United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
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).
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.
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”)
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.
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.
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.
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
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
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.”
the Fourth Circuit has not yet addressed this particular
issue,  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”).
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
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 ...