Opinion
5:20-CV-378-FL
03-02-2022
KIMBERLY SNOW, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-22, -26] pursuant to Fed.R.Civ.P. 12(c). This action was filed by Kevin Snow, the original plaintiff in this case, 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”). After Mr. Snow passed away on February 1, 2021, his wife, Kimberly Snow (“Plaintiff”), was substituted as the plaintiff in this matter. See [DE-19, -21]. Both parties submitted memoranda in support of their respective motions. [DE-23, -27]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were 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 motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be upheld.
For purposes of clarity, in this memorandum and recommendation all discussions of the underlying application for benefits and the associated administrative proceedings and filings will refer to the original plaintiff, Kevin Snow, as “Kevin Snow” or “Mr. Snow.”
I. STATEMENT OF THE CASE
Mr. Snow protectively filed an application for a period of disability and DIB on March 7, 2016, alleging disability beginning February 24, 2016. Transcript of Proceedings (“Tr.”) 13, 242-43. His claim was denied initially. Tr. 115. Mr. Snow filed a request for reconsideration (Tr. 135) and was denied upon reconsideration on July 13, 2016 (Tr. 136-40). On July 18, 2016, Mr. Snow requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 141. A hearing before the ALJ was held on June 13, 2018, at which Mr. Snow, represented by counsel, appeared and testified. Tr. 54-85. A vocational expert (“VE”) was present, but did not testify. Id. At the hearing, the ALJ ordered a physical consultative examination and, if needed, a supplemental hearing. Tr. 82-85. On February 4, 2019, a supplemental hearing was held before the same ALJ, at which Mr. Snow, represented by counsel, and a VE appeared and testified. Tr. 27-53. On February 25, 2019, the ALJ issued a decision denying Mr. Snow's request for benefits. Tr. 21.
On April 1, 2019, Mr. Snow requested a review of the ALJ's decision by the Appeals Council. Tr. 238-41. On May 29, 2020, the Appeals Council denied Mr. Snow's request for review. Tr. 1-5. Mr. Snow 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 Kevin Snow “not disabled” as defined in the Act. Tr. 21. At step one, the ALJ determined Mr. Snow had not engaged in substantial gainful employment since February 24, 2016, the alleged onset date. Tr. 15.
Next, at step two, the ALJ determined Mr. Snow had the following severe impairments: diabetes mellitus; peripheral neuropathy; chronic infections of the skin or mucous membranes; and visual impairment. Tr. 15. However, at step three, the ALJ concluded these impairments 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. 15.
Prior to proceeding to step four, the ALJ assessed Mr. Snow's RFC, finding he had the ability to perform sedentary work with the following limitations:
“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), 416.967(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.
[Mr. Snow] can occasionally operate foot and hand controls bilaterally. [Mr. Snow] can occasionally climb ramps and stairs, but he can never climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. [Mr. Snow] cannot perform any function that requires bilateral near visual acuity. He can occasionally operate a motor vehicle. [Mr. Snow] can occasionally work in weather, in humidity and in wetness. He may never be exposed to pulmonary irritants such as dust, odors, or fumes. [Mr. Snow] can occasionally work in extreme heat and cold. He can occasionally be exposed to vibrations, but cannot work at unprotected heights or around moving mechanical parts.Tr. 16. In making this assessment, the ALJ found Mr. Snow's statements about his limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 17.
At step four, the ALJ concluded Mr. Snow did not have the RFC to perform the requirements of his past relevant work as a brick mason. Tr. 19. Nonetheless, at step five, upon considering Mr. Snow's age, education, work experience, and RFC, the ALJ determined Mr. Snow is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 20.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) finding that Mr. Snow was capable of making a successful adjustment to other work that exists in significant numbers in the national economy; and (2) failing to address substantial evidence of Mr. Snow's limitations in using his hands and failing to include any limitations in handling and fingering beyond frequent use of hand controls. Pl.'s Mem. [DE-23] at 8, 12. Both will be discussed below.
All page citations herein are to the page numbers assigned by the court's CM/ECF electronic filing system.
VI. DISCUSSION
A. RFC assessment of Mr. Snow's need for handling and fingering limitations
Plaintiff contends that the ALJ erred by failing to address substantial evidence of Mr. Snow's limitations in using his hands, and failing to include any limitations in handling and fingering beyond frequent use of hand controls. Pl.'s Mem. [DE-23] at 12. Specifically, at issue is whether the ALJ improperly overlooked evidence indicating that Mr. Snow was further limited in the use of his hands than the RFC found. Id. Plaintiff argues that the ALJ did. Plaintiff further argues that the record supports that Mr. Snow “was limited to no more than occasional use of his hands, ” and the ALJ erred by not including such limitation. The court disagrees.
“A Social Security claimant's RFC represents ‘the most [he] can still do despite [his] limitations.'” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). In assessing an individual's RFC, an ALJ considers that person's “ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). Further, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Indeed, “the ALJ's logical explanation is just as important as the other two [components] . . . and our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas, 916 F.3d at 311 (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
Additionally, “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” McNeill v. Saul, No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio, 780 F.3d at 636). And while there is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[, ]” courts have found remand warranted where the ALJ fails to assess a “contested” function that is “critically relevant to determining [a claimant's] disability status . . . .” Dowling, 986 F.3d at 388-89 (remanding case where the ALJ failed to evaluate the plaintiff's ability to sit when it was a contested function critical to determining the plaintiff's disability status, and stating that the ALJ should have included “an analysis [of plaintiff's ability to sit] that was separate from the ALJ's appraisal of [the plaintiff's] ability to perform other functions, and [this analysis] should have been accompanied by ‘a narrative discussion describing' the evidence supporting it”).
Here, the ALJ found that Mr. Snow had the following RFC:
After careful consideration of the entire record, the undersigned finds that [Mr. Snow] has the residual functional capacity to perform sedentary work ad defined in 20 CFR 404.1567(a) except that he can occasionally operate foot and hand controls bilaterally. [Mr. Snow] can occasionally climb ramps and stairs, but he can never climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. [Mr. Snow] cannot perform any function that requires bilateral near visual acuity. He can occasionally operate a motor vehicle. [Mr. Snow] can occasionally work in weather, in humidity and in wetness. He may never be exposed to pulmonary irritants such as dust, odors, or fumes. [Mr. Snow] can occasionally work in extreme heat and cold. He can occasionally be exposed to vibrations, but cannot work at unprotected heights or around moving mechanical parts.Tr. 16.
Although the ALJ does include a limitation for occasional operation of hand controls bilaterally, absent in the RFC are any additional limitations relating to Mr. Snow's abilities in handling and fingering. Plaintiff argues that this was an error, as the evidence of record establishes that additional limitations are warranted. Plaintiff further argues that the ALJ fails to “scrutinize[e] the most probative medical evidence regarding [Mr. Snow's] peripheral neuropathy, [and thus, the ALJ's decision] is not supported by substantial evidence.” Pl.'s Mem. [DE-23] at 14.
In assessing Mr. Snow's RFC, the ALJ discusses evidence relating to Mr. Snow's manipulative abilities and underlying impairments. For example, the ALJ notes Mr. Snow's hearing testimony “that he experiences significant pain and numbness in his feet and hands.” Tr. 17. The ALJ further notes Mr. Snow's testimony that “he cannot lift more than 10-15 pounds . . . .” Tr. 17. However, the ALJ finds Mr. Snow's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record . . . .” Tr. 17.
The ALJ also discusses medical evidence relating to Mr. Snow's manipulative abilities and underlying impairments. The ALJ notes that Mr. Snow “has diabetes mellitus with related peripheral neuropathy.” Tr. 17. And, “[t]he record evidence shows that [Mr. Snow] has had many periods of uncontrolled diabetes since the alleged onset date and this these [sic] periods have resulted in exacerbated neuropathy . . . .” Tr. 17. The ALJ also states that “pain clinic notes also document complaints of upper extremity weakness, numbness, and shooting pain.” Tr. 17. Additionally, the ALJ references a consultative physical examination and corresponding report completed by Peter D. Morris, M.D. Tr. 18. The ALJ states that “Dr. Morris noted in his report that an electromyography and nerve conduction report revealed severe external sensorimotor peripheral polyneuropathy with secondary demyelinating changes.” Tr. 18. “Dr. Morris's report also states that [Mr. Snow] reported being able to take care of his personal needs without any assistance and could bathe, dress, and eat independently.” Tr. 18. And, Mr. Snow “had 5/5 motor strength in his upper and lower extremities . . . [and] was able to pick up a paper clip, turn a door handle, and manipulate a button (Ex. B14F).” Tr. 18.
Finally, the ALJ discusses medical opinions addressing Mr. Snow's manipulative abilities and underlying impairments. For example, the ALJ assigns “great weight” to the medical opinions of Dr. Peter Morris, contained in his July 2018 consultative physical examination report. Tr. 18. The ALJ notes: “Dr. Morris opined that [Mr. Snow] was capable of sedentary work with postural and environmental limitations closely similar to those of the residual function capacity described in this decision. Dr. Morris's conclusions are based on adequate clinical testing and are generally consistent with the other objective medical evidence of record. . . .” Tr. 18-19. Although not specifically noted by the ALJ, Dr. Morris opines that “[i]t is estimated [Mr. Snow] has mild manipulative limitations to handling, feeling, and grasping due to his numbness in the hand.” Tr. 967. Dr. Morris also opines, in a check-box form, that Mr. Snow can “continuously (over 2/3)” handle, finger and feel in both his right and left hands. Tr. 971.
The ALJ also assigns “substantial weight” to the medical opinions of Melvin L. Clayton, M.D. and Robert N. Pyle, M.D., who opine “that [Mr. Snow] is capable of light work with postural, visual, and environmental limitations. Tr. 18. The ALJ
These consultant's [sic] opinions concerning [Mr. Snow's] functional capacity are generally consistent with the medical evidence of record and are supported by specific citations to the record. Specifically, the undersigned finds their assignment of postural limitations to be appropriate. However, the totality of the record, including evidence received after these opinions were generated, demonstrate a continued deterioration of [Mr. Snow's] abilities. As a result, the undersigned finds that the additional exertional and environmental limitations described in this decision are warranted (Exs. B4A and B7A).
Tr. 18. Although not specifically noted by the ALJ, both Dr. Clayton and Dr. Pyle opine that [Mr. Snow] has no manipulative limitations. Tr. 111, 124.
As detailed above, the ALJ thoroughly discusses the medical evidence of record. Amongst other things, the ALJ acknowledges Mr. Snow's testimony “that he experiences significant pain and numbness in his feet and hands” (Tr. 17), treatment notes indicating that Mr. Snow “has diabetes mellitus with related peripheral neuropathy” (Tr. 17), and that “an electromyography and nerve conduction report revealed severe external sensorimotor peripheral polyneuropathy with secondary demyelinating changes” (Tr. 18). However, the ALJ further notes treatment records indicating that Mr. Snow was able to take care of personal needs without assistance, he “had 5/5 motor strength in his upper and lower extremities[, ] . . . and [he] was able to pick up a paper clip, turn a door handle, and manipulate a button (Ex. B14F).” Tr. 18. The ALJ also relies upon the medical opinions of three providers in assessing Mr. Snow's RFC. Two of the providers opine that Mr. Snow has no manipulative limitations (Tr. 111, 124), while the third opines that Mr. Snow has only “mild” manipulative limitations, but is able to continuously handle, finger and feel in both hands (Tr. 967, 971).
While Plaintiff may ultimately disagree with the RFC, the written decision reveals that the ALJ properly considered all potentially relevant limitations, and that the ALJ's decision not to include additional limitations for Mr. Snow's ability to manipulate is supported by substantial evidence. “[R]eading the ALJ's decision as a whole, the ALJ built the requisite, accurate and logical bridge from the evidence in the record to his finding as to [Mr. Snow's] residual functional capacity.” Emanuel v. Saul, No. 7:19-CV-202-FL, 2021 WL 1217309, at *4 (E.D. N.C. Mar. 31, 2021); see also Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 95 (4th Cir. 2020). The court is not “left to guess about how the ALJ arrived at his conclusion[]” that no additional manipulative limitations were needed. Mascio, 780 F.3d at 637; see also Dennis v. Berryhill, 362 F.Supp.3d 303, 310 (W.D. N.C. 2019). Further, the ALJ's RFC assessment was supported by substantial evidence in the record.
Accordingly, the undersigned RECOMMENDS that remand is not required for this issue.
B. Step Five finding that Mr. Snow could adjust to other work in significant numbers in the national economy
Next, Plaintiff contends that the ALJ erred by finding that Mr. Snow was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. Pl.'s Mem. [DE-23] at 8. Specifically, at issue is whether the ALJ erred by citing to only a single job that Mr. Snow can do in finding that Mr. Snow could successfully perform other work. Id. at 9. Also at issue, is whether the ALJ erred by failing to elicit VE testimony that the single job M r. Snow can perform exists in either the region Mr. Snow resides or in multiple regions, rather than the national economy as a whole. Id. at 11. Plaintiff argues that the ALJ did err in both regards. The court disagrees.
At the fifth and final step of the sequential evaluation process, an ALJ “consider[s] [their] assessment of [a claimant's] residual functional capacity and [the claimant's] age, education, and work experience to see if [the claimant] can make an adjustment to other work. If [the claimant] cannot make an adjustment to other work, [the ALJ] will find that [they] are disabled.” 20 C.F.R. § 404.1520(a)(v) (citing 20 C.F.R. §§ 404.1520(g)-(h)). While a claimant generally bears the burden of proving his or her disability, when considering whether a claimant is able to adjust to other work, the burden shifts to the ALJ to “provide evidence about the existence of work in the national economy that [the claimant] can do . . . .” 20 C.F.R. § 404.1512(b)(3). The ALJ is “responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that [the claimant] can do, given [the claimant's] residual functional capacity and vocational factors.” 20 C.F.R. § 404.1560(c)(2). Social Security Ruling (“SSR”) 96-9p further instructs:
Where there is more than a slight impact on [a claimant's] ability to perform the full range of sedentary work, if the [ALJ] finds that the [claimant] is able to do other work, the [ALJ] must cite examples of occupations or jobs the [claimant] can do and provide a statement of the incidence of such work in the region where the individual resides or in several regions of the country.S.S.R. 96-9p, 1996 WL 374185, at *5 (July 2, 1996).
Here, at step five, the ALJ concluded that “[c]onsidering [Mr. Snow's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform.” Tr. 20. The ALJ notes that although Mr. Snow is unable to perform all or substantially all requirements of sedentary work, based on the VE's testimony at Mr. Snow's hearing, other work is available for an individual with Mr. Snow's age, education, work experience, and RFC. Tr. 20. Specifically, the ALJ states that the VE “explained that, given all of these factors, the individual would be able to perform the requirements of representative occupations such as a toy stuffer (SVP 2/unskilled in nature, sedentary in exertion, DOT# 731.685-014, 4, 100 jobs exist in the national economy).” Tr. 20.
Plaintiff alleges two errors in the ALJ's analysis at step five. First, Plaintiff argues that SSR 96-9p requires that the ALJ cite to “examples of occupations or jobs” that Mr. Snow could do, yet the ALJ only cites to a single job that he can do. In support of this argument, Plaintiff cites to no caselaw, relying solely on the language of SSR 96-9p.
At the outset, Plaintiff is correct that the VE here only found a single job that Mr. Snow perform. While the ALJ states at step five that the VE testified that a claimant with Mr. Snow's limitations could perform “representative occupations such as toy stuffer” (Tr. 20 (emphasis added)), the hearing testimony makes clear that toy stuffer is the only occupation the VE found that Mr. Snow could perform. At the hearing, after being asked whether jobs exist that a claimant with Mr. Snow's limitations could perform, the VE testified as follows:
VE: Okay, thank you. Your Honor, one example at the unskilled, sedentary level is a toy stuffer. 731 --
ALJ: Hold on --
VE: - 6 --
ALJ: -- I'm sorry.
VE: Okay.
ALJ: 731?
VE: Yes. 68[5]-014. 4, 100 nationally. And Judge, I'm having to think that it's going to be all that I can identify.
Tr. 49-50. Indeed, Defendant appears to concede this point, as she states in her memorandum that “the ALJ properly determined that despite [Mr. Snow's] impairments, a job existed in significant numbers in the national economy that [he] could perform.” Def.'s Mem. [DE-27] at 11.
Contrary to Plaintiff's assertion, however, SSR 96-9p did not require that the ALJ here to cite to more than a single occupation or job. As another district court noted, specifically in the context of Social SSR 96-9p:
The availability of only one sedentary occupation . . ., although an indicium that [the plaintiff's] full range was significantly eroded, did not mandate a finding that she was disabled. Such a finding would be in contravention of clear statutory language requiring that a claimant be unable to engage in any kind of gainful employment, available nationally or regionally.Colon v. Comm'r of Soc. Sec., 2004 WL 1144059, at *9 (N.D.N.Y. Mar. 22, 2004) (citations omitted); see also Sprague v. Astrue, No. 2:10-cv-150-DBH, 2011 WL 1253894, at *2-3 (D. Me. Mar. 30, 2011) (addressing a plaintiff's contention that the plural language in SSR 96-9p requires the ALJ to cite to multiple jobs, and stating that the “court has frequently held in Social Security cases that the availability of a single job for the plaintiff meets the commissioner's burden at Step 5[, ]” and the court “see[s] no reason why only a sedentary RFC would require the commissioner to identify more than one job as available in sufficient numbers in the national economy”).
Plaintiff's second argument appears, in its entirety, as follows:
Moreover, given the scarcity of occupations or jobs under [the] hypothetical scenario, the ALJ was under a heightened burden to ensure that positions under the job of “toy stuffer” existed either in the region Mr. Snow resides or in several regions throughout the country. The ALJ failed to elicit any testimony regarding the incidence of these positions in the State of North Carolina or whether they exist in multiple regions.Pl.'s Mem. [DE-23] at 11.
At step five the ALJ is only required “to show that other work exists in the national economy which the claimant can perform.” Shoulars v. Astrue, 671 F.Supp.2d 801, 811 (E.D. N.C. 2009) (citing Pass, 65 F.3d at 1203). Here, the ALJ found that, despite his limitations, Mr. Snow was able to perform the job of “toy stuffer.” Tr. 20. The VE testified that there are 4, 100 toy stuffer jobs in the national economy. Tr. 49-50. Although no testimony was given as to the occurrence of such jobs in the State of North Carolina, or whether such jobs exist in multiple regions of the country, there was no requirement that the ALJ seek such testimony. Plaintiff again cites to no authority in support of her argument that the ALJ was under a “heightened burden” here, given the “scarcity of occupations or jobs.” See Pl.'s Mem. [DE-23] at 11.
Finally, to the extent that Plaintiff also attempts to argue that 4, 100 jobs in the national economy is not a significant number, the undersigned finds this argument to be unpersuasive. See, e.g., Dixon v. Saul, No. 4:20-CV-53-FL, 2021 WL 826776, at *11 (E.D. N.C. Jan. 26, 2021) (finding 5, 600 jobs in the national economy sufficient); Spruill v. Astrue, No. 4:10-CV-00178-FL, 2011 WL 5325590, at *8 (E.D. N.C. Oct. 13, 2011) (finding 3, 259 positions available in the national economy sufficient); Hodges v. Apfel, No. 99-2265, 2000 WL 121251, at *1 (4th Cir. Jan. 28, 2000) (finding as few as 153 jobs available in the region sufficient); Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979) (finding as few as 110 jobs available in the region sufficient).
Accordingly, the undersigned RECOMMENDS that remand is not required for this issue.
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-22] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-26] 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 March 16, 2022 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her 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 March 24, 2022.
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).