Opinion
5:22-CV-164-D
02-15-2024
BRIAN KEITH JOHNSON, Plaintiff, v. MARTIN O'MALLEY Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
Plaintiff Brian Keith Johnson (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and disability insurance benefits (“DIB”). This matter is before the court on Plaintiff's motion for judgment on the pleadings [DE-24] and memoranda in support thereof [DE-25]. Defendant filed a responsive brief in opposition [DE-27]. The time for filing responsive briefs has expired and this case is ripe for adjudication. This matter was referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the parties' filings, it is recommended that Plaintiff's motion for judgment on the pleadings [DE-24] be denied, Defendant's brief [DE-27] be allowed, and the final decision of the Commissioner be upheld.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on December 2, 2019, alleging disability beginning July 10, 2019. Transcript of Proceedings (“Tr.”) 94, 242-43. His claim was denied initially. Tr. 82-94, 112-16. Plaintiff filed a request for reconsideration (Tr. 117-18), and was denied upon reconsideration on August 28, 2020 (Tr. 94-108, 122-25). On
August 31, 2020, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 126-27. A hearing before the ALJ was held on January 27, 2021, at which Plaintiff, represented by counsel, appeared and testified. Tr. 51-81. Vocational Expert Julie Harvey (“VE Harvey”) also appeared at this hearing, but did not testify and was excused by the ALJ prior to the conclusion of the hearing. Tr. 57; 71. Following the hearing, vocational interrogatories were sent to VE Harvey and she provided her written response on February 3, 2021. Tr. 341-45. A supplemental hearing before the same ALJ was held on June 22, 2021, at which Plaintiff, represented by counsel, and VE Harvey appeared and testified. Tr. 35-50. On September 1, 2021, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 12-34.
On September 29, 2021, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 240-41. On March 4, 2022, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 28-29. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since July 10, 2019, the alleged onset date. Tr. 17.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: chronic inflammatory demyelinating polyneuropathy (CIDP); hypertension; hypothyroidism; chronic obstructive pulmonary disease (COPD); degenerative disc disease; and epilepsy. Tr. 18. The ALJ also found Plaintiff had the non-severe impairments of hyperlipidemia and anxiety. Tr. 18. However, at step three, the ALJ concluded these impairments, both physical and mental, were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; mild limitation in concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing oneself. Tr. 18.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform less than full range of sedentary work, in that:
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
he can occasionally lift and/or carry 10 pounds, as well as stand/walk for two hour [sic] in an eight-hour workday and sit for about six hours in an eight-hour workday. He cannot operate foot controls with his left lower extremity. The claimant should avoid concentrated exposure to pulmonary irritants such as fumes, odors, dusts, gases, and poorly ventilated areas. He should also avoid concentrated exposure to extreme cold or extreme heat; vibrations; and wetness. The claimant can occasionally balance; stoop; kneel; and crouch, but never crawl. He can occasionally climb ramps/stairs, but never climb ladders, ropes, or scaffolds. The claimant should avoid concentrated exposure to unprotected heights; moving machinery; and hazardous machinery. He can frequently handle and finger with his left upper extremity. The claimant requires the use of a handheld assistive device for periods of ambulation and a 10-minute break every two hours.Tr. 20.
In making this assessment, the ALJ found Plaintiff's statements about his limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 26.
At step four, citing to VE Harvey's interrogatory responses, the ALJ determined that Plaintiff has past relevant work as a (i) shipping and receiving clerk (Dictionary of Occupational Titles (“DOT”)# 222.387-050), classified as a skilled job, with a specific vocational preparation (SVP) code of 5, requiring medium exertion in the DOT; and (ii) material handler (DOT# 929.687 030), classified as semi-skilled job, requiring heavy exertion in the DOT. Tr. 27. The ALJ concluded, however, that Plaintiff did not have the RFC to perform the requirements of his past relevant work as actually or generally performed. Tr. 27. Citing to the information provided by VE Harvey, the ALJ found that Plaintiff acquired the work skills of “stock checking and inventory skills” from his past relevant work as a shipping and receiving clerk. Tr. 27-28.
At step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that Plaintiff “acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy.” Tr. 28. Specifically, the ALJ cited the VE's interrogatory response that such occupations included the representative occupations of “industrial order clerk ([DOT#] 221.367-022) (22,200 in US)” and “procurement clerk ([DOT#] 249.367-066) (57,650 in US).” Tr. 28.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ erred at step five of the sequential evaluation process in finding that Plaintiff “had acquired transferable skills from his past relevant work that would allow him to perform jobs existing in the national economy notwithstanding his RFC for less than a full range of sedentary work and his age (over 50).” Pl.'s Mem. [DE-25] at 5.
Except for citations to the Transcript of Proceedings (“Tr.”), all citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
Specifically, Plaintiff challenges the ALJ's step five finding that the skills of “stock checking and inventory skills” that Plaintiff allegedly acquired from his past relevant work as a shipping and receiving clerk (DOT# 222.387-050) were transferable to the occupations of industrial order clerk (DOT# 221.367-022) and procurement clerk (DOT# 249.367-066). Tr. 27 28. Plaintiff alleges two primary grounds for error: (1) that the ALJ and the VE offered insufficient explanation in support of Plaintiff's alleged acquisition of transferable skills; and (2) that the ALJ's analysis of the transferrable skills was flawed. Pl.'s Mem. [DE-25] at 8.
The Commissioner maintains that substantial evidence supports the ALJ's conclusion that Plaintiff was not disabled and that “Plaintiff's argument is simply a request that this court reweigh the evidence.” Def.'s Brief [DE-27] at 6.
VI. DISCUSSION
A. Insufficient explanation of Plaintiff's acquisition of transferable skills
Plaintiff alleges that the ALJ erred “by simply parroting the VE's testimony that [Plaintiff] acquired the ‘skills' of ‘stock checking and inventory skills'” and “failed to articulate in her decision how [Plaintiff] acquired the supposedly transferable skills, or how the identified occupations utilize and relate to the skills he supposedly acquired in his past relevant work.” Pl.'s Mem. [DE-25] at 8-9. Plaintiff further argues that the only evidence supporting this finding was “offered via response to written interrogatory rather than oral testimony.” Pl.'s Mem. [DE-25] at 9. Plaintiff does not cite to any case law in support of his arguments.
As noted above, at the fifth step of the sequential evaluation process, the burden shifts to the ALJ to show that other work exists in the national economy, which the claimant can perform. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). “The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a [VE] to testify.” Aistrop v. Barnhart, 36 Fed.Appx. 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566). The Medical-Vocational Rules, also referred to as the Medical-Vocational Guidelines or “Grids,” are set out in 20 C.F.R. pt. 404, subpt. P, app. 2. This set of rules specifies a conclusion as to whether or not a claimant is disabled. See generally Medical-Vocational Rule 7 200.00(a); Soc. Sec. Ruling 83-10, 1983 WL 31251. The Grids are grouped by RFC for the various strength or exertional levels under the Regulations, namely - sedentary, light, medium, and heavy or very heavy work. Within each such RFC grouping, the criteria applied are the vocational factors, namely - age, education, and previous work experience (e.g., none, unskilled, semiskilled, skilled, transferability of skills).
The Regulations establish three chronological age categories: (1) “[y]ounger person . . . (under age 50)”; (2) “[p]erson closely approaching advanced age . . . (age 50-54)”; (3) “[p]erson of advanced age . . . (age 55 or older).” 20 C.F.R. §§ 404.1563(c)-(e). The age categories are applied when the ALJ makes a finding about a claimant's ability to do other work, and are considered as a vocational factor. See 20 C.F.R. §§ 404.1563(a)-(b). “In determining the extent to which age affects a person's ability to adjust to other work, [an ALJ is to] consider advancing age to be an increasingly limiting factor in the person's ability to make such an adjustment ....” 20 C.F.R. § 404.1563(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of producing evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). “When a claimant . . . suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant.” Gregory v. Kijakazi, No. 5:20-CV-00149-D, 2021 WL 3415183, at *3 (E.D. N.C. July 12, 2021) (citing Walker v. Bowen, 889 F.2d 47, 49 (1989); Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F.Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h)), report and recommendation adopted, No. 5:20-CV-149-D, 2021 WL 3412553 (E.D. N.C. Aug. 4, 2021). “In such circumstances, [as here,] the ALJ must consider all relevant facts, using the grid tables to provide framework and guidance to the ALJ.” Id. (citing 20 C.F.R. § 404.1569a; 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2)).
According to the Grids, an individual closely approaching advanced age, who is a high school graduate or more and is limited to the full range of sedentary work, but had skilled or semiskilled previous work experience and who has transferable skills is not disabled. 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 201.15. With respect to individuals who are unable to perform the full range of sedentary work, the introduction to the Grides notes that the ALJ will perform:
an adjudicative assessment of factors such as the type and extent of the individual's limitations or restrictions and the extent of the erosion of the occupational base[, as well as] an individualized determination that considers the impact of the limitations or restrictions on . . . the total number of jobs to which the individual may be able to adjust, considering his or her age, education and work experience, including any transferable skills or education providing for direct entry into skilled work.Id. at Rule 200.00(h)(3) (emphasis added).
The Social Security Administration (“SSA”) defines a “skill” as “knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn).” Social Security Ruling 82-41, Titles II and XVI: Work Skills and Their Transferability as Intended by the Expanded Vocational Factors Regulations Effective February 26, 1979, 1982 WL 31389, at *2 (1982) (“S.S.R. 82-41”). The Regulations provide in relevant part that:
[The SSA] consider[s] [a claimant] to have skills that can be used in other jobs, when the skilled or semi-skilled work activities [claimant] did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other
jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs. ...
Transferability is most probable and meaningful among jobs in which-
(i) The same or a lesser degree of skill is required;
(ii) The same or similar tools and machines are used; and
(iii) The same or similar raw materials, products, processes, or services are involved.
...
There are degrees of transferability of skills ranging from very close similarities to remote and incidental similarities among jobs. A complete similarity of all three factors is not necessary for transferability. However, when skills are so specialized or have been acquired in such an isolated vocational setting (like many jobs in mining, agriculture, or fishing) that they are not readily usable in other industries, jobs, and work settings, [the Commissioner] consider[s] that they are not transferable.20 C.F.R. § 404.1568(d)(1)-(3).
Here, the ALJ found that Plaintiff could work at less than the full range of the sedentary exertional level, and determined that Plaintiff could not perform his past relevant skilled and semiskilled work. Tr. 20, 27.
The ALJ also found that Plaintiff “was 48 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date[,]” but “subsequently changed age categories and [was] an individual closely approaching advanced age [50-54] (20 [C.F.R. §] 404.1563) [at the time the decision was issued].” Tr. 27. The ALJ appropriately determined Plaintiff to be a person closely approaching advanced age, pursuant to 20 C.F.R. § 404.1563(d), and therefore the Regulations provide that the ALJ “will consider that [a claimant's] age along with a severe impairment(s) and limited work experience may seriously affect [the] ability to adjust to other work.” As discussed in greater detail below, contrary to Plaintiff's argument (Pl.'s Mem. [DE-25] at 8), the ALJ was not required to apply S.S.R. 82-41(4)(c) as this provision only applies to individuals who are age 55 or over at the time of the ALJ decision, which Plaintiff was not. See S.S.R. 82-41(4)(c) (discussing transferability of skills for individuals age 55 or over).
Transferability of skills is an issue here because the ALJ's findings (Tr. 19, 27) show that Plaintiff's “impairment[s], though severe, [do] not meet or equal the criteria in the Listing of Impairments in Appendix 1 of the regulations but [do] prevent the performance of past relevant [skilled or semiskilled] work.” S.S.R. 82-41.
In addition to the testimony Plaintiff's provided about his work background (Tr. 66-71), Plaintiff's work background form notes that as an inventory assistant II from March 2008 to September 2020, he performed duties such as ordering supplies for all patients and office supplies; loading and unloading supply trucks; completing paperwork for all shipping and receiving orders; delivering mail to different offices on campus twice a day; and keeping the warehouse maintained. Tr. 326, 337. Additionally, as a stock clerk from 1991 to 2008, he shipped machinery; handled materials; built skids; used overhead lift/crane, forklifts, and swing reach forklift. Tr. 326, 337.
Based on the VE's interrogatory response and testimony, the ALJ noted Plaintiff's had acquired transferable skills of “stock checking and inventory skills” from his past relevant work. Tr. 27. The ALJ further relied on the VE's testimony in determining that these skills were transferable to the occupations of “industrial order clerk ([DOT#] 221.367-022)” and “procurement clerk ([DOT#] 249.367-066)”. Tr. 27-28. The ALJ was entitled to rely on the VE's testimony when making these findings. See Dameron v. Colvin, No. 1:09-CV-425, 2013 WL 1909870, at *4 (M.D. N.C. May 8, 2013), aff'd, 559 Fed.Appx. 245 (4th Cir. 2014) (“The ALJ properly relied on the vocational expert's testimony, and substantial evidence supports the finding that [Plaintiff] acquired skills that transfer to other work that exists in significant numbers in the national economy.”). Plaintiff does not cite any authority that prevents a VE from providing testimony by written interrogatory. Cf. Hart v. Berryhill, No. 5:18-CV-208-D, 2019 WL 1759741, at *5 (E.D. N.C. Mar. 26, 2019), report and recommendation adopted, No. 5:18-CV-208-D, 2019 WL 1748511 (E.D. N.C. Apr. 18, 2019) (“[R]eceiving testimony from a VE through a series of post-hearing written interrogatories is a procedure acceptable and appropriate within the context of the Commissioner's Rules and Regulations.”) (alterations in original) (quoting Short v. Colvin, No. 1:12-CV-555, 2015 WL 3485061, at *5 (M.D. N.C. June 2, 2015)). In this instance, however, the record also includes hearing testimony from the VE (Tr. 35-50), and not solely a written interrogatory response (Tr. 341-45). Plaintiff had, and exercised, the opportunity to have a supplemental hearing, at which Plaintiff's counsel questioned the VE about the written interrogatory response and the findings therein. Tr. 35-50. As discussed further below, the undersigned finds Plaintiff's critiques of the ALJ's analysis of the transferability of skills from Plaintiff's former employment to be unavailing, as the ALJ's decision was supported by substantial evidence.
In sum, the ALJ applied the correct legal standards and adequately explained her findings to allow for judicial review. Accordingly, the undersigned RECOMMENDS that remand is not required on this issue.
B. Analysis of the transferability of skills
Plaintiff contends that “[e]ven a cursory comparison” of the job descriptions for industrial order clerk (DOT# 221.367-022) and procurement clerk (DOT# 249.367-066), the two occupations identified by the VE as representative of those which could be performed by an individual of the same age, education, past relevant work experience, and RFC as Plaintiff with 12 the transferrable skills acquired from past relevant work, “reveals many duties [in such occupations] that are not included in [Plaintiff's] past relevant work [of shipping and receiving clerk (“DOT# 222.387-050)]. Pl.'s Mem. [DE-25] at 8. Plaintiff further claims that “[t]he VE did not resolve this discrepancy in her testimony, nor did the ALJ resolve it in her decision.” Id. Plaintiff contends that “in essence” the VE testified that Plaintiff's former work as a shipping and receiving clerk and the VE's suggested occupations of industrial order clerk and procurement clerk are “virtually identical.” Id. at 6. Plaintiff's memorandum then provides the DOT definitions for: (i) shipping and receiving clerk (“DOT# 222.387-050), his past relevant work at issue; and (ii) industrial order clerk (DOT# 221.367-022) and procurement clerk (DOT# 249.367-066). The undersigned finds Plaintiff's argument here unavailing.
Plaintiff correctly points out that “[t]he starting point for understanding this principle of transferable skills in this context is [S.S.R. 82-41].” Pl.'s Mem. [DE-25] at 8. Plaintiff quotes S.S.R. 82-41(4)(c), which provides that “ . . . [i]n order to establish transferability of skills . . ., the semiskilled or skilled job duties of [Plaintiff's] past work must be so closely related to other jobs which they can perform that they could be expected to perform these other identified jobs at a high degree of proficiency with a minimal amount of job orientation.” Id. (quoting S.S.R. 82-41 (omissions in original)). Later in his memorandum, Plaintiff appears to revisit this point noting that the DOT and its companion publication, the Selected Characteristics of Occupations (SCO) provide that “a person can usually learn to do [sic] perform jobs with an SVP of 4 in six months” and that “the record is unclear whether the VE's testimony relates to retraining or adjustment time that the skilled claimant would require, or the training time required for a new person to learn to do the job.” Id. at 9.
S.S.R. 82-41(4)(c), to which Plaintiff cites, relates to individuals who are age 55 or over. S.S.R. 82-41(4)(c). Plaintiff was 50 years old at the time of the ALJ decision. Tr. 82 (noting Plaintiff's date of birth as March 11, 1971); Tr. 29 (ALJ hearing decision dated September 1, 2021); see also Tr. 27 (ALJ noting that Plaintiff was “an individual closely approaching advanced age” at the time the decision was issued.”) (emphasis added).
The undersigned is unable to follow Plaintiff's line of reasoning that “when the claimant is of advanced age on the decision date, the limitation to a range of sedentary work would require the claimant to have . . .” (Pl.'s Mem. [DE-25] at 8, as Plaintiff was not of advanced age on the ALJ's decision date.
As noted above, S.S.R. 82-41(4)(a), which discusses transferability for other ages, including closely approaching advanced age, notes that:
transferability . . . is most probable and meaningful among jobs in which: (1) the same or a lesser degree of skill is required . . . (2) the same or similar tools and machines are used; and (3) the same or similar raw materials, products, processes or services are involved.
S.S.R. 82-41(4)(a) (emphasis added).
The ruling expressly specifies that “[a] complete similarity of all these factors is not necessary . . . [with] degrees of transferability ranging from very close similarities to remote and incidental similarities among job.” Id.
Contrary to Plaintiff's contention, the VE never testified that the job of shipping and receiving clerk was “virtually identical” to the occupations of industrial order clerk and procurement clerk. See Tr. 45 (Plaintiff's counsel questioning the VE: “So, given that the past work that we're using as a point of reference is an SVP 5 job, Shipping and Receiving Clerk, and these two positions that you've identified are SVP 4 jobs, obviously they're not the exact same job, correct?”, VE responding: “Right, they're not the same.”).
However, the rule expressly does not require that the jobs be “virtually identical” or that all skills transfer. S.S.R. 82-41(4)(a); cf. also Tr. 46 (Plaintiff's counsel questioning the VE: “from being a Shipping and Receiving Clerk to being an Industrial Order Clerk, are they going to be able to learn those different skills without any additional training?”, VE responding: “Yes. The skills that transfer is [sic] stock checking, and that -- those are direct transferable skills from the prior work.”).
Contrary to the situation in Pyles v. Bowen, here, the VE identified specific skills that were transferable between the past relevant work and the representative occupations. 849 F.2d 846, 848 (4th Cir. 1988) (“The Secretary must show that specific skills actually acquired in the former are transferable to the latter.”) (citing Winn v. Schweiker, 711 F.2d 946, 948 (10th Cir. 1983)). At the hearing, when discussing with Plaintiff's counsel the transferable skills that the VE had provided in his interrogatory, the VE testified as follows:
Counsel: Could you identify for the record what you believe the transferable skills are that transfer from the prior work -- and I believe in this case the prior work that we're talking about would be the Shipping and Receiving Clerk, correct? Because that's the SVP 5 job you -- SVP 5 job.
VE: Yes, the Shipping and Receiving -
Counsel: Okay.
VE: -- Clerk would be the skills that would transfer would obvious -- well,
would be, you know, from that position, and would be like stock checking and inventory; like skills related to those areas that would transfer to those two. ...
VE: Industrial Order Clerk is a person who verifies completion of industrial orders, compares the order with the contract to ascertain that the product meets specifications, communicates with customer and delivery personnel. May route products to different, you know, facilities, that kind of thing.
VE: [Procurement Clerk] is a person who compiles information and records to prepare for purchase orders and procurement of materials. Let's see. Searches inventory records or warehouse to determine if material is on hand. Types or writes orders or bids. Writes or types purchase orders and sends copy to supplier. Compiles records of items purchased. That's a general summary.Tr. 43-45.
Accordingly, “stock checking and inventory” represent “processes” or “services,” cf. S.S.R. 82-41(4)(a)(3), that the VE identified, supported by the DOT, as also being performed by an industrial order clerk, (cf., e.g., “verify[ing] completion of industrial orders [and] compar[ing] the order with the contract to ascertain that the product meets specifications”) and by a procurement clerk (cf., e.g., “compil[ing] information and records to prepare for purchase orders and procurement of materials . . . [c]ompil[ing] records of items purchased.”) Id.
The DOT job description for shipping and receiving clerk provides further detail on the skills that the VE appears to summarize as “stock checking,” namely the ability to “[c]ompare[] identifying information and count[], weigh[], or measure[] items of incoming and outgoing shipments to verify information against bills of lading, invoices, orders, or other records.” Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) # 222.387-050.
The DOT job description for shipping and receiving clerk provides further detail on the skills that the VE appears to summarize as “inventory,” namely “[v]erif[ying] and keep[ing] records on incoming and outgoing shipments” and “[m]aintain[ing] inventory of shipping materials and supplies.” Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) # 222.387-050.
While, as noted above, the ALJ was required to consider the limitations represented by Plaintiff's age, as an individual approaching advancing age under 20 C.F.R. § 404.1563(d), as well as the appropriate degree of transferability under S.S.R. 82-41(4)(a), the ALJ was entitled to exercise her judgment on such matters, so long as the court can determine that her decision applied the correct legal standard and was supported by substantial evidence. Mastro, 270 F.3d at 176 (“In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].”) (quoting Craig, 76 F.3d at 589, superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). The undersigned finds that the ALJ met this standard.
Plaintiff's argument relies on a sub-section of S.S.R. 82-41 that applies to an age group that did not include Plaintiff at the time of the ALJ's decision. See Pl.'s Mem. [DE-25] at 8 (citing S.S.R. 82-41(4)(c)). The VE cited to 26 years of professional experience and specific vocational software to support of her analysis of the transferability of skills discussed above. Tr. 44. The ALJ cited to the VE's findings in her decision (Tr. 27-28) and was entitled to rely of this experience. See Dameron, 2013 WL 1909870, at *4 (“The ALJ properly relied on the vocational expert's testimony, and substantial evidence supports the finding that [Plaintiff] acquired skills that transfer to other work that exists in significant numbers in the national economy.”); cf. also Harris v. Astrue, 646 F.Supp.2d 979, 997-998 (N.D.Ill. 2009) (emphasis added) (“The ALJ is not required to describe how these skills transfer to the representative occupations named by the vocational expert, nor must the expert or the ALJ parse out which skills [Plaintiff] gleaned from each of his previous jobs.”). Accordingly, the undersigned finds that the ALJ's decision was supported by substantial evidence and RECOMMENDS that remand is not required.
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Plaintiff's motion for judgment on the pleadings [DE-24] be DENIED, Defendant's brief [DE-27] be ALLOWED, and the final decision of the Commissioner be UPHELD.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 29, 2024 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by the earlier of 14 days of the filing of the objections or March 7, 2024.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).