Opinion
No. 5:17-CV-00582-D
02-05-2019
Robert D. Plemmons. Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff 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.
After 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 action.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In 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.
ALJ 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.
ALJ 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.
Plemmons 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 time. Id.
Plemmons 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.
ALJ 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.
After unsuccessfully seeking review by the Appeals Council, Plemmons started this action in February 2018. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a 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).
B. Standard for Evaluating Disability
In 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).
C. Medical Background
Plemmons 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.
A syrinx is a fluid-filled cavity within the spinal cord (syringomyelia) or brain stem (syringobulbia). Merck Manual Professional: syrinx, available at https://www.merckmanuals.com/professional/neurologic-disorders/spinal-cord-disorders/syrinx-of-the-spinal-cord-or-brain-stem (last visited Feb. 5, 2019).
In May 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 C5 to C7. Tr. at 338. Dr. Batchu assessed syringomyelia and headaches. Tr. at 393.
Plemons 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.
Four 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.
Later 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 time, and use compensatory aids and strategies. Id. Dr. Martin observed that Plemmons's functioning may get better with an improvement in his psychiatric and physical difficulties. Id.
Brenda McGavoch, Ph.D., saw Plemmons at this time. Tr. at 383. He reported poor sleep and headaches. Id. Plemmons again reported poor sleep at a follow-up visit the next month. Tr. at 381. Dr. McGavoch diagnosed Plemmons with a cognitive disorder. Tr. at 403.
Four months later, Dr. Peter Hwang examined Plemmons for his neck pain, headaches, and knee pain. Tr. at 437. Dr. Hwang assessed Plemmons with chronic neck and back pain, chronic headaches, mild right knee arthritis, and cervical syrinx at C5-C7. Tr. at 438. But Dr. Hwang did not believe that Plemmons's syringomyelia was the cause of his chronic pain and opined that it would not preclude lifting. Id.
At a follow-up visit with Dr. Batchu three months later, Plemmons reported headaches mild depression. Tr. at 430. In August 2015, Dr. Batchu concluded that Plemmons's neck pain was severe enough at times to require him to lie down. Tr. at 405. The next month, Dr. Batchu opined that Plemmons was limited to working four hours per day, standing for thirty minutes at a time, and sitting for two hours at a time. Tr. at 429. He could frequently lift ten pounds and occasionally lift twenty pounds. Id.
In October 2015, Plemmons began treatment with Lynette Davis, LPC, for his anxiety, depression, irritability, and insomnia. Tr. at 544. Davis issued a Medical Source Statement on Plemmons functioning in December 2015. Tr. at 487. Davis opined that Plemmons had extreme limitations in his abilities to understand, remember, and carry out detailed instructions, complete a normal workday or workweek without interruption from psychologically based symptoms, and work at a consistent pace without an unreasonable number of rest periods. Tr. at 488. Davis also found that Plemmons had marked restrictions in his ability to understand and remember short and simple instructions, sustain an ordinary routine without supervision, and maintain socially-appropriate behavior. Id. And Davis concluded that Plemmons had moderate limitations in his abilities to maintain attention and concentration for extended periods, remember work-like procedures, perform activities within a schedule, maintain regular attendance, work in coordination and proximity with others, make simple work-related decisions, accept instructions and respond appropriately, and interact appropriately with the public. Id.
Plemmons reported that compensating for his neck pain has led to lower back pain. Tr. at 63. He also described suffering anxiety attacks two to three times per week. Tr. at. 58. He has crying spells and has diminished interest in hobbies. Id. Plemmons spends much of his day at home. Tr. at 61.
D. Residual Functional Capacity
Plemmons argues that ALJ Hazel failed to account adequately for his mental limitations in formulating the RFC. The Commissioner contends, and the undersigned agrees, that the evidence supports ALJ Hazel's RFC finding.
In Mascio v. Colvin the Fourth Circuit found that a limitation to simple, routine tasks or unskilled work may fail to account for a moderate limitation in concentration, persistence, or pace. 780 F.3d 632, 638 (4th Cir. 2015). The Fourth Circuit "agree[d] with other circuits that an ALJ does not account for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work" because "the ability to perform simple tasks differs from the ability to stay on task." Id. (quotation omitted). Because the ALJ failed to explain why the plaintiff's "moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [plaintiff's] residual functional capacity," the Fourth Circuit remanded the Mascio case. Id.
Although the ALJ's findings at step three may not require any additional limitations for concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient explanation in the decision to allow the court to conduct meaningful review of the RFC determination. See Scruggs v. Colvin, No. 3:14-CV-466-MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015); Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015 WL 1756480, at *3 (W.D.N.C. Apr. 17, 2015).
At step three, ALJ Hazel noted that Plemmons's mental impairments caused moderate limitations in his ability to maintain concentration, persistence, or pace. Tr. at 30. In making this finding, ALJ Hazel remarked that Plemmons testified about his loss of interest in things and his difficulty concentrating. Id. But Plemmons also stated he could complete chores without reminders or assistance and he watched his young daughter. Id. The state agency psychological consultant also found Plemmons had moderate limitations in this functional area. Id.
Standing alone, a limitation to simple, routine, repetitive tasks may not comply with Mascio because it does not sufficiently represent a moderate limitation in concentration, persistence, or pace. Here, however, ALJ Hazel also limited Plemmons to occasional decision-making, occasional changes in the work setting, and occasional interactions with others. Tr. at 31. The RFC also excluded strict quota requirements. Id. Such restrictions would appear consistent with Mascio's holding. See, e.g., Carr v. Berryhill, No. 5:17-CV-83, 2018 WL 549067, at *4 (E.D.N.C. Jan. 3, 2018) (simple, routine, repetitive tasks in a work environment that does not require fast-paced, production-rate work complies with Mascio); Green v. Berryhill, Civ. No. TMD 15-3467, 2017 WL 1048155, at *8 (D. Md. Mar. 20, 2017) (limitation to low-stress work defined as occasional decision-making and no fast-paced production work accounts for moderate limitations in concentration, persistence, or pace); Scott v. Berryhill, No. 1:16-CV-48, 2017 WL 500000, at *8 (M.D.N.C. Feb. 7, 2017) (distinguishing Mascio where RFC limited claimant to no production-pace or quota-based work, no more than occasional work with the public, and no more than occasional changes in work setting and finding these restrictions addressed claimant's ability to stay on task); Dixon v. Colvin, No. 4:14-CV-228-FL, 2016 WL 520293, at *7 (E.D.N.C. Jan. 21, 2016) (limitations for only occasional contact with coworkers and the general public, a low production occupation, no complex decision-making and no constant changes addressed claimant's moderate difficulties in concentration, persistence, or pace), adopted by 2016 WL 538460 (Feb. 9, 2016); Ravman v. Comm'r., No. SAG-14-3102, 2015 WL 6870053, at *2-3 (D. Md. Nov. 6. 2015) (RFC for "unskilled work; requires a low stress environment, such that there are few changes in the work setting and no fast-paced or quota production standards; and the claimant is limited to occasional contact with the public, supervisors, and co-workers []" addressed moderate limitation in concentration, persistence, or pace); Belton v. Colvin, No. 14-CV-777, 2015 WL 5023087, at *8-9 (M.D.N.C. Aug. 24, 2015), adopted by 2015 WL 5712732 (M.D.N.C. Sept. 29, 2015) (RFC limitation to simple, routine, and repetitive tasks, avoidance of production work or similar fast-paced jobs with deadlines and quotas addressed claimant's limitations in concentration, persistence, or pace); Ford v. Colvin, No 4:14-CV-79-D, 2015 WL 5008962, at * 3 (E.D.N.C. Aug. 19, 2015) (ALJ accounted for claimant's moderate limitations in concentration, persistence, or pace in RFC that contained limitations for low production and no constant change); Linares v. Colvin, No. 5:14-CV-120, 2015 WL 4389533, at *4 (W.D.N.C. July 17, 2015) (distinguishing Mascio where ALJ limited claimant to simple, routine, repetitive tasks as well as a stable work environment at nonproduction pace with only occasional public contact); Massey v. Colvin, No. 1:13-CV-965, 2015 WL 3827574, at *7 (M.D.N.C. June 19, 2015) (distinguishing Mascio where RFC and contained limitations for contact with public, co-workers, and supervisors; changes in the work environment; and the production pace). See also Grasso v. Colvin, Civ. No. 13-C-0112, 2013 WL 4046338, at *14 (E.D. Wis. Aug. 8, 2013) (finding restrictions to limited changes and decision-making and no production quotas accommodated moderate limitation in concentration, persistence, or pace).
Thus, the Mascio determination is distinguishable from the facts presented here. ALJ Hazel's RFC determination did not simply limit Plemmons to simple, routine, repetitive tasks consistent with unskilled work but included additional limitations to account for his mental impairments and their resulting symptoms, reflecting any limitations in Plemmons's abilities to make decisions, adjust to changes, interact with others, and perform at a certain rate. Tr. at 31. As noted above, courts have found such limitations comport with Mascio's holding.
Moreover, the opinion of state agency psychologist constitutes substantial evidence supporting ALJ Hazel's determination. Mark Altomari, Ph.D., opined that Plemmons had moderate limitations in concentration, persistence, or pace. Tr. at 98. This reviewer determined that Plemmons could still understand, remember, and carry out short and simple instructions, adapt to most work-place changes, relate appropriately to others, and make simple work-related decisions. Tr. at 103. Id.
Accordingly, Mascio does not require remand here. So the undersigned recommends that the court reject Plemmons's argument on this issue.
E. Medical Opinion Evidence
Plemmons contends that ALJ Hazel erred in assigning limited weight to the opinion of his treating counselor, Lynette Davis. The Commissioner argues that ALJ Hazel properly explained why Davis's assessment deserved little weight. The undersigned finds no error in the consideration of this medical opinion evidence.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
In January 2017, the Social Security Administration published final rules titled "Revisions to Rules Regarding the Evaluation of Medical Evidence." 82 Fed. Reg. 5844; see also 82 Fed. Reg. 15132 (Mar. 27, 2017) (amending and correcting the final rules published at 82 Fed. Reg. 5844). The revisions rescinded several Social Security Rulings. See Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (Mar. 27, 2017). These final rules became effective on March 27, 2017. Thus, they do not apply to the ALJ's decision here, issued in September 2016. The court will cite only to the rules in effect at the time of the ALJ's decision.
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight, but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ should explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must offer an explanation of the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
ALJ Hazel aptly noted that Davis, as a licensed professional counselor, does not qualify as an acceptable medical source under the Regulations. Tr. at 34. And ALJ Hazel found Davis's significant restrictions on Plemmons's functioning inconsistent with her own minimal treatment as well as irreconcilable with the overall record. Id. Thus, ALJ Hazel assigned minimal weight to Davis's assessment. Id.
Plemmons contends Davis's opinion deserves more weight because she was a treating provider and both her treatment notes and other providers' evaluations support her conclusions. But despite Plemmons's contentions to the contrary, Davis's status as a treating provider and the length of the treating relationship with Plemmons do not greatly bolster her assessment. Davis began treating Plemmons in mid-October 2015 and had provided limited treatment when she issued her assessment six weeks later. Thus, the length and nature of the treating relationship, two of the SSR 06-03p factors used in evaluating medical opinion evidence, lend little support to Davis's findings.
Plemmons contends Davis's records reflecting that he displayed sadness, a blunted affect, and impaired memory, support her Medical Source Statement. But as ALJ Hazel stated, the "extreme symptoms and limitations" Davis assessed were "not reported or observed throughout the entire relevant period[.]" Tr. at 34.
Plemmons also contends that Dr. Martin's evaluation supports Davis's assessment. Dr. Martin found that Plemmons has a cognitive disorder resulting in a decline of auditory learning or memory abilities. And Dr. Martin concluded that Plemmons is sensitive to distress and should avoid demanding activities when fatigued or in pain.
But Dr. Martin also opined that Plemmons could improve his functioning if he had assistance as needed, worked at a comfortable pace, focused on one task at a time, and used compensatory aids. ALJ Hazel gave moderate weight to Dr. Martin's assessment, suggesting that he agreed that Plemmons has some mental limitations but not to the degree alleged. Tr. at 33.
And contrary to Davis's opinion, the state agency psychological consultant concluded that Plemmons could relate appropriately to others; understand, remember, and carry out short and simple instructions; adapt to most workplace changes; and make simple work-related decisions. Tr. at 34. Finding this opinion consistent with the overall record, ALJ Hazel afforded it substantial weight. Id.
So substantial evidence supports ALJ Hazel's determination that Davis's opinion was inconsistent with the record. And given Davis's limited treatment relationship with Plemmons and his minimal mental health treatment during the relevant period, Davis's significant restriction of his functioning lacked supportability. For these reasons, the court should reject Plemmons's argument on this issue as it lacks merit.
F. Step Five
Plemmons asserts that the step five finding is flawed because the VE's testimony conflicted with the DOT. He argues that the limitation to simple, routine, repetitive tasks is inconsistent with the Reasoning Level 3 jobs identified at step five. The Commissioner contends that there was no conflict between the VE's testimony and the DOT and thus ALJ Hazel may rely on it to make his finding at step five. The undersigned finds, however, that Plemmons's argument is persuasive.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant is capable of performing is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence about the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989); Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine "whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]" 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must "[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved." SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000). "Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT." Id. "When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled." Id. "At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency." Id.
In Pearson v. Colvin, the Fourth Circuit interpreted SSR 00-04p as placing an "affirmative duty" on the ALJ to independently "identify conflicts between the [VE's] testimony and the [DOT]." 810 F.3d 204, 208-09 (4th Cir. 2015). "An ALJ has not fully developed the record if it contains an unresolved conflict between the [VE's] testimony and the [DOT]." Id. at 210.
ALJ Hazel presented a hypothetical question to the VE that contained the restrictions in Plemmons's RFC, including a limitation to simple, routine, repetitive tasks consistent with unskilled work. The VE identified three jobs that such an individual could perform. The DOT categorizes all three of the jobs—order clerk, surveillance system monitor, and document preparer—as having a reasoning level of three. Plemmons maintains that the jobs identified at step five conflict with his RFC. And Plemmons contends that ALJ Hazel failed to elicit an explanation for this conflict from the VE.
The DOT Reasoning Level functions are part of the General Educational Development ("GED"), which range from Level 1 (lowest reasoning ability) to Level 6 (highest reasoning ability). Reasoning level 3 involves "[a]pply[ing] commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal[ing] with problems involving several concrete variables in or from standardized situations."
The Fourth Circuit has not addressed this matter in a published opinion. And courts are split on whether on apparent conflict exists between a limitation for simple, routine, and repetitive tasks and an occupation that requires a Reasoning Level 3. Lorch v. Berryhill, No. 3:16-CV-076-RJC, 2017 WL 1234203, at *5 (W.D.N.C. Mar. 31, 2017) (collecting cases) (citations omitted); see also Corvin v. Berryhill, No. 5:17-CV-92-RJC-DSC, 2018 WL 3738226, at *5 (W.D.N.C. Aug. 7, 2018) (limitation to simple, routine, repetitive tasks conflicts with the VE recommended reasoning level three occupation, but remand was not required because other jobs identified at step five had reasoning level two and presented no conflict with RFC ); Solano v. Berryhill, No. 5:17-CV-203-MOC, 2018 WL 3242692, at *3 (M.D.N.C. July 3, 2018) ("Whether there is an apparent conflict between simple, routine, repetitive work and GED Level 3 is far from settled"); Taylor v. Berryhill, No. 1:17-CV-290, 2018 WL 2418560, at *4 (W.D.N.C. May 29, 2018) (recognizing split of authority about whether a conflict exists between simple, routine, repetitive tasks and reasoning level three jobs); Sanders v. Berryhill, No. 8:16-CV-03883-BHH-JDA, 2018 WL 878964, at *9 (D.S.C. Jan. 29, 2018) (observing that court within that district had remanded cases on the issue of whether a GED reasoning level of three is incompatible with the ability to perform "simple, routine, repetitive tasks."); Halpern v. Colvin, Civ. No. TDC-14-2538, 2016 WL 429965, at *10 (D. Md. Feb. 4, 2016) (noting the apparent conflict between simple, repetitive tasks, and the demands of Level 3 reasoning).
This district recently addressed the issue presented here and concluded "that there is so much disagreement within the federal courts about this issue leads the undersigned to believe there is at least an apparent conflict." Meadows v. Berryhill, No. 4:17-CV-105-FL, 2018 WL 3596064, at *4 (E.D.N.C. July 3, 2018), adopted by 2018 WL 3594980 (July. 26, 2018). And Meadows also pointed out that an internal SSA memorandum, while not binding on the court, explicitly identified this issue as one of which adjudicators were to be mindful. Id. It concluded that remand was appropriate in Meadows because the ALJ failed to resolve apparent conflicts between the VE's testimony about jobs available and the DOT. Id. See also Wright v. Colvin, No. 5:13-CV-232-D, 2014 WL 3546538, at *2 (E.D.N.C. July 17, 2014) (remanding due to "facial conflict" between an RFC limited to simple, routine, and repetitive tasks and jobs identified by VE, specifically including a reasoning level three job); Yurek v. Astrue, No. 5:08-CV-500-FL, 2009 WL 2848859, at *8-9 (E.D.N.C. Sept. 2, 2009) (remanding because "reasoning level three requirement conflicts with the ALJ's prescribed limitation that Claimant could perform only simple, routine, repetitive work" and ALJ relied on VE testimony that claimant could perform, among other things, a reasoning level three job). But see Doyle v. Colvin, No. 7:12-CV-326-FL, 2014 WL 269027, at *11 (E.D.N.C. Jan. 23, 2014) (distinguishing Yurek ).
The internal Social Security Administration memorandum cautioned adjudicators to consider GED ratings that "may appear to conflict with the claimant's RFC and cited occupation(s)" and explicitly providing as an example an occupation with a GED reasoning level of three and a claimant who is limited to "simple, routine, or unskilled tasks." 2018 WL 3596064, at *4. --------
Here, applying the Meadows rationale advocates finding that a hypothetical question restricting one to simple, routine, repetitive tasks consistent with unskilled work creates an apparent conflict with jobs the DOT classifies as reasoning level three. ALJ Hazel needed to explain this conflict. Having failed to do so, his reliance on the VE's testimony about the availability of other work lacks the support of substantial evidence. Thus, remand is warranted and the district court should grant Plemmons's motion on this issue.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Plemmons's Motion for Judgment on the Pleadings (D.E. 12), deny the Commissioner's Motion for Judgment on the Pleadings (D.E. 15), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: February 5, 2019.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE