Jonathan Henderson v. Carolyn Colvin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-00003-RJC Copies to all parties and the district court/agency. [999788545].. [15-1437]

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UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.

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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
Upon

the

standards

review,

we

set

affirm

forth
in

in

part

42

and

U.S.C.

§ 405(g)

reverse

and

(2012).

remand

with

instructions in part.

I.
“When

examining

disability

[a

determination,

Social
a

Security

reviewing

Administration]

court

is

required

to

uphold the determination when an ALJ has applied correct legal
standards

and

the

ALJ’s

substantial evidence.”
Cir. 2012).
a

findings

a

mere

supported

by

Bird v. Comm’r, 699 F.3d 337, 340 (4th

mind

might

accept

as

adequate

to

support

a

Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.

2005) (internal quotation marks omitted).
than

are

“Substantial evidence is such relevant evidence as

reasonable

conclusion.”

factual

scintilla

preponderance.”

of

evidence

but

“It consists of more
may

be

less

than

a

Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.

2012) (internal quotation marks omitted).

“In reviewing for

substantial

not

evidence,

[the

court

should]

undertake

to

reweigh conflicting evidence, make credibility determinations,
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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

quotation

defer

marks

to

the

ALJ’s

omitted).

To

decision.
enable

Id.

judicial

(internal

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

determines

the

ALJ

substantial
whether

the

See 20 C.F.R. § 404.1520(a)(4)

considers

gainful

activity.

claimant
3

whether

has

“a

the
If

claimant

not,

severe

the

is
ALJ

medically

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determinable
combination

physical
of

or

mental

impairments

§ 404.1520(a)(4).

If

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impairment

that

so,

the

is
ALJ

.

.

severe.”
decides

.
20

or

a

C.F.R.

whether

that

impairment or combination of impairments meets or equals one of
the listings at appendix 1.
not,

the

ALJ

assesses

20 C.F.R. § 404.1520(d) (2015).

the

claimant’s

residual

If

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.
(v);

Hines

v.

Barnhart,

453

20 C.F.R. § 404.1520(a)(4)(i)-

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
suffered
disease

activity
from
and

since

severe

his

alleged

impairments

borderline

onset

date

including

intelligence.

The

and

that

degenerative
ALJ

found

he

disc
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

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requirements

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of

Medical

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Listing

12.05(C)

and

that

the

ALJ

erroneously failed to consider that listing.
Listing

12.05(C)

subaverage

general

adaptive

requires

functioning

developmental

a

intellectual

showing

functioning

initially

period;

i.e.,

of

“significantly

with

manifested

the

evidence

deficits
during

in
the

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”).
1,

§ 12.05.

ability

to

The

20 C.F.R. Pt. 404, Subpt. P, App.

Commissioner

establish

Prong

does

Three

but

not

contest

argues

Henderson’s

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

Henderson in 2011.

performed

a

psychological

evaluation

of

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
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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

comment

on

consistent

[and]

whether
with

the

the

IQ

narrative
scores

developmental

functional limitation.”
§ 12.00(D)(6)(a).

the

Given

report

are

.

.

considered

history

and

the

.

should

valid
degree

and
of

20 C.F.R. Pt. 404, Subpt. P, App. 1,
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.

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III.
Henderson next contends that the ALJ erred in failing to
conclude that he met Listing 1.04 for disorders of the spine.
claimant

is

entitled

to

a

conclusive

presumption

that

he

A
is

disabled if he can show that his disorder results in compromise
of a nerve root or the spinal cord.
P,

App.

1,

§

1.04.

Listing

20 C.F.R. Part 404, Subpart

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)

supine).

positive

straight

leg

raising

test

(sitting

and

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

Henderson

avers

loss
that

accompanied
he

by

produced

sensory
evidence

or
of

reflex

loss.

motor

loss

(exhibited muscle weakness), sensory loss (decreased reflexes),
and positive straight leg raising tests.
7

However, Henderson

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provided no
weakness—a

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evidence
lone

of

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atrophy,

clinical

and

finding

his

that

evidence

his

leg

of

muscle

strength

was

“4+/5”—fails to undercut the substantial conflicting evidence in
the record that his strength was consistently “5/5,” “stable,”
or “normal.”
that

the

Accordingly, the district court properly found

ALJ’s

conclusion

that

Henderson

did

not

meet

the

Listing was supported by substantial evidence.

IV.
Finally,
(“VE”)

Henderson

testimony

was

argues

flawed

that

the

because

it

vocational

expert’s

created

possible

a

conflict with the Dictionary of Occupational Titles (“DOT”) and
that

the

Henderson

ALJ

failed

claims

that

to

resolve

the

VE

the

conflict.

testified

that

Specifically,
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 oneor two-step instructions”, GED Reasoning Code 2 requires the
employee
detailed

to

“[a]pply

but

commonsense

uninvolved

understanding

written

or

oral

to

carry

out

instructions.”

Dictionary of Occupational Titles, 1991 WL 688702 (2008); see
8

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also

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Rounds

Filed: 04/05/2016

v.

Comm’r,

807

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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

conflict between [his] evidence and . . . the DOT.”
2000 WL 1898704, at *4 (Dec. 4, 2000).

possible

SSR 00-4p,

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
9

this

case,

we

agreed

with

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Henderson,

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ruling

that

the

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“ALJ

independently

must

identify

conflicts between the expert’s testimony and the [DOT]” and that
merely

asking

insufficient.

the

VE

if

there

were

any

conflicts

was

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.
that

a

Social

Security

See id. at 209-10.

Administration

hearing

Noting
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

conflict between his testimony and the DOT.

that

there

was

no

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
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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

insufficient, and the ALJ did not inquire further.
we

reverse

the

district

court’s

conclusion

exist

was

Accordingly,

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

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