MEMORANDUM RECOMMENDATION

KIMBERLY A. SWANK, Magistrate Judge.

This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Deborah L. Meadows (Plaintiff) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be granted, Defendant's Motion for Judgment on the Pleadings [DE #20] be denied, and the Commissioner's decision be remanded for further proceedings.

STATEMENT OF THE CASE

Plaintiff applied for a period of disability, DIB, and SSI on October 7 and 8, 2013, respectively, with an alleged onset date of July 13, 2013. (R. 13, 248, 254.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 13, 120-21, 156-57, 191-92.) A hearing was held via videoconference on May 26, 2016, before Administrative Law Judge (ALJ) Marni R. McCaghren, who issued an unfavorable ruling on July 29, 2016. (R. 13, 26.) The Appeals Council denied Plaintiff's request for review on June 6, 2017. (R. 1.) Plaintiff seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

I. Standard of Review

The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (first quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); then quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

II. Disability Determination

In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id.

III. ALJ's Findings

Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since July 13, 2013, the alleged onset date. (R. 15.) Next, the ALJ determined Plaintiff had the following severe impairments: "bipolar disorder, anxiety disorder, cervicalgia, lumbago, insomnia, and chronic obstructive pulmonary disease." (R. 15.)

At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 16.) The ALJ specifically considered Listings 1.02, 1.04, 3.02, 12.04, and 12.06. (Id.)

Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (RFC) and found that Plaintiff had

(R. 18.) In making this assessment, the ALJ found Plaintiff's statements about the severity of her symptoms "not entirely consistent" with the evidence in the record. (R. 19.) At step four, the ALJ concluded Plaintiff was unable to perform her past relevant work as a Server (DOT 311.477-030). (R. 25.) At step five, the ALJ identified Assembler (DOT 739.684-094), Lens Inserter (DOT 713.687-026), and Surveillance-System Monitor (DOT 379.367-010) as jobs with sufficient numbers in the national economy that Plaintiff could perform. (R. 26.)

IV. Plaintiff's Arguments

On review, Plaintiff raises two arguments. First, Plaintiff contends the ALJ relied on unexplained testimony from a VE which appears to conflict with the DOT, in violation of SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000), and Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015). (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #17] at 12-20.) Second, Plaintiff contends the ALJ failed to make a complete assessment of Plaintiff's mental RFC, as required by SSR 96-8p, 1996 WL 374184 (July 2, 1996), and Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). (Pl.'s Mem. Supp. Mot. J. Pldgs. at 20-24.) The Commissioner argues that any errors involving reliance on the VE's testimony and the DOT are harmless and that the ALJ properly evaluated Plaintiff's mental impairments. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #21] at 11, 15.) For the reasons discussed below, the undersigned disagrees with the Commissioner regarding the VE's testimony and the DOT, and, therefore, recommends remand to the Commissioner.

A. Apparent Conflict between VE Testimony and the DOT

During the hearing before the ALJ, a VE testified and identified three jobs that someone with the RFC assessed of Plaintiff would be able to perform. (R. 57-58.) The VE testified that his testimony was consistent with the DOT and identified no apparent conflicts between his testimony and the DOT. (R. 56-59.) The ALJ did ask the VE about any apparent conflicts between the VE's testimony and the DOT. (Id.) In her written opinion, the ALJ credited the VE's testimony for purposes of step five. (R. 26.) The ALJ did not explain or elaborate upon any apparent conflict between the VE's testimony and the DOT. (Id.)

In Pearson, the Fourth Circuit held that an ALJ does not discharge her duty under SSR 00-4p to identify conflicts between the VE's testimony and the DOT "merely because the [VE] responds `yes' when asked if [his] testimony is consistent with the [DOT]." Pearson, 810 F.3d at 208-09 (quoting Moore v. Colvin, 769 F.3d 987, 990 (8th Cir. 2014)). Furthermore, an ALJ must independently identify and obtain a reasonable explanation from the VE as to any apparent conflicts between the VE's testimony and the DOT before relying on the VE's testimony. Id. at 209-10. "The `apparent' conflict standard ... embraces the reality that, in many cases, testimony may only appear to conflict with the [DOT], and the vocational expert may be able to explain that, in fact, no conflict exists." Id. at 209.

Here, Plaintiff contends two of the jobs identified by the ALJ at step five— Assembler (DOT 739.684-094) and Lens Inserter (DOT 713.687-026)—appear to contain a conflict between their description in the DOT (and its companion publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles1 (SCO)) and the VE's testimony that someone with Plaintiff's RFC could perform those jobs. Specifically, Plaintiff notes that these jobs, as defined in the DOT and SCO, require frequent reaching while Plaintiff's RFC limits her from engaging in any overhead reaching.2 Plaintiff is correct as to how these jobs are defined in the DOT and SCO. See Lamp-Shade Assembler, DOT 739.684-094, 1991 WL 680137; Lens Inserter, DOT 713.687-026, 1991 WL 679273. The Commissioner contends, without further explanation, "It is not clear that the[se] jobs require frequent overhead reaching." (Def.'s Mem. Supp. Mot. J. Pldgs. at 11.) While that is true, it was the ALJ's duty to provide that clarity.

In Pearson, the Fourth Circuit ruled that an apparent conflict exists where a DOT job definition includes "frequent reaching" and an RFC limits a claimant from engaging in "frequent bilateral overhead reaching." Pearson, 810 F.3d at 211 ("Although the [DOT] does not expressly state that the occupations identified by the [VE] require frequent bilateral overhead reaching, the [DOT]'s broad definition of `reaching' means that they certainly may require such reaching."); see also Fennell v. Berryhill, No. 7:16-CV-312-FL, 2017 WL 4230557, at *7-8 (E.D.N.C. Aug. 31, 2017) (apparent conflict between no overhead reaching in RFC and jobs requiring frequent reaching), mem. & recommendation adopted by 2017 WL 4226039 (E.D.N.C. Sept. 22, 2017). Therefore, the Commissioner's argument is contrary to precedent and should be rejected. Plaintiff has demonstrated that error infects the ALJ's step five finding as to two out of the three jobs.

The Commissioner argues that the foregoing error is harmless because (i) the third job cited by the ALJ, Surveillance-System Monitor, DOT 379.367-010, 1991 WL 673244, requires no reaching, and (ii) the ALJ was required only to identify one type of job at step five. (Def.'s Mem. Supp. Mot. J. Pldgs. at 12.)

Plaintiff contends the ALJ's step five reliance on the Surveillance-System Monitor job is flawed not based on the reaching issue, but because the reasoning level required of this job exceeds that contained in Plaintiff's RFC. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 15-18.) Specifically, Plaintiff argues that the Surveillance-System Monitor job, as defined in the DOT, requires a General Educational Development (GED) reasoning level of three,3 which is inconsistent with the RFC limitation to simple, routine, and repetitive tasks.4

In support, Plaintiff cites (i) an internal Social Security Administration memorandum cautioning adjudicators to consider GED ratings that "may appear to conflict with the claimant's RFC and cited occupation(s)" and explicitly providing as an example an occupation with a GED reasoning level of three and a claimant who is limited to "simple, routine, or unskilled tasks"; (ii) Hackett v. Barnhardt, 395 F.3d 1168, 1176 (10th Cir. 2005) (apparent conflict between jobs requiring GED reasoning level three and an RFC limited to "simple and routine" work tasks; (iii) Henderson v. Colvin, 643 F. App'x 273, 276-77 (4th Cir. 2016) (unpublished) (per curiam) (apparent conflict under Pearson between GED reasoning level two and RFC limitation to "one-to-two step instructions"); and (iv) multiple district court decisions from the Middle District of North Carolina, Western District of North Carolina, and District of South Carolina. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 16-18.)

In contrast, the Commissioner argues that "the ability to perform simple, routine, [and] repetitive tasks is not inconsistent with a reasoning level of two or three." (Def.'s Mem. Supp. Mot. J. Pldgs. at 13.) In support, the Commissioner (i) cites multiple district court opinions from the Western District of North Carolina; (ii) contends that the Social Security Administration does not rely on GED classifications within the DOT and the internal memorandum cited by Plaintiff is non-binding; and (iii) distinguishes Henderson. (Id. at 14-15.)

Preliminarily, Pearson clarified that the ALJ must resolve apparent inconsistences between the DOT, the VE's testimony, and the ALJ's reliance upon this testimony. Even assuming, arguendo, the Commissioner is correct that the limitation to simple, routine, and repetitive tasks is consistent with a GED reasoning level of three, that does not foreclose Plaintiff's Pearson-based argument.

Next, and granting the Commissioner's argument distinguishing Henderson, this court has previously addressed this precise issue. See Wright v. Colvin, No. 5:13-CV-232-D, 2014 WL 3546538, at *2 (E.D.N.C. July 17, 2014) (remanding due to "facial conflict" between an RFC limited to simple, routine, and repetitive tasks5 and jobs identified by VE, specifically including Surveillance-System Monitor); Yurek, No. 5:08-CV-500-FL, 2009 WL 2848859, at *8-9 (remanding because "reasoning level three requirement conflicts with the ALJ's prescribed limitation that Claimant could perform only simple, routine, repetitive work" and ALJ relied on VE testimony that claimant could perform, among other things, Surveillance-System Monitor job). But see Doyle v. Colvin, No. 7:12-CV-326-FL, 2014 WL 269027, at *11 (E.D.N.C. Jan. 23, 2014) (distinguishing Yurek).

As the parties note, there is no Fourth Circuit opinion directly on point. However, several reasons lead the undersigned to conclude there is an apparent conflict here, which the ALJ needed to clarify.6 First, that there is so much disagreement within the federal courts about this issue leads the undersigned to believe there is at least an apparent conflict. Second, while the internal Social Security Administration memorandum cited by Plaintiff is non-binding, it explicitly identified this issue as one for agency adjudicators to be mindful of. Third, it strains credulity to think the Commissioner, who so heavily relies on the DOT at step five, can simply eschew the reasoning level scale that is contained within the DOT. Fourth, it appears there may be a conflict between a job that requires a worker to "[d]eal with problems involving several concrete variables in or from standardized situations," DOT 379.367-010, 1991 WL 673244 (emphasis added), and someone whose mental capacity limits her to performing only simple, routine, and repetitive tasks. See Merriam-Webster's Collegiate Dictionary 1383-1384 (11th ed. 2003) (defining adjective form of "variable" as, among other things, "subject to variation or changes" and "fickle, inconstant").

In sum, each job identified by the ALJ at step five runs afoul of Pearson. Thus, the ALJ's decision cannot be upheld on the basis of harmless error and, accordingly, the undersigned recommends remand.

B. Mental Limitations in the RFC

In Mascio, the Fourth Circuit held:

Mascio, 780 F.3d at 638 (citation omitted). Here, Plaintiff's representative posed a hypothetical to the VE that incorporated an off-task limitation. (R. 59.) Similar to the claimant in Mascio, the ALJ here also found at step three that Plaintiff was moderately impaired as regards concentration, persistence, or pace. (R. 17.) After this step-three finding, the ALJ noted that the mental RFC assessment "requires a more detailed assessment" of various work-related functions. (R. 18.) Later in the written opinion, the ALJ explained that Plaintiff's mental symptoms are effectively managed through treatment and that her complaints related to mental impairments were intermittent. (R. 20.) The ALJ explained that she limited Plaintiff to simple, routine, and repetitive work tasks and only occasional work setting changes because of Plaintiff's mental impairments. (Id.) The ALJ did not expressly explain her rationale for deciding against an off-task limitation in the RFC, despite her finding at step three and despite Plaintiff's representative raising this issue at the hearing. (Id.)

Plaintiff contends this omission by the ALJ violates Mascio; the Commissioner contends the ALJ's explanation was sufficient. The explanation offered by the ALJ is sparse. Because the matter should be remanded for the Pearson-related issues discussed above, the undersigned makes no recommendation based on the alleged Mascio problem. Should the matter be remanded, the Commissioner would do well to offer a clearer, more explicit discussion of this issue.

CONCLUSION

For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #20] be DENIED, and the Commissioner's decision be remanded for further proceedings.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until July 17, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Dec. 2017).

A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).