follow written

instructions and manage finances, Plaintiffs own reports that her panic symptoms were

controlled with medications, Plaintiffs activities including spending time with family, helping

watch her young niece and nephew, driving, and shopping for herself and her boyfriend, and

her ongoing part-time work as a home health aide for the elderly. The ALJ teviewed the

evidence, explained her decision, and clearly explained the reasons for her determination. That

determination is supported by substantial evidence in the record. Plaintiff has not identified

any errors that requite remand.

B. DOT Conflict

Plaintiff next contends that at step five of the sequential process, in evaluating whether

sufficient other work exists in the national economy, the ALJ failed to identify and obtain a

reasonable explanation for apparent conflicts between the testimony of the vocational expert

and the Dictionary of Occupational Titles (“DOT”). In Pearson v. Colvin, 810 F.3d 204 (4th

Cir. 2015), the Fourth Circuit explained the AL]’s obligation at step five:

To answer this final question—whether sufficient other work exists for the

claimant in the national economy—the ALJ “tellies] primarily” on the

Dictionary. Soc. Sec. Admin., Policy Interpretation Ruling: Titles 1 & XVI: Use

of Vocational Expert & Vocational Specialist Evidence, & Other Reliable

Occupational Info. in Disability Decisions, Social Security Ruling (SSR) 00-4p,

2000 WL 1898704 (Dec. 4, 2000), at *2 (the Ruling). The AL] “may also use” a

vocational expert to address complex aspects of the employment determination,

including the expert’s observations of what a particular job requires in practice

ot the availability of given positions in the national economy. Id.

14

Because the expert’s testimony can sometimes conflict with the Dictionary, the

Social Security Administration has promulgated a multi-page, formal ruling to

“clariffy the] standards for the use of vocational experts” at ALJ hearings. Id. at

*1. The Ruling requires that the ALJ “inquire, on the record, ... whether” the

vocational expert’s testimony “conflict[s]” with the Dictionary, and also requites

that the AL] “elicit a reasonable explanation for” and “resolve” conflicts

between the expert’s testimony and the Dictionary. Id. at *2. The AL] must, by

determining if the vocational expert's explanation is “reasonable,” resolve

conflicts “before relying on the [vocational expert’s] evidence to suppott a

determination or decision about whether the claimant is disabled.” Id.

Pearson, 810 F.3d at 207-08. In Pearson, the Fourth Circuit thus clarified the steps an AL]

must take to identify and resolve apparent conflicts between a vocational expert’s testimony

and the DOT. Specifically, the Fourth Circuit held that, if an expert’s testimony apparently

conflicts with the express language of the DOT, the expert’s testimony can only provide

substantial evidence to support the AL]’s decision if the ALJ received an explanation from the

expett explaining the conflict and determined both (1) that the explanation was reasonable

and (2) that it provided a basis for relying on the expert’s testimony rather than the DOT.

Pearson, 810 F.3d at 209-10; see also Rholetter v. Colvin, 639 F. App’x 935, 938 (4th Cir.

2016).

Here, Plaintiff contends that the vocational testimony on which the ALJ relied at step

five of the sequential analysis conflicted with the DOT as to all of the identified jobs.

Specifically, the AL] identified three representative jobs available in the national economy that

Plaintiff could perform:

° Office Helper (DOT 239.567-010, 1991 WL 672232),

° Mail Clerk (DOT 209.687-026, 1991 WL 671813), and

¢ Matker (DOT 209.587-034, 1991 WL 671802).

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(Tr. at 33.) Plaintiff argues that, because these jobs require a Reasoning Level of 2 on the

DOT?’s six-level scale, they reflect an apparent conflict with the ALJ’s finding that Plaintiff

“can adapt to occasional workplace changes.” (See Tr. at 26.) Plaintiff contends that her

limitation to “occasional workplace changes” precludes her from performing jobs above

Reasoning Level 1, the lowest level available. In pertinent part, a job rated at Reasoning Level

1 requires the worker to “[d]eal with standardized situations with occasional or no variables in

ot from the situations encountered on the job.” U.S. Dept. of Labor, DOT, App. C, available

at 1991 WL 688702 (emphasis added). In comparison, a job rated at Reasoning Level 2

requites the worker to “[d]eal with problems involving a few concrete variables in or from

standardized situations.” Id. Plaintiff now argues that the AL]’s use of the word “occasional”

would limit Plaintiff to Reasoning Level 1 jobs, and creates an appatent conflict with

Reasoning Level 2. Defendant, in turn, counters that the term “occasional” in the present

case qualifies workplace changes, rather than situations or tasks. As such, Defendant asserts

that the term is not determinative under the relevant case law.

In considering this contention, the Court finds persuasive the recent decision of the

Ninth Circuit in Stiffler v. O’Malley, 102 F.4th 1102 (9th Cir. 2024). In that case, the court

offered the following rationale for finding no apparent conflict between a limitation to “few

workplace changes” and jobs with a Reasoning Level of 2:

[T]his case turns on the distinction between limitations in the workplace

environment, and limitations on the tasks performed. Contraty to [the

plaintiff]’s proposition, there was no conflict between [her] limitation of “few

workplace changes” and inclusion of “the ability to deal with problems

involving few concrete variables” in Reasoning level 2. The capacity to “deal

with problems involving a few concrete variables in or from standardized

situations,” identified in Reasoning Level 2, refers to the “situational variables”

that may atise when performing an assigned task. Zavalin| v. Colvin, 778 F.3d

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842,] 848 [9th Cir. 2015)]. For example, Zavalin explained that a cashier may

be confronted with varying situations in the course of “reconciling the cash on

hand against the cash registers tape and issuing credit memorandums to

customers.” Id.

On the other hand, the AL]’s reference to an “environment with few workplace

changes” concetns broader revisions to the workplace environment. The

applicable regulation explains that performance of a job often requires

“(djealing with changes in a routine work setting,” so the inquity into whether

a claimant has an impairment that limits the ability to do basic work activities

involves consideting to what extent the claimant is able to adapt to changes in

the “work setting.” 20 C.F.R. § 404.1522(b)(6). As the Supreme Court has

explained in another context, “[t]he workplace includes those areas and items

that ate related to work and ate generally within the employer’s control.”

O’Connot v. Ortega, 480 U.S. 709, 715 (1987). The workplace environment or

setting would generally include, for example, the location or physical

suttoundings of the area where the worker’s duties are performed. See,

e.g., Popa v. Berryhill, 872 F.3d 901, 903 (9th Cir. 2017) (discussing record

evidence indicating that the claimant was able to “be aware of normal hazards

in the work place, and respond appropriately to changes in the work place

setting’).

By way of example, the Supreme Court in O’Connor teferenced a hospital and

described the “hallways, cafeteria, offices, desks, and file cabinets” as “all part

of the workplace.” Id. at 716. Changes to the workplace setting itself — such as

requiting workers to work in a different area of the workplace each day or to

travel to different locations for each shift — ate distinct from “s¢tuational

vatiables” in the tasks being performed. Zavalin, 778 F.3d at 848 (emphasis

added).

Considering the distinction between “an environment with few workplace

changes” and “few variables” in the work to be performed, there was no

apparent conflict for the AL] to resolve between the testimony of the vocational

expert and the DOT. See Zavalin, 778 F.3d at 846.

Stiffler, 102 F.4th at 1109-1110; see also Clifford E. v. O’Malley, No. 1:23CV704, 2024 WL

3105669 (M.D.N.C. June 24, 2024) (adopting Stiffler analysis); Ricky F. v. O’Malley, No.

1:23CV720, 2024 WL 4333136 (M.D.N.C. Sept. 27, 2024) (same); Stephen G. F. v. O’Malley,

No. 2:22CV2006, 2024 WL 1051808, at *5-6 (D. Nev. Mar. 11, 2024) (“[Courts] do not

mechanically match words from the ALJ’s limitation to a given reasoning level. ‘Thus, the fact

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that the ALJ used the phrase ‘occasional changes in the workplace’ in his limitation does not

automatically limit Plaintiff to reasoning level 1 jobs simply because reasoning level 1 uses the

word ‘occasional.’... The ultimate question is whether a person who is limited to only dealing

with ‘occasional changes in the workplace’ is precluded from carrying out the functions of a

job that may require dealing with ‘a few concrete variables.’ The cases [reviewed by the court]

suggest the answer is ‘no.’ As a result, there was no need for additional questioning of the

VE. In turn, the AL]’s acceptance of the VE’s testimony was appropriate because there was

no apparent conflict[.]”).

Based on that analysis, Plaintiff has failed to demonstrate that an apparent conflict

exists between jobs with a Reasoning Level 2 and a limitation to no more than “occasional

wotkplace changes.” the Court finds that Plaintiff fails to demonstrate the existence of an

unresolved appatent conflict at step five of the sequential analysis. As such, her second

contention, like her first, provides no basis for remand.

IT IS THEREFORE ORDERED that the Commissionet’s decision finding of no

disability is AFFIRMED, that Plaintiffs Dispositive Brief [Doc. #10] is DENIED, that

Defendant’s Dispositive Brief [Doc. #11] is GRANTED, and that this action is DISMISSED

with prejudice.

This, the 27 day of March, 2025.

LO utes

hg

nited States Magistrate Judge

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