Opinion
Civil Action No. 6:17-3306-MGL-KFM
02-19-2019
Joel Johnson, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on January 22, 2014, alleging that he became unable to work on January 1, 2014. The application was denied initially and on reconsideration by the Social Security Administration. On October 2, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Benson Hecker, an impartial vocational expert, appeared on July 7, 2016, considered the case de novo and, on September 28, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 24- 34). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on October 26, 2017 (Tr. 1-5). The plaintiff then filed this action for judicial review.
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 on December 31, 2018.
(2) The claimant has not engaged in substantial gainful activity since January 1, 2014, the alleged onset date (20 C.F.R. § 404.1571 et seq).
(3) The claimant has the following severe impairments: obesity, late effects of cerebrovascular disease, Middle Cerebral Artery (MCA) infarction, and lymphedema (20 C.F.R. § 404.1520(c)). The claimant also has the following nonsevere impairments: hypertension, obstructive sleep apnea (OSA), edema, neuropathy, left shoulder pain, speech impediment, poor balance, cerebrovascular accident (CVA), hemiparesis, and respiratory condition.
(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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he can sit, stand, or walk for six hours each for a total of an eight hour workday with usual breaks. He can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps or stairs. He can occasionally balance, stoop, crouch, kneel, and crawl. He can occasionally perform fine and gross manipulation with the left upper extremity. He is limited to occasional overhead reaching with the left upper extremity. He must avoid even moderate exposure to hazards such as unprotected heights and moving machinery. He is limited to simple, unskilled work.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on July 9, 1965, and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using 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 C.F.R. 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 can perform (20 C.F.R. §§ 404.1569, 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2014, through the date of this decision (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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 12 months." 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 48 years old on his alleged disability onset date (January 1, 2014) and 51 years old on the date of the ALJ's decision (September 28, 2016). He has a high school education and past relevant work as a firefighter (Tr. 32).
Evidence Before the ALJ
On January 2, 2014, the plaintiff went to the hospital complaining of a severe headache in his left frontal lobe area that had started the day before. His symptoms were found to be consistent with a stroke, which was confirmed by MRI. He decompensated and was intubated and placed in intensive care. He was hospitalized from January 2 through January 15, 2014, for an acute cerebrovascular accident ("CVA"). His discharge diagnoses included acute CVA; acute respiratory failure, requiring tracheostomy and ventilator; hypertension; dysphagia resulting in percutaneous endoscopic gastrostomy ("PEG") treatment with tube feeds; acute drug rash secondary to morphine use; aspiration syndrome; haemophilus respiratory culture positive; hyperglycemia; hypocalcemia; leukocytosis; and anemia, multifactorial. Ernesto Potes, M.D., a neurologist, saw the plaintiff for a consultation after he was admitted to the hospital with complaints of difficulty controlling the left side of his face and severe high blood pressure. Dr. Potes ordered additional testing and stated, "I expect this patient to have fairly good recovery." He was discharged on January 15th to the Shepherd Center, a skilled rehabilitation facility (Tr. 243-412, 522-24).
On January 16, 2014, the plaintiff had an initial consultation with Ford Vox, M.D., for acute brain injury rehabilitation. Dr. Vox recommended rehabilitation for an estimated duration of six weeks, stroke prophylaxis, and deep venous thrombosis ("DVT") prophylaxis. Venous duplex studies revealed no evidence for DVT within the upper extremity venous systems and no evidence for DVT within the lower extremities bilaterally. It was noted that his initial MRI presented to the emergency room on January 2, 2014, showed multifocal ischemia in the light basal ganglia and scattered elsewhere in the right middle cerebral artery distribution. The MRI suggested portions were between eight and 14 days old, while smaller portions were likely three days old. The plaintiff was unable to provide a review of systems due to his diminished cognitive communications status. He required maximum assistance in all daily activities. He was overweight and had left facial droop. He was restless, but moving only his right side. He had a wet cough. He had a tracheostomy in place and a PEG tube in his abdomen. He had absence of shoulder shrug on the left. His upper and lower extremity right-sided strength was 5/5 and 0/5 on the left except for 1/5 in the triceps. He was hyperreflexic on testing of deep tendon reflexes throughout his upper and lower extremities bilaterally. It was determined that the plaintiff would benefit from inpatient rehabilitation due to his deficits in cognition, communication, and motor and sensory function. His current medications, a statin, Tri-Cor, aspirin, and Coumadin, were continued, and his estimated length of stay was six weeks. During his stay, the plaintiff had a left hip x-ray due to a fall that showed mild left hip degenerative change. He had a left ankle x-ray that showed pes planus with moderate plantar calcaneal spur (Tr. 413-30).
On April 16, 2014, Frances Kunda, M.D., evaluated the plaintiff to establish primary care. Dr. Kunda noted that the plaintiff was a former patient who suffered a major embolic stroke in January. He was initially unable to swallow at all but was now swallowing. He was getting hoarse occasionally but was able to clear his throat well. He had some weakness in his left upper extremity, with marked decrease in fine and gross motor skills in his left hand. He was to continue physical and occupational therapy at home. He was unhappy about having to continue on Coumadin, and he hoped to have his PEG tube removed soon. He had 2+ edema in his bilateral lower extremities and 1+ edema in his left hand. Impressions included CVA with left hemiparesis, essential hypertension, hyperlipidemia, and patent foramen ovale (a hole between the left and right atria). Dr. Kunda ordered blood work, continued current medications, and advised the plaintiff to follow up with Dr. Rodak (Tr. 431-34).
The plaintiff participated in extensive physical therapy from April 22 to August 7, 2014, for his stroke residuals (Tr. 648-774, 790-844). On April 22, 2014, he walked into the therapy room independently. He stated that he had a stroke and was doing "a lot better." He only verbalized the need to improve swallowing. He stated that he was able to perform all basic self-care and could make a simple meal and help with some home chores. The therapist noted that the plaintiff had excellent rehabilitation potential to reach and maintain his prior level of function. The therapist also noted that the plaintiff was independent in basic self-care and that his wife only had to provide close supervision for transfer into the shower. He had good sitting and standing balance and ambulated without a cane (Tr. 663-69).
On April 24, 2014, Dr. Potes noted that the plaintiff's left upper extremity remained weak, but that he had isolated movements in the hand. His wife indicated that his left lower extremity edema was getting better. Dr. Potes also noted that the plaintiff had no history of DVT, stood and ambulated fairly well, had very mild left lower extremity weakness in the 4/5 level as compared to 5 on the right side, and had no sensory or visual loss (Tr. 438).
On April 25, 2014, Dr. Potes evaluated the plaintiff. The plaintiff complained of left shoulder pain. Dr. Potes indicated that he seemed to have some component of bilateral bicipital tendonitis and capsulitis. On examination, the plaintiff had left upper extremity weakness at the three to four level and isolated movements in his hand. He had left hand edema and pain on abduction. He also had lower extremity edema, which his wife felt was improving. He stood and ambulated fairly well, but against some resistance he had very mild left lower extremity weakness in the four to five level compared to five on the right. Dr. Potes thought the plaintiff should see Dr. McCloud about a mass next to his esophagus. Dr. Potes also advised consultation with his cardiologist regarding anticoagulation and with an orthopaedic doctor about his left shoulder (Tr. 438-39).
On May 8, 2014, Mark A. Lijewski, M.D., a gastroenterologist, evaluated the plaintiff at Dr. Kunda's request regarding dysphagia. Dr. Lijewski noted that the plaintiff had no dysphagia prior to his stroke. Dr. Lijewski suspected that the plaintiff's oropharyngeal dysphagia was due to the stroke itself, and there was not much role for a gastroenterologist in that instance. Dr. Lijewski found the plaintiff to have mildly affected speech and left upper extremity weakness. Dr. Lijewski indicated that he would obtain copies of his gastroenterology studies (Tr. 440-43).
On May 13, 2014, James N. Ruffing, Psy.D., performed a consultative examination at the Commissioner's request. Dr. Ruffing reviewed a discharge summary from the plaintiff's stroke hospitalization and elicited histories. The plaintiff reported that he was a firefighter for 28 years until he had three strokes in January 2014. He reported that his strokes affected the left side of his body, but he was not aware of problems with cognition/thinking or emotional problems. He was able to care for his personal needs including toileting, bathing, and feeding. He performed some normal tasks and attended church once a week, but he had stopped driving since his stroke. He shopped for himself. He used cash or a debit card to pay for items; pushed a grocery cart; had friends in to socialize; could order a meal in a restaurant; could use a telephone or computer; participated in meal preparation, cleaning, and laundry; and did some yard work notwithstanding his decreased strength (Tr. 446).
The plaintiff completed the intake questionnaire himself fully and accurately. He was adequately groomed and dressed, wore glasses, and was right-hand dominant. His speech was spontaneous and responsive, but somewhat flat and sometimes slurred. He did not demonstrate aphasia or blocking. He possibly had a slight dysarthria, though this would need to be evaluated by speech clinician. The plaintiff's emotional functioning was unremarkable with an appropriate affect and a euthymic and congruent mood. He was fully oriented with unremarkable thought processes and thought content. He attended without distractibility and demonstrated normal to possibly slow processing speed. He was able to recall three unrelated words immediately and three of three after a five minute delay with interference task. Objective diagnostic testing showed that his full scale IQ was 75. His reading score was at a 12.2 grade equivalency, and his arithmetic score was at a 4.8 grade equivalency. His scores were fairly scattered and based on his educational and vocational history, Dr. Ruffing suspected that the plaintiff's overall scores reflected a decline in intellectual functioning, most likely secondary to his history of CVA. Dr. Ruffing explained that the plaintiff's poorest area of functioning was noted on the processing speed index, which measured his ability to quickly and correctly scan, sequence, or discriminate simple visual information. This involved short term visual memory, attention, and visual motor coordination. Dr. Ruffing stated, "And again, I suspect even though baseline measures are not available for comparison that this reflects a decline in his levels of ability." Dr. Ruffing diagnosed cognitive disorder, NOS secondary to history of CVA as documented in his records. The plaintiff could understand and respond to the spoken word, and he seemed able to manage concentration, persistence, and pace. He would likely require some assistance managing his finances, if awarded benefits. Dr. Ruffing concluded, "His intellectual functioning does appear to reflect a decline in cognitive ability secondary to history of CVA" (Tr. 444-47).
On May 15, 2014, the plaintiff's occupational therapist noted that the plaintiff was able to throw and catch a two pound ball. He was also able to place and remove half inch pegs and manipulate the pegs well with his left hand (Tr. 711).
On May 20, 2014, the plaintiff was treated in the emergency room for PEG tube infection and removal. No barriers to communication were noted. A physical examination revealed that his extremities appeared grossly normal and that all of his joints were normal with full range of motion (Tr. 774-88).
On May 22, 2014, the plaintiff enjoyed being outdoors for his therapy session. He was able to bend and pick up cones with his left upper extremity and had good endurance on a walking trail. He also worked with a nine pound hand exerciser and half inch peg placement (Tr. 748-49).
A psychiatric review technique questionnaire and mental residual functional capacity ("RFC") assessment were completed on May 22, 2014, by Timothy Laskis, Ph.D., a non-examining consultant on contract to the Administration. Dr. Laskis found that the plaintiff had a CVA and organic mental disorders that were not of listing level severity as they resulted in only mild restriction of activities of daily living; mild difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of decompensation, each of extended duration. Dr. Laskis opined that considering everything in the record, there was nothing to indicate that the plaintiff would be precluded from performing simple, unskilled work. Dr. Laskis specifically referred to Dr. Ruffing, who noted that the plaintiff's thought processes were unremarkable with good memory and adequate attention/concentration. With respect to understanding and memory, Dr. Laskis found that the plaintiff had no significant limitations in his ability to remember locations and work-like procedures and understand and remember very short and simple instructions. He had moderate limitations in his ability to understand and remember detailed instructions. With respect to the ability to sustain concentration and persistence, Dr. Laskis found that the plaintiff had no significant limitations in his ability to carry out very short and simple instructions, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or in proximity to others without being distracted by them, and make simple work-related decisions. He had moderate limitations in his ability to carry out detailed instructions, maintain attention and concentration for extended periods, complete a normal workday and workweek without interruptions from psychologically-based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. Dr. Laskis found that the plaintiff had no limitations in the areas of social interaction and adaptation. Dr. Laskis found that the plaintiff had the mental RFC to attend to and perform simple, unskilled work for reasonable periods of time without special supervision, attend work regularly, make work-related decisions, protect himself from work-related safely hazards, travel to and from work independently, accept supervision, and interact appropriately with co-workers and the general public (Tr. 83-88).
On May 23, 2014, Jeff M. Berry, M.D., of Cardiology Consultants, evaluated the plaintiff for hospital followup. Dr. Berry noted that the plaintiff had a transesophageal echocardiogram that was performed for a stroke that showed a possible patent foramen ovale. He had been treated with anticoagulation and had undergone extensive rehabilitation. His symptoms had improved, but he still had some weakness in his left arm. He denied chest pain, dyspnea with daily activities, palpitations, or syncope. He had normal sinus rhythm on that day. His wife was concerned that he snored at night and had daytime somnolence indicating sleep apnea. He had some significant improvement in his motor skills since his stroke, and his blood pressure was well controlled that day. Dr. Berry referred the plaintiff for a sleep study and agreed with continued anticoagulation per his neurologist (Tr. 479-81).
On May 29, 2014, Shannelle A. Campbell, M.D., evaluated the plaintiff at Dr. Potes' request for a mass in his neck. The plaintiff complained of left-sided weakness. He reported continued dysphagia. Dr. Campbell ordered a CT scan and recommended that he allow more time for his feeding tube site to heal (Tr. 450-53). A speech pathologist noted that his speech had improved greatly with no more labial or facial weakness.
On June 2, 2014, the plaintiff had a CT scan of his neck, which showed minimal calcification in the thyroid gland (Tr. 863). His occupational therapist noted that his hand function was improving (Tr. 790).
On June 9, 2014, Dr. Potes evaluated the plaintiff for followup and noted that he was on anticoagulation treatment and in physical therapy. He had gained over 20 pounds. He ambulated independently without an assistive device, had mild spasticity, and used his left upper extremity in assist mode. He had tight spasticity in his left upper extremity, with difficulty with supination, opening left hand fully, and raising it above his head. He had pain in his shoulder, and his left lower extremity was also spastic but had better movement control. He had no dysphagia, visual field loss, or visual deficits, and his voice sounded fairly normal. Dr. Potes indicated that he would not use baclofen because of the plaintiff's cognitive impairment. Dr. Potes advised the plaintiff to continue the anticoagulation as recommended by cardiology (Tr. 992).
On June 10, 2014, Dr. Campbell reevaluated the plaintiff. His CT scan showed minimal calcification in the thyroid gland. He complained of continued intermittent dysphagia but denied neck pain or change in range of motion. Dr. Campbell indicated that there were probably no interventions needed (Tr. 448-58).
On June 18, 2015, Dr. Potes noted that the plaintiff had a CVA in early 2014, with "mild residual left spastic hemiparesis" and had not had any recurrent strokes. Dr. Potes concluded that the plaintiff's main problem was marked obesity with lymphedemia of the lower extremities. A physical examination revealed that the plaintiff was alert and attentive with normal language, cognition, and mood. He had mild left spastic hemiparesis with impaired rapid alternating movements in the left hand, fairly good strength proximally, and minimal weakness in the lower left extremity as compared to the right. He stood and ambulated with his legs wide apart, mainly due to obesity. He did not need an assistive device (Tr. 993).
On June 19, 2014, Tony Rana, M.D., performed a consultative examination of the plaintiff at the Commissioner's request. Dr. Rana indicated that the plaintiff had a CVA on January 1, 2014. He could now walk normally without any assistive devices. However, he reported that he did experience quite a lot of swelling in his lower extremity, which was perplexing. He did not have any swelling in his legs prior to the stroke. He reported that the weakness in his left arm was much worse than the left leg. He was not able to do any movements with the left arm such as buttoning his shirt or picking up coins and small pins. He was able to do some gross manipulations from his left arm, but it was also weak. He was able to shower himself but required assistance from his wife with dressing. He could not tie his shoelaces due to left arm weakness. On examination, he was appropriately oriented to time, place, and person. He was able to recall the president, month, and year and to perform serial two's from 20. He was able to say the names of the months from December backwards to January fluently. He recalled two of three objects and recalled a third object with some cues. His affect was flat with minimal emotional changes. He appeared to be serious. The plaintiff's speech was clear without slurring, and no facial deficits were noted. He weighed 256 pounds and was 5' 11" tall. His left upper and lower extremities were weak. Shoulder abduction was only possible to about 40 degrees, beyond which he was not able to lift his arm up. Forward flexion was possible to about 80 degrees. Dr. Rana found weakness of the grip, and fine hand movements were decreased on the left side. His muscle power grade was three times five around the shoulder and around the wrist. No contractures are noted, but he held his left arm flexed 90 degrees at the elbow and across the body. Dr. Rana found some evidence of stiffness of the muscles of the biceps, triceps, and forearm. Tendon reflexes were exaggerated on the left arm, biceps, and over the wrist area. His right upper extremity was normal in range of motion, power range of motion, and fine hand and gross manipulations. His lower extremities showed swelling of the legs below the knees that was non-pitting type, left leg greater than the right. Dr. Johnson suspected that he might be having post-thrombotic syndrome of his legs. He had normal distal pulsations. Movements were restricted on the left side with power grade of 4+/5 in quadriceps and gastrocnemius. Reflexes in the lower extremities were symmetrical at 1+. Plantars were equivocal on the left side and down going on the right. He had normal dorsalis pedis and posterior tibial pulses. His lumbar spine flexion was 70 degrees, extension ten degrees, and lateral bend ten degrees. Dr. Rana found negative Waddell. Straight leg raising was negative. Dr. Rana's impression was right-sided CVA with weakness of the left upper extremities. He had hemiparesis. Psychological testing revealed some decline in cognitive function, and physical impairment was evident. Dr. Rana stated, "Therefore, my recommendations will be that Mr. Johnson has now reached MMI and gainful employment with current physical deficit may be difficult. I feel he may also need a guardian to monitor his funds that may be allocated to him through this process" (Tr. 467-70).
Also on June 19, 2014, Dr. Kunda evaluated the plaintiff and noted that he was still in physical therapy and making good progress. The plaintiff reported that since his last visit, he had no chest discomfort, dizziness, shortness of breath, arm tingling, slurred speech, or swelling or redness in the leg. He had decreased edema in his left upper extremity. His grip strength was 3/5, and his range of motion was intact. He had slight weakness in his left lower extremity and 1+ edema to his knee. Dr. Kunda stated, "P[atien]t is making excellent strides but is by no way ready to return to work." Dr. Kunda increased his Coumadin and continued his other medications (Tr. 471-78).
On June 27, 2014, Rico V. Mendoza, M.D., of Lung and Chest Medical Associates, performed a sleep evaluation on the plaintiff at Dr. Berry's request. The plaintiff reported falling asleep easily when sitting. He complained of excessive daytime sleepiness, snoring loudly, stopping breathing when sleeping, and morning fatigue. He indicated that he woke up four to five times during the night, and he did not feel rested after sleeping. Dr. Mendoza diagnosed obstructive sleep apnea, hypertension, gastroesophageal reflux disease ("GERD"), CVA, and hyperlipidemia. Dr. Mendoza discussed proper sleep hygiene, advised weight loss, ordered blood work, and continued current medications (Tr. 848-50).
On July 9, 2014, the plaintiff underwent a sleep study, which showed severe, obstructive sleep apnea and mildly elevated periodic limb movement (Tr. 488).
On July 16, 2014, Dale Van Slooten, M.D., a medical consultant on contract to the Administration, performed a physical RFC assessment based on his review of the record. Dr. Van Slooten found that the plaintiff could lift and/or carry 20 pounds occasionally and ten pounds frequently; could stand and/or walk for a total of about six hours in an eight-hour workday; could sit for a total of about six hours in an eight-hour workday; could push and/or pull with the left lower extremity occasionally; could climb ramps/stairs, balance, stoop, kneel, crouch, and crawl occasionally; could never climb ladders/ropes/scaffolds; and would be limited to occasional reaching, handling, and fingering with the left upper extremity (Tr. 85-87).
On August 5, 2014, Dr. Mendoza reevaluated the plaintiff and reviewed his sleep study results. Dr. Mendoza discussed sleep hygiene and continued his current treatment regimen (Tr. 845-47).
The plaintiff underwent physical therapy for his left upper extremity limitations from August 14 through October 7, 2014 (Tr. 489-517).
On August 28, 2014, the plaintiff had a polysomnogram with positive airway pressure ("PAP") titration. He was diagnosed with obstructive sleep apnea improved with continuos positive airway pressure ("CPAP") use and severely elevated periodic limb movement (Tr. 873).
On September 9, 2014, the plaintiff's therapist noted that he had both fine and gross motor use of his left upper extremity. His therapist noted that he was independent in basic self-care and that his wife only had to provide close supervision for transfer into the shower. He could make a simple meal and was beginning to help with household chores. His cognition appeared grossly intact (Tr. 497-502).
On September 11, 2014, Marlon L. Sharpe, M.D., evaluated the plaintiff for followup. He complained of weight gain and bilateral leg edema for the past three months. He also complained of some shortness of breath with walking uphill but denied chest pain. He had 1+ pitting edema in his lower extremities to his knees with stasis dermatitis and some weeping extending over his ankles. He also had weakness in his upper extremities and a droopy left face. He had increased peripheral edema and had gained a lot of weight since his last visit. Dr. Sharpe adjusted his medications and discussed diet and exercise (Tr. 965-69).
On September 23, 2014, the plaintiff's therapist noted that grip strength in the left hand was 28 pounds, up from 15 pounds initially. On September 24, 2014, the plaintiff reported that he was using his left hand to pull his pants up and that he was able to hold a can with his left hand while using a manual can opener with his right hand (Tr. 508-09).
On September 25, 2014, Dr. Mendoza evaluated the plaintiff. He reported that he was still trying to adjust to his CPAP and that he was not waking up as often as he had done before. Dr. Mendoza continued his current treatment regimen (Tr. 856-58). Also on this date, Seham El-Ibiary, M.D., a medical consultant on contract to the Administration, completed a physical RFC assessment based on the updated record. Dr. El-Ibiary found that the plaintiff was capable of performing light work with postural and manipulative limitations. Dr Eli-Ibiary added environmental limitations of avoid concentrated exposure to hazards such as machinery and heights (Tr. 101-03).
On October 1, 2014, the plaintiff reported that he was on his feet a lot more instead of sitting and watching television. He stated that he felt better and was losing weight. Physical examination revealed much improved grip strength in the left hand to 3-4/5 (Tr. 961-62). A psychiatric review technique questionnaire and mental RFC assessment were completed on this date by Larry Clanton, Ph.D, a non-examining consultant on contract to the Administration. Dr. Clanton indicated that the plaintiff's medically determinable mental impairments caused mild and moderate limitations (Tr. 99-105). Dr. Kunda also evaluated the plaintiff for followup on October 1st. He reported eating better and being on his feet more. He felt better and felt like he was losing some weight. However, Dr. Kunda indicated that his weight was up just over six pounds. He had 1+ edema of the left extremity and trace edema on the right. His grip strength in his left hand was much improved with 3-4/5. Dr. Kunda continued his current medications and advised him to continue physical therapy at the YMCA with pool therapy, which would also help with weight loss. His therapist reported that he had been working on fine motor skills and was finally able to tie his shoes (Tr. 510, 961-64).
On October 2, 2014, the plaintiff reported that he was finally able to do buttoning. He also reported that he was able to remove and place dressing pins. On October 6, 2014, he performed a nine hole peg test in 42 seconds with his left hand without dropping the pegs. This had been problematic for him in the past. On October 7, 2014, his therapist noted that grasp in his left hand had increased to 20 pounds, and he had good sitting and standing balance and ambulated without a cane. The plaintiff reported that he had started to drive with his wife present (Tr. 511-17).
On December 8, 2014, Dr. Kunda evaluated the plaintiff for followup. The plaintiff had recently been seen at the wound center for a non-healing abrasion. He reported that he had to double up his Lasix dose for a couple of days the week before due to worsening swelling in his legs. He also complained of shortness of breath with exertion. He denied slurred speech. He seemed to be adding more pounds, but both he and his wife indicated that his eating was not out of control. They were concerned about cardiac issues. A physical examination revealed +3 non-pitting edema as well as venous stasis changes in his bilateral lower extremities. Dr. Kunda continued Coumadin and other medications including Lasix. Dr. Kunda also ordered an echocardiogram (Tr. 954-59).
On December 17, 2014, Dr. Potes evaluated the plaintiff and noted that he was not tolerating his sleep apnea device because the high pressure caused air to leak causing his cheeks to vibrate and air to go into his eyes. He also complained of some tightness in his left arm. He was not weighed on that day but was markedly obese with a very large, protuberant abdomen. He had mild left spastic hemiparesis with slightly decreased rapid alternating movements and tightness in his forearm supinator and in shoulder abductors. Dr. Potes prescribed Flexeril and strongly encouraged weight loss measures (Tr. 992).
On December 19, 2014, Dr. Mendoza evaluated the plaintiff for followup. He reported that his sleep apnea symptoms had improved. He had been using his CPAP machine nightly. He denied any problems with the mask or machine (Tr. 853-55).
The plaintiff participated in occupational therapy from December 20, 2014, to January 13, 2015, for muscle weakness and lack of coordination (Tr. 882-85, 892-937).
On May 15, 2015, Dr. Kunda evaluated the plaintiff. He reported eating better and walking more but still gaining weight. He reported that he would start going to the pool at the YMCA soon. He denied any other current issues, specifically dysphgia. Physical examination revealed 2+ edema, and he was wearing support hose. His speech was slightly slurred, and although some grip had returned to his left hand, he still did not have fine dexterity and his left leg was still weak. Dr. Kunda reviewed his medications and continued them. Dr. Kunda referred him to the weight loss center (Tr. 970-75).
On June 2, 2015, Dr. Mendoza reevaluated the plaintiff for followup of sleep apnea. He reported continued use and benefit with CPAP use, which he was advised to continue (Tr. 940-42).
On June 11, 2015, Natasha Harris, NP, of the Weight Loss Services Group, evaluated the plaintiff. The plaintiff reported that he wanted to lose 140 pounds. His complaints included insomnia, difficulty swallowing, difficulty breathing at night, shortness of breath with exertion, swelling of the hands and feet, and urinary frequency. Ms. Harris indicated that the plaintiff was 71 inches tall and weighed 346.5 pounds, which equaled a body mass index ("BMI") of 48.50. He was morbidly obese. He had some grip in his left hand, but fine dexterity was not present. He also had weakness in his left leg and 2+ bilateral pedal edema due to lymphedema. Ms. Harris noted that she would not prescribe Adipex due to his previous CVA (Tr. 943-46).
On June 18, 2015, Dr. Potes evaluated the plaintiff. Dr. Potes noted that the plaintiff's cardiologist had "now signed off on the patient," and he was not sure why. The plaintiff's main problem was his marked obesity with lymphedema of the lower extremities. He weighed over 340 pounds. On examination, he had mild left spastic hemiparesis with impaired rapid alternating movements in his left hand. He had fairly good strength proximally and minimal weakness in the left lower extremity compared to the right. He ambulated with legs wide apart, due to obesity and lymphedema. Dr. Potes advised the plaintiff to go on a stringent diet to lose weight and to get a second opinion from another cardiologist (Tr. 993).
On July 23, 2015, Salvatore A. Chiaramida, M.D., of Medical University of South Carolina ("MUSC") Cardiology, evaluated the plaintiff. Dr. Chiaramida noted the plaintiff's history and records. His main residuals from his stroke were left-sided weakness and speech slurring. He had 2+/4+ pedal edema. His motor power was equal and symmetrical, and his gait was normal. Dr. Chiaramida diagnosed hyperlipidemia, hypertension, patent foramen ovale, CVA, and statin intolerance. Dr. Chiaramida recommended that the plaintiff have a consultation for his patent foramen ovale closure and a lipidology consult (Tr. 996-98).
On September 25, 2015, Dr. Kunda evaluated the plaintiff for bilateral lower extremity wounds. The plaintiff complained of bilateral leg edema and new wounds. He reported that his skin color was now red and that he hit his right leg on his running board when getting out of his truck, and it had gotten progressively worse. He complained that his skin was very tight and his legs were heavy. Dr. Kunda was unable to assess his pulses in his feet due to his edema. He was extremely edematous in his lower feet and legs to just below the knee. His skin was taught, and on the right leg it was also red and warm. Dr. Kunda found a large three by five centimeter wound that had scabbed over on his right anterior leg and a wound on his left posterior leg. Dr. Kunda started him on Keflex and Cephalexin and referred him to the wound clinic. Dr. Kunda advised him to elevate his legs to decrease swelling and wear bilateral leg wraps if he could tolerate them (Tr. 1013-16).
On November 13, 2015, Dr. Kunda evaluated the plaintiff. He had undergone a cardiac procedure in October, but the physician could not find a hole in his heart. He reported that he was still not sleeping and that his CPAP machine drove him "crazy." He reported that he slept better when he was exercising and that he planned on getting back to the gym. On examination, he was found to be morbidly obese. He had 3+ edema without pitting or drainage. His legs looked much better. He was slightly weaker in his left upper and lower extremities and had a mildly antalgic gait. Dr. Kunda continued his medications and provided him with a handicap placard because he was status-post CVA and had difficulty ambulating with weakness in his left leg and arm (Tr. 1006-12).
On March 1, 2016, Dr. Kunda evaluated the plaintiff. He reported that he was still not sleeping. He was irritable and grouchy a lot of the time and was frustrated to the point of tears because he was unable to do what he used to do. He reported having continued issues with swelling in his legs but that they were not breaking down and oozing any more. He was using wraps all the time and felt like his left hand was a bit weaker. He reported that he was not wearing his CPAP all night long and that he spent a lot of time sitting in his chair and sleeping a lot in the daytime. His weight was up nearly two pounds. He had diffuse marked edema with brawny changes bilaterally with no weeping areas. He had weakness in his left upper extremity and left lower extremity. He also had poorer eye contact. Dr. Kunda increased his dose of Diovan and continued his other medications. Dr. Kunda discussed weight loss and encouraged the plaintiff to continue using wraps, elevation, diuretics, and exercise for his leg edema (Tr. 999-1004).
On May 23, 2016, Dr. Potes evaluated the plaintiff for followup. Physical examination revealed that he was markedly obese, especially in his thighs and legs. He reported no more stroke-like episodes, but he did have mild difficulty swallowing. He had a markedly increased leg size with edema and needed to use special compression hose. He had mild left spastic sided facial weakness, mild left-sided weakness of 4/5 as compared to the right side - 5/5, and slightly spastic left-side with slowed rapid alternating movements but no dysmetria on point-to-point testing. He was able to stand in place independently, but his major limitation to gait was his size and mild left-sided weakness. His speech was fluent, and his comprehension was intact. Dr. Potes discussed weight loss and continued him on Plavix. He underwent a carotid Doppler study, which did not show any hemo-dynamically significant obstruction to flow in the extracranial internal carotid arteries (Tr. 1018-20).
On June 2, 2016, Dr. Mendoza evaluated the plaintiff for followup. The plaintiff reported that he had improved sleep quality with the CPAP. He told Dr. Mendoza that the CPAP was difficult to use at times, but that he had been using the CPAP nightly, all night long. He denied any problems with the mask or machine. He denied falling asleep easily when sitting, falling asleep while driving, excessive daytime sleepiness, or morning fatigue. Dr. Mendoza recommended that he continue his current treatment regimen (Tr. 1023-25).
At the hearing on July 7, 2016, the plaintiff testified that he stopped working on January 1, 2014, when he had a stroke. He also testified that he is right-handed. He stated that he helped "some" with laundry and cooking, rinsed the dishes and put them in the dishwasher, did "very little" vacuuming, and did a little grocery shopping. He testified that he had a driver's license and drove to Walmart the day before the administrative hearing, where he shopped for a short time. He went outside to grill and to do a little walking. He showered and shaved but claimed that his wife dressed him except for his shirt. He watched television, read, and went to church almost every Sunday (Tr. 44-62).
When asked what would keep him from working, the plaintiff stated that he did not do much with his left side because of the stroke. He claimed that he could lift very little weight with his left hand but acknowledged that he might be able to lift a half gallon of milk with his left hand. He also acknowledged that he could lift a gallon of milk with his dominant right hand. He could lift small objects, such as change, by sweeping it into his right hand with his left hand. He was able to throw a ball with his right hand (Tr. 56-69).
The plaintiff testified that his left leg was weaker as a result of the stroke. When asked if his left leg gave out, he stated that he just got tired and did not have good balance. He denied any problems with falling. He acknowledged that his speech was very understandable but claimed that he still had a little bit of slurred speech. He stated that he had swelling in both legs and in his left hand. He also stated that he used a CPAP machine at night for sleep apnea (Tr. 58-67).The plaintiff initially denied any problems with cognitive issues since the stroke, but upon further questioning, stated that his thinking was probably a little slower since his stroke (Tr. 68).
The vocational expert testified that the plaintiff's past relevant work as a firefighter was light as actually performed and very heavy as generally performed (Tr. 72). The ALJ asked the vocational expert to assume that a hypothetical individual with limitations that corresponded with the RFC assessment, including being limited to "simple, unskilled work." The vocational expert testified that the individual could perform the light, unskilled jobs of cashier II, Dictionary of Occupational Titles ("DOT") No. 211.462-010; sales attendant, DOT No. 299.677-010; and mail clerk, DOT No. 209.687-026. The vocational expert further testified that these were representative jobs and that his testimony was not in conflict with the DOT (Tr. 72-74). The plaintiff's attorney asked about the need for breaks in excess of an hour in addition to regular breaks, and the vocational expert indicated that there would be no work available. The vocational expert also indicated that there would be no work if a person missed work on average once a week due to not being able to sleep the night before (Tr. 75)
Evidence Submitted to Appeals Council
On September 30, 2016, Dr. Kunda provided a statement indicating that he had been the plaintiff's family physician for more than 20 years. Dr. Kunda stated that the plaintiff had suffered a massive CVA in 2014 resulting in a stay in the intensive care unit, tracheostomy, PEG feeding tube, and L-sided hemiplegia. He had been transferred from a local hospital to a facility for intensive rehabilitation after which he was finally able to eat on his own and had the tracheostomy reversed. He suffered continued weakness of his left lower extremity and moderate dysarthria making it hard to understand him at times. He had continued weakness and markedly decreased use of his left upper extremity with mild weakness in his left lower extremity. He had severe venous stasis disease with a history of venous ulcerations and must wear compression garments daily. He also suffered from diabetes and hypertension. Dr. Kunda stated, "Since his CVA, Mr. Johnson has not been able to perform any job duties, and can only perform his activities of daily living independently in the past year." Dr. Kunda indicated that the plaintiff could not sit or stand for prolonged periods due to his venous stasis. Dr. Kunda stated, "He is medically unable to perform any work at this point" (Tr. 20).
On August 22, 2017, Dr. Potes provided a statement indicating that he first saw the plaintiff in the hospital when he had his stroke in January 2014. He last saw him on May 23, 2017. Dr. Potes stated that the plaintiff was markedly obese, weighing close to 350 pounds. He had chronic lymphedema of the legs, which required wrapping with bandages, and his legs were always swollen. Dr. Potes stated, "Even at a sedentary job, he would need to rest away from the work station with his legs elevated for significantly more time than the usual breaks allow." Dr. Potes indicated that the plaintiff had marked osteoarthritis of his knees, so that his knees almost come together when his legs are spread apart and that he was basically knock kneed. Dr. Potes noted that on top of these problems, the plaintiff also had mild weakness and spasticity in his left arm and left leg, which made movement slow, inaccurate, and incomplete. Dr. Potes explained that this increased his difficulty ambulating. Dr. Potes indicated that the plaintiff would have difficulty with any walking and that he was confident that the plaintiff could not walk any more than two hours total out of an eight-hour work day. Dr. Potes indicated that the plaintiff's left arm, although only mildly weak, was unable to perform adequately due to the spasticity and that he would not be able to do rapid alternating movements for any skilled activity such as writing, typing, fine motor manipulation, and driving. Dr. Potes indicated that the plaintiff did not have adequate body control to maintain stability with lifting. He stated, "I am confident he would not be able to lift anything more than light things such as papers or files. He would not be able to lift 10 lbs." Dr. Potes indicated that the plaintiff suffered from sleep apnea and could not tolerate the CPAP machine, therefore causing hypersomnolence. Dr. Potes noted that the plaintiff had been prescribed the CPAP, but he was too obese to tolerate it. He required a large pressure, which caused air leakage. Dr. Potes statd that the plaintiff had difficulty speaking as a residual of the stroke and that he had spastic dysarthria, which caused difficulty with articulation. Dr. Potes indicated that he would not be able to talk on the phone. Dr. Potes further stated that the plaintiff had "suffered from these limitations since January 2014" (Tr. 7).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) improperly relying on vocational expert testimony and (2) asking an improper hypothetical that did not include his moderate limitation in concentration, persistence, or pace. The plaintiff further argues that the Appeals Council erred in failing to weigh new and material evidence in accordance with Meyer v. Astrue, 662 F.2d 700 (4th Cir. 2011) (doc. 16 at 25-34).
The plaintiff first argues that remand is warranted because the ALJ failed to obtain an explanation for the apparent conflict between the mental limitation in the RFC assessment and the requirements in the DOT for the jobs identified by the vocational expert (doc. 16 at 25-28). The undersigned agrees.
Social Security Ruling 00-4p provides in pertinent part:
When a [vocational expert ("VE")] . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE . . . evidence and information provided in the DOT. In these situations, the adjudicator will:2000 WL 1898704, at *4.
Ask the VE . . . if the evidence he or she has provided conflicts with information provided in the DOT; and
If the VE's . . . evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.
When vocational evidence provided by a VE . . . is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . evidence to support a determination or decision that the individual is or is not disabled. The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.
In Pearson v. Colvin, which was decided prior to the ALJ's decision in this case, the Court of Appeals for the Fourth Circuit ruled that an "ALJ independently must identify conflicts between the expert's testimony and the [DOT]" and that merely asking the vocational expert if there are any conflicts is insufficient. 810 F.3d 204, 209 (4th Cir. 2015). In addition, the court held that a vocational expert's testimony that apparently conflicts with the DOT can only provide substantial evidence if the ALJ receives an explanation from the vocational expert explaining the conflict and determines both that the explanation is reasonable and that it provides a basis for relying on the testimony rather than the DOT. Id. at 209-10 (citing SSR 00-4p, 2000 WL 1898704, at *2). The court further decided that "[a]n ALJ has not fully developed the record if it contains an unresolved conflict between the expert's testimony and the [DOT]" and that an ALJ errs if he "ignores an apparent conflict because the expert testified that no conflict existed." Id. at 210. In Pearson, the court concluded that, because there was no explanation regarding the apparent conflict, there was no reasonable basis in that case for relying on the vocational expert's testimony, and therefore the testimony could not provide substantial evidence for a denial of benefits. Id. at 211.
In the RFC assessment in this case, the ALJ limited the plaintiff to "simple, unskilled work" (Tr. 28). In response to the ALJ's hypothetical, the vocational expert testified that the following light, unskilled jobs would be available: cashier II, DOT No. 211.462-010; sales attendant, DOT No. 299.677-010; and mail clerk, DOT No. 209.687-026. The vocational expert further testified that his testimony was not in conflict with the DOT (Tr. 72-74). At step five of the sequential evaluation process, the ALJ relied on this testimony in finding that there are jobs that exist in significant numbers in the national economy that the plaintiff can perform (Tr. 33).
The plaintiff argues that there is an apparent conflict between the vocational expert's testimony and the DOT, which provides that the identified jobs each have a General Educational Development ("GED") Reasoning Development Level of 3. See cashier II, DOT No. 211.462-010, 1991 WL 671840; sales attendant, DOT No. 299.677-010, 1991 WL 672643; and mail clerk, DOT No. 209.687-026, 1991 WL 671813. The GED "embraces those aspects of education (formal and informal) [that] are required of the worker for satisfactory job performance. This is education of a general nature [that] does not have a recognized, fairly specific occupational objective. . . ." DOT, app. C (4th ed. Rev. 1991), 1991 WL 688702. "The GED Scale is composed of three divisions: Reasoning Development, Mathematical Development, and Language Development." Id. A GED Reasoning Development Level of 1 indicates that the job requires a worker to "[a]pply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job." Id. A GED Reasoning Development Level of 2 indicates that the job requires a worker to be able to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." Id. A GED Reasoning Development Level of 3 indicates that the job requires a worker to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." Id.
The Commissioner argues that the Specific Vocational Preparation ("SVP"), Level, and not the GED Reasoning Development Level, controls (doc. 19 at 19-20). "[SVP] is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." DOT, app. C (4th ed. Rev. 1991), available at 1991 WL 688702. Each of the jobs identified by the vocational expert have an SVP of 2, which requires "[a]nything beyond short demonstration up to and including 1 month." Id. See cashier II, DOT No. 211.462-010, 1991 WL 671840; sales attendant, DOT No. 299.677-010, 1991 WL 672643; and mail clerk, DOT No. 209.687-026, 1991 WL 671813. Thus, the Commissioner argues that the identified jobs would be consistent with the plaintiff's RFC for "simple, unskilled work" (doc. 19 at 19-20). However,
The court rejected this argument in Pearson v. Comm'r of Soc. Sec. Admin., C.A. No. 1:16-2726-PMD-SVH, 2017 WL 1378197 (D.S.C. Mar. 29, 2017), adopted by 2017 WL 1364220 (D.S.C. Apr. 14, 2017). It noted that "[t]he SVP level in a DOT listing is focused on the amount of lapsed time it takes for a typical worker to learn the job's duties," but the GED reasoning level "gauges the minimal ability a worker needs to complete the job's tasks themselves." Id. at *13, citing Snider v. Colvin, No. 7:12-539, 2014 WL 793151, at *8 n.5 (W.D. Va. Feb. 26, 2014). Thus, the factors necessary to a determination of SVP are not the same as those required for a determination of GED reasoning level, and the absence of conflict between the DOT and the [vocational expert's] testimony with respect to one does not ensure that there will be no conflict with respect to the other.Watts v. Berryhill, C.A. No.1:17-127-RMG-SVH, 2017 WL 4325685, at *13 (D.S.C. Sept. 12, 2017), R&R adopted by 2017 WL 4296722 (D.S.C. Sept. 26, 2017). See also Austin v. Berryhill, C.A. No. 1:17-1797-JMC-SVH, 2018 WL 2392209, at *21 (D.S.C. Apr. 24, 2018) ("Because the amount of time it requires an average worker to learn a job's tasks differs from the aptitude required to perform the job's tasks, the Commissioner's argument is comparing apples to oranges."), R&R adopted by 2018 WL 2389595 (D.S.C. May 24, 2018). For these same reasons, the district court should reject this argument.
The Commissioner further argues, "While courts in this district have found that a conflict exists between simple, routine, unskilled work/tasks and GED reasoning level 2 or 3 jobs, . . . there are both policy considerations and practical considerations that warrant a contrary conclusion" (doc. 19 at 19). The Court of Appeals for the Fourth Circuit has not spoken on this issue in a published case; however, the court recently held in an unpublished case that there was an apparent conflict between the vocational expert's testimony that the claimant could perform certain specified jobs, each of which had a GED Reasoning Development Level of 2, and an RFC that limited him to performing simple one to two-step tasks with low stress. Henderson v. Colvin, 643 F. App'x 273, 276-77 (4th Cir. 2016). The court explained, "Unlike GED reasoning Code 1, which requires the ability to '[a]pply commonsense understanding to carry out simple one-or-two-step instructions,' GED Reasoning Code 2 requires the employee to '[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" Id. (citations omitted). Accordingly, the court found that the ALJ erred in relying on the vocational expert's conclusory testimony and in failing to inquire further. Id. at 277-78 (citing Pearson, 810 F.3d at 209-10).
In this District, following Henderson, the court has repeatedly remanded for further administrative proceedings where the ALJ failed to inquire of the vocational expert regarding whether a claimant limited to simple, routine, repetitive work was capable of performing jobs that the DOT classified as having a GED Reasoning Development Level of 3. See Pressley v. Berryhill, C.A. No. 8:16-2716-BHH-JDA, 2017 WL 4174780, at *10-11 (D.S.C. Aug. 24, 2017), R&R adopted by 2017 WL 4156460 (D.S.C. Sept. 19, 2017) (finding apparent conflict existed between the RFC limiting the plaintiff to simple, routine, repetitive tasks and the DOT's description of the identified jobs as having GED Reasoning Development Levels 2 and 3); Dewalt-Gallman v. Berryhill, C.A. No. 9:16-2332-PMD-BM, 2017 WL 2257418, at *4 (D.S.C. May 5, 2017), R&R adopted by 2017 WL 2225133 (D.S.C. May 22, 2017) (determining that the ALJ failed to resolve a conflict between the vocational expert's identification of jobs having a GED Reasoning Development Level 3 and a restriction in the RFC to "simple, routine, and repetitive tasks requiring only simple work-related instructions and decisions as well as relatively few work place changes"); Owens v. Berryhill, C.A. No. 9:15-4830-RMG-BM, 2017 WL 627405, at *6 (D.S.C. Feb. 2, 2017), R&R adopted by 2017 WL 634696 (D.S.C. Feb. 15, 2017) (remanding for consideration of conflict between jobs with GED Reasoning Development Level 3 and RFC limitation to simple, routine, repetitive tasks); Christopherson v. Colvin, C.A. No: 6:15-44725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016), R&R adopted by 2016 WL 7212785, at *1 (D.S.C. Dec. 13, 2016) (remanding for consideration of apparent conflict between RFC limitation to simple, routine, and repetitive tasks and jobs cited by vocational expert with GED Reasoning Development Levels 2 and 3).
The Commissioner cites cases from this District and outside this District that pre-date Henderson (doc. 19 at 18). With regard to this same issue, the Honorable Donald C. Coggins, Jr., United States District Judge, recently stated:
There is authority from other circuits supporting a finding of no apparent conflict [between an RFC that limits a claimant to "simple, routine, and repetitive tasks" and GED Reasoning Development Level 2]. . . . However, in light of the absence of authority from the Fourth Circuit and given the overwhelming weight of authority from district courts in the District of South Carolina, the Court agrees there is an apparent conflict in this case warranting a remand.Williams v. Comm'r of Soc. Sec. Admin., C.A. No. 2:17-864-DCC, 2018 WL 4501239, at *3 (D.S.C. Sept. 20, 2018). See also Pack v. Berryhill, C.A. No. 9:17-2271-BHH, 2018 WL 5023608, at *3-4 ("[W]hile Defendant is correct that other courts, including other district courts in the Fourth Circuit, have reached different conclusions on this issue, the Court finds that the Magistrate Judge's recommendation is consistent with this District's application of Henderson, and that remand is therefore in order so the ALJ can resolve the apparent conflict between Plaintiff's RFC and the [vocational expert's] explanation of jobs available to her.").
The issue presented in this case is one that has troubled district courts within the Fourth Circuit. . . . [C]onsistency among the courts of this district is important to litigants and counsel, and absent contrary authority from the Fourth Circuit, the Court . . . reverses and remands to the Commissioner.
To the extent the Commissioner argues that the plaintiff's attorney was required to point out the conflict between the vocational expert's testimony and the DOT at the administrative hearing (doc. 19 at 22), the undersigned recommends that the district court reject the argument. The ALJ's affirmative duties to resolve conflicts between the DOT and the vocational expert's testimony and to identify jobs at step five cannot be shifted to the claimant. See Pearson, 810 F.3d at 210 (providing that an ALJ "has a duty to investigate the facts and develop the record independent of the claimant or his counsel" and has "not fully developed the record if it contains an unresolved conflict between the expert's testimony and the [DOT]"). See also Watson v. Colvin, C.A. No. 0:15-4935-RBH, 2017 WL 694645, at *4 (Feb. 22, 2017) (stating that SSR 00-4p "puts the onus of identifying and obtaining a reasonable explanation of any conflicts between the vocational expert's testimony and the DOT on the ALJ") (citation omitted). Similarly, the district court should reject the Commissioner's argument that any error by the ALJ in this regard is harmless (doc. 19 at 21-22).
In accordance with the reasoning of the above-cited cases, the undersigned recommends that the district court find that there is an apparent conflict between the DOT's Reasoning Development Level of 3 of the identified jobs and the vocational expert's testimony that the plaintiff could perform the identified jobs with the RFC limitation to "simple, unskilled work." While there may be a reasonable explanation for the apparent conflict, the ALJ never identified and resolved it. Accordingly, it would be speculation for the court to assume the vocational expert realized the conflict and necessarily considered it. Therefore, this action should be remanded for the ALJ to obtain vocational expert testimony in compliance with Social Security Ruling 00-4p with respect to the apparent conflict between the reasoning level for the jobs identified by the vocational expert and the limitations imposed by the ALJ in the RFC assessment.
In his second and third allegations of error, the plaintiff argues that the ALJ erred in failing to account for his moderate limitation in concentration, persistence, and pace in the hypothetical to the vocational expert and that the Appeals Council erred in failing to consider new and material evidence (doc. 16 at 29-34). Because the court recommends that this matter be remanded to the ALJ for resolution of an apparent conflict at step five of the sequential evaluation process, the remaining allegations of error will not be further addressed. The ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp.2d 757, 763-764 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo ). Accordingly, on remand, the ALJ should consider and address these allegations of error and the opinion evidence from treating physicians Drs. Potes and Kunda (see Tr. 7, 20).
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge February 19, 2019
Greenville, South Carolina
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
300 East Washington Street
Greenville, South Carolina 29601
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).