Opinion
5:20-CV-00122-FL
06-07-2021
Cindy Shook, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II, United States Magistrate Judge.
Plaintiff Cindy Shook challenges Administrative Law Judge (“ALJ”) James E. Williams's denial of her application for social security income. Shook claims that ALJ Williams erred in determining her residual functional capacity (“RFC”) and identifying other work she could perform. Both Shook and Defendant Andrew Saul, Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 34, 40.
After reviewing the parties' arguments, the court has determined that ALJ Williams erred in his determination. The RFC sufficiently accounts for Shook's mental impairments and their resulting limitations. But ALJ Williams's step five determination failed to present a proper hypothetical question to the Vocational Examiner (“VE”) or to resolve conflicts between her testimony and the Dictionary of Occupational Titles (“DOT”). So the undersigned recommends that the court grant Shook's motion, deny the Commissioner's motion, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In November 2016, Shook applied for disability benefits and supplemental security income. In both applications, she alleged a disability that began in August 2016. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Shook appeared before a ALJ Williams for a hearing to determine whether she was entitled to benefits. ALJ Williams determined Shook had no right to benefits because she was not disabled. Tr. at 1222.
In April 2020, SSA determined that Shook met the criteria to receive SSI. See D.E. 33-1.
ALJ Williams found that Shook's diabetes mellitus, peripheral neuropathy, chronic obstructive pulmonary disease (“COPD”), obesity, sleep apnea, chronic infections of the skin or mucous membranes, amputations, depression, bipolar and related disorders, and personality disorder were severe impairments. Tr. at 15. ALJ Williams also found that Shook's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Williams then determined that Shook had the residual functional capacity (“RFC”) to perform light work with other limitations. Tr. at 17. She is limited to frequent overhead lifting on the left and right and she can frequently handle, finger, and feel bilaterally. Id. Shook can occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds. Id. She can occasionally kneel and crouch but cannot crawl. Id.
Shook cannot work at unprotected heights or around (or with) moving, mechanical parts. Id. She can have occasional exposure to humidity, wetness, extreme cold and heat, as well as dust, odors, fumes, and pulmonary irritants. Id.
Shook can perform simple, routine, repetitive tasks but not at a production rate pace (such as assembly line work). Id. She can make simple, work-related decisions. Id. And Shook can have occasional interactions with others. Id.
ALJ Williams concluded that Shook had no past relevant work. Tr. at 21. But considering her age, education, work experience, and RFC, ALJ Williams found that jobs existed in significant numbers in the national economy that Shook could perform. Tr. at 21-22. These include shipping and receiving weigher, mail clerk, and small parts assembler. Id. Thus, ALJ Williams found that Shook was not disabled. Id.
After unsuccessfully seeking review by the Appeals Council, Shook began this action in March 2020. D.E. 5.
II. Analysis
A. Standard for Review of the Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Shook's claim challenges the consideration of her mental health so the court will limit its recapitulation of the medical evidence to those conditions.
Shook claimed that she experiences depression and anxiety. Tr. at 18. She reported problems concentrating and easy frustration. Id. Shook often felt down and she did not like to be around crowds. Id. But Shook reported that medications helped her conditions and she was doing “pretty good.” Id.
Dr. Christopher Ricci performed a psychological evaluation of Shook. Tr. at 19. Shook could care for her personal needs. Id. She was in a relationship and she performed some household chores. Id. An examination found that Shook had a coherent and logical thought process, with normal orientation, intact recent memory, and only a mildly impaired remote memory. Id. She appeared anxious and depressed. Id.
Dr. Ricci assessed major depressive disorder and an anxious disorder. Id. He found that Shook could maintain basic attention and concentration and making appropriate decisions. Id. Dr. Ricci found that Shook may have trouble maintaining a schedule, learning complex new tasks, relating to others, or tolerating the stress of daily work. Id.
Records from Johnston County Public Health Department Behavioral Health show that Shook had attentive behavior, a logical thought process, anxious mood, intact attention, and good insight and judgment. Id. Shook denied panic attacks, racing thoughts, or impulsiveness. Id. And she described herself as doing well with medications. Id.
Shook's diagnoses included anxiety and borderline personality disorder. Id. Treatment notes reflect that Shook had normal orientation, thought content, and cognitive function, with good interaction. Id. And records from UNC Healthcare noted that Shook denied any worsening mood or anxiety. Id.
State agency psychological consultants concluded that Shook had no significant limitation in understanding, remembering, or carrying out short and simple instructions; sustaining an ordinary work routine without special supervision; or making simple, work-related decisions. Tr. at 20.
D. Residual Functional Capacity
Shook contends that ALJ Williams erred in determining her RFC by ignoring the limiting effects resulting from her mental impairments. The Commissioner asserts that the RFC sufficiently reflects all of Shook's well-supported limitations. The undersigned finds that substantial evidence supports ALJ Williams's RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe, ” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.2d 288, 295 (4th Cir. 2013). Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “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).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
In Mascio, the Fourth Circuit found that a limitation to simple, routine tasks, or unskilled work may fail to address a moderate limitation in concentration, persistence, or pace. 780 F.3d at 638. The Fourth Circuit “agree[d] with other circuits that an ALJ does not account for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work” because “the ability to perform simple tasks differs from the ability to stay on task.” Id. (quotation omitted). Because the ALJ failed to explain why the plaintiff's “moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [plaintiff's] residual functional capacity, ” the Fourth Circuit remanded Mascio. Id.
Although an ALJ's findings at step three may not require any additional limitations for concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient explanation in the decision to allow the court to conduct meaningful review of the RFC determination. See Scruggs v. Colvin, No. 3:14-CV-466-MOC, 2015 WL 2250890, at *5 (W.D. N.C. May 13, 2015); Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015 WL 1756480, at *3 (W.D. N.C. Apr. 17, 2015).
At step three, ALJ Williams noted that Shook's mental impairments caused moderate limitations in concentrating, persisting, or maintaining pace. Tr. at 16. The RFC found that Shook could perform simple, routine, repetitive tasks, but not at a production rate pace, such as assembly line work. Tr. at 17. He also determined that Shook could handle simple, work-related decisions an occasionally interact with others. Id.
1. Production Rate Pace
Pace-related restrictions in a claimant's RFC must provide enough information to enable a court to assess an ALJ's conclusion. See Perry v. Berryhill, 765 Fed.Appx. 869, 873 (4th Cir. 2019) (ALJ's failure to explain the meaning of “non-production oriented work setting” lacked analysis needed meaningful review); Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019), as amended (Feb. 22, 2019) (ALJ found claimant could not perform work “requiring a production rate or demand pace” but failed to explain what those terms meant, frustrating a substantial evidence review); Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (restriction to “non-production jobs” adequately described where ALJ explained that the claimant could perform work only in a “low stress” setting, with no “fast-paced work” or “public contact.”).
As noted above, ALJ Williams determined that Shook could not perform work at a production rate pace. Tr. at 17. He explained production rate pace as assembly-line work. Id. ALJ Williams also found that Shook could make simple, work-related decisions. Id.
The added descriptors and clarifications-assembly line work and simple, work related decisions-are enough to allow a reviewing court to conduct a substantial evidence analysis. See Nelson v. Saul, No. 4:18-CV-163-D, 2019 WL 4748028, at *5 (E.D. N.C. Aug. 29, 2019) (distinguishing Thomas where the ALJ explained “no production-rate or paced-rate work” by noting “such as would be done on an assembly line”), adopted, 2019 WL 4747048 (Sept. 27, 2019); see also Cannon v. Berryhill, No. 1:18-CV-285, 2019 WL 7875158, at *6 (W.D. N.C. Dec. 23, 2019), adopted, 2020 WL 596944 (Feb. 6, 2020) (finding that the ALJ's restriction to “nonproductive pace” did not pass Thomas muster because the restriction was unsubstantiated and undefined).
So there is no infirmity with the RFC's limitation to jobs performed at a non-production rate pace.
2. Moderate Limitations in Concentration, Persistence, or Pace
There is also a question whether the RFC's nonexertional limitations adequately reflect Shook's moderate limitation in concentration, persistence, or pace found at step three. Shook argues that the RFC does not explain how she could stay on-task. The Commissioner asserts, and the undersigned agrees, that ALJ Williams restriction from production rate pace, such as assembly line work, addresses any limitations in Shook's ability to stay on-task.
The RFC limitation appear consistent with both ALJ Williams's step three finding and Fourth Circuit case law addressing similar restrictions. See, e.g., Brian S. v. Saul, No. 3:20-CV-65, 2021 WL 748087, at *13 (E.D. Va. Feb. 10, 2021), adopted by, 2021 WL 744149 (E.D. Va. Feb. 25, 2021) (finding a limitation to “simple and routine tasks that were not performed at a production rate, like that found in assembly-line setting” sufficient where ALJ's narrative discussion of medical record provided an adequate explanation of the evidence he relied to support the limitation); Everett v. Berryhill, No. 3:19-CV-00246-GCM, 2020 WL 6567141, at *4 (W.D. N.C. Nov. 9, 2020) (“Limiting Plaintiff from participating in production work facially addressed Plaintiff's moderate CPP deficits and served as an adequate narrative to support the RFC assessment without needing further explanation”); Sheri S. v. Saul, No. 1:19-CV-01924-GLS, 2020 WL 4579871, at *5 (D. Md. Aug. 7, 2020) (holding that RFC limiting plaintiff to simple, routine, repetitive tasks and simple, work-related decisions accounted for her moderate limitations in concentration, persistence, or pace and ALJ's narrative adequately explained the facts supporting the mental functional limitation).
And ALJ Williams's narrative discussion of the evidence support the nonexertional limitations he found. Mental status examinations noted that Shook had an anxious mood, but she was attentive with a logical thought process, intact attention, and good insight and judgment. Tr. at 19. She denied experiencing panic attacks, racing thoughts, impulsiveness, delusions, hallucinations, or periods of excessive energy. Id. Shook told providers that she was doing well on medications. Id. And she denied any worsening mood or anxiety. Id.
ALJ Williams also considered Dr. Ricci's psychological evaluation. Id. Although she appeared tense, depressed, and anxious, Shook had a coherent and goal-oriented thought process. Id. Shook had an intact recent memory and her remote memory was only mildly impaired because of emotional distress. Id. Dr. Ricci noted that Shook could attend to her personal needs, perform some chores, and have a relationship. Id.
Dr. Ricci found that Shook could maintain attention and concentration. Id. But she may have trouble maintaining a schedule or learning complex new tasks or without significant training or supervision. Id. And Dr. Ricci concluded that Shook could make appropriate decisions but could have trouble relating to others. Id.
State agency psychological consultants found that Shook had no significant limitations in understanding, remembering, or carrying out short and simple instructions, sustaining an ordinary work routine, or making simple decisions. Tr. at 20. ALJ Williams agreed that Shook had only moderate limitations in attention and concentration and interacting with others. Id. And ALJ Williams found that, despite Shook's mental health symptoms, she could perform simple, routine, repetitive tasks, make simple, work-related decisions, and have limited interactions with others. Id.
In sum, ALJ Williams reviewed the evidence and explained how it supported the RFC determination. ALJ Williams's RFC determination sufficiently addresses Shook's moderate limitations in concentration, persistence, or pace at step three. Thus, the court should reject Shook's argument on this issue.
E. Step Five
Shook also argues that ALJ Williams's step five finding is flawed. ALJ Williams's hypothetical question to the VE noted a limitation for no production rate pace but failed to describe that phrase as assembly line work. So she asserts that the hypothetical question did not reflect all of her limitations. Shook also maintains that the jobs identified by the VE have a reasoning level that exceeds her abilities. Because ALJ Williams failed to resolve a conflict between the DOT and the VE's testimony, Shook asserts that remand is warranted. The Commissioner contends that there is no conflict or error in ALJ Williams's step five determination. The undersigned disagrees.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). “The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert to testify.” Aistrop v. Barnhart, 36 Fed.Appx. 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cookv. Chater, 901 F.Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine “whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]” 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D. N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved.” SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). “Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT.” Id. “When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled.” Id. “At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.” Id.
The Fourth Circuit has interpreted SSR 00-04p as placing an “affirmative duty” on the ALJ to independently “identify conflicts between the [VE's] testimony and the [DOT].” Pearson v. Colvin, 810 F.3d 204, 208-09 (4th Cir. 2015). “An ALJ has not fully developed the record if it contains an unresolved conflict between the [VE's] testimony and the [DOT].” Id. at 210.
1. Hypothetical Question
ALJ Williams asked the VE about other jobs an individual with limitations like Shook. His hypothetical question included the following nonexertional limitations:
[T]his individual would be limited to perform[ing] simple, routine, and repetitive tasks, but not at a production rate pace. This individual would be limited to making simple work-related decisions and have only occasional interaction with supervisors, coworkers, and the public.Tr. at 73. This question did not include ALJ Williams's description of production rate pace- assembly line work. Shook contends that the hypothetical question fails to fully represent her RFC.
The Fourth Circuit has described the term “production rate pace” as not “especially common-certainly not common enough for us to know what [the term] mean[s] without elaboration.” Thomas, 916 F.3d at 312. Although ALJ Williams's written decision provides some elaboration of the meaning of the phrase, he gave no explanation to the VE during the hearing. So the undersigned cannot conclude that ALJ Williams accounted for all of Shook's limitations in his hypothetical question to the VE. The VE's testimony is thus unreliable. See Walker, 889 F.2d at 50 (“In order for a vocational expert's opinion to be relevant or helpful, 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.”). See also Angela S. v. Saul, No. TJS-19-2849, 2021 WL 733373, at *3 (D. Md. Feb. 25, 2021) (ALJ's failure to adequately describe all of plaintiff's impairments in the hypothetical to the VE frustrated meaningful review).
The Commissioner maintains that the VE expressed no trouble understanding the meaning of the words “production rate pace” without the added descriptor of “assembly line work.” But lacking ALJ Williams's definition of the phrase “production rate pace, ” one cannot know if the VE understood that this phrase to mean assembly line work.
And the VE's testimony supports this point. Her response to the hypothetical question identified one job, small parts assembler, that involves assembly line type work. See DOT 706.684-022 (performs tasks on assembly line, as member of assembly group).
So the fact that the VE identified a job which appears inconsistent with the RFC may suggest that she did not interpret the phrase “production rate pace” as ALJ Williams defined it in his written decision. See Angela S., 2021 WL 733373, at *3 (“Even assuming that the ALJ's description of “production pace work” as the type of work performed on an assembly line is sufficient for the Court to understand the meaning of the term, there is no indication that this understanding was shared by the VE at the hearing.”); Cleta S. v. Saul, No. CBD-19-2906, 2020 WL 6565250, at *5 (D. Md. Nov. 9, 2020) (“The Court finds it troubling that the ALJ attempted to clarify his use of the term ‘production rate pace' for the first time in his written opinion, as meaning ‘assembly line work.' This clarity was far too late.”) (internal citation omitted).
The DOT description for the shipping and weighing receiver or mail clerk positions may not reflect assembly line work. But this does not establish that a harmless error finding is warranted. The VE testified that her testimony on production pace reflected her knowledge, education, training, or experience. Tr. at 74. Because ALJ Williams did not reference “assembly line work” in his hypothetical question, the duties of these two jobs might involve assembly line type work based on the VE's knowledge, education, training, or experience.
Because the hypothetical question to the VE failed to sufficiently describe Shook's limitations, the VE's testimony was too unreliable for ALJ Williams to make a step five finding. So the undersigned recommends that the court grant Shook's motion on this issue.
2. Apparent Conflict
Shook next argues that there is a conflict between her RFC and jobs identified at step five. ALJ Williams failed to resolve the conflict by eliciting an explanation from the VE. So Shook asserts that this issue supports remand.
At step five, the VE identified three positions-shipping and weighing receiver, mail clerk, and small parts assembler. All of these jobs have a reasoning level of three. The DOT explains that reasoning level three jobs involve the ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and d]eal with problems involving several concrete variables in or from standardized situations.” Shook contends that these duties exceed her RFC for simple, routine, repetitive tasks, and simple, work-related decisions.
The DOT assigns each job a GED reasoning level “ranging from Level 1 (which requires the least reasoning ability) to Level 6 (which requires the most).
At least two Courts of Appeals have held that an apparent conflict exists between a limitation to simple, routine, or repetitive tasks and the requirements of reasoning level three work. See Zavalin v. Colvin, 778 F.3d 842, 846-47 (9th Cir. 2015); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005).
In an unpublished decision, the Fourth Circuit held that an RFC limitation to “short and simple instructions” apparently conflicts with a reasoning level three. Keller v. Berryhill, 754 Fed.Appx. 193, 197 (4th Cir. 2018). Other district courts in the Fourth Circuit, including this district, have likewise concluded that an RFC finding limiting a person to “simple, routine tasks” creates an apparent conflict with reasoning level three jobs that the ALJ must address and resolve. See Diana F. v. Saul, No. 5:19-CV-00043, 2020 WL 5526501, at *4 (W.D. Va. July 31, 2020); Smith v. Berryhill, No. 1:18-CV-225, 2019 WL 5783529 (M.D. N.C. Sept. 30, 2019) (collecting cases); Eddie v. Berryhill, No. 5:16-CV-801, 2017 WL 4002147, at *8 (E.D. N.C. Aug. 24, 2017) (limitation to simple tasks appears inconsistent with reasoning level three requirements); Graham-Willis v. Colvin, No. 1:12-CV-2489, 2013 WL 6840465, at *7 (D.S.C. Dec. 27, 2013) (collecting cases).
So there is a conflict between a finding that Shook was limited to simple, routine, repetitive tasks and simple, work-related decisions and concluding, at step five, that she could perform jobs which would require dealing with matters involving several concrete variables. ALJ Williams needed to explain this conflict. Having failed to do so, his reliance on the VE's testimony about the availability of other work lacks the support of substantial evidence.
ALJ Williams asked the VE if her testimony followed the DOT. Tr. at 74. The VE responded affirmatively. Id. The VE noted that the DOT did not address issues of production pace, interacting with others, and overhead reaching, Id. On those issues, she based her testimony on her knowledge, education, experience, and training. Id. But the VE did not address the conflict between Shook's RFC and the DOT job descriptions for the positions she identified at step five.
The Commissioner has not met his burden of identifying other work that Shook could perform. So the undersigned recommends that the court remand this matter for further consideration of this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Shook's Motion for Judgment on the Pleadings (D.E. 34), deny Saul's Motion for Judgment on the Pleadings (D.E. 40), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.