Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parris v. Berryhill

United States District Court, D. South Carolina, Florence Division

February 23, 2018

Daniel Wayne Parris, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration,[1] Defendant.


         This matter is before the court upon review of the Magistrate Judge's Report and Recommendation (“Report”) (ECF No. 19), recommending that the Commissioner's Decision be reversed and the matter remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with the Report. For the reasons stated below, the court ACCEPTS the Magistrate Judge's Report (ECF No. 19).


         The court concludes upon its own careful review of the record that the factual and procedural summation in the Report (ECF No. 19) is accurate, and the court adopts this summary as its own. Subsequently, the court will only recite herein, procedures pertinent to the court's review of the Report (ECF No. 19). On January 19, 2017, Magistrate Judge Thomas E. Rogers, III filed the Report (ECF No. 19) and on January 29, 2018, the Commissioner timely filed an Objection (ECF No. 22). On February 12, 2018, Plaintiff replied to the Commissioner's Objection. (ECF No. 24.)


         The court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g) which gives the court jurisdiction over a review of a final decision of the Commissioner of Social Security.


         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court, which has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objections are made. Fed.R.Civ.P. 72(b)(2)-(3).

         IV. ANALYSIS

         The Commissioner specifically objects to the “ . . . Report's finding that substantial evidence does not support the ALJ's finding that there were a significant number of jobs in the national economy that Plaintiff could perform.” (ECF No. 22 at 2.) The Commissioner asserts that “[ ], to the extent that the ALJ did not explicitly ask the VE [Vocational Expert] about apparent conflicts between the DOT [Dictionary of Occupational Titles] and the identified jobs, remand would be futile[, because Plaintiff would be able to do one of the jobs listed by the VE].” (Id. at 3.) The Commissioner also asserts that “[o]nly one job existing in significant numbers in the national economy that Plaintiff could perform needs to be identified in order for the Commissioner to meet her step-five burden.” (Id. at 2-3); see 20 C.F.R. §§ 404.1566(b), 416.966(b).

         The VE testified that Plaintiff could perform unskilled medium work such as being a production helper (DOT # 529.686-070), general laborer (DOT # 732.687-030), or warehouse worker (DOT # 922.687-058). (ECF No. 7-2 at 56.) In testifying to Plaintiff's ability to perform these jobs, the VE considered Plaintiff's age, education, work experience, and skillset, and limited his consideration to jobs not requiring depth perception or nighttime vision, jobs that are limited to one or two step tasks, and jobs that do not require interaction with the public. (Id. at 55-56.)

         In this case, there is an apparent conflict between the jobs that the VE testified Plaintiff could perform given his limitations, and the DOT. (See ECF No. 19 at 20.) Plaintiff was limited to jobs that did not require depth perception, yet according to DOT information for general laborers and warehouse workers, both of these jobs require frequent depth perception. See DICOT 732.687-030 (LABORER, Fabrication And Repair Of Sporting Goods), 1991 WL 679882; DICOT 922.687-058 (LABORER, Stores), 1991 WL 688132. The ALJ did not address these conflicts, stating:

The vocational expert did not articulate that her testimony conflicts with the information in the DOT. Furthermore, I have identified no additional inconsistencies between the vocational expert's testimony and the information in the DOT that require reconciliation under the guidance of SSR 00-4P. (ECF No. 7-2 at 39.)

         In addition, the ALJ never asked the VE whether her testimony conflicted with the DOT or for an explanation regarding the apparent conflict; thus the conflict remains unresolved.

         “When there is an apparent unresolved conflict[2] between VE or VS [Vocational Specialist] evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled.” Policy Interpretation Ruling: Titles II & XVI: Use of Vocational Expert &Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, Social Security Ruling (SSR) 00-4P, 2000 WL 1898704 (Dec. 4, 2000), at *2 (hereinafter “SSR 00-4P”). Moreover, an ALJ is required to independently identify potential conflicts between the VE's testimony and the DOT, even if the VE states that his or her testimony is consistent with the DOT. See Pearson, 810 F.3d at 208-09 (4th Cir. 2015) ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.