                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-1424


TERRY BOYD RHOLETTER,

                Plaintiff - Appellant,

          v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security,

                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-00005-RJC)


Submitted:   January 28, 2016             Decided:   February 16, 2016


Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Paul B. Eaglin, OLINSKY LAW GROUP, Syracuse, New York, for
Appellant. Jill Westmoreland Rose, United States Attorney, Mark
J.   Goldenberg,  Special   Assistant United  States  Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Terry    Boyd    Rholetter    appeals      the    district       court’s   order

granting summary judgment to the Commissioner and upholding the

Commissioner’s denial of Rholetter’s application for disability

insurance benefits.         Upon review, we reverse and remand with

instructions.

                                        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 of Soc. Sec. Admin., 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,      we    do     not     undertake    to

reweigh conflicting evidence, make credibility determinations,

or substitute our judgment for that of the ALJ.”                       Johnson, 434

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



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Rather, “[w]here conflicting evidence allows reasonable minds to

differ,” we defer to the Commissioner’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.              Id.

§ 404.1520(a)(4)(i).           If he is not, the ALJ determines whether

the claimant has “a severe medically determinable physical or



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mental impairment . . . or combination of impairments that is

severe.”    Id. § 404.1520(a)(4)(ii).                 If he does, the ALJ decides

whether that impairment or combination of impairments meets or

equals one of the listings at 20 C.F.R. Pt. 404, Subpt. P,

App. 1.     Id. § 404.1520(a)(4)(iii).                     If it does not, the ALJ

assesses the claimant’s residual functional capacity (“RFC”) to

determine whether the claimant retains the ability to perform

past relevant work.            Id. § 404.1520(a)(4)(iv).                 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 significant numbers in the national economy.                              Id.

§ 404.1520(a)(4)(v); Mascio v. Colvin, 780 F.3d 632, 635 (4th

Cir. 2015).        “The Commissioner typically offers this evidence

through the testimony of a vocational expert responding to a

hypothetical       that     incorporates            the    claimant’s       limitations.”

Mascio, 780 F.3d at 635.

                                              II.

      The ALJ found that Rholetter had not engaged in substantial

gainful    activity       since      his     alleged       onset    date    and   that   he

suffered    from      severe      impairments        including       below    right   knee

amputation,        coronary          artery        disease,        lumbar     compression

deformity      with    loss     of   vertebral       height,       diverticulitis,       and



                                               4
obesity.       The     ALJ    found      that      Rholetter       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.                              Finding that

Rholetter could no longer perform his past relevant work, the

ALJ relied on the testimony of a vocational expert to conclude

that Rholetter retained the RFC to perform jobs that exist in

the national economy and was, therefore, not disabled.

                                          III.

       Rholetter argues on appeal that the ALJ failed to reconcile

inconsistencies         between       the        expert’s       testimony         and     the

Dictionary     of     Occupational          Titles      (“DOT”).           Specifically,

Rholetter argues that the expert testified that he could perform

three jobs, all of which carry a Language Development Level of

two, despite an RFC limiting him to jobs that can be performed

by someone reading and/or writing at a first- or second-grade

level.       Reading     between      the     first-      and      second-grade         level

generally corresponds to reading at a Language Development Level

of   one.     See    Hernandez      v.   Colvin,        No.   13     CV   1955,    2014    WL

4784076, at *4 (N.D. Ill. Sept. 25, 2014) (expert testified that

Level    1   language     requirement         translates        to    reading      between

first- and third-grade levels); Lowe v. Astrue, No. 09 CV 4150,

2010    WL   4684036,    at    *4     (N.D.      Ill.    Nov.      12,    2010)    (expert




                                             5
testified that DOT language classifications of Levels 1 and 2

conflicted with claimant’s first-grade reading level).

       Social Security Ruling (“SSR”) 00–4p provides that the ALJ

“has     an   affirmative        responsibility      to    ask    [the    vocational

expert] 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 expert 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   expert’s       testimony     and    must    explain    the

resolution of the conflict in his decision.                 Id.

       In the recent decision of Pearson v. Colvin, __ F.3d __,

2015 WL 9204335 (4th Cir. Dec. 17, 2015), decided after the

district court’s judgment in this case, we held that the “ALJ

independently       must    identify      conflicts       between   the    expert’s

testimony and the [DOT].”               Id. at *4.          SSR 00-4p “requires

nothing of the claimant,” so Rholetter’s failure to raise the

conflict at the hearing does not preclude a finding that an

apparent conflict exists.           Id. at *6.

       In addition, we held in Pearson that an expert’s testimony

that     apparently      conflicts      with   the    DOT     can   only     provide

substantial evidence if the ALJ received an explanation from the



                                          6
expert    explaining         the    conflict          and    determined       both     that      the

explanation      was    reasonable          and       that    it     provided    a    basis      for

relying on the expert’s testimony rather than the DOT.                                 See 2015

WL 9204335 at *5.            Noting that a social security hearing is not

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

record if the record contains an unresolved conflict between the

expert’s testimony and the DOT.                        See id.         We determined that,

because     there       was     no        explanation          regarding        the     apparent

conflict,    there      was     no    reasonable             basis    for    relying        on   the

expert’s testimony, and, thus, the testimony could not provide

substantial evidence for a denial of benefits.                              See id.

       We conclude here that, on the basis of Pearson, the ALJ

erred, first, by not asking the expert about conflicts between

his    testimony       and    the     DOT    and,       second,        by    relying        on   the

expert’s testimony despite the expert’s failure to explain an

apparent    conflict          between       an    RFC        that    limits     Rholetter        to

reading     at   a     first-        or    second-grade             level    and      the    DOT’s

classification of the jobs identified by the expert as requiring

a Language Development Level of two.                           Thus, under Pearson, the

expert’s    testimony         in    this     case       did    not     provide       substantial

evidence that there was work that Rholetter could do given his

RFC.     Accordingly, we reverse the district court’s conclusion

that substantial evidence supported the ALJ’s finding that work



                                                  7
that Rholetter could perform existed in significant numbers in

the national economy, and we direct the district court to remand

the case to the Commissioner with instructions to consider the

impact of Pearson.

     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.



                                                  REVERSED AND REMANDED




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