CROUSE, JR. v. SSA

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA WILLIAM MONROE CROUSE, JR. ) ) . Plaintiff, ) ) : Vv. ) 1:18CV269 ) . ANDREW SAUL, . ) Commissioner of Social Secutity,! ) Defendant. ) MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff William Monroe Crouse, Jr. (“Plaintiff’?) brought this action pursuant to Section 1631(c)(3) of the Social Security Act (the “Act’), as amended ( 42 U.S.C. § 1383 (c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for Supplemental Security Income (“SSI”) under Title XVI of the Act. The parties have filed cross-motions for judgment, and the administrative record has been certified to the Court for review. I PROCEDURAL HISTORY Plaintiff protectively filed an application for SSI on July 31, 2014, alleging a disability onset date of May 1, 2011. (Ir. at 15, 187-195.)? His application was denied initially (T'r. at 102-105) and upon reconsideration (Ir. at 111-115). Thereafter, Plaintiff requested an 1 Andrew Saul became Commissioner of Social Security on June 17, 2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul should be substituted for Nancy A. Berryhill as the Defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405 (g). * Transcript citations refer to the Sealed Administrative Record [Doc. #8]. administrative heating de novo before an Administrative Law Judge (“ALJ”). (Tr. at 116-118.) Plaintiff, along with his attorney and an impattial vocational expert (“VE”), attended the subsequent heating on January 9, 2017. (It. at 30.) The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the Act since July 31, 2014, the date the application was filed.3 (Tt. at 25.) On February 6, 2018, the Appeals Council denied Plaintiff's request fot review of the decision, thereby making the ALJ’s conclusion the Commissionet’s final decision for purposes of judicial review. (Tr. at 1-5.) _ Il. LEGALSTANDARD Federal law “authorizes judicial review of the Social Secutity Commissionet’s denial of social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cit. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the AL] if they ate supported by substantial evidence and were reached through application of the cottect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation omitted). . “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270 3 The ruling could not extend to earlier than the application date because SSI is not payable prior to the month following the month in which the application was filed, irrespective of the claimant's alleged onset date. See 20 C.F.R. § 416.335 . F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted). “In reviewing for substantial evidence, the court should not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the [AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Whete conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472 . “The issue before [the reviewing court], therefote, is not whether [the claimant] is disabled, but whether the AL}’s finding that [the claimant] is not disabled is supported by substantial evidence and was reached based upon a cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In undertaking this limited review, the Court notes that “[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). In this context, “disability” means the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to tesult in death or which has lasted or can be expected to last for a continuous petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423 ()(1)(A)). “The Commissioner uses a five-step ptocess to evaluate disability claims.” Hancock, 667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520 (a)(4); 416.920(a)(4)). “Under this process, the Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of disability; (2) had a severe impaitment; (3) had an impairment that met or equaled the requitements of a listed impaitment; (4) could return to her past relevant work; and (5) if not, could perform any othet work in the national economy.” Id. A finding adverse to the claimant at any of several points in this five-step sequence forecloses a disability designation and ends the inquiry. For example, “[t]he first step determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled. If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157 , 159 4th Cir. 1990). On the other hand, if a claimant carries his or her burden at the first two steps, and if the claimant’s impaitment meets ot equals a “listed impairment” at step three, “the claimant is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two, but falters at step three, ie., “[i]f a claimant’s impaitment is not sufficiently severe to equal ot exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional capacity (RFC?.” Id. at 179.4 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior work, the analysis proceeds to the fifth step, which “requites the [Government] to prove that a significant number of jobs exist which the claimant could perform, despite [the claimant’s] 4 “RFC is a measutement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations requite RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8 houts a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks omitted)). [he RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s “ability to do sedentaty, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658 F.2d at 265 . “RFC is to be determined by the AL] only after [the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63 . impairments.” Hines, 453 F.3d at 563 . In making this determination, the AL] must decide “whether the claimant is able to perform other work considering both [the claimant’s RFC] and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall, 658 F.2d at 264-65 . If, at this step, the Government cannot carry its “evidentiary burden of proving that [the claimant] remains able to work other jobs available in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567 . TI. DISCUSSION In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful activity since July 31, 2014, the application date.” (Tr. at 17.) Plaintiff therefore met his burden at step one of the sequential evaluation process. At step two, the ALJ further determined that Plaintiff suffered from the following severe impairments: “Asthma, Borderline Intellectual Functioning vs. Lower Intelligence; Renal Insufficiency, and Depression.” (Id.) The AL] found at step three that these impairments did not meet or equal a disability listing. (d.) Plaintiff does not challenge this listing determination at step three. The ALJ then assessed Plaintiffs RFC and determined that he could perform unskilled light work, with the following additional limitations: stand and walk for 2 houts at a time and for a total of 6 hours in an 8-hout workday; he can sit for 30 minutes at a time and for a total of 4 hours in an 8hour workday; and he can lift and catty 20 pounds occasionally and 10 pounds frequently. He can occasional|ly] teach in all directions, handle, finger, and feel frequently, but not continuously, with his right dominant upper extremity. Mentally, the claimant is limited to simple, routine, repetitive tasks, with only occasional contact with co-workers, supervisors, and the public. (It. at 19.) Based on the RFC determination, the ALJ found under step four of the analysis that Plaintiff had no past televant work. (Tr. at 24.) The ALJ also determined at step five that, given Plaintiff? 8 age, education, work expetience, RFC, and the testimony of the VE as to these factors, he could perform other jobs available in the national economy. (Tr. at 2425.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tt. at 25.) Plaintiff now argues that the ALJ erted in three respects. First, citing Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), Plaintiff contends that “[t]he AL]’s failure to properly account for [his] moderate limitations in concentration, persistence, and pace in his RFC is error[.]” (Pl’s Br. [Doc. #11] at 5.) Second, Plaintiff contends that “the ALJ’s reliance on the VE’s testimony is in error” based on an unresolved conflict with the Dictionary of Occupational Titles (“DOT”). dd. at 10.) Third, Plaintiff contends that “the ALPs appointment did not comply with the Appointments Clause.” dd. at 19.) For the reasons set out below, the Court concludes that remand is tequited with regard to Plaintiffs second contention, and the Court therefore need not teach the remaining contentions. □ A. DOT Conflict In pertinent part, Plaintiff challenges the ALJ’s reliance on the VE’s testimony at step five of the sequential analysis. As explained below, this atgument has merit. ‘In Peatson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015), a VE testified that a claimant was capable of performing three occupations. For each of the three occupations, the Dictionary of Occupational Titles listed frequent reaching as a requirement. Id. However, based on VE testimony, the ALJ found that the claimant’s non-dominant atm could only occasionally reach upward. Id. Based on the DOT’s broad definition of reaching (Le., “felxtending hand(s) and atm(s) in any direction’’) the Fourth Circuit held that the occupations identified by the expert may requite frequent bilateral overhead reaching. Id. at 210-211 . Because of the appatent conflict between the VE’s testimony and the DOT, the ALJ was requited to elicit a reasonable “explanation from the expert as to whether these occupations do, in fact, require frequent bilateral overhead reaching,” before relying on the expert’s testimony. Id. at 211 . The Fourth Circuit also clatified that if an expert’s testimony apparently conflicts with the DOT; the expert’s testimony can only provide substantial evidence to support the AL]’s decision if the AL] received an explanation from the expert explaining the conflict and determined both (1) that the explanation was reasonable and (2) that it provided a basis for relying on the expert’s testimony rather than the DOT. Id. at 209-11 ; see also Rholetter v. Colvin, 639 F. App’x 935, 938 (4th Cir. 2016). Hete, the VE identified the jobs of Sorter, Mail Sorter (non-postal), and Linen Grader as jobs a hypothetical claimant with the same RFC as Plaintiff could perform.° (I. at 24, 6465.) After identifying these three jobs, the ALJ and the VE had the following exchange: Q: Has all of your testimony today been consistent with your training, education, and experience? A: It has, Your Honor, with somewhat outside the DOT and the companion publications just with the differentiating with the sit and stand as well as the breakdown of reaching right versus left. . Q: Okay. A: And that is consistent with my 25 plus years of doing [inaudible], talking with employers, doing jobs, being in the industry. (Tr. at 66.) 5 The title in the DOT of the Sorter position identified by the VE (Tr. 65) is that of “Picking-Table Worker,” 1991 WL 674230 . The title in the DOT of the Mail Sorter position identified by the VE (Tr. at 65) is “Mail Clerk,” 1991 WL 671813 . The title in the DOT of the Linen Grader position identified by the VE (Ir. at 65) is also that of “Linen Grader,” 1991 WL 672993 . The ALJ called these positions, respectively, “Sorter,” “Mail Sorter (Non-Postal),” and “Linen Folder.” (Tr. at 24.) Plaintiff correctly points out that all three jobs mentioned above require frequent teaching according to the DOT. (PL’s Br. at 11-15 referencing Picking-Table Worker, 521.687-102, 1991 WL 674230 (“Reaching: Frequently - Exists from 1/3 to 2/3 of the time”), Mail Clerk, 209.687-026, 1991 WL 671813 (same), and Linen Grader, 361.687-022, 1991 WL, 672993 (same).) He then contends that this limitation is in appatent conflict with his limitation to only occasional reaching with his dominant atm. (Pl’s Br. at 11-15.) Plaintiff then contends further that the purported explanation for this apparent conflict fails to provide a teasonable explanation and basis for relying on the VE’s testimony. (Pl.’s Br. at 11, 18-19.) The Court agrees that there was an apparent conflict between the DOT and the VE’s testimony. The DOT provides that the jobs in question all require frequent (meaning up to two-thirds of a workday) teaching, while the VE testified that a claimant limited in the use of his dominant arm to occasional (meaning no mote than one-third of a workday) reaching can perform the listed jobs. See Pearson v. Colvin, 810 F.3d at 211 (“Although the [DOT] does not expressly state that the occupations identified by the expert require frequent bilateral ovethead teaching, [its] broad definition of ‘reaching’ means that, they certainly may requite such teaching.”); Lamear v. Berryhill, 865 F.3d 1201, 1206 (th Cir. 2017) (rejecting argument that the fact that the DOT does not expressly require bilateral reaching in a job description implies that only unilateral reaching is tequited, stating “we cannot determine from this record, the DOT, or our common experience whether the jobs in question require both hands’); SSR 83-10, 1983 WL 31251 , at *5-6 (defining “[o]ccasionally” as up to one-third of a workday and “frequent” as up to two-thitds of a workday). Consequently, for the ALJ’s step five analysis to be supported by substantial evidence, the ALJ, by way of the VE, had to identify the appatent conflict and provide a reasonable explanation that is susceptible to judicial review as to why the ALJ could tely upon VE testimony rather than the DOT. None of these requitements wete met here. First, as a threshold matter, the Coutt notes that the VE did not identify the specific conflict in question. Instead, when queried, the VE. stated that her testimony was “somewhat outside the DOT and the companion publications just with the differentiating with the sit and stand as well as the breakdown of reaching tight versus left.” (I't. at 66.) It is far from cleat what this means. While the quoted testimony appeats to be an effort on the part of the VE to identify some general conflict between het testimony and the DOT regarding reaching, such a statement is simply too vague and ambiguous to fairly constitute an identification of the specific apparent conflict raised by Plaintiff here. As a result, the Court cannot determine if the AL]’s step five finding is supported by substantial evidence. Not was the VE’s explanation for the unidentified reaching conflict susceptible to judicial review. As noted, the VE apparently tried to reconcile the fact that her testimony was “somewhat outside the DOT” as to the “breakdown of teaching tight versus left,” by stating that it was “consistent with [her] 25 plus yeats of doing [inaudible], talking with employers, doing jobs, being in the industry.” (T't. at 66.) Again, however, it is far from cleat what all of this means. Thete is no “breakdown” tegatding “reaching right versus left” in the VE’s testimony of in the ALJ’s decision. While a VE may resort to personal experience to explain why het opinion remains teliable despite an apparent conflict with the DOT, see, e.g., Allen v. Berryhill, No. 1:17CV277, 2018 WL 2025666 , at *6 (M-D.N.C. May 1, 2018) (Auld, □□□□□□ 9 □ adopted Slip Op. (M.D.N.C. May 23, 2018) Biggs, J.), that explanation must itself be stated clearly enough to be susceptible to judicial review. ¢ Moreover, the ALJ did not provide any analysis to help explain how this testimony was interpreted and relied upon. In this regard, Pearson requires the AL] to determine both (1) that the explanation was reasonable and (2) that it provided a basis for relying on the expert’s testimony rather than the DOT. Peatson v. Colvin, 810 F.3d at 211 . Here, the ALJ did not address the DOT conflict at all, and instead found that “the vocational expert’s testimony is consistent with the information contained in the Dictionary of Occupational Titles (DOT).” (Tr. at 24.) Thus, the ALJ did not resolve the ambiguity in the VE’s testimony, ot otherwise identify the conflict and determine that there was a teasonable basis for relying on the VE’s testimony tather than the DOT.’ Thus, the Court concludes that there is simply insufficient analysis and explanation to reasonably allow for judicial review, either in the VE’s identification of the apparent conflict, 6 This case, therefore, stands in contrast to another case recently decided in this district, Allen v. Berryhill, No. 1:17CV277, 2018 WL 2025666 . Allen involved an appatent conflict between (1) VE testimony that a claimant could not teach ovethead with her left, non-dominant upper extremity and (2) DOT job descriptions involving jobs requiting either frequent or occasional reaching. See Allen, 2018 WL 2025666 , at *6. The VE in Allen, however, unlike the VE in this case, “expressly acknowledged that the DOT neither differentiated between unilateral and bilateral reaching, nor specifically addressed the ditection of reaching involved” and then properly “relied on his own professional experience to opine that an individual who could not reach overhead with the left, non-dominant arm could still perform all three of the jobs in question.” Id. at 6 . That analysis was not included in the present case, either by the ALJ or the VE. 7 This failure is further compounded by the fact that the ALJ did not provide any analysis regarding how or why he included the chosen limitations for reaching, handling, and fingering. In this regard, the ALJ concluded that as a result of his impairments, Plaintiff had difficulties with prolonged standing, walking and sitting, and the AL] included related limits on those activities. (Tr. at 22.) The ALJ also found that Plaintiff “should be able to lift and carry light objects.” (Tr. at 22.) However, the AL] did not include any analysis regarding Plaintiff's limitations on teaching, handling, and fingering. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (holding that an ALJ must “both identify evidence that supports his conclusion and build an accurate and logical bridge from [that] evidence to his conclusion.”). — 10 — in the VE’s explanation for why that appatent conflict could be disregarded, or in the AL]’s own analysis set out in the decision. Remand is therefore in order. The Court also notes that, given the jobs identified by the VE, the failure to sufficiently address the issue is not harmless. In this regard, the Court notes that the Sorter job identified by the VE (Tt. at 65) requites that the worker “Picks stems, stones, metal, ot wood not eliminated by trash-picking machine from conveyor to prevent damage to beet knives. May ttim tops from beets to prevent clogging of knives in slicers.” Picking-Table Worker, 521.687102, 1991 WL 674230 . The DOT description of Linen Grader indicates that a worker in this job “[g]rades laundered towels and similar linens according to quality, condition, and kind of item. Ties them into bundles of specified size or number of articles and records contents of each bundle. Stores bundles in bins for delivery to customers of linen-rental service.’ Linen Grader, 361.687-022, 1991 WL 672993 . Absent a meaningful explanation by the VE, it is difficult to imagine how a worker could perform these tasks if limited to occasional reaching with his dominant uppet extremity, meaning reaching no more than one-third of an eight hour wotkday. See e.g., Lawson v. Berryhill, No. CV TJS-17-0486, 2018 WL 1135641 , at *3 (D. Md. Mar. 1, 201 8) “Tt is difficult to imagine how a person [limited to occasional use of the non-dominant hand] could hang drapes or move furniture on a full-time basis relying almost solely on the use of his nondominant arm and hand. It may be that the housekeeper occupation does not usually requite persons to complete these tasks, and the VE could have explained this to the ALJ. But the ALJ made no such inquiry and the VE gave no such explanation. The same goes for the occupations of packet and marker, both of which require at least frequent reaching and handling.”). ‘The VE in this case testified that het testimony was “somewhat — 11 — outside the DOT” as to the “breakdown of teaching right versus left,” by stating that it was “consistent with [her] 25 plus yeats of doing [inaudible], talking with employers, doing jobs, being in the industry.” This is not sufficient information for the ALJ to conclude that there is a teasonable explanation for the conflict between the VE’s testimony and the DOT.® The remaining position of mail sorter is equally problematic. First, like the previous two jobs addressed above, the DOT job desctiption for mail sorter seems—absent a meaningful explanation—facially at odds with the performance of frequent reaching.’ Second, 8 The Court notes that the analysis was further confused when the VE initially identified the occupation as “Folder,” but then switched to “Linen Grader,” and the ALJ later combined the occupations by referring to the Linen Grader position as “Linen Folder.” (Tr. At 65, 24.) While Linen Folder is not an actual occupation provided by the DOT, “Folder” is a position under the Laundry, Cleaning, Dyeing and Pressing Industry umbrella of the DOT. The Folder position also lists frequent reaching as a requirement. The DOT described the Folder position as follows: Folds fluff-dried or pressed laundry, such as shitts, towels, uniforms, and jackets: Shakes out, smooths, folds, sorts, and stacks wash according to identification tags. Inspects pressed laundry for holes or tears, and separates defective articles for transfer to repait department. Folds laundry, preparatory to wrapping, for delivery to customer. Folds pressed shirts around cardboard forms and inserts assembly in plastic bags. May attach missing buttons to atticles, using button-sewing-machine or button-attaching machine. May unload tumbler. May turn socks, match pairs, and tie socks into bundles. May be designated according to type of laundry folded as Shirt Folder 369.687-018, 1991 WL 673072 . : 9 The DOT described this position as follows: Sorts incoming mail for distribution and dispatches outgoing mail: Opens envelopes by hand or machine. Stamps date and time of receipt on incoming mail. Sorts mail according to destination and type, such as returned letters, adjustments, bills, orders, and payments. Readdresses undeliverable mail bearing incomplete or incortect address. Examines outgoing mail for appeatance and seals envelopes by hand or machine. Stamps outgoing mail by hand or with postage meter. May fold letters or circulars and insert in envelopes [FOLDING-MACHINE OPERATOR (clerical) 208.685-014]. May distribute and collect mail. May weigh mail to determine that postage is cortect. May keep tecord of registered mail. May address mail, using addressing machine [ADDRESSING-MACHINE OPERATOR (clerical) 208.582-010]. May be designated according to type of mail handled as Mail Clerk, Bills (clerical). 209.687-026, 1991 WL 671813 . — 12 — as Plaintiff correctly points out (Pl’s Br. at 14-15), according to the DOT, the mail sorter position also requites a Reasoning Level of 3, 209.687-026, 1991 WL 671813 , and Plaintiff was limited to the performance of simple, routine, and repetitive tasks (Tr. at 19). Judges in this Disttict have repeatedly held that this too is an apparent conflict that the VE must address. See, e.g., Mullis v. Colvin, No. 1:11CV22, 2014 WL 2257188 (M.D.N.C. May 29, 2014) (Osteen, C.J.) (finding an apparent conflict between an RFC limitation to simple, routine, repetitive tasks at a low production pace and low stress environment and a VE’s testimony that Plaintiff could perform a job to which the DOT assigned a Reasoning Level of 3). And, although no party mentions this, the Fourth Circuit recently held that thete is an apparent conflict “between a limitation to short and simple instructions and Reasoning Development Level 3 occupations.” Keller v. Berryhill, 2018 WL 6264813 , at *4 (4th Cir. Nov. 29, 2018). Here, neither the VE nor the ALJ identified or reconciled this apparent conflict. And, in fact, a review of the transcript of the administrative hearing reveals an even more fundamental problem: none of the hypothetical questions the ALJ put to the VE included Plaintiffs limitation to performing no mote than simple, routine, and tepetitive tasks. (It. at 64-66.) This omission also requites remand because the VE never considered whether a claimant limited to simple, routine, repetitive tasks could perform the three jobs in question. See Walker v. Bowen, 889 F.2d 47 , 50-51 4th Cir.1989) (“In order fot a vocational expert’s opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record, and it must be in response to proper hypothetical questions which fairly set out all of claimant’s impairments.”) (citations omitted); see also McGlothlin v. Berryhill, No. — 13 — LATCV998, 2018 WL 6111786 , at *5 (M.D.N.C. Nov. 21, 2018) (“[T]his Court has specifically held that simple, routine work is not synonymous with unskilled work.” (collecting cases)). The Commissioner’s atguments to the conttary ate not persuasive. First, the Commissioner does not agtee that the conflict identified and discussed herein is an apparent conflict, but instead describes it as a “gap in the DOT’s evidence,” based on the fact that the DOT does not address whether a given job can be performed bilaterally or unilaterally. (Def.’s Br. at 9.) However, this is the same contention that was considered and rejected by the Fourth Circuit in Pearson. Specifically, in Pearson, the RFC included a limitation to “occasional overhead lifting/treaching using the nondominant upper extremity,” but the three occupations identified by the vocational expert at step five all reflected “frequent reaching” in the DOT. Peatson, 810 F.3d at 206 . In Pearson, as in the present case, the Commissioner argued that there was no apparent conflict between the general reaching restrictions in the DOT and the nattow testtictions found by the ALJ. However, the Fourth Circuit concluded that this was exactly the type of apparent conflict that required further explanation and resolution by the ALJ. Likewise, this Court concludes that there is an apparent conflict here that the VE and the AL] were obliged to identify and resolve. See also Boston v. Colvin, No. 4:14-CV-206-D, 2016 WL 721563 , at *8 DNC. Feb. 2, 2016) (collecting cases holding that “the VE’s ptoposal of a job that requires a frequency of reaching that a claimant cannot perform with one of his atms creates a conflict with the DOT that the ALJ is required to tesolve”). Second, referencing the quoted dialogue between the VE and the AL] set forth above, the Commissioner contends that, “the ALJ and the VE identified the teaching issue that existed in this situation.” (Def’s Br. [Doc. #13] at 8.) However, as explained, although the — 14 — VE mentioned a conflict telated to reaching, she never explained the specific details of this conflict. The AL] also failed to interpret the testimony or tesolve the conflict. Thus, the Coutt is left to speculate as to precisely what the VE meant in her ambiguous remarks about the “breakdown” in “reaching left versus right,” which is not sufficient or appropriate on judicial review. Third, the Commissioner contends further that “[b]y characterizing [the VE’s| testimony as ‘outside the DOT? the VE essentially highlighted the fact that the DOT does not address whether its reaching requirements apply bilaterally or unilaterally.” (Def.’s Br. at 9.) The Commissioner reasons further that “[t]he VE confirmed that, despite being limited to occasional teaching with his right atm, Plaintiff could still perform the three jobs identified — ie., Plaintiff could use his left arm to perform the frequent reaching cited in the DOT. (Tr. at 66.) The VE explained that het conclusion was based on her 25 yeats of experience, including talking with employers and being in the industry (I'r. 66).” (Def.’s Br. at 9.) The Court does not find this argument persuasive. Nowhere in her testimony did the VE state that Plaintiff “could use his left arm to perform the frequent reaching cited in the DOT” and trequited by the three jobs the AL] concluded Plaintiff could perform. Instead, what the VE said was that her testimony was “somewhat outside the DOT” with regards to the “breakdown of teaching tight versus left.” (Tr. at 66.) Again, the Court concludes that it would be unduly speculative to infet the former from the latter. And, in fact, the Fourth Circuit has cautioned against performing such guesswork. See Pearson, 619 F.3d at 211 (concluding that “[a]lthough we could guess what these occupations tequite in reality, it is the purview of the ALJ to elicit an explanation from the expert as to whether these occupations do, in fact, requite frequent bilateral overhead reaching.”’). In summaty, it is clear that the VE in this case never meaningfully identified the conflict at issue here, and there is no testimony or discussion that is susceptible to judicial review explaining how the conflict was resolved. As discussed above, the Fourth Circuit clarified in Peatson that the VE’s testimony can only provide substantial evidence to support the AL]’s decision if the AL] received an explanation from the expert explaining the conflict and detetmined both that the explanation was reasonable and that it provided a basis for relying on the expett’s testimony rather than the DOT. ‘That analysis was not adequately performed hete. Accordingly, this matter requites remand based on the analysis set out in Pearson. None of this necessarily means that Plaintiff is disabled under the Act and the Court expresses no opinion on that matter. Nevertheless, the Court concludes that the proper course here is to remand this matter for further administrative proceedings. To the extent Plaintiff taises any other issues in his motion, the Court declines consideration of any such issues at this time. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D. Va. 2002) (on remand, the ptior decision is of no preclusive effect, as it is vacated and the new hearing is conducted). IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405 (g). The Commissioner should be directed to remand the matter to the AL] for proceedings consistent with this Recommendation. this extent, Defendant’s Motion for Judgment on the Pleadings [Doc. # 12] should be DENIED, and — 16 — Plaintiffs Motion for Summary Judgment [Doc. # 10] should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate awatd of benefits, it should be DENIED. This, the 26th day of August, 2019. /s/ Joi Elizabeth Peake United States Magistrate Judge — 17 —