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Simons v. Commissioner, Social Security

United States District Court, D. Maryland

July 13, 2018

MAUREEN SIMONS
v.
COMMISSIONER, SOCIAL SECURITY[1]

          REPORT AND RECOMMENDATIONS

          Stephanie A. Gallagher United States Magistrate Judge

         Pursuant to Standing Order 2014-01, the above-captioned case has been referred to me to review the parties' dispositive motions and to make recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF NO. 4]. I have considered the parties' cross-motions for summary judgment and Ms. Simons's Response. [ECF Nos. 17, 18, 21]. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). This Court must uphold the decision of the Social Security Administration (“SSA”) if it is supported by substantial evidence and if the SSA employed proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). For the reasons set forth below, I recommend that the Court deny Ms. Simons's motion, grant the SSA's motion, and affirm the SSA's judgment pursuant to sentence four of 42 U.S.C. § 405(g).

         Ms. Simons applied for Disability Insurance Benefits (“DIB”) on November 5, 2012, alleging a disability onset date of June 1, 2012. (Tr. 181-87). Ms. Simons subsequently amended her alleged onset date to November 1, 2012. (Tr. 47). Her application was denied initially and on reconsideration. (Tr. 93-103, 104-116, 119-22, 124-25). An Administrative Law Judge (“ALJ”) held a hearing on January 13, 2016, at which Ms. Simons was represented by counsel. (Tr. 41-84). Following the hearing, the ALJ determined that Ms. Simons was not disabled within the meaning of the Social Security Act. (Tr. 16-40). The Appeals Council (“AC”) denied Ms. Simons's request for further review, (Tr. 1-6), so the ALJ's decision constitutes the final, reviewable decision of the Agency.

         The ALJ found that Ms. Simons suffered from the severe impairments of “obesity, lumbar degenerative disc disease, asthma, chronic obstructive pulmonary disease (COPD), hypertension, degenerative joint disease, obstructive sleep apnea, plantar fasciitis, anxiety disorder, depressive disorder, and attention deficit hyperactivity disorder.” (Tr. 21). Despite these impairments, the ALJ determined that Ms. Simons retained the residual functional capacity (“RFC”) to:

perform sedentary work as defined in 20 CFR 404.1567(a) except she cannot climb ladders or scaffolds; can incidentally climb ramps and stairs to get to or from the workstation; can occasionally stoop; cannot kneel crouch, crawl, balance, or use foot controls; can tolerate occasional exposure to atmospheric conditions, weather, extreme cold and heat, humidity, and wetness; and cannot tolerate exposure to hazards such as unprotected heights and moving mechanical parts. The claimant can perform simple, routine, and repetitive tasks, but not those done at a production rate pace as in an assembly line where each task must be completed in a fixed time. She can make simple work-related decisions; can tolerate only occasional changes in a routine work setting; and time off task during the workday can be accommodated by normal breaks.

(Tr. 25). After considering the testimony of a vocational expert (“VE”), the ALJ determined that Ms. Simons could perform jobs existing in significant numbers in the national economy, and that, therefore, she was not disabled. (Tr. 34-35).

         On appeal, Ms. Simons raises three arguments, including that: (1) the ALJ failed to consider the medical opinion of her treating pain management physician, Dr. Sandeep Sherlekar; (2) the VE's testimony is not consistent with the Dictionary of Occupational Titles (“DOT”); and (3) the ALJ failed to provide substantial evidence to support his rejection of a treating physician's recommended limitations. Pl. Mot. 17-21. Each argument lacks merit for the reasons set forth below.

         First, Ms. Simons contends that the ALJ erred by failing to discuss the December 21, 2011 medical opinion of her longstanding treating pain management physician, Dr. Sherlekar. Pl. Mot. 15, 18; see (Tr. 332-33) (December 21, 2011 medical report, stating that “PT MAY NOT LIFT >10 lbs. PT NO PROLONGED STANDING/SITTING. NO STOOPING, STRAINING, BENDING OR CLIMBING.”). The ALJ, however, is “not required to discuss evidence ‘that is neither significant nor probative,' and medical opinions predating the alleged onset date ‘are of limited relevance.'” Baker v. Berryhill, 720 Fed.Appx. 352, 355 (9th Cir. 2017) (internal citations omitted); see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions that predate the alleged onset of disability are of limited relevance.”) (citation omitted); Grimm v. Comm'r, Soc. Sec. Admin., Civil Case No. SAG-15-3403, 2016 WL 6651300, at *2 (D. Md. Nov. 10, 2016) (holding that the ALJ failed to support his decision with substantial evidence when the “ALJ's opinion rest[ed] almost exclusively on the evidence predating [the onset date]”); Gullace v. Astrue, Civil Action No. 1:11cv0755 (TSE/JFA), 2012 WL 691554, at *24 (E.D. Va. Feb. 13, 2012) (rejecting the claimant's argument that the ALJ erroneously failed to discuss certain medical evaluations on the basis that “both evaluations took place long before plaintiff's alleged onset date . . . and as such need not be considered”). The ALJ in the instant case was not required to discuss Dr. Sherlekar's medical opinion, which predated Ms. Simons's alleged onset date by nearly one year.

         Additionally, the cases cited by Ms. Simons are not persuasive. See Pl. Reply 2-3. Ms. Simons contends that, in Young v. Commissioner, Social Security Administration, MJG-17-0375, 2017 WL 4642011 (D. Md. Oct. 16, 2017), this Court “agreed” with the plaintiff's argument that remand was required in part because of the ALJ's failure to assign weight to the State agency doctor's medical opinion. See Pl. Reply 2. Unlike the instant case, however, the medical opinion at issue in Young did not predate the plaintiff's alleged onset date. See (Tr. 85-93), Young, 2017 WL 4642011, at *2. Moreover, this Court did not hold that the ALJ's failure to discuss the medical opinion required remand, but instead observed that “[t]here are many other errors alleged or evident in the ALJ's opinion, including . . . the failure to assign weight to [the State agency doctor's] medical opinion.” Young, 2017 WL 4642011, at *2. Ms. Simons's reliance on Young is therefore misplaced.

         Even assuming that the ALJ erred in failing to discuss Dr. Sherlekar's medical opinion, such error would be harmless. Most notably, Ms. Simons has not identified or cited to any evidence in the record to suggest that the ALJ's evaluation of Dr. Sherlekar's opinion would have resulted in additional RFC limitations. Thus, in light of the evidence of record, remand is not warranted on this basis.

         Turning to her next argument, Ms. Simons argues that the ALJ failed to resolve the apparent conflict between her RFC limitation to “simple, routine, and repetitive tasks” and “simple work-related decisions” and the VE's testimony that she could perform the job requirements of an order clerk, charge account clerk, and surveillance system monitor. Pl. Mot. 18-19. Specifically, Ms. Simons contends that her RFC limitations prevent her from performing jobs that require a reasoning level of three (“Reasoning Level 3”). See, e.g., Order Clerk, Food and Beverage, Dictionary of Occupational Titles, DICOT 209.567-014 (G.P.O.), 1991 WL 671794 (1991) (requiring Reasoning Level 3 and Specific Vocational Preparation Level 2); Charge-Account Clerk, Dictionary of Occupational Titles, DICOT 205.367-014 (G.P.O.), 1991 WL 671715 (1991) (same); Surveillance-System Monitor, Dictionary of Occupational Titles, DICOT 379.367-010 (G.P.O.), 1991 WL 673244 (1991) (same). According to the DOT, Reasoning Level 3 requires the claimant to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. . . . [and] [d]eal with problems involving several concrete variables in or from standardized situations.” See, e.g., Order Clerk, Food and Beverage, Dictionary of Occupational Titles, DICOT 209.567-014, 1991 WL 671794 (1991). In contrast, a reasoning level of two (“Reasoning Level 2”) requires the claimant to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions [and] [d]eal with problems involving a few concrete variables in or from standardized situations.”

         While the Fourth Circuit has not yet addressed this particular issue, [2] other circuits are divided on the issue of whether there is an apparent conflict between a job requirement of Reasoning Level 3 and an RFC limitation to “simple, routine, and repetitive tasks” and “simple, work-related decisions.” The Tenth and Ninth Circuits have held that a claimant's limitations to “simple instructions” or “simple, repetitive tasks” is inconsistent with Reasoning Level 3 requirements. See, e.g., Paulek v. Colvin, 662 Fed.Appx. 588, 594 (10th Cir. 2016) (unpublished) (holding that remand was required on the basis that the ALJ failed to reconcile the apparent conflict between the claimant's limitation to “understanding, remembering, and carrying out simple instructions” and Reasoning Level 3 jobs); Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (“Today, we join the Tenth Circuit and hold that there is an apparent conflict between the [RFC] to perform simple, repetitive tasks, and the demands of Level 3 Reasoning.”). On the other hand, the Seventh and Eighth Circuits have found that there is no apparent conflict between a limitation to “simple tasks” and Reasoning Level 3 jobs. See, e.g., Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009) (per curiam) (holding that there was no apparent conflict between the claimant's RFC limitation to “simple” work and Reasoning Level 3 jobs); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (holding that there was no apparent conflict between the claimant's inability to perform complex work and Reasoning Level 3 jobs when the jobs identified by the VE “[we]re both classified as unskilled and so do not appear to be ‘complex'”); Hillier v. Soc. Sec. Admin., 486 F.3d 359, 367 (8th Cir. 2007) (holding that the claimant's limitation to “simple, concrete instructions” did not preclude her from working as a cashier, despite its Reasoning Level 3 job requirement, based on the claimant's past work experience as a cashier “in combination with the absence of any evidence showing any mental deterioration”).

         Several district courts within the Fourth Circuit have held that there is no apparent conflict between Reasoning Level 3 jobs and RFC limitations to “simple, routine tasks” or “simple decisions.” See, e.g., Johnson v. Comm'r, Soc. Sec. Admin., Civil Action No. ADC-17-1819, 2018 WL 2248412, at *10-11 (D. Md. May 16, 2018) (holding that there was no apparent conflict between the claimant's RFC limitation to “simple, routine, repetitive tasks” and Reasoning Level 3 jobs while noting that “this Court has consistently found that reasoning levels of two or three are consistent with limitations to simple instructions.”); Clarkson v. Comm'r, Soc. Sec. Admin., Civil No. SAG -11-631, 2013 WL 308954, at *1-2 (D. Md. Jan. 24, 2013) (holding that there is “no inherent inconsistency” between the claimant's RFC limitation to “low concentration, low memory and simple routine work” and Reasoning Level 3 jobs); but see Halpern v. Colvin, Civil No. TDC-14-2538, 2016 WL 429965, at *10 (D. Md. Feb. 4, 2016) (holding that, although “there is an apparent conflict between the [RFC] to perform simple, repetitive tasks, and the demands of Level 3 Reasoning, ” the ALJ's failure to reconcile this apparent conflict was harmless because the VE identified other jobs consistent with the claimant's RFC) (citing Zavalin, 778 F.3d at 847).

         After reviewing the relevant case law and the particular facts of this case, I agree with the rationale espoused by the Seventh and Eighth Circuits. Moreover, I conclude that, here, the ALJ did not fail to resolve any apparent conflict between Ms. Simons's RFC mental limitations and the VE's testimony. Indeed, Ms. Simons offers nothing more to support her position that such an apparent conflict exists beyond simply asserting that, “under [Reasoning Level 3], the employee has to be able to handle involved instructions.” Pl. Mot. 19. However, nothing in the job descriptions presented here requires involved instructions. In fact, the jobs cited by the VE ...


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