United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III UNITED STATES DISTRICT JUDGE
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  of United States
Magistrate Judge Linda R. Anderson. Judge Anderson
recommended that the Court deny Ruffin's Motion for
Summary Judgment , grant Defendant's Motion to Affirm
, dismiss Ruffin's appeal with prejudice, and enter
final judgment in favor of Defendant. Ruffin timely filed
Objections  to the Report and Recommendation, and
Defendant filed a Notice  indicating that she did not
intend to respond to the Objections. For the reasons that
follow, the Court adopts the Report and
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.
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
R.  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.
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.
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.  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. She further
argues that the error resulting from the ALJ's failure to
address the conflict was not harmless and therefore requires
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.  at 65-66, so the ALJ erred by
failing to ask whether conflicts existed.
“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
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)).
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 . . .”).
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.  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.
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).
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))).
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.  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