REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Rhonda A. Cope, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).1 If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In August 2012, Cope applied for DIB and SSI, alleging disability beginning February 1, 2002. Cope's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on May 14, 2015, at which Cope appeared and testified, and was represented by Jennifer Little, Esquire. (Tr. 50.) After hearing testimony from a vocational expert, the ALJ issued a decision on July 16, 2015 finding that Cope was not disabled. (Tr. 27-44.)
Cope was born in 1973 and was thirty-nine years old on the date her application was filed. (Tr. 43.) She has a high school education and has past relevant work experience as a secretary/office assistant, a housekeeper, and an electrician's helper. (Tr. 290-91.) Cope alleged disability due to anterior cervical fusion; nerve damage and paralysis; a ruptured disc; bipolar disorder; attention deficit hyperactivity disorder; arrhythmia; numbness in her neck, shoulder, upper back, and arms; degenerative arthritis/degenerative spine disease; irritable bowel syndrome/colitis; cancer; and three herniated discs in her lower back. (Tr. 289.)
In applying the five-step sequential process, the ALJ found that Cope had not engaged in substantial gainful activity since her alleged onset date of February 1, 2002. The ALJ also determined that, through her date last insured of March 31, 2007, Cope's disorders of the cervical spine, headaches, irritable bowel syndrome, and acid reflux were medically determinable impairments. However, the ALJ found that, through the date last insured, Cope did not have an impairment or combination of impairments that significantly limited Cope's ability to perform basic work-related activities for twelve consecutive months and that, therefore, Cope did not have a severe impairment of combination of impairments. Accordingly, the ALJ found that Cope was not disabled from the alleged onset date of February 1, 2002 through the date last insured of March 31, 2007.
The ALJ further found that, since Cope's application date of August 10, 2012, Cope's disorders of the spine, bipolar disorder, anxiety, depression, and attention deficit hyperactivity disorder were severe impairments. However, the ALJ found that, since August 10, 2012, Cope had not had an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that, since the application date of August 10, 2012, Cope had had the residual functional capacity to
perform sedentary work as defined in 20 CFR 416.967(a). In particular, the claimant can lift or carry up to 10 pounds occasionally. She can stand or walk for approximately 2 hours of an 8-hour workday and sit for approximately 6 hours of an 8-hour workday with normal breaks. However, claimant requires the ability to alternate between sitting and standing at approximately 30 minute intervals without leaving the workstation or being off-task. Claimant can never kneel, crouch, crawl, or climb ladders, ropes, and scaffolds, and only occasionally climb ramps, climb stairs, balance, stoop, and reach overhead. Claimant should avoid concentrated exposure to cold and vibration, should avoid all exposure to hazardous machinery and unprotected heights, and cannot perform work requiring the operation of a motor vehicle. Claimant is limited to performing simple, routine, repetitive tasks with no fast-paced production requirements and only simple work-related decisions, few if any workplace changes. She is further limited to only occasional or superficial interaction with the public.
(Tr. 35.) The ALJ found that Cope was unable to perform any past relevant work, but that considering Cope's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Cope could perform. Therefore, the ALJ found that Cope had not been disabled since the application date of August 10, 2012. This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Cope raises the following issues for this judicial review:
I. The ALJ failed to properly assess medical opinion evidence[.]
II. The issue of the Plaintiff's ability to do substantial work in significant numbers remains undetermined despite the testimony of the vocational expert.
III. The ALJ did not explain his findings regarding the Plaintiff's residual functional capacity, as required by Social Security Ruling 96-8p.[]
(Pl.'s Br., ECF No. 15.)
DISCUSSION
Although Cope raises three issues for this judicial review, the court finds for the reasons that follow that remand is warranted on the second issue; accordingly, the court addresses this issue first.
Cope argues that the ALJ erred at Step Five of the sequential process in failing to resolve the conflict between Cope's residual functional capacity and the testimony of the vocational expert. At this step, the ALJ must determine whether the claimant's impairments prevent her from doing any other kind of work. 20 C.F.R. § 416.920(a)(4). In this case, the ALJ found that Cope was unable to return to her past relevant work. Therefore, as discussed above, the burden shifted to the Commissioner to establish that Cope had the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that existed in the national economy, and he may carry this burden by obtaining testimony from a vocational expert. Further, as part of the ALJ's duty at this step, the ALJ must resolve any apparent conflicts between a vocational expert's testimony and the Dictionary of Occupational Titles ("DOT"). See Pearson v. Colvin, 810 F.3d 204, 208-11 (4th Cir. 2015); SSR 00-04p, 2000 WL 1898704 ("When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled.").
In this case, the ALJ found at Step Five that there were jobs that existed in significant numbers in the national economy that Cope could perform. As observed by the ALJ, the vocational expert testified that an individual with Cope's age, education, work experience, and residual functional capacity would be able to perform the requirements of the following unskilled occupations: laundry garment bagger (DOT # 920.687-018), garment sorter (DOT # 222.687-014), and mail clerk (DOT # 209.687-026). (Tr. 43.) The ALJ found that "[p]ursuant to SSR 00-4p, the undersigned has determined, and [the vocational expert] so testified, that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles." (Tr. 43-44.)
As part of Cope's argument that the ALJ erred at Step Five, Cope points out that the jobs cited by the vocational expert are light jobs and are therefore inconsistent with the ALJ's residual functional capacity finding that Cope was limited to sedentary work. (Pl.'s Br., ECF No. 15 at 28.) In describing the jobs of laundry garment bagger, garment sorter, and mail clerk, the DOT states:
STRENGTH: Light Work — Exerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. 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 # 920.687-018, 1991 WL 687965; DOT # 222.687-014, 1991 WL 672131; DOT # 209.687-026, 1991 WL 671813. As noted above, in determining that Cope was capable of performing sedentary work, the ALJ found that Cope could "lift or carry up to 10 pounds occasionally." (Tr. 35.) He also found that Cope required a sit-stand option and had limitations with overhead reaching. (Id.) The court observes that, while the vocational expert provided testimony accounting for Cole's sit-stand option and overhead reaching, his testimony is silent regarding the additional exertional requirements for the identified light work jobs compared with those required for sedentary work as designated by the ALJ in his residual functional capacity finding. (Tr. 101-04.) Accordingly, without a reasonable explanation, the exertional level in the jobs identified by the vocational expert appears to exceed the limitations in Cope's residual functional capacity.
Thus, the ALJ's residual functional capacity finding is inconsistent with the jobs identified by the vocational expert. Based on the foregoing, the court is constrained to recommend this matter be remanded for further consideration of this issue, as the ALJ failed to elicit a reasonable explanation for this apparent conflict.2 Pearson, 810 F.3d at 208-11; SSR 00-04p.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
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
901 Richland Street
Columbia, South Carolina 29201
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).
