United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
social-security appeal is before the Court on the Report and
Recommendation C'R&R")  of United States
Magistrate Judge Linda R. Anderson. Plaintiff Chakuisha Gates
appealed the final decision of the Social Security
Administration denying her applications for a period of
disability, disability insurance benefits, and
social-security income. Judge Anderson recommended that the
Court deny Gates's Motion for Summary Judgment , grant
Defendant Nancy A. Berryhill's, acting Commissioner of
Social Security ("Commissioner"), Motion to Affirm
, dismiss Gates's appeal with prejudice, and enter
final judgment in favor of the Commissioner. Gates timely
filed Objections  to the R&R. For the following
reasons, the Court adopts the R&R
objects to Judge Anderson's conclusion that at step five
of the sequential evaluation no direct or apparent conflict
existed between the testimony of the Vocational Expert
("VE") and the Department of Labor's Dictionary
of Occupational Titles ("DOT") for the
Administrative Law Judge ("ALJ") to identify and
resolve. PL's Obj.  at 3. Gates also takes issue with
two of Judge Anderson's related findings: (1) that if a
conflict did exist, it was an implied or indirect conflict,
and (2) that Gates's failure to cross-examine the VE at
the administrative hearing on the purported conflict
forecloses her argument on appeal. Id. at 3-4.
Court will first address the alleged conflict, then turn to
consider the waiver issue.
assessed Gates's residual functional capacity
("RFC") as follows:
the undersigned finds that the claimant has the [RFC] to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she needs the option to sit or stand at
will, but will not be off task for more than ten percent of
the work period. The individual could perform simple,
routine, and repetitive tasks, with only occasional
interaction with the general public and coworkers.
R.  at 24. And during the hearing, the ALJ gave the VE a
hypothetical consistent with that finding. Id. at
123. From this, the VE testified that Gates could perform the
available occupation of a surveillance monitor. Id.
says the VE's testimony failed to satisfy the
Commissioner's burden at step five because her RFC
limitation to simple, routine, and repetitive tasks conflicts
with the DOT assessment of a surveillance monitor, which
requires Level Three Reasoning. PL's Obj.  at 3.
Gates argues that the ALJ's opinion violated Social
Security Policy Interpretation Ruling C'SSR") 00-4p,
2000 WL 1898704, at *2, because neither the VE nor the ALJ
accounted for this conflict. Id.
[o]ccupational evidence provided by a VE or VS generally
should be consistent with the occupational information
supplied by the DOT. When there is an apparent unresolved
conflict between VE or VS evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE or VS evidence to support a
determination or decision about whether the claimant is
disabled. At the hearings level, as part of the
adjudicator's duty to fully develop the record, the
adjudicator will inquire, on the record, as to whether or not
there is such consistency
2000 WL 1898704, at *2; see also Graves v. Colvin,
837 F.3d 589, 592 (5th Cir. 2016) (holding under SSR 00-4P an
ALJ must inquire into "any possible conflict"
between VE conclusions and DOT). In this case, the VE
testified about requirements of a surveillance monitor, and
the ALJ asked the VE whether that testimony was consistent
with the DOT. Admin. R.  at 123-24. The VE then answered
in the affirmative. Id. at 124.
this exchange at the administrative hearing, Gates believes
there was still an apparent unresolved conflict the ALJ
failed to address. Judge Anderson correctly concluded,
however, that this Court follows the majority of this
circuit's district courts in holding that an RFC limited
to simple, routine, and repetitive tasks is not in apparent
or direct conflict with a Level-Three-Reasoning occupation.
R&R  at 6-7 (collecting cases). Gates acknowledges
Judge Anderson's line of cases but objects and says that
other judges in this district have held the opposite.
PL's Obj.  at 3 (citing Jefferson v. Astrue,
No. 2:12-CV-5-KS-MTP, 2013 WL 12323489 (S.D.Miss. Jan. 29,
2013), report & recommendation adopted, 2013 WL
12323489 (S.D.Miss. Mar. 22, 2013); Lloyd v. Astrue,
No. 1:ll-CV-263-LG-RHW, 2012 WL 3685967 (S.D.Miss. June 21,
2012), report & recommendation adopted, 2012 WL
3655463 (S.D.Miss. Aug. 24, 2012).
undersigned has twice considered the split of authority Gates
relies on for this same issue and has twice followed the
majority approach. See Wilson v. Berryhill, No.
3:15-CV-71-DPJ-LRA, 2017 WL 4247556, at *2 (S.D.Miss., Sept.
25, 2017); see also Ruffin v. Colvin, No.
3:16-CV-18-DPJ- LRA, 2017 WL 536549, at *4-5 (S.D.Miss. Feb.
8, 2017). Further, neither Lloyd nor
Jefferson are binding. The Court therefore agrees
with the R&R that there is no apparent or direct
conflict. R&R  at 7.
Court now turns to consider whether Gates nevertheless waived
this argument by failing to raise it during the
administrative hearing. Gates objects to Judge Anderson's
conclusion that she waived her conflict argument when she
failed to cross-examine the VE. PL's Obj.  at 3.
Specifically, Gates says although she failed to cross-examine
the VE, she "raised the issue specifically with the
ALJ" after the hearing. Id. at 3-4.
Gates argues that it is "unreasonable to expect
Plaintiffs counsel to know this information without research
or to delay the hearing to search for it." Id.