Opinion
Civil Action No. 8:17-cv-03349-RBH-JDA
01-29-2019
Leroy Bernard Foggie, 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. 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 applications for DIB and SSI, alleging an onset of disability date of January 5, 2014. [R. 245-261.] The claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 163-170; 176-181]. Plaintiff requested a hearing before an administrative law judge ("ALJ") and, on December 16, 2016, ALJ Colin Fritz conducted a de novo hearing on Plaintiff's claims. [R. 37-66.]
The ALJ issued a decision on January 13, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 17-29.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Act through March 31, 2016, and had not engaged in substantial gainful activity since January 5, 2014, the alleged onset date. [R. 19, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: lumbar stenosis, bilateral shoulder impingement, right knee degenerative joint disease, diabetes, and obesity. [R. 19, Finding 3.] The ALJ also noted Plaintiff had non-severe impairments of decreased vision in the right eye, hypertension, right axilla growth, respiratory disorder, schizophrenia, and marijuana use. [R. 22.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [R. 23, 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 his past relevant work, the ALJ determined Plaintiff had the following residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that standing and walking combined can be performed for 4 hours out of an 8-hour workday, and sitting can be performed for 6 hours out of an 8-hour workday; he can never climb ladders, ropes or scaffolds; he can occasionally climb ramps and stairs, kneel, crouch and crawl; he can occasionally stoop to lift within the exertional level from the floor to the waist; he can frequently stoop to lift within the exertional level from waist height and above; he can frequently balance; bilateral overhead reaching can be performed frequently within the exertional level; he can occasionally be exposed to bright sunlight, extreme cold, extreme heat, pulmonary irritants (such as fumes, smoke, odors, dust, gases and poor ventilation) and hazards associated with unprotected dangerous machinery or unprotected heights; he has sufficient concentration, persistence and pace to understand, remember and carry out simple, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional work place changes; and he should not be openly exposed to controlled substances or prescription medications (such as work in a law enforcement evidence facility, forensic lab, pharmaceutical manufacturing plant, medical facility or pharmacy).[R. 24, Finding 5.] The ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a machine operator, forklift driver, and bakery worker. [R. 27, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert, the ALJ determined that, through the date last insured, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 28, Finding 10.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from January 5, 2014, the alleged onset date, through the date of the decision. [R. 29, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined. [R. 1-6.] Plaintiff filed the instant action for judicial review on December 12, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that the ALJ committed error because it is not supported by substantial evidence and that the decision of the ALJ should therefore be remanded for further administrative proceedings. [Doc. 12. at 27.] Specifically, Plaintiff alleges the ALJ improperly relied on the testimony of the vocational expert ("VE") by failing to elicit an explanation for the potential conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). [Id. at 24-28.]
The Commissioner, on the other hand, contends the decision is supported by substantial evidence and should be affirmed. [Doc. 13.] The Commissioner contends there was no conflict between GED reasoning level two and simple, routine tasks where the hypothetical questions do not include an additional restriction on instructions. [Id. at 6-9.]
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 Consolidated 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). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). 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. Sargent, 941 F.2d 1207 (citing 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). Accordingly, the Court will apply the more stringent Borders inquiry.
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) (unpublished opinion); 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
Plaintiff contends that, according to the DOT, none of the jobs identified by the VE can be performed by someone with the limitations that the ALJ found Plaintiff to have. Specifically, Plaintiff argues that, because the ALJ determined that he was limited to performing simple, routine tasks, the ALJ was required to resolve conflicts between the DOT and the VE's testimony concerning these jobs with a reasoning level of 2 and 3 identified as being available to Plaintiff. [Doc. 12 at 24-28.] Plaintiff contends that "a reasoning level of 2 indicates that the job requires the person to be able to, '[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions,'" and that the Fourth Circuit has ruled that "'there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED Reasoning Code 2, which requires the ability to understand detailed instructions.'" [Id. at 24-25 (quoting DOT definition trailer and Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016)).] The Commission argues that the cases finding an apparent conflict are distinguishable because they typically include restrictions on instruction along with tasks, and there is no restriction on instruction in this case. [Doc. 13 at 7.]
The ALJ provided the following limitations in a hypothetical to the VE:
...assume a hypothetical individual of younger age, with a limited education, and past relevant work as a machine operator, as a forklift operator, and as a bakery worker, as you have just described. Hypothetical #1, over the course of an eight hour work day, in two hour increments with normal and acceptable work breaks, the person could perform work at the light exertional
level, as defined in the Rules and Regulations, except that standing and walking, combined, could be performed for four hours out of an eight hour workday. Sitting can still be performed for six hours out of an eight hour work day. So the only modification to the definition of light is reducing the standing by two hours to four hours. This person could never climb ladders, ropes or scaffolds. This person could occasionally climb ramps and stairs, kneel, crouch, and crawl. Now we are going to demarcate the stooping, here, so this person could occasionally stoop, to lift within the exertional level, from floor to waist, but could frequently stoop to lift within the exertional level, from waist height and above. This person could frequently balance. Bilateral overhead reaching can be performed frequently within the exertional level. Now-and environmentally, this person could occasionally be exposed to bright sunlight, extreme cold, extreme heat, pulmonary irritants, such as fumes, smoke, odors, dust, gases, and poor ventilation, and hazards, associated with unprotected, dangerous machinery or unprotected heights. . . . This person has sufficient concentration, persistence, and pace to understand, remember and carry out simple routine tasks, in a low stress work environment we'll define as being free of fast-pace or team dependent production requirements, involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes. Finally, this person should not be openly exposed to controlled substances or prescription medications, such as work in a law enforcement evidence facility, forensic lab, pharmaceutical manufacturing plant, medical facility or pharmacy, just for examples.[R. 60-61.] In response to a hypothetical containing these restrictions, the VE determined that Plaintiff could perform work as a shipping and receiving weigher, marker, and linen grader. [R. 61-62.] In hypothetical #2, the ALJ changed the exertion level to sedentary. [R. 62.] In response, the VE testified that Plaintiff could perform the job of an assembler and addresser. [R. 62-63.] Plaintiff argues, however, that, if he is limited to simple, routine tasks, then he cannot perform a GED 2 job, relying on Henderson, 643 F. App'x at 277. [Doc. 12 at 25.]
In Henderson, the Court considered the fact that, when an expert's testimony apparently conflicts with the DOT, substantial evidence to affirm a decision exists only if the ALJ received an explanation from the expert explaining the conflict and the ALJ determined that the explanation was both reasonable and provided a basis for relying upon the expert's testimony. 643 F. App'x at 277.
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 (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 of identifying and obtaining a reasonable explanation of any conflicts between the vocational expert's testimony and the DOT on the ALJ. Pearson v. Colvin, 810 F.3d 204, 208 (4th Cir. 2015). Specifically, an ALJ must first ask the expert if the evidence provided conflicts with the information found in the DOT, and, second, if the expert's evidence appears to conflict with the DOT, the ALJ must contain a reasonable explanation for any apparent conflict. Id. An ALJ does not fulfill his affirmative duty found in the Ruling merely upon asking the vocational expert whether his or her testimony is consistent with the DOT. Id. 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.
Discussion
There is a split among the courts in the Fourth Circuit regarding whether or not a finding by a VE that a person is limited to simple, routine work conflicts with also finding that person capable of work at the GED 2 or 3 level. But, courts in this District have 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 certain jobs that the DOT classified as reasoning level two or three. See, e.g., Christopherson v. Colvin, No. 6:15-cv-4725-JMC-KFM, 2016 WL 7223283, at *10 (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. March 18, 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. March 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, Civil 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. March 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 general education development ("GED") levels of three jobs identified by the VE as work Plaintiff could perform. In that case, the Defendant argued that the Fourth Circuit Court of Appeals has 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 an existing conflict between a GED reasoning level of two and three and a limitation to simple, routine, repetitive tasks. Id. at *3. 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 this case, the ALJ limited Plaintiff to being able to carry out simple, routine tasks and instructions. [R. 24.] The ALJ explained that he accommodated the effects of Plaintiff's pain, fatigue, and mediation side effects "by limiting him to simple, routine and repetitive tasks with occasional hazard exposure." [R. 26.] The ALJ also gave great weight to the opinions of state agency mental residual functional capacity consultants; however, a review of those records fails to mention that Plaintiff is capable of simple, routine work, and fails to give any indication of how his mediation side effects might affect his ability to work. [See, e.g., Exhibits 7A, 8A, 13A and 14A.] Plaintiff reported that his pain medications make him sleepy and dizzy and affects his breathing. [R. 299; 302.] Plaintiff also testified that his diabetes makes him feel weak, tired, and lazy on a daily basis, and that taking his medication makes him sick at least 4-5 times per week [R. 48-49]. Plaintiff also testified that he gets approximately eight hours of good sleep, about two times per week. [R. 51.] The ALJ concluded that Plaintiff's claims of debilitating pain were not consistent with the medical evidence, and that his testimony that he did not take pain medication for 1-1.5 years was inconsistent with his allegations of debilitating pain. [R. 25.] Nevertheless, the ALJ determined that limitations to simple, routine work were in order with no explanation as to how the limitations are directed to Plaintiff's legitimate claims. When questioning the VE, the ALJ did ask the VE about conflicts between his testimony and the DOT, but the conflicts the VE was focused on at the time were related to his testimony regarding time off task, absenteeism, the demarcation of stooping, and the demarcation of reaching. [R. 64.] The VE was never asked to address whether performing simple, routine work was consistent with work at an SVP 2 level of reasoning in this instance.
In light of the above analysis, and given the limitations of the RFC in this case, as well as the record, including the hearing testimony, this Court cannot say with certainty whether substantial evidence exists in the record to support the ALJ's decision to rely on the VE's testimony in finding Plaintiff capable of the indicated jobs at reasoning level 2. The Court notes that "the VE's failure to identify the alleged conflict between the DOT and the VE's testimony did not absolve the ALJ of his independent duty to consult the DOT and to determine whether the VE's testimony was consistent with its descriptions of the identified jobs." Pearson, 2017 WL 1378197, at * 12. Further, the ALJ failed to even inquire into the presence of any inconsistency between the VE's testimony and the DOT with respect to Plaintiff's limitation to simple, routine work and work performed at a reasoning level of 2. Accordingly, this Court finds it prudent to remand this case back to the Commissioner to obtain testimony from the VE with respect to conflicts with Plaintiff's limitation to simple, routine work and the identified jobs.
Remaining Allegations of Error
On remand the ALJ will be able to reconsider and explain his consideration of any conflicts between the DOT and the VE's testimony. Harris v. Asture, No. 9:09-cv-0028-HFF, 2009 WL 5125215, *4 (D.S.C. 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-764 (W.D. Va. 2002) (explaining that, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated, and the new hearing is conducted de novo). Additionally, the ALJ should be mindful to present his findings with respect to Plaintiff's moderate limitations in concentration, persistence, and pace to the VE in accordance with Mascio v. Colvin, 780 F.3d 632, 683 (4th Cir. 2015) (explaining that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.).
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 that the case be 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 January 29, 2019
Greenville, South Carolina