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Ruffin v. Colvin

United States District Court, S.D. Mississippi, Northern Division

February 8, 2017

STEPHANIE RUFFIN PLAINTIFF
v.
CAROLYN COLVIN, Acting Commissioner of Social Security DEFENDANT

          ORDER

          DANIEL P. JORDAN III UNITED STATES DISTRICT JUDGE

         This appeal from the final decision of the Social Security Administration denying Plaintiff Stephanie Ruffin's applications for a period of disability, disability insurance benefits, and social-security income is before the Court on the Report and Recommendation [14] of United States Magistrate Judge Linda R. Anderson. Judge Anderson recommended that the Court deny Ruffin's Motion for Summary Judgment [9], grant Defendant's Motion to Affirm [11], dismiss Ruffin's appeal with prejudice, and enter final judgment in favor of Defendant. Ruffin timely filed Objections [15] to the Report and Recommendation, and Defendant filed a Notice [16] indicating that she did not intend to respond to the Objections. For the reasons that follow, the Court adopts the Report and Recommendation.[1]

         Ruffin takes issue with Judge Anderson's resolution of the two related points that form the basis of her appeal: that the Administrative Law Judge (“ALJ”) generally failed to establish the existence of work Ruffin can perform, and that the ALJ specifically failed to resolve a conflict between the testimony of the Vocational Expert (“VE”) on that point and the Department of Labor's Dictionary of Occupational Titles (“DOT”). Because the latter argument premises the former, the Court focuses on the alleged conflict.

         The ALJ assessed Ruffin's residual functional capacity (“RFC”) as follows:

the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a); she can concentrate for at least two-hour periods at a time given simple, one- to two-step instruction. Her interaction with others such as coworkers and supervisors is appropriate as long as the interaction is occasional and on a basic level. She can perform work at a regular pace but not at a rapid pace. She can adjust to ordinary demands but not rapidly changing demands.

         Admin. R. [8] at 23 (emphasis added). And during the hearing, the ALJ gave the VE a hypothetical consistent with that finding. See Id. at 65. From this, the VE testified that Ruffin could perform three available occupations: food- and beverage-order clerk, call-out operator, and surveillance-system monitor. Id. at 65-66.

         Ruffin contends that the VE's testimony conflicts with the DOT assessment for these three occupations. The DOT “comprise[s] a comprehensive listing of job titles in the United States, along with detailed descriptions of requirements for each job, including assessments of exertional levels and reasoning abilities necessary for satisfactory performance of those jobs.” Gaspard v. Soc. Sec. Admin., Comm'r, 609 F.Supp.2d 607, 612 (E.D. Tex. 2009). “The DOT classifies every listed job as requiring a reasoning ability level from 1 to 6.” Id. at 614. The reasoning-ability level is one part of the General Educational Development score, which “embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance.” DOT, App. C, 1991 WL 688702 (4th ed. 1991).

         In this case, the three positions the VE identified all require a Reasoning Level of three, which calls for a worker to be able 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.” Id. But as Ruffin notes, the ALJ found that she could comply with only “simple, one- to two-step instruction.” Admin. R. [8] at 23. Ruffin sees this as an apparent, direct conflict that the ALJ was required to resolve under Social Security Policy Interpretation Ruling (“SSR”) 00-4P, 2000 WL 1898704, at *2.[2] She further argues that the error resulting from the ALJ's failure to address the conflict was not harmless and therefore requires remand.

         Ruffin's SSR 00-4P argument is correct to a point. SSR 00-4P states that “[w]hen a VE . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict.” 2000 WL 1898704, at *4 (emphasis added); see also Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016) (holding under SSR 00-4P that an ALJ must inquire into “any possible conflict” between the VE conclusions and DOT). In this case, the VE testified about requirements, see Admin. R. [8] at 65-66, so the ALJ erred by failing to ask whether conflicts existed.

         This “procedural” error must be considered under a harmless-error standard. Graves, 837 F.3d at 593. Thus, the Court “will not reverse the decision of [the] ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure.” Id. at 592-93 (quoting Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000) (quotation marks omitted)).

         The issues become more difficult at this point. Ruffin believes she has shown sufficient prejudice because, according to her, the VE's opinion directly conflicts with the DOT. And Graves v. Colvin at least suggests that such a conflict would produce prejudice. For starters, some-but not all-of the cases Graves cites for the harmless-error standard would find that a conflict establishes prejudice. See Id. at 593 n.2 (citing Poppa v. Astrue, 569 F.3d 1167, 1174 (10th Cir. 2009) (“Because there were no conflicts between the VE's testimony and the DOT's job descriptions, the ALJ's error in not inquiring about potential conflicts was harmless.”); Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009) (“Terry is correct that the ALJ did not ask the VE if his testimony conflicted with the DOT. However, the error is harmless unless there actually was a conflict.”) (additional citations omitted)).

         And consistent with those cases, Graves did examine the evidence to see whether a conflict existed. See Id. at 593. Finding none, the court concluded that substantial evidence supported the ALJ's decision, and the opinion ends there. Id. Based on its reading of Graves, this Court assumes that an actual conflict between the VE's testimony and the DOT as to the alternative occupations she identified would constitute prejudice. See Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (finding failure to follow SSR 00-4P harmless where there was no conflict as to some of the positions VE identified); see also DeLeon v. Barnhart, 174 F. App'x 201, 203 (5th Cir. 2006) (finding no conflict and holding, “Therefore, there was substantial evidence to support the Commissioner's finding . . .”).[3]

         The question then becomes whether Ruffin has shown a conflict in this case. See Shinseki v. Sanders, 556 U.S. 396, 409 (“[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.”), cited in Graves, 837 F.3d at 593 n.2. As previously noted, the ALJ determined that Ruffin could perform work with “simple, one- to two-step instruction.” Admin. R. [8] at 23 (emphasis added). She then found, based on the VE's testimony, that Ruffin could perform three alternative jobs that carry a DOT Reasoning Level of three. Id. at 28-29.

         “[N]umerous district and appellate courts have addressed whether a Reasoning Level of 3 conflicts with a limitation to simple, repetitive and routine tasks. There is a split of authority among those courts.” Johnson v. Astrue, No. 11-3030, 2012 WL 5472418, at *11 (E.D. La. Oct. 5, 2012), report & recommendation approved, 2012 WL 5472303 (E.D. La. Nov. 9, 2012) (collecting cases). But the majority of federal district courts have concluded “that ‘a job requiring level-three reasoning does not necessarily conflict with an RFC limited to simple and unskilled work.'” Thompson v. Astrue, No. 10-11742-JLT, 2012 WL 787367, at *10 (D. Mass. Feb. 17, 2012) (quoting Auger v. Astrue, 792 F.Supp.2d 92, 96-97 (D. Mass. 2011)), report & recommendation adopted, 2012 WL 787363 (D. Mass. Mar. 8, 2012).

         This Court agrees that an RFC limited to simple work or tasks is not necessarily inconsistent with level-three reasoning. See Johnson, 2012 WL 5472418, at *13 (examining Welch v. Astrue, No. 1:11-CV-384-GZS, 2012 WL 3113148, at *5 (D. Me. July 11, 2012), report & recommendation adopted, 2012 WL 3113144 (D. Me. July 31, 2012)); see also Riddle v. Colvin, No. 1:12-cv-787-WC, 2013 WL 6772419, at *6 (M.D. Ala. Dec. 20, 2013) (“Most courts which have addressed this issue have held that the requirement of Reasoning Level 2 or 3 is not inconsistent with the ability to perform only simple tasks.” (quoting Hurtado v. Astrue, No. 09-60930-CIV, 2010 WL 650261, at *11 (S.D. Fla. Apr. 14, 2010) (additional citations omitted))).

         But Ruffin's case is a bit murkier because the ALJ did not limit Ruffin to simple work or tasks, but instead described her limitations as involving “simple, one- to two-step instruction.” Admin. R. [8] at 23. There is some common-sense correlation between simple tasks and simple instructions. But fewer cases have examined alleged conflicts between DOT level-three reasoning and a limitation to work involving one- to two-step instructions. Again the results are mixed. Compare Hooks v. Astrue, No. CA 11-00243-C, 2012 WL 1207163, at *4 (S.D. Ala. Apr. 11, 2012) (noting split of authority but finding conflict between RFC limiting plaintiff to work involving one, two, or three step instructions and DOT Reasoning Level three), Whitney v. Astrue, No. 3:10-CV-01403-HU, 2012 WL 712985, at *5 (D. Or. Mar. 1, 2012) (finding conflict between RFC limit of simple one- to two-step instructions and DOT Reasoning Level three), with Lofton v. Colvin, No. 3:13CV528 JBA, 2015 WL 2367692, at *27 (D. Conn. May 13, 2015) (holding that “a restriction of simple tasks or instructions is consistent with both Reasoning Level Two and Three positions”), Arend v. Astrue, No. 8:11-CV-771-T-DNF, 2012 WL 3264909, at *6 (M.D. Fla. Aug. 10, 2012) (finding no conflict); Dugas v. Astrue, No. 1:07-CV-605, 2009 WL 1780121, at *6 (E.D. Tex. June 22, 2009) (“A limitation of performing 1-2 step instructions in a simple, ...


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