Opinion
2:22-cv-00863-CMC-MGB
12-09-2022
DAVIS GRIFFIN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Davis Griffin (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned RECOMMENDS that the Commissioner's decision be AFFIRMED.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff initially filed his application for DIB on August 14, 2015, alleging a disability onset date of August 3, 2015. (R. at 124, 125, 143, 144.) Plaintiff was forty-eight years old on his alleged disability onset date. (R. at 125, 144.) Plaintiff claimed disability due to post-traumatic stress disorder (“PTSD”) and joint pain. (R. at 125, 144.) Plaintiff has a high school education and past relevant work as a diesel mechanic, mail carrier, and final inspector. (R. at 140, 161, 790-91.) His application was denied initially and on reconsideration. (R. at 124, 143.) After a hearing before an Administrative Law Judge (“ALJ”) on July 20, 2016, the ALJ issued a decision in which the ALJ found that Plaintiff was not disabled. (R. at 15-120.) The Appeals Council denied Plaintiff's request for review, (R. at 1-4), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Plaintiff filed a civil action following this decision, and his claim was remanded for further proceedings on August 16, 2018. (R. at 918-28.)
Pursuant to the District Court's Order remanding the case, the Appeals Council directed the ALJ to further consider the period prior to September 28, 2016. (R. at 778.) Accordingly, a second hearing was held on May 3, 2019. (R. at 832-62.) Plaintiff testified at the hearing, as did a vocational expert. (R. at 832-62.) The ALJ issued a new decision on July 30, 2019 in which the ALJ again found that Plaintiff was not disabled prior to September 28, 2016. (R. at 775-802.) Plaintiff's request for review of this decision was denied by the Appeals Council. (R. at 753-59.) This civil action followed.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2020.
(2) The claimant has not engaged in substantial gainful activity since August 3, 2015 (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: spine disorder, major joint dysfunction, obesity, affective disorder and anxiety disorder (including PTSD) (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, I find that the claimant ha[d] the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) prior to September 28, 2016, except he can occasionally climb
ladders, ropes, and scaffolds; he can occasionally stoop to lift within the exertional level from floor to the waist; he can frequently climb ramps and stairs, balance, kneel, crouch and crawl; the claimant can perform right overhead reaching frequently and bilateral handling and fingering can be performed frequently with the exertional level; the claimant can occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights; the claimant can concentrate, persist, and maintain pace to understand, remember and carry out unskilled, routine tasks, in a low stress environment (defined as being free of fast-paced or team dependent production requirements) involving the application of commonsense understanding to carry out detailed, but uninvolved, written or oral instructions with few concrete variables in or from standardized situations; he can adapt to occasional work place changes; he can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people. He can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. He can respond appropriately to reasonable and customary supervision.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on May 23, 1967 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant [could] perform prior to September 28, 2016 (20 CFR 404.1569 and 404.1569a).
(11) The claimant [was not] under a disability, as defined in the Social Security Act, prior to September 28, 2016 (20 CFR 404.1520(g)).(R. at 780-92.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff asserts that the ALJ's decision is not supported by substantial evidence because the ALJ erred in assessing Plaintiff's residual functional capacity (“RFC”). (Dkt. No. 8 at 29-33.) More specifically, Plaintiff contends that the ALJ “failed to reconcile evidence” relating to Plaintiff's ability to perform tasks and carry out instructions. (Id.) By contrast, the Commissioner argues that the ALJ's decision is supported by substantial evidence and free of legal error. (See generally Dkt. No. 9.) In the alternative, the Commissioner argues that the ALJ's error was harmless, and the Commissioner's decision should therefore be affirmed. (Id.)
Upon review of the parties' arguments, the decision, and the record, the undersigned agrees with the Commissioner and finds that any error by the ALJ does not warrant remand. The undersigned therefore RECOMMENDS that the Commissioner's decision be AFFIRMED.
I. ALJ's RFC Determination
As noted, Plaintiff contends that his RFC is not supported by substantial evidence. (See generally Dkt. No. 8.) Plaintiff asserts that “the ALJ failed to explain how he arrived at Griffin's RFC which allows for the ability to ‘concentrate, persist, and maintain pace [and] to understand, remember and carry out unskilled, routine tasks, in a low stress environment (defined as being free of fast-paced or team dependent pro[d]uction requirements) involving the application of commonsense understanding to carry out detailed, but uninvolved, written or oral instructions with few concrete variables in or from standardized situations.'” (Id. at 31-32.) Plaintiff argues that this error was not harmless because “if Griffin were limited to simple tasks or 1-2 step tasks or instructions, he could not have performed” several of the jobs identified by the vocational expert. (Id. at 32.) Plaintiff concedes that “there is one remaining job listed - cleaner - that had a reasoning level of one” but argues that such job requires interaction with the general public, which conflicts with the ALJ's finding that Plaintiff should be “largely isolated from the general public.” (Id. at 32-33.)
In response, the Commissioner asserts that the ALJ “reasonably determined that [Plaintiff] retained the RFC to understand, remember and carry out unskilled, routine tasks in a low stress environment involving the application of common sense understanding to carry out detailed, but uninvolved written or oral instructions with few concrete variables in or from standardized situations.” (Dkt. No. 9 at 1.) The Commissioner asserts that the RFC was supported by record evidence, including examination records from a Veteran's Administration mental health provider, Elisabet Ellen Rainey, M.D., and medical opinions provided by Plaintiff's other mental health providers, Patrick B. Mullen, M.D., Deborah K. Leporowski, M.D., and Judith Taylor, Ph.D. (Id. at 12-14.) The Commissioner further argues that Plaintiff would not be disabled even if he was more limited than found by the ALJ because the vocational expert identified a job that Plaintiff could perform which did not involve detailed instructions (Cleaner, Housekeeping). (Id. at 2, 16.) The Commissioner asserts that “public involvement” is not significant for this job, as confirmed by the Dictionary of Occupational Titles work function description for the job and by the vocational expert's testimony on this point. (Id. at 17.) The Commissioner therefore asserts that the decision should be affirmed. For the reasons set forth below, the undersigned agrees.
A. Legal Standard
“[R]esidual functional capacity is the most [a claimant] can still do despite [his or her] limitations.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. §§ 404.1545(a)). “The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis ” SSR 96-8p (S.S.A. July 2, 1996); accord Mascio, 780 F.3d at 636 (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ “must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). “Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason.” Id. However, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). As the party attacking the Commissioner's decision, the claimant carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
B. Analysis
Here, the ALJ weighed the medical evidence relating to Plaintiff's mental impairments before concluding that he could:
[C]oncentrate, persist, and maintain pace to understand, remember and carry out unskilled, routine tasks, in a low stress environment (defined as being free of fastpaced or team dependent production requirements) involving the application of commonsense understanding to carry out detailed, but uninvolved, written and oral instructions with few concrete variables in or from standardized situations ....(R. at 783.) To justify his RFC finding, the ALJ explained, in relevant part:
I have given considerable weight to the DDS mental opinions and analysis of Dr. Horn dated 10/16/2015 (2A) and Dr. Harkness dated 1/5/2016 (5A). Although they are nontreating and nonexamining physicians, they are specialized in the [area of] mental health, are familiar with SSA policies, regulations and definitions regarding disability, and have the advantage of reviewing a longitudinal record. Evidence received at the hearing level does not significantly contradict their opinions. However, the ability to understand, remember and carry out “very short and simple instructions” and “simple tasks” in the Mental Residual Functional Capacity Assessment is not well defined, other than to be juxtaposed on the extreme with performing “detailed” instructions or tasks. Consequently, the claimant's ability to perform the mental demands of work requires more clarification in the residual assessment. Likewise, it appears from such dichotomy and context that the consulting psychologists are assessing the claimant's minimal mental RFC regarding the ability to understand, remember and carry out work tasks and not the claimant's maximal mental RFC (see 20 CFR 404.1545 & 416.945; SSR 96-8p). Additionally, subsequent changes to the 12.00 Mental Listings require reassessment [of] the “B” criteria at the hearing level....
I have given the August 26, 2015 opinion of Patrick Mullen of Poinsett Psychiatric partial weight as he was then a second-time non-treating examining specialist, with greater (but not great) weight given to the mental status examination findings and also VA treatment notes. Dr. Mullen found that the claimant had a poor ability to relate to others and complete complex tasks, adequate ability to perform activities of daily living and complete simple tasks.
Regarding Exhibit 6F, this is an opinion completed on September 30 3015 by Deborah Leporowski, PsyD, finding that the claimant appears to have the ability to perform simple tasks at a reasonable pace that does not involve interaction with the public. Great weight is given to examining specialist opinion, as it is the only fully supported mental health examination the file (as opposed to Dr. [Mullen's] conclusory opinions)....
Regarding Exhibit 12F, this is another opinion completed by Patrick Mullen, this time date April 19, 2016 from Poinsett Psychiatric and it is a mental residual functional capacity opinion/technique finding moderate limitations in understanding and remembering simple instructions; make judgments on simple and complex work-related decisions, and responding to changes in routine work settings, and marked limitations in carrying out simple instructions; understanding[,] remembering [and] carrying out complex instructions; interacting appropriately with the public, supervisors and coworkers. He found improved behavioral flexibility with poor emotional control and chronic pain. I have given some weight [] to the check box form opinion, but greater weight cannot be given as there are no substantiating examination reports, mental status examination findings (other than 3F), or narrative support (other than 8F; and 1OF; 23F; 24F
summaries). The VA treatment reports are more persuasive, and do not support the severity of his opined limitations.
Regarding Exhibit 24F, this is yet another opinion from Dr. Mullen from January 2017 consisting of an attorney questionnaire with non-treating evaluations on November 19, 2014 and February 8, 2016, and August 12, 2016. Dr. Mullen noted that the claimant demonstrated scattered thinking and that slow cognitive processing and poor concentration have worsened in each visit.... Dr. Mullen is a non-treating examining specialist with limited evaluation frequency, hired by and paid by claimant's prior representative, still with no substantiating examination reports, all of which renders his opinions less persuasive. The VAMC treatment records (see e.g. 13F; 29F) and DDS opinions are still more comprehensive, informative and persuasive.(R. at 787-89.)
Plaintiff argues that this analysis is insufficient because the ALJ did not build a logical bridge from the evidence to his conclusions and did not explain “how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” (Dkt. No. 10 at 1, quoting SSR 96-8p.) Specifically, Plaintiff contends that the ALJ did not clarify why he relied on “the state agency opinions and Dr. Leporowski's opinions yet provided greater ability than those providers opined,” or why he discounted the recommendations of Drs. Horn and Harkness, the state agency psychological consultants, after concluding that “evidence received at the hearing level did not significantly contradict the opinions of [these] examiners.” (Id. at 2-3.) Plaintiff contends that “[t]here is no indication that Drs. Horn and Har[k]ness were expressing Griffin's minimum RFC rather than his maximum RFC,” as the ALJ purports. (Id. at 5.)
The undersigned finds Plaintiff's arguments convincing. Indeed, the ALJ's decision does not build the requisite accurate and logical bridge from the evidence to his conclusion that Plaintiff could perform “unskilled, routine tasks, in a low stress environment . . . involving the application of commonsense understanding to carry out detailed, but uninvolved, written and oral instructions with few concrete variables in or from standardized situations.” See Arakas, 983 F.3d at 95 (referencing Monroe, 826 F.3d at 189.) For example, the ALJ does not explain how or why the straightforward recommendations from Drs. Horn and Harkness (i.e., that Plaintiff could perform “simple tasks” and execute “very short and simple instructions”) were not well defined and/or required additional clarification. (R. at 133, 787.) This is particularly concerning in light of the fact that the Dictionary of Occupational Titles specifically includes “simple . . . instructions” in its description of Reasoning Level 1, indicating that the ALJ should have a clear understanding of what these phrases mean from a disability perspective. See Appendix C - Components of the Definition Trailer, 1991 WL 688702.
Further, the ALJ provides no explanation for how he reconciled the recurring opinions that Plaintiff was at least “moderately limited” in his ability to understand instructions with his conclusion that Plaintiff could carry out “detailed, but uninvolved instructions.” (R. at 787-89.) Ultimately, the ALJ does not point to substantial record evidence supporting Plaintiff's limitation to “unskilled, routine tasks, in a low stress environment . . . involving the application of commonsense understanding to carry out detailed, but uninvolved, written and oral instructions with few concrete variables in or from standardized situations.” (R. at 787-89.) Similarly, although the Commissioner explains why certain record evidence does not contradict the ALJ's conclusion, the Commissioner, too, fails to demonstrate substantial evidence in support of the ALJ's finding. (Dkt. No. 9 at 11-16.) The ALJ's decision “should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Lewis v. Saul, No. 1:19-cv-3457-JMC-SVH, 2020 WL 9848757, at *15 (D.S.C. Oct. 8, 2020), adopted, No. 1:19-CV-03457-JMC, 2021 WL 1961010 (D.S.C. May 17, 2021) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ's decision does not do so here.
Nevertheless, the ALJ's error is harmless because Plaintiff could have performed a job that existed in significant numbers in the national economy even if he was unable to perform unskilled, routine tasks or carry out detailed, uninvolved instructions. Indeed, Plaintiff concedes that one of the jobs identified by the vocational expert as a job Plaintiff could perform within the relevant RFC-Cleaner, DOT number 323.687-014-had a reasoning level of one, which does not require these abilities. (Dkt. No. 8 at 32.) Plaintiff nonetheless contends that this case must be remanded because the cleaner job requires interaction with the public. (Id. at 33.) Plaintiff claims that this is inconsistent with the ALJ's conclusion that Plaintiff must be “largely isolated from the general public.” (Id.) According to Plaintiff, this presents a “potential conflict . . . for which no explanation was provided.” (Id.) In response, the Commissioner notes that the “[Dictionary of Occupational Title's] worker function description of this occupation confirms that involvement of people is ‘not significant'” for this job. (Dkt. No. 9 at 17.) The Commissioner also points to testimony from the vocational expert, which states that there is “no general public” requirement for the cleaner position. (Id., citing to R. at 858.) In reply, Plaintiff asserts that the cleaner job, on its face, requires interaction with the public and therefore creates a potential conflict with the vocational expert's testimony that the ALJ did not address. (Dkt. No. 10 at 5.)
To the extent Plaintiff argues that he is precluded from the cleaner job because he is limited to being largely isolated from interaction with the public, the undersigned disagrees. The ALJ did not conclude that Plaintiff was incapable of performing jobs that require any public interaction at all. (R. at 784.) Rather, the ALJ determined that Plaintiff should be “largely isolated from the general public.” (R. at 784) (emphasis added). Thus, Plaintiff would be capable of performing jobs that require minimal public interaction under the ALJ's recommended RFC. (R. at 783.)
Regardless, public interaction does not appear to be a requirement of the cleaner position. See DOT 323.687-014 Cleaner, Housekeeping, 1991 WL 672783. The job description states that a cleaner:
Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons.Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title. May be designated according to type of establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area cleaned as Sleeping Room Cleaner (hotel & rest.).Id. Further, the job description does not include limits or requirements for interaction with the public. Id. Instead, it notes that “People: [] Taking Instructions-Helping is “N - Not Significant” for the job. Id. Similarly, “[t]alking” is “[n]ot [p]resent” because this “[a]ctivity or condition does not exist” as part of the job. (Id.) As such, the job description for the cleaner position shows that the ability to interact with the general public is not a prerequisite for the role. Id. Accordingly, the undersigned finds no conflict between the vocational expert's testimony that the cleaner job does not require interaction with the general public and the Dictionary of Occupational Title's description of the job. See Bilodeau v. Colvin, No. 2:12-cv-1298-CMC-BHH, 2013 WL 3880132, at *6 (D.S.C. Jul. 26, 2013) (holding that since the Dictionary of Occupational Titles does not address limitations with public interaction, there was no conflict); see also Brock v. Colvin, No. 2:13-CV-0039-FDW-DSC, 2014 WL 5328651, at *11 (W.D. N.C. Oct. 20, 2014) (“Since the [Dictionary of Occupational Titles] does not classify the cleaner job as involving ongoing interaction with the public, there is no conflict between Plaintiff's limitations and the [Diction ary of Occupational Titles].”). The ALJ does not commit reversible error by failing to acknowledge a conflict that does not exist. See Jude v. Kijakazi, No. CV 1:21-00010, 2022 WL 4594501, at *3 (S.D. W.Va. Sept. 30, 2022) (explaining “[w]ithout a conflict between the [vocational expert's testimony] and [the Dictionary of Occupational Titles], the [ALJ's] failure to ask the question was indeed harmless” and collecting cases in support of this conclusion).
To the extent Plaintiff argues that this portion of the job description mandates interaction with the public, the undersigned disagrees, as rendering assistance does not necessarily require human interaction.
The undersigned notes that, contrary to Plaintiff's assertions, the ALJ asked the vocational expert if there were any direct or apparent conflicts between the vocational expert's testimony and the Dictionary of Occupational Titles or its companion publications. (R. at 857.) The ALJ said there were not. (R. at 857.)
In sum, any error by the ALJ in finding that Plaintiff was able to perform unskilled, routine tasks and carry out detailed, but uninvolved instructions was harmless because he could have performed a job that existed in significant numbers in the national economy even if he was unable to perform such tasks or follow such instructions. See Harris v. Comm'r of Soc. Sec. Admin., No. 4:18-cv-00001-JMC, 2019 WL 1274724, at *4 (D.S.C. Mar. 19, 2019) (“The relevant question under this harmless error inquiry is whether the ALJ's failure to weigh or consider [evidence] materially affected the disability determination.” (quoting Bennett v. Colvin, No. 2:13CV189, 2014 WL 1603737, at *9 (E.D. Va. Apr. 21, 2014)). The undersigned therefore recommends that the Commissioner's decision be affirmed.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).