Opinion
5:21-CV-516-FL
02-28-2023
LYDIA GREENE, 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 [D.E. 20, 23] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Lydia Greene (“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 her application for a period of disability and Disability Insurance Benefits (“DIB”). Both parties submitted memoranda in support of their respective motions. [D.E. 21, 24]. Plaintiff responded in opposition to Defendant's motion for judgment on the pleadings [D.E. 28] and the time for filing a reply has expired. Accordingly, 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 [D.E. 20] be granted in part and denied in part, Defendant's Motion for Judgment on the Pleadings [D.E. 23] be granted in part and denied in part, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on December 13, 2019, alleging disability beginning August 30, 2019. Transcript of Proceedings (“Tr.”) 140, 250-51. Her claim was denied initially. Tr. 128-40, 162-70. Plaintiff filed a request for reconsideration (see Tr. 171-78) and was denied upon reconsideration on November 9, 2020 (Tr. 141-59, 171-78). On December 2, 2020, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 179-80. A telephonic hearing before the ALJ was held on April 26, 2021, at which Plaintiff, represented by counsel, and Mark Leaptrot, a vocational expert (“VE”), appeared and testified. Tr. 38-68. On June 25, 2021, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 13-37.
On August 3, 2021, Plaintiff requested a review of the ALJ's decision by the Appeals Council (Tr. 8-12, 248-49) and submitted additional evidence as part of her request (Tr. 69-127). After reviewing and incorporating the additional evidence into the record, the Appeals Council denied Plaintiff's request for review on November 29, 2021. Tr. 1-7. 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).
Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, “the court must ‘review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'” Felts v. Astrue, No. 1:11-CV-00054, 2012 WL 1836280, at *1 (W.D. Va. May 19, 2012) (quoting Wilkins v. Sec'y, Dep't of Health & Hum. Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
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. 33. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since August 30, 2019, the alleged onset date. Tr. 18.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: affective disorder, variously diagnosed as major depressive disorder (“MDD”), bipolar disorder, and seasonal affective disorder; anxiety disorder; unspecified neurocognitive disorder; alcohol use disorder; and cannabis use disorder. Tr. 18. The ALJ also found Plaintiff had non-severe impairments of: essential hypertension; hyperlipidemia; hypothyroidism; Vitamin D deficiency; cough; influenza; urinary tract infection; hiatal hernia; gastritis; esophageal stricture; anorexia; tremors; dizziness; right ankle sprain; left ankle sprain with small avulsion fracture; back strain; and leg cramps. Tr. 19. 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 moderate limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and moderate limitation in adapting or managing oneself. Tr. 20-22.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform a full range of work at all exertional levels, but with the following nonexertional limitations:
20 C.F.R. § 404.1567 provides the physical exertion requirements of work in the national economy considered by the Commissioner in making disability determinations. The section classifies and defines the jobs and requirements as follows: “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. “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c). “Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.” 20 C.F.R. § 404.1567(d). “Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.” 20 C.F.R. § 404.1567(e).
[Plaintiff] can understand, remember, and carry out simple instructions, which is defined to mean activity that is consistent with a reasoning level of “one” or “two” as defined in the Dictionary of Occupational Titles (DOT); can sustain concentration, attention and pace sufficient enough to carry out those simple instructions over the course of an eight-hour workday and at two-hour intervals; can work in occupations that require only occasional contact with coworkers, supervisors, and the general public; and can work in a low stress setting, which is specifically defined to mean: no fast-paced production, only simple work-related decision, and few or no changes in the work setting.Tr. 22
In making this assessment, the ALJ noted that “[t]he claimant is limited by her impairments as found herein [and] . . . [t]o the extent that the claimant testified that she is more limited, that testimony is not consistent with the medical and other evidence of record.” Tr. 28.
At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of her past relevant work as a technical support specialist as actually or generally performed. Tr. 31. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 33.
At the time of Plaintiff's administrative hearing, Plaintiff was 52 years old and unemployed. Tr. 46-47. Plaintiff has a bachelor's degree. Tr. 46. Plaintiff was last employed with a technology company for approximately two months in 2019, where her duties included customer facing network engineering work. Tr. 47-50. Prior to that position, Plaintiff worked for more than 20 years as a network engineer. Tr. 297.
At the administrative hearing, a VE testified regarding Plaintiff's past work experience. Tr. 63. The ALJ then asked the VE to assume a hypothetical individual of the same age, education and prior work experience as Plaintiff and posed two hypothetical questions. Tr. 63-65. First, the ALJ asked whether the individual could perform Plaintiff's past relevant work assuming the individual has the same RFC as Plaintiff. Tr. 63.
The VE testified that the individual could not perform Plaintiff's past relevant work, but determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy as a routing clerk, a price marker, an addresser, and a housekeeper. Tr. 63-64.
The second hypothetical posed to the VE had all the parameters of the first hypothetical, except that the individual would be limited to working in proximity to, but not in coordination with, co-workers and supervisors. Tr. 64. Additionally, the individual would be limited to superficial contact with the public, which is defined to mean contact that is incidental and not an essential function of the job. Tr. 64. The VE testified that these limitations would not change his testimony with respect to the jobs available to such an individual in the national economy. Tr. 65.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the following errors: (1) the RFC formulated by the ALJ is not supported by substantial evidence because - (a) despite finding Plaintiff to have moderate limitations in maintaining concentration, persistence, or pace (“CPP”), the ALJ failed to adequately account for these limitations in the RFC, in violation of Social Security Ruling (“SSR”) 96-8p and Fourth Circuit precedent, and (b) the ALJ failed to properly evaluate and account for Plaintiff's subjective symptoms in the RFC, in violation of SSR 16-3p; 20 C.F.R. § 404.1529 and Fourth Circuit precedent; and (2) the ALJ failed to resolve the apparent conflicts between the VE's testimony and the information contained in the Dictionary of Occupational Titles (“DOT”), in violation of SSR 00-4p and contrary to Fourth Circuit precedent. Pl.'s Mem. [D.E. 21] at 1. Each will be discussed below.
VI. DISCUSSION
A. Substantial evidence for RFC
Plaintiff contends that the ALJ's formulated RFC assessment is not supported by substantial evidence for two reasons: (1) despite finding Plaintiff to have moderate limitations in maintaining CPP, the ALJ failed to adequately account for these limitations in the RFC, in violation of SSR 96-8p and Fourth Circuit precedent, and (2) the ALJ failed to properly evaluate and account for Plaintiff's subjective symptoms in the RFC, in violation of SSR 16-3p; 20 C.F.R. § 404.1529 and Fourth Circuit precedent. Pl.'s Mem. [D.E. 21] at 1.
1. Accommodation of Plaintiff's moderate limitations in maintaining CPP
Plaintiff contends that the ALJ erred by failing to adequately account for Plaintiff's moderate limitations in maintaining CPP in the ALJ's RFC assessment, in violation of SSR 96-8p and Fourth Circuit precedent. Pl.'s Mem. [D.E. 21] at 1. Plaintiff argues two lines of reasoning in support of this contention. First, the ALJ improperly sought to accommodate Plaintiff's moderate limitation in CPP by limiting her “to simple instructions[,] no fast-paced production work, unskilled work, simple decisions, and few or no changes in the work setting.” Pl. Mem. [D.E. 21] at 10-11 (citing Tr. 22, 32). Second, the ALJ “failed to state why or explain how [Plaintiff] can sustain unskilled work throughout an entire 8-hour workday and 40-hour workweek.” Pl. Mem. [D.E. 21] at 18. The undersigned disagrees.
In the ALJ's written decision, the RFC specifically includes that the term “simple instructions” is “defined to mean activity that is consistent with a reasoning level of ‘one' or ‘two' as defined in the Dictionary of Occupational Titles (DOT) ....” See Tr. 22 (emphasis added).
“A Social Security claimant's RFC represents ‘the most [she] can still do despite [her] limitations.'” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (alterations in original) (quoting 20 C.F.R. § 416.945(a)(1)). It is “an administrative assessment of ‘an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis' despite impairments and related symptoms.” Brooks v. Berryhill, No. 2:16-CV-80-FL(2), 2018 WL 944382, at *3 (E.D. N.C. Jan. 23, 2018) (quoting SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). An RFC assessment must be “based on all of the relevant medical and other evidence.” Ward v. Colvin, 90 F.Supp.3d 510, 513 (E.D. N.C. 2015) (citing 20 C.F.R. § 404.1545(a)(3)). In making this assessment, “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, 119 (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), as amended (Feb. 22, 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)). 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).
In Mascio v. Colvin, the Fourth Circuit held “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.'” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). Specifically, the court found that “the ability to perform simple tasks differs from the ability to stay on task[,]” and “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Id. However, the Fourth Circuit does “not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC.” Shinaberry, 952 F.3d at 121. Instead, the Fourth Circuit notes “that ‘an ALJ can explain why [a claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation' in the claimant's RFC.” Id. (quoting Mascio, 780 F.3d at 638) (alteration in original). “For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect [the claimant's] ability to work, in which case it would [be] appropriate to exclude it from the hypothetical tendered to the vocational expert.” Id. (alterations in original) (citations omitted). Yet, without such explanation by the ALJ, remand is required. Williams v. Saul, No. 4:20-CV-92-FL, 2021 WL 3399820, at *4 (E.D. N.C. June 16, 2021) (citing Mascio, 780 F.3d at 638); see also Shannon R. v Kijakazi, 2022 WL 636638, at *9-10 (W.D. Va. Mar. 4, 2022) (finding that the ALJ “was required either to include specific work-related restrictions within her RFC finding to accommodate for such ‘moderate' CPP limits, or to explain why such limits did not translate into [the claimant's] RFC.”); and Linda W. v. Saul, 2021 WL 930274, at *4-6 (W.D. Va. Feb. 22, 2021) (“[T]he ALJ failed to draw an explicit conclusion or satisfactorily explain how [the claimant's] [moderate limitations in maintaining CPP] affect her ability to perform job-related tasks for a full eight-hour workday.”).
Here, the ALJ provided a thorough review of the record and cited to medical and other evidence that supported his conclusions when assessing Plaintiff's moderate restrictions in maintaining CPP in the RFC. Tr. 21. Specifically, in finding a moderate limitations in Plaintiff's ability to maintain CPP, the ALJ considered Plaintiff's hearing testimony and allegations in her function report indicating that she has difficulty sustaining concentration and focus (Tr. 21, 53-54, 294). The ALJ discussed mental health treatment notes showing Plaintiff's difficulty performing Serial 7s, as well as others showing that she presented with logical thinking, appropriate thought content, and intact orientation (Tr. 21, 568, 579). Additionally, the ALJ noted that state agency psychological consultants, April Strobel-Nuss, Psy. D (“Dr. Strobel-Nuss”) and Sean Sayers, Ph. D. (“Dr. Sayers”) (collectively “state agency psychological consultants”) both opined that Plaintiff had moderate restrictions in maintaining CPP, but observed that Plaintiff remained focused and attentive during her 45-minute telephonic hearing (Tr. 21, 133-37, 149-50, 152-56). Further, like the court in Shinaberry, the ALJ also considered Plaintiff's decades of gainful employment despite certain historic limitations. Tr. 28; Cf. Shinaberry, 952 F.3d at 122. Based on the totality of this information, the ALJ expressly explains how he accommodates Plaintiff's moderate limitation in CPP within the RFC:
Based on hearing testimony, the undersigned's auditory observations of the claimant during the telephonic hearing, and a thorough review of the record, the undersigned finds that the claimant has a moderate limitation in the functional area of concentrating, persisting, or maintaining pace. To accommodate this moderate degree of limitation, the undersigned finds the claimant limited to sustaining concentration, attention, and pace to carry out only simple instructions and work that does not involve fast-paced production.Tr. 21.
Elsewhere, the ALJ discusses relevant limitations again noting that: “[t]he record does reveal at least some modest weakness in [maintaining CPP]. To accommodate this weakness in this area, the undersigned finds the claimant limited to maintaining attention and concentration sufficiently to perform only simple tasks in no more than two-hour intervals.” Tr. 27.
Plaintiff points to Mascio, 780 F.3d 632 and numerous other precedents from the Fourth Circuit, as well as cases with persuasive authority from other district courts within the Fourth Circuit, discussing RFC limitations for claimants with moderate limitations in maintaining CPP. Pl.'s Mem. [D.E 21] at 11-16 (citing, e.g., Mascio, 780 F.3d 632; Monroe, 826 F.3d 176; Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018); Thomas, 916 F.3d 307; Shinaberry, 952 F.3d 113; Foust v. Saul, 2020 WL 6875157, *5-6 (W.D. N.C. Nov. 13, 2020); Knight v. Commissioner, No. 9:15-cv-1512- MC, 2016 JWL 4926072, at *4-5 (D.S.C. Sept. 16, 2016); Wilson v. Colvin, No. 2:14-CV-3209-TLW-MGB, 2016 WL 625088, at *5 (D.S.C. Jan. 15, 2016), adopted by, 2016 WL 613891 (D.S.C. Feb. 16, 2016); Dill v. Berryhill, No. 4:16-cv3949-PMD-TER, 2018 WL 840103, at *6 (D.S.C. Jan. 26, 2018), adopted by 2018 WL 826854 (D.S.C. Feb. 12, 2018).
However, unlike Mascio and other examples to which Plaintiff cites, here, the court is not “left to guess about how the ALJ arrived at his conclusions on [claimant's] ability to perform relevant functions.” Mascio, 780 F.3d at 637. While there is not “a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC,” Shinaberry, 952 F.3d at 121, here, the ALJ does include specific limitations in the RFC to account for Plaintiff's limitations in maintaining CPP, as noted above. See Tr. 21, 27.
Plaintiff specifically argues in her reply brief that the RFC limitation providing that Plaintiff “can understand, remember, and carry out simple instructions” (Tr. 22) conflicts with Dr. Strobel-Nuss' finding that Plaintiff “is able to understand and remember short simple instructions,” (Tr. 135) (emphasis added), particularly because the ALJ found Dr. Strobel-Nuss' opinion persuasive (Tr. 29). An ALJ can, however, find a medical opinion persuasive without adopting every single word of such opinion, so long as the ALJ provides an explanation for doing so. See SSR 96-8p (Jul. 2, 1996); see also, Cole v. Saul, No. 1:19CV1161, 2021 WL 1109399, at *9 (M.D. N.C. Mar. 23, 2021), report and recommendation adopted, No. 1:19CV1161, 2021 WL 3196438 (M.D. N.C. May 24, 2021) (finding that the ALJ “signaled that, although he found the consultants' opinions ‘persuasive,' he would not adopt their opinions verbatim due to ‘new evidence' received after the consultants offered their opinions.”)
First, it is not at all certain that the inconsistency Plaintiff identifies is material. SSR 96-8p (“The [ALJ] must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.”) (emphasis added). However, the undersigned need not determine the materiality of the difference because here, the ALJ expressly cites the elements of Dr. Strobel-Nuss' opinion that he finds persuasive. Specifically, the ALJ cites to Dr. Strobel-Nuss' opinion that Plaintiff “remains able to follow simple instructions.” (Tr. 29) (emphasis added).
The ALJ's limitation provides greater detail than that provided by Dr. Strobel-Nuss. Rather than requiring that instructions be “short” and “simple,” the ALJ qualifies the simple instructions to include only “activity that is consistent with a reasoning level of ‘one' or ‘two' as defined in the Dictionary of Occupational Titles (DOT).” Tr. 22. The ALJ provides detailed reasoning for so doing in his discussion of Plaintiff's moderate limitation in CPP. See Tr. 25.
Plaintiff next argues that “the ALJ failed to state why or explain how Plaintiff can sustain unskilled work throughout an entire 8-hour workday and 40-hour workweek.” Pl.'s Mem. [D.E. 21] at 18. The RFC provides that Plaintiff can sustain work “over the course of an eight-hour workday and at two-hour intervals.” Tr. 22 (emphasis added). This limitation is supported by the November 9, 2020 medical assessment of Dr. Sayers that “[t]he individual may have some lapses in sustained concentration due to [mental health] signs, but can maintain concentration, persistence, and pace to stay on task for 2-hour periods as required to perform simple, routine, repetitive tasks.” Tr. 154. The ALJ cites to and discusses Dr. Sayers November 9, 2020 assessment throughout the written decision. The support provided by Dr. Sayers' opinion in the record distinguishes this case from Covington v. Berryhill, No. 7:16-CV-285-FL, 2017 WL 6211054, at *7 (E.D. N.C. Oct. 19, 2017), report and recommendation adopted, No. 7:16-CV-285-FL, 2017 WL 6210895 (E.D. N.C. Dec. 8, 2017), in which a two-hour limitation was deemed not to be supported as “the court [was] unable to locate the reference to [c]laimant's ability to ‘maintain concentration for 2 hours at a time' in the record.”
In the reply brief, Plaintiff argues that “Dr. Sayer [sic] merely opined that Plaintiff can only ‘stay on task for 2-hour periods' . . . but never opined Plaintiff [sic] can sustain this over the course of an 8-hour workday let alone over the course of a 5-day workweek.” Pl.'s Repl. [D.E. 28] at 3 (quoting Tr. 154). Plaintiff's argument is unpersuasive. Both state agency psychological consultants found that Plaintiff was only moderately limited in her “ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.” Tr. 136, 153. A “moderate” rating is not associated with an inability to perform in a given area. See 20 C.F.R. pt. 404, subpt. P, app. 1, Section 12.00(F)(2)(c). There is substantial evidence to support a finding that limiting tasks to two-hour intervals in conjunction with the other limitations provided in the RFC would sufficiently address Plaintiff's limitations, including the concern raised by Dr. Strobel-Nuss that Plaintiff “would have difficulty maintaining concentration and attention for extended periods of time.” Tr. 136. See Sizemore v. Colvin, No. 5:15-CV-00053-MOC, 2016 WL 483140, at *3 (W.D. N.C. Feb. 5, 2016), aff'd sub nom. Sizemore v. Berryhill, 878 F.3d 72 (4th Cir. 2017), and aff'd sub nom. Sizemore v. Berryhill, 703 Fed.Appx. 179 (4th Cir. 2017), opinion amended and superseded, (4th Cir. 2017) (“By assessing that plaintiff could maintain attention for at least two hours at a time as needed to do simple, routine tasks, the medical consultant indicated that plaintiff could stay on task for an eight hour workday.”).
SSR 96-8p indicates that a normal workday is eight hours and a normal workweek is 40 hours. See SSR 96-8p (Jul. 2, 1996) (“Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.”) (emphasis added).
Plaintiff also emphasizes that according to a WAIS intelligence test in 2019, her ability to sustain attention, concentration, and exert mental control was in the borderline range, i.e., in the bottom 6% of her peers. Pl.'s Mem. [D.E. 21] at 5, 20 (citing Tr. 577). However, the ALJ expressly discusses Plaintiff's difficulties with Serial 7s (Tr. 21), which is a component of the test measuring Plaintiff's ability to sustain attention, concentration, and exert mental control where Plaintiff had the most difficulties (Tr. 577-78). Similarly, there is substantial evidence that the limitations the ALJ included in the RFC adequately account for this limitation. See Tr. 21 (adding limitations of “carry[ing] out only simple instructions and work that does not involve fast-paced production” to accommodate Plaintiff's moderate limitations in sustaining concentration, attention, and pace).
While there could be differences of opinion on what accommodations, if any, would allow Plaintiff to sustain work for a full 8-hour workday, for a full 40-hour workweek, the ALJ has built “an accurate and logical bridge from the evidence to his conclusion.” Monroe, 826 F.3d at 189. The ALJ includes discussion of the medical opinions of two state agency psychological consultants and specific limitations addressing Plaintiff's moderate limitation in CPP to support his findings. It is not the court's job to re-weigh conflicting evidence or substitute its judgment for that of the ALJ. Mastro, 270 F.3d at 176 (quoting Craig, 76 F.3d at 589). Accordingly, remand is not recommended on the basis of this line of reasoning.
2. Evaluation of Plaintiff's subjective symptoms
Plaintiff next contends that the ALJ erred by failing to properly evaluate and account for Plaintiff's subjective symptoms in the RFC assessment. Pl.'s Mem. [D.E. 21] at 21. For the reasons discussed below, remand is recommended on this issue.
The regulations provide “a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)); see also Craig, 76 F.3d at 594 (“Under these regulations, the determination of whether a person is disabled by pain or other symptoms is a two-step process.”)
As explained by the Fourth Circuit, “[f]irst, there must be objective medical evidence showing ‘the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged.'” Craig, 76 F.3d at 594 (emphasis in original) (quoting 20 C.F.R. §§ 416.929(b) & 404.1529(b). “Therefore, for [symptoms] to be found to be disabling, there must be shown a medically determinable impairment which could reasonably be expected to cause not just [those symptoms], or some [of those symptoms], or [such symptoms] of some severity, but the [symptoms] the claimant alleges she suffers.” Id. (emphasis in original).
“Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Lewis, 858 F.3d at 866. “The second determination requires the ALJ to assess the credibility of the claimant's statements about symptoms and their functional effects.” Id.
In assessing a claimant's credibility, an ALJ is not required to accept a claimant's statements at face value. Howley v. Colvin, No. 5:12-CV-260-FL, 2013 WL 6184954, at *15 (E.D. N.C. Nov. 25, 2013). Generally, “[a]n ALJ may find a claimant's statements regarding the severity of her symptoms less credible if these statements are inconsistent with medical evidence in the record and if the ALJ explains how she weighed all of the relevant evidence, including the claimant's statements.” Brooks, 2018 WL 944382, at *4 (citing SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996); Mascio v. Colvin, 780 F.3d at 636-37). An ALJ's observations concerning questions of credibility are entitled to great weight. See Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984). However, an ALJ may not discredit a claimant's “statements about the intensity and persistence of [] pain or other symptoms or about the effect [] symptoms have on [their] ability to work solely because the available objective medical evidence does not substantiate [the] statements.” Lewis, 858 F.3d at 866 (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)) (emphasis added). In discrediting a claimant's testimony, an ALJ must be sure to articulate what specific facts discredited the claimant. Id. (citations omitted); Cobb v. Colvin, 4 F.Supp.3d 786, 790 (E.D. N.C. 2014).
Here, as noted in Plaintiff's brief (Pl.'s Mem. [D.E. 21] at 21), at the first step of the Craig two-step analysis, the ALJ's decision does not expressly state whether or not Plaintiff's severe mental impairments of MDD, affective disorder, anxiety disorder, and unspecified neurocognitive disorder could reasonably be expected to produce the claimant's symptoms. The ALJ's decision instead proceeds with a detailed discussion under the second step of the Craig analysis. See Tr. 28. It could be presumed, as Plaintiff does in her brief “[f]or argument's sake” (Pl.'s Mem. [D.E. 21] at 21), that the ALJ found Plaintiff's conditions could be reasonably expected to produce her symptoms based upon the ALJ's undertaking the second step of the subjective symptom analysis process. See Tr. 23. However, the court in Craig expressly requires the ALJ to determine whether a claimant's medically documented impairments could reasonably be expected to produce claimant's alleged symptoms, and then to evaluate claimant's statements about those symptoms. 76 F.3d at 594-95 (emphasis added).
Over a decade ago, a split was recognized among courts within the Fourth Circuit regarding whether an ALJ's failure to make an express finding at step one of the Craig analysis requires remand. Davis v. Astrue, No. 2:06cv94, 2008 WL 696920, at *19 (N.D. W.Va. Mar. 13, 2008). District courts within the Eastern District of North Carolina and the Fourth Circuit remain divided as to whether remand is required.
Some courts within the Fourth Circuit have found that an ALJ's failure to make an express finding at the first step of the Craig analysis does not constitute reversible error in certain circumstances. See Barnes ex rel. T.J. v. Colvin, No. 4:12-CV-254-D, 2014 WL 126039, at * 5 (E.D. N.C. Jan. 13, 2014) (“The lack of an express finding at Craig's first step, however, ‘does not constitute reversible error if the ALJ cites ... substantial evidence to support his overall finding' on the claimant's subjective statements about his symptoms.”) (quoting Hester v. Astrue, No. 7:07-CV-125-D, 2008 WL 7663940, at *9 (E.D. N.C. Aug.11, 2008)); see also Basu-Dugan v Astrue, No. 1:06CV00007, 2008 WL 3413296, at *3 (M.D. N.C. Aug.8, 2008); Zane v. Astrue, No. 7:06-CV-164-D, 2008 WL 345620, at * 14 (E.D. N.C. Feb.5, 2008); Ketcher v. Apfel, 68 F.Supp.2d 629, 650-51 (D.Md.1999).
Specifically, in an unpublished, per curiam opinion, the Fourth Circuit declined to remand a case where the ALJ failed to make an explicit Craig step one finding, because the ALJ sufficiently discussed the claimant's impairments and associated symptoms. Nelson v. Apfel, 166 F.3d 333, 1998 WL 879588, at *3 (4th Cir.1998) (per curiam) (unpublished table decision). However, unpublished opinions are not binding on this circuit, Mueller v. Angelone, 181 F.3d 557, 579 n.15 (4th Cir. 1999), and the Fourth Circuit has not subsequently cited Nelson. “In contrast, the Fourth Circuit has cited Craig, a published opinion that established the two-step pain assessment, [] 150 times since 1996.” Prophet v. Saul, No. 3:18CV741, 2020 WL 94862, at *7 (E.D. Va. Jan. 8, 2020).
Accordingly, other courts “within the Fourth Circuit have found that the failure to comply with the [Craig] two-step pain inquiry, including the failure to perform the required analysis at step one, necessitates remand.” Id. at *5, (citing, inter alia, Walker v. Astrue, No. 5:12-CV-00566, 2013 WL 987877, at *6 (S.D. W.Va. Feb. 22, 2013) (finding a basis for remand where “the ALJ failed to make an explicit finding at step one of the two-step pain and credibility analysis”); report and recommendation adopted, No. 5:12-CV-00566, 2013 WL 959800 (S.D. W.Va. Mar. 12, 2013); Clowney v. Astrue, No. C/A 807-856-CMC-BHH, 2008 WL 2557445, at *5 (D.S.C. June 20, 2008) (“Most critically, the ALJ did not consider the threshold inquiry whether or not the plaintiff's impairments could reasonably be expected to create the symptoms alleged” and “[t]his error alone justifies remand.”); Robinson v. Astrue, No. 5:07-CV-00479-FL, 2008 WL 4790387, at *11 (E.D. N.C. Oct. 23, 2008) (finding remand appropriate when the ALJ's failed to expressly consider step one and instead limited his analysis to step two, and concluding that the omission of the step one analysis was not harmless error); Bradley v. Barnhart, 463 F.Supp.2d 577, 582 (S.D. W.Va. 2006) (“The court concludes the magistrate judge has appropriately recommended remand based upon the ALJ's admitted failure to comply with Craig.”); Gavigan v. Barnhart, 261 F.Supp.2d 334, 340 (D. Md. 2003) (finding remand appropriate because the ALJ did not perform the required analysis at step one of two-step pain assessment).
In this case, the undersigned agrees with this latter set of cases. See Pittman v. Astrue, No. 5:08-CV-83-FL, 2008 WL 4594574, at *6 (E.D. N.C. Oct. 10, 2008) (“While [d]efendant's position [based on Nelson] is well-taken, this Court finds that the better approach is applying the analysis as established in Craig.”). “[T]he Craig court's requirement that an ALJ expressly consider the threshold question could not be more direct, . . ., and this court ‘cannot ignore the clear edict of the Court of Appeals in Craig.'” Hargrove v. Astrue, No. 4:07-CV-123-FL, 2009 WL 863340, at *3 (E.D. N.C. Mar. 30, 2009) (quoting Davis, 2008 WL 696920 at * 19, n.3).
The Commissioner argues that “[t]he ALJ met [the Craig two-part test] requirements in this case.” Def.'s Mem. [D.E. 24] at 12. However, the ALJ's decision is absent of an express determination on whether Plaintiff's medically determinable impairments could reasonably be expected to produce the symptoms Plaintiff alleged. For example, the ALJ finds that the medical or other evidence does not support Plaintiff's claim that she sleeps 20 hours a day. Tr. 28. However, nowhere does the ALJ expressly find whether Plaintiff's severe mental impairments of MDD, affective disorder, anxiety disorder, and unspecified neurocognitive disorder could reasonably be expected to cause hypersomnia. See id.
As another court in this circuit has recently noted:
To skip the first step and ignore whether objective evidence of a condition exists that could produce the pain or other symptoms alleged prevents this Court from conducting a fair and just de novo review and undermines the legal standard to which ALJs must adhere when addressing complaints of [symptoms].Prophet, 2020 WL 94862, at *6.
Accordingly, it is RECOMMENDED that this case be remanded, as the ALJ has not made an express finding at step one of the Craig analysis.
Because the undersigned finds that remand on the first step of the Craig analysis may affect the remainder of the Craig analysis, a recommendation is not made with regard to the other arguments raised by Plaintiff in this section. Nevertheless, on remand, the Commissioner should consider whether additional analysis and explanation is needed, so as to permit meaningful review by the court, if necessary, regarding the following arguments raised by Plaintiff.
At the first prong of step two in the Craig analysis, as defined in 20 C.F.R. § 404.1529(c), the ALJ evaluated Plaintiff's statements about the limiting effects of her symptoms in light of the medical evidence, including the two medical opinions provided by Drs. Strobel-Nuss and Sayers (see Tr. 128-39, 141-58) and non-medical evidence (see Tr. 23-31). Specifically, the ALJ expressly considered Plaintiff's hearing testimony that she spends long periods of time in bed and avoids activities such as driving and interacting with others due to her symptoms (Tr. 23-24, 50-61). The ALJ noted that Plaintiff testified having difficulties performing activities of daily living independently, had difficulty comprehending and retaining information in her past work, and struggled with concentration. Id. The ALJ also considered Plaintiff's testimony regarding her physical and mental symptoms. Tr. 24-28, 50-62.
In evaluating the consistency of Plaintiff's descriptions of her limitations with medical and other evidence in the record, the ALJ explained how some of Plaintiff's allegations, but not others, were supported by the treatment record, citing to specific findings. Tr. 24-31. For those that the ALJ found persuasive, he explained how they were being accommodated in the RFC. For example, due to Plaintiff's reported lack of motivation and low energy, the ALJ limited her to “work in a low stress setting that involves no fast paced production, only simple work related decisions, and no more than a few or no changes in the work setting.” Tr. 27; see also Tr. 314-19. On the other hand, the ALJ found Plaintiff's testimony that she sleeps 20 hours a day, cannot learn new things, and cannot carry on a conversation to be inconsistent with the treatment record. Tr. 28. The ALJ supported this conclusion by identifying treatment notes showing Plaintiff reported less sleep activity to her providers than she reported at the hearing and test results indicating her intelligence was largely in the average range, as well as her ability to stay present throughout the 45-minute hearing. Tr. 28, 41-68, 536, 542, 546, 577. While Plaintiff cites to notes supporting her difficulty with memory loss (Pl.'s Mem. [D.E. 21] at 24 (citing Tr. 50, 58, 83, 88, 98, 105, 289, 294, 524), the ALJ also cited to other notes showing she presented with intact memory for recent and remote events (Tr. 25, 524). In light of the remand recommendation above, the ALJ should also consider whether additional analysis is needed of the numerous records of memory difficulties that Plaintiff cites in her brief.
Plaintiff alleges the ALJ incorrectly found that certain statements by Plaintiff were inconsistent with the medical record because Plaintiff's hearing testimony and function reports are consistent with the medical evidence of record. Pl.'s Mem. [D.E. 21] at 24. Specifically, Plaintiff argues that Dr. Strobel-Nuss and Dr. Sayers both “explicitly opined” that Plaintiff's symptoms and her statements about the intensity, persistence, and functionally limiting effects of these symptoms are substantiated by the objective medical evidence. Plaintiff reasons that because the ALJ found these opinions persuasive, the ALJ should likewise have found Plaintiff's allegations substantiated. Pl.'s Mem. [D.E. 21] at 22-23.
It is noted that the medical opinions of both state agency psychological consultants predate the administrative hearing before the ALJ. Therefore, the “statements about the intensity, persistence, and functionally limiting effects of [Plaintiff's] symptoms” that the state agency psychological consultants found to be substantiated by the objective medical evidence can only include statements by Plaintiff of which they were aware and not additional statements that Plaintiff subsequently made to the ALJ at the oral hearing. See Tr. 39 (showing a date of April 26, 2021, for the ALJ hearing), 134 (showing a date of July 10, 2020, for Dr. Strobel-Nuss' assessment), 150 (showing a date of November 9, 2020, for Dr. Sayers' assessment). Additionally, the symptoms to which these statements appear to refer are “[u]nderstanding and memory limitations, [s]ustained concentration and persistence limitations, [s]ocial interaction limitations, and [a]bility to adapt limitations.” Tr. 134, 150. The ALJ provided analysis for each of these categories and assessed Plaintiff's abilities in these areas to be “moderately limited” in-line with the assessments of “moderately limited” made by the state agency psychological consultants to comparable categories. See Tr. 25-27; 134-37, 150, 153-55. The ALJ expressly discusses which of Plaintiff's statements he finds persuasive and which he does not and the reason for each. See Tr. 25-27.
Plaintiff further notes factors that the ALJ cites in his analysis that Plaintiff considers objectionable, including the ALJ's observing a lack of evidence of “manifestations of symptoms of Plaintiff's mental impairments leading to arrest on any sort of criminal charges since the alleged onset date,” “impairments rising to such a debilitating level as to require overnight hospitalizations or some other more round-the-clock care arrangement since the alleged onset date,” and “suicidal or homicidal ideations with any serious plan or steps taken.” Pl.'s Mem. [D.E. 21] at 25-26 (quoting Tr. 27) (internal quotation marks omitted).
The references to overnight hospitalizations or other round-the-clock care arrangements are relevant as they relate to regulations discussing the nature of treatment received when evaluating symptoms. See 20 C.F.R. § 404.1529(c)(3). With regard to the other factors cited by Plaintiff, the absence of suicidal and homicidal ideations were factors considered by Plaintiff's treating physician (Tr. 536, 542), as well as in various cases by this court and the Fourth Circuit. See Dunlap v. Astrue, No. 5:07-CV-500-FL, 2008 WL 5209959, at *3-4 (E.D. N.C. Dec. 11, 2008) (noting treating notes showing an absence of suicidal or homicidal ideations); Dunn v. Colvin, 607 Fed.Appx. 264, 268-69 (4th Cir. 2015) (noting psychiatry progress notes that there were “no suicidal or homicidal ideation”). These factors have also been considered as evidence by other circuits. See, e.g., Ramos v. Barnhart, 119 Fed.Appx. 295, 296 (1st Cir. 2005) (noting that the claimant “demonstrated no suicidal or homicidal thinking, and there is no record of any hospitalization for that condition.”). In light of the above recommendation, on remand, the ALJ should also consider whether there is a legal or regulatory basis to find that an absence of criminal activity supports the denial of a disability application.
Finally, the undersigned notes the guidance provided by the Fourth Circuit's recent decision in Cannon v. Comm'r of Soc. Sec. Admin., No. 21-2042, 2023 WL 2147306 (4th Cir. Feb. 22, 2023), with respect to evaluating MDD. Specifically, the Fourth Circuit found that “symptoms of MDD, like those of fibromyalgia, are ‘entirely subjective,' determined on a case-by-case basis,” id. (quoting Arakas, 983 F.3d at 96) (emphasis added in original) and that “subjective statements from claimants [regarding their MDD] ‘should be treated as evidence substantiating the claimant's impairment.'” Id. (quoting Arakas, 983 F.3d at 97-98).
Accordingly, on remand, the Commissioner should ensure that Plaintiff's subjective claims regarding her MDD symptoms have been evaluated in accordance with the regulations and applicable caselaw and that any relevant findings sufficiently explain the probative evidence, and permit meaningful judicial review, if necessary.
B. Alleged conflicts between vocational expert's testimony and DOT
Plaintiff contends that the ALJ erred by failing to resolve the apparent conflicts between the vocational expert's testimony and the information contained in the DOT, in violation of SSR 00-4p and contrary to the Fourth Circuit precedent. Pl.'s Mem. [D.E. 21] at 27. The undersigned disagrees.
Citing Pearson v. Colvin, Plaintiff notes that the Fourth Circuit held that the ALJ had an affirmative duty to make an independent identification of any apparent conflicts between VE testimony and the information contained in the DOT regardless of whether a conflict is identified by the VE. Pl.'s Mem. [D.E. 21] at 27 (citing Pearson v. Colvin, 810 F.3d 204, 208-10 (4th Cir. 2015)). Plaintiff points to the fact that despite Plaintiff's RFC limiting Plaintiff to jobs involving “simple instructions” (Tr. 22), three of the four jobs that the vocational expert identified were classified by the DOT with a reasoning level of 2, which required the individual “to carry out detailed but uninvolved instructions.” Pl.'s Mem. [D.E. 21] at 27-28. According to Plaintiff, the court in Thomas, 916 F.3d 307 “held that ‘short simple instructions' is consistent with a Reasoning Level of ‘1,' but inconsistent with a Reasoning Level of ‘2.'” Pl.'s Mem. [D.E. 21] at 28. Plaintiff's argument is without merit.
The Fourth Circuit in Thomas did not find that there was an inherent contradiction between limitations involving short, simple instructions and the ability to carry out detailed but uninvolved instructions as required by a reasoning level of 2. Rather, the Fourth Circuit expressly noted, and Plaintiff's brief acknowledges (Pl.'s Mem. [D.E. 21] at 29), that “some instructions, particularly if they are well-drafted, may be simultaneously short, simple, detailed, and uninvolved.” Thomas, 916 F.3d at 314. The issue in Thomas was that the “apparent” conflict between an RFC limitation to short simple instructions and jobs requiring the ability to carry out “detailed but uninvolved ... instructions” was not resolved. Id. This issue does not arise here. Plaintiff's RFC is expressly drafted to provide for “carry[ing] out simple instructions, which is defined to mean activity that is consistent with a reasoning level of ‘one' or ‘two' as defined in the Dictionary of Occupational Titles (DOT).” Tr. 22.
Even if the ALJ did err on this point, the fourth job discussed by the VE at the hearing, the job of housekeeper, makes this error harmless. The job of housekeeper carries a reasoning level of 1 per the DOT, and the VE testified that there were 133,000 such jobs available in the United States. Tr. 32, 64. This job available in this number, would be sufficient, standing alone, to uphold the disability determination. Tr. 32, 64. 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).
For the foregoing reasons, remand is not recommended on this issue.
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [D.E. 20] be GRANTED in part and DENIED in part, Defendant's Motion for Judgment on the Pleadings [D.E. 23] be GRANTED in part and DENIED in part, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
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 13, 2023 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 20, 2023.
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).