ROBERT B. JONES, JR., Magistrate Judge.
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-13, -16] pursuant to Fed. R. Civ. P. 12(c). Claimant Wilfred Camacho ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI"). Claimant filed a response to Defendant's motion, [DE-19], and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions' and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Commissioner for further proceedings.
Claimant protectively filed an application for a period of disability, DIB, and SSI on May 27, 2014, alleging disability beginning November 21, 2013. (R. 203-19). His claims were denied initially and upon reconsideration. (R. 77-126). A hearing before the Administrative Law Judge ("ALP) was held on October 20, 2016, at which Claimant, represented by counsel, his wife, and a vocational expert ("YE") appeared and testified. (R. 38-76). Following the hearing, Claimant amended the onset date to July 8, 2014, and submitted additional records. (R. 291-307, 337-44). On November 23, 2016, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-37). On March 16, 2017, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., 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). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "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 v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520, 416.920 under which the ALJ is to evaluate a claim:
Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the All must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The All is required to incorporate into the written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the following errors by the ALJ: (1) failure to resolve conflicts between the VE's testimony and the Dictionary of Occupational Titles ("DOT"); and (2) improper assessment of Claimant's credibility. Pl.'s Mem. [DE-14] at 1.
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the All found Claimant had not engaged in substantial gainful employment since the amended alleged onset date. (R. 17). Next, the ALJ determined Claimant had the following severe impairments: degenerative disc disease; osteoarthritis; upper extremity fracture; essential hypertension; and systemic lupus erythematosus. Id. The ALJ also found Claimant had the following non-severe impairments: Vitamin B12 deficiency; colon polyps; colitis; hyperlipidemia; benign prostatic hypertrophy; cellulitis; and tachycardia. (R. 18). At step three, the ALJ concluded these 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. 20-21). Applying the technique prescribed by the regulations, the All found that Claimant's mental impairments related to his history of substance abuse had resulted in no more than mild restrictions or difficulties in his activities of daily living, social functioning and in regard to concentration, persistence, or pace, with no episodes of decompensation. (R. 19).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work
(R. 21-31).
At step four, the All concluded Claimant did have the RFC to perform the requirements of his past relevant work as a pest control services sales agent and an automobile parts store manager. (R. 31). Accordingly, the ALJ concluded that Claimant was not disabled from July 8, 2014, through the date of the decision. Id.
Claimant contends that the ALJ erred by failing to properly assess his symptoms and credibility
When assessing the RFC, an ALJ must consider a claimant's subjective symptoms, including pain. 20 C.F.R. §§ 404.1529(a), 416.929(a); S.S.R. 16-3p, 2016 WL 1119029 (Mar. 16, 2016) (effective Mar. 28, 2016). Federal regulations 20 C.F.R. § 404.1529 and § 416.929 provide the "authoritative standard" for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. Id. at 594 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). If the ALJ makes an affirmative finding at the first step, at the second step the All must evaluate "the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work." Id. at 595 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). The All must consider "not only the claimant's statements about her pain, but also `all the available evidence,' including the claimant's medical history, medical signs, and laboratory findings; any objective medical evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.); and any other evidence relevant to the severity of the impairment, such as evidence of the claimant's daily activities, specific descriptions of the pain, and any medical treatment taken to alleviate it." Id. (internal citations omitted) (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). While objective medical evidence must be considered in evaluating pain and other subjective symptoms, "because pain is subjective and cannot always be confirmed by objective indicia, claims of disabling pain may not be rejected `solely because the available objective evidence does not substantiate [the claimant's] statements' as to the severity and persistence of her pain." Craig, 76 F.3d at 595 (quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)).
Claimant contends the ALJ's findings with regard to Claimant's subjective complaints are not supported by substantial evidence. Specifically, Claimant argues that he has a documented history of pain in his low back and legs, which has affected his functionality. Pl.'s Mem. [D14] at 13. The ALJ's decision summarized Claimant's subjective complaints of pain and his testimony regarding how that pain affects his daily life. (R. 21-22). The ALJ proceeded to discuss the objective medical evidence, and then concluded by stating the following with respect to Claimant's pain:
(R. 28-29).
The ALJ discussed Claimant's testimony, his medical history, including objective medical evidence, medication therapy, and injection therapy, and other evidence such as activity level. Id The ALJ acknowledged Claimant had severe impairments that limited his ability to perform certain work-related functions, but found that the severity of his impairments and related pain did not preclude him from performing a limited range of light work. (R. 28-31). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [All]." Craig, 76 F.3d at 589 (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.1987)). The ALJ considered the evidence regarding Claimant's pain in his back and legs in accordance with the regulations and S.S.R. 16-3p, and his determination regarding Claimant's subjective complaints is supported by substantial evidence. Accordingly, Claimant's argument as to this issue is without merit.
Claimant contends the All failed to identify and resolve an apparent conflict between the VE's testimony and the DOT, specifically the VE's conclusion that Claimant could perform jobs requiring frequent reaching, and the limitation in the hypothetical to occasional overhead reaching. Pl.'s Mem. [DE-14] at 8. The Commissioner argues that the ALJ appropriately relied on the VE's testimony at step four, where the burden remains on Claimant to prove that he could not perform the requirements of his past relevant work, and therefore the ALJ was under no requirement to explain any inconsistencies between the VE's testimony and the DOT, pursuant to Pearson v. Colvin. Def.'s Mem. [DE-17] at 5-8 (citing Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015)).
At step four of the sequential evaluation, the ALJ must determine whether the claimant can return to his past relevant work. S.S.R. 00-4p, 2000 WI, 1898704, at *1 (Dec. 4, 2000). To assist with the question of whether a claimant's RFC permits him to return to his past relevant work and to address "complex vocational issues," an ALJ may rely on the testimony of a VE. Id. at 2; see also Pearson, 810 F.3d at 207. Pursuant to Ruling 00-4p, the All must "inquire, on the record, . . . whether the vocational expert's testimony conflict[s] with the [DOT], and [the Ruling] also requires that the ALJ elicit a reasonable explanation for and resolve conflicts between the expert's testimony and the [DOT]." Pearson, 810 F.3d at 207-08 (internal quotation marks omitted) (citing S.S.R. 00-4p at *2). However, not "all possible conflicts must be identified and resolved," but rather only "apparent conflicts," i.e., "where the expert's testimony seems to, but does not necessarily, conflict with the [DOT]." Id. at 209. The ALJ must elicit from the VE a reasonable explanation for the apparent conflict," S.S.R. 00-4p, at *4, and the ALJ has not fulfilled his duty to fully develop the record if it "contains an unresolved conflict between the expert's testimony and the [DOT]" or if the ALJ "ignores an apparent conflict because the expert testified that no conflict existed." Pearson, 810 F.3d at 210. "An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10.
The court dispenses with the Commissioner's argument that an ALJ is under no obligation to resolve any apparent conflict between the VE's testimony and the DOT at step four because the burden still rests with Claimant. Def.'s Mem. [DE-17] at 5-8. Rather, the All is under such an obligation. See, e.g., Cockman v. Berryhill, No. 7:16-CV-338-FL, 2018 WL 935404 (E.D.N.C. Jan. 19, 2018); Byrd v. Colvin, No. 7:14-CV-671, 2016 WL 447731 (W.D. Va. Feb. 3, 2016) (applying the holding in Pearson to the ALJ's step four analysis). While the Commissioner is correct that the burden of production and proof is on the claimant at step four, the ALJ must still make the requisite findings of fact to support the determination that the claimant can perform past work. See Parker v. Berryhill, No. 1:17CV21, 2018 WL 1136916, at *3 (M.D.N.C. Mar. 2, 2018) (concluding the All failed to make the necessary findings required by the Social Security rulings and regulations, and in violation of Pearson, to support the step four conclusion that the claimant could return to her past work as generally performed) (citing Boler v. Colvin, 2013 WL 5423647, at *3 (M.D.N.C. Sept. 26, 2013); S.S.R. 82-62, 1982 WL 31386 (Jan. 1, 1982)). Furthermore, S.S.R. 00-4.p, which by its terms applies to using occupational information at steps four and five, expressly requires the All to "obtain a reasonable explanation" for an apparent conflict between the VE's evidence and the DOT. 2000 WL 1898704, at *2; see also Fowler v. Berryhill, No. 3:16-CV-1520-SI, 2018 WL 566217, at *7 n.1 (D. Or. Jan. 26, 2018) (concluding the distinction between Steps Four and Five was not meaningful for purposes of the ALJ's duty under S.S.R. 00-4.p to identify and resolve conflicts) (citations omitted).
The ALJ, in reliance on the VE's testimony, identified two past relevant jobs that Claimant would be able to perform considering his RFC: pest control services sale agent, DOT 251.357-018, and automobile parts store manager, which he later identified in his discussion as a retail store manager, DOT 185.167-046.
In Pearson, the VE testified that the claimant was not disabled because he could perform three occupations that existed in sufficient numbers in the national economy. Pearson, 810 F.3d at 210. For each of those occupations, the DOT listed frequent reaching as a requirement. Id. The ALJ found that the claimant, however, could only frequently reach overhead with one arm. The DOT defines "reaching" as "[e]xtending hand(s) and arm(s) in any direction" and does not specify whether these occupations require only overhead or lateral reaching. Id (citing App. C, U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles 1993). Accordingly, the Fourth Circuit concluded that an apparent conflict existed between the VE's testimony that the claimant could perform these jobs and the DOT, which indicated that perhaps he could not. The court held that:
810 F.3d at 211. The ALJ's failure to do so in Pearson was error requiring remand. The court cautioned that finding an apparent conflict between the VE's testimony and the DOT did not necessarily mean that the claimant or a similarly-situated person was disabled. "Rather, it simply means that the ALJ and the expert should address exactly what form of reaching the stated occupations require and whether the claimant can fulfill those requirements." Id.
Here, the ALJ conducted no analysis regarding Claimant's reaching limitations. An All must independently identify conflicts between the VE's testimony and the DOT and therefore cannot simply rely on the VE's testimony that no conflict exists when one in fact does. Id. at 208-09 ("The All independently must identify conflicts between the expert's testimony and the Dictionary."); see also id. at 210 ("An All has not fully developed the record if it contains an unresolved conflict between the expert's testimony and the Dictionary. Nor has the ALJ fulfilled this duty if he ignores an apparent conflict because the expert testified that no conflict existed."). Therefore, the VE's testimony that Claimant could perform occupations requiring frequent reaching was in apparent conflict with the limitation in the hypothetical to occasional reaching. The ALJ's reliance at step four on the VE's testimony to determine disability without resolving the apparent conflict is error requiring remand. See Springer v. Berryhill, 2017 WL 3447920, at *14 (N.D. W. Va. July 25, 2017) (holding that the ALJ's failure to resolve the apparent conflict between the VE's testimony and the DOT is not harmless error where the issue is outcome determinative at step four). Accordingly it is recommended that the matter be remanded to the ALJ to resolve the apparent conflict.
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-13] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-16] be DENIED, and the matter be remanded to the Commissioner 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
