Opinion
Civil Action No. 8:18-cv-01091-JMC-JDA
04-11-2019
Meneshia Loraine Stevenson, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In March 2014, Plaintiff filed an application for DIB alleging an onset-of-disability date of November 1, 2010 [R. 244-51], and in May 2015, she filed an application for SSI. The claims were denied initially [R. 130-34] and upon reconsideration [R. 137-41] by the Social Security Administration ("the Administration"). Thereafter, Plaintiff filed a written request for hearing and, on April 12, 2017, appeared with an attorney and testified in a video hearing before Administrative Law Judge ("ALJ") William Wallis. [R. 40-73; see also R. 21.]
Plaintiff's SSI application does not appear to be a part of the record before the Court.
The ALJ issued a decision on June 15, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 21-34.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through March 31, 2019, and had not engaged in substantial gainful activity since November 1, 2010, the alleged onset date. [R. 24, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of affective mood disorder, osteoarthritis, and disorder of the back. [R. 24, Finding 3.] The ALJ also found that Plaintiff had non-severe impairments of elevated CPK sedimentation rate, hypertension, and obesity. [R. 24-25.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 25, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; can stand and/or walk for six hours in an eight-hour workday; and can sit for six hours in an eight-hour workday. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but should never climb ladders, ropes, and scaffolds. She needs to avoid more than occasional exposure to extreme cold, unprotected heights, dangerous machinery, and vibration. She retains the mental residual functional capacity to understand, remember, and carry[]out simple tasks and instructions; she can concentrate, attend, and/or persist for simple tasks during the workday; she can interact adequately with supervisors and coworkers, but should interact no more than occasionally with the general public; and she can respond appropriately to routine workplace changes. These limitations are based on the State agency consultant's assessment at [R. 94-107]. This represents a reduction of the State agency consultants' opinions supported by the record generally. [R. 109.][R. 27, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a cashier, membership services worker, mortgage analyzer, sales associate, or work flow clerk. [R. 32, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform [R. 33, Finding 10], namely, laundry aid (302.685-010), inspector (559.687-074), and stuffer (780.684-066) [R. 33]. Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, from November 1, 2010, through the date of the ALJ's decision. [R. 33, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined. [R. 1-6.] Plaintiff filed the instant action for judicial review on April 20, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that errors by the ALJ require the decision to be remanded for an award of benefits or, in the alternative, additional administrative proceedings. [Doc. 18.] Specifically, Plaintiff argues there is an apparent conflict between the RFC limiting Plaintiff to simple, routine work and the ALJ's finding that Plaintiff can perform work that has a GED reasoning code 2 or 3. [Id. at 15-16.] Plaintiff also contends the ALJ improperly weighed the medical source opinion evidence [id. at 16-20]; failed to account for Plaintiff's moderate difficulties in concentration, persistence and pace in assessing the RFC [id. at 21-24]; failed to account for Plaintiff's leg pain [id. at 24-26]; and failed to conduct an evaluation of Plaintiff's symptoms in accordance with SSR 16-3p [id. at 26-29].
The Commissioner contends the decision is supported by substantial evidence and should be affirmed. [Doc. 21.] The Commissioner argues the ALJ properly considered the opinion evidence of record [id. at 6-14]; accounted for Plaintiff's established physical and mental limitations in the RFC findings [id. at 14-20]; properly accounted for Plaintiff's leg condition in the RFC [id. at 20-22]; and properly evaluated Plaintiff's subjective allegations in accordance with SSR 16-3p [id. at 22-24]. The Commissioner also maintains that the Plaintiff's Step 5 challenge related to an apparent unresolved discrepancy between the VE's testimony and the RFC lacks merit as there was no apparent conflict. [Id. at 24-28.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 296 (1993). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." SSR 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. §§ 404.1528, 416.928 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Resolving Conflicts Between VE Testimony and the DOT
Social Security Ruling 00-4p provides that the ALJ "has an affirmative responsibility to ask [a VE] about any possible conflict between [his] evidence and . . . the DOT." SSR 00-4P, 2000 WL 1898704, at *4 (Dec. 4, 2000). Accordingly, the ALJ must ask the VE whether his or her testimony conflicts with the DOT, and if so, the ALJ must "obtain a reasonable explanation for the apparent conflict." Id. Furthermore, the ALJ must resolve this conflict prior to relying upon the VE's testimony and must explain the resolution of the conflict in his or her decision. Id. This Ruling, thus, puts the onus on the ALJ to identify and resolve any conflicts between the VE's testimony and the DOT on the ALJ. Pearson v. Colvin, 810 F.3d 204, 208 (4th Cir. 2015); see also Thomas v. Berryhill, 916 F.3d 307, 313 (4th Cir. 2019), as amended (Feb. 22, 2019) ("An ALJ cannot rely unquestioningly on a VE's testimony. Rather, an ALJ must ensure that any 'apparent' conflicts between the Dictionary and the VE's testimony are reasonably resolved."). An ALJ does not fulfill his affirmative duty found in the Ruling merely upon asking the VE whether his or her testimony is consistent with the DOT. Pearson, 810 F.3d at 208. This is true because an ALJ must investigate facts and develop the record at the hearing; the record is not fully developed if it contains an unresolved conflict between the vocational expert's testimony and the DOT. Id. at 210. Likewise, an ALJ fails to fulfill his duty "if he ignores an apparent conflict because the expert testified no conflict existed." Id.
General Educational Development Reasoning Development Levels
The General Educational Development ("GED") "embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance." 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 workers to "[a]pply commonsense understanding to carry out simple one- or two-step instructions" and "[d]eal 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 workers to be able to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations." Id. And a GED Reasoning Development Level of 3 indicates that the job requires workers to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form" and "[d]eal with problems involving several concrete variables in or from standardized situations." Id. It is undisputed that the three jobs identified by the VE as available to Plaintiff—laundry aid (302.685-010), inspector (559.687-074), and stuffer (780.684-066)—each are classified as GED Reasoning Development Level 2 ("Level 2").
Discussion
Plaintiff contends "that there is an apparent conflict between an RFC that limits Plaintiff to simple, routine work, and a finding that Plaintiff can perform work that has a GED reasoning code 2 or 3, which [would] require her to understand detailed instructions." [Doc. 18 at 15-16 (citing Pearson, 810 F.3d 204).] On the other hand, the Commissioner argues that "the ALJ found that Plaintiff could understand, remember, and carry out simple tasks and instructions; could concentrate, attend, and/or persist for simple tasks; could interact adequately with supervisors and coworkers, but only occasionally with the general public; and could respond appropriately to routine workplace changes" and that the Dictionary of Occupational Title's ("DOT") "definition of reasoning level 2 specifically contemplates something less than detailed instructions because the definition includes the phrase 'detailed but uninvolved.'" [Doc. 21 at 26-27 (quoting DOT, app. C, 1991 WL 688702) (emphasis added by Commissioner).]
There is a split among the courts in the Fourth Circuit regarding whether there is an apparent conflict when a VE testifies that jobs classified as Level 2 or 3 are performable by a claimant who is limited to simple, routine work. In this District, however, cases have been repeatedly remanded for further administrative proceedings when VEs have testified that claimants restricted to simple, routine, repetitive work were capable of performing Level 2 or 3 jobs and the ALJ failed to ask the VE about that apparent discrepancy. See, e.g., Christopherson v. Colvin, No. 6:15-cv-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016), Report and Recommendation adopted by 2016 WL 7212785 (D.S.C. Dec. 13, 2016); Shivers v. Colvin, No. 6:12-cv-3381-SB, 2014 WL 1315183, at *19-20 (D.S.C. Mar. 28, 2014); Graham-Willis v. Colvin, No. 1:12-cv-2489-JMC, 2013 WL 6840465, at *6-8 (D.S.C. Dec. 27, 2013); Martin v. Astrue, No. 6:11-cv-1572-TMC-KFM, 2012 WL 4479280, at *15-16 (D.S.C. July 27, 2012), Report and Recommendation adopted by 2012 WL 4482943 (D.S.C. Sept. 27, 2012); Phillips v. Astrue, No. 3:11-cv-1085-MBS-JRM, 2013 WL 3945310, at *8-9 (D.S.C. Aug. 14, 2012), Report and Recommendation adopted by 2012 WL 3945313 (D.S.C. Sept. 7, 2012); Reid v. Astrue, No. 6:10-cv-2118-MBS-KFM, 2012 WL 667164, at *12-13 (D.S.C. Feb. 8, 2012), Report and Recommendation adopted by 2012 WL 663482 (D.S.C. Feb. 29, 2012); Tadlock v. Astrue, No. 8:06-cv-3610-RBH, 2008 WL 628591, at *10 (D.S.C. Mar. 4, 2008).
See, e.g., Mullis v. Colvin, No. 1:11-cv-22, 2014 WL 575722, at *11, n.11 (M.D.N.C. Feb. 11, 2014), Report and Recommendation adopted by 2014 WL 2257188 (M.D.N.C. May 29, 2014) (citing cases); Williams v. Astrue, No. 3:11-cv-592-MOC-DSC, 2012 WL 4756066, at *5 (W.D.N.C. Aug. 27, 2012) ("Because the ALJ limited Plaintiff to unskilled work, and the VE suggested jobs with a reasoning development level of three or lower, there was no conflict between the VE's testimony and the DOT."). Similarly, in Shivers v. Colvin, No. 6:12-cv-3381-SB, 2014 WL 1315183 (D.S.C. Mar. 27, 2014), the court considered whether an ALJ erred in relying upon an expert's testimony when there was an alleged apparent conflict between the plaintiff's RFC and the GED levels of three jobs identified by the VE as work the plaintiff could perform. In that case, the defendant argued that the Fourth Circuit had not addressed the correlation between GED levels and a limitation to simple, routine, repetitive tasks. Id. at *3. In ruling for the plaintiff, the Shivers court noted that the District of South Carolina had previously found a conflict in the VE's testimony that jobs with a GED reasoning level of two and three could be performed by a claimant who was restricted to simple, routine, repetitive tasks. Id. Additionally, in that case, the ALJ never discussed with the VE whether the plaintiff's limitation to simple, routine, and repetitive tasks was compatible with the identified jobs; thus, the Shivers court found it would be pure speculation to find that the VE considered and resolved that issue.
In arguing that the VE's testimony that Plaintiff is capable of performing jobs classified as Level 2 does not create an apparent conflict with the restrictions the ALJ found applied to Plaintiff, the Commissioner relies on cases from the Third Circuit and does not address the cases of this District. [Doc. 21 at 26-27.]
The Commissioner also argues that even assuming that Plaintiff could not perform the three jobs the VE identified, "the VE never stated that . . . he provided an exhaustive list of occupations that Plaintiff could perform." [Doc. 21 at 26.] The salient point, however, is that the VE did not affirmatively indicate that there were any other jobs that Plaintiff could perform that existed in significant numbers in the national economy. [R. 70.] Accordingly, with the ALJ not having resolved the apparent conflict at issue here, he was not justified in relying on the VE's testimony to meet the Commissioner's burden at Step 5.
In Piner v. Berryhill, No. 1:17-317-TMC-SVH, 2017 WL 4712084, *14 (Sept. 28, 2017), this Court explained that "[a] close examination of the GED reasoning levels" supported "the existence of an apparent conflict" when a VE testified that a claimant who was limited to performing simple, routine tasks could perform a job classified as Level 2. The Piner court found that the restriction to simple, routine tasks was more akin to Level 1 than 2 "because the abilities to perform simple tasks and to make simple work-related decisions in the RFC assessment are similar to the [Level 1 requirement of being able to apply] commonsense understanding to carry out simple instructions." Id. In addition, the "need for routine tasks" is "consistent with the provision for standardized situations at [Level 1]." Id. The Court further noted that "[i]n contrast, the DOT's descriptions" of Level 2 suggest Level 2 "jobs require more detail and variables than the RFC assessment" in that case described. Id.
In this case, the ALJ found Plaintiff had the "mental residual functional capacity to understand, remember, and carry[]out simple tasks and instructions." [R. 27.] However, when questioning the VE, the ALJ failed to ask whether Plaintiff's restriction to simple work was consistent with the VE's testimony that the claimant could perform jobs that the DOT classifies as Level 2. [R. 68-72.] Because the ALJ failed to resolve this apparent conflict, the Court concludes that the ALJ erred in relying on the VE's testimony to meet the Commissioner's burden at Step 5. Accordingly, the Court concludes that this case should be remanded to the Commissioner to obtain testimony from the VE with respect to whether Plaintiff could perform the jobs at issue despite being limited to performing simple, routine work.
The apparent conflict here is between the RFC the ALJ presented to the VE in his hypothetical question and in the DOT's Level 2 classification of the jobs the VE identified. Accordingly, arguments made by the Commissioner that the record did not support any mental functional limitations other than those included in the RFC or that Plaintiff failed to offer evidence that she could not perform Level 2 jobs [Doc. 21 at 25, 27] is beside the point.
Remaining Allegations of Error
On remand, the ALJ will be able to reconsider and explain his consideration of any apparent conflicts between the DOT and the VE's testimony. Harris v. Asture, No. 9:09-0028-HFF, 2009 WL 5125215, *4 (D.S.C. Dec. 28, 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 (W.D. Va. 2002) (holding that on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). The ALJ is also reminded of his duty to account for Plaintiff's moderate limitations in concentration, persistence, and pace in the hypothetical provided to the VE in accordance with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). All of Plaintiff's remaining allegations of error should likewise be addressed by the ALJ on remand.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge April 11, 2019
Greenville, South Carolina