United States District Court, D. South Carolina, Orangeburg Division
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
has brought this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of the final decision of the
Commissioner of Social Security denying her claim for
Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC,
this matter was referred to a United States Magistrate Judge
for pre-trial handling. The Magistrate Judge issued a Report
and Recommendation ("R & R") on December 10,
2018, recommending that the Court affirm the decision of the
Commissioner. (Dkt. No. 27). Plaintiff filed objections to
the R & R, arguing that the Administrative Law Judge
("ALJ") failed to address, as required by SSR
00-04p, 2000 WL 1898704 (2000), an apparent unresolved
conflict between her finding that Plaintiffs Residual
Functional Capacity ("RFC") was limited to
"understanding, remembering, and carrying out simple
instructions" and the vocational expert's
identification of jobs at Step Five which required the
ability to "carry out detailed but uninvolved written or
oral instructions." (Dkt. No. 29). The Commissioner
filed a reply, arguing that Plaintiffs arguments are without
merit and the agency decision should be affirmed. (Dkt. No.
31). As explained more fully below, the Court finds that the
Commissioner failed to carry her burden at Step Five of the
sequential process, entitling Plaintiff to a finding of
disability as a matter of law. Consequently, the decision of
the Commissioner is reversed and remanded to the agency with
instructions to award disability benefits from the Plaintiffs
onset date of July 26, 2013.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo
determination of those portions of the R & R to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. See 28 U.S.C. § 636(b)(1).
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one. The
Act provides that the "findings of the Commissioner of
Social Security as to any fact, if supported by substantial
evidence, shall be conclusive." 42 U.S.C. § 405(g).
"Substantial evidence has been defined innumerable times
as more than a scintilla, but less than preponderance."
Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.
1964). This standard precludes de novo review of the
factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. See Vitek
v. Finch, 438 F.2d 1157 (4th Cir. 1971).
the federal court's review role is a limited one,
"it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted. The
statutorily granted right of review contemplates more than an
uncritical rubber stamping of the administrative
action." Flack v. Cohen, 413 F.2d 278, 279 (4th
Cir. 1969). Further, the Commissioner's findings of fact
are not binding if they were based upon the application of an
improper legal standard. See Coffman v. Bowen, 829
F.2d 514, 519 (4th Cir. 1987).
Commissioner, in passing upon an application for disability
benefits, is required to undertake a five-step sequential
process. At Step One, the Commissioner must determine whether
the claimant is engaged in substantial gainful work. If the
claimant is not engaged in substantial gainful employment,
the Commissioner proceeds to Step Two, which involves a
determination whether the claimant has a "severe
medically determinable physical or mental impairment."
If the claimant has one or more severe impairments, the
Commissioner proceeds to Step Three, which involves a
determination whether any impairment satisfies one of the
designated list of impairments that would automatically
render the claimant disabled. Where a claimant does not
satisfy one of the listed disabling impairments, the
Commissioner must proceed to Step Four, which involves a
determination of the claimant's RFC. Once the RFC is
determined, the Commissioner proceeds to Step Five to
determine if jobs exist in significant numbers in the
national economy that the claimant can perform in light of
her RFC. 20 C.F.R. § 404.1520(a)(4). The claimant
carries the burden of establishing the requirements of Steps
One through Step Four, but at Step Five the burden shifts to
the Commissioner. If the Commissioner fails to carry her
burden at Step Five, the claimant is entitled to a finding of
disability as a matter of law. See Pearson v.
Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015).
found that the claimant suffered from a number of severe
physical and mental impairments, including a history of major
spine surgeries, lumbar radiculopathy, depression, bipolar
disorder, personality disorder and attention deficit
disorder. Tr. 12-13. The ALJ further found that due to these
multiple severe physical and mental impairments, Plaintiff
had the capacity to perform less than the full scope of light
work, the lowest level of functional capacity possible under
the Social Security Act in which the claimant in this age
group is not deemed disabled. The ALJ found that Plaintiff was
limited to jobs in which she is "able to understand,
remember, and carry out simple instructions consistent with
routine, repetitive, and unskilled work at SVP 1 and SVP 2 .
. ." Tr. 16. Based on a hypothetical question placed by
the ALJ to the vocational expert that included this
limitation, the vocational expert opined that Plaintiff was
capable of performing the duties of a garment sorter and a
retail marker, both SVP 2 level positions. The vocational
expert did not identify any SVP 1 level jobs Plaintiff could
perform. Tr. 69-70.
argues that imbedded in the ALJ's hypothetical question
and the vocational expert's testimony is a legal error
because a limitation in a RFC to a claimant carrying out
"simple instructions" is inconsistent with the
level of reasoning ability required for SVP 2 work. The DOT
identifies six levels of jobs based upon reasoning ability.
Level 1 requires the ability to "apply commonsense
understanding to carry out simple one-or two-step
instructions." Dictionary of Occupational Titles,
Appendix C, 1991 WL 688702 at * 2 (1991) (emphasis added).
Level 2 positions require the ability to "apply
commonsense understanding to carry out detailed but
uninvolved written or oral instructions." Id.
there is an apparent unresolved conflict between the
testimony of the vocational expert and the DOT, Social
Security regulations require the ALJ to (1) identify any
apparent unresolved conflict between the vocational expert
and the DOT and (2) elicit from the vocational expert a
reasonable explanation for the conflict before relying on the
vocational expert's testimony. SSR 00-04p at *2. The
failure for the ALJ to perform her responsibilities under SSR
00-04p is no small matter. Since the Commissioner carries the
burden at Step Five of the sequential process and vocational
expert testimony is necessary to address a RFC inconsistent
with the requirements of the DOT, the failure to resolve the
conflict between the vocational expert's testimony and
the DOT leaves the Commissioner without substantial evidence
to meet her burden at Step Five and mandates a determination
that the claimant is entitled to a finding of disability as a
matter of law. See Pearson, 810 F.3d at 209-10
("[I]f the ALJ does not elicit this explanation, then
the expert's testimony cannot provide substantial
evidence to support the ALJ's decision."); Stepp
v. Berryhill, No. 1:17-771-MBS-SVH, 2017 WL 6806664 at *
13-14 (D.S.C. 2017) (Report and Recommendation), adopted
201& WL 294517 (D.S.C. 2018).
matter, the ALJ plainly limited Plaintiff to jobs that could
be performed with "simple instructions," which are
only SVP 1 positions. Tr. 16. See Henderson v.
Colvin, 643 Fed.Appx. 273, 276-77 (4th Cir. 2016);
Rounds v. Commissioner, 807 F.3d 996, 1003 (9th Cir
2015). This provision of Plaintiff s RFC was based on
findings by mental health experts that the claimant was
capable of performing a job with simple instructions, but
would be "moderately limited" in carrying out
detailed instructions due to her complicated mental health
history. Tr. 80, 111, 112. The ALJ indicated that she gave
"great weight" to these mental health experts, Dr.
Michael Neboschick and Dr. Jody Lenrow. Tr. 19. The failure
of the ALJ to identify the apparent unresolved conflict
between the vocational expert's testimony and the DOT and
to obtain a reasonable explanation for the discrepancy from
the vocational requires reversal of the Commissioner's
decision because there is not substantial evidence to support
the finding at Step Five that there exist jobs in the
national marketplace in significant numbers that Plaintiff
Court notes that the ALJ attempted to deflect responsibility
for any deficiency in the vocational expert's testimony
by contending that Plaintiffs counsel had failed to challenge
the testimony at the administrative hearing. Tr. 21-22.
Similarly, the Commissioner now claims this glaring
deficiency in the ALJ's decision cannot be addressed by
this Court because it was not clearly raised before the
Magistrate Judge. (Dkt. No. 31 at 1-3). These arguments fail
to recognize that the burden is on the Commissioner, not the
Plaintiff, to provide substantial evidence to support the
finding at Step Five that a substantial number of jobs exist
in the national economy that Plaintiff can perform. As the
Fourth Circuit noted in Pearson, the claimant is not
required to raise the conflict, and to impose this on the
Plaintiff "would amount to shifting the burden of proof
back to the claimant." 810 F.3d at 210. Similarly, any
failure of the Plaintiff to raise the issue before the
Magistrate Judge does not excuse this Court's duty ...