LEA v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MIRANDA LEA, )

)

Plaintiff, )

)

v. ) 1:20CV1141

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security,! )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Miranda Lea (‘Plaintiff’) brought this action pursuant to Section 205(g) of the

Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a

final decision of the Commissioner of Social Security denying her claim for Disability

Insurance Benefits (“DIB”) under Title II 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 her application for DIB on June 1, 2018, alleging a disability

onset date of January 26, 2015. (Tr. at 20, 219-22.)? Her claim was denied initially (Tr. at 87-

105, 137-47), and that determination was upheld on reconsideration (Tr. at 107-33, 148-55).

1 Kilolo Kijakazi was appointed as the Acting Commissioner of Social Security on July 9, 2021. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew M. Saul

as the Defendant in this suit. Neither the Court nor the parties need take any further action 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 Administrative Record [Doc. #10].

Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative

Law Judge (“ALJ”). (Tr. at 157-58.) Plaintiff, along with her attorney and an impartial

vocational expert, attended a subsequent hearing on February 24, 2020. (Tr. at 20.) Following

the hearing, the AL] concluded that Plaintiff was not disabled within the meaning of the Act

(Tr. at 41), and, on November 23, 2020, the Appeals Council denied Plaintiffs request for

review of that decision, thereby making the AL]’s conclusion the Commissioner’s final

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

II. LEGAL STANDARD

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

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

scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.

Harris, 646 F.2d 143, 144 4th Cir. 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 ALJ [underlying the denial of benefits] if they are supported

by substantial evidence and were reached through application of the correct legal standard.”

Hancock v. Asttue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets 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. 1992)

(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

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

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

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], therefore, is not whether [the claimant] is disabled, but whether the

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

reached based upon a correct 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 in administrative proceedings,

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 result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” Id. (quoting 42 U.S.C.

§ 423(d)(1)(AY)-

Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program ... provides benefits to disabled persons who have contributed to the program while employed. The

Supplemental Security Income Program ... provides benefits to indigent disabled persons. The statutory

definitions and the regulations .. . for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).

“The Commissioner uses a five-step process 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 impairment; (3) had an impairment that met or equaled the

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

could perform any other 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 inquity. 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 each of the first two steps,

and establishes at step three that the impairment “equals or exceeds in severity one or more

of the impairments listed in Appendix I of the regulations,” then “the claimant is disabled.”

Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at

step three, i.e., “[i]f a clatmant’s impairment is not sufficiently severe to equal or exceed a listed

impairment, the AL] must assess the claimant’s residual function[al] capacity (RFC’).” Id. at

179.4 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can

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

at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’s

ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing

basis . . . [which] means 8 hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis

and quotation marks omitted)). The RFC includes both a “physical exertional or strength limitation” that

assesses the clatmant’s “ability to do sedentary, 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

“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 “requires the Commissioner to prove that a significant number of jobs

exist which the claimant could perform, despite [the claimant’s] 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 carty 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.

Ill. DISCUSSION

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

activity” since January 26, 2015, her alleged onset date. Plaintiff therefore met her burden at

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

Plaintiff suffered from the following severe impairments:

degenerative disc disease, right knee patella chondromalacia, tight knee

meniscus teat, obesity, bipolar disorder, depression, and anxiety|.|

(T'r. at 22.) The ALJ found at step three that none of these impairments, individually or in

combination, met or equaled a disability listing. (Tr. at 25-27.) Therefore, the AL] assessed

Plaintiff's RFC and determined that Plaintiff could perform light work

determined by the ALJ only after [the ALJ] considers all relevant evidence of a claimant’s impairments and any

related symptoms (e.., pain).” Hines, 453 F.3d at 562-63.

except she requires the flexibility to alternate between sitting, standing, and

walking within a 30-minute time frame without leaving work tasks. She can

frequently climb ramps and staits; occasionally climb ladders, ropes, and

scaffolds; and occasionally stoop, kneel, crouch, and crawl. She can work in a

moderate noise level and can tolerate occasional exposure to vibration and

hazards. [Plaintiff] is able to understand and follow short, simple instructions

and can sustain concentration, persistence, and pace in two-hour increments.

Lastly, changes in the work environment can be introduced occasionally.

(Tr. at 27.) At step four of the analysis, the AL] determined that all of Plaintiffs past relevant

wotk exceeded her RFC. (Tr. at 39.) Nevertheless, the AL] determined at step five that, given

PlaintifPs age, education, work experience, RFC, and the testimony of the vocational expert

as to these factors, she could perform other jobs available in the national economy. (It. at

40.) Therefore, the AL] concluded that Plaintiff was not disabled as defined by the Act. (Tr.

at 41.)

Plaintiff now contends that the AL] erred in two respects. First, Plaintiff argues that,

in formulating her RFC, the ALJ failed to account for Plaintiffs moderate limitations in

concentration, persistence, and pace in the RFC assessment in accordance with Mascio v.

Colvin, 780 F.3d 632 (4th Cir. 2015). Second, Plaintiff challenges the AL]’s step five

determination, arguing that the ALJ failed to identify and provide a reasonable explanation for

a conflict between the vocational expert’s testimony and the Dictionary of Occupational Titles

(‘DOT’). After a thorough review of the record, the Court finds that PlaintifPs second

contention requires remand

As set out above, in this case the AL] found, in pertinent part, that Plaintiff was able

to “understand and follow short, simple instructions.” (Tr. at 27, 74.) The AL] then asked

the Vocational Expert (“VE”) to identify jobs that could be performed by a hypothetical

individual with these mental restrictions. The VE testified that such an individual could

perform light, unskilled jobs such as Office Helper, DOT 239.567-010, Router, DOT 222.587-

038, and Photocopying Machine Operator, DOT 207.685-014. Ultimately, the AL] relied on

the VE’s testimony at step five of the sequential analysis to find Plaintiff capable of performing

the cited jobs. However, Plaintiff now contends that all of the occupations identified by the

VE at step five require a Reasoning Level in the Dictionary of Occupational Titles that exceeds

the mental limitations set out in the RFC.

The Fourth Circuit Court of Appeals has recognized that the AL] has an affirmative

duty to make an independent identification of apparent conflicts between VE testimony and

the provisions of the Dictionary of Occupational Titles (“DOT”), regardless of whether a

conflict is identified by the VE. Pearson v. Colvin, 810 F.3d 204, 208-09, 210 (4th Cir. 2015).

In Pearson, because of an appatent conflict between the VE’s testimony and the DOT,

remand was required so that the ALJ could elicit a reasonable “explanation from the expert”

before relying on the expert’s testimony. Id. at 208-209, 211. As explained by the Fourth

Circuit in Pearson with regard to the limitation on reaching at issue in that case:

Deciding that the vocational expert’s testimony apparently conflicts with the

Dictionary here does not mean that an ALJ must find Pearson, or any other

claimant with this limitation, unable to perform these jobs. Rather, it simply

means that the ALJ and the expert should address exactly what form of reaching

the stated occupations require and whether the claimant can fulfill those

requirements. As the Seventh Circuit put it, “this is exactly the sort of

inconsistency the ALJ should have resolved with the expert’s help.” Prochaska,

454 F.3d at 736 (remanding the case for the AL] to determine whether the

vocational expert’s testimony conflicted with the Dictionary because “the AL]

asked the expert for work that could be done by someone who could only

‘occasionally reach above shoulder level’ while a cashier's requirements, under

the [Dictionary ], include ‘reaching’ frequently”).

Directly addressing this conflict is important because even if some motel

cleaners, cashiers, and bench press operators need not frequently teach

ovethead with both arms, the number of positions in the national economy

without this requirement matters. An AL] can only find a claimant not disabled

at step five of the analysis if the Commissioner proves that the claimant can

perform other work that “exist[s] in significant numbers in the national

economy.” 20 C.F.R. § 404.1560(c). So it is not enough that some positions

exist in which the worker need not frequently reach overhead with both arms.

The vocational expert must testify to how many of these positions do not

requite frequent bilateral overhead reaching. Likely at least some have this

requirement. If there are a sufficient number of these positions that do not

require frequent bilateral overhead reaching, the ALJ can properly find Pearson

not disabled. If too many do have this requirement, the ALJ will necessarily find

that Pearson cannot do work that exists in significant numbers in the national

economy.

Id.

In 2019, in Thomas v. Berryhill, the Fourth Circuit applied the principles articulated in

Pearson as they related to the DOT’s Reasoning Development scale. See ‘Thomas v. Berryhill,

916 F.3d 307, 314 (4th Cir. 2019), as amended (Feb. 22, 2019). That scale has six levels—

Level 1 requires the least reasoning ability, and Level 6 requires the most reasoning ability. See

DOT, App. C, 1991 WL 688702.° The DOT assigns a Reasoning Development Level to each

occupation identified therein. In ‘Thomas, the vocational expert identified three jobs, all with

5 Reasoning Levels 1 through 3 are defined as follows:

LEVEL 3

Apply commonsense understanding to carry out instructions furnished in written, oral, or

diagrammatic form. Deal with problems involving several concrete variables in or from

standardized situations.

LEVEL 2

Apply commonsense understanding to carry out detailed but uninvolved written or oral

instructions. Deal with problems involving a few concrete variables in or from standardized

situations.

LEVEL 1

Apply commonsense understanding to carry out simple one-or two-step instructions. Deal

with standardized situations with occasional or no variables in or from these situations

encountered on the job.

U.S. Dept. of Labor, DOT, App. C, available at 1991 WL 688702.

a Reasoning Level of 2, “requir[ing] employees to ‘carry out detailed but uninvolved written

or oral instructions.’ By compatison, Thomas’s RFC limit[ed] her to jobs that involve only

‘short, simple instructions.’ ” Thomas, 916 F.3d at 314 (internal citations omitted). The Fourth

Circuit explained:

An ALJ cannot rely unquestioningly on a VE’s testimony. Rather, an ALJ must

ensute that any “apparent” conflicts between the Dictionary and the VE’s

testimony ate 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 AL] 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.

The VE’s testimony in this case contains a comparable conflict with the DOT.

After being informed of Thomas’s RFC, the VE testified that Thomas was

capable of holding three jobs: marker, final inspector, and order caller. [T]he

DOT states that all three of the jobs identified by the VE require employees to

“carry out detailed but uninvolved written or oral instructions... .” DOT

209.587-034, 1991 WL 671802; DOT 727.687-054, 1991 WL 679672; DOT

209.667-014, 1991 WL 671807. By comparison, Thomas’s RFC limits her to

jobs that involve only “short, simple instructions.”

We believe that Thomas, being limited to short, simple instructions, may not be

able to carry out detailed but uninvolved instructions. This is not a categorical

rule—some instructions, particularly if they are well-drafted, may be

simultaneously short, simple, detailed, and uninvolved. Even so, the conflict

between Thomas’s limitation to short, simple instructions and the VE’s

testimony that Thomas could perform jobs that include detailed but uninvolved

instructions is as apparent as the conflict we identified in Pearson. Since we held

that an apparent conflict existed in Pearson, we are satisfied that one exists in

this case, too. We remand so that the AL] can resolve the conflict in accordance

with the Administration’s regulations.

Id. at 313-314.

Consequently, in ‘Thomas, the Fourth Circuit held that there was an apparent conflict

between jobs requiring Level 2 reasoning and a limitation to “short, simple instructions.” Id.;

also Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019) (“In Thomas v. Berryhill, this

found an apparent conflict between the claimant’s residual functional capacity, which

limited her to jobs involving ‘short, simple instructions,’ and Level 2’s concept of ‘detailed but

uninvolved instructions.”’). Since reasoning levels ascend in levels of complexity, Thomas

therefore stands for the proposition that there is an apparent conflict between jobs requiting

Level 2 reasoning or higher and a limitation to “short, stmple instructions.”

In the present case, as in Thomas, both the AL]’s RFC determination and the

hypothetical to the VE limited the claimant to “understand[ing] and follow[ing] short, simple

instructions.” (Ir. at 27, 74.) Yet, as in ‘Thomas, all of the jobs identified by the VE and cited

by the ALJ at step five of the sequential analysis require Level 2 reasoning or higher and,

therefore, involve carrying out at least “detailed but uninvolved written or oral instructions.”

(Tr. at 40, 74 (referencing Office Helper, DOT 239.567-010, 1991 WL 672232 (“Reasoning:

Level 2 - Apply commonsense understanding to carry out detailed but uninvolved written or

otal instructions. Deal with problems involving a few concrete variables in or from

standardized situations.”); Router, DOT 222.587-038, 1991 WL 672123 (same));

Photocopying Machine Operator, DOT 207.685.014, 1991 WL 671745) (same)).)

Accordingly, as in Thomas, the AL] in this case was faced with an apparent conflict between

the testimony of the VE and the DOT and, as a result, had an independent and affirmative

duty to resolve this apparent conflict.

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Notably, in the present case, immediately after the VE identified the three jobs cited in

the ALJ’s decision, the following, brief exchange took place:

[AL]:] Consistent with the DOT?

[VE:] Short, simple instructions, concentration, attention, pace two-hour

intervals, occasionally changes. As experienced education and training.

(Tt. at 74.) The AL] thereafter translated the VE’s response as follows:

The DOT does not address the performance of simple instructions; sustaining

concentration, persistence, or pace; changes in the work environment; or

adjusting positions. However, Ms. Brinson stated that her testimony in those

tegatds is based on her experience, education, and training in the field of

vocational analysis. While the vocational expert’s testimony is not fully

consistent with the information contained in the DOT, there is a reasonable

explanation for the discrepancy and, therefore, her testimony is accepted in

accordance with Social Security Ruling 00-4p.

(Tr. at 40 (emphasis added).) Relying on the ALJ’s assertion that the DOT does not address

the performance of simple instructions, Defendant in the briefing argues that there is “no

apparent, unresolved conflict with respect to the office helper, router, and photocopy machine

opetator positions identified by the VE” because “[t]he DOT does not address the

performance of simple instructions.” (Def.’s Br. [Doc. #17] at 12.) Defendant appears to

argue that there is no conflict with the DOT, or alternatively, to the extent that a discrepancy

exists, the AL] provided a reasonable explanation for accepting the VE’s testimony anyway.

However, as set out above, the DOT expressly includes reasoning level requirements

for every job it lists, defined in terms of the complexity and nature of the required instructions.

These requirements clearly belie Defendant’s contention that the DOT does not address the

ability to follow short, simple instructions. Indeed, as set out above, the Fourth Circuit has

specifically held that the DOT does address the ability to carry out instructions, as set out in

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the Reasoning Levels, and the Fourth Circuit has further held that DOT Reasoning Level 2 is

in apparent conflict with a limitation to short, simple instructions. See Thomas, 916 F.3d at

313-14. The Fourth Circuit in Lawrence v. Saul further clarified that a DOT Reasoning Level

2 is not in apparent conflict with a limitation to simple instructions, but it is still in conflict

with a limitation to short instructions. Lawrence, 941 F.3d at 143 (“Even assuming that ‘tasks’

and ‘instructions’ are synonymous, the key difference is that Thomas was limited to ‘short’

instructions. ‘Short’ is inconsistent with ‘detailed’ because detail and length are highly

cortelated.”) The ALJ in the present case stated that the DOT did not address the

performance of simple instructions (Tr. at 40), but the ALJ did not reference or address at all

the apparent conflict with the RFC limitation to short instructions. Thus, the AL]’s

assessment was incomplete at best. Further, the fact that the AL] asked the VE whether her

findings were consistent with the DOT, recetved an answer with partially erroneous

information, and then included an incomplete repetition of that erroneous information in her

decision does not fulfill the AL]’s duty under Pearson and its progeny to identify and provide

a reasonable explanation for conflicts. From the record and the decision of the AL], it is

unclear whether the ALJ incorrectly believed that a Reasoning Level 2 was completely

consistent with the RFC restriction to short, simple instructions, or instead understood that

there was at least some apparent inconsistency between the two. Further, even if the ALJ did

understand that there was some appatent inconsistency, it is not clear if the VE understood

the inconsistency, or how that inconsistency was resolved. The AL] noted that the VE

testified based on her experience, education, and training in the field of vocational analysis,

but it is not clear from the testimony or the AL]’s decision whether the VE believed that all

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the identified positions involved only short, simple instructions notwithstanding the DOT

Reasoning Levels, either reflecting an outright disagreement with the DOT’s assignment of

Reasoning Levels or a determination that the identified positions involved simultaneously

short, simple, detailed and uninvolved instructions, or whether there was some smaller,

unidentified number of positions that involved only short, stmple instructions, or whether in

her training and experience the inconsistency could be resolved in some other way. This lack

of clarity and explanation leaves the Court unable to determine whether or how the apparent

conflict was resolved. As explained in Pearson, an ALJ “has not fully developed the record if

it contains an unresolved conflict between the [VE’s] testimony and the Dictionary [of

Occupational Titles|.” Pearson, 810 F.3d at 210.

Notably, Defendant’s brief completely omits any reference to Reasoning Levels or to

the direct applicability of the Fourth Circuit’s holding in Thomas, and the Court is therefore

left without any analysis or authority from Defendant addressing this issue within the Fourth

Circuit’s framework. Based on the information presently before the Court, the Court finds

that the ALJ in this case did not sufficiently address the apparent conflict between Plaintiffs

limitation to “short, simple instructions” and the Reasoning Level of the jobs identified at step

five. (Ir. at 40, 74.) Because the ALJ in this case did not address this apparent conflict

between the VE’s testimony and the DOT, it remains unresolved and—consistent with the

outcome in Thomas—temand is necessary.

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

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

here is to remand this matter for further administrative proceedings. At this time, the Court

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need not consider the additional issue raised by Plaintiff, as the ALJ on remand will have the

opportunity to consider all of the evidence and Plaintiffs contentions in making a

determination.

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). Defendant’s Motion for Judgment on the Pleadings

[Doc. #16] should be DENIED, and Plaintiff's Motion for Judgment on the Pleadings [Doc.

#12] should be GRANTED to the extent set out herein.

This, the 26% day of January, 2022.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

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