The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ASHLEY D.K,, )
Plaintiff,
Vv. 1:23CV1037
LELAND DUDEK,
Acting Commissioner of Social Security, )
Defendant.
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Ashley D. K. (“Plaintiff”) brought this action pursuant to Section 205(g) of
the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial review
of a final decision of the Commissioner of Social Security denying his claim for Disability
Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed cross-motions
for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB on September 1, 2020, alleging a
disability onset date of February 21, 2016. (Tr. at 25, 152-53.)! Plaintiffs application was
denied initially (Ir. at 66-71, 80-84) and upon reconsideration (Tr. at 72-77, 90-94).
Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative
Law Judge (“ALJ”). (Tr. at 96-97.) On March 2, 2022, Plaintiff, along with his non-attorney
1 Transcript citations tefer to the Sealed Administrative Record [Doc. #5].
representative, attended the subsequent telephonic hearing, at which Plaintiff and an impartial
vocational expert testified. (Ir. at 25, 44-65.) Following the hearing, the ALJ concluded that
Plaintiff was not disabled within the meaning of the Act (Tr. at 39), and on October 11, 2023,
the Appeals Counsel denied Plaintiffs request for review of that decision, thereby making the
AL/’s conclusion the Commissioner’s final decision for purposes of judicial review (Tr. at 1-
6).
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’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 Cit. 1981). “The courts ate 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
ALJ 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) Gnternal
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. 1992)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastto 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 re-weigh
conflicting evidence, make credibility determinations, or substitute its sudgment for that of the
[ALJ].” Mastto, 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
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).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Hartis, 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 process 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
2 “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.F.R. pt. 416 (SSI), governing these two programs are,
in all aspects relevant hete, substantively identical.” Craig, 76 F.3d at 589 n.1.
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
tequitements 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 advetse 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 cattries his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impaitment” at step three, “the claimant
is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,
but falters at step three, ie., “[i]f a claimant’s impairment is not sufficiently severe to equal ot
exceed a listed impaitment,” then “the ALJ must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.3 Step four then requires the ALJ to assess whether, based on
that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
3 “REC 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 requite 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 impaitments 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 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 Government cannot catty 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.
DISCUSSION
In the present case, Plaintiff filed his DIB applications on September 1, 2020, but his
“Date Last Insured” for purposes of DIB was December 31, 2019. Therefore, Plaintiff was
tequited to establish that he became disabled prior to that date. At the first step of the analysis,
the ALJ found that Plaintiff had not engaged in “substantial gainful activity” between his
alleged onset date, February 21, 2016, and his Date Last Insured, December 31, 2019. (Tr. at
28.) The ALJ therefore concluded that Plaintiff met his burden at step one of the sequential
evaluation process. (Tr. at 27-28.) At step two, the ALJ further determined that Plaintiff
suffered from the following severe impairments:
left femur fractute status post open reduction internal fixation (ORIF), left hip
fracture status post (ORIF) [sic], lumbar spondylosis, bilateral knee degenerative
joint disease, seizure disorder, hepatitis B, traumatic brain injury, anxiety[,]
depression, [and] obesity[.]
at 28.) The ALJ found at step three that none of these impairments, individually or in
combination, met ot equaled a disability listing. (I't. at 28-31.) Therefore, the ALJ assessed
Plaintiffs RFC and determined that he could perform a range of sedentary work with the
following, additional limitations:
[Plaintiff can] lift and carry 10 pounds occasionally and less than 10 pounds
frequently; stand and walk up to two hours in an eight hour day; sit up to six
hours in an eight hour day; occasionally push or pull with the left lower
extremity; never climb ladders, ropes, or scaffolds; [and] occasionally kneel,
crouch, ot crawl. [Plaintiff] must avoid working at unprotected heights and
atound dangerous machinery and is limited to performing unskilled work
consisting of routine tasks. [He] can maintain concentration, persistence, and
pace for two hour petiods during the day.
(Ir. at 31.) At step four of the analysis, the ALJ found, based on the vocational expert’s
testimony, that all of Plaintiffs past relevant work exceeded his RFC. (Tr. at 37.) However,
the ALJ further determined at step five that, given Plaintiffs age, education, work experience,
REC, and the testimony of the vocational expert as to these factors, he could perform other
jobs available in significant numbers in the national economy. (Tt. at 37-38.) Therefore, the
ALJ concluded that Plaintiff was not disabled under the Act. (Tt. at 38-39.)
Plaintiff now raises two challenges to the ALJ’s decision. First, he contends that the
ALJ failed to account for the “somewhat” persuasive opinion of the consultative examiner,
Family Nurse Practitioner Angela Lamb, when crafting Plaintiffs RFC assessment. (PL.’s Br.
[Doc. #8] at 1.) Second, Plaintiff argues that the ALJ failed to resolve apparent conflicts
between the vocational expert’s (“VE”) testimony and the job descriptions provided in the
Dictionary of Occupational Titles (“DOT”). (PL’s Br. at 1.) After a thorough review of the
record, the Court finds that neither of these contentions requites remand.
A. Nurse Practitioner Lamb’s Opinion
Plaintiff first argues that the ALJ failed to properly account for the opinion of Family
Nurse Practitioner Lamb when assessing Plaintiff's RFC. In pertinent part, Nurse Lamb, who
performed a consultative examination of Plaintiff on June 3, 2022, opined that Plaintiff
requited an assistive device and had “[s]evere limitations in sitting, standing, [and] walking.”
(Tr. at 36.) Despite finding Nurse Lamb’s opinion “somewhat” persuasive, the AL] ultimately
determined that Plaintiff could stand and walk for up to two hours in the course of an eight-
hour workday and could sit for up to six hours. (Tr. at 31.)
Under the applicable regulations for claims filed on or after March 27, 2017,
[The ALJ] will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical
finding(s), including those from your medical sources. When a medical source
ptovides one ot more medical opinions or prior administrative medical findings,
we will consider those medical opinions or prior administrative medical findings
from that medical source together using the factors listed in paragraphs (c)(1)
through (c)(5) of this section, as appropriate. .. .
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source ate to support his
ot het medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical
finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) of prior
administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) ot prior administrative medical finding(s) will be.
(3) Relationship with the claimant . . . [which includes]: (1) Length of the
treatment relationship. . . (ii) Frequency of examinations. ... (ii) Purpose
of the treatment relationship. . . . (iv) Extent of the treatment relationship.
.. [and] (v) Examining relationship. . . .
(4) Specialization. The medical opinion or prior administrative medical finding
of a medical soutce who has received advanced education and training to
become a specialist may be more persuasive about medical issues related to
his ot her atea of specialty than the medical opinion ot prior administrative
medical finding of a medical source who is not a specialist in the relevant
atea of specialty.
(5) Other factors... . This includes, but is not limited to, evidence showing a
medical source has familiarity with the other evidence in the claim or an
understanding of our disability program’s policies and evidentiary
requirements. ...
20 C.F.R. § 404.1520c(a) and (c) (emphasis added). The regulations also require decision-
makers to “articulate in . . . [their] decision[s] how persuasive [they] find all of the medical
opinions . . . in [a claimant’s] case record.” 20 C.F.R. § 404.1520c(b). Although all of the
factors listed in paragraphs (c)(1) through (c)(5) of § 404.1520c should be considered in
making this determination, the regulations specifically provide that the most important factors
when evaluating the persuasiveness of an opinion are the first two: supportability and
consistency. 20 C.F.R. §§ 404.1520c(a), (€\(1)-(C)(2). Therefore, paragraph (b) further
provides that ALJs “will explain how [they] considered the supportability and consistency
factors for a medical soutce’s medical opinions . . . in [the] determination or decision.” 20
C.F.R. § 404.1520c(b)(2). Express discussion of the remaining factors is not required. See 20
C.F.R. § 404.1520c(b)(3); see also Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844-01, 5853 (Jan. 18, 2017) (explaining that the final rules in §
404.1520c “requite our [AL]s] to consider all of the factors” in § 404.1520c(c) “for all medical
opinions and, at a minimum, to articulate how they considered the supportability and
consistency factors” in determining persuasiveness). In other words, §§ 404.1520c(b)—(c)
define the “minimum level of articulation” an AL] must include in her written decision “to
provide sufficient rationale for a reviewing . . . court.” Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. at 5858; see also Keene v. Berryhill, 732 F.
App’x 174, 177 (4th Cir. 2018).
Hete, as set out in the administrative decision, the ALJ found Nurse Lamb’s opinion
“somewhat” persuasive “to the extent [it is] consistent with the objective medical evidence
from the alleged onset date through the date last insured,” 1e., from February 21, 2016 through
December 31, 2019. (Tt. at 36.) However, the AL) further noted that Nutse Lamb’s opinion
“was rendered over two [years] after the date last insured.” (Tr. at 36.) Although Plaintiffs
back and left leg impairments persisted during this later petiod and therefore remained
relevant, the ALJ found that Nurse Lamb’s further opinions regarding “impairments . . . not
ptesent before [the] date last insured” were not persuasive. (Tr. at 36.) Nevertheless, the ALJ
specifically acknowledged Nurse Lamb’s findings that Plaintiff “still has continued impairment
of the back and left leg even after the date last insured” as one basis for finding Plaintiff more
limited than opined by the State agency medical consultants, who posited that Plaintiff could
perform light work. (Tr. at 36 (further noting that “evidence received at the hearing level,”
including Nurse Lamb’s examination and opinion, “supports a greater degree of physical and
mental limitation”).) In fact, the ALJ cited Nurse Lamb’s findings when finding the State
agency consultants’ opinions “not persuasive.” (Tr. at 36.) Thus, the ALJ’s discussion of
Nurse Lamb’s opinion addtesses both consistency and supportability, and the ALJ met her
obligation under the Act.
Plaintiff nevertheless contends that the ALJ failed to sufficiently explain why she did
not account for Nurse Lamb’s findings of “severe” limitations in sitting, standing, and walking
due to pain, and Nurse Lamb’s findings of the need for a cane or assistive device. However,
the ALJ did address these issues, and specifically found that Plaintiffs “ability to sit, stand,
walk, stoop, kneel, crouch and crawl ate significantly limited” as a result of “bilateral knee pain
and lumber spine pain.” (T't. at 32 (emphasis added).) The ALJ then discussed at length the
extent of the limitations and the effect on the RFC. As part of the discussion, the AL] found
that Plaintiff “does not requite the use of a handheld device for ambulation.” (Tr. at 29-30.)
The ALJ discussed Plaintiffs initial injury from a cat accident in February 2016 that resulted
in significant injuries, including significant injuries to his left leg and back requiring extensive
surgeries, with inpatient and/or intensive rehabilitation and physical therapy from March
through June 2016.4 (Tr. at 33, 311-1253.) That intensive rehabilitation and physical therapy
included use of a wheelchair, walker, and cane. However, as specifically noted by the ALJ, at
a follow-up appointment in May 2016, Plaintiff was in “no acute distress with normal range
of motion and strength of the spine” and with normal neurological exam. (Tr. at 33-34 (citing
Tr. at 297, 301, 304).) The tecords from that May 2016 visit reflect that Plaintiff was
complaining of head pain and foot pain, but had been there 10 days earlier and left Against
Medical Advice after they told him they would not give him pain medication. (Tr. at 300-01.)
The May 2016 evaluation notes teflect normal range of motion and “normal motor” (Tt. at
304), foot pain due to cellulitis with an unremarkable x-ray (Tr. at 297), and no numbness ort
weakness in extremities (Tr. at 301), with no indication of any cane or other assistive device.
4 Plaintiff's medical records from the day of the accident reveal positive test results for cocaine and marijuana,
and in one of Plaintiff's consultative exams, he reported a history of illicit drug use including marijuana, cocaine,
and heroin, noting that he believes his drug use caused the accident, although he cannot remember that day.
(Tr. at 278, 290, 322, 543, 1962.) Plaintiffs additional medical records similarly indicate a history of substance
abuse. (See, e.g., Tr. at 1123, 1369, 1432-81.) The AL] “recognize|d] that substance abuse is an issue in
[Plaintiff's] medical history” but found that it was “not a material factor to the conclusion,” and concluded that
the “evidence does not establish significant limitation of work-related function secondary to” Plaintiff's
substance abuse. (Tr. at 28.)
5 The AL] also noted a hospital visit shortly thereafter in July 2016, where Plaintiff raised complaints regarding
seizures. (Tr. at 34 (citing Tr. at 1254-73).) That evaluation similarly reflects normal range of motion of
extremities and notmal motor, with no indication of the need fort an assistive device. (Tr. at 1262-63, 1266.)
Plaintiff's follow-up appointment in August 2016 likewise reflects normal range of motion, normal gait, “a
normal station and narrow-based, steady gait; Able to perform tandem gait, toes-only and heels-only without
difficulty,” with no indication of a cane or a need for an assistive device. (Tr. at 1317.) The ALJ separately
addressed the issue of Plaintiffs seizures (Ir. at 34), and Plaintiff does not raise any challenges to the ALJ’s
findings on that issue.
10
As noted by the ALJ, the record includes no treatment notes from mid-2016 until mid-
2019, when Plaintiff sought treatment for Bell’s Palsy and knee pain while he was in prison.°
(Tr. at 34.) The record reflects that Plaintiff went to the emergency room in April 2019 for
Bell’s Palsy (Tr. at 1889), and that hospital record does not reflect any leg, back, or mobility
complaints, and with notations of no ambulatory aids (It. at 1888) and ambulatory at
departure in police custody. (Tr. at 1895, 1910.) As noted by the ALJ, Plaintiff sought
treatment for knee pain in December 2019/January 2020 (T't. at 34-35), and those records
teflect that Plaintiff reported at a visit on December 28, 2019 that he had injured his right knee
two weeks earlier, on December 14, 2019, and that he had limited mobility and gait changes
during those two weeks. (It. at 1348.) An x-ray was ordered and reflected no acute
abnormality and moderate degenerative changes. (TI'r. at 35, 1370.)
Subsequent follow-up records, after the December 31, 2019 Date Last Insured, “reflect
routine visits and medication management for complaints of chronic back and knee patn” with
exam findings “normal overall.” (Tr. at 35.) The record supports this finding. For example,
tecotds from January 2020 reflect that Plaintiff “ambulates well” with 5/5 strength and
extension and flexion (Tr. at 1336). A hospital visit in July 2020 notes normal 5/5 strength,
not a fall risk and no assistive devices, with a steady gait and ambulatory at departure. (I'r. at
6 North Carolina Department of Corrections records reflect that Plaintiff was arrested in October 2016 on
charges of Indecent Liberties with a Child and Statutory Rape, for an offense in September 2016. He was
apparently in local custody for 3 years, until his conviction in October 2019 on the charge of Indecent Liberties,
and he was transferred to the North Carolina Department of Corrections in December 2019, where he stayed
until his release in May 2020. Between May 2020 and November 2023, he was in and out of custody for
violations of his post-release supervision. The record in this case includes the medical records from the North
Carolina Department of Adult Corrections and a hospital visit in April 2019 while still in local custody. At his
admission screening to the North Carolina Department of Adult Corrections in December 2019, he had a full
tange of motion with no indication of any assistive devices or ambulation issues. (Tr. at 1357-66.)
11
1821-22, 1832, 1835, 1867, 1870.) A visit the next month in August 2020 notes normal
movement of all extremities and normal gait, with no complaints of muscle weakness or joint
pain and “ambulating normally.” (Tr. at 1718-19.) An office visit and subsequent hospital
visit for seizures the next month, in September 2020, likewise reflects exam findings of “5/5
strength throughout the upper and lower extremities and normal gait.” (Tr. at 35, 1433-34,
1385, 1395-96.) Another hospital visit a year later, in November 2021, likewise noted normal
objective findings with normal range of motion and normal gait (Tr. at 35, 1764), with no
assistive device noted and ambulatory at departure. (Tr. at 1744, 1757, 1793.)
The ALJ then discussed Nurse Lamb’s evaluation in June 2022, and noted that Plaintiff
ambulated with a left sided limp (Tr. at 35), and the ALJ then further discussed Nurse Lamb’s
opinion that Plaintiff “has severe limitations in sitting, standing, and walking” due to pain (Tt.
at 36). Upon exam, Plaintiff exhibited limited muscle strength in his left leg as compared to
his right. He also exhibited left leg edema. (Tr. at 1951-52.) He “was able to rise from a sitting
position with assistance and had no difficulty getting up and down from the exam table.” (Tt.
at 1953.) However, he had a limited range of motion in his left leg and back. (Tr. at 1954-
56.) Based on her findings, Nurse Lamb opined that Plaintiff had “severe” limitations in
walking, standing, and sitting due to “leg and back pain.” (Tr. at 1956.) She further opined
that Plaintiff required the use of a cane, which she characterized as “medically necessary” and
prescribed by Plaintiffs physical therapist. (It. at 1957.) As noted above, the AL] found
Nurse Lamb’s opinion somewhat persuasive “to the extent it is consistent with the objective
medical evidence from the alleged onset date through the date last insured,” but not persuasive
“with regard to impairments and limitations due to impairments not present before the date
12
last insured.” (Tr. at 36.)7 The AL] also noted Nurse Lamb’s finding that Plaintiff “still has
continued impairment of the back and left leg even after the date last insured” but found that
“tnjevertheless [Plaintiff] is capable of a range of sedentaty work, as outlined in the residual
functional capacity.” (Tr. at 36.) As noted above, the ALJ found that Plaintiff did not require
the use of a handheld device for ambulation (Tt. at 29-30), and found that Plaintiff was capable
of sedentary work as set out in the RFC “consistent with and supported by the observations
of treating sources in the medical records.” (Tt. at 37.) Substantial evidence in the record
supports those findings, as set out in the ALJ’s decision and summarized above. Consistent
with Nurse Lamb’s findings of severe limitations due to leg and back pain, the ALJ determined
that Plaintiffs impairments required extensive limitations, including a limitation to sedentary
work with a maximum of two hours of standing and walking per eight-hour workday and six
houts of sitting per workday. (Tr. at 31.) Plaintiff fails to suggest what further limitations
Nurse Lamb’s opinions would support. To the extent that Plaintiff argues that Nurse Lamb’s
opinion supports Plaintiffs need for an assistive device, Plaintiffs use of a cane—even a
medically necessary cane—in 2022 does not establish that a cane was medically necessary for
ambulation on or before December 31, 2019. In fact, Plaintiff points to no evidence that he
used a cane during the alleged disability period. As discussed above, in the time after the
accident and during and just after Plaintiffs date last insured, but prior to his consultative
7 As the ALJ correctly noted, this delay limited the relevance of Nurse Lamb’s opinion, as more recent
impairments and limitations impacted her examination findings. For example, only a month prior to his
consultative examination, Plaintiff was in a moped accident in which he broke his scapula and four ribs. (Tr.
at 1950, 1957, 1960.) The ALJ did not further address or discuss the subsequent impairments and limitations,
as the focus was on Plaintiffs impairments and limitations prior to the December 31, 2019 Date Last Insured.
13
examination in 2022, the ALJ recounted that Plaintiffs exam findings noted 5/5 strength in
the lower extremities and normal gait. (Tr. at 34-35)
In short, the ALJ clearly explained that she relied on Nurse Lamb’s findings along with
other evidence, including objective medical evidence and testimony, to find that Plaintiff
remained capable of a limited range of sedentary work. Although Nurse Lamb did not define
the extent to which “severe” limitations in walking, standing, and sitting would limit Plaintiffs
ability to work, the ALJ nonetheless included greater RFC limitations in these areas than
suggested anywhere else in the record. The ALJ discussed and explained his analysis of Nurse
Lamb’s evaluation, substantial evidence supports the ALJ’s conclusions, and the Court finds
no basis for 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 AL) failed to identify and obtain a
reasonable explanation for apparent conflicts between the testimony of the vocational expert
(“VE”) and the Dictionary of Occupational Titles (“DOT”). Specifically, Plaintiff contends
that the Vocational Expert’s testimony conflicted with the DOT, but that the ALJ failed to
obtain a reasonable explanation for the conflict as requited by Social Security 00-4p, Policy
Interpretation Ruling: Titles I] & XVI: Use of Vocational Expert & Vocational Specialist
Evidence, & Other Reliable Occupational Information in Disability Decisions, 2000 WL
1898704 (Dec. 4, 2000) (“SSR 00-4p”).8 In Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015),
the Fourth Circuit explained the AL]’s obligation at step five:
8 SSR 00-4p provides that:
14
To answer this final question—whether sufficient other work exists for the
claimant in the national economy—the AL] “rellies] primarily’ on the
Dictionary. Soc. Sec. Admin., Policy Interpretation Ruling: Titles Tl & 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 ALJ “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
or the availability of given positions in the national economy. Id.
Because the expett’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 requires
that the ALJ “elicit a reasonable explanation for” and “resolve” conflicts
between the expert's testimony and the Dictionary. Id. at *2. The ALJ must, by
determining if the vocational expert’s explanation is “reasonable,” resolve
conflicts “before relying on the [vocational expert’s] evidence to support a
determination ot decision about whether the claimant is disabled.” Id.
When a VE ot VS provides evidence about the requirements of a job or occupation, the adjudicator
has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence
and information provided in the DOT. In these situations, the adjudicator will:
Ask the VE or VS if the evidence he or she has provided conflicts with information provided tn the
DOT; and
If the VE's or VS's evidence appears to conflict with the DOT, the adjudicator will obtain a
reasonable explanation for the apparent conflict.
When vocational evidence provided by a VE or VS is not consistent with information in the DOT,
the adjudicator must resolve this conflict before relying on the VE or VS evidence to support a
determination or decision that the individual is or is not disabled. The adjudicator will explain in the
determination ot decision how he or she resolved the conflict. The adjudicator must explain the
resolution of the conflict irrespective of how the conflict was identified.
Notably, SSR 00-4p was recently rescinded by Social Security Ruling 24-3p: Policy Interpretation Ruling:
Titles II_and XVI: Use of Occupational Information & Vocational Specialist & Vocational Expert
Evidence in Disability Determinations & Decisions (Jan. 6, 2025) (“SSR 24-3p”). The new guidance
explains that “the DOT is not the only reliable source of occupational information” and that “requiring
our adjudicators, VSs, and VEs to identify and explain conflicts with the DOT is time consuming. . . [and]
led to unnecessary remands to resolve apparent conflicts that were not identified at the hearing when the
VE testified .... We are rescinding SSR 00-4p and will no longer require our adjudicators to identify and
resolve conflicts between occupational information provided by VSs and VEs and information in the
DOT.” SSR 24-3p. The Court will nevertheless consider the claims raised under SSR 00-4p, since it was
in effect at the time of the decision in this case. SSR 24-3p n.1 (“We expect that Federal courts will review
out final decisions using the rules that were in effect at the time we issued the decisions.”).
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Pearson, 810 F.3d at 207-09. In Pearson, the Fourth Circuit thus clarified the steps an AL]
must take to identify and resolve appatent 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 DOT, the expert’s testimony can only provide substantial evidence to
support the AL]’s decision if the ALJ received an explanation from the expert 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. Peatson, 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:
¢ Nut Sorter (DOT 521.687-086, 1991 WL 674226),
° Table Worker (DOT 739.687-182, 1991 WL 680217), and
° Stuffer (DOT 731.685-014, 1991 WL 679811).
(Tt. at 38.) Plaintiff now argues that these manufacturing jobs, as described by the DOT, all
involve machinery and, as such, apparently conflict with the ALJ’s finding that Plaintiff “must
avoid working ... atound dangerous machinery.” (Tr. at 31.) However, as discussed below,
there is no apparent conflict that required explanation, and the Fourth Circuit in Pearson
tejected the contention that the ALJ must identify and address every possible conflict.
Pearson, 810 F.3d at 209.
Here, the DOT describes the job tasks for the position of Nut Sorter as follows:
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Removes defective nuts and foreign matter from bulk nut meat: Observes nut
meats on conveyor belt, and picks out broken, shriveled, or wormy nuts and
foreign matter, such as leaves and rocks. Places defective nuts and foreign
matter into containers.
DOT 521.687-086, 1991 WL 674226. Similarly, the position of Table Worker involves
“fe]xamin[ing] squate (tiles) of felt-based linoleum material passing along on conveyor and
teplac[ing] missing and substandard tiles.” DOT 739.687-182, 1991 WL 680217. Finally, the
job of Stuffer involves the following tasks:
Tends machine that blows filler into stuffed-toy shells: Inserts precut
supporting wite into shell. Places shell opening over stuffing machine nozzle.
Depresses pedal to blow cotton or chopped foam rubber filler into shell to
impatt shape to toy. Places stuffed toy in tote box. Records production. May
stuff toys by hand.
DOT 731.685-014, 1991 WL 679811. Plaintiff contends that the conveyor belts involved in
the jobs of Nut Sorter and Table Worker and the stuffing machine used by Stuffers could
potentially constitute “dangerous machinery.” Because neither the vocational expert nor the
ALJ acknowledged or addressed this potential conflict, Plaintiff argues that his claim merits
remand under Pearson.
However, the DOT’s job descriptions consist of more than the brief paragraphs set
out above and relied upon by Plaintiff. The Selected Characteristics of Occupations (“SCO”),
a companion publication included in the DOT, provides detailed physical and environmental
demands for each job. Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles, Appendix C, D (U.S. Dep’t of Labor 1993). The SCO
further describes the frequency a particular job involves the activity in question. For example,
a job may tequite tasks such as crouching, far acuity, or exposure to extreme cold 1/3 to 2/3
of the time, more than 2/3 of the time, or not at all. Crucially, one of the many demands
17
included in the SCO is the extent to which a job exposes the worker to hazards. ‘The hazards
defined in the SCO . . . include: moving mechanical parts of equipment, tools, or machinery;
electrical shock; working in high, exposed places; exposute to radiation; working with
explosives; and exposure to toxic, caustic chemicals. Social Security Ruling 96-9p, Policy
Interpretation Ruling Titles I] And XVI: Determining Capability To Do Other Work—
Implications Of A Residual Function Capacity For Less Than A Full Range Of Sedentary
Work, 1996 WL 374185, at *8-9 (July 2, 1996) (“SSR 96-9p”). Specifically as to hazards
involving moving mechanical parts of equipment, the SCO describes the extent of “[e]xposure
to possible bodily injury from moving mechanical parts of equipment, tools, or machinery.”
Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles, Appendix D (U.S. Dep’t of Labor 1993).
Although Plaintiff contends that there appeats to be a conflict between the RFC
limitations that limit his exposure to dangerous machinery and the DOT descriptions of the
jobs identified at step five, the DOT descriptions for all three positions provide that they do
not involve any exposute to moving mechanical parts of equipment, tools, or machinery; or
electric shock; or high, exposed places; or radiation; or explosives; or toxic caustic chemicals.
The DOT descriptions for each position specifically provide that these conditions ate “Not
Present — Activity or condition does not exist.” See DOT 521.687-086, 1991 WL 674226;
DOT 739.687-182, 1991 WL 680217; DOT 731.685-014, 1991 WL 679811. In these
circumstances, there is no apparent conflict between the VE’s testimony and the DOT
positions relied on by the ALJ. Indeed, as Defendant correctly notes, this Coutt, along with
other courts within the Fourth Circuit—and across the nation—have found no conflict,
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appatent ot otherwise in similar cases. See James B. v. O’Malley, No. 1:22CV1103, 2024 WL
920722, at *6 (M.D.N.C. Mar. 4, 2024) (citing Carter v. Kijakazi, No. 3:20-cv-00672, 2021 WL
4931724, at *6 (S.D.W. Va. Sept. 30, 2021)); Stover v. Berryhill, No. 5:19-cv-00062, 2019 WL
2895023, at *10 (S.D.W. Va. June 6, 2019); Maxwell v. Saul, No. 1:18-cv-00894-GSA, 2019
WL 3546837, at *5 (B.D. Cal. Aug. 5, 2019); White v. Colvin, No. 3:16-cv-0322, 2018 WL
6537150, at *4 n.4 (M.D. Pa. Nov. 21, 2018); Spears v. Berryhill, No. 16-2333-JPR, 2018 WL
707989, at *9-10 (C.D. Cal. Feb. 5, 2018); Hensley v. Colvin, No. 15-66-GFVT, 2016 WL
3964336, at *6 (E.D. Ky. July 21, 2016); Wigmore v. Colvin, No. 6:12-cv-0611-ST, 2013 WL
1900621, at *18 (D. Or. Apr. 16, 2013); Amanda L.S. v. Kyakazi, No. 21C5775, 2023 WL
2711663, at *7-8 (N.D. Ill. Mar. 30, 2023) (collecting cases)); see also Phipps v. Comm’r of
Soc. Sec., No. 5:22-CV-00085-DSC, 2023 WL 105331, at *4 (W.D.N.C. Jan. 4, 2023) (finding
no appatent conflict between an RFC limitation precluding exposure to “dangerous
machinery” and positions involving a dumbwaiter or conveyer belt where the SCO notes no
involvement of hazards); Palmer v. Berryhill, No. 5:18-CV-01488, 2019 WL 2387055, at *4-5
(S.D.W. Va. May 8, 2019) (finding no apparent conflict between RFC limitation precluding
more than frequent exposure to “dangerous machinery” because the DOT SCO “specifically
provides that moving mechanical parts, electric shock and other environmental hazards are
not present’).
Given the overwhelming balance of the case law, the Court concludes that no
unresolved apparent conflict exists in the present case, and the ALJ was entitled to rely on the
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expett’s testimony at step five of the sequential analysis regarding the representative
occupations of Nut Sorter, Table Worker, and Stuffer.°
IT IS THEREFORE ORDERED that the Commissionet’s decision finding no
disability is AFFIRMED, that Plaintiffs Dispositive Brief [Doc. #8] is DENIED, that
Defendant’s Dispositive Brief [Doc. #12] is GRANTED, and that this action is DISMISSED
with prejudice.
This, the 27th day of March, 2025.
h set Peake
nited States Magistrate Judge
9 The Court also notes that even if there were an apparent conflict with the positions of Nut Sorter and Table
Worker based on the presence of a conveyer belt, no such conflict exists with respect to the position of Stuffer,
so the alleged failure is harmless in any event.
20