Unpublished

UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Eugene Henderson appeals from the district courts
order granting summary judgment to the Commissioner and finding
that
substantial
evidence
supported
the
Administrative
Law
Judges (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
ALJs
substantial evidence.
Cir. 2012).
a
findings
mere
supported
by
Bird v. Commr, 699 F.3d 337, 340 (4th
mind
might
accept
as
adequate
to
support
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
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,

2
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
ALJs
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
the
If
claimant
not,
severe
the
is
ALJ
medically
determinable
combination
physical
of
or
mental
impairments
404.1520(a)(4).
If
impairment
that
so,
the
is
ALJ
severe.
decides
.
20
or
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
claimants
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 claimants 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
requirements
of
Medical
Listing
12.05(C)
and
that
the
ALJ
erroneously failed to consider that listing.

Listing
12.05(C)
subaverage
general
adaptive
functioning
developmental
requires
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
Hendersons
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
psychological
evaluation
of
Dr. Marcus reported that Hendersons full
scale IQ score on the Wechsler Adult Intelligence Scale-IV was

65.
However, Dr. Marcus noted that Hendersons processing speed
had a negative impact upon his IQ score, and she concluded that
5
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.
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
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
provided no
weaknessa
evidence
lone
of
atrophy,
clinical
and
finding
his
that
evidence
his
leg
of
muscle
strength
was
4+/5fails 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
ALJs
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
experts
created
possible
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
also
Rounds
v.
Commr,
807
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 VEs

testimony and the DOT.
Social Security Ruling 004p 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 VEs testimony and

must explain the resolution of the conflict in his decision.
Id.
Contrary
to
the
district
courts
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
courts
judgment
in
9
this
case,
we
agreed
with
Henderson,
ruling
that
the
ALJ
independently
must
identify
conflicts between the experts testimony and the [DOT] and that
merely
asking
insufficient.
the
VE
if
there
were
any
conflicts
was
In addition, we held that a VEs 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
VEs testimony rather than the DOT.
that
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 VEs
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 VEs 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
VEs
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
10
requires the ability to understand detailed instructions.
Thus,
under Pearson, the VEs 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 VEs
conclusory
statement
that
conflict
did
not
insufficient, and the ALJ did not inquire further.

we
reverse
the
district
courts
conclusion
exist
was
Accordingly,
that
substantial
evidence supported the ALJs 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
11

Unpublished

Uploaded by

Copyright:

Available Formats

Unpublished

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Unpublished

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

JONATHAN EUGENE HENDERSON,

December 29, 2015

Before KING, DIAZ, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished

Paul B. Eaglin, OLINSKY LAW GROUP, Syracuse, New York, for

Unpublished opinions are not binding precedent in this circuit.

Judges (ALJ) determination that Henderson was not disabled

uphold the determination when an ALJ has applied correct legal

Bird v. Commr, 699 F.3d 337, 340 (4th

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

2005) (internal quotation marks omitted).

Substantial evidence is such relevant evidence as

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

2012) (internal quotation marks omitted).

reweigh conflicting evidence, make credibility determinations,

or substitute [its] judgment for that of the ALJ.

F.3d at 653 (internal quotation marks and alteration omitted).

substantial evidence, [t]he record should include a discussion

medically determinable physical or mental impairment which can

42 U.S.C. 423(d)(1)(A) (2012).

The claimant bears

the burden of proving that he is disabled within the meaning of

English v. Shalala, 10 F.3d 1080,

A five-step sequential process is used to

evaluate a disability claim.

See 20 C.F.R. 404.1520(a)(4)

impairment or combination of impairments meets or equals one of

20 C.F.R. 404.1520(d) (2015).

capacity (RFC) to determine whether he retains the ability to

If he does not, the burden shifts

at the fifth step to the Commissioner to establish that, given

(noting Commissioner bears evidentiary burden at step five).

Henderson did not have an impairment that met or equaled one of

On appeal, Henderson first contends that he meets the

erroneously failed to consider that listing.

supports onset of the impairment before age 22 (Prong One);

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

establish either Prong One or Two.

In Prong Two, Henderson had the burden

to satisfy Listing 12.05(C) by providing a valid IQ score within

Hancock, 667 F.3d at 475.

score in the record is provided by Dr. Karen Marcus, Clinical

Dr. Marcus reported that Hendersons full

scale IQ score on the Wechsler Adult Intelligence Scale-IV was

However, Dr. Marcus noted that Hendersons processing speed

Henderson had a learning disorder, but that his intelligence was

extremely low range suggested by his IQ score.

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

concerns with the validity of the only IQ test in the record, we

See Hancock, 667

Henderson also contends that the ALJ erred in requiring a

disabled if he can show that his disorder results in compromise

20 C.F.R. Part 404, Subpart

criteria a claimant must meet or equal to merit a conclusive

characterized by (1) neuro-anatomic distribution of pain, (2)

Henderson bore the burden of demonstrating that his