United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
case comes before the Court on cross-motions for judgment on
the pleadings. A hearing was held on these matters before the
undersigned on May 24, 2018 at Elizabeth City, North
Carolina. For the reasons discussed below, this matter is
remanded to the Acting Commissioner for further proceedings.
brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of the final decision of the
Commissioner denying his claim for supplemental security
income ("SSI") and disability insurance benefits
("DIB") pursuant to Titles II and XVI of the Social
Security Act. Plaintiff alleged disability began on September
28, 2013. His date last insured was September 30, 2017.
Plaintiff protectively filed his application on January 16,
2014. After initial denials, a hearing was held before an
Administrative Law Judge (ALJ), who issued an unfavorable
ruling on May 6, 2016, This decision became the final
decision when the Appeals Council denied plaintiffs
subsequent request for review. Plaintiff then timely sought
review of the Acting Commissioner's decision in this
the Social Security Act, 42 U.S.C. §§ 405(g), and
1383(c)(3), this Court's review of the Commissioner's
decision is limited to determining whether the decision, as a
whole, is supported by substantial evidence and whether the
Commissioner employed the correct legal standard.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Johnson v. Bamhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (internal quotation and
individual is considered disabled if he is unable "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, § I382c(a)(3)(A). The
Act further provides that an individual "shall be
determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage
in any other line of substantial gainful work which exists in
the national economy." 42 U.S.C. § l382c(a)(3)(B).
issued by the Commissioner establish a five-step sequential
evaluation process to be followed in a disability case. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four,
but the burden shifts to the Commissioner at step five.
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
If a decision regarding disability can be made at any step of
the process, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
one, if the Social Security Administration determines that
the claimant is currently engaged in substantial gainful
activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination
of impairments. If the claimant has a severe impairment, it
is compared at step three to those in the Listing of
Impairments ("Listing") in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively
presumed. If not, at step four, the claimant's residual
functional capacity ("RFC") is assessed to
determine if the claimant can perform his past relevant work.
If so, the claim is denied. If the claimant cannot perform
past relevant work, then the burden shifts to the
Commissioner at step five to show that the claimant, based on
his age, education, work experience, and RFC, can perform
other substantial gainful work. If the claimant cannot
perform other work, then he is found to be disabled. See 20
C.F.R. § 416.920(a)(4).
one, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since the application date and
that he was insured for Title II benefits through September
30, 2017. Plaintiffs residual effects of a benign brain tumor
removal, residual effects of a right foot fracture, right eye
photophobia, right ear total hearing loss, headaches, and
depression were considered severe impairments at step two but
were not found alone or in combination to meet or equal a
Listing at step three. The ALJ concluded that claimant had
the RFC to perform light work with certain limitations,
including very little to no fingering or feeling with his
right upper extremity. He was also limited to non-production
pace work. At step four the ALJ determined that claimant
could not perform his past relevant work as an auto mechanic
or tow truck driver, but, given claimant's RFC, there
were jobs that existed in significant numbers in the national
economy which plaintiff could perform, including inspector,
garment sorter and remnant sorter.
ALJ's decision is not supported by substantial evidence.
Claimant has limited functionality with his dominant hand and
is unable to write. To address this, the ALJ restricted his
RFC to little or no fingering or feeling with his right hand.
The ALJ then heard testimony from a vocational expert
("VE"), who testified inspector, garment sorter and
remnant sorter could be performed by someone with
claimant's limitations. [Tr. 86.]. The DOT, however, is
inconsistent with the VE testimony. The jobs in question, for
example, include writing and tying knots, which claimant
cannot do. See DOT §§ 539.382-0101;
there is an unresolved conflict between the DOT and the
information provided by the VE, the ALJ must elicit a
reasonable explanation for the conflict before relying on the
VE's opinion to support a determination. SSR 00-4p.
"The ALJ has not fulfilled his affirmative duty merely
because the [VE] responds 'yes' when asked
if her testimony is consistent with the [DOT]."
Pearson v. Colvin, 810 F.3d 204, 208 (4th Cir. 2015)
(internal quotation marks omitted).
Court finds that the ALJ did not fulfill that affirmative
duty, as the Commissioner's own briefing demonstrates.
[DE 17 at 24]. (Limiting a discussion of the DOT descriptions
to whether they "specifically address the isolation of
dextrous movement of either lower or upper extremity.")
(internal quotation marks omitted).
the ALJ failed to carry the burden to show that there is a
significant number of jobs that claimant can perform. See
Pass v. Chater,65 F.3d 1200, 1205 (4th Cir. 1995).