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Bond v. Saul

United States District Court, D. South Carolina

August 2, 2019

Chantee Bond, Plaintiff,
v.
Andrew Saul, Commissioner of Social Security,[1] Defendant.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         This 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.)

         In this 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.

         As part 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.”[2] (Tr. 524.)

         The 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), [3] 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 2.[4] Id. at 313.

         Accordingly, 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 remand.

         RECOMMENDATION

         Accordingly, 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).

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Notes:

[1] 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.

[2] 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” ...


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