Terry Rholetter v. Carolyn Colvin

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-1424

TERRY BOYD RHOLETTER,

Plaintiff - Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Robert J. Conrad, Jr., District Judge. (2:14-cv-00005-RJC)

Submitted: January 28, 2016 Decided: February 16, 2016

Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion.

Paul B. Eaglin, OLINSKY LAW GROUP, Syracuse, New York, for Appellant. Jill Westmoreland Rose, United States Attorney, Mark J. Goldenberg, Special Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Terry Boyd Rholetter appeals the district court’s order

granting summary judgment to the Commissioner and upholding the

Commissioner’s denial of Rholetter’s application for disability

insurance benefits. Upon review, we reverse and remand with

instructions.

I.

“When examining [a Social Security Administration]

disability determination, a reviewing court is required to

uphold the determination when an ALJ has applied correct legal

standards and the ALJ’s factual findings are supported by

substantial evidence.” Bird v. Comm’r of Soc. Sec. Admin., 699

F.3d 337, 340 (4th Cir. 2012). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650,

653 (4th Cir. 2005) (internal quotation marks omitted). “It

consists of more than a mere scintilla of evidence but may be

less than a preponderance.” Hancock v. Astrue, 667 F.3d 470,

472 (4th Cir. 2012) (internal quotation marks omitted). “In

reviewing for substantial evidence, we do not undertake to

reweigh conflicting evidence, make credibility determinations,

or substitute our judgment for that of the ALJ.” Johnson, 434

F.3d at 653 (internal quotation marks and alteration omitted).

2 Rather, “[w]here conflicting evidence allows reasonable minds to

differ,” we defer to the Commissioner’s decision. Id. (internal

quotation marks omitted). To enable judicial review for

substantial evidence, “[t]he record should include a discussion

of which evidence the ALJ found credible and why, and specific

application of the pertinent legal requirements to the record

evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir.

2013).

A “disability” entitling a claimant to benefits under the

Social Security Act, as relevant here, is “[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.” 42 U.S.C. § 423(d)(1)(A) (2012). The claimant “bears

the burden of proving that he is disabled within the meaning of

the Social Security Act.” English v. Shalala, 10 F.3d 1080,

1082 (4th Cir. 1993). A five-step sequential process is used to

evaluate a disability claim. See 20 C.F.R. § 404.1520(a)(4)

(2015). First, the ALJ considers whether the claimant is

engaged in substantial gainful activity. Id.

§ 404.1520(a)(4)(i). If he is not, the ALJ determines whether

the claimant has “a severe medically determinable physical or

3 mental impairment . . . or combination of impairments that is

severe.” Id. § 404.1520(a)(4)(ii). If he does, the ALJ decides

whether that impairment or combination of impairments meets or

equals one of the listings at 20 C.F.R. Pt. 404, Subpt. P,

App. 1. Id. § 404.1520(a)(4)(iii). If it does not, the ALJ

assesses the claimant’s residual functional capacity (“RFC”) to

determine whether the claimant retains the ability to perform

past relevant work. Id. § 404.1520(a)(4)(iv). If he does not,

the burden shifts at the fifth step to the Commissioner to

establish that, given the claimant’s age, education, work

experience, and RFC, the claimant can perform alternative work

that exists in significant numbers in the national economy. Id.

§ 404.1520(a)(4)(v); Mascio v. Colvin, 780 F.3d 632, 635 (4th

Cir. 2015). “The Commissioner typically offers this evidence

through the testimony of a vocational expert responding to a

hypothetical that incorporates the claimant’s limitations.”

Mascio, 780 F.3d at 635.

II.

The ALJ found that Rholetter had not engaged in substantial

gainful activity since his alleged onset date and that he

suffered from severe impairments including below right knee

amputation, coronary artery disease, lumbar compression

deformity with loss of vertebral height, diverticulitis, and

4 obesity. The ALJ found that Rholetter did not have an

impairment that met or equaled one of the listed impairments

found at 20 C.F.R. Pt. 404, Subpt. P, App. 1. Finding that

Rholetter could no longer perform his past relevant work, the

ALJ relied on the testimony of a vocational expert to conclude

that Rholetter retained the RFC to perform jobs that exist in

the national economy and was, therefore, not disabled.

III.

Rholetter argues on appeal that the ALJ failed to reconcile

inconsistencies between the expert’s testimony and the

Dictionary of Occupational Titles (“DOT”). Specifically,

Rholetter argues that the expert testified that he could perform

three jobs, all of which carry a Language Development Level of

two, despite an RFC limiting him to jobs that can be performed

by someone reading and/or writing at a firstor second-grade

level. Reading between the first- and second-grade level

generally corresponds to reading at a Language Development Level

of one. See Hernandez v. Colvin, No. 13 CV 1955, 2014 WL

4784076, at (N.D. Ill. Sept. 25, 2014) (expert testified that

Level 1 language requirement translates to reading between

firstand third-grade levels); Lowe v. Astrue, No. 09 CV 4150,

2010 WL 4684036, at (N.D. Ill. Nov. 12, 2010) (expert

5 testified that DOT language classifications of Levels 1 and 2

conflicted with claimant’s first-grade reading level).

Social Security Ruling (“SSR”) 00–4p provides that the ALJ

“has an affirmative responsibility to ask [the vocational

expert] about any possible conflict between [his] evidence and

. . . the DOT.” SSR 00-4p, 2000 WL 1898704, at (Dec. 4,

2000). Thus, the ALJ must ask the expert if his testimony

conflicts with the DOT and, if the evidence appears to conflict,

the ALJ must “obtain a reasonable explanation for the apparent

conflict.” Id. The ALJ must resolve the conflict before

relying on the expert’s testimony and must explain the

resolution of the conflict in his decision. Id.

In the recent decision of Pearson v. Colvin, __ F.3d __,

2015 WL 9204335 (4th Cir. Dec. 17, 2015), decided after the

district court’s judgment in this case, we held that the “ALJ

independently must identify conflicts between the expert’s

testimony and the [DOT].” Id. at . SSR 00-4p “requires

nothing of the claimant,” so Rholetter’s failure to raise the

conflict at the hearing does not preclude a finding that an

apparent conflict exists. Id. at .

In addition, we held in Pearson that an expert’s testimony

that apparently conflicts with the DOT can only provide

substantial evidence if the ALJ received an explanation from the

6 expert explaining the conflict and determined both that the

explanation was reasonable and that it provided a basis for

relying on the expert’s testimony rather than the DOT. See 2015

WL 9204335 at . Noting that a social security hearing is not

adversarial, we decided that an ALJ has not fully developed the

record if the record contains an unresolved conflict between the

expert’s testimony and the DOT. See id. We determined that,

because there was no explanation regarding the apparent

conflict, there was no reasonable basis for relying on the

expert’s testimony, and, thus, the testimony could not provide

substantial evidence for a denial of benefits. See id.

We conclude here that, on the basis of Pearson, the ALJ

erred, first, by not asking the expert about conflicts between

his testimony and the DOT and, second, by relying on the

expert’s testimony despite the expert’s failure to explain an

apparent conflict between an RFC that limits Rholetter to

reading at a first- or second-grade level and the DOT’s

classification of the jobs identified by the expert as requiring

a Language Development Level of two. Thus, under Pearson, the

expert’s testimony in this case did not provide substantial

evidence that there was work that Rholetter could do given his

RFC. Accordingly, we reverse the district court’s conclusion

that substantial evidence supported the ALJ’s finding that work

7 that Rholetter could perform existed in significant numbers in

the national economy, and we direct the district court to remand

the case to the Commissioner with instructions to consider the

impact of Pearson.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

REVERSED AND REMANDED

8