United States District Court, D. South Carolina, Florence Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE
matter is before the Court on the Defendant
Commissioner's objections to United States Magistrate
Judge Thomas E. Rogers' report and recommendation
(“R & R”) (ECF Nos. 16 & 14). The
Magistrate Judge recommends that the ALJ's decision be
reversed and remanded. For the reasons stated herein, the
Court overrules the Commissioner's objections, adopts the
R & R, reverses the ALJ's decision, and remands for
February 14, 2018, the Magistrate Judge issued his R & R
recommending that the Court reverse and remand the ALJ's
decision. The Commissioner filed objections on February 28,
and Plaintiff responded on March 29. Accordingly, this matter
is now ripe for review.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the Magistrate
Judge's proposed findings and recommendations within
fourteen days after being served with a copy of the R &
R. 28 U.S.C. § 636(b)(1). This Court must conduct a de
novo review of any portion of the R & R to which a
specific objection is made, and the Court may accept, reject,
or modify the Magistrate Judge's findings and
recommendations in whole or in part. Id.
Additionally, the Court may recommit the matter to the
Magistrate Judge with instructions. Id. A
party's failure to object is taken as the party's
agreement with the Magistrate Judge's conclusions.
See Thomas v. Arn, 474 U.S. 140, 151-52 (1985).
Absent a timely, specific objection-or as to those portions
of the R & R to which no specific objection is made-this
Court “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
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
reviewing court must uphold the findings and conclusions of
the ALJ “if they 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). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion . . . .'”
Id. (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). “In reviewing for substantial
evidence, [the Court] do[es] not undertake to re-weigh
conflicting evidence, make credibility determinations, or
substitute [its own] judgment for that of the [ALJ].”
Id. (citing Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990)). When “conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, ” the decision is left to the judgment of the
ALJ. Id. (quoting Walker v. Bowen, 834 F.2d
635, 640 (7th Cir. 1987)).
Commissioner objects to the Magistrate Judge's analysis
on the basis that he improperly extended the Fourth
Circuit's ruling in Henderson v. Colvin, 643
Fed.Appx. 273 (4th Cir. 2016). In Henderson, the Fourth
Circuit held that a conflict was created when a vocational
expert (“VE”) testified that a claimant could
perform work at a GED Reasoning Code Level 2 even though the
claimant's residual functional capacity
(“RFC”) limited him to “simple one-to-two
step tasks with low stress.” Id. at 276-77.
The Fourth Circuit explained that under Social Security
Ruling 00-4p, the ALJ had a responsibility to resolve any
possible conflicts between the evidence provided by a VE and
the occupational information provided by the Dictionary of
Occupational Titles (“DOT”), which states the
reasoning level for a particular job. Id. (citing
SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000)). The Fourth
Circuit said that the “ALJ independently must identify
conflicts between the [VE's] testimony and the [DOT],
” Id. (quoting Pearson v. Colvin, 810
F.3d 204, 209 (4th Cir. 2015)), and must resolve such a
conflict by ensuring the VE provides a reasonable explanation
for the conflict that can “provide a basis for
relying on the VE's testimony rather than the DOT,
” Id. (citing Pearson, 810 F.3d at 209-10).
The Fourth Circuit concluded that if an ALJ fails to resolve
an apparent conflict, she has not fully developed the record
and her decision to deny benefits is not supported by
substantial evidence. Id.
on Henderson and its progeny, the Magistrate Judge reasoned
that there was an apparent inconsistency between the VE's
testimony that Plaintiff could do work with a reasoning level
of two, and the Plaintiff's RFC, which limited her to
“simple, routine work, ” (Social Security Admin.
R., ECF No. 7-2, at 24.) The Magistrate Judge concluded that
because the ALJ failed to identify a reasonable explanation
for this apparent conflict, the ALJ had not fully developed
the record and improperly relied on the VE's testimony
that Plaintiff could perform jobs at a reasoning level of
two. In light of his recommendation to remand, the Magistrate
Judge did not address Plaintiff's other issues. See
Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir.
Commissioner argues that the Magistrate Judge improperly
expanded Henderson because Plaintiff was only restricted to
“simple, routine work.” (Social Security Admin.
R., ECF No. 7-2, at 24.) In contrast, the Henderson plaintiff
was restricted to “simple one-to-two step tasks.”
643 Fed.Appx. at 276. The Commissioner agrees that the
Henderson plaintiff's RFC clearly matched level one
reasoning, which requires a worker to “[a]pply
commonsense understanding to carry out simple one-or two-step
instructions.” Dictionary of Occupational Titles, 1991
WL 688702 (2008). However, the Commissioner argues that
Plaintiff's limitation to “simple, routine
work” is consistent with level two reasoning, which
requires a worker to “[a]pply commonsense understanding
to carry out detailed but uninvolved written or oral
instructions.” Id. The Commissioner notes that
in Henderson, the Fourth Circuit cited Rounds v.
Commissioner, a case in which the Ninth Circuit
similarly held that an RFC limitation to “one to two
step tasks” meant that the plaintiff could not perform
jobs that required level two reasoning. 807 F.3d 996, 1003
(9th Cir. 2015). The Commissioner specifically points to a
footnote in Rounds which states, “Unpublished decisions
of panels of this Court and opinions from some of our sister
circuits have concluded that an RFC limitation to
‘simple' or ‘repetitive' tasks is
consistent with Level Two reasoning.” Id. at
1004 n.6 (citation omitted).
Rounds and other authorities citied by the Commissioner
suggest otherwise, and though the Fourth Circuit has not
provided a published opinion on this issue, the courts of
this District have repeatedly applied Henderson to hold that
RFC limitations like Plaintiff's are in apparent conflict
with jobs that require level two reasoning. In
Christopherson v. Colvin, this Court held that
“simple, routine, and repetitive tasks” were in
conflict with the level two and level three jobs cited by the
VE and relied on by the ALJ. No. 6:15-cv-4725-JMC-KFM, 2016
WL 7223283, at *8 (D.S.C. Nov. 18, 2016), adopted by 2016 WL
7212785 (D.S.C. Dec. 13, 2016). The court remanded for
resolution of the apparent conflict. Id. at *9.
Similarly, in Piner v. Berryhill, this Court
explained that an RFC limitation to “simple, routine
tasks”-an RFC nearly identical to Plaintiff's
limitation of “simple, routine work”-is
“more consistent with GED reasoning level one than two
or three because the abilities to perform simple tasks and to
make simple work-related decisions . . . are similar to the
provision for applying commonsense understanding to carry out
simple instructions at GED reasoning level one.” No.
1:17-cv-317-TMC-SVH, 2017 WL 4712084, at *14 (D.S.C. Sept.
28, 2017), adopted by 2017 WL 4682004 (D.S.C. Oct. 18, 2017).
Again, the court remanded so that the ALJ could address the
apparent conflict. Id. at *15; see also Pressley
v. Berryhill, No. 8:16-cv-2716-BHH-JDA, 2017 WL 4174780,
at *10-11 (D.S.C. Aug. 24, 2017), adopted by 2017 WL 4156460
(D.S.C. Sept. 19, 2017) (remanding to resolve apparent
conflict between “simple, routine, and repetitive
tasks” and VE testimony regarding level two and three
jobs); Watts v. Berryhill, No. 1:17-cv-127-RMG-SVH,
2017 WL 4325685, at *12 (D.S.C. Sept. 12, 2017), adopted by
2017 WL 4296722 (D.S.C. Sept. 26, 2017) (remanding to resolve
conflict between “simple routine tasks in a low-stress
environment” and level two and three jobs); Watson
v. Colvin, No. 0:15-cv-4935-RBH-PJG, 2017 WL 694645, at
*5 (D.S.C. Feb. 22, 2017) (remanding to resolve conflict with
“simple, routine, repetitive tasks, which must be
performed in a low stress, predictable work
environment” and level two and three jobs). The Court
acknowledges that other districts in the Fourth Circuit have
come to different conclusions. See, e.g., Street v.
Berryhill, No. 1:17-CV-00204-FDW, 2018 WL 1935866, at *6
(W.D. N.C. Apr. 24, 2018) (finding no apparent conflict
between an RFC limitation to “simple, routine,
repetitive work” and jobs with level two reasoning).
Nonetheless, the Court finds that the Magistrate Judge's
conclusion that the ALJ's decision is in error is
consistent with this District's application of Henderson.
Accordingly, the Court reverses the ALJ's decision and
remands so that the ALJ can resolve the apparent conflict
between Plaintiff's RFC and the VE's explanation of
jobs available to her.
the Court declines Plaintiff's request to address issues
not addressed by the Magistrate Judge in light of his
recommendation to remand. These issues need not be addressed
by the Court given that they may be rendered moot on ...