United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
social security matter is before the court pursuant to 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a)
(D.S.C.) on the defendant's motion pursuant to sentence
four of 42 U.S.C. § 405(g) that the Commissioner's
decision be reversed and that the case be remanded to the
Commissioner for further administrative proceedings. (ECF No.
11.) Plaintiff Chantee Bond responded arguing that this
matter should be remanded for an award of benefits. (ECF No.
12.) The Commissioner replied. (ECF No. 13.)
action Bond raises numerous issues for this judicial review.
However, in support of her position that this matter should
be remanded for an award of benefits, she focuses on her
argument that the ALJ erred at Step Five of the sequential
process and also directs the court to the length of time that
her administrative proceeding has been pending.
of the ALJ's duty at Step Five, 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. Here, Bond 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. Specifically, Bond
argues that an apparent conflict exists because the
occupations identified by the vocational expert have a
General Educational Development (“GED”) reasoning
level of 2, which Bond argues exceeds her limitation to
“understanding, remembering, and carrying out simple
instructions.” (Tr. 524.)
United States Court of Appeals for the Fourth Circuit has
only very recently issued a published opinion addressing this
issue. In Thomas v. Berryhill, 916 F.3d 307 (4th
Cir. 2019),  the court first observed that
[a]n ALJ cannot rely unquestioningly on a VE's testimony.
Rather, an ALJ must ensure that any “apparent”
conflicts between the Dictionary and the VE's testimony
are reasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To
that end, the ALJ must ask the VE whether his or her
testimony conflicts with the DOT. If the answer is
“yes, ” the ALJ “must elicit a reasonable
explanation for the conflict before relying on” the
testimony. Id. But even if the VE answers “no,
” the ALJ has an affirmative “duty to make an
independent identification of apparent conflicts.”
Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir.
2015). This means that the ALJ must recognize and resolve
ways in which a VE's testimony “seems to, but does
not necessarily, ” conflict with the “express
language” of the DOT-even if the conflict is not
“obvious.” Id. at 209.
Thomas, 916 F.3d at 313. The Thomas Court
found 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
Id. at 313.
in light of this newly issued caselaw, there appears to be an
apparent unresolved conflict that requires additional
explanation from the vocational expert. However, Bond's
entitlement to benefits is not wholly established based on
the record before the court. See Crider v. Harris,
624 F.2d 15 (4th Cir. 1980) (finding remand for an award of
benefits was warranted where the individual's entitlement
to benefits was “wholly established” on the state
of the record); Smith v. Astrue, No.
3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011)
(“Whether to reverse and remand for an award of
benefits or remand for a new hearing rests within the sound
discretion of the district court.”) (citing Edwards
v. Bowen, 672 F.Supp. 230, 237 (E.D. N.C. 1987));
cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th
Cir. 2013) (“Although we hold that the district court
did not apply the wrong legal standard, we nonetheless vacate
its judgment because it chose the wrong remedy: Rather than
‘reversing' the ALJ and remanding with instructions
to award benefits to Radford, the district court should have
vacated and remanded with instructions for the ALJ to clarify
why Radford did not satisfy Listing 1.04A.”); but
see Willing v. Berryhill, C/A No. 5:17-2030-RMG (D.S.C.)
(ECF No. 33, Jan. 1, 2019) (finding where the Commissioner
failed to carry her burden at Step Five of the sequential
process and a significant lapse of time had occurred in the
administrative processing, the claimant was entitled to a
finding of disability as a matter of law). The court is
mindful of the length of this process to date; however, as
noted above, the decision supporting remand of this matter
was issued while this matter was pending before the court.
Therefore, the court recommends that the Commissioner be
directed to expedite reconsideration of this matter on
the court recommends that the Commissioner's motion be
granted and this action be remanded for further expedited
administrative proceedings pursuant to sentence four of 42
U.S.C. § 405(g).
 Pursuant to Federal Rule of Civil
Procedure 25(d), Andrew Saul is substituted as the named
defendant because he became the Commissioner of Social
Security on June 17, 2019.
 The DOT explains that
reasoning level one requires the worker to “[a]pply
commonsense understanding to carry out simple one- or
two-step instructions” and “[d]eal with
standardized situations with occasional or no variables in or
from these situations encountered on the job.”
DOT, App. C, 1991 WL 688702. Reasoning level two
requires the worker to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or
oral instructions” ...