McCalla v. Social Security Administration

Filing 17

ORDER AFFIRMING THE COMMISSIONER. Substantial evidence supports the ALJ's decision. No error occurred. The Court denies McCalla's request for relief, 2 , and affirms the Commissioner's decision. Signed by Magistrate Judge J. Thomas Ray on 8/21/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Heidi McCalla

Plaintiff

v.

CASE NO. 3:14CV00153 JTR

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration

Defendant

ORDER AFFIRMING THE COMMISSIONER
Heidi McCalla seeks judicial review of the denial of her application for
disability insurance benefits (DIB) and supplemental security income (SSI). McCalla
applied for DIB and SSI on September 9, 2008, with an alleged onset date of
September 4, 2008.1 McCalla last worked as a retail cash clerk in 2008.2 She bases
disability on severe depression and back pain.3
The Commissioner’s decision. The Commissioner’s ALJ determined that
McCalla has not engaged in substantial gainful activity since the alleged onset date.4
McCalla has severe impairments - back pain, obesity, vision issues, borderline
intellectual functioning, bipolar disorder and depressive disorder.5 None of McCalla’s

1

SSA record at pp. 251 & 255.

2

Id. at pp. 74, 83 & 305.

3

Id. at p. 298.

4

Id. at p. 31.

5

Id. at p. 32.

severe impairments meet the Listings.6 McCalla can perform light work, but with the
following limitations:
•

can occasionally stoop and crouch;

•

can never climb ladders;

•

must avoid jobs requiring excellent vision, but can see well
enough to avoid hazards;

•

must avoid extreme cold;

•

can understand, retain and carry out simple instructions;

•

can make simple work related decisions;

•

can perform work where the complexity of tasks is learned and
performed by rote, with few variables and little judgment;

•

can work in an environment with few, if any work place changes;

•

can perform work where interpersonal contact is incidental to
work performed; and

•

can perform work where supervision required is simple, direct and
concrete.7

The ALJ held that McCalla cannot perform any past relevant work, but can perform
the positions of office helper and order clerk, positions identified by the vocational

6

Id. at p. 32.

7

Id. at p. 35.
2

expert (VE) as available in the state and national economies.8 McCalla’s application
was denied.9
After the Commissioner’s Appeals Council denied a request for review, the
ALJ’s decision became a final decision for judicial review.10 McCalla filed this case
to challenge the decision. In reviewing the decision, the Court must determine whether
substantial evidence supports the decision and whether the ALJ made a legal error.11
McCalla makes only one argument on review. She maintains that the ALJ’s
denial of disability benefits should be reversed because the VE’s testimony conflicts
with the Dictionary of Occupational Titles (DOT).
DOT conflict. McCalla argues that the two jobs identified by the VE - office
helper and order clerk - require reasoning abilities greater than that assessed by the
8

Id. at pp. 43-44.

9

Id. at p. 45.

10

See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “the
Social Security Act precludes general federal subject matter jurisdiction until
administrative remedies have been exhausted” and explaining that the appeal
procedure permits claimants to appeal only final decisions).
11

See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997) (“We will uphold the Commissioner’s decision to deny any
applicant disability benefits if the decision is not based on legal error and if there is
substantial evidence in the record as a whole to support the conclusion that the
claimant was not disabled.”).
3

ALJ in the hypothetical. Office helper requires a level two reasoning ability and order
clerk requires a level three reasoning ability. McCalla’s argument is two-part. She first
states that the hypothetical limited her to a level one reasoning ability. Therefore, she
could not perform jobs requiring level two or three reasoning abilities. Second, she
maintains that even if she was not limited to a level one reasoning ability, the “simple
instructions” limitation contained in the hypothetical prevents her from performing
jobs requiring level two or three reasoning abilities. Thus, McCalla asserts, the
testimony of the VE conflicts with the DOT and it was error for the ALJ to hold that
she can perform the positions identified. McCalla’s arguments are unpersuasive.
During the hearing, the ALJ presented the VE with a hypothetical individual
who, among other things, is limited to unskilled work - defined as the ability to
understand, retain and carry out simple instructions. The VE identified office helper
and order clerk as positions available to such an individual.
McCalla first maintains that, although not expressly stated, the hypothetical
included a level one reasoning ability limitation. Level one reasoning requires
“[a]pply[ing] commonsense understanding to carry out simple one- or to-step
instructions.”12 McCalla asserts that in determining that she can perform only simple
instructions, the ALJ relied on a July 2012 psychological evaluation finding that

12

Dictionary of Occupational Titles, Appendix C, III.
4

McCalla “can remember and comply with simple one and two part instructions.”13
This establishes, according to McCalla, that the ALJ intended that McCalla be limited
to simple one and two part instructions, and, therefore, McCalla was limited to a level
one reasoning ability.
The ALJ did not limit the hypothetical individual to a level one reasoning
ability. There is no mention of “simple one- and two-part instructions,” in the
hypothetical or the RFC, and the ALJ did not cite the July 2012 evaluation when
outlining the unskilled work restriction. Indeed, the ALJ made note of the evaluation
in the decision, but did not reference the psychologist’s determination regarding
“simple one and two part instructions.”14 McCalla’s first argument fails.
For her second argument, McCalla maintains that an individual limited to
“simple instructions,” or unskilled work, cannot perform jobs requiring a level two or
level three reasoning ability. In Moore v. Astrue, the Eighth Circuit specifically held
that an individual limited to simple job instructions can perform work requiring level
two reasoning.15 In Moore, the claimant made an argument almost identical to that
presented by McCalla. The Court in Moore noted that the ALJ did not limit the

13

SSA record at p. 612.

14

Id. at pp. 39 & 42.

15

Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010).
5

individual to “simple one- or two-step instructions,” but only to “simple
instructions.”16 The same is true in the instant case. There was no conflict between the
DOT and the VE’s testimony that McCalla can perform the position of office helper.
Although the Eighth Circuit has not unequivocally determined that individuals
limited to unskilled work can perform jobs with level three reasoning ability
requirements, it has given guidance on the issue. In Renfrow v. Astrue, the claimant
could not perform complex, technical work and was limited to unskilled work.17 The
VE identified jobs requiring a reasoning level of three.18 The Court stated that “[t]he
jobs in question are both classified as unskilled and so do not appear to be
‘complex.’”19, 20 The Court then cited to another Eighth Circuit case, Hillier v. Social
Security Administration, in which a VE opined that an individual limited to “simple,
concrete instructions” could work in a position requiring level three reasoning.21 As
in Moore, the Hillier Court determined that there was no conflict. District courts

16

Id.

17

Renfrow v. Astrue, 496 F.3d 918, 920 (8th Cir. 2007).

18

Id. at 921.

19

Id.

20

Both jobs identified by the VE in the instant case are classified as “unskilled.”

21

See Hiller v. Social Security Admin., 486 F.3d 359, 367 (8th Cir. 2007).
6

within the Eighth Circuit have taken the language in Moore and Hillier to mean that
individuals limited to unskilled work can perform jobs requiring a level three
reasoning ability.22
This court follows the findings of the courts in Renfrow, Hillier, Birlew and
Spiller. No conflict exists between the “simple instructions” limitation and the level
three reasoning ability position - order clerk - identified by the VE. Level three
reasoning ability requires an individual to “[a]pply commonsense understanding to
carry out instructions furnished in written, oral, or diagrammatic form,” and “deal with
problems involving several concrete variables in or from standardized situations.”23
This does not appear to conflict with an individual capable of carrying out “simple
instructions.” This seems particularly true when viewed through the lens of the DOT
description of order clerk. According to the DOT, an order clerk
Takes food and beverage orders over telephone or intercom system and
records order on ticket: Records order and time received on ticket to
ensure prompt service, using time-stamping device. Suggests menu
items, and substitutions for items not available, and answers questions
regarding food or service. Distributes order tickets or calls out order to

22

See Birlew v. Astrue, No. 4:07CV01231 FRB, 2008 WL 2967108, at *18 (E.D.
Mo. July 31, 2008); Spiller v. Astrue, No. 4:10CV2240 CAS(LMB), 2011 WL
7500572, at *19 (E.D. Mo. Oct. 31, 2011).
23

Dictionary of Occupational Titles, Appendix C, III.
7

kitchen employees. May collect charge vouchers and cash for service and
keep record of transactions.24
Further, the level three reasoning is the upper limit of jobs contained in the category
of order clerk and is therefore not required of every job in that category.25 There is no
indication that the VE ignored the limitations contained in the hypothetical when she
identified the positions available to McCalla.
Although the court finds that no error occurred, even if the VE’s testimony
regarding the position of order clerk conflicts with the DOT, any error was harmless
because the VE identified another position available to McCalla that does not conflict
with the DOT.26 Therefore, even absent the alleged error, the ALJ would have denied
disability benefits.

24

Id. at 209.567-014.

25

See Page v. Astrue, 484 F.3d 1040, 1045 (8th Cir. 2007) (“[A] claimant’s
reliance on the DOT as a definitive authority on job requirements is misplaced
because DOT definitions are simply generic job descriptions that offer the
approximate maximum requirements for each position, rather than their range.”
(internal quotation marks omitted)); Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir.
2000) (“The DOT itself cautions that its descriptions may not coincide in every
respect with the content of jobs as performed in particular establishments or at certain
localities.”).
26

See Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (“To show an error was
not harmless, [the claimant] must provide some indication that he ALJ would have
decided differently if the error had not occurred.”).
8

There is no conflict between the DOT and the VE testimony. Even if an error
occurred, it was harmless.
Conclusion. Substantial evidence supports the ALJ’s decision. No error
occurred. The court DENIES McCalla’s request for relief (docket entry # 2) and
AFFIRMS the Commissioner’s decision.
It is so ordered this 21st day of August, 2015.

___________________________________
UNITED STATES MAGISTRATE JUDGE

9