MARY GORDON BAKER, Magistrate Judge.
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
The Plaintiff, Sheila Jones, brought this action 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 Administration regarding her claim for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. For the reasons set forth herein, the undersigned recommends the Commissioner's decision be reversed, and the matter remanded to the Commissioner for further proceedings.
Plaintiff was 50 years old on her amended alleged disability onset date of May 7, 2014. (R. at 11, 23.)
Plaintiff protectively filed an application for DIB and SSI on January 30, 2013. (R. at 11.) Her applications were denied initially and on reconsideration. (R. at 11.) After a hearing before an Administrative Law Judge (ALJ) on June 2, 2015, the ALJ issued a decision on August 13, 2015, in which the ALJ found that Plaintiff was not disabled. (R. at 11-24.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(R. at 13-24.)
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). The Act also provides that supplemental security income (SSI) disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act 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 a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A) (definition used in the DIB context); 42 U.S.C. § 1382c(a)(3)(A) (definition used in the SSI context).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context); see also Brown v. Comm'r, 873 F.3d 251, 254-55 (4th Cir. 2017). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i). She must make a prima facie showing of disability by showing that she is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Once an individual has established an inability to return to her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Grant, 699 F.2d at 191; see also Brown, 873 F.3d at 255. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that her conclusion is rational. 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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
The Plaintiff contends that the Commissioner erred in failing to find her disabled. Specifically, Plaintiff contends the ALJ improperly relied on the testimony of the vocational expert ("VE"). (Dkt. No. 12 at 17 of 27.) Plaintiff contends that the "DOT indicates that it is impossible for someone with the [Plaintiff's] limitations to perform every job identified by the vocational expert," and "since the vocational expert did not explain this discrepancy, the case must be remanded." (Dkt. No. 12 at 18 of 27.) Plaintiff further contends the ALJ erred in discounting Plaintiff's claim of disability due to her failure to obtain additional treatment, as the "ALJ made an assumption about [Plaintiff's] failure to pursue treatment without the requisite consideration." (Dkt. No. 12 at 21 of 27.) Finally, Plaintiff asserts the ALJ erred in concluding Plaintiff's hypertension and diabetes are not severe. (Dkt. No. 12 at 24-26 of 27.)
Here, the undersigned agrees with Plaintiff that the ALJ improperly relied on the VE's testimony and concludes that the case should be remanded. Near the beginning of the VE's testimony in this case, the ALJ told the VE that if he "happen[s] to give us an opinion which conflicts with the information in the Dictionary of Occupational Titles," the VE "need[s] to advise us both of that conflict and the basis of [his] opinion." (R. at 48.) The VE indicated that he understood. (R. at 48.) The VE never identified any such conflicts. (See R. at 48-52.)
In response to the ALJ's hypothetical question, which included the restriction that Plaintiff was limited to "one-or two-step tasks with only occasional interaction with the public," the VE indicated that the following jobs would be available: assembler (DOT number 706.684-022), mail clerk (DOT number 209.687-26), and marker pricer (DOT number 209.587-034). (R. at 49-51.) Specifically, the VE testified as follows (verbatim):
(R. at 49-51.) The ALJ found that Plaintiff could perform these representative jobs and that Plaintiff was therefore not disabled. (R. at 23-24.)
Plaintiff acknowledges that the ALJ "instructed the vocational expert to alert him if she gave any testimony that conflicts with the information in the Dictionary of Occupational Titles" and that the VE "identified none." (Dkt. No. 12 at 18 of 27.) In his decision, the ALJ stated,
(R. at 24.)
Plaintiff points out, however, that "the ALJ cannot simply take, at face value, the vocational expert's claim that there is no conflict between his testimony and the DOT." (Dkt. No. 12 at 18 of 27, citing Pearson v. Colvin, 810 F.3d 204, 211 (4th Cir. 2015) (holding that merely asking the VE if there were any conflicts was insufficient)). Consistent with Pearson, the Fourth Circuit Court of Appeals has explained that under SSR 00-4p, the ALJ "has an affirmative responsibility to ask [the VE] about any possible conflict between [the] evidence and . . . the DOT." Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016) (quoting SSR 00-4p, 2000 WL 1898704, *4 (Dec. 4, 2000)). If the evidence appears to conflict, the ALJ must "obtain a reasonable explanation for the apparent conflict" and "explain the resolution of the conflict in his decision." Id.
Plaintiff contends that, contrary to the ALJ's decision, there actually is a conflict between the DOT description and the VE's testimony. (Dkt. No. 12 at 19 of 27.) Plaintiff points to the reasoning levels assigned to these jobs. GED Reasoning Code 1 requires the ability to "apply commonsense understanding to carry out simple one-or-two-step instructions," whereas GED Reasoning Code 2 requires the employee to "apply commonsense understanding to carry out detailed but uninvolved written or oral instructions." Henderson, 643 F. App'x at 277 ("We note that there is an apparent conflict between an RFC that limits Plaintiff to one-to-two step instructions and GED Reasoning Code 2, which requires the ability to understand detailed instructions."); see also Piner v. Berryhill, No. 3:17-TMC-SVH, 2017 WL 4712084, *14, adopted at 2017 WL 4682004 (D.S.C. Oct. 18, 2017). GED Reasoning Code 3 requires the ability to "apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form." See Dictionary of Occupational Titles, 1991 WL 688702.
Plaintiff argues that she cannot perform the representative jobs "since the ALJ limited [her] to one-or-two step tasks." (Dkt. No. 12 at 19 of 27; see also R. at 17.) In other words, Plaintiff contends that the representative jobs require a GED reasoning level of 2 or 3, which conflicts with her residual functional capacity limiting her to "one-or-two step tasks." (Dkt. No. 12 at 19-21 of 27; see also R. at 17.)
The undersigned agrees with Plaintiff. While there is not a published Fourth Circuit decision on the subject of this apparent conflict, there are recent persuasive cases in this judicial district that are consistent with the Fourth Circuit's unpublished Henderson decision.
The Magistrate Judge recommends that a fair reading of the hearing transcript and the VE's testimony does not indicate how the apparent conflict in this case was resolved. In light of the weight of authority in this judicial district, the Magistrate Judge recommends that a sentence four remand due to the unresolved conflict between the DOT and the VE's testimony (as described above) is warranted.
A VE's testimony that conflicts with the DOT can only provide substantial evidence if the VE explained the conflict and the ALJ determined both that the explanation was reasonable and that it provided a basis for relying on the VE's testimony rather than the DOT. Pearson v. Colvin, 810 F.3d at 209-10. The government did not meet the burden at step five because the VE's testimony did not provide substantial evidence to show that Plaintiff's RFC would allow her to perform the identified jobs. See Pearson, 810 F.3d at 207-10. In light of the foregoing, the ALJ erred in relying on the VE's testimony without resolving the apparent conflict between it and the GED reasoning levels of the jobs identified by the VE.
Therefore, the Magistrate Judge recommends that substantial evidence does not support the ALJ's reliance on the identified jobs to meet the Commissioner's burden at step five. This matter should be remanded pursuant to Sentence Four. See DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) (absent an adequate explanation by the ALJ, "[j]udicial review of an administrative decision is impossible").
Because the Court finds the ALJ's reliance on the jobs identified by the VE warrants remand of the case to the Commissioner, the undersigned does not specifically address Plaintiff's remaining allegations of error. However, on remand, the Commissioner should consider Plaintiff's allegations that the ALJ (a) erred in discounting Plaintiff's claim of disability due to her failure to obtain additional treatment, as the "ALJ made an assumption about [Plaintiff's] failure to pursue treatment without the requisite consideration," and (b) erred in concluding Plaintiff's hypertension and diabetes are not severe. (Dkt. No. 12 at 21-26 of 27.)
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. Section 405(g) for further proceedings as set forth above.
IT IS SO RECOMMENDED.
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:
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).
