Jonathan Henderson v. Carolyn Colvin , 643 F. App'x 273 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1437
JONATHAN EUGENE HENDERSON,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security
Administration,
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-00003-RJC)
Submitted: December 29, 2015 Decided: April 5, 2016
Before KING, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Paul B. Eaglin, OLINSKY LAW GROUP, Syracuse, New York, for
Appellant. Jill Westmoreland Rose, Acting United States
Attorney, Mary Ellen Russell, Special Assistant United States
Attorney, Paul B. Taylor, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Eugene Henderson appeals from the district court’s
order granting summary judgment to the Commissioner and finding
that substantial evidence supported the Administrative Law
Judge’s (“ALJ”) determination that Henderson was not disabled
under the standards set forth in 42 U.S.C. § 405(g) (2012).
Upon review, we affirm in part and reverse and remand with
instructions in part.
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, 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, [the court should] not undertake to
reweigh conflicting evidence, make credibility determinations,
2
or substitute [its] judgment for that of the ALJ.” Johnson, 434
F.3d at 653 (internal quotation marks and alteration omitted).
Rather, “[w]here conflicting evidence allows reasonable minds to
differ,” we defer to the ALJ’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. If not, the ALJ
determines whether the claimant has “a severe medically
3
determinable physical or mental impairment . . . or a
combination of impairments that is severe.” 20 C.F.R.
§ 404.1520(a)(4). If so, the ALJ decides whether that
impairment or combination of impairments meets or equals one of
the listings at appendix 1. 20 C.F.R. § 404.1520(d) (2015). If
not, the ALJ assesses the claimant’s residual functional
capacity (“RFC”) to determine whether he retains the ability to
perform past relevant work. 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 substantial
numbers in the national economy. 20 C.F.R. § 404.1520(a)(4)(i)-
(v); Hines v. Barnhart, 453 F.3d 559, 567 (4th Cir. 2006)
(noting Commissioner bears evidentiary burden at step five).
II.
The ALJ found that Henderson had not engaged in substantial
gainful activity since his alleged onset date and that he
suffered from severe impairments including degenerative disc
disease and borderline intelligence. The ALJ found that
Henderson 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. On appeal, Henderson first contends that he meets the
4
requirements of Medical Listing 12.05(C) and that the ALJ
erroneously failed to consider that listing.
Listing 12.05(C) requires a showing of “significantly
subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22” (“Prong One”);
“[a] valid verbal, performance, or full scale IQ of 60 through
70” (“Prong Two”); and “a physical or other mental impairment
imposing an additional and significant work-related limitation
of function” (“Prong Three”). 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 12.05. The Commissioner does not contest Henderson’s
ability to establish Prong Three but argues that he cannot
establish either Prong One or Two.
Because we find that Henderson cannot satisfy Prong Two, we
do not reach Prong One. In Prong Two, Henderson had the burden
to satisfy Listing 12.05(C) by providing a valid IQ score within
the required range. Hancock, 667 F.3d at 475. The only IQ
score in the record is provided by Dr. Karen Marcus, Clinical
Psychologist, who performed a psychological evaluation of
Henderson in 2011. Dr. Marcus reported that Henderson’s full
scale IQ score on the Wechsler Adult Intelligence Scale-IV was
65. However, Dr. Marcus noted that Henderson’s processing speed
had a negative impact upon his IQ score, and she concluded that
5
Henderson had a learning disorder, but that his intelligence was
in the borderline to low average range, rather than the
extremely low range suggested by his IQ score.
“[T]he results of intelligence tests are only part of the
overall assessment [and] the narrative report . . . should
comment on whether the IQ scores are considered valid and
consistent with the developmental history and the degree of
functional limitation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00(D)(6)(a). Given that the testing examiner expressed
concerns with the validity of the only IQ test in the record, we
conclude that the ALJ did not err in concluding that Henderson
did not meet the criteria of Listing 12.05(C). * See Hancock, 667
F.3d at 474 (holding that ALJ has the discretion to assess the
validity of an IQ test result and is not required to accept it
even if it is the only test in the record).
* Henderson also contends that the ALJ erred in requiring a
specific diagnosis of intellectual disability. However, the ALJ
did not require such a diagnosis; instead, the ALJ noted that
there was no diagnosis as one of many factors in concluding that
Henderson had failed to satisfy the requirements of the Listing
12.05(C). Henderson also avers that he was granted Medicaid
benefits by the North Carolina Department of Health and Human
Services on the basis of meeting the requirements of Listing
12.05(C). However, as the district court found, there was no
evidence that the state hearing officer was an acceptable
medical source.
6
III.
Henderson next contends that the ALJ erred in failing to
conclude that he met Listing 1.04 for disorders of the spine. A
claimant is entitled to a conclusive presumption that he is
disabled if he can show that his disorder results in compromise
of a nerve root or the spinal cord. 20 C.F.R. Part 404, Subpart
P, App. 1, § 1.04. Listing 1.04(A) further describes the
criteria a claimant must meet or equal to merit a conclusive
presumption of disability arising out of compromise of a nerve
root or the spinal cord: evidence of nerve root compression
characterized by (1) neuro-anatomic distribution of pain, (2)
limitation of motion of the spine, (3) motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower
back, (4) positive straight leg raising test (sitting and
supine). Henderson bore the burden of demonstrating that his
impairment met or equaled the listed impairment. Kellough v.
Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986).
We find that the ALJ properly determined that Henderson did
not have the prerequisite findings of nerve root compression,
including motor loss accompanied by sensory or reflex loss.
Henderson avers that he produced evidence of motor loss
(exhibited muscle weakness), sensory loss (decreased reflexes),
and positive straight leg raising tests. However, Henderson
7
provided no evidence of atrophy, and his evidence of muscle
weakness—a lone clinical finding that his leg strength was
“4+/5”—fails to undercut the substantial conflicting evidence in
the record that his strength was consistently “5/5,” “stable,”
or “normal.” Accordingly, the district court properly found
that the ALJ’s conclusion that Henderson did not meet the
Listing was supported by substantial evidence.
IV.
Finally, Henderson argues that the vocational expert’s
(“VE”) testimony was flawed because it created a possible
conflict with the Dictionary of Occupational Titles (“DOT”) and
that the ALJ failed to resolve the conflict. Specifically,
Henderson claims that the VE testified that Henderson could
perform certain specified jobs despite an RFC that limited him
to performing simple one-to-two step tasks with low stress.
However, Henderson asserts that such testimony conflicted with
the DOT, which states that the listed jobs carry a GED Reasoning
Code 2. Unlike GED Reasoning Code 1, which requires the ability
to “[a]pply commonsense understanding to carry out simple one-
or two-step instructions”, GED Reasoning Code 2 requires the
employee to “[a]pply commonsense understanding to carry out
detailed but uninvolved written or oral instructions.”
Dictionary of Occupational Titles, 1991 WL 688702 (2008); see
8
also Rounds v. Comm’r, 807 F.3d 996, 1003 (9th Cir. 2015)
(holding that reasoning code 2 requires additional reasoning and
understanding above the ability to complete one-to-two step
tasks).
In considering this issue below, the district court noted
that the ALJ directed the VE to identify any conflicts and the
VE identified none. The court further ruled that Henderson had
failed to establish that any conflict existed between the VE’s
testimony and the DOT.
Social Security Ruling 00–4p provides that the ALJ “has an
affirmative responsibility to ask [a VE] about any possible
conflict between [his] evidence and . . . the DOT.” SSR 00-4p,
2000 WL 1898704, at *4 (Dec. 4, 2000). Thus, the ALJ must ask
the VE 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 VE’s testimony and
must explain the resolution of the conflict in his decision.
Id.
Contrary to the district court’s ruling, Henderson
maintains that the ALJ is required to do more than just ask the
VE if his testimony conflicts with the DOT. In Pearson v.
Colvin, 810 F.3d 204, 209 (4th Cir. 2015), decided after the
district court’s judgment in this case, we agreed with
9
Henderson, ruling that the “ALJ independently must identify
conflicts between the expert’s testimony and the [DOT]” and that
merely asking the VE if there were any conflicts was
insufficient. In addition, we held that a VE’s testimony that
apparently conflicts with the DOT can only provide substantial
evidence if the ALJ received an explanation from the VE
explaining the conflict and determined both that the explanation
was reasonable and that it provided a basis for relying on the
VE’s testimony rather than the DOT. See id. at 209-10. Noting
that a Social Security Administration hearing is not
adversarial, we decided that an ALJ has not fully developed the
record if it contains an unresolved conflict between the VE’s
testimony and the DOT and that an ALJ errs if he ignores an
apparent conflict on the basis that the VE testified that no
conflict existed. See id. at 210. We determined that, because
there was no explanation regarding the apparent conflict, there
was no reasonable basis for relying on the VE’s testimony, and
the testimony, thus, could not provide substantial evidence for
a denial of benefits. Id. at 211.
We conclude that, on the basis of Pearson, the ALJ erred by
relying on the VE’s conclusory testimony that there was no
conflict between his testimony and the DOT. We note that there
is an apparent conflict between an RFC that limits Henderson to
one-to-two step instructions and GED Reasoning Code 2, which
10
requires the ability to understand detailed instructions. Thus,
under Pearson, the VE’s testimony did not provide substantial
evidence that there was work that Henderson could do given his
RFC. The VE did not explain the apparent conflict, the VE’s
conclusory statement that a conflict did not exist was
insufficient, and the ALJ did not inquire further. Accordingly,
we reverse the district court’s conclusion that substantial
evidence supported the ALJ’s conclusion that work that Henderson
could perform existed in significant numbers in the national
economy and direct the district court to remand the case to the
Commissioner with instructions to consider the impact of
Pearson.
In sum, we affirm in part, reverse in part, and remand with
instructions. 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.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
11