United States District Court, E.D. North Carolina, Western Division
Robert D. Plemmons. Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
T. Numbers, II, United States Magistrate Judge.
Robert D. Plemmons instituted this action in February 2018 to
challenge the denial of his application for social security
income. Plemmons claims that Administrative Law Judge
(“ALJ”) Michael Hazel erred in (1) accepting the
Vocational Expert's (“VE”) testimony because
it conflicted with the Dictionary of Occupational Titles
(“DOT”), (2) determining Plemmons's residual
functional capacity (“RFC”), and (3) considering
the opinion of his treating counselor. Both Plemmons and
Defendant Nancy A. Berryhill, Acting Commissioner of Social
Security, have filed motions seeking a judgment on the
pleadings in their favor. D.E. 12, 15.
reviewing the parties' arguments, the court has
determined that ALJ Hazel erred in his determination.
Although substantial evidence supports both his RFC
determination and his consideration of the medical opinion
evidence, ALJ Hazel's step five finding failed to resolve
a conflict between the DOT and the VE's testimony. This
issue warrants more consideration upon remand. Therefore, the
undersigned magistrate judge recommends that the court grant
Plemmons's motion, deny Berryhill's motion, and
remand the matter to the Commissioner for further
August 2014, Plemmons protectively applied for disability
benefits alleging a disability that began in February 2010.
After his claim was denied at the initial level and upon
reconsideration, Plemmons appeared before ALJ Hazel for a
hearing to determine whether he was entitled to benefits. ALJ
Hazel determined Plemmons was not entitled to benefits
because he was not disabled. Tr. at 25-37.
Hazel found that Plemmons had many severe impairments:
degenerative disc disease of the cervical spine with
radiculopathy and spinal stenosis, cervical cord syrinx,
osteoarthritis of the right knee, a post-concussive syndrome,
with possible traumatic brain injury, cervicogenic and
occipital headaches, a depressive disorder, an anxiety
disorder, and possible personality disorder. Tr. at 27. ALJ
Hazel found that Plemmons's impairments, either alone or
in combination, did not meet or equal a Listing impairment.
Tr. at 28.
Hazel then determined that Plemmons had the residual
functional capacity to perform a range of sedentary work with
limitations. Tr. at 31. Plemmons can lift and carry 20 pounds
occasionally and ten pounds frequently. Id. He can
stand or walk two hours and sit six hours in an eight-hour
workday. Id. Plemmons can stand for 30 minutes at
one time. Id. He can push and pull consistent with
his lifting limitations. Id.
should never climb ladders or scaffolds but he can
occasionally climb ramps or stairs. Id. He can
occasionally stoop, kneel, crouch, or crawl. Id.
Plemmons can occasionally rotate his neck to the left and
right, he can occasionally look up and down, and he should
only hold his head in one position for five minutes at one
should also avoid exposure to operational control of moving
machinery, unprotected heights, and hazardous machinery.
Id. He is limited to simple, routine, repetitive
tasks consistent with unskilled work. Id. Plemmons
requires a work environment involving only occasional
decision-making, occasional changes in the workplace setting,
and no strict quota requirements. Id. Finally,
Plemmons can occasionally interact with the public,
coworkers, and supervisors. Id.
Hazel concluded that Plemmons could not perform his past
relevant work as a baggage checker or ticketing clerk. Tr. at
35. But ALJ Hazel determined that, considering his age,
education, work experience, and RFC, there were other jobs
existing in significant numbers in the national economy that
Plemmons could perform. Tr. at 35-36. These include order
clerk, surveillance system monitor, and document preparer.
Tr. at 36. Thus, ALJ Hazel found that Plemmons was not
disabled. Tr. at 37.
unsuccessfully seeking review by the Appeals Council,
Plemmons started this action in February 2018. D.E. 5.
Standard for Review of the Acting Commissioner's Final
social security claimant appeals a final decision of the
Commissioner, the district court's review is limited to
determining whether, based on the entire administrative
record, there is substantial evidence to support the
Commissioner's findings. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is defined as “evidence which a
reasoning mind would accept as sufficient to support a
particular conclusion.” Shively v. Heckler,
739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The
court must affirm the Commissioner's decision if it is
supported by substantial evidence. Smith v. Chater,
99 F.3d 635, 638 (4th Cir. 1996).
Standard for Evaluating Disability
making a disability determination, the ALJ engages in a
five-step evaluation process. 20 C.F.R. § 404.1520;
see Johnson v. Barnhart, 434 F.3d 650 (4th Cir.
2005). The ALJ must consider the factors in order. At step
one, if the claimant is engaged in substantial gainful
activity, the claim is denied. At step two, the claim is
denied if the claimant does not have a severe impairment or
combination of impairments significantly limiting him or her
from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing
of Impairments. See 20 C.F.R. Part 404, Subpart P,
App. 1. If the impairment is listed in the Listing of
Impairments or if it is equivalent to a listed impairment,
disability is conclusively presumed. However, if the
claimant's impairment does not meet or equal a listed
impairment, the ALJ assesses the claimant's RFC to
determine, at step four, whether he can perform his past work
despite his impairments. If the claimant cannot perform past
relevant work, the analysis moves on to step five:
establishing whether the claimant, based on his age, work
experience, and RFC can perform other substantial gainful
work. The burden of proof is on the claimant for the first
four steps of this inquiry, but shifts to the Commissioner at
the fifth step. Pass v. Chater, 65 F.3d 1200, 1203
(4th Cir. 1995).
was involved in a vehicle accident in 2013. Tr. at 56.
Providers determined he suffered a concussion. Id.
Plemmons also has a syrinx in his neck which causes stiffness,
pain, and difficulty in maintaining his neck in one position.
Tr. at 53.
and June 2013, Plemmons sought emergency department care for
headaches and tinnitus. Tr. at 324. In August 2013, Dr.
Sudhir Batchu examined Plemmons. Tr. at 394. Dr. Batchu noted
that an MRI showed evidence of an external capsule/insular
cortex cystic malacia. Id. A cervical MRI performed
later that moth showed degenerative disc disease with a mild
bulge and a syrinx of unknown etiology at ¶ 5 to C7. Tr.
at 338. Dr. Batchu assessed syringomyelia and headaches. Tr.
continued to experience headaches, neck pain, and back
spasms. Tr. at 392. In September 2013, Dr. Batchu remarked
that Plemmons was mildly depressed and adjusted his
medications. Id. The next month, Plemmons was
involved in another motor vehicle accident. Tr. at 391. He
returned to Dr. Batchu in March 2014. Id. Dr.
Batchu's examination showed depression as well as
diminished reflexes in Plemmons's extremities.
Id. Dr. Batchu assessed Plemmons with syringomyelia
versus myelomalacia of the cord. Id. A repeat MRI
showed cervical cord syrinx with no mass or abnormal
enhancement. Tr. at 341. Dr. Batchu opined there was no
significant change to the syrinx. Tr. at 389.
months later, Dr. Prityi Rani performed a neurological
evaluation of Plemmons. Tr. at 351. Aside from impaired
sensation from T4-C4 up the mid-axillary line, Plemmons's
neurological examination was normal. Tr. at 354.
that month, Thomas Martin, Psy.D., conducted a
neuropsychological evaluation of Plemmons. Tr. at 342. Dr.
Martin assessed a cognitive disorder, a depressive disorder,
and had to rule out an affective disorder and a personality
disorder. Tr. at 346. He opined that testing suggested a
decline in Plemmons's cognitive abilities inconsistent
with a possible mild to moderate traumatic brain injury.
Id. Dr. Martin also opined that Plemmons's
cognitive and behavioral functioning may be sensitive to
distress and he should avoid strenuous activities when in
pain or fatigued. Tr. at 347. Dr. Martin also remarked that
Plemmons should be provided support as needed, work at a
comfortable pace, focus on one task at a ...