Opinion
No. 5:19-CV-00190-D
06-09-2020
Brenda Carol Turner, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Brenda Turner challenges Administrative Law Judge ("ALJ") Margo Stone's denial of her application for social security income. Turner claims that ALJ Stone erred in (1) determining her residual functional capacity ("RFC") and (2) failing to resolve a conflict in the evidence at step five. Both Turner and Defendant Andrew Saul, Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 40, 45.
After reviewing the parties' arguments, the court has determined that ALJ Stone erred in her determination. The undersigned cannot conclude that ALJ Stone's RFC sufficiently addressed Turner's mental limitations, so this issue warrants more consideration upon remand. But there is no conflict at step five that ALJ Stone needed to resolve before relying on the testimony of the Vocational Expert ("VE"). The undersigned magistrate judge therefore recommends that the court grant Turner's motion, deny the Commissioner's motion, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In April 2015, Turner applied for disability benefits alleging a disability that began in January 1991. The Social Security Administration denied her application at the initial level and upon reconsideration. Turner then appeared at a hearing before ALJ Stone to determine whether she was entitled to benefits. ALJ Stone determined that Turner was not entitled to benefits because she was not disabled. Tr. at 14-26.
Turner amended her disability onset date to April 2015.
ALJ Stone found that Turner had several severe impairments: spinal disorder, malignant neoplasm of the thyroid gland, and affective disorder. Tr. at 16. ALJ Stone found that Turner's impairments, alone or in combination, did not meet or equal a Listing impairment. Tr. at 17.
ALJ Stone determined that Turner had the RFC to perform a reduced range of light work. Tr. at 19. Turner can frequently lift or carry ten pounds and she can occasionally lift or carry 20 pounds. Id. She can sit, stand, and walk for six hours in an eight-hour workday, with sitting intermittently throughout the day. Id.
Turner can frequently operate bilateral foot controls. Id. She can occasionally climb ramps and stairs, but she can never climb ladders, ropes, or scaffolds. Id. And Turner can occasionally balance, kneel, stoop, crouch, and crawl. Id.
Turner is limited to hearing and understanding simple, oral instructions. Id. She can never work at unprotected heights, but she can occasionally work with moving, mechanical parts. Id. Turner may occasionally work in environments where she would be exposed to dust, fumes, odors, pulmonary irritants, extreme cold, and vibrations. Id.
Turner is limited to simple, routine tasks. Id. She is also limited to simple, work-related decisions. Id. Turner can occasionally interact with coworkers, but she should have no interaction with the public. Id.
ALJ Stone concluded that Turner had no past relevant work. Tr. at 25. But considering her age, education, work experience, and RFC, ALJ Stone found that jobs existed in significant numbers in the national economy that Turner could perform. Tr. at 25-26. These include router, merchandise marker, and marker II. Id. Thus, ALJ Stone found that Turner was not disabled. Tr. at 26.
After unsuccessfully seeking review by the Appeals Council, Turner began this action in May 2019. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by the evidence, it must be affirmed. Turner v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
ALJ Stone remarked that a great part of Turner's medical record contains medications and laboratory results but has a limited number of detailed physical examinations. Tr. at 20. Turner's physical impairments include issues with her back and knees. Id. An October 2014 MRI of her lumbar spine revealed degenerative disc disease, left lateral disc extrusion at L5-S1, and spondylosis and degenerative facet changes at L4-L5 and L5-S1, but no central canal stenosis. Id.
At a June 2015 appointment, Dr. Brian Fitzgerald of University of North Carolina Hospital ("UNC") noted that neither Turner's history nor examination revealed any red flag signs for back pain. Id. He remarked that her pain was most consistent with bilateral neural foraminal compromise at L4-L5. Id. He advised Turner to use heat and ice, stretch, and do activities as tolerated. Id. Turner declined a physical therapy referral and requested an increase in her medication. Id. Providers denied her request for narcotic pain medication. Id.
Later that month, Turner's examination showed tenderness and diminished reflexes but intact sensation. Id. Providers noted that Turner had exaggerated her pain levels in the past, leading to her discharge. Id. She signed a pain contract agreeing not to receive pain medication from other providers. Id.
After providers diagnosed thyroid carcinoma, Turner underwent a right thyroid lobectomy and then a completion of left-sided thyroidectomy in September 2015. Tr. at 22. Surgical margins were negative. Id. Later records refer to this ailment but do not include it as a present condition. Id.
At an October 2015 examination, providers noted that Tuner used a wheelchair intermittently but that she could ambulate. Tr. at 20. The next month, providers advised her of the importance of tobacco cessation for her COPD and dyspnea. Id.
At a follow-up examination the next month, Turner had tenderness but no gross neurological deficits, as later appointments in February and May 2016 also found. Id. In February 2016, Turner sought care in the emergency department for a fall. Tr. at 21. Lab results were positive for cocaine, which violated Turner's pain contract. Id. Dr. Jonathan Waldman at UNC determined that he would no longer give Turner opiates. Id.
In October 2016, providers assessed Turner with chronic low back pain with right-sided sciatica. Tr. at 20. Two months later, Turner had mild tenderness but no neurological deficits, and she denied any weakness, numbness, or tingling, and displayed full strength in her lower extremities. Id. Providers recommended exercises. Id.
In April 2017, Dr. Waldman stated that it was hard to determine the etiology of Turner's pain because she exaggerated it and failed to participate in examinations. Tr. at 21. She denied any new numbness, swelling, or tingling. Id. Despite complaints of shoulder pain, an x-ray of her shoulder was normal. Id. But an MRI the next month showed a low-grade partial articular surface anterior supraspinatus tear and mild tendinosis, as well as a high-grade partial articular surface subscapularis tear with moderate tendinosis. Id. Treatment notes from UNC state that Turner would not participate in an examination of her shoulder. Id. Provider recommended ice and over-the-counter medications. Id. Turner received injections to her shoulder and was given home exercises. Id.
Dr. Waldman issued a Medical Source Statement in January 2017 finding that Turner could not work because of pain, shortness of breath, and low mood. Id. Four months later, he provided a second Medical Source Statement opining that Turner could not perform even sedentary work because of her back and leg pain. Id. He found that she could sit for 15 minutes, up to two hours a day, and stand for five minutes, for less than one hour per day. Id. Dr. Waldman concluded that Turner would require unscheduled breaks, have fine and gross manipulation restrictions, and would likely be absent from work four days a month. Id.
Three months later, Dr. Waldman provided another Medical Source Statement noting Turner had significant back and leg pain which affected ambulation, as well as pain, weakness, and decreased range of motion in her upper extremities. Id.
State agency medical consultant Dr. David Braverman opined that Turner could perform medium work with postural and environmental limitations. Tr. at 24.
Turner also has a history of mental health conditions and has received care at the Carter Clinic. Tr. at 22. At a March 2015 appointment, Turner reported mood swings but was intoxicated and she admitted to using alcohol, opioids, and muscle relaxers. Id.
Five months later, providers remarked that Turner was non-compliant with her psychiatric treatment, which caused several depressive symptoms. Id. Turner claimed depression, anger, and anxiety, and she received medications and saw a counselor. Id.
David Johnson, M.A., assessed Turner with schizoaffective disorder versus unspecified personality disorder, post-traumatic stress disorder ("PTSD"), borderline intellectual functioning, and cocaine, cannabis, and alcohol use disorders, all in remission. Id. Johnson found that Turner would have trouble in many job settings, and she would have trouble with concentration, judgment, social skills, and tolerating stress. Id. But Johnson also described Turner as exaggerating some of her symptoms. Id. She was independent in activities of daily living and was dating someone. Tr. at 23.
Records from UNC reflect that providers diagnosed Turner with bipolar disorder in 2015. Id. The same diagnosis continued in 2016, when providers also noted Turner's low mood. Id. But the records do not reflect any significant mental health symptoms and instead reference Turner's treatment at the Carter Clinic. Id. Turner rated the severity of her mental health symptoms as three out of ten.
In July 2016, Turner admitted herself for inpatient treatment after experiencing suicidal ideations. Id. The intake examination found that she had good attention and concentration, intact memory and cognition, a linear thought processes, and an engaging behavior. Id. Following her admission and a few days of medications, providers discharged Turner with no hallucinations or suicidal ideations. Id.
At a March 2017 appointment at the Carter Clinic, Turner denied any complaints and noted her mood was stable. Id. She denied experiencing crying spells, sleep disturbances, mood swings, or sustained agitations, and she could cope with life stressors. Id. A mental status examination showed generally normal findings. Id. Providers considered Turner stable on her medication regimen. Id.
Around this time, Ken Smith, a nurse practitioner at the Carter Clinic, provided a treating source statement. Id. He remarked that Turner responded well to her medications, but she experienced some dulled cognition as a side effect. Tr. at 23-24. Smith found that Turner was limited, but not precluded, from understanding, remembering, and carrying out simple instructions; maintaining attention for two-hour segments; sustaining an ordinary work routine; working with others; dealing with work stress; responding appropriately to work changes; and making simple, work-related decisions. Tr. at 24. And Turner had a limited but satisfactory ability to interact with the public and maintain socially appropriate behavior. Id.
But Smith also opined that Turner would be unable to complete a normal workday or work week without interruption from psychologically based symptoms or to perform at a consistent pace without an unreasonable number and length of rest periods. Id. And he did not believe that Turner could function independently. Id.
State agency psychological consultants Drs. Steven Salmony and G. R. Ibarra opined that Turner could perform simple, routine tasks in a low social environment. Id.
Turner testified that she had difficulties understanding and dropped out of school. Tr. at 19-20. She reported depression, confusion, and experiencing hallucinations, but admitted that medications helped her symptoms. Tr. at 20.
Turner also stated that because of pain in her back and weakness in her legs, she can stand for 30 minutes and sit for five minutes. Id. Turner estimated that she could not lift more than two pounds or walk one mile. Id. She cannot reach overhead or to her side. Id. She also claimed she is limited in her ability to perform postural movements. Id. Despite difficulty breathing because of COPD, Turner continues to smoke. Id.
D. Residual Functional Capacity
Turner argues that ALJ Stone failed to account adequately for her mental limitations in formulating the RFC. The Commissioner contends that the evidence supports ALJ Stone's RFC finding. The undersigned finds that ALJ Stone failed to explain how the RFC adequately addressed Turner's mental limitations.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
In Mascio, the Fourth Circuit found that a limitation to simple, routine tasks or unskilled work may fail to address a moderate limitation in concentration, persistence, or pace. 780 F.3d at 638. The Fourth Circuit "agree[d] with other circuits that an ALJ does not account for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work" because "the ability to perform simple tasks differs from the ability to stay on task." Id. (quotation omitted). Because the ALJ failed to explain why the plaintiff's "moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [plaintiff's] residual functional capacity," the Fourth Circuit remanded Mascio. Id.
Although an ALJ's findings at step three may not require any additional limitations for concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient explanation in the decision to allow the court to conduct meaningful review of the RFC determination. See Scruggs v. Colvin, No. 3:14-CV-466-MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015); Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015 WL 1756480, at *3 (W.D.N.C. Apr. 17, 2015).
At step three, ALJ Stone noted that Turner's mental impairments caused moderate limitations in concentrating, persisting, or maintaining pace. Tr. at 18. The RFC limited Turner to simple, oral instructions; simple, routine tasks; simple, work-related decisions; and limited social interactions. Tr. at 19.
Standing alone, a limitation to simple, routine tasks may not comply with Mascio because it does not sufficiently represent a moderate limitation in concentration, persistence, or pace. Here, however, ALJ Stone also limited Turner's decision-making and social encounters. But these added restrictions still appear inconsistent with Mascio's holding. See, e.g., Thomas v. Comm'r, Soc. Sec. Admin., No. SAG-16-1229, 2017 WL 1193990, at *2 (D. Md. Mar. 29, 2017) (remanding under Mascio under ALJ's assessment of claimant's RFC to simple tasks, limited interactions, and the ability to make simple decisions constantly and complex decisions occasionally); Thomas v. Colvin, No. 7:15-CV-101-KS, 2016 WL 5408114, at *3 (E.D.N.C. Sept. 28, 2016) (remanding case under Mascio where RFC limited claimant to simple, routine, repetitive tasks with infrequent and gradually-introduce changes and only casual interaction with the public because it did not fully account for claimant's moderate limitations in concentration, persistence, or pace); Weeks v. Colvin, No. 5:14-CV-155-D, at *4 (E.D.N.C. Sep. 8, 2015) (limitation to simple, routine, repetitive tasks with only occasional contact with the public and few workplace changes did not sufficiently address claimant's limitations in pace); but see Massey v. Colvin, No. 1:13-CV-965, 2015 WL 3827574, at *7 (M.D.N.C. June 19, 2015) (distinguishing Mascio where RFC limited social interactions, changes in the work environment, and the production pace).
The Commissioner asserts that providers concluded that Turner's condition was stable when she was compliant with her treatment and medication. But only one treatment note reflected that finding during the applicable period.
And there is other evidence that casts doubt on this single conclusion. Smith, one of Turner's treating providers, opined that she could not complete a normal workday or work week without interruption from psychologically based symptoms, perform at a consistent pace without unreasonable rest periods, or function independently. ALJ Stone gave partial weight to Smith's assessment, stating only that Turner's mental stability with compliance supported the RFC finding. Tr. at 24. ALJ Stone also gave partial weight to the consultative psychological examiner's assessment but failed to explain why she rejected several of his conclusions. Tr. at 22-23.
These opinions constitute contradictory evidence that casts uncertainty on Turner's mental functional abilities. Thus, ALJ Stone needed to examine these functions and explain her assessment, not merely identify the evidence and set forth her conclusions.
And the undersigned is unpersuaded that notations of Turner's stability with medication compliance can be interpreted to mean she has greater functioning than providers and examiners determined. See Morales v. Apfel, 225 F.3d 310, 319 (3rd Cir. 2000) (finding that it was not "proper for the ALJ to reject a doctor's opinion based on a notation that the plaintiff was stable with medication" because "[t]he relevant inquiry with regard to a disability determination is whether the claimant's condition prevents him from engaging in substantial gainful activity," and the home environment may differ from a work environment). So the alleged stability of Turner's mental health may not resolve whether she can engage in basic work activities despite her mental health impairments.
ALJ Stone also cited Turner's non-compliance with treatment as a reason to support her RFC determination. But treatment on-compliance may be intentional or a symptom of mental illness. See Pate-Fires v. Astrue, 564 F.3d 935, 945-46 (8th Cir. 2009) ("[N]oncompliance with psychiatric medications can be, and usually is, the result of the mental impairment itself, and, therefore, neither willful nor without a justifiable excuse . . . Courts considering whether a good reason supports a claimant's failure to comply with prescribed treatment have recognized psychological and emotional difficulties may deprive a claimant of the rationality to decide whether to continue treatment or medication."). So citing Turner's non-compliance, without exploring the reasons underlying it, offers little in the way of substantial evidence to uphold the RFC determination.
The undersigned cannot find that limitations set forth in ALJ Stone's RFC determination for simple, routine tasks, simple, work-related decisions, and limited interactions reflect Turner's moderate limitations in concentration, persistence, or pace found at step three. As noted above, courts have found such limitations may not follow Mascio's holding. Without an explanation, it is unclear if ALJ Stone omitted or overlooked Turner's functional abilities in this domain or determined that the step three findings do not translate into more restrictions in the RFC.
The supplemental authority submitted by the Commissioner, Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) is distinguishable from this case. Shinaberry's borderline intellectual functioning was a severe impairment that caused moderate limitations in concentration, persistence, or pace at step three. The RFC determination limited Shinaberry to simple, routine, repetitive tasks. Although Shinaberry asserted that the ALJ failed to consider her moderate limitation in concentrating, persisting, or maintaining pace, the ALJ found that additional mental restrictions were unwarranted. The ALJ observed that despite her lifelong borderline intellectual functioning and statements that she had trouble concentrating and completing tasks, Shinaberry's education, GPA, class rank, and IQ scores, coupled with her long work history as a cashier and sales associate, showed that limiting her to simple, routine, repetitive tasks addressed any deficits in her concentration, persistence, or pace. In this case, however, ALJ Stone failed to adequately explain how the RFC's mental restrictions addressed Turner's moderate limitations in this functional area.
Thus, the Mascio determination supports remand here. So the undersigned recommends that the court grant Turner's argument on this issue.
E. Step Five Conflict
Turner also raises an argument that there was an apparent conflict between the Dictionary of Occupational Titles ("DOT") and the VE's testimony in response to ALJ Stone's hypothetical questions. She claims that ALJ Stone failed to elicit an explanation addressing the discrepancy. So Turner contends that the step five finding of other work she can perform lacks the support of substantial evidence. The undersigned is unpersuaded that there was a conflict to resolve given recent and controlling case law on this issue.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine "whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]" 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must "[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved." SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). "Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT." Id. "When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled." Id. "At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency." Id.
Each of the three positions the VE identified at step five as suitable for Turner's RFC—router, merchandise marker, and marker II—has a Reasoning Level of 2. Turner contends that this work exceeds her abilities because the RFC limits her to jobs that involve simple, oral instructions; simple, routine tasks; and simple, work-related decisions. Tr. at 19.
The DOT Reasoning Level functions are part of the General Educational Development ("GED"), which range from Level 1 (lowest reasoning ability) to Level 6 (highest reasoning ability). Reasoning level 1 involves "[a]pply[ing] commonsense understanding to carry out simple one- or two-step instructions." A reasoning level of 2 suggests that the job requires the person to be able 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."
Some courts have found that an apparent conflict exists between a limitation for simple, routine, repetitive tasks and an occupation that requires a Reasoning Level 2, but others have held that there is no apparent conflict. Compare Dewalt-Gallman v. Berryhill, No. 9:16-2332, 2017 WL 2257418, at *3-4 (D.S.C. May 5, 2017) (apparent conflict between reasoning level two jobs and jobs involving simple, routine, repetitive tasks), adopted by, 2017 WL 2225133 (D.S.C. May 22, 2017), with Dellinger v. Berryhill, No. 3:17-CV-00676-RJC-DSC, 2019 WL 1325929, at *3 (W.D.N.C. Mar. 25, 2019) (no apparent conflict exists between a limitation to perform simple, routine, repetitive tasks and jobs with Reasoning Level 2); Barbee v. Berryhill, No. 16-CV-1779-BEN-(DHB), 2017 WL 3034531, at *16 (S.D. Cal. July 18, 2017) (observing that courts "have consistently held that RFC limitations to . . . 'simple job instructions' are compatible with Reasoning Level 2."), adopted, 2017 WL 3772975 (S.D. Cal. Aug. 31, 2017).
In support of her argument, Turner points to the recent Fourth Circuit decision in Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), as amended (Feb. 22, 2019). In Thomas, the Court of Appeals found 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 Reasoning Level of 2. Id. at 307, 313. The Commissioner argues that Thomas is distinguishable as the RFC in that case differs from the one here. The Thomas RFC limited the claimant to "short" instructions, while Turner's mental limitations are "simple" instructions and decisions.
To support his position, the Commissioner cites the recent Fourth Circuit decision in Lawrence v. Saul, 931 F.3d 140 (4th Cir. 2019). In Lawrence, the Court of Appeals found that there is no apparent conflict between a limitation to "simple, routine, repetitive tasks" and reasoning level two occupations. Id. at 144 & n. 8. It observed:
The Fourth Circuit issued the Lawrence decision after Turner's filed her supporting memorandum. --------
[D]etailed instructions are, in the main, less correlated with complexity than with length. Instructions often include many steps, each of which is straightforward. Driving directions are a good example: they may prescribe many turns, but the turns are generally easy to make, and the route rarely changes, making the directions simple, routine, and repetitive. Further, there is no conflict between "simple" and "uninvolved" instructions, as both connote instructions that "are not complicated or intricate."Id. at 143-44.
Under Lawrence, a hypothetical question limiting one to simple, oral instructions, simple, routine tasks, and simple, work-related decisions, is materially different from similarly restricting her to short tasks, instructions, or decisions. And simple instructions, tasks, or decisions do not create an apparent conflict with jobs the DOT classifies as reasoning level two. Id.
There being no conflict to explain or resolve between the VE's testimony and the DOT, ALJ Stone may rely on the VE's testimony about the availability of other work as substantial evidence of her step five finding. Thus, the court should deny Turner's motion on this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Turner's Motion for Judgment on the Pleadings (D.E. 40), deny Saul's Motion for Judgment on the Pleadings (D.E. 45), and remand the matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: June 9, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge