Terry Rholetter v. Carolyn Colvin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-00005-RJC Copies to all parties and the district court/agency. [999755286].. [15-1424]

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UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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
disability

examining

[a

determination,

Social
a

Security

reviewing

court

Administration]
is

required

to

uphold the determination when an ALJ has applied correct legal
standards

and

the

ALJ’s

substantial evidence.”

factual

findings

are

supported

by

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).
reviewing

for

substantial

evidence,

we

do

not

undertake

“In
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

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Rather, “[w]here conflicting evidence allows reasonable minds to
differ,” we defer to the Commissioner’s decision.
quotation

marks

omitted).

To

enable

Id. (internal

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.”
1082 (4th Cir. 1993).

English v. Shalala, 10 F.3d 1080,

A five-step sequential process is used to

evaluate a disability claim.
(2015).
engaged

First,
in

the

ALJ

considers

substantial

§ 404.1520(a)(4)(i).

See 20 C.F.R. § 404.1520(a)(4)
whether

gainful

the

claimant

activity.

is
Id.

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.
the

burden

shifts

establish

that,

Id. § 404.1520(a)(4)(iv).
at

the

given

fifth

the

step

to

claimant’s

If he does not,

the

age,

Commissioner
education,

to

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

suffered

from

amputation,
deformity

since

severe

loss

alleged

impairments

coronary

with

his

artery
of

onset

including

disease,

vertebral

4

date

height,

and

below

lumbar

that

right

he

knee

compression

diverticulitis,

and

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obesity.

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The

ALJ

found

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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
Dictionary

of

between

the

Occupational

expert’s
Titles

testimony

(“DOT”).

and

the

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.

5

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.”
2000).

SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4,

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.

relying

the

on

The

ALJ

expert’s

must

resolve

testimony

the

and

resolution of the conflict in his decision.

conflict

must

before

explain

the

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

testimony and the [DOT].”

conflicts

between

Id. at *4.

the

expert’s

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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explaining

expert

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the

explanation

was

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conflict

reasonable

and

and

determined

that

it

both

provided

that
basis

a

the
for

relying on the expert’s testimony rather than the DOT.
WL 9204335 at *5.

See 2015

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.
because
conflict,

there
there

was

no

was

no

See id.

explanation
reasonable

We determined that,

regarding
basis

for

the

apparent

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
reading

conflict
at

a

between

first-

or

an

RFC

that

second-grade

limits
level

Rholetter

and

the

to

DOT’s

classification of the jobs identified by the expert as requiring
a Language Development Level of two.

Thus, under Pearson, the

expert’s

not

testimony

in

this

case

did

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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