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, P. J. Ondeck, 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:

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).2 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 March 2015, Ondeck applied for DIB and SSI, alleging disability beginning October 29, 2013. Ondeck's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on October 5, 2017, at which Ondeck appeared and testified and was represented by Paul T. McChesney, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on February 7, 2018, concluding that Ondeck was not disabled from October 29, 2013 through the date of the decision. (Tr. 16-26.)

Ondeck was born in 1971 and was forty-two years old at the time of her alleged disability onset date. She has a high school education and has past relevant work experience as an administrative assistant, a hairstylist, and a medical assistant. (Tr. 233.) Ondeck alleged disability due to a back injury, bi-polar disorder, severe anxiety, severe depression, panic attacks, a mood disorder, and anger outbursts. (Tr. 232.)

In applying the five-step sequential process, the ALJ found that Ondeck had not engaged in substantial gainful activity since her alleged onset date of October 29, 2013. The ALJ also determined that Ondeck's history of degenerative disc disease, vertigo, migraines, bipolar disorder, and panic disorder were severe impairments. However, the ALJ found that Ondeck did not have 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 found, after consideration of the entire record, that Ondeck retained the residual functional capacity to

(Tr. 20.) The ALJ found that Ondeck was capable of performing past relevant work as an administrative assistant, medical assistant, and dog bather, and that this work did not require the performance of work-related activities precluded by Ondeck's residual functional capacity. Therefore, the ALJ found that Ondeck was not disabled from October 29, 2013 through the date of the decision.

The Appeals Council denied Ondeck's request for review on December 20, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) 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 Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); 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; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). 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]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). 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

Ondeck raises the following issues for this judicial review:

(Pl.'s Br., ECF No. 7.)

DISCUSSION3

A. Vocational Expert

As part of the ALJ's duty at Step Five of the sequential process, the ALJ must resolve any apparent conflicts between a vocational expert's testimony and the DOT. See Pearson v. Colvin, 810 F.3d 204, 208-11 (4th Cir. 2015); SSR 00-04p, 2000 WL 1898704. Ondeck argues that an apparent conflict does exist between the testimony provided by the vocational expert and the occupational information in the DOT, and that the ALJ erred in failing to resolve this conflict.

Ondeck first argues that an apparent conflict exists because the occupations identified by the vocational expert have a General Educational Development ("GED") reasoning level of 2, based on her assertion that a reasoning level of 2 exceeds her limitation that she can perform "simple, routine tasks."4 Ondeck relies on recent case law from the United States Court of Appeals for the Fourth Circuit holding that an apparent conflict existed between a limitation to "short, simple instructions" and the need to carry out "detailed but uninvolved . . . instructions" as required by jobs with a GED of 2.5 Thomas v. Berryhill, 916 F.3d 307, 313 (4th Cir. 2019). However, during the pendency of this appeal, the Fourth Circuit issued a decision in Lawrence v. Saul, 941 F.3d 140 (4th Cir. 2019). The Lawrence Court first observed that "[e]ven assuming that `tasks' and `instructions' are synonymous,[] the key difference is that Thomas was limited to `short' instructions." Id. at 143. The Lawrence Court went on to find that there was not an apparent conflict between a limitation to "simple, routine, repetitive tasks of unskilled work" and "Level 2's notions of `detailed but uninvolved . . . instructions' and tasks with `a few [] variables.'" Id. at 143 (quoting DOT, App. C, 1991 WL 688702). Thus, the recent holding by the Lawrence Court forecloses Ondeck's argument that an apparent conflict exists here, and remand is not warranted on this issue.

However, the court notes, as this matter is being recommended for remand on other grounds discussed below, that the Commissioner does not appear to refute Ondeck's assertion that the ALJ erred in stating that the vocational expert testified that Ondeck could perform her past relevant work as an administrative assistant, medical assistant, or quality control inspector. Further, the Commissioner does not appear to dispute that the other identified past relevant occupation of dog bather has a reasoning level of 3 or to dispute Ondeck's assertion that an apparent conflict exists between that occupation and her limitations. Instead, the Commissioner focuses on the remaining alternate occupations identified by the ALJ, which have a reasoning level of 2. On remand, the alleged errors can be addressed and corrected, if necessary.

B. Opinion Evidence

Ondeck next argues that the ALJ erred in evaluating the opinion evidence from Dr. Jeffrey Smith, Ondeck's treating specialist, and Dr. David Price, the Commissioner's consultative examiner. Ondeck further argues that the ALJ failed to consider the consistency among the opinions from all the treating and examining physicians in weighing these opinions and erred in giving greater weight to the non-examining state agency reviewers.

As an initial matter, it was not automatically reversible error to credit the opinions of the state agency reviewers over Ondeck's treating physician or the consultative examiner. See Smith v. Schweiker, 795 F.2d 343, 345-46 (4th Cir. 1986) (finding that the testimony of a non-examining physician can constitute substantial evidence when it is consistent with the record); Stanley v. Barnhart, 116 F. App'x 427, 429 (4th Cir. 2004) (disagreeing with the argument that the ALJ improperly gave more weight to residual functional capacity assessments of non-examining state agency physicians over those of examining physicians and finding that the ALJ properly considered evidence provided by those physicians in context of other medical and vocational evidence); see also 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1) ("Administrative law judges are not required to adopt any prior administrative medical findings, but they must consider this evidence according to §§ [404.1520b, 404.1520c, 404.1527, 416.920b, 416.920c, and 416.927], as appropriate, because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation."). However, upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to recommend that this matter be remanded for further consideration and analysis by the ALJ. The court is simply unable to determine whether the ALJ's decision is supported by substantial evidence as the decision provides very little actual analysis as to why the ALJ provided only little weight to Dr. Smith's opinions and partial weight to Dr. Price's opinions.

The law applicable to Ondeck's applications provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(c), 416.927(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See id. However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id. (quoting Craig, 76 F.3d at 590).

Moreover, ALJs are instructed to apply the above factors—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions, including those from consultative or one-time examiners. 20 C.F.R. §§ 404.1527(c), 416.927(c). Importantly, more weight is generally given to the opinions of an examining source than a non-examining one. Id. Additionally, more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners. Id.

Upon review of the record and the parties' briefs, the court is unable to determine whether the ALJ's evaluation of this evidence is supported by substantial evidence. In this case, the ALJ stated the following with regard to the opinions at issue:

(Tr. 22-23.) Preceding this paragraph, the ALJ briefly summarized the medical record and Ondeck's hearing testimony. (Tr. 21-22.) Further, the ALJ found the four opinions from the state agency record reviewers issued in July and November 2015 were entitled to significant weight because each examiner formed his or her opinion "with the benefit of having reviewed the evidence in the file and because [each] opinion is consistent as a whole with the medical record." (Tr. 22.)

However, it is unclear how the record does not support the opinions of Dr. Price and Dr. Smith. The ALJ appears to have discounted these opinions without explanation as to how these opinions are inconsistent with and unsupported by the evidence or the clinical findings. While the Commissioner provides some argument and possible factual support for the ALJ's conclusions, the ALJ's decision lacks this analysis. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) (finding meaningful review was precluded where an ALJ gave an opinion limited weight because "the objective evidence or the claimant's treatment history did not support the consultative examiner's findings" but did not specify what objective evidence or treatment history he was referring to). Further, Ondeck has directed the court to substantial medical evidence and clinical findings that arguably support these opinions, including the consistency of the opinions among all the providers who examined and treated Ondeck.

In summary, upon review of the ALJ's decision and the record, the court is unable to determine whether the ALJ's decision to discount the above opinions is supported by substantial evidence. See 20 C.F.R. §§ 404.1527(c), 416.927(c); cf. Mastro, 270 F.3d at 178 (stating that "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight") (internal quotation marks and citation omitted). Even considering the ALJ's decision in its entirety, it is unclear that the ALJ considered all of the evidence in discounting the opinions of Dr. Price and Dr. Smith. Therefore, the court is constrained to agree with Ondeck that the ALJ's conclusory evaluation of this opinion evidence leaves the court guessing as to the support for the reasons these opinions were given little or partial weight. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe, 826 F.3d at 189 (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). Similarly, the ALJ's cursory evaluation of and explanation regarding the weight given to the opinions of the state agency record reviewers renders the court unable to discern why the ALJ determined these opinions were entitled to greater weight than the opinions from examining or treating physicians. Moreover, where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict.6 See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this opinion evidence.

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.

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:

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).