Opinion
Civil Action No. 6:18-515-BHH-KFM
05-02-2019
Sheila Lorraine Beach, 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, who is proceeding pro se, brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits under Title XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for supplemental security income ("SSI") benefits on October 21, 2014, alleging disability since August 7, 2013. The application was denied initially and on reconsideration by the Social Security Administration. On September 1, 2015, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Carroll H. Crawford, an impartial vocational expert, appeared on April 11, 2017, considered the case de novo, and on November 1, 2017, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. The ALJ informed the plaintiff of her right to representation and told her that he would grant postponement of the hearing if the plaintiff wished to obtain representation. However, the plaintiff chose to go forward with the hearing and testify without the assistance of an attorney or other representative (Tr. 32-34). 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 January 13, 2018. The plaintiff then filed this action for judicial review.
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 has not engaged in substantial gainful activity since October 21, 2014, the application date (20 C.F.R. § 416.971 et. seq.).
(2) The claimant has the following severe impairments: obesity; osteoarthritis/major joint dysfunction; chronic obstructive pulmonary disease; and major depressive disorder (20 C.F.R. § 416.920(c)).
(3) 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. §§ 416.920(d), 416.925, 416.926).
(4) 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. § 416.967(b) except for the following limitations: no lifting, carrying, pushing, or pulling over 25 pounds occasionally and 20 pounds frequently; no sitting over six hours in and eight-hour workday; no standing over six hours in an eight-hour workday; no walking over six hours in an eight-hour workday; no more than frequent climbing of stairs or ramps; no climbing of ladders, ropes, or scaffolds; no more than frequent balancing or stooping; no more than occasional kneeling, crouching, or crawling; no more than occasional work at unprotected heights or around moving mechanical parts; no more than occasional exposure to humidity or wetness; no more than occasional exposure to dust, odors, fumes, and pulmonary irritants; and only simple, routine tasks.
(5) The claimant has no past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on October 7, 1972, and was 42 years old, which is defined as a younger individual, on the date the application was filed (20 C.F.R. § 416.963).
(7) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.964).
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. § 416.968).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs in the national economy that the claimant can perform (20 C.F.R. § 416.969, 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since October 21, 2014, the date the application was filed (20 C.F.R. § 416.920(g)).
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. § 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. § 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. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 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 42 years old on the date her application was filed (October 21, 2014) and 45 years old at the time of the ALJ's decision (November 1, 2017). The plaintiff earned a GED and completed training in the medical assistant field. She took course work toward a nursing degree in 2016. She has worked as a cashier, home health aide for her mother, and worked in youth services (Tr. 43, 49, 174).
On October 4, 2013, the plaintiff visited North Hills Medical Center complaining of knee pain that was not resolved with prescribed medications. A physical examination showed that her right knee was tender along the joint line and that she had a painful, decreased range of motion (Tr. 251-52). On October 14, 2013, she complained of knee pain. Physical examination showed crepitus and grinding of the patella, but her knee was stable with no effusion. She was diagnosed with chondromalacia patella with likely early arthrosis and received a prescription for additional pain medication (Tr. 250). While an x-ray performed on October 30, 2013, showed no acute osseous pathology, an MRI in November 2013 showed an extrusion of the medial meniscus and a large effusion of her right knee. As a result of that MRI, her primary care physician, Victor C. Campbell, M.D., referred her to an orthopedist, prescribed a knee brace, and encouraged her to lose weight. Dr. Campbell also wrote her a note saying that she could return to work but could not climb stairs until further notice (Tr. 248, 312).
On August 9 and 29, 2014, the plaintiff complained of knee pain and received injections. Records list diagnoses of chronic obstructive pulmonary disease ("COPD"), hyperlipidemia, and acid reflux (Tr. 247, 297). On October 7, 2014, the plaintiff had a normal chest x-ray, and a baseline pulmonary function test showed normal spirometry. She also had a normal EKG and a negative stress test. The records noted that the plaintiff was morbidly obese (Tr. 240-43).
On October 20, 2014, the plaintiff complained of elbow pain, but examination was normal (Tr. 239). On November 26, 2014, Ashish G. Shanbhag, M.D., performed a nerve block for right hand pain consistent with ulnar motor neuropathy (Tr. 257). On December 5, 2014, the plaintiff received a prescription for a weight loss medication, and x-rays showed a calcaneal spur on the plantar aspect of her left foot (Tr. 320-21).
On January 8, 2015, Melissa K. Richardson, M.D., performed a consultative examination of the plaintiff. Dr. Richardson noted that the plaintiff walked without an assistive device. Dr. Richardson observed that the plaintiff had no visible effusions of her knees and that she had pain in the medial joint line of her right knee without crepitus. The plaintiff could not tandem walk, but she could walk on her heels and toes. The plaintiff had full strength in her arms and hands. She had somewhat reduced flexion in her right wrist and in both elbows, and a negative Tinel's sign. She had normal hand function, normal fine manipulation, and normal gross manipulation. Dr. Richardson summarized her findings as consistent with a reduced range of motion of the right knee with chronic persistent knee pain, but no intrinsic hand atrophy or weakness. She also noted that the plaintiff was mentally intact (Tr. 317-19).
On January 15, 2015, state agency medical consultant Dina Nabors, M.D., reviewed the record and provided an opinion as to the plaintiff's physical functional limitations. At the initial review level, Dr. Nabors opined that the plaintiff could perform light work and could frequently climb ramps and stairs, stoop, and crawl, and could occasionally kneel and crouch. She could never climb ladders, ropes, and scaffolds. Dr. Nabors noted that the plaintiff should avoid concentrated exposure to hazards such as machinery and heights (Tr. 62-64).
On February 2, 2015, the plaintiff visited her primary care physician for a refill of her weight loss medication, but reported no other concerns or complaints (Tr. 324). On September 2, 2015, she was diagnosed with pyelonephritis, a kidney infection, at North Greenville Hospital (Tr. 336).
On August 10, 2015, state agency medical consultant Sannagai Brown, M.D., reviewed the record and provided an opinion regarding the plaintiff's physical functional limitations. Dr. Brown opined that the plaintiff could lift up to 20 pounds frequently and 25 pounds occasionally. She could stand and/or walk and sit for six hours in an eight-hour day. Postural limitations included restrictions of frequently climbing ramps and stairs, balancing, and stooping. She could occasionally kneel, crouch, and crawl, and never climb ladders, ropes, and scaffolds. Like Dr. Nabors, Dr. Brown noted that the plaintiff should avoid concentrated exposure to hazards such as machinery and heights (Tr. 74-76).
On November 30, 2016, the plaintiff visited a new primary care physician, Jill Williams, M.D., at University Family Medicine and complained of body aches with the change in weather, depression, anxiety, and fatigue. Dr. Williams prescribed antidepressants (Tr. 330). The plaintiff complained to Dr. Williams of depression again in December 2016 (Tr. 327). On January 28, 2017, she first visited psychiatrist Kevin W. Krebs, M.D. He diagnosed her with major depression, added Concerta to her list of medications, and assigned her a Global Assessment of Functioning ("GAF") score of 60 (Tr. 335). Although no other treatment notes from Dr. Krebs appear in the transcript, a note in the record mentions appointments with Dr. Krebs scheduled for August 1 and October 24, 2017 (Tr. 349).
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 February 10, 2017, the plaintiff reported to Dr. Williams that she was happy with her medications, her body pain had resolved, she was sleeping better and had better concentration, she had no fatigue, and she had lost 21 pounds since her last visit. Dr. Williams recorded that the plaintiff was cooperative and had an appropriate mood and affect, and normal judgment (Tr. 374-76). On March 9, 2017, at a weight management appointment, Dr. Williams recommended that the plaintiff increase her walking to five times a week for 30 minutes at a time. The plaintiff reported no fatigue (Tr. 369).
On April 12, 2017, the plaintiff visited urgent care, complaining of generalized pain and hand pain. She reported that her primary care physician had told her that her symptoms were caused by depression and that her symptoms had improved initially with antidepressants but then returned. She complained of fatigue, constipation, and thinning hair. She did not have headaches, dizziness, or lightheadedness. On physical examination, she had a normal range of motion, full strength, no tenderness, no swelling, no deformity, a normal gait, negative Tinel's and Phalen's signs, and a normal neurological examination. She was cooperative, her mood and affect were appropriate, and she had normal judgment. She received a prescription for gabapentin (Tr. 341-42).
On May 4, 2017, the plaintiff visited Dr. Williams complaining of body pain and fatigue (Tr. 363). Treatment notes showed a diagnosis of carpal tunnel syndrome and a mass of soft tissue in her right arm. She reported that gabapentin helped with tingling and numbness in her right hand. On examination, the plaintiff had a normal range of motion, normal strength, and normal gait. Dr. Williams noted a lesion on the plaintiff's right arm, as well as a positive Phalen's sign on the right. Dr. Williams decreased the plaintiff's gabapentin dose and started her on a wrist splint for her carpal tunnel syndrome. Dr. Williams also recorded that the plaintiff's mood and affect were appropriate and that her judgment was normal (Tr. 363-67).
In June and August 2017, the plaintiff visited a rheumatologist, who recorded diagnoses of polyarthralgia, carpal tunnel syndrome, hand pain, morbid obesity, and a positive TB test (Tr. 351, 356, 358). On July 5, 2017, an MRI of the plaintiff's right arm showed a lobulated adipose tissue density mass in the lateral half of her mid intramuscular compartment of her right arm (Tr. 347). On August 30, 2017, the plaintiff was scheduled for a sleep evaluation and treatment on September 21, 2017. No results of the evaluation appear in the records (Tr. 390).
At the administrative hearing, the ALJ informed the plaintiff of her right to representation and told her that he would grant postponement of the hearing if she wished to obtain representation. However, the plaintiff chose to go forward with the hearing and to testify without the assistance of an attorney or other representative (Tr. 32-34). The plaintiff also signed a form stating that she received a letter prior to the hearing informing her of her right to be represented by an attorney or other person of her choice, she understood her right to be represented, and she wished to proceed with the hearing without representation (Tr. 132; see Tr. 96-103).
The plaintiff testified at the hearing that she lived with her three sons, ages 15, 16, and 24, and her 77-year-old mother. She testified that she took care of her mother - bathed her, took her to the doctor, got her medicine, washed her clothes, and otherwise assisted with her personal needs. The plaintiff also testified that she had painful body aches and that her depression made her confused or clouded. The plaintiff reported that she previously used a prescribed knee brace, but she had lost it during a move a year or so prior to the hearing and never asked for another. She testified that the only side effect she experienced due to her medications was "a little bit" of dizziness (Tr. 40-46). The plaintiff testified that she could probably sit for about an hour, stand for about 15 minutes, and lift about ten pounds. She further testified that her right arm gets numb if she writes for five minutes (Tr. 48).
The ALJ asked the vocational expert to assume a hypothetical individual of the plaintiff's same age, education, and work background who was restricted to the RFC set forth in the ALJ's opinion (Tr. 18, 52). The vocational expert testified that the individual could perform the representative unskilled, light occupations of office helper, Dictionary of Occupational Titles ("DOT") No. 239-567-010; mailroom clerk, DOT No. 209.687-026; and stock checker, DOT No. 299.667-014 (Tr. 52-53). The vocational expert further testified that his testimony was in accordance with the DOT. The plaintiff stated that she had tried "the jobs [the vocational expert] mentioned," but had not been able to perform them because she would "start stuff and not be able to complete or finish it" (Tr. 53).
ANALYSIS
The plaintiff filed an initial brief on September 6, 2018, in which she argues that her lower back pain, right knee impairment, fibromyalgia, gastroesophageal reflux disease ("GERD"), asthma, and depression render her disabled (doc. 44 at 6). The plaintiff also lists medications that she was on "during adjudication to see a judge and also during appeals committee review" and "medications [she] got put on after the appeals committee review" (id. at 2, 4). She describes side effects from those medications and mentions future appointments with a "stomach doctor" (id. at 2-5). The Commissioner filed a brief on October 16, 2018, arguing that substantial evidence supports the ALJ's decision at each step of the sequential evaluation process (doc. 46). The plaintiff filed a reply brief on October 23, 2018, in which she describes the symptoms she suffers from her impairments (doc. 49). In her reply brief, the plaintiff also states that she recently found out that she has high blood pressure and high cholesterol, for which she now takes medication (id. at 4). The plaintiff also states that she did not know "how to talk" to the ALJ, and she "needed a lawyer to talk for [her]" (id. at 4-5). The plaintiff filed a letter to the court on November 6, 2018, in which she states that she is scared that she and her sons are going to be evicted (doc. 51). On February 4, 2019, the plaintiff sent a letter to the court stating that she and her sons are homeless and that her health is getting worse (doc. 53). The plaintiff also attached treatment notes from a visit to Dr. Williams on January 28, 2019 (doc. 53 at 4-7). On March 5, 2019, the plaintiff submitted intake forms she completed for NWC Counseling (doc. 54). On April 1, 2019, the plaintiff filed a letter to the court stating that she wants to have surgery to ease her knee pain, but she cannot have the surgery while she is living in a shelter (doc. 55). She also states that her doctor ordered a hinged knee brace for her right knee and that a doctor found a lump near her breast (id.).
Liberally construing the plaintiff's filings, which is required for pro se litigants, the plaintiff asserts that the ALJ's decision is not supported by substantial evidence. Erickson v. Pardus, 551 U.S. 89, 94. The Commissioner, in response, argues that substantial evidence supports the ALJ's decision at each step of the sequential evaluation process.
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 as discussed below, the other steps 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).
As noted above, in her initial brief, the plaintiff references conditions with which she has recently been diagnosed, medications she has recently been prescribed and side effects therefrom, and future appointments with doctors (doc. 44), and she also submitted recent treatment records that are not part of the record (see doc. 53 at 4-7; doc. 54). The relevant period for consideration by this court ended on the date of the ALJ's decision, See 20 C.F.R. § 416.330(b); see also Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (holding that a reviewing court is limited to determining "whether the claimant was entitled to benefits during a specific period of time, which period was necessarily prior to the date of the ALJ's decision"). However, should the district court adopt the recommendation that the case be remanded for further consideration by the ALJ, the plaintiff will have the opportunity to submit additional evidence to the ALJ as part of that process.
Step Five Finding
As noted, liberally construed, the plaintiff contends that she cannot do the jobs identified by the vocational expert during the hearing (see generally Tr. 53; docs. 44, 49, 51, 53, 54, 55). Social Security Ruling 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.
Here, as part of the RFC assessment, the ALJ limited the plaintiff to "only simple, routine tasks" (Tr. 18). 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 plaintiff could perform: office helper, DOT No. 239-567-010; mailroom clerk, DOT No. 209.687-026; and stock checker, DOT No. 299.667-014 (Tr. 51-53), all of which are unskilled jobs performed at a light exertional level. The vocational expert further testified that his testimony was in accordance with the DOT (Tr. 51-53). 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. 22-23).
Two of the identified jobs (office helper and stock checker) require a General Educational Development ("GED") Reasoning Level of 2, and one of the jobs (mailroom clerk) requires a GED Reasoning Level of 3. See office helper, DOT No. 239-567-010, 1991 WL 672232; stock checker, DOT No. 299.667-014, 1991 WL 672642; mailroom clerk, DOT No. 209.687-026, 1991 WL 671813. The 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 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." 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.
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 him 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).
"Following the Fourth Circuit's decision in Henderson, this court considered restrictions to simple, routine tasks in several cases and found that a conflict existed between the restrictions and GED reasoning level two" and three. Austin v. Berryhill, C.A. No. 1:17-cv-1797-JMC-SVH, 2018 WL 2392209, at *19 (D.S.C. Apr. 24, 2018), R&R adopted by 2018 WL 2389595 (D.S.C. May 24, 2018); see, e.g., 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 limiting the plaintiff to "simple, routine, repetitive tasks" and DOT's description of the identified jobs as 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 limiting the plaintiff to "simple, routine, and repetitive tasks" and the GED Reasoning Levels 2 and 3 in the three jobs identified at the hearing).
As noted above, in Pearson, the court stated 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." 810 F.3d 204, 210. Furthermore, as noted, the plaintiff proceeded pro se at the hearing before the ALJ, and our circuit has held that in pro se cases, the ALJ has "a duty to assume a more active role in helping claimants develop the record." Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980).
In her reply brief, the plaintiff states that she did not know "how to talk" to the ALJ, and she "needed a lawyer to talk for [her]" (doc. 49 at 4-5). To the extent the plaintiff argues that her pro se status alone warrants remand, the undersigned disagrees. The Court of Appeals for the Fourth Circuit has determined that lack of representation by counsel does not necessarily require a finding that the claimant did not obtain a full or fair hearing (and thus remand of the matter), unless the absence of counsel created clear prejudice or unfairness. Sims v. Harris, 631 F.2d 26, 27-28 (4th Cir. 1980). As set out above, at the administrative hearing, the ALJ informed the plaintiff of her right to representation and told her that he would grant postponement of the hearing if she wished to obtain representation. However, the plaintiff chose to go forward with the hearing and to testify without the assistance of an attorney or other representative (Tr. 32-34). The plaintiff also signed a form stating that she received a letter prior to the hearing informing her of her right to be represented by an attorney or other person of her choice, she understood her right to be represented, and she wished to proceed with the hearing without representation (Tr. 132; see Tr. 96-103). Should the district court adopt this recommendation and remand for another hearing, the plaintiff will have the right to seek representation by an attorney or other qualified person, if she so chooses. The plaintiff should review the documents sent to her by the Social Security Administration, which explain her right to representation and identify organizations that may provide representation free of charge (Tr. 96-103).
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 and 3 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 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, and 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. As noted above, upon remand, the ALJ should consider the plaintiff's matter de novo, including appropriately accounting for the plaintiff's moderate limitation in concentration, persistence, and pace (Tr. 17) in the RFC assessment and hypothetical to the vocational expert in light of Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015) ("[W]e agree with other circuits 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.'" (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.2011)).
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.
Kevin F. McDonald
United States Magistrate Judge May 2, 2019
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).