Opinion
Civil Action No. 8:19-cv-02055-DCC-JDA
04-06-2020
Terrance Jerome Collins, Plaintiff, v. 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 supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In April 2016, Plaintiff filed an application for SSI benefits alleging an onset of disability date of May 1, 2010. [R. 179-87.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 79-90, 93-105]. Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on May 3, 2018, ALJ J. Petri conducted a de novo hearing on Plaintiff's claim. [R. 34-54.]
The ALJ issued a decision on September 6, 2018, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 20-29.] At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful activity since April 18, 2016, the application date. [R. 22, Finding 1.] At Step 2, the ALJ found Plaintiff had severe impairments of degenerative disc disease of the cervical spine, diabetes with gastroparesis, and obesity. [R. 22, Finding 2.] The ALJ also found that Plaintiff had non-severe impairments of HTN, GERD, plantar fasciitis, history of possible fracture of right 5th metacarpal, vision problems, depression and anxiety. [R. 22-23.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 23, Finding 3.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except never climb ropes/ladders/scaffolds, occasionally climb ramps/steps,
balance, stoop, kneel, crouch and crawl. With his non-dominant left upper extremity, he can occasionally reach overhead, but can frequently handle and finger. He can have frequent exposure to workplace hazards.[R. 24, Finding 4.] The ALJ determined at Step 4 that Plaintiff had no past relevant work. [R. 27, Finding 5.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 28, Finding 9.] Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, since April 18, 2016, the date the application was filed. [R. 28, Finding 10.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined. [R. 1-6.] Plaintiff filed the instant action for judicial review on July 23, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that errors by the ALJ require the decision to be remanded for further administrative proceedings. [Doc. 12.] Plaintiff alleges the ALJ improperly relied on the testimony of the VE because the ALJ failed to elicit an explanation for a potential conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). [Id. at 4-7.] Specifically, the Plaintiff challenges the ALJ's failure to specifically "acknowledge or note in the decision that the VE has expressly stated that the DOT does not delineate between overhead and other types of reaching, and therefore his testimony on its face conflicted with the DOT." [Id. at 6.]
The Commissioner contends the decision is supported by substantial evidence and should be affirmed. [Doc. 13.] The Commissioner contends the presence of an apparent conflict does not mean that an actual conflict exists. [Id. at 8.] The Commissioner argues that the
VE provided testimony that made it clear that while there may have been an apparent conflict between his testimony and the DOT, there was no actual conflict. Specifically, he testified that the DOT does not address overhead reaching, using the left versus right arm, or using the dominant versus non-dominant arm (Tr. 52). Thus, while there seemed to be a conflict between the VE's testimony and the DOT, the VE testified that there was no actual conflict - that through his testimony he filled in details not addressed by the DOT, as opposed to supplying information that stood contrary to that contained in the DOT.[Id.]
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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 416.927©. 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. § 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 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. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 416.928 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
At Step 5 in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). The Administration relies primarily on the DOT for information about the requirements of work in the national economy, and ALJs should take administrative notice of information contained therein and consider it in assessing claimants' abilities to perform specific jobs. 20 C.F.R. § 416.966(d). In some cases, ALJs obtain testimony from VEs to address more complex issues, such as whether claimants' work skills can be used in other work and specific occupations that allow for use of particular skills. 20 C.F.R. § 416.966(e).
The ALJ, in her hypothetical to the VE, included the limitation that "[w]ith his left, non-dominant upper extremity, overhead reaching is limited to occasional" for the hypothetical individual. [R. 51.] The VE testified that there were three jobs that existed in the United States economy that such a hypothetical individual could perform—box sealer inspector, housekeeper, and price marker—and he noted the number of each of those jobs that existed in the United States economy. [Id.] When asked if his testimony was consistent with the DOT, the VE testified, "It is. Some areas are not addressed in the DOT, such as overhead reaching and that of absenteeism are based on my knowledge, education, training and field experience." [Id. at 52.] When asked if the same was true of "left versus right, dominant, non-dominant," the VE responded "[c]orrect." [Id.] In her decision, the ALJ found that the VE's testimony was "consistent with the information contained in the [DOT]" and that Plaintiff was "capable of making a successful adjustment to other work that exists insignificant numbers in the national economy." [R. 28.]
Plaintiff contends that the ALJ failed to fully develop the record at Step 5 of the sequential process. Plaintiff specifically argues that the ALJ accepted the VE's testimony that the reaching limitations the ALJ accepted would not preclude an individual from performing the three jobs at issue without addressing an apparent conflict between the VE's testimony and the DOT's definition of the requirements for these jobs. [Doc. 12 at 3-7.] The Court agrees.
Social Security Ruling 00-4p provides guidance regarding how ALJs must resolve conflicts concerning occupation information:
Occupational evidence provided by a VE or VS generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. 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.SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). The Ruling also provides that the ALJ must explain the resolution of the conflict in his or her decision. Id.
Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.
SSR 00-4p also provides:
Reasonable explanations for such conflicts, which may provide a basis for relying on the evidence from the VE or VS, rather than the DOT information, include, but are not limited to the following:
Evidence from VEs or VSs can include information not listed in the DOT. The DOT contains information about most, but not all, occupations. The DOT's occupational definitions are the result of comprehensive studies of how similar jobs are performed in different workplaces. The term "occupation," as used in the DOT, refers to the collective description of those jobs. Each occupation represents numerous jobs. Information about a particular job's requirements or about occupations not listed in the DOT may be available in other reliable publications, information obtained directly from employers, or from a VE's or VS's experience in job placement or career counseling.
Therefore, the Fourth Circuit has explained that if the VE testifies that his testimony conflicts with the DOT, "the ALJ must elicit a reasonable explanation for the conflict before relying on the testimony." Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019), as amended (Feb. 22, 2019) (internal quotation marks omitted). "An ALJ does not fulfill his affirmative duty found in the Ruling merely upon asking the VE whether his or her testimony is consistent with the DOT." Stevenson v. Berryhill, No. 8:18-cv-01091-JMC- JDA, 2019 WL 2146990, at *7 (D.S.C. Apr. 11, 2019), Report and Recommendation adopted by 2019 WL 1856481 (D.S.C. Apr. 25, 2019). "This is true because an ALJ must investigate facts and develop the record at the hearing; the record is not fully developed if it contains an unresolved conflict between the vocational expert's testimony and the DOT." Id. " Likewise, an ALJ fails to fulfill his duty "if he ignores an apparent conflict because the expert testified no conflict existed." Westberry v. Berryhill, No. 8:18-cv-00462-DCC-JA, 2019 WL 2234672, at *9 (D.S.C. Feb. 26, 2019), Report and Recommendation adopted by 2019 WL 2233288 (D.S.C. May 23, 2019). Id. Thus, even if the VE testifies that there is no conflict, "the ALJ has an affirmative duty to . . . recognize and resolve ways in which a VE's testimony seems to, but does not necessarily, conflict with the express language of the DOT—even if the conflict is not obvious." Thomas, 916 F.3d at 312 (internal quotation marks omitted).
The Fourth Circuit's analysis in Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015), makes clear how these same rules apply in the present case. In Pearson, the Commissioner argued that a restriction to "occasional overhead lifting/reaching using the nondominant upper extremity" did not create an apparent conflict with the DOT's job descriptions that required frequent reaching because the plaintiff could "frequently reach bilaterally in every direction but overhead, and c[ould] frequently reach overhead with one arm." 810 F.3d at 206, 211 (internal quotation marks omitted). The court declined to follow the Commissioner's argument, concluding that, "[a]lthough the [DOT] does not expressly state that the occupations identified by the expert require frequent bilateral overhead reaching, the [DOT's] broad definition of 'reaching,'"—"[e]xtending hand(s) and arm(s) in any direction"—"means that they certainly may require such reaching." Id. at 210, 211 (first emphasis added). Thus, the court found that an apparent conflict existed between the DOT's requirements for the jobs in question and the VE's testimony that the hypothetical claimant could perform those jobs. Id. The court thus determined that remand was necessary because the ALJ and the VE failed to resolve the apparent conflict. Id.
Similar to Pearson, the DOT lists the ability to reach on a frequent basis as a requirement for all of the jobs the VE identified in this case. 1991 WL 685612 (DOT 641.687-014 box sealing inspector); 1991 WL 672783 (DOT 323.687-014 cleaner, housekeeping); 1991 WL 671802 (DOT 209.587-034 marker). Under Pearson's reasoning, the DOT's broad definition of "reaching" means that the DOT's job descriptions for each of the three jobs in question "certainly may require" frequent bilateral overhead reaching. Pearson, 810 F.3d at 211. And, an apparent conflict arose between the DOT's express language and the VE's testimony that the jobs could be performed by someone who can reach overhead with his left, non-dominant upper extremity only occasionally. See id. It was therefore incumbent on the ALJ to obtain a reasonable explanation from the VE as to why the ALJ should rely on the VE's testimony over the DOT, and then resolve the conflict. Because the ALJ erred failed to take these steps, the undersigned concludes that the decision be reversed and the case be remanded. See Hill v. Berryhill, 6:18-935-BHH-KFM, 2019 WL 6120430, at *4-7 (D.S.C. June 14, 2019) (reversing and remanding on essentially identical facts), Report and Recommendation adopted by 2019 WL 2743888 (D.S.C. July 1, 2019).
The Commissioner concedes that there was an apparent conflict between the VE's testimony that a hypothetical individual with the given limitation could perform the jobs at issue and the DOT's reaching requirements for those jobs. [Doc. 13 at 7-8.] However, the Commissioner argues that the ALJ had no duty to address that apparent conflict because the VE "testified that the DOT does not address overhead reaching, using the left versus right arm, or using the dominant versus non-dominant arm." [Id. at 8.] The Commissioner maintains that this testimony from the VE regarding what the DOT requires served to make clear that "while there may have been an apparent conflict between [the VE's] testimony and the DOT, there was no actual conflict." [Id. at 8-9.] The Commissioner contends, therefore, that the ALJ committed no error in seeking to resolve a conflict that did not exist.
The Commissioner's argument simply fails to account for the reasoning in Pearson and specifically the fact that the Fourth Circuit in that case already decided the meaning of the DOT requirement in question and how specific the DOT requirement must be to trigger the ALJ's duty to decide to resolve the apparent conflict. As noted, the Fourth Circuit explicitly decided in Pearson, based on the DOT's definition of "reaching," that a job requirement of frequent "reaching" in the DOT means that the job may certainly require frequent bilateral reaching and that a VE's testimony that a hypothetical claimant can perform the job without frequent bilateral reaching creates an apparent conflict that the ALJ must resolve. See Pearson, 810 F.3d at 211; see also Lockwood v. Comm'r, 914 F.3d 87, 92 (2d Cir. 2019) ("Testimony that a claimant with overhead reaching limitations is capable of performing a job that the [DOT] describes as requiring 'reaching,' . . . creates at least an apparent conflict that triggers the Commissioner's duty to elicit an explanation that would justify crediting the testimony."). This Court is required to apply the Fourth Circuit's interpretation, as was the ALJ. Accordingly, to the extent the VE testified that the jobs in question in fact did not require frequent bilateral reaching, there was an apparent conflict between his testimony and the DOT—as the DOT has been interpreted by the Fourth Circuit—whether the VE believed there was or not. The ALJ was therefore not free to rely on the VE's testimony that the hypothetical individual would be able to actually perform the jobs in question and to reject the DOT's information indicating that such an individual may not be able to perform the job without developing a record that would support such a decision. Because the ALJ failed to develop the record in that fashion, the Court cannot determine that substantial evidence supports the ALJ's decision to rely on the VE rather than the DOT. See Pearson, 810 F.3d at 209 (explaining that "if the ALJ does not elicit [an] explanation [for an apparent conflict], then the [VE's] testimony cannot provide substantial evidence to support the ALJ's decision"). Thus, the ALJ's decision should be reversed.
The Commissioner argues that even if the ALJ erred in not recognizing or discussing the apparent conflict between the VE's testimony and the DOT, any error was harmless. [Doc. 13 at 9-11.] The Commissioner argues that this is so because the VE's testimony made clear that the VE "was aware of the type of reaching limitations specified by the ALJ, that he was also aware of the reaching requirements set forth in the DOT, and that his testimony supplemented, rather than conflicted with, those requirements." [Id. at 10.]
The Commissioner's argument, however, appears to be just another iteration of his position that there was no conflict to resolve, a position that the Fourth Circuit rejected in Pearson. What the VE was aware of is beside the point. What does matter is that the ALJ failed to develop the record to the point she would have needed to in order to resolve the apparent conflict that existed between DOT's job requirements and the VE's testimony that the jobs did not require frequent, bilateral, overhead reaching. The Plaintiff is therefore entitled to reversal of the ALJ's decision and remand for further proceedings. See Keller v. Berryhill, 754 F. App'x 193, 199 (4th Cir. 2018) (refusing to find similar error harmless because "the administrative record d[id] not clearly demonstrate that [the claimant could] actually perform the occupations identified by the VE and relied on by the ALJ at the fifth step").
The Commissioner's citation of Bachand v. Colvin, 1:15-cv-00686, 2016 WL 4074148, at *8-10 & n.10 (M.D.N.C. July 29, 2016), in support of his argument that any error was harmless is unpersuasive. In that case, under questioning from plaintiff's counsel, a VE explained that the DOT indicated that a warehouse worker would be required to use both arms, but the VE testified that a certain number of such workers could do their job without using both arms. Id. at *8. As a result of that discussion explaining the apparent conflict, the ALJ did not ask the VE about the apparent conflict between his testimony that there were a certain number of warehouse-worker positions for individuals who could not use both arms and the DOT requirement that a warehouse worker be able to use both arms. Id. The court concluded that any error on the part of the ALJ in failing to ask about the apparent conflict or in stating that there was no inconsistency would be harmless in light of the VE's explanation. Id. at 8-10 & n.10. Of course, the type of technical error at issue in that case is a far cry from the error in this case, where the ALJ failed to recognize the issue she had to resolve and failed to develop the record she would need to resolve it. --------
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and 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 April 6, 2020
Greenville, South Carolina
2000 WL 1898704, at *4 (Dec. 4, 2000).