                             UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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 court’s

order granting summary judgment to the Commissioner and finding

that    substantial         evidence          supported        the     Administrative              Law

Judge’s (“ALJ”) determination that Henderson was not disabled

under   the    standards       set    forth         in   42    U.S.C.        § 405(g)       (2012).

Upon    review,      we   affirm     in       part   and       reverse       and       remand     with

instructions in part.



                                                I.

       “When       examining       [a         Social          Security            Administration]

disability      determination,            a    reviewing            court    is        required    to

uphold the determination when an ALJ has applied correct legal

standards      and    the    ALJ’s        factual        findings           are    supported       by

substantial evidence.”             Bird v. Comm’r, 699 F.3d 337, 340 (4th

Cir. 2012).        “Substantial evidence is such relevant evidence as

a   reasonable       mind     might       accept         as    adequate           to    support     a

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

2005) (internal quotation marks omitted).                             “It consists of more

than    a   mere     scintilla       of       evidence        but    may     be     less    than    a

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

2012) (internal quotation marks omitted).                                  “In reviewing for

substantial        evidence,       [the        court      should]          not     undertake        to

reweigh conflicting evidence, make credibility determinations,

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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    defer    to      the    ALJ’s       decision.        Id.     (internal

quotation       marks    omitted).            To     enable      judicial       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.”                   English v. Shalala, 10 F.3d 1080,

1082 (4th Cir. 1993).              A five-step sequential process is used to

evaluate a disability claim.                    See 20 C.F.R. § 404.1520(a)(4)

(2015).        First,     the      ALJ    considers       whether     the   claimant      is

engaged    in       substantial       gainful      activity.         If   not,     the   ALJ

determines          whether     the      claimant        has   “a    severe       medically

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determinable         physical       or    mental        impairment        .    .        .   or    a

combination       of     impairments            that      is     severe.”          20       C.F.R.

§ 404.1520(a)(4).              If    so,        the     ALJ     decides       whether        that

impairment or combination of impairments meets or equals one of

the listings at appendix 1.                20 C.F.R. § 404.1520(d) (2015).                       If

not,    the    ALJ     assesses          the    claimant’s        residual         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 claimant’s age, education, work experience, and RFC, the

claimant can perform alternative work that exists in substantial

numbers in the national economy.                      20 C.F.R. § 404.1520(a)(4)(i)-

(v);   Hines     v.    Barnhart,         453    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    activity      since      his        alleged    onset     date      and       that     he

suffered      from    severe    impairments            including       degenerative          disc

disease    and       borderline      intelligence.               The    ALJ     found        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



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requirements      of   Medical    Listing        12.05(C)    and    that    the    ALJ

erroneously failed to consider that listing.

       Listing    12.05(C)     requires      a    showing     of    “significantly

subaverage      general   intellectual       functioning       with    deficits     in

adaptive        functioning      initially          manifested         during      the

developmental      period;      i.e.,     the      evidence      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”).            20 C.F.R. Pt. 404, Subpt. P, App.

1,    § 12.05.      The   Commissioner       does      not   contest      Henderson’s

ability    to    establish    Prong     Three    but    argues     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    performed      a      psychological       evaluation      of

Henderson in 2011.           Dr. Marcus reported that Henderson’s full

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

65.    However, Dr. Marcus noted that Henderson’s processing speed

had a negative impact upon his IQ score, and she concluded that

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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        [and]    the    narrative      report      .   .    .   should

comment    on    whether      the    IQ     scores    are   considered          valid    and

consistent      with   the    developmental          history     and    the     degree    of

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

§ 12.00(D)(6)(a).          Given     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.



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                                           III.

       Henderson next contends that the ALJ erred in failing to

conclude that he met Listing 1.04 for disorders of the spine.                             A

claimant     is    entitled     to   a    conclusive      presumption      that    he    is

disabled if he can show that his disorder results in compromise

of a nerve root or the spinal cord.                 20 C.F.R. Part 404, Subpart

P,   App.    1,    §   1.04.      Listing       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)      positive     straight     leg     raising   test        (sitting      and

supine).       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    loss    accompanied       by   sensory    or      reflex     loss.

Henderson      avers     that     he     produced      evidence      of    motor     loss

(exhibited muscle weakness), sensory loss (decreased reflexes),

and positive straight leg raising tests.                       However, Henderson

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provided no        evidence       of   atrophy,       and    his       evidence        of    muscle

weakness—a        lone    clinical       finding      that       his    leg    strength         was

“4+/5”—fails to undercut the substantial conflicting evidence in

the record that his strength was consistently “5/5,” “stable,”

or “normal.”             Accordingly, the district court properly found

that   the    ALJ’s       conclusion      that       Henderson         did    not      meet     the

Listing was supported by substantial evidence.



                                               IV.

       Finally,      Henderson         argues       that    the    vocational           expert’s

(“VE”)    testimony        was     flawed      because       it    created         a    possible

conflict with the Dictionary of Occupational Titles (“DOT”) and

that   the    ALJ    failed       to   resolve       the    conflict.          Specifically,

Henderson     claims       that    the    VE    testified         that    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 one-

or two-step instructions”, GED Reasoning Code 2 requires the

employee     to     “[a]pply      commonsense         understanding           to       carry   out

detailed      but        uninvolved       written           or     oral       instructions.”

Dictionary of Occupational Titles, 1991 WL 688702 (2008); see

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also   Rounds     v.    Comm’r,     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 VE’s

testimony and the DOT.

       Social Security Ruling 00–4p provides that the ALJ “has an

affirmative     responsibility         to      ask    [a    VE]   about       any    possible

conflict between [his] evidence and . . . the DOT.”                                SSR 00-4p,

2000 WL 1898704, at *4 (Dec. 4, 2000).                        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 VE’s testimony and

must explain the resolution of the conflict in his decision.

Id.

       Contrary        to   the     district          court’s        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    court’s         judgment      in     this        case,      we     agreed     with

                                             9
Henderson,        ruling    that       the   “ALJ    independently      must    identify

conflicts between the expert’s testimony and the [DOT]” and that

merely       asking       the    VE     if   there        were   any    conflicts      was

insufficient.            In addition, we held that a VE’s 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

VE’s testimony rather than the DOT.                      See id. at 209-10.       Noting

that     a     Social       Security         Administration        hearing      is     not

adversarial, we decided that an ALJ has not fully developed the

record if it contains an unresolved conflict between the VE’s

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 VE’s 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    VE’s    conclusory        testimony    that   there    was    no

conflict between his testimony and the DOT.                       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 VE’s 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 VE’s

conclusory      statement     that   a    conflict      did       not    exist     was

insufficient, and the ALJ did not inquire further.                      Accordingly,

we   reverse    the   district   court’s       conclusion     that       substantial

evidence supported the ALJ’s 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




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