UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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
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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
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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 first- or 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 *4 (N.D. Ill. Sept. 25, 2014) (expert testified that
Level 1 language requirement translates to reading between
first- and third-grade levels); Lowe v. Astrue, No. 09 CV 4150,
2010 WL 4684036, at *4 (N.D. Ill. Nov. 12, 2010) (expert
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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 *4 (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 *4. 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 *6.
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
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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 *5. 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
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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
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