Opinion
Civil Action 2:20-03447-JMC-MGB
12-13-2021
CELESTINE EL, Plaintiff, v. KILOLO KIJAKAZI, [1] Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GARDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Celeste El (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the “Administration”) regarding her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends that the Commissioner's decision be affirmed.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 42 years old on her alleged disability onset date of October 21, 2015. (R. at 131, 140, 158, 174.) Plaintiff alleged disability due to anxiety, depression, and pre-cervical cancer. (Id. at 132, 140-41, 159, 175.) Plaintiff has past relevant work as a cashier. (Id. at 27, 172, 188.)
On February 8, 2018, Plaintiff filed an application for DIB and an application for SSI. (Id. at 131, 140, 154-55, 157, 190.) Her applications were denied initially on July 11, 2018, and on reconsideration on April 3, 2019. (Id. at 139, 152, 154-55, 172-73, 188-89, 190.) Plaintiff requested a hearing before an Administrative Law Judge (the “ALJ”) on April 25, 2019. (Id. at 220.) Plaintiff, represented by counsel, attended the requested hearing on October 9, 2019. (Id. at 35-89.) On January 3, 2020, the ALJ issued a decision and found that Plaintiff was not disabled. (Id. at 15-33.) The Appeals Council denied Plaintiff's request for review on September 9, 2020, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (Id. at 1-9.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant met the insured status requirements of the Social Security Act through March 31, 2015.
(2) The claimant has not engaged in substantial gainful activity since October 21, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: degenerative joint disease of the left knee, bipolar disorder, anxiety disorder with panic attacks and post-traumatic stress disorder (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant 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 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find the claimant has the residual functional capacity to perform a reduced range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can lift, carry, push and/or pull up to 20 pounds occasionally and 10 pounds frequently, can sit for six hours total in an eight-hour workday, and can stand and/or walk for six hours total in an eight-hour workday, with normal breaks. She can no more than frequently stoop, crawl, balance, crouch and kneel, and can no more than occasionally climb. She cannot tolerate required exposure to unprotected heights or dangerous machinery. The claimant retains the ability to perform simple, routine (reasoning level 1-2[)] tasks[] and can maintain concentration, persistence and pace in order to perform such tasks for at least two hours at a time and to complete an eight-hour workday without special supervision. She should have no required interaction with the general public and no more than occasional interaction with coworkers. She needs to work in a lower stress work environment, defined as one where she does not have to meet a rigid and flexible production schedule (for example, she should not be required to keep up with high-speed assembly line work or perform piecework), make complex decisions at the workstation or adapt to frequent changes at the workstation.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on April 11, 1973 and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416. 964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant No. in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from October 21, 2015, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).(Id. at 18-29.)
APPLICABLE LAW
I. Relevant Statutory Law
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as 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 twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).
“[T]he definition of disability is the same under both DIB and SSI. . . .” Morgan v. Saul, 9: 19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3 (1982); Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
II. Standard of Review
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Id. at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ committed reversible error by: (1) failing to adequately account for her moderate limitations in maintaining concentration, persistence, or pace, and failing to adequately account for her moderate limitations in interacting with others; (2) failing to resolve the apparent conflict between the vocational expert's testimony and the information contained in the Dictionary of Occupational Titles (“DOT”); and (3) finding that jobs identified by the vocational expert existed in significant No. in the national economy. (See generally Dkt. No. 18.) As is further described below, the undersigned finds that the Commissioner's decision is supported by sufficient evidence and does not contain legal error. The undersigned therefore recommends that the Commissioner's decision be affirmed.
I. ALJ's Residual Functional Capacity (“RFC”) Analysis
“[R]esidual functional capacity is the most [a claimant] can still do despite [her] limitations.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. §§ 404.1545(a)). “The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis. . . .” SSR 96-8p (S.S.A. July 2, 1996); accord Mascio, 780 F.3d at 636 (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ “must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). “Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason.” Id. However, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). As the party attacking the Commissioner's decision, the claimant carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
A. Plaintiff's Ability to Concentrate, Persist, and Maintain Pace
Plaintiff first argues that the ALJ failed to properly account for her moderate limitations in maintaining concentration, persistence, and pace under Mascio v. Colvin, 780 F.3d 632, 637-38 (4th Cir. 2015). (Dkt. No. 18 at 4-16; Dkt. No. 20 at 2-11.) More specifically, Plaintiff alleges that the ALJ frustrated judicial review of his opinion by “fail[ing] to build a logical bridge from the evidence of record to the RFC assessment in violation of Fourth Circuit case law. (Dkt. No. 18 at 14.)
In Mascio, the ALJ found that the claimant had moderate difficulties in concentration, persistence, and pace at step three of the sequential analysis, but failed to include this limitation in the claimant's RFC assessment or in the hypothetical to the vocational expert. 780 F.3d at 634- 35, 637-38. Specifically, the ALJ concluded that the claimant had the capacity to perform light work but was further limited to changing between sitting and standing every thirty (30) minutes; only occasional climbing, balancing, bending, stooping, crouching or crawling; and “due to her adjustment disorder, only unskilled work.” Id. at 635. Although the vocational expert provided a list of “unskilled” jobs based on these limitations, the Fourth Circuit found the ALJ's decision “sorely lacking” in the analysis needed for the court to conduct a meaningful review of his conclusions. Id. at 636. Notably, the Fourth Circuit concluded that “an ALJ does not account ‘for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'” See Id. at 638 (citing Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). The court explained that “the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Id. Accordingly, the ALJ committed reversible error in failing to explain why a moderate limitation in concentration, persistence, or pace did not translate into a specific limitation in the claimant's RFC:
Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to
exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order.Id. Since the Fourth Circuit's holding in Mascio, district courts within the Fourth Circuit have followed suit and found that a limitation to simple, unskilled work is “insufficient to address moderate limitations in concentration, persistence, and pace absent further explanation.” See Beytes v. Berryhill, No. 8: 18-CV-00297-CMC-JDA, 2019 WL 404864, at *10 (D.S.C. Jan. 17, 2019), adopted, No. 8:18-CV-297-CMC, 2019 WL 405609 (D.S.C. Jan. 31, 2019) (collecting cases).
In the instant case, the ALJ determined that Plaintiff had “no more than a moderate limitation” in her ability to concentrate, persist, or maintain pace. (R. at 22.) In support of his Step Three finding that Plaintiff had such moderate limitations, the ALJ stated:
With regard to concentrating, persisting or maintaining pace, the claimant has no more than a moderate limitation. The treatment notes from Family Health Care show the claimant's concentration was generally intact (Ex. 3F, pages 5, 7, 10, 13, 15, and 23-25; 8F, pages 3, 7 and 9). She had obsessions at times; however, her thought process was intact (Id.). At a consultative psychological examination conducted on May 31, 2018, the claimant was able to recite serial threes and fives in a forward manner and serial sevens up to 21 (Ex. 5F, page 3). Her thought content was appropriate and there was no evidence of hallucinations nor delusional processing (Id.). Based upon the record as a whole, I find the claimant has no more than a moderate limitation in concentrating, persisting or maintaining pace.(Id. at 22-23.) In formulating Plaintiff's RFC, the ALJ limited Plaintiff to light work with the following mental limitations:
The claimant retains the ability to perform simple, routine (reasoning level 1-2[)] tasks[] and can maintain concentration, persistence and pace in order to perform such tasks for at least two hours at a time and to complete an eight-hour workday without special supervision. She should have no required interaction with the general public and no more than occasional interaction with coworkers. She needs to work in a lower stress work environment, defined as one where she does not have to meet a rigid and flexible [sic] production schedule (for example, she should not be required to keep up with high-speed assembly line work or perform piecework),
make complex decisions at the workstation or adapt to frequent changes at the workstation.(Id. at 24.) To connect these limitations to his Step Three findings, the ALJ explained:
On May 31, 2018, consultative examiner, Dr. Whitley, opined the claimant was capable of understanding and following two and three step work tasks and using adequate judgment; although he noted she appeared vulnerable to decompensate under anything more than simple levels of change, stress, demands and pressure (Ex. 5F, page 4). Dr. Whitley also opined the claimant's ability to problem solve and deal with changes over an eight-hour workday would be moderately impaired (Id.). I find the foregoing opinion is generally persuasive, as it is generally consistent with the overall medical evidence of record, including the contemporaneous examination findings (i.e., fully oriented, mildly impaired memory, appropriate thought content and no evidence of hallucinations nor delusional processing) (Ex. 5F, page 3). I have included appropriate limitations in the residual functional capacity to address and fully accommodate each of those limitations.(Id. at 26-27.) The ALJ also stated that he found the State Agency review physicians' opinions persuasive to the extent they concluded that Plaintiff had moderate mental limitations. (Id. at 27.) He then moved on to the next step of his analysis. (Id.)
Because Plaintiff contests only the mental limitations in her RFC, the undersigned need not consider the physical limitations included in the RFC and limits this analysis accordingly. (See generally Dkt. No. 18; Dkt. No. 20.)
Plaintiff contends that the ALJ's explanation is insufficient because he does not address every limitation noted in the opinions that he deemed persuasive. (Dkt. No. 18 at 9-14.) Plaintiff further argues that the ALJ failed to explain his conclusion that Plaintiff can perform tasks for two-hour increments and failed to address Plaintiff's ability to stay on task for an 8-hour workday. (Dkt. No. 20 at 2-6.) The Commissioner argues that Plaintiff misstates the relevant opinions and that the ALJ appropriately accommodated all of the mental limitations supported by the record evidence. (Dkt. No. 19 at 12-20.) The undersigned agrees.
As the Commissioner notes, “Plaintiff recites all the categories where [Plaintiff's] psychological consultants noted that she was ‘moderately limited' as part of their assessment, but these notations were not their ‘actual mental residual functional capacity' finding[s].” (Id. at 17.) Rather, the State Agency review physicians ultimately opined that Plaintiff could understand and remember simple instructions; carry out simple instructions; perform simple, unskilled tasks for reasonable periods of time; maintain attention and concentration for two-hour periods; perform activities within a schedule; maintain attendance and sustain a routine without special supervision; manage stress; adjust to a task setting; and deal with normal or infrequent changes. (R. at 150; 171.) Dr. John C. Whitley, III, Plaintiff's psychological examiner, similarly concluded that Plaintiff is “capable of understanding and following simple 2 and 3-step work task[s];” has “adequate judgment;” “appears vulnerable to decompensate under anything more than simple levels of change, stress, demands, and pressure;” “can make basic and daily decisions;” “appears capable of organizing a work schedule;” and is “at least moderately impaired” in her “ability to problem solve and deal with changes over an 8-hour work day.” (Id. at 548.) As explained above, the ALJ specifically mentioned that he agreed with the moderate mental limitations outlined in these opinions and noted that he included corresponding limitations in Plaintiff's RFC. (Id. at 27.)
While the ALJ could have provided more detail about the mental limitations he included, the ALJ was not required to “specifically refer to every piece of evidence.” Reid, 769 F.3d at 865 (quoting Dyer, 395 F.3d at 1211 (per curiam)). The ALJ considered the Plaintiff's impairments, evaluated Plaintiff's subjective complaints and treatment records, and connected specific opinion evidence to the limitations that he ultimately included in Plaintiff's RFC. (R at 21-27.) The undersigned finds this thorough review of the evidence sufficient to build the requisite “logical bridge” and facilitate judicial review. Arakas, 983 F.3d at 99 (quoting Monroe, 826 F.3d at 189).
Further, unlike in Mascio, the ALJ included limitations related to Plaintiff's ability to stay on task. (R. at 24.) Indeed, the RFC described that Plaintiff could perform tasks “for at least two hours at a time” and that Plaintiff could maintain concentration, persistence and pace “to complete an 8-hour workday without special supervision.” (Id. at 24.) The ALJ also accounted for Plaintiff's mental impairments by limiting her to simple tasks, a lower stress work environment (defined as one where she does not have to meet a rigid production schedule), simple decisions, and infrequent changes. (Id.) It is well-settled that Mascio requires a case-by-case inquiry to determine whether an RFC adequately accounts for a claimant's limitations in concentration, persistence, and pace, and district courts within this Circuit have consistently found RFC determinations similar to the one at issue here sufficient to account for such limitations. See, e.g., Greene v. Berryhill, No. 2: 16-CV-2894-DCC-MGB, 2018 WL 3120644, at *3-5 (D.S.C. Jan. 30, 2018), adopted sub nom. Greene v. Comm'r of Soc. Sec., No. 2: 16-CV-2894-DCC, 2018 WL 1516853 (D.S.C. Mar. 28, 2018) (finding that ALJ adequately accounted for the plaintiff's moderate limitations in her concentration, persistence, or pace in her residual functional capacity by limiting her to “simple, routine, repetitive tasks not performed fast paced production environment and involving only simple work-related instructions and decisions and relatively few work place changes with no more than occasional interaction with co-workers or the general public”); Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (accounting for moderate limitations in concentration, persistence and pace by limiting claimant to simple tasks in a “low stress” setting, without any “fast-paced work”); Martini-Roth v. Colvin, No. 1:14-CV-4683-TLW-SVH, 2015 WL 12602443, at *26-27 (D.S.C. Nov. 23, 2015) (finding that ALJ adequately considered plaintiff's subjective reports of difficulty concentrating in limiting her to “unskilled work in a low-stress environment free of fast-pace production requirements, with few workplace changes, and only occasional interaction with the public”); Graham v. Saul, No. 1: 18-CV-403, 2019 WL 3767041, at *8 (M.D. N.C. Aug. 9, 2019), adopted, No. 1:18-CV-403, 2019 WL 5783543 (M.D. N.C. Sept. 3, 2019) (finding that ALJ properly accommodated plaintiff's limitations in concentration, persistence, and pace by prohibiting “fast paced production work”); Baker v. Colvin, No. 3: 15-CV-00637-HEH, 2016 WL 3581859, at *3 (E.D. Va. June 7, 2016), adopted, No. 3:15-CV-637-HEH, 2016 WL 3582071 (E.D. Va. June 28, 2016) (finding that RFC limiting an individual to work in “a non-production oriented environment” properly addressed an individual's ability to stay on task).
Contrary to Plaintiff's contention that nothing in the record supports the ALJ's two-hour delineation, State Agency review physician Cal Vanderplate, Ph.D., ABPP, opined that Plaintiff could “maintain attention and concentration for two-hour periods.” (R. at 171.) Further, Plaintiff seems to assert that Dr. Whitley opined that Plaintiff was limited in her ability to stay on task for an 8-hour workday. (Dkt. No. 20 at 7.) However, Dr. Whitley actually opined that Plaintiff was limited in her ability to “problem solve and deal with changes” throughout an 8-hour workday, and these limitations are clearly accounted for in Plaintiff's RFC. (R. at 24; 548.)
B. Plaintiff's Ability to Interact with Others
Plaintiff next argues that the ALJ erred by omitting a limitation relating to Plaintiff's ability to interact with supervisors. (Dkt. No. 18 at 14.) In response, the Commissioner argues that “[t]he RFC does not include a limitation regarding interacting with supervisors because the ALJ reasonably found that limitation was not supported by the evidence.” (Dkt. No. 19 at 19.)
To assess a claimant's ability to interact with others, an ALJ must consider the claimant's “abilities to relate to and work with supervisors, co-workers, and the public.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(E)(2). When considering such abilities, the ALJ explained:
In interacting with others, the claimant has no more than a moderate limitation. The treatment notes from Family Health Care show the claimant's behavior was generally cooperative at all visits. (Ex. 3F, pages 5, 7, 10, 13, 15 and 23-25; 8F, pages 3, 7, and 9). At a consultative psychological examination conducted on May 31, 2018, the claimant was cooperative and forthright (Ex. 5F, page 3). Additionally, the claimant interacted appropriately with the court and the hearing office personnel throughout the administrative hearing. Therefore, I find the claimant has no more than a moderate limitation in interacting with others.(R. at 22.)
In forming Plaintiff's RFC, the ALJ accommodated Plaintiff's social limitations by stating: “[s]he should have no required interaction with the general public and no more than occasional interaction with coworkers.” (Id. at 24.) In the narrative portion of his RFC determination, the ALJ explained: “physician assistant, Keely Gerrald opined the claimant had a poor ability to relate to others (Ex. 4F). I note the claimant's ability to relate to others was assessed herein as a moderate limitation.” (Id. at 26.) He then noted that “the record showed the claimant's behavior was generally cooperative at all treating source visits and at the consultative examination (Ex. 3F, pages 5, 7, 10, 13, 15 and 23-25; 5F, page 3; 8F, pages 3, 7 and 9.).” (Id.) The ALJ did not address Plaintiff's ability to interact with supervisors anywhere in his decision. (Id. at 18-29.) Plaintiff contends that this constitutes reversible error. (Dkt. No. 18 at 14-16.)
In support of her argument that the ALJ erred by failing to address Plaintiff's ability to interact with supervisors, she cites to a single page from a State Agency review physician's opinion. (Id.; Dkt. No. 20 at 10; R. at 170.) The relevant portion of this page rates Plaintiff's “ability to accept instructions and respond appropriately to criticism from supervisors” as “moderately limited.” (R. at 170.) Plaintiff asserts that a limitation specific to supervisors should have been included in her RFC because the ALJ found this State Agency review physician's opinion persuasive. (Dkt. No. 18 at 14-16; Dkt. No. 20 at 10.) However, Plaintiff's assertion fails to consider the opinion as a whole. (R. at 171.) As the Commissioner correctly notes, the following page of the referenced opinion makes an overall conclusion that “[c]laimant can relate adequately [with] co-workers, and supervisors.” (Id.) Thus, the ALJ's failure to include a limitation specific to Plaintiff's interaction with supervisors is not inconsistent with his conclusion that the cited opinion is persuasive.
Plaintiff points the Court to no other evidence indicating that she is limited in her ability to interact with supervisors. (See generally Dkt. No. 18; Dkt. No. 20.) Given the lack of record evidence warranting further limitations, it seems clear that this limitation was not included in Plaintiff's RFC because it was unsupported in the record. Myers v. Astrue, No. 2:10-CV-69, 2010 WL 6028058, at *25 (N.D. W.Va. Dec. 30, 2010), adopted, 2011 WL 864352 (N.D. W.Va. Mar. 10, 2011), aff'd sub nom. Myers v. Comm'r of Soc. Sec. Admin., 456 Fed.Appx. 230 (4th Cir. 2011) (“[T]he ALJ is not required to include limitations not supported by the record.”).
II. ALJ's Failure to Resolve Apparent Conflict
As part of the ALJ's duty at Step Five of the sequential process, he must resolve any apparent conflicts between a vocational expert's testimony and the DOT. See Pearson, 810 F.3d at 208-11; SSR 00-04p, 2000 WL 1898704. Here, Plaintiff asserts that the ALJ failed to resolve the apparent conflict between the vocational expert's testimony regarding the jobs Plaintiff can perform and the information in the DOT. (Dkt. No. 18 at 16-20.) At the October 9, 2019 hearing, the vocational expert testified that an individual with Plaintiff's age, education, work experience, and RFC limitations would be able to perform the following jobs: electronics worker (DOT 726.687-010), laundry folder (DOT 369.687-018), and inspector and hand packager (DOT 559.687-074). (R. at 82.) Plaintiff asserts that “all three jobs identified by the vocational expert require a Reasoning level of ‘2'” and that “an apparent conflict exists between a claimant who is limited to performing ‘simple 2- and 3-step tasks' and job occupations . . . that require a Reasoning level of ‘2.'” (Id. at 18-19.) Plaintiff argues that the ALJ therefore “violated Social Security law and case law in the Fourth Circuit.” (Id. at 20.) The Commissioner counters that “[t]here is plainly no conflict here.” (Dkt. No. 19 at 21). The undersigned agrees.
Plaintiff also contends that the ALJ failed to ask the vocational expert whether her testimony was consistent with the DOT. (Dkt. No. 18 at 16.) However, such error is harmless unless an apparent conflict exists. Walls v. Astrue, limitation to “short” instructions, and “‘[s]hort' is inconsistent with ‘detailed' because detail and No. 2:09-CV-01006, 2010 WL 5672742, at *4 (S.D. W.Va. Dec. 20, 2010), adopted, 2011 WL 322645 (S.D. W.Va. Jan. 31, 2011) (noting that courts frequently consider an ALJ's failure to ask about a conflict harmless if none exists). Because the undersigned finds no apparent conflict between the vocational expert's testimony and the DOT, the undersigned declines to address this additional argument.
In support of her argument, Plaintiff cites Thomas v. Berryhill, 916 F.3d 307, 313-14 (4th Cir. 2019), a published opinion in which the Fourth Circuit held that an apparent conflict exists “between a limitation to ‘short, simple instructions' . . . and a need to carry out “detailed but uninvolved . . . instructions' (as found in jobs requiring Level 2 Reasoning).'” The Thomas court clarified the ALJ's role in resolving such an “apparent conflict, ” stating:
[a]n ALJ cannot rely unquestioningly on a VE's testimony. Rather, an ALJ must ensure that any “apparent” conflicts between the Dictionary and the VE's testimony are reasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must ask the VE whether his or her testimony conflicts with the DOT. If the answer is “yes, ” the ALJ “must elicit a reasonable explanation for the conflict before relying on” the testimony. Id. But even if the VE answers “no, ” the ALJ has an affirmative “duty to make an independent identification of apparent conflicts.” Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in which a VE's testimony “seems to, but does not necessarily, ” conflict with the “express language” of the DOT-even if the conflict is not “obvious.” Id. at 209.Id. at 313.
Here, the question is whether a limitation to “simple and routine (reasoning level 1-2[)] tasks” in a “lower stress work environment, defined as one where she does not have to . . . adapt to frequent changes” presents an apparent conflict similar to the one found in Thomas. The Fourth Circuit has recently held that there is not an apparent conflict between a limitation to “simple, routine repetitive tasks of unskilled work” and a reasoning level of two. See Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019) (“In finding no apparent conflict between ‘simple, routine, repetitive' and Level 2 reasoning, we join every other circuit to consider the issue.”). In Lawrence v. Saul, the Fourth Circuit explained that “the key difference” is that, in Thomas, the RFC included a length are highly correlated.” Id. at 143. The court found that the limitation to “simple, routine repetitive tasks” was not inconsistent with “Level 2's notions of ‘detailed but uninvolved . . . instructions' and tasks with ‘a few [ ] variables.'” Id. Likewise, the court stated that “there is no conflict between ‘simple' and ‘uninvolved' instructions, as both connote instructions that ‘are not complicated or intricate.'” Id. (quoting Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010)); see also King v. Saul, No. 19-1556, 2019 WL 6713598, at *1 (4th Cir. Dec. 10, 2019) (finding “no apparent conflict between a limitation to performing only simple routine repetitive tasks and a position requiring the ability to understand and carry out detailed, but uninvolved, instructions”). In light of Lawrence, Plaintiff's argument of an unresolved conflict lacks merit.
III. ALJ's Finding that Jobs Exist in Significant No. in the National Economy
Lastly, Plaintiff argues that the ALJ erred by finding that the jobs identified by the vocational expert existed in significant No. in the national economy. (Dkt. No. 18 at 20.) More specifically, Plaintiff contends that the ALJ erred in relying on the vocational expert's testimony because the vocational expert “failed to give the source of her job data” and “even if the job data was taken from the DOT, the three jobs identified by the VE have not been updated in the DOT in more than 30 years.” (Id. at 23.) Plaintiff further contends that the vocational expert “failed to explain how she calculated or derived the job No. for the specific DOT codes.” (Id.) By contrast, the Commissioner argues that “[t]he ALJ had no reason to question to vocational expert's testimony as being unreliable.” (Dkt. No. 19 at 25.) The Commissioner continues:
After being told to be prepared to offer testimony about the No. of jobs available in the national economy (see Tr. 260), the vocational expert provided specific job No. estimates for specific occupations (Tr. 82). Nothing in the record contradicts this testimony. Plaintiff now complains that the vocational expert did not identify the specific sources for the job No. estimated or explain her methodology, and now argues that the job data testimony is unreliable, but she made no such complaints or arguments before the ALJ relied on the expert's testimony. These circumstances present no error.(Id. at 25.)
At Step Five of the ALJ's sequential analysis, the burden shifts to the ALJ to determine whether, considering a claimant's age, education, work experience, and RFC, the claimant can perform work existing in significant No. in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). The ALJ may carry this burden by relying on the testimony of a vocational expert. 20 C.F.R. § 404.1566(e); Smith v. Califano, 592 F.2d 1235, 1236 (4th Cir. 1979) (“Ordinarily, the testimony of a vocational expert is required in order to support a finding that alternate jobs which the claimant can do exist in the nation's economy.”). In fact, “a vocational expert's testimony may count as substantial evidence even when unaccompanied by supporting data.” Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019).
As noted, Plaintiff argues that the ALJ should not have relied on the vocational expert's testimony to determine that jobs that the Plaintiff could perform existed in significant No. in the national economy because the vocational expert's testimony was unreliable. (Dkt. No. 18 at 20.) However, the undersigned agrees with the Commissioner that the record before the Court is void of evidence to support that contention. (Dkt. No. 19 at 25.) Indeed, the record reflects that the vocational expert had over fifteen years of relevant experience, as well as multiple degrees and related certifications. (R. at 380-81.) Considering these credentials, the ALJ could have reasonably relied on the vocational expert's testimony. (Id.) Further, Plaintiff's attorney did not challenge the vocational expert's job data or credentials at the October 9, 2019 administrative hearing. (Id. at 77-84.) As such, the undersigned cannot conclude that the ALJ's reliance on the vocational expert's testimony is reversible error. See Sylvia M. v. Saul, No. 3: 19-CV-428 (DJN), 2020 WL 5047066, at *6 (E.D. Va. Aug. 26, 2020), aff'd sub nom. McCall v. Saul, 844 Fed.Appx. 680 (4th Cir. 2021) (“Because Plaintiff, represented by counsel, did not challenge the VE's data sources during her hearing before the ALJ, Plaintiff has waived her right to raise that challenge here.”); Bennett v. Saul, 2019 WL 3729015, at *6 (E.D. Va. July 22, 2019) (quoting Revere v. Berryhill, 2019 WL 99303, at *3 (E.D. Va. Jan. 3, 2019) (internal citations omitted)) (explaining that “‘a plaintiff must raise [objections to a VE's testimony] during the [ALJ] hearing or risk waiving [them]'”).
As support, Plaintiff relies on cases from other jurisdictions. (Dkt. No. 18 at 21-24.) However, those cases are distinguishable and are not binding on this Court. (Id.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).