Opinion
Civil Action No. 6:18-1109-RBH-KFM
05-08-2019
Rosett M. Miller, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on October 27, 2011. In both applications, the plaintiff alleged that she became unable to work on October 1, 2009. Both applications were denied initially and on reconsideration by the Social Security Administration. On April 13, 2012, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and J. Adger Brown, an impartial vocational expert, appeared at a hearing on December 19, 2013, in Myrtle Beach, South Carolina, considered the case de novo, and on January 27, 2014, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 166-77). The Appeals Council granted the plaintiff's request for review and remanded the case to the ALJ on May 28, 2015 (Tr. 186-87).
On July 25, 2017, a second hearing was held by video. The plaintiff appeared with her attorney in Myrtle Beach, and the ALJ presided from North Charleston (Tr. 42-73). Mark A. Stebnecki, Ph.D., an impartial vocational expert, also appeared at the hearing. The plaintiff amended her alleged onset date to July 3, 2012. On September 28, 2017, the ALJ found that the plaintiff was not under a disability, as defined by the Social Security Act, as amended. The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on February 20, 2018 (Tr. 1-3). The plaintiff then filed this action for judicial review.
In the transcript of the second hearing, the ALJ stated that the plaintiff's attorney wanted to confirm that the plaintiff had amended her alleged disability onset date to July 3, 2013 (Tr. 44) (emphasis added). However, the parties state in their briefs that the plaintiff amended her alleged disability onset date to July 3, 2012, which is the date used by the ALJ in the hearing decision (Tr. 20; doc. 15 at 1; doc. 17 at 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through September 30, 2013.
(2) The claimant has not engaged in substantial gainful activity since July 3, 2012, the amended alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe combination of impairments: carpal tunnel syndrome (CTS), arthritis of the knees, and obesity (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, 416.926).
(5) 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 C.F.R. 404.1567(b) and 416.967(b) except she must never climb ladders, ropes, or scaffolds. The claimant can occasionally climb ramps and/or stairs, as well as occasionally kneel, crouch, and crawl. She can frequently stoop. The claimant can frequently perform handling. She can use a hand held assistive device only for uneven terrain or prolonged ambulation. The claimant must avoid concentrated exposure to fumes, odors, dusts, and gases. She must avoid moderate exposure to unprotected heights and dangerous moving machinery. The work, which she can do, is limited to occupations, which involve the performance of simple, routine, repetitive tasks, with only occasional changes in the work setting.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on April 24, 1969, and was 43 years old, which is defined as a younger individual age 18-49, on the amended alleged disability onset date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled" whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2009, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).
This was the plaintiff's original alleged onset date of disability and appears to be a typographical error (Tr. 166).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 43 years old on her amended alleged disability onset date (July 3, 2012) and 48 years old on the date of the ALJ's decision (September 28, 2017). She completed one year of college and has past relevant work experience in retail sales and as a telephone directory delivery driver and home health attendant (Tr. 31, 339).
On July 3, 2012, the plaintiff began seeing Thomas Garland, M.D., at Little River Medical Center. She had been without medical care for two years and had not taken any medication "in some time." She was diagnosed with asthma, edema of ankles, toe numbness in both feet, a history of osteoarthritis, scoliosis, diabetes, and hypertension. Dr. Garland wrote that he could not do much about her carpal tunnel syndrome because she did not have insurance (Tr. 763-65). On August 3, 2012, the plaintiff had back and knee pain (Tr. 757).
On August 8, 2012, Steven D. Callihan, M.D., of Strand Orthopaedic Consultants, treated the plaintiff with an injection in her right knee. She had medial joint line tenderness and effusion (Tr. 714).
On September 4, 2012, the plaintiff saw Dr. Garland for foot and ankle edema (Tr. 755). On September 25, 2012, she reported inflammation of both hands and wrists due to carpal tunnel syndrome (Tr. 753). On October 29, 2012, she still had problems with carpal tunnel syndrome and right knee pain (Tr. 749).
On February 1, 2013, the plaintiff returned to Dr. Callihan with worsening of discomfort in her right knee and received another injection (Tr. 715).
On May 16, 2013, the plaintiff saw Dr. Garland for an aggravation of her asthma (Tr. 744, 746). On June 25, 2013, she was seen for depression, left foot and ankle edema, and recent problems with asthma (Tr. 741).
On July 1, 2013, the plaintiff was seen by David Lukowski, M.D., at McLeod Physicians Associates, for bilateral hand pain and numbness. She was diagnosed with bilateral carpal tunnel syndrome and received injections (Tr. 725-27).
On July 16, 2013, the plaintiff was seen by a social worker at Little River Medical Center. She reported that she was more irritable and had yelled at the children who were placed with her by the Department of Social Services. She believed she had two personalities, and, while describing past abuse, she dissociated, and her personality was more childish. She reported frequent anxiety attacks and isolative behavior. Her cognitive functioning was abnormal, and perceptual disturbances were noted. She endorsed daily flashbacks and frequent nightmares. Her mood was depressed and concerned. Her affect was tearful. The plaintiff was diagnosed with delayed post traumatic stress disorder ("PTSD"), depression, dissociative identity disorder, and panic disorder without agoraphobia, and she was assessed with a Global Assessment of Functioning ("GAF") of 55 (Tr. 788-91).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id. The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
On July 25, 2013, Dr. Lukowski indicated that her right carpal tunnel syndrome was worse than her left. She opted to proceed with surgery, starting with the left wrist followed by the right (Tr. 723).
On October 3, 2013, Dr. Garland treated the plaintiff for diabetes, asthma, osteoarthritis, depression, panic disorder, reflux, and hypertension (Tr. 735-41).
On October 15, 2013, the plaintiff underwent left carpal tunnel release for her severe left carpal tunnel syndrome (Tr. 699).
On October 29, 2013, Dr. Callihan gave the plaintiff another injection for the osteoarthritis of her right knee (Tr. 717-18).
On October 30, 2013, Dr. Lukowski told the plaintiff to wear wrist splints full time at night for her carpal tunnel syndrome and during the day if she was doing any activities. She was limited to no lifting over five pounds for the next month. She was told that because she had severe median nerve entrapment, it would take several months to a year to see the final outcome (Tr. 720).
On November 8, 2013, the plaintiff saw Dr. Garland for cellulitis of the right axila (Tr. 732-35). On November 11, 2013, Dr. Garland noted that the plaintiff took care of her brother's baby three days a week (Tr. 730-32).
On November 12, 2013, the plaintiff reported to Little River Medical Center that she had recently been sexually assaulted. She was not well appearing. Her mood was expansive and depressed, and she demonstrated excessive crying. She reported that she heard voices that told her what to do. The plaintiff said she had a decreased ability to concentrate. She experienced paranoid ideations, racing thoughts, a change in personality, and crying for no reason. Her cognitive functioning was abnormal, her estimated intelligence was not average, and perceptual disturbances were noted. Her attitude was distractible, her mood was depressed, and her affect was sad and tearful (Tr. 796-800).
On November 25, 2013, Sara D. Hartlaub, LISW-CP, noted that the plaintiff was resistant to seeing a psychiatrist (Tr. 799).
On January 10, 2014, a duplex venous doppler of the plaintiff's right upper extremity showed an occlusive thrombosis (Tr. 834). On January 15, 2014, the plaintiff had deep vein thrombosis ("DVT") and was treated with blood thinning medication (Tr. 801)
On February 25, 2014, the plaintiff was seen by Dr. Callihan for osteoarthritis of her knee, knee pain, low back pain, and sciatica. She also reported irritation in her eyes and vision changes. She had arm pain on exertion, arthralgias, joint pain, swelling in the extremities, weakness and numbness, depression, and sleep disturbances. She stated that she had numbness in her entire right leg down to her toes. She received an injection in her knee. Certain chairs in her house caused her to have numbness down the entire right leg after sitting for three to four minutes (Tr. 856-60).
On February 27, 2014, the plaintiff saw Dr. Garland for chronic back pain that radiated down her right leg with numbness in her toes (Tr. 802). On February 28, 2014, an MRI of her lumbar spine demonstrated degenerative disc disease and mild to moderate facet arthrosis resulting in narrowing of the spinal canal and mild to moderate narrowing of the neural foramina with neural foraminal narrowing most pronounced on the right at L4-5 and bilaterally at L5-S1. A signal abnormality was concerning for avascular necrosis ("AVN") or a subchondral insufficiency fracture (Tr. 804).
On March 10, 2014, the plaintiff reported left wrist pain. Her signs and symptoms were consistent with a triangular fibrocartilage complex ("TFCC") sprain. She had recurring numbness and tingling. She had severe pain with TFCC grip maneuver and decreased sensation over the volar aspect of the thumb and index finger. She received a cortisone injection over the ulnar fovea. Dr. Lukowski indicated that she might eventually need a revision carpal tunnel procedure. He also stated she could have her right carpal tunnel release done at any time (Tr. 805-06).
On May 6 and August 29, 2014, the plaintiff had an injection in her knee (Tr. 863, 867). On June 25, 2014, the plaintiff had left foot and ankle pain (Tr. 829-31). On September 25, 2014, she had pain down her left leg, and she received an injection (Tr. 821-23).
On October 20, 2014, the plaintiff saw Jeffrey C. Wilkins, M.D., for right leg pain with pins and needles radiating to her foot. She had low back pain and left-sided buttock pain (Tr. 852).
On November 5, 2014, the plaintiff was walking with a cane. An MRI showed no internal derangement (Tr. 869-72).
On November 19, 2014, Dr. Wilkins recommended physical therapy (Tr. 851).
On December 3, 2014, the plaintiff received another injection in her right knee. She also experienced sciatic symptoms and mechanical back pain. Dr. Callihan recommended home exercise, continued anti-inflammatory medication, and periodic injections ( (Tr. 873-76).
In February and March of 2015, the plaintiff was treated for lower left leg DVT and cellulitis (Tr. 944-46).
On March 10, 2015, the plaintiff stated that her injection only helped for one month. She received another injection, and Synvisc injections were discussed (Tr. 879-80).
On March 11, 2015, Dr. Garland wrote that the plaintiff had tenderness on palpation over the spinous area of the lumbar spine. She also had pain in the left hip area, and she walked with a limp (Tr. 941-42).
On April 22, 2015, the plaintiff stated that the last injection only helped for a few days (Tr. 884). In April and May 2015, the plaintiff received three Synvisc injections in her right knee (Tr. 887-93).
On July 1, 2015, the plaintiff visited Waccamaw Orthopedics, and an examination of her knee showed no abnormalities, full flexion and extension, no instability, and no pain. Examination of her hip showed an old AVN with no collapse of the femoral head. Diagnosis was mild bursitis for which she received an injection (Tr. 976-78).
On August 5, 2015, the plaintiff was seen for diabetes, hypertension, hyperlipidemia, asthma, lifetime anticoagulation therapy for repetitive DVT, and multiple orthopedic issues (Tr. 930-33). On August 12, 2015, the plaintiff saw Dr. Garland regarding DVT and received a prescription for Coumadin (Tr. 929).
On August 13, 2015, Brian Forbus, PA-C, noted that the plaintiff ambulated with a straight cane. She had received an injection in her hip, but she had low back and lower extremity pain, aggravated by standing or sitting for a period of time. She had palpable SI joint facet dysfunction at several levels of the lumbar spine as well as gluteal myofascial tenderness bilaterally. She had obtained pain medication from multiple sources, usually at the emergency room. Physical therapy was recommended to address deconditioning (Tr. 848-49). On September 10, 2015, she requested additional pain medication to help with an increase in pain (Tr. 847).
On September 17, 2015, she had discomfort and swelling in her left lower leg due to multiple occurrences of DVT (Tr. 923).
On October 12, 2015, the plaintiff saw Erin Watson, M.D., for pain management. She had increased back pain, left leg pain, and paresthesias in the foot. She had increased pain with sitting or standing, and she ambulated with a cane. She appeared in mild distress with global tenderness throughout the lumbar spine but no point tenderness. Flexion and extension exacerbated pain, and her reflexes were diminished, but she had minimal spasm with motion of the left hip. She also had AVN of her left hip, which had recently been injected with steroids. Her pain medication dosage was increased (Tr. 845-46). On October 28, 2015, a second MRI of her lumbar spine showed multilevel facet degeneration with canal and foraminal stenosis. It was "virtually unchanged" from the first MRI in 2014 and was "essentially normal." On November 12, 2015, Dr. Watson recommended injections (Tr. 842-46).
On November 18, 2015, Dr. Callihan wrote that more Synvisc injections would be considered if she did not show good improvement. He also indicated she should "continue present disability" (Tr. 900). On March 29, 2016, she had worsening pain in her right knee and was walking with a cane (Tr. 901-03).
At the administrate hearing on July 25, 2017, the plaintiff was 48 years old. She was five feet tall and weighed 200 pounds. She was separated from her husband and did not have any children. The plaintiff lived with her sister and her nieces and nephew (Tr. 44-46).
The plaintiff testified that she could not work due to problems with her knee and carpal tunnel syndrome symptoms. Her grip was not strong, and her hands locked up. Carpal tunnel surgery on both hands had not helped. She tried to work through the Vocational Rehabilitation Center. Her last job was a temporary job delivering phone books. She also worked as a caregiver. She worked at Target for 12 years prior to being a caregiver to her sister-in-law. The plaintiff was a manager at Target. She stopped working there when she injured her right knee at work in 2006. She had surgery on her right knee and continued to follow up with an orthopedist because her knee worsened. She received steroid injections into her right knee every three months, but after some time the injections only helped for 30 days. She also received Synvisc injections in 2015, 2016, and 2017. She received a series of three Synvisc injections over a three-week period. She also got other injections every 90 days if she needed them. The plaintiff had used a walking cane since 2006. The majority of the time she absolutely needed the cane to walk (Tr. 47-54).
The plaintiff also had DVT in her left leg. She was treated twice for DVT in 2015. She also had cellulitis and low back pain. She saw an orthopedist and a pain specialist for her lower back pain. She had an MRI of her back, but she had not received injections. She also received injections in both hands. She had surgery on her left hand in October 2013 and on her right hand in 2014. During the same time period, the plaintiff had an occlusion, or blockage, in her right arm. She was treated for the blockage, but was never treated for a blockage in her left arm. The doctor who performed the carpal tunnel release surgery advised her that her carpal tunnel had returned in her left hand. She received more injections, but she was told there was nothing else that could be done. She was referred to a rheumatoid arthritis doctor. She did not have repeat carpal tunnel release surgery on the left hand. She was able to take care of her personal needs, but it took her longer. Sometimes she had problems buttoning buttons, using zippers, or tying her shoes. She usually left her shoes untied so she could just slip them on. She had splints, but because of the swelling in her hand, the doctor determined that they agitated her hands too much (Tr. 56-62).
The plaintiff testified that she was treated by an infectious disease doctor after she had cellulitis in her left leg in 2015. She also went to the hospital for heart problems. She received regular treatment at the Little River Medical Center. She saw Dr. Callihan for her right knee pain, who indicated that she would eventually need a total knee replacement. She estimated that she could walk, with her cane, for two or three minutes before she needed to stop due to pain in her back and knee. She could stand for, at most, about five minutes. The plaintiff was treated for depression and anxiety. She was on medication, and she went to counseling. She also took medicine for her asthma. Perfumes, pollen, heat, and certain smells bothered her asthma. She testified that her blood pressure medications sometimes made her feel off balance, but her doctor was adjusting her medications (Tr. 64-67).
In response to the hypothetical question by the ALJ that corresponded to the residual functional capacity ("RFC") assessment, the vocational expert testified that the individual could not perform the plaintiff's past relevant work. However, the individual could perform work as an office helper, Dictionary of Occupational Titles ("DOT") No. 239.567-010, Specific Vocational Preparation ("SVP") of 2, with 241,000 jobs nationally; information clerk, DOT No. 237.367-018, light, SVP of 2, with 60,000 jobs nationally; and storage facility rental clerk, DOT No. 295.367-026, light, SVP of 2, with 117,000 jobs nationally (Tr. 69-70).
ANALYSIS
The plaintiff argues that the ALJ erred in failing to (1) properly consider her avascular necrosis of the left hip, DVT, degenerative disc disease, and carpal tunnel syndrome in the RFC assessment; (2) properly assess the impact of her need for a cane on her ability to perform the occupations cited by the vocational expert; (3) identify the apparent conflict between the vocational expert's testimony and the DOT and explain how she could perform the jobs cited by the vocational expert; and (4) properly evaluate her subjective complaints (doc. 15 at 15-27).
Step Five
Social Security Ruling ("SSR") 00-4p provides in pertinent part:
When a [vocational expert ("VE")] . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict
between that VE . . . evidence and information provided in the DOT. In these situations, the adjudicator will:2000 WL 1898704, at *4.
Ask the VE . . . if the evidence he or she has provided conflicts with information provided in the DOT; and
If the VE's . . . evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.
When vocational evidence provided by a VE . . . is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . evidence to support a determination or decision that the individual is or is not disabled. The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.
In Pearson v. Colvin, the Court of Appeals for the Fourth Circuit ruled that an "ALJ independently must identify conflicts between the expert's testimony and the [DOT]" and that merely asking the vocational expert if there are any conflicts is insufficient. 810 F.3d 204, 209 (4th Cir. 2015). In addition, the court held that a vocational expert's testimony that apparently conflicts with the DOT can only provide substantial evidence if the ALJ receives an explanation from the vocational expert explaining the conflict and determines both that the explanation is reasonable and that it provides a basis for relying on the testimony rather than the DOT. Id. at 209-10 (citing SSR 00-4p, 2000 WL 1898704, at *2). The court further decided that "[a]n ALJ has not fully developed the record if it contains an unresolved conflict between the expert's testimony and the [DOT]" and that an ALJ errs if he "ignores an apparent conflict because the expert testified that no conflict existed." Id. at 210. In Pearson, the court concluded that, because there was no explanation regarding the apparent conflict, there was no reasonable basis in that case for relying on the vocational expert's testimony, and therefore the testimony could not provide substantial evidence for a denial of benefits. Id. at 211.
The DOT provide that the General Educational Development ("GED") "embraces those aspects of education (formal and informal) [that] are required of the worker for satisfactory job performance. This is education of a general nature [that] does not have a recognized, fairly specific occupational objective . . . ." DOT, app. C (4th ed. Rev. 1991), 1991 WL 688702. "The GED Scale is composed of three divisions: Reasoning Development, Mathematical Development, and Language Development." Id. A GED Reasoning Level of 1 indicates that the job requires a worker to "[a]pply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job." Id. A GED Reasoning Level of 2 indicates that the job requires a worker to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." Id. A GED Reasoning Level of 3 indicates that the job requires a worker to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." Id. A GED Reasoning Level of 4 indicates that the job requires a worker to "[a]pply principles of rational systems to solve practical problems and deal with a variety of concrete variables in situations where only limited standardization exists. Interpret a variety of instructions furnished in written, oral, diagrammatic, or schedule form." Id. (footnote omitted).
Here, as part of the RFC assessment, the ALJ limited the plaintiff to "simple, routine, repetitive tasks, with only occasional changes in the work setting" (Tr. 26). In response to the hypothetical question by the ALJ that corresponded to the RFC assessment, the vocational expert identified the three following job categories that the hypothetical individual could perform: office helper, DOT No. 239.567-010, 1991 WL 672232; information clerk, DOT No. 237.367-018, 1991 WL 672187; and storage facility rental clerk, DOT No. 295.367-026, 1991 WL 672594 (Tr. 69-70). At step five of the sequential evaluation process, the ALJ relied on this testimony in finding that there are jobs that exist in significant numbers in the national economy that the plaintiff can perform (Tr. 31-32). The job of office helper requires a GED Reasoning Level of 2, the job of storage facility rental clerk requires a GED Reasoning Level of 3, and the job of information clerk requires a GED Reasoning Level of 4. See DOT No. 239.567-010, 1991 WL 672232 (office helper); DOT No. 295.367-026, 1991 WL 672594 (storage facility rental clerk); and DOT No. 237.367-018, 1991 WL 672187 (information clerk).
Recently, the Court of Appeals for the Fourth Circuit held in a published case that an apparent conflict exists between an RFC limitation to "short, simple instructions" and a need to carry out "detailed but involved . . . instructions" as found in jobs requiring a GED Reasoning Level of 2. Thomas v. Berryhill, 916 F.3d 307, 313 (4th Cir. 2019). Further, prior to Thomas, the Fourth Circuit held in an unpublished case that there was an apparent conflict between the vocational expert's testimony that the claimant could perform certain specified jobs, each of which had a GED Reasoning Level of 2, and an RFC that limited the claimant to performing simple one to two-step tasks with low stress. Henderson v. Colvin, 643 F. App'x 273, 276-77 (4th Cir. 2016). The court explained, "Unlike GED Reasoning Code 1, which requires the ability to '[a]pply commonsense understanding to carry out simple one-or-two-step instructions,' GED Reasoning Code 2 requires the employee to '[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" Id. (citations omitted).
"Without published Fourth Circuit authority directly on point regarding simple, routine, repetitive tasks, it has been the practice in this District since Henderson to remand based on an apparent conflict." Taylor v. Berryhill, 0:17-CV-3419-CMC, 2019 WL 1397187, at *3 (D.S.C. Mar. 28, 2019) (citations omitted). See, e.g., Brailsford v. Berryhill, C.A. No. 1:18-321-SVH, 2019 WL 582483, at *10 (D.S.C. Feb. 13, 2019) (finding apparent conflict between RFC limitation to "simple, routine tasks" and jobs having GED Reasoning Level 3); Mathis v. Berryhill, C.A. No. 6:17-2242-TLW-KFM, 2018 WL 7099004, at *14 (D.S.C. Nov. 28, 2018), R&R adopted by 2019 WL 283643 (D.S.C. Jan. 22, 2019) (finding apparent conflict between RFC limitation to "simple, routine, repetitive tasks" and jobs having GED Reasoning Level 2); Williams v. Comm'r of Soc. Sec., C.A. No. 2:17-864-DCC, 2018 WL 4501239, at *3 (D.S.C. Sept. 20, 2018) (finding apparent conflict between RFC limitation to "simple, routine, and repetitive tasks" and jobs having GED Reasoning Level 2 or 3). Clearly, such a restriction would also conflict with the even higher reasoning level required by jobs with a GED Reasoning Level of 4, like the job of information clerk at issue here.
In accordance with the reasoning of the above-cited cases, the undersigned recommends that the district court find that there is an apparent conflict between the DOT's Reasoning Levels 2, 3, and 4 of the identified jobs and the vocational expert's testimony that the plaintiff could perform the identified jobs with the RFC limitation to "simple, routine, repetitive tasks." While there may be a reasonable explanation for the apparent conflict, the ALJ never identified and resolved it. Accordingly, it would be speculation for the court to assume the vocational expert realized the conflict and necessarily considered it. Thus, the vocational expert's testimony cannot provide substantial evidence for the ALJ's finding at step five. See Pearson, 810 F.3d at 211. Therefore, this action should be remanded to the ALJ for further consideration.
Additional Allegations of Error
As set out above, the plaintiff raises additional allegations of error regarding consideration of her impairments and subjective complaints in the RFC assessment and consideration of her cane use in the RFC assessment and at step five (see doc. 15 at 15-26). Because the court recommends that this matter be remanded to the ALJ for resolution of an apparent conflict at step five of the sequential evaluation process, the remaining allegations of error will not be further addressed. The ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp.2d 757, 763-764 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). Accordingly, on remand, the ALJ should also consider these remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge May 8, 2019
Greenville, South Carolina