Sutton
v.
Berryhill

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISIONAug 20, 2018
Case No. 8:17-cv-02065-RMG-JDA (D.S.C. Aug. 20, 2018)

Case No. 8:17-cv-02065-RMG-JDA

08-20-2018

Karen Ann Sutton, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.


REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).

A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.

Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).

PROCEDURAL HISTORY

On February 10, 2015, Plaintiff filed an application for DIB [R. 218-234], alleging a disability onset date of May 30, 2012. The claims were denied initially [R. 118-127], and upon reconsideration [R. 155-160]. Thereafter, the claimant filed a written request for hearing and, on January 4, 2017, appeared with an attorney and testified at a hearing before Administrative Law Judge ("ALJ") Ann G. Paschall. [R. 86-117.]

Although Plaintiff's application for DIB lists an onset date of February 1, 2011 [R. 218, 228], the remainder of the record evidence, including the hearing decision, alleges that Plaintiff's onset date was May 30, 2012 [R. 69].

The ALJ issued a decision on March 1, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 69-85.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Social Security Act ("the Act") through September 30, 2013 and had not engaged in substantial gainful activity during the period from her alleged onset date of May 30, 2012 through her date last insured of September 30, 2013. [R. 71, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of lumbar spine degenerative disc disease; myalgia; thoracic spondylosis; depression; and anxiety. [R. 71, Finding 3.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526). [R. 72, Finding 4.]

The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.

Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:

through the date last insured, the claimant had the RFC to perform light work (lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently; stand or walk 6 hours in an 8-hour workday; and sit 6 hours in an 8-hour workday), as defined in 20 CFR 404.1567(b) except with the following non-exertional limitations: never climb ladder/rope/scaffolds; have no exposure to dangerous machinery or unprotected heights; occasionally climb ramp/stairs, stoop, crouch, kneel, and crawl; and occasionally reach overhead with bilateral upper extremities. The claimant can comprehend and perform simple routine tasks and instructions. She can concentrate on, focus, and attend to work tasks for at least two hours at a time before needing a normal break of 15 minutes, or once per day, a 30 minute meal break.

[R. 73, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff is unable to perform her past relevant work as a baby sitter. [R. 78, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that, through the date last insured, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 78, Finding 10.] Accordingly, the ALJ concluded Plaintiff was not under a disability, as defined in the Social Security Act, at any time from May 30, 2012, the alleged onset date, through September 30, 2013, the date last insured. [R. 80, Finding 11.]

Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined review. [R. 1-6.] Plaintiff filed the instant action for judicial review on August 4, 2017. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends that errors by the ALJ require the decision to be remanded for further administrative proceedings. [See Doc. 13.] Specifically, Plaintiff alleges the ALJ improperly relied on the testimony of the VE by failing to elicit an explanation for the potential conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). [Id. at 26-28.]

The Commissioner contends the ALJ's decision is supported by substantial evidence and should be affirmed. [See Doc. 14.] The Commissioner contends there was no conflict between the VE's testimony and the DOT apparent enough to trigger a duty on the part of the ALJ to make further inquiry. [Id. at 5-10.]

STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").

Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).

The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).

The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1091-92 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).

In contrast, sentence six provides:

The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .

42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before her; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991), rev'd on other grounds. With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).

Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.

APPLICABLE LAW

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:

the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.

Id
. § 423(d)(1)(A).

I. The Five Step Evaluation

To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).

A. Substantial Gainful Activity

"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, she is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.

B. Severe Impairment

An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).

C. Meets or Equals an Impairment Listed in the Listings of Impairments

If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).

D. Past Relevant Work

The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work she has done in the past to determine whether the claimant has the residual functional capacity to do her past work. 20 C.F.R. § 404.1560(b).

Residual functional capacity is "the most [a claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a).

E. Other Work

As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).

An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).

II. Developing the Record

The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).

III. Treating Physicians

If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).

In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.

IV. Medical Tests and Examinations

The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.

V. Pain

Congress has determined that a claimant will not be considered disabled unless she furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." SSR 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).

In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).

VI. Credibility

The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").

APPLICATION AND ANALYSIS

Plaintiff contends that there is a conflict between the DOT and the VE testimony because the DOT jobs identified by the VE cannot be performed by Plaintiff based upon the limitations the ALJ found Plaintiff to have. [Doc. 13 at 26-28.] Specifically, Plaintiff argues that, because the ALJ determined that Plaintiff was limited to being able to comprehend and perform simple routine tasks and instructions, the ALJ was required, under Henderson v. Colvin, to resolve conflicts between the DOT and the VE's testimony concerning jobs with a reasoning level of 2 that the VE identified as being available to Plaintiff. [See Id.]

The ALJ provided the following limitations in a hypothetical to the VE:

consider someone of [Plaintiff's] age, education, and experience who is limited to a maximum of light work as we customarily define that . . . [who] can understand and perform simple, routine tasks and instructions. He or she can concentrate, focus, and attend to work tasks for at least 2 hours at a time before needing a normal break of 15 minutes or once per day a 30 minute meal break.

[R. 111-112.] In response to a hypothetical containing these restrictions, the VE testified that Plaintiff could perform work as a sorter (DOT # 798.687-146, SVP of 2), an inspector (DOT # 741.687-010, SVP of 2), and an assembler (DOT #706.684-022, SVP of 2). [R. 112.] The VE also testified that, while certain matters are not addressed by the DOT, he relied on his experience over the years in giving his opinion; and also indicated that there were no conflicts between his testimony and the DOT. [R. 113.]

Resolving Conflicts Between VE Testimony and the DOT

SSR 00-4p provides that the ALJ "has an affirmative responsibility to ask [a VE] about any possible conflict between [his] evidence and . . . the DOT." SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). Accordingly, the ALJ must ask the VE whether his testimony conflicts with the DOT, and if so, the ALJ must "obtain a reasonable explanation for the apparent conflict." Id. Furthermore, the ALJ must resolve this conflict prior to relying upon the VE's testimony and must explain the resolution of the conflict in her decision. Id. This SSR, thus, puts the onus of identifying and obtaining a reasonable explanation of any conflicts between the VE's testimony and the DOT on the ALJ. Pearson v. Colvin, 810 F.3d 204, 208 (4th Cir. 2015).

Specifically, an ALJ must first ask the expert if the evidence provided conflicts with the information found in the DOT, and second, if the expert's evidence appears to conflict with the DOT, the ALJ must "obtain a reasonable explanation for the apparent conflict." Id. (internal quotation marks omitted). An ALJ does not fulfill her affirmative duty found in the SSR merely upon asking the VE whether his testimony is consistent with the DOT. Id. at 208-09 This is true because an ALJ must investigate facts and develop the record at the hearing; the record is not fully developed if it contains an unresolved conflict between the VE's testimony and the DOT. Id. at 210. Likewise, an ALJ fails to fulfill her duty if she ignores an apparent conflict because the expert testified no conflict existed. Id.

Although district courts within the Fourth Circuit are split on the issue, see Weaver v. Colvin, No. 1:10CV582, 2013 WL 3989561, at *11 n.14 (M.D.N.C. Aug. 2, 2013) (collecting cases), Report and Recommendation adopted by 2013 WL 4768178 (M.D.N.C. Sept. 5, 2013), both the Fourth Circuit and courts in this district have consistently remanded cases where the DOT and VE testimony are in conflict. In Shivers v. Colvin, No. 6:12-3381-SB, 2014 WL 1315183 (D.S.C. March 27, 2014), for example, the Court considered whether an ALJ erred in relying on VE testimony when there was an alleged apparent conflict between the plaintiff's RFC and the general education development ("GED") levels of three jobs identified by the VE as work the plaintiff could perform. In that case, the Commissioner argued that the Fourth Circuit Court of Appeals had not addressed the correlation between GED levels and a limitation to simple, routine, repetitive tasks. Id. at *3. In ruling for the plaintiff, the Shivers Court noted that the District of South Carolina had previously found an existing conflict between a GED reasoning level of two and three and a limitation to simple, routine, repetitive tasks. Id. Additionally, in that case, the ALJ never discussed with the VE whether the plaintiff's limitation to simple, routine, and repetitive tasks was compatible with the identified jobs; thus, the Shivers Court found it would be pure speculation to find that the VE considered and resolved that issue. Id.

In a more recent opinion, the District Court of South Carolina adopted the reasoning in the corresponding Report and Recommendation, finding that although the specific issue of whether a GED reasoning level of three is incompatible with the ability to perform "simple, routine, repetitive tasks" has not been considered by the Fourth Circuit Court of Appeals, other courts in this District have repeatedly remanded for further proceedings in similar situations. Christopherson v. Colvin, No. 6:15-4725-JMC, 2016 WL 7223283, at *8-9 (D.S.C. Nov. 18, 2016), Report and Recommendation adopted by 2016 WL 7212785 (D.S.C. Dec. 13, 2016); see also Phillips v. Astrue, No. 3:11-1085-MBS, 2013 WL 353604, at *2 (D.S.C. Jan. 29, 2013) (holding that the Commissioner's position that the plaintiff, who was limited to "'simple, one to two step tasks,'" could perform jobs at GED reasoning levels of two or three was not substantially justified); Reid v. Astrue, No. 6:10-2118-MBS-KFM, 2012 WL 667164, at *12-13 (D.S.C. Feb. 8, 2012) (finding an apparent conflict between the plaintiff's ability to perform simple, routine, repetitive tasks and GED reasoning level of three), Report and Recommendation adopted by 2012 WL 663482 (D.S.C. Feb. 29, 2012); Martin v. Astrue, No. 6:11-1572-TMC-KFM, 2012 WL 4479280, at *15-16 (D.S.C. July 27, 2012) (finding an unexplained potential conflict between GED reasoning levels two and three and the plaintiff's ability to perform no more than unskilled tasks; short, simple instructions; minimal changes in routine; and limited interaction with the public, supervisors, and co-workers), Report and Recommendation adopted by 2012 WL 4482943 (D.S.C. Sept. 27, 2012); Tadlock v. Astrue, No. 8:06-3610-RBH-BHH, 2008 WL 628591, at *10 (D.S.C. Mar. 4, 2008) (remanding so that the VE could give testimony as to whether the plaintiff could perform the recommended jobs, which had a reasoning level of two, considering the plaintiff's inability to do more than simple and routine work).

In Henderson v. Colvin, the Fourth Circuit Court of Appeals considered the situation when an expert's testimony appeared to conflict with the DOT. Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016) (unpublished). The Court found that substantial evidence to affirm an ALJ's decision in this situation exists only if the ALJ received an explanation from the expert explaining the conflict, and the ALJ determines that the explanation was both reasonable and provides a basis for his reliance upon the expert's testimony. Id. The Court held that, in that case, that the ALJ failed to meet his burden at Step 5 because the VE's testimony did not provide substantial evidence to show that a plaintiff's RFC would allow him to perform work that existed in significant numbers where there was an "an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED Reasoning Code 2, which requires the ability to understand detailed instructions." Id.

Discussion

In this case, the ALJ limited Plaintiff to being able to understand, remember and carry out simple routine tasks and instructions. [R. 73.] The ALJ does not explain her consideration of Plaintiff's moderate limitations in concentration, persistence, and pace or her finding that Plaintiff could concentrate in at least 2-hour intervals before requiring a 15 minute break during an 8-hour work day. When questioning the VE, the ALJ did ask the VE about conflicts between his testimony and the DOT; however, the conflicts the VE focused on at the time related to the fact that the "DOT does not actually distinguish between kinds of reaching" and the VE's reliance on information gained over the years in different types of light and sedentary work. [See R. 113.] Nevertheless, neither the ALJ's decision nor the VE's testimony address DOT conflicts with respect to Plaintiff's limitation to simple work.

The basis for the ALJ's finding that Plaintiff can work in 2-hour intervals with 15 minute breaks is not clear from reading the decision and should be explained thoroughly on remand. The ALJ should also cite to any medical records or opinions supporting this limitation. --------

Upon consideration of the above, given the limitations included in the RFC in this case, as well as the record—including the hearing testimony—currently before it, this Court cannot say with certainty whether the ALJ's decision to rely on the VE's testimony that Plaintiff could perform jobs at a reasoning level 2 was supported by substantial evidence. The Court notes that the VE's failure to identify the alleged conflict between the DOT and the VE's testimony "did not absolve the ALJ of [her] independent duty to consult the DOT and to determine whether the VE's testimony was consistent with its descriptions of the identified jobs." Pearson v. Commissioner, No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *12 (D.S.C. Mar. 29, 2017), Report and Recommendation adopted by 2017 WL 1364220 (Apr. 14, 2017). Further, the ALJ failed to even inquire into the presence of any inconsistency between the VE's testimony and the DOT with respect to Plaintiff's limitation to simple, routine work and work performed at a reasoning level of 2. Accordingly, this Court finds it prudent to remand this case back to the Commissioner to obtain testimony from the VE with respect to conflicts with Plaintiff's limitation to simple, routine work and the identified jobs.

Remaining Allegations of Error

Because the Court finds the ALJ's error, as outlined above, is a sufficient basis to remand this matter for further consideration, the Court declines to address any additional allegations of error. The ALJ is reminded, however, that, she should be mindful to present her findings with respect to Plaintiff's moderate limitations in concentration, persistence, and pace to the VE in accordance with Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015) (holding that an ALJ does not account for limitations in concentration, persistence, and pace by restricting the hypothetical individual to simple, routine tasks, or unskilled work.). Accordingly, the Commissioner should address any additional allegations of error on remand. See Harris v. Astrue, No. 9:09-0028-HFF, 2009 WL 5125215, at *4 (D.S.C. Dec. 28, 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 (W.D. Va. 2002)) (holding that, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo).

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.

IT IS SO RECOMMENDED.

s/ Jacquelyn D. Austin


United States Magistrate Judge August 20, 2018
Greenville, South Carolina