United States District Court, D. Maryland
Adrian L. Holmes, Sr.
Commissioner, Social Security Administration;
September 22, 2017, Plaintiff Adrian L. Holmes, Sr.
petitioned this Court to review the Social Security
Administration's final decision to deny his claim for
Supplemental Security Income (“SSI”). [ECF No.
1]. I have considered the parties' cross-motions for
summary judgment, and Mr. Holmes's Reply. [ECF Nos. 17,
20, 21]. I find that no hearing is necessary. See
Loc. R. 105.6 (D. Md. 2016). This Court must uphold the
decision of the Agency if it is supported by substantial
evidence and if the Agency employed proper legal standards.
See 42 U.S.C. §§ 405(g), 1383(c)(3);
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
Under that standard, I will deny Plaintiff's motion,
grant the Commissioner's motion, and affirm the
Commissioner's judgment pursuant to sentence four of 42
U.S.C. § 405(g). This letter explains my rationale.
Holmes protectively filed his claim for SSI on September 17,
2013, alleging a disability onset date of May 22, 2012. (Tr.
154-62). His claim was denied initially and on
reconsideration. (Tr. 87-90, 94-95). A hearing was held on
August 8, 2016, before an Administrative Law Judge
(“ALJ”). (Tr. 25-58). Following the hearing, the
ALJ determined that Mr. Holmes was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 9-20). The Appeals Council denied Mr.
Holmes's request for review (Tr. 1-5), so the ALJ's
2016 decision constitutes the final, reviewable decision of
found that Mr. Holmes suffered from the severe impairments of
“glaucoma in the right eye, asthma, degenerative disc
disease, obesity, bipolar disorder, depression, and substance
abuse.” (Tr. 12). Despite these impairments, the ALJ
determined that Mr. Holmes retained the residual functional
to lift and or carry 20 pounds occasionally and 10 pounds
frequently. He could stand or walk for a total of four hours
in an eight-hour workday. He could sit for a total of six
hours in an eight-hour workday. The claimant could push and
pull as much as he can lift and or carry. He could
occasionally climb ramps and stairs, but never ladders,
ropes, or scaffolds. He could occasionally balance, stoop,
kneel, crouch, and crawl. He could occasionally have exposure
to extreme cold and heat, wetness and humidity, and pulmonary
irritants, including fumes, odors, dusts, gases, and poor
ventilation. He can have frequent, but not constant, field of
vision, depth perception, and far acuity. He can constantly
understand, remember, and carry out instructions concerning
simple, routine tasks, performed at a repetitive pace, but
not an assembly line pace. He can occasionally understand,
remember, and carry out instructions concerning detailed
tasks. He can make simple decisions constantly, make detailed
decisions occasionally, and he could have occasional
interaction with supervisors, coworkers, and the public.
(Tr. 14). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Holmes
could perform jobs existing in significant numbers in the
national economy, and that, therefore, he was not disabled.
Holmes's sole argument on appeal is that the ALJ failed
to resolve the apparent conflict between the VE's
testimony and the Dictionary of Occupational Titles
(“DOT”) pursuant to the Fourth Circuit's
ruling in Pearson v. Colvin, 810 F.3d 204 (4th Cir.
2015). Specifically, Mr. Holmes argues that the ALJ failed to
identify and resolve an apparent conflict between the
ALJ's finding that Mr. Holmes could constantly perform
simple, routine, repetitive tasks, but could only
“occasionally understand, remember, and carry out
instructions concerning detailed tasks. . . . make simple
decisions constantly, [and] make detailed decisions
occasionally, ” and the VE's testimony that Mr.
Holmes could perform the job requirements of a router, office
helper, and non-postal mail clerk, which “require
General Education Development (“GED”) Reasoning
Codes of either 2 or 3.” Pl.'s Mot. 11-12; see
e.g., Router, Dictionary of Occupational
Titles, DICOT 222.587-038 (G.P.O.), 1991 WL 672123
(1991) (requiring Reasoning Level 2); Office Helper,
Dictionary of Occupational Titles, DICOT 239.567-010
(G.P.O.), 1991 WL 672232 (1991) (same); Non-Postal Mail
Clerk, Dictionary of Occupational Titles, DICOT
209.687-026 (G.P.O.), 1991 WL 671813 (1991) (requiring
Reasoning Level 3). 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., Non-Postal Mail Clerk,
Dictionary of Occupational Titles, DICOT 209.687-026
(G.P.O.), 1991 WL 671813 (1991). In contrast, 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.” See, e.g., Router, Dictionary
of Occupational Titles, DICOT 222.587-038 (G.P.O.), 1991
WL 672123 (1991); Office Helper, Dictionary of
Occupational Titles, DICOT 239.567-010 (G.P.O.), 1991 WL
Pearson, the Fourth Circuit held that an ALJ has a
duty, independent of the VE, to identify any “apparent
conflicts” between the VE's testimony and the DOT
and to resolve any such conflicts. Pearson, 810 F.3d
at 208-10. The Fourth Circuit noted that the ALJ's duty
to identify and resolve conflicts with the DOT extends beyond
simply asking the VE whether his testimony is consistent with
the DOT. Id. Rather, the Fourth Circuit clarified
that “the ALJ (not the [VE]” is required
to “‘[i]dentify and obtain a reasonable
explanation' for conflicts between the [VE's]
testimony and the [DOT][.]” Id. at 208
(emphasis in original) (citing SSR 00-04p). The Fourth
Circuit limited the ALJ's duty to identifying
“apparent” conflicts, which it held to mean
“that the ALJ must identify where the expert's
testimony seems to, but does not necessarily, conflict with
the [DOT]. For the Ruling [SSR 00-4p] explains that
‘[i]f the [VE]'s…evidence appears to
conflict with the [DOT], the adjudicator will obtain a
reasonable explanation for the apparent
conflict.'” Id. at 209 (emphasis in
original). In Pearson, the apparent conflict at
issue involved the degree of reaching required for a job
identified by the VE. Id. at 210-11. According to
the DOT, the job required frequent reaching, in no specific
direction, while the claimant was limited to occasional
overhead reaching with one arm. Id. Thus, the Fourth
Circuit found that the ALJ erred by failing to identify and
resolve the apparent conflict between the VE's testimony
that the claimant could perform the job and the job
requirements provided by the DOT. Id.
Fourth Circuit extended the Pearson reasoning in
Henderson v. Colvin, 643 Fed.Appx. 273 (4th Cir.
2016) (unpublished), to apparent conflicts between the
plaintiff's mental limitations and his ability to perform
certain jobs. Specifically, the VE in Henderson
testified that the claimant was capable of performing jobs
with a GED reasoning level of 2, even though he was limited
to performing “simple one-to-two step tasks with low
stress.” 643 Fed.Appx. at 276-77. The Fourth Circuit
noted that “GED Reasoning Code 2 requires the employee
to ‘[a]pply commonsense understanding to carry out
detailed but uninvolved written or oral
instructions.'” Id. (citing Dictionary
of Occupational Titles, 1991 WL 688702 (2008)). The
Fourth Circuit held that there was an apparent conflict in
the VE's testimony, and that the ALJ's failure to
identify and reconcile the conflict warranted remand.
Id. at 277-78.
Henderson ruling, which is an unpublished decision
creating non-binding precedent, appears limited to the
language of “simple one-to-two step tasks.”
Otherwise, courts have repeatedly found that occupations with
Reasoning Levels of 2 and 3 are consistent with a
claimant's ability to perform simple, routine work.
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); Blum v.
Comm'r, Soc. Sec. Admin., No. SAG-12-1833, 2013 WL
2902682, at *3 (D. Md. June 11, 2013); see also Renfrow
v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (finding no
inconsistency between a job with a reasoning level of 3 and a
hypothetical limited to “simple, concrete
instructions”); Hacket v. Barnhart, 395 F.3d
1168, 1176 (10th Cir. 2005) (holding that “level-two
reasoning appears more consistent with Plaintiff's
RFC” to “simple and routine work tasks”).
Holmes argues that the ALJ's determination that Mr.
Holmes had the ability to “occasionally understand,
remember, and carry out instructions concerning detailed
tasks” and to “make detailed decisions
occasionally” places additional limits on Mr.
Holmes's ability within the realm of simple, routine
work. Pl.'s Reply 2-5. I disagree. The ALJ's plain
language expands Mr. Holmes's functional capacity beyond
that of a claimant limited to simple, routine work. The cases
cited by Mr. Holmes are distinguishable, not because their
RFCs lack what Mr. Holmes argues is an additional limitation
in his ability to perform detailed tasks, but because those
RFCs were framed as limitations to simple, routine tasks
only. See e.g., Blum v. Comm'r, Soc. Sec.
Admin., No. SAG-12-1833, 2013 WL 2902682, at *1-3 (D.
Md. June 11, 2013) (finding no inconsistency between an RFC
“with the following nonexertional limitation:
…entry level unskilled work” and Reasoning Level
2); Davis v. Comm'r, Soc. Sec. Admin., No.
SAG-11-2779, 2013 WL 153594, at *1-2 (D. Md. Jan. 14, 2013)
(finding no inconsistency between an RFC limiting claimant to
“only perform simple routine unskilled 1-2 step
jobs” and Reasoning Level 2); Mamidov v.
Comm'r, Soc. Sec. Admin., No. SAG-10-3628, 2013 WL
150018, at *1-2 (D. Md. Jan. 11, 2013) (finding no
inconsistency between an RFC “limited to work involving
only understanding, remembering, and carrying out simple
instructions” and Reasoning Level 2); Yates v.
Astrue, No. PWG-09-3394, 2012 WL 280528, at *1-2 (D. Md.
Jan. 20, 2012); Fontz v. Astrue, No. PWG-09-740,
2010 WL 2025565, at *1-2 (D. Md. May 19, 2010). The cases did
not list any limitations respecting detailed work because the
RFC assessments themselves precluded detailed work.
contrast, Mr. Holmes's RFC was framed not as a limitation
to only simple, routine tasks, but instead as an ability to
occasionally perform detailed tasks, in addition to his
ability to perform simple, routine tasks. Mr. Holmes is
constantly capable of simple, routine work, plus he
has the occasional ability to perform detailed tasks and make
detailed decisions. (Tr. 14). That language expands, and does
not restrict, the scope of Mr. Holmes's ability to
perform simple, routine, unskilled work. Importantly,
Reasoning Level 2 requires “detailed but uninvolved
written or oral instructions, ” but here, the RFC
assessment did not limit Mr. Holmes to
“uninvolved” detailed tasks. In addition, even if
Reasoning Level 3's requirements of “instructions
furnished in written, oral, or diagrammatic form”
require too much detail, all but one of the jobs cited by the
VE were only Reasoning Level 2 jobs. Thus, even if the ALJ
arguably needed to reconcile an apparent conflict between the
RFC and the Reasoning Level 3 job (Non-Postal Mail Clerk),
the error would be harmless because the VE identified other
jobs consistent with Mr. Holmes's RFC (Router and Office
Helper). 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
Holmes cites no case law or other authority supporting his
position that his RFC assessment should be read to restrict
his ability below that of simple, routine tasks. I find that
the conflict cited by Mr. Holmes is not
“apparent” as characterized by the Fourth
Circuit. The Fourth Circuit explicitly sought to avoid a
standard that would “require the ALJ to do more than
simply compare the express language of the
Dictionary and the vocational expert's
testimony, and would allow the claimant to nitpick an
ALJ's or expert's word choice on appeal.”
Pearson, 810 F.3d at 209. Thus, the ALJ did not fail
to identify any conflicts between the VE's testimony and
reasons set forth herein, Plaintiff's motion for summary
judgment, [ECF No. 17], will be DENIED and Defendant's
motion for summary judgment, [ECF No. 20], will ...