Josephine King v. Andrew Saul ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1556
JOSEPHINE M. KING,
Plaintiff - Appellant,
v.
ANDREW SAUL, Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:18-cv-00001-RJC)
Submitted: October 31, 2019 Decided: December 10, 2019
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George C. Piemonte, Charlotte, North Carolina, Perrie H. Naides, MARTIN, JONES &
PIEMONTE, Decatur, Georgia, for Appellant. R. Andrew Murray, United States Attorney,
Charlotte, North Carolina, Gill P. Beck, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina; Amy Rigney, Special
Assistant United States Attorney, Office of General Counsel, SOCIAL SECURITY
ADMINISTRATION, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Josephine M. King appeals from the district court’s order granting summary
judgment to Defendant in her civil action challenging the denial of disability benefits. On
appeal, King contends that the Administrative Law Judge erred in failing to address an
apparent conflict between King’s residual functional capacity (“RFC”) and the vocational
expert’s (“VE”) testimony. We affirm.
An ALJ in a disability-benefits case “has a duty to identify and resolve any apparent
conflicts between the DOT and a vocational expert’s testimony.” Lawrence v. Saul, __
F.3d __, 2019 WL 5445048, *2 (4th Cir. Oct. 24, 2019). Thus, the ALJ must ask the VE
whether his or her testimony conflicts with the DOT. However, even if the VE answers in
the negative, the ALJ “has a duty to independently identify and resolve any apparent
conflicts before relying on the expert’s testimony.” Id.In Pearson v. Colvin, 810 F.3d 204, 209 (4th Cir. 2015), we clarified that all
“apparent” conflicts must be identified and resolved—that is, “the ALJ must identify where
the expert’s testimony seems to, but does not necessarily, conflict with the [DOT].” We
held that “[a]n ALJ has not fully developed the record if it contains an unresolved conflict
between the expert’s testimony and the [DOT],” and the ALJ has not “fulfilled this duty if
he ignores an apparent conflict because the expert testified that no conflict existed.” Id. at
210.
In this case, the VE testified that, since King’s RFC included the ability to perform
simple, routine, repetitive tasks, she could work as a counter clerk. The Dictionary of
Occupational Titles (“DOT”) assigns Reasoning Level 2 to this position. Reasoning Level
2
2 is defined as the ability to “[a]pply 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.” 1991 WL 688702.
To assess whether an apparent conflict exists, we compare the DOT’s “express
language” with the VE’s testimony. Lawrence, 2019 WL 5445048 at *3. In our recent
decision in Lawrence, we ruled that there is no apparent conflict between a limitation to
“simple, routine, repetitive tasks” and the reasoning required by Level 2 occupations. Id.
& n. 8. Specifically, we ruled that “detailed instructions are, in the main, less correlated
with complexity than with length. Instructions often include many steps, each of which is
straightforward.” Id. We thus noted the same difference as outlined by the district court
in this case between the ability to perform tasks and the ability to understand instructions,
finding that it was possible to be limited in the former without being limited to the same
extent (or at all) in the latter. Further, simple tasks (such as driving directions) could have
detailed instructions. Id.
We find that Lawrence is controlling in this case and, thus, there was no apparent
conflict between a limitation to performing only simple routine repetitive tasks and a
position requiring the ability to understand and carry out detailed, but uninvolved,
instructions. * Accordingly, we affirm the judgment of the district court. We dispense with
*
King also argues that the ALJ failed to properly consider and evaluate her mental
limitations. However, King did not raise this issue in district court. As such, any argument
on this issue is waived, absent exceptional circumstances which King has not attempted to
show. See Zoroastrian Ctr. & Darb-E-Mehr of Metro. Washington, D.C. v. Rustam Guiv
Found. of N.Y., 822 F.3d 739, 753-54 (4th Cir. 2016).
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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.
AFFIRMED
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