CROUSE, JR. v. SSA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WILLIAM MONROE CROUSE, JR. )

)

. Plaintiff, )

) :

Vv. ) 1:18CV269

) .

ANDREW SAUL, . )

Commissioner of Social Secutity,! )

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff William Monroe Crouse, Jr. (“Plaintiff’?) brought this action pursuant to

Section 1631(c)(3) of the Social Security Act (the “Act’), as amended (42 U.S.C. § 1383(c)(3)),

to obtain judicial review of a final decision of the Commissioner of Social Security denying his

claim for Supplemental Security Income (“SSI”) under Title XVI of the Act. The parties have

filed cross-motions for judgment, and the administrative record has been certified to the Court

for review.

I PROCEDURAL HISTORY

Plaintiff protectively filed an application for SSI on July 31, 2014, alleging a disability

onset date of May 1, 2011. (Ir. at 15, 187-195.)? His application was denied initially (T'r. at

102-105) and upon reconsideration (Ir. at 111-115). Thereafter, Plaintiff requested an

1 Andrew Saul became Commissioner of Social Security on June 17, 2019. Pursuant to Rule 25(d) of the Federal

Rules of Civil Procedure, Andrew Saul should be substituted for Nancy A. Berryhill as the Defendant in this

suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of

the Social Security Act, 42 U.S.C. § 405(g).

* Transcript citations refer to the Sealed Administrative Record [Doc. #8].

administrative heating de novo before an Administrative Law Judge (“ALJ”). (Tr. at 116-118.)

Plaintiff, along with his attorney and an impattial vocational expert (“VE”), attended the

subsequent heating on January 9, 2017. (It. at 30.) The ALJ ultimately concluded that Plaintiff

was not disabled within the meaning of the Act since July 31, 2014, the date the application

was filed.3 (Tt. at 25.) On February 6, 2018, the Appeals Council denied Plaintiff's request

fot review of the decision, thereby making the ALJ’s conclusion the Commissionet’s final

decision for purposes of judicial review. (Tr. at 1-5.) _

Il. LEGALSTANDARD

Federal law “authorizes judicial review of the Social Secutity Commissionet’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cit. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL] if they ate supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal

quotation omitted). .

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

3 The ruling could not extend to earlier than the application date because SSI is not payable prior to the month

following the month in which the application was filed, irrespective of the claimant's alleged onset date. See 20

C.F.R. § 416.335.

F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Whete

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefote, is not whether [the claimant] is disabled, but whether the

AL}’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to tesult in death or which has lasted or can be expected to last for a continuous

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423()(1)(A)).

“The Commissioner uses a five-step ptocess to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

of disability; (2) had a severe impaitment; (3) had an impairment that met or equaled the

requitements of a listed impaitment; (4) could return to her past relevant work; and (5) if not,

could perform any othet work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquiry. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impaitment meets ot equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,

but falters at step three, ie., “[i]f a claimant’s impaitment is not sufficiently severe to equal ot

exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional

capacity (RFC?.” Id. at 179.4 Step four then requires the ALJ to assess whether, based on

that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requites the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite [the claimant’s]

4 “RFC is a measutement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations requite RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8

houts a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). [he RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentaty, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the AL] only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (e.g., pain).”

Hines, 453 F.3d at 562-63.

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

TI. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity since July 31, 2014, the application date.” (Tr. at 17.) Plaintiff therefore met his burden

at step one of the sequential evaluation process. At step two, the ALJ further determined that

Plaintiff suffered from the following severe impairments: “Asthma, Borderline Intellectual

Functioning vs. Lower Intelligence; Renal Insufficiency, and Depression.” (Id.) The AL]

found at step three that these impairments did not meet or equal a disability listing. (d.)

Plaintiff does not challenge this listing determination at step three. The ALJ then assessed

Plaintiffs RFC and determined that he could perform unskilled light work, with the following

additional limitations:

stand and walk for 2 houts at a time and for a total of 6 hours in an 8-hout

workday; he can sit for 30 minutes at a time and for a total of 4 hours in an 8-

hour workday; and he can lift and catty 20 pounds occasionally and 10 pounds

frequently. He can occasional|ly] teach in all directions, handle, finger, and feel

frequently, but not continuously, with his right dominant upper extremity.

Mentally, the claimant is limited to simple, routine, repetitive tasks, with only

occasional contact with co-workers, supervisors, and the public.

(It. at 19.) Based on the RFC determination, the ALJ found under step four of the analysis

that Plaintiff had no past televant work. (Tr. at 24.) The ALJ also determined at step five

that, given Plaintiff? 8 age, education, work expetience, RFC, and the testimony of the VE as

to these factors, he could perform other jobs available in the national economy. (Tr. at 24-

25.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tt. at 25.)

Plaintiff now argues that the ALJ erted in three respects. First, citing Mascio v. Colvin,

780 F.3d 632 (4th Cir. 2015), Plaintiff contends that “[t]he AL]’s failure to properly account

for [his] moderate limitations in concentration, persistence, and pace in his RFC is error[.]”

(Pl’s Br. [Doc. #11] at 5.) Second, Plaintiff contends that “the ALJ’s reliance on the VE’s

testimony is in error” based on an unresolved conflict with the Dictionary of Occupational

Titles (“DOT”). dd. at 10.) Third, Plaintiff contends that “the ALPs appointment did not

comply with the Appointments Clause.” dd. at 19.) For the reasons set out below, the Court

concludes that remand is tequited with regard to Plaintiffs second contention, and the Court

therefore need not teach the remaining contentions. □

A. DOT Conflict

In pertinent part, Plaintiff challenges the ALJ’s reliance on the VE’s testimony at step

five of the sequential analysis. As explained below, this atgument has merit.

‘In Peatson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015), a VE testified that a claimant

was capable of performing three occupations. For each of the three occupations, the

Dictionary of Occupational Titles listed frequent reaching as a requirement. Id. However,

based on VE testimony, the ALJ found that the claimant’s non-dominant atm could only

occasionally reach upward. Id. Based on the DOT’s broad definition of reaching (Le.,

“felxtending hand(s) and atm(s) in any direction’’) the Fourth Circuit held that the occupations

identified by the expert may requite frequent bilateral overhead reaching. Id. at 210-211.

Because of the appatent conflict between the VE’s testimony and the DOT, the ALJ was

requited to elicit a reasonable “explanation from the expert as to whether these occupations

do, in fact, require frequent bilateral overhead reaching,” before relying on the expert’s

testimony. Id. at 211. The Fourth Circuit also clatified that if an expert’s testimony apparently

conflicts with the DOT; the expert’s testimony can only provide substantial evidence to

support the AL]’s decision if the AL] received an explanation from the expert explaining the

conflict and determined both (1) that the explanation was reasonable and (2) that it provided

a basis for relying on the expert’s testimony rather than the DOT. Id. at 209-11; see also

Rholetter v. Colvin, 639 F. App’x 935, 938 (4th Cir. 2016).

Hete, the VE identified the jobs of Sorter, Mail Sorter (non-postal), and Linen Grader

as jobs a hypothetical claimant with the same RFC as Plaintiff could perform.° (I. at 24, 64-

65.) After identifying these three jobs, the ALJ and the VE had the following exchange:

Q: Has all of your testimony today been consistent with your training,

education, and experience?

A: It has, Your Honor, with somewhat outside the DOT and the

companion publications just with the differentiating with the sit and stand as

well as the breakdown of reaching right versus left. .

Q: Okay.

A: And that is consistent with my 25 plus years of doing [inaudible],

talking with employers, doing jobs, being in the industry.

(Tr. at 66.)

5 The title in the DOT of the Sorter position identified by the VE (Tr. 65) is that of “Picking-Table Worker,”

1991 WL 674230. The title in the DOT of the Mail Sorter position identified by the VE (Tr. at 65) is “Mail

Clerk,” 1991 WL 671813. The title in the DOT of the Linen Grader position identified by the VE (Ir. at 65)

is also that of “Linen Grader,” 1991 WL 672993. The ALJ called these positions, respectively, “Sorter,” “Mail

Sorter (Non-Postal),” and “Linen Folder.” (Tr. at 24.)

Plaintiff correctly points out that all three jobs mentioned above require frequent

teaching according to the DOT. (PL’s Br. at 11-15 referencing Picking-Table Worker,

521.687-102, 1991 WL 674230 (“Reaching: Frequently - Exists from 1/3 to 2/3 of the time”),

Mail Clerk, 209.687-026, 1991 WL 671813 (same), and Linen Grader, 361.687-022, 1991 WL,

672993 (same).) He then contends that this limitation is in appatent conflict with his

limitation to only occasional reaching with his dominant atm. (Pl’s Br. at 11-15.) Plaintiff

then contends further that the purported explanation for this apparent conflict fails to provide

a teasonable explanation and basis for relying on the VE’s testimony. (Pl.’s Br. at 11, 18-19.)

The Court agrees that there was an apparent conflict between the DOT and the VE’s

testimony. The DOT provides that the jobs in question all require frequent (meaning up to

two-thirds of a workday) teaching, while the VE testified that a claimant limited in the use of

his dominant arm to occasional (meaning no mote than one-third of a workday) reaching can

perform the listed jobs. See Pearson v. Colvin, 810 F.3d at 211 (“Although the [DOT] does

not expressly state that the occupations identified by the expert require frequent bilateral

ovethead teaching, [its] broad definition of ‘reaching’ means that, they certainly may requite

such teaching.”); Lamear v. Berryhill, 865 F.3d 1201, 1206 (th Cir. 2017) (rejecting argument

that the fact that the DOT does not expressly require bilateral reaching in a job description

implies that only unilateral reaching is tequited, stating “we cannot determine from this record,

the DOT, or our common experience whether the jobs in question require both hands’); SSR

83-10, 1983 WL 31251, at *5-6 (defining “[o]ccasionally” as up to one-third of a workday and

“frequent” as up to two-thitds of a workday). Consequently, for the ALJ’s step five analysis

to be supported by substantial evidence, the ALJ, by way of the VE, had to identify the

appatent conflict and provide a reasonable explanation that is susceptible to judicial review as

to why the ALJ could tely upon VE testimony rather than the DOT.

None of these requitements wete met here. First, as a threshold matter, the Coutt

notes that the VE did not identify the specific conflict in question. Instead, when queried, the

VE. stated that her testimony was “somewhat outside the DOT and the companion

publications just with the differentiating with the sit and stand as well as the breakdown of

reaching tight versus left.” (I't. at 66.) It is far from cleat what this means. While the quoted

testimony appeats to be an effort on the part of the VE to identify some general conflict

between het testimony and the DOT regarding reaching, such a statement is simply too vague

and ambiguous to fairly constitute an identification of the specific apparent conflict raised by

Plaintiff here. As a result, the Court cannot determine if the AL]’s step five finding is

supported by substantial evidence.

Not was the VE’s explanation for the unidentified reaching conflict susceptible to

judicial review. As noted, the VE apparently tried to reconcile the fact that her testimony was

“somewhat outside the DOT” as to the “breakdown of teaching tight versus left,” by stating

that it was “consistent with [her] 25 plus yeats of doing [inaudible], talking with employers,

doing jobs, being in the industry.” (T't. at 66.) Again, however, it is far from cleat what all of

this means. Thete is no “breakdown” tegatding “reaching right versus left” in the VE’s

testimony of in the ALJ’s decision. While a VE may resort to personal experience to explain

why het opinion remains teliable despite an apparent conflict with the DOT, see, e.g., Allen

v. Berryhill, No. 1:17CV277, 2018 WL 2025666, at *6 (M-D.N.C. May 1, 2018) (Auld, □□□□□□

9 □

adopted Slip Op. (M.D.N.C. May 23, 2018) Biggs, J.), that explanation must itself be stated

clearly enough to be susceptible to judicial review. ¢

Moreover, the ALJ did not provide any analysis to help explain how this testimony was

interpreted and relied upon. In this regard, Pearson requires the AL] to determine both (1)

that the explanation was reasonable and (2) that it provided a basis for relying on the expert’s

testimony rather than the DOT. Peatson v. Colvin, 810 F.3d at 211. Here, the ALJ did not

address the DOT conflict at all, and instead found that “the vocational expert’s testimony is

consistent with the information contained in the Dictionary of Occupational Titles (DOT).”

(Tr. at 24.) Thus, the ALJ did not resolve the ambiguity in the VE’s testimony, ot otherwise

identify the conflict and determine that there was a teasonable basis for relying on the VE’s

testimony tather than the DOT.’

Thus, the Court concludes that there is simply insufficient analysis and explanation to

reasonably allow for judicial review, either in the VE’s identification of the apparent conflict,

6 This case, therefore, stands in contrast to another case recently decided in this district, Allen v. Berryhill, No.

1:17CV277, 2018 WL 2025666. Allen involved an appatent conflict between (1) VE testimony that a claimant

could not teach ovethead with her left, non-dominant upper extremity and (2) DOT job descriptions involving

jobs requiting either frequent or occasional reaching. See Allen, 2018 WL 2025666, at *6. The VE in Allen,

however, unlike the VE in this case, “expressly acknowledged that the DOT neither differentiated between

unilateral and bilateral reaching, nor specifically addressed the ditection of reaching involved” and then properly

“relied on his own professional experience to opine that an individual who could not reach overhead with the

left, non-dominant arm could still perform all three of the jobs in question.” Id. at 6. That analysis was not

included in the present case, either by the ALJ or the VE.

7 This failure is further compounded by the fact that the ALJ did not provide any analysis regarding how or

why he included the chosen limitations for reaching, handling, and fingering. In this regard, the ALJ concluded

that as a result of his impairments, Plaintiff had difficulties with prolonged standing, walking and sitting, and

the AL] included related limits on those activities. (Tr. at 22.) The ALJ also found that Plaintiff “should be

able to lift and carry light objects.” (Tr. at 22.) However, the AL] did not include any analysis regarding

Plaintiff's limitations on teaching, handling, and fingering. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir.

2018) (holding that an ALJ must “both identify evidence that supports his conclusion and build an accurate

and logical bridge from [that] evidence to his conclusion.”).

10

in the VE’s explanation for why that appatent conflict could be disregarded, or in the AL]’s

own analysis set out in the decision. Remand is therefore in order.

The Court also notes that, given the jobs identified by the VE, the failure to sufficiently

address the issue is not harmless. In this regard, the Court notes that the Sorter job identified

by the VE (Tt. at 65) requites that the worker “Picks stems, stones, metal, ot wood not

eliminated by trash-picking machine from conveyor to prevent damage to beet knives. May

ttim tops from beets to prevent clogging of knives in slicers.” Picking-Table Worker, 521.687-

102, 1991 WL 674230. The DOT description of Linen Grader indicates that a worker in this

job “[g]rades laundered towels and similar linens according to quality, condition, and kind of

item. Ties them into bundles of specified size or number of articles and records contents of

each bundle. Stores bundles in bins for delivery to customers of linen-rental service.’ Linen

Grader, 361.687-022, 1991 WL 672993. Absent a meaningful explanation by the VE, it is

difficult to imagine how a worker could perform these tasks if limited to occasional reaching

with his dominant uppet extremity, meaning reaching no more than one-third of an eight hour

wotkday. See e.g., Lawson v. Berryhill, No. CV TJS-17-0486, 2018 WL 1135641, at *3 (D.

Md. Mar. 1, 201 8) “Tt is difficult to imagine how a person [limited to occasional use of the

non-dominant hand] could hang drapes or move furniture on a full-time basis relying almost

solely on the use of his nondominant arm and hand. It may be that the housekeeper occupation

does not usually requite persons to complete these tasks, and the VE could have explained

this to the ALJ. But the ALJ made no such inquiry and the VE gave no such explanation. The

same goes for the occupations of packet and marker, both of which require at least frequent

reaching and handling.”). ‘The VE in this case testified that het testimony was “somewhat

11

outside the DOT” as to the “breakdown of teaching right versus left,” by stating that it was

“consistent with [her] 25 plus yeats of doing [inaudible], talking with employers, doing jobs,

being in the industry.” This is not sufficient information for the ALJ to conclude that there is

a teasonable explanation for the conflict between the VE’s testimony and the DOT.®

The remaining position of mail sorter is equally problematic. First, like the previous

two jobs addressed above, the DOT job desctiption for mail sorter seems—absent a

meaningful explanation—facially at odds with the performance of frequent reaching.’ Second,

8 The Court notes that the analysis was further confused when the VE initially identified the occupation as

“Folder,” but then switched to “Linen Grader,” and the ALJ later combined the occupations by referring to

the Linen Grader position as “Linen Folder.” (Tr. At 65, 24.) While Linen Folder is not an actual occupation

provided by the DOT, “Folder” is a position under the Laundry, Cleaning, Dyeing and Pressing Industry

umbrella of the DOT. The Folder position also lists frequent reaching as a requirement. The DOT described

the Folder position as follows:

Folds fluff-dried or pressed laundry, such as shitts, towels, uniforms, and

jackets: Shakes out, smooths, folds, sorts, and stacks wash according to

identification tags. Inspects pressed laundry for holes or tears, and separates

defective articles for transfer to repait department. Folds laundry, preparatory

to wrapping, for delivery to customer. Folds pressed shirts around cardboard

forms and inserts assembly in plastic bags. May attach missing buttons to

atticles, using button-sewing-machine or button-attaching machine. May

unload tumbler. May turn socks, match pairs, and tie socks into bundles. May

be designated according to type of laundry folded as Shirt Folder

369.687-018, 1991 WL 673072. :

9 The DOT described this position as follows:

Sorts incoming mail for distribution and dispatches outgoing mail: Opens

envelopes by hand or machine. Stamps date and time of receipt on incoming

mail. Sorts mail according to destination and type, such as returned letters,

adjustments, bills, orders, and payments. Readdresses undeliverable mail

bearing incomplete or incortect address. Examines outgoing mail for

appeatance and seals envelopes by hand or machine. Stamps outgoing mail

by hand or with postage meter. May fold letters or circulars and insert in

envelopes [FOLDING-MACHINE OPERATOR (clerical) 208.685-014].

May distribute and collect mail. May weigh mail to determine that postage is

cortect. May keep tecord of registered mail. May address mail, using

addressing machine [ADDRESSING-MACHINE OPERATOR (clerical)

208.582-010]. May be designated according to type of mail handled as Mail

Clerk, Bills (clerical).

209.687-026, 1991 WL 671813.

12

as Plaintiff correctly points out (Pl’s Br. at 14-15), according to the DOT, the mail sorter

position also requites a Reasoning Level of 3, 209.687-026, 1991 WL 671813, and Plaintiff was

limited to the performance of simple, routine, and repetitive tasks (Tr. at 19). Judges in this

Disttict have repeatedly held that this too is an apparent conflict that the VE must address.

See, e.g., Mullis v. Colvin, No. 1:11CV22, 2014 WL 2257188 (M.D.N.C. May 29, 2014)

(Osteen, C.J.) (finding an apparent conflict between an RFC limitation to simple, routine,

repetitive tasks at a low production pace and low stress environment and a VE’s testimony

that Plaintiff could perform a job to which the DOT assigned a Reasoning Level of 3). And,

although no party mentions this, the Fourth Circuit recently held that thete is an apparent

conflict “between a limitation to short and simple instructions and Reasoning Development

Level 3 occupations.” Keller v. Berryhill, 2018 WL 6264813, at *4 (4th Cir. Nov. 29, 2018).

Here, neither the VE nor the ALJ identified or reconciled this apparent conflict. And,

in fact, a review of the transcript of the administrative hearing reveals an even more

fundamental problem: none of the hypothetical questions the ALJ put to the VE included

Plaintiffs limitation to performing no mote than simple, routine, and tepetitive tasks. (It. at

64-66.) This omission also requites remand because the VE never considered whether a

claimant limited to simple, routine, repetitive tasks could perform the three jobs in question.

See Walker v. Bowen, 889 F.2d 47, 50-51 4th Cir.1989) (“In order fot a vocational expert’s

opinion to be relevant or helpful, it must be based upon a consideration of all other evidence

in the record, and it must be in response to proper hypothetical questions which fairly set out

all of claimant’s impairments.”) (citations omitted); see also McGlothlin v. Berryhill, No.

13

LATCV998, 2018 WL 6111786, at *5 (M.D.N.C. Nov. 21, 2018) (“[T]his Court has specifically

held that simple, routine work is not synonymous with unskilled work.” (collecting cases)).

The Commissioner’s atguments to the conttary ate not persuasive. First, the

Commissioner does not agtee that the conflict identified and discussed herein is an apparent

conflict, but instead describes it as a “gap in the DOT’s evidence,” based on the fact that the

DOT does not address whether a given job can be performed bilaterally or unilaterally. (Def.’s

Br. at 9.) However, this is the same contention that was considered and rejected by the Fourth

Circuit in Pearson. Specifically, in Pearson, the RFC included a limitation to “occasional

overhead lifting/treaching using the nondominant upper extremity,” but the three occupations

identified by the vocational expert at step five all reflected “frequent reaching” in the DOT.

Peatson, 810 F.3d at 206. In Pearson, as in the present case, the Commissioner argued that

there was no apparent conflict between the general reaching restrictions in the DOT and the

nattow testtictions found by the ALJ. However, the Fourth Circuit concluded that this was

exactly the type of apparent conflict that required further explanation and resolution by the

ALJ. Likewise, this Court concludes that there is an apparent conflict here that the VE and

the AL] were obliged to identify and resolve. See also Boston v. Colvin, No. 4:14-CV-206-D,

2016 WL 721563, at *8 DNC. Feb. 2, 2016) (collecting cases holding that “the VE’s

ptoposal of a job that requires a frequency of reaching that a claimant cannot perform with

one of his atms creates a conflict with the DOT that the ALJ is required to tesolve”).

Second, referencing the quoted dialogue between the VE and the AL] set forth above,

the Commissioner contends that, “the ALJ and the VE identified the teaching issue that

existed in this situation.” (Def’s Br. [Doc. #13] at 8.) However, as explained, although the

14

VE mentioned a conflict telated to reaching, she never explained the specific details of this

conflict. The AL] also failed to interpret the testimony or tesolve the conflict. Thus, the

Coutt is left to speculate as to precisely what the VE meant in her ambiguous remarks about

the “breakdown” in “reaching left versus right,” which is not sufficient or appropriate on

judicial review.

Third, the Commissioner contends further that “[b]y characterizing [the VE’s|

testimony as ‘outside the DOT? the VE essentially highlighted the fact that the DOT does

not address whether its reaching requirements apply bilaterally or unilaterally.” (Def.’s Br. at

9.) The Commissioner reasons further that “[t]he VE confirmed that, despite being limited to

occasional teaching with his right atm, Plaintiff could still perform the three jobs identified —

ie., Plaintiff could use his left arm to perform the frequent reaching cited in the DOT. (Tr. at

66.) The VE explained that het conclusion was based on her 25 yeats of experience, including

talking with employers and being in the industry (I'r. 66).” (Def.’s Br. at 9.)

The Court does not find this argument persuasive. Nowhere in her testimony did the

VE state that Plaintiff “could use his left arm to perform the frequent reaching cited in the

DOT” and trequited by the three jobs the AL] concluded Plaintiff could perform. Instead,

what the VE said was that her testimony was “somewhat outside the DOT” with regards to

the “breakdown of teaching tight versus left.” (Tr. at 66.) Again, the Court concludes that it

would be unduly speculative to infet the former from the latter. And, in fact, the Fourth Circuit

has cautioned against performing such guesswork. See Pearson, 619 F.3d at 211 (concluding

that “[a]lthough we could guess what these occupations tequite in reality, it is the purview of

the ALJ to elicit an explanation from the expert as to whether these occupations do, in fact,

requite frequent bilateral overhead reaching.”’).

In summaty, it is clear that the VE in this case never meaningfully identified the conflict

at issue here, and there is no testimony or discussion that is susceptible to judicial review

explaining how the conflict was resolved. As discussed above, the Fourth Circuit clarified in

Peatson that the VE’s testimony can only provide substantial evidence to support the AL]’s

decision if the AL] received an explanation from the expert explaining the conflict and

detetmined both that the explanation was reasonable and that it provided a basis for relying

on the expett’s testimony rather than the DOT. ‘That analysis was not adequately performed

hete. Accordingly, this matter requites remand based on the analysis set out in Pearson.

None of this necessarily means that Plaintiff is disabled under the Act and the Court

expresses no opinion on that matter. Nevertheless, the Court concludes that the proper course

here is to remand this matter for further administrative proceedings. To the extent Plaintiff

taises any other issues in his motion, the Court declines consideration of any such issues at

this time. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D. Va. 2002) (on remand, the

ptior decision is of no preclusive effect, as it is vacated and the new hearing is conducted).

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be REVERSED, and that the matter be REMANDED to the Commissioner

under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand

the matter to the AL] for proceedings consistent with this Recommendation. this extent,

Defendant’s Motion for Judgment on the Pleadings [Doc. # 12] should be DENIED, and

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Plaintiffs Motion for Summary Judgment [Doc. # 10] should be GRANTED. However, to

the extent that Plaintiff's motion seeks an immediate awatd of benefits, it should be DENIED.

This, the 26th day of August, 2019.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

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