Opinion
Civil Action No.: 4:19-CV-00127-BHH-TER
04-13-2020
JOSE FRANCISCO MELENDEZ, JR., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
On April 10, 2015, Plaintiff filed an application for DIB, with a later amended alleged onset date of November 17, 2014. (Tr. 160). Plaintiff's claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on November 8, 2017, at which time Plaintiff and a vocational expert (VE) testified. (Tr. 160). The Administrative Law Judge (ALJ) issued an unfavorable decision on January 5, 2018, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 160-73). Plaintiff submitted additional evidence and filed a request for review of the ALJ's decision, which the Appeals Council denied on December 13, 2018, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). The additional evidence was not exhibited by the Appeals Council, but it was included in the record to the court. On January 15, 2019, Plaintiff filed an action in this court. (ECF No. 1).
B. Plaintiff's Background and Medical History
Plaintiff was born on September 22, 1964, and was fifty years old on the alleged onset date. (Tr. 171). Plaintiff has past relevant work experience as a corrections officer and composite job as a parts manager and material handler. (Tr. 171). Only records pertinent to the issues argued by Plaintiff will be summarized under the relevant issue headings.
C. The ALJ's Decision
In the decision of January 5, 2018, the ALJ made the following findings of fact and conclusions of law: 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2020. 2. The claimant has not engaged in substantial gainful activity since November 17, 2014, the alleged onset date (20 CFR 404.1571 et seq.). 3. The claimant has the following severe impairments: ischemic heart disease status post December 5, 2014 coronary artery bypass grafting (CABG), status-post November 20, 2015 left knee surgery, status-post May 2015 right carpal tunnel, epicondylitis surgery, diabetes, and obesity (20 CFR 404.1520(c)). 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant is limited to walking 3 hours in an 8 hour work day; never climb ladders, ropes, scaffolds; occasional climbing of ramps and stairs, balancing, kneeling, crouching, and crawling; frequent stooping; frequent handling, fingering, and feeling with the non-dominant right hand; and occasional exposure to extreme heat and extreme cold, humidity, pulmonary irritants (such as fume, smoke, odors, dust, gases, and poor ventilation), and hazards associated with dangerous machinery and unprotected heights. In addition, the claimant can concentrate, persist, and maintain pace sufficient to understand, remember, and carry out simple, routine tasks in a low stress work environment (defined as being of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional work place changes. 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565). 7. The claimant was born on September 22, 1964 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563). 8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564). 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)). 11. The claimant has not been under a disability, as defined in the Social Security Act, from November 17, 2014, through the date of this decision (20 CFR 404.1520(g)).
II. DISCUSSION
Plaintiff argues the ALJ erred at Step Five in finding GED reasoning level two and three jobs given the RFC found. Plaintiff argues the ALJ does not provide a reasoned explanation for an RFC of light with walking limited to three hours and with considerable weight given to a physical therapist's opinion where "light" was defined differently than the Commissioner's regulatory definition.
Defendant argues that the ALJ's decision is supported by substantial evidence.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
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). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity ("SGA"); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [ ] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. ANALYSIS
RFC
Plaintiff argues the ALJ does not provide a reasoned explanation for an RFC of light with walking limited to three hours and with considerable weight given to a physical therapist's opinion where "light" was defined differently than the Commissioner's regulatory definition.
An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 416.946(c). In making that assessment, he must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. This ruling provides that: "The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." SSR 96-8, *7. "The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." Id. Additionally, " 'a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including 'a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.' " Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595.
The ALJ here gave an RFC containing a limit of "perform light work as defined in 20 CFR 404.1567(b) except the claimant is limited to walking 3 hours in an 8 hour work day..." (Tr. 163). Light work is defined as:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b).
The definition of light work within the DOT within the job of counter clerk provides:
Counter clerk is the remaining job category after the harmless error at Step Five discussed below.
Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.DOT 249.366-010, 1991 WL 672323.
SSR 83-10, 1983 WL 31251, at *6 (emphasis added) provides: "Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday."
In making his modified light RFC finding, the ALJ credited "considerable weight" to a source that is not an acceptable medical source, physical therapist Geib, while acknowledging he was not an acceptable source. (Tr. 169). The ALJ stated Geib's opinion was that Plaintiff could perform light work except only walk occasionally. (Tr. 169). The ALJ stated the opinion was consistent with the record as a whole. (Tr. 169). In concluding the RFC narrative, the ALJ reiterated that the RFC was supported by the FCE of the physical therapist who "limited the claimant to light work" citing Exhibit 17F, Geib's opinion. (Tr. 171). However, Geib's assessment and opinion was based on the Department of Labor's definitions of light work and not the Social Security Administration's definitions of light work. (Tr. 1173). The ALJ fails to consider or acknowledge this. "Mr. Melendez's occasional lifting capabilities are at light physical demand category (PDC). According to the US Department of Labor guidelines, light work is defined as lifting 0-20 pounds 0-33% of the workday. (Tr. 1173). Plaintiff could lift/carry 15 pounds. (Tr. 1173). A recommendation and accommodation listed was "limit walking to occasional with rest breaks PRN." (Tr. 1173). Frequent sitting and standing was listed as demonstrated ability. (Tr. 1183).
Under SSA definitions, "'[f]requent' means occurring from one-third to two-thirds of the time." SSR 83-10, 1983 WL 31251, at *6."'Occasionally' means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday." Id. at 5.
A source opinion which limited Plaintiff to lifting 0-20 pounds 0-33% of the day aligns with the SSA's definition of occasionally, not frequent. SSR 83-10. If Plaintiff can only lift/carry 0-20 pounds occasionally, Plaintiff would not meet the SSA's regulatory definition of light: "frequent lifting or carrying." 20 C.F.R. § 404.1567(b). Where a source opinion which limited Plaintiff to occasional walking and frequent standing where "occasional" is defined as being on one's feet up to two hours under the sedentary level per SSA definitions, it is unclear whether substantial evidence supports the ALJ's RFC which included a limitation to light with three hours of walking. It is also unclear whether substantial evidence supports the RFC where the other source opinion was given considerable weight without consideration of the definitions of terms the source opinion was using, which were inapposite of SSA definitions. Thus, there are unresolved conflicts within the Plaintiff's RFC and RFC narrative and also with the consideration given to and evaluation of the other source's opinion. It cannot be said that substantial evidence supports the RFC here of modified light with three hours of walking. Remand is required. Step Five: GED Reasoning Level
Plaintiff argues the ALJ erred at Step Five in finding GED reasoning level two and three jobs given the RFC found. Plaintiff argues that the ALJ has a duty to identify and obtain a reasonable explanation of any apparent conflicts between VE testimony and the DOT and the ALJ must explain how the conflict has been resolved. The ALJ here gave a limitation of "can concentrate, persist, and maintain pace sufficient to understand, remember, and carry out simple, routine tasks in a low stress work environment (defined as being of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional work place changes." (Tr. 163).
Plaintiff argues based on case law in this district the ALJ erred by failing to obtain an explanation from the VE as to the apparent conflict between Reasoning Level two and three requirements and the Plaintiff's RFC of "simple, routine tasks." Plaintiff argues thus, the Commissioner failed to meet the burden at Step Five.
The ALJ is required to elicit an explanation for a "apparent unresolved conflict" between the VE and DOT. The ALJ noted:
Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles.(Tr. 172). The ALJ noted the DOT was silent on issues of reduced walking at the light level, but the ALJ was satisfied the VE offered her opinion based on SSR 00-4p. (Tr. 172). The VE testified her testimony did not necessarily conflict with DOT but was merely supplemented with the VE's knowledge of how jobs were performed where the DOT is silent or ambiguous on particular issues. (Tr. 222). The VE testified to and the ALJ found the jobs of counter clerk, DOT 240.366-010, 1991 WL 672323, light, GED reasoning level 2, mail clerk, DOT 209.687-026, 1991 WL 671813, light, GED reasoning level 3; and rental clerk, DOT 295.357-018, 1991 WL 672589, light, reasoning level 3.
One of the jobs is GED Reasoning Level 2, which is defined by the DOT: "Apply 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." See DOT, App. C, 1991 WL 688702.
GED reasoning level is a distinct consideration apart from SVP. Pearson v. Comm'r of Soc. Sec. Admin., No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *13 (D.S.C. Mar. 29, 2017), report and recommendation adopted sub nom., 2017 WL 1364220 (D.S.C. Apr. 14, 2017). SVP stands for "specific vocational preparation" and is defined as "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." DOT, App. C, 1991 WL 688702. SVP is rated on a scale of 1 to 9, with 1 being the least amount of time necessary to learn a job, "short demonstration only" and 9 being "over 10 years." Id. GED refers to "education of a general nature which does not have a recognized, fairly specific occupational objective." Id. GED is ranked on a scale of 1 to 6, with 1 being the lowest. Id. The GED scale is composed of three divisions: reasoning development, mathematical development, and language development. Id.
Plaintiff argues a reasoning level of two requires the ability to understand detailed instructions. Plaintiff argues the ALJ must elicit an explanation for the apparent conflict. Plaintiff argues the ALJ has not satisfied the ALJ's SSR 00-4p duties.
SSR 00-4p places an affirmative duty on the ALJ to "obtain a reasonable explanation for the apparent conflict." SSR 00-4p; Pearson v. Colvin, 810 F.3d 204, 208-09 (4th Cir. 2015). The Fourth Circuit discussed "apparent" thoroughly in the context of SSR 00-4p:
"Apparent," of course, has two definitions: "obvious," and "seeming real or true, but not necessarily so." Apparent, Oxford Dictionary, http://www.oxforddictionaries.com/definition/apparent (last visited Dec. 1, 2015). But the context of the word "apparent" in SSR 00-4p makes plain that the
Ruling intends the latter meaning—that the ALJ must identify where the expert's testimony seems to, but does not necessarily, conflict with the Dictionary. For the Ruling explains that "[i]f the [vocational expert]'s ... evidence appears to conflict with the [Dictionary ], the adjudicator will obtain a reasonable explanation for the apparent conflict." SSR 00-4p, at *4 (emphasis added). And the title of one of the Ruling's sections addresses "Conflicts (or Apparent Conflicts)," id. at *2; that title would be redundant if "apparent" meant "obvious."Pearson v. Colvin, 810 F.3d 204, 209 (4th Cir. 2015)(emphasis added).
We recognize that this conclusion rejects both the Commissioner's claim that, if any conflict needs to be identified and resolved, it is only obvious conflicts, and Pearson's contention that all possible conflicts must be identified and resolved.
In a published panel decision, the Fourth Circuit joined "every other circuit to consider the issue" and found no apparent conflict between GED Reasoning Level two jobs and an RFC of "simple, routine, repetitive tasks of unskilled work," and therefore, the ALJ committed no error because there was no apparent conflict to identify and resolve. Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. Oct. 24, 2019)(published).
Cf. Thomas v. Berryhill, 916 F.3d 307, 313-14 (4th Cir. 2019)(apparent conflict between RFC limited to jobs involving "short simple instructions" and Level 2's "detailed but uninvolved instructions"; Lawrence, 941 F.3d at 143 (noting that "tasks" and "instructions" in some circumstances may be synonymous).
This is opposite of the holdings in the past, prior to Lawrence, of several courts in this district who have addressed this issue.
Because the job found here at Step Five with a reasoning level of two does not apparently conflict with the RFC here of "simple, routine, and repetitive tasks," there was no error by the ALJ in not asking the VE about the "alleged apparent conflict" as to the reasoning level two jobs and thus, these two job categories remain to support the ALJ's Step Five finding here.
However, as to the GED reasoning level three jobs here, there is error, albeit harmless error. GED Reasoning Level 3 is defined by the DOT: "Apply 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." See DOT, App. C, 1991 WL 688702. The Fourth Circuit case, Lawrence, dealing with all reasoning level two jobs, did not address reasoning level three jobs.
Case law supports that there is at the very least an apparent conflict in need of resolution where the RFC found is simple, routine tasks and the jobs identified by the VE are DOT reasoning level three jobs. 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 RFC limitation of simple, routine, and repetitive tasks and GED reasoning level of three); Piner v. Berryhill, No. 3:17-TMC-SVH, 2017 WL 4712084, at *13-14, adopted by, 2017 WL 4682004 (D.S.C. Oct. 18, 2017)(the court considered a restriction to simple, routine tasks and noted that it had issued prior decisions finding that an apparent conflict existed between GED reasoning levels two and three and such an RFC); Christopherson v. Colvin, No. 6:15-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016) (holding that an apparent conflict existed between the VE's identification of jobs having GED reasoning levels of two and three and an RFC of "simple, routine, and repetitive tasks"); Pressley v. Berryhill, No. 8:16-2716-BHH-JDA, 2017 WL 4174780, at *10-11 (D.S.C. Aug. 24, 2017), adopted by 2017 WL 4156460 (D.S.C. Sept. 19, 2017) (finding an apparent conflict existed between the jobs the VE identified in response to the RFC of simple, routine, and repetitive tasks and the DOT's description of the jobs as having GED reasoning levels of two and three); McDowell v. Berryhill, No. CV 1:17-1253-PMD-SVH, 2018 WL 4523196, at *17 (D.S.C. Apr. 16, 2018), report and recommendation adopted, 2018 WL 3216103 (D.S.C. July 2, 2018); Shivers v. Colvin, No. 6:12-3381-SB, 2014 WL 1315183 (D.S.C. March 27, 2014)(apparent conflict found between simple, routine, and repetitive tasks and reasoning level two and three); Lanford v. Berryhill, No. 8:17-cv-01204-MGL-JDA, 2018 WL 3802102, at *10 (D.S.C. July 26, 2018), report and recommendation adopted, 2018 WL 3773913 (D.S.C. Aug. 9, 2018)(finding apparent conflict between "simple, routine tasks" and reasoning levels two and three); Massey v. Colvin, No. 3:12-3483-TMC, 2013 WL 6780575, at *8-9 (D.S.C. Dec 19, 2013); see also Hackett v. Barnhardt, 395 F.3d 1168, 1176 (10th Cir. 2005) (apparent conflict between jobs requiring GED reasoning level three and an RFC of "simple and routine" work tasks); Meadows v. Berryhill, No. 4:17-CV-105-FL(2), 2018 WL 3596064, at *4-5 (E.D.N.C. July 3, 2018), report and recommendation adopted, 2018 WL 3594980 (E.D.N.C. July 26, 2018); Mullis v. Colvin, No. 1:11-cv-22, 2014 WL 2257188 (M.D.N.C. May 29, 2014) (finding an apparent conflict between an RFC limitation to simple, routine, repetitive tasks and a VE's testimony that Plaintiff could perform a DOT reasoning level three job); Dunn v. Berryhill, No. 1:17-cv-507, 2018 WL 3383421, at *4 (M.D.N.C. July 11, 2018); Hill v. Berryhill, No. 3:16-CV-00042-GCM, 2017 WL 3485108, at *3 (W.D.N.C. Aug. 14, 2017); Goode v. Colvin, No. 1:14-CV-00056-FDW, 2014 WL 6648717, at *3 (W.D.N.C. Nov. 24, 2014). Other district courts in the Fourth Circuit have "repeatedly found that a limitation to simple or routine tasks conflicts with jobs requiring a GED reasoning level of three and that such a conflict must be addressed and resolved by the ALJ." Graham-Willis v. Colvin, No. 1:12-cv-02489-JMC, 2013 WL 6840465 at *7 (D.S.C. Dec. 27, 2013) (collecting cases).
At least two appellate courts have held that there is an apparent conflict between a limitation to simple, routine, or repetitive tasks and the requirements of level-three reasoning. See Zavalin v. Colvin, 778 F.3d 842, 846-47 (9th Cir. 2015)(joining the Tenth Circuit in holding that "there is an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning"); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (holding that a claimant's limitation to "simple and routine work tasks" is "inconsistent with the demands of level-three reasoning").
The Fourth Circuit stated in Keller:
We agree with Keller that a limitation to short and simple instructions appears inconsistent with jobs that require a Reasoning Development Level 3. ...A limitation to short and simple instructions appears more consistent with Reasoning Development Level 1 or Level 2 than with Level 3.Keller v. Berryhill, 754 Fed. Appx. 193 at 196-97 (4th Cir. Nov. 29, 2018)(unpublished) (internal citations omitted).
Reasoning level 3 is more demanding than level 2 by its nature and "diagrammatic instructions can be abstract," supporting an apparent conflict in simple tasks and reasoning level three jobs. Id. at 198, n.5 (internal citation omitted); see also Eddie v. Berryhill, No. 5:16-cv-00801, 2017 WL 4002147 at *8 (E.D.N.C. Aug. 24, 2017) ( "[a] limitation to performing simple tasks appears inconsistent with the requirements of Reasoning Level 3 that the individual be able to [d]eal with problems involving several concrete variables and to carry out instructions in diagrammatic form").
In light of the case law, record before the court, and duties upon the ALJ pursuant to SSR 00-4p, there is an apparent conflict here as to the reasoning level three jobs and the ALJ should have obtained some explanation from the VE about how Plaintiff could perform the job identified by the VE with the reasoning level requirements of three. This would have allowed the ALJ to resolve any apparent conflicts by determining if the VE's explanation was reasonable and provided a basis for reliance on the VE rather than the DOT. SSR 00-4p.
However, such error is harmless here, where another job category remains. See 20 C.F.R. § 404.1560(c)(1)("Any other work (jobs) that you can adjust to must exist in significant numbers in the national economy (either in the region where you live or in several regions in the country)", § 404.1560(c)(2)("we are responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do, given your residual functional capacity and vocational factors"); Weaver v. Colvin, No. 1:12-CV-02870-JMC, 2014 WL 1320009, at *13 (D.S.C. Mar. 31, 2014)( where two of three jobs identified by the VE remained with no error, any error related to one job was harmless)(citing Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994)); Bos. v. Colvin, No. 4:14-CV-206-D, 2016 WL 721563, at *9 (E.D.N.C. Feb. 2, 2016), report and recommendation adopted, 2016 WL 738762 (E.D.N.C. Feb. 23, 2016)(noting the failure of the record to support two jobs would be harmless if the record supported the determination as the one remaining occupation)(citing Bavaro v. Astrue, 413 Fed.Appx. 382, 384 (2d Cir. 2011) ("The Commissioner need show only one job existing in the national economy that [a claimant] can perform."), Prunty v. Barnhart, No. 6:04-CV-00038, 2005 WL 1926611, at *6 (W.D.Va. 9 Aug. 2005) (concluding that the Commissioner's burden at step five was met where the VE testified that claimant could perform the job identified in a single DOT category)); DeWalt v. Astrue, No. 9:08-3936-HFF-BM, 2009 WL 5125208, at *8 (D.S.C. Dec. 28, 2009)(assuming all but one job exceeded the RFC, the one job category contained more than sufficient positions to satisfy the requirement of there being a significant number of positions available).
The reasoning level two job category remains here. This issue is without merit and the ALJ's Step Five finding is supported by substantial evidence.
III. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. The court cannot, however, conduct a proper review based on the record presented. Accordingly, pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge April 13, 2020
Florence, South Carolina
The parties' attention is directed to the important notice on the next page.
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
Post Office Box 2317
Florence, South Carolina 29503
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).