Opinion
C/A No. 0:18-2674-RMG-PJG
08-02-2019
Chantee Bond, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.) on the defendant's motion pursuant to sentence four of 42 U.S.C. § 405(g) that the Commissioner's decision be reversed and that the case be remanded to the Commissioner for further administrative proceedings. (ECF No. 11.) Plaintiff Chantee Bond responded arguing that this matter should be remanded for an award of benefits. (ECF No. 12.) The Commissioner replied. (ECF No. 13.)
In this action Bond raises numerous issues for this judicial review. However, in support of her position that this matter should be remanded for an award of benefits, she focuses on her argument that the ALJ erred at Step Five of the sequential process and also directs the court to the length of time that her administrative proceeding has been pending.
As part of the ALJ's duty at Step Five, the ALJ must resolve any apparent conflicts between a vocational expert's testimony and the DOT. See Pearson v. Colvin, 810 F.3d 204, 208-11 (4th Cir. 2015); SSR 00-04p, 2000 WL 1898704. Here, Bond argues that an apparent conflict does exist between the testimony provided by the vocational expert and the occupational information in the DOT, and that the ALJ erred in failing to resolve this conflict. Specifically, Bond argues that an apparent conflict exists because the occupations identified by the vocational expert have a General Educational Development ("GED") reasoning level of 2, which Bond argues exceeds her limitation to "understanding, remembering, and carrying out simple instructions." (Tr. 524.)
The DOT explains that reasoning level one requires the worker 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." DOT, App. C, 1991 WL 688702. Reasoning level two requires the worker 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.
The United States Court of Appeals for the Fourth Circuit has only very recently issued a published opinion addressing this issue. In Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), the court first observed that
The court notes that Thomas was issued while this matter was pending before this court; therefore, the ALJ did not have the benefit of Thomas.
[a]n 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. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must ask the VE whether his or her testimony conflicts with the DOT. If the answer is "yes," the ALJ "must elicit a reasonable explanation for the conflict before relying on" the testimony. Id. But even if the VE answers "no," the ALJ has an affirmative "duty to make an independent identification of apparent conflicts." Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in which a VE's testimony "seems to, but does not necessarily," conflict with the "express language" of the DOT—even if the conflict is not "obvious." Id. at 209.Thomas, 916 F.3d at 313. The Thomas Court found that an apparent conflict existed between a limitation to "short, simple instructions" and the need to carry out "detailed but uninvolved . . . instructions" as required by jobs with a GED of 2. Id. at 313.
The court also notes the non-binding decision from the Fourth Circuit in Henderson v. Colvin, 643 F. App'x 273 (4th Cir. 2016). In Henderson, the Fourth Circuit found a conflict between "an RFC that limits [the claimant] to one-to-two step instructions and GED Reasoning Code 2, which requires the ability to understand detailed instructions." Id. at 277.
Accordingly, in light of this newly issued caselaw, there appears to be an apparent unresolved conflict that requires additional explanation from the vocational expert. However, Bond's entitlement to benefits is not wholly established based on the record before the court. See Crider v. Harris, 624 F.2d 15 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record); Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) ("Whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court.") (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) ("Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than 'reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A."); but see Willing v. Berryhill, C/A No. 5:17-2030-RMG (D.S.C.) (ECF No. 33, Jan. 1, 2019) (finding where the Commissioner failed to carry her burden at Step Five of the sequential process and a significant lapse of time had occurred in the administrative processing, the claimant was entitled to a finding of disability as a matter of law). The court is mindful of the length of this process to date; however, as noted above, the decision supporting remand of this matter was issued while this matter was pending before the court. Therefore, the court recommends that the Commissioner be directed to expedite reconsideration of this matter on remand.
RECOMMENDATION
Accordingly, the court recommends that the Commissioner's motion be granted and this action be remanded for further expedited administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). August 2, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).