McCain v. Astrue

Filing 32

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 12/4/2013. Mailed notice(mjc, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KENNETH MCCAIN,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

Case No. 12 C 9652
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth McCain seeks to reverse and remand the Social Security
Administration Commissioner’s decision denying his claim for disability benefits. Defendant,
Commissioner Carolyn W. Colvin (“Commissioner”), has filed a cross-motion for summary
judgment, requesting that the Court affirm the final decision. For the reasons explained below,
McCain’s Motion [11] is denied; the Commissioner’s Motion [23] is granted; and the
Commissioner’s final decision is affirmed.
BACKGROUND
In March and April 2009, McCain applied for Child’s Insurance Benefits (“CIB”) and
Supplemental Security Income Benefits (“SSI”), alleging a disability onset date of June 1, 1995.
(Administrative Record (“AR”) 190-99.) His application was denied by the Commissioner
initially and on reconsideration. (AR 105-14, 124-26.) McCain then requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on May 2, 2011. On May 25, 2011, the
ALJ issued a decision finding McCain not disabled. (AR 27-39.) The Appeals Council denied
further review of McCain’s claim on October 4, 2012. Thus, the ALJ’s decision is the final

decision of the Commissioner and is ripe for review. See 20 C.F.R. § 404.981; Eads v. Secretary
of Health and Human Services, 983 F.2d 815, 816 (7th Cir. 1993).
Medical and Vocational Background
McCain was born on December 21, 1985. (AR 193.) His mother is an alcoholic, and his
father has spent most of his adult life in prison. (AR 260.) McCain has lived with his
grandmother since he was born, and she adopted him when he was five. (AR 260.) McCain
was found by school officials to have a cognitive disability, and he attended special education
classes until he dropped out of school in tenth grade. (AR 50-51, 215, 276.) At age 15, he was
reading at a third grade level and attending special education classes or receiving social work
services 1,150 minutes per week. (AR 280.) He has held only one job, which lasted for a week
in June 2005 at a fast food restaurant and earned a total of $99.13. (AR 200, 211-12, 332.)
On August 12, 2009, McCain was evaluated by a psychologist, Dr. Robert Neufeld,
Ph.D., who diagnosed him with schizoid personality disorder and rated his Global Assessment
Function at 60. (AR 333.) Dr. Neufeld did not document any problems associated with anger
and stated that McCain “had no psychopathology other than having a rather lackluster
personality structure without any well-defined features.” (AR 333.) McCain has never received
any psychiatric treatment or been prescribed any psychiatric medications. (AR 34.)
Administrative Hearing and Decision
On May 2, 2011, a hearing was conducted before ALJ Regina Kossak in Chicago,
Illinois. Four individuals testified at the hearing: McCain; Angela McCain-King, his aunt;
Dr. Larry Kravitz, an impartial medical expert; and Richard Hamersa, an impartial vocational
expert (“VE”). The ALJ also considered a letter written by McCain’s grandmother, as well as
other documents about McCain’s medical and educational history.
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At the hearing, McCain testified regarding his cognitive impairments and limitations. He
stated that he cannot read a newspaper and does not have a driver’s license because he failed the
written test twice. (AR 54-55, 58, 62.) He stated that he does jobs around the house, including
raking grass, making his bed, and taking his niece, who lives with him and his grandmother, to
school. (AR 57.) He also testified that he does not do his own laundry because he broke the
washing machine; that he can make sandwiches, but he does not use the microwave or the stove
because he forgets things and they burn. (AR 57, 59, 62-63.) He stated that he plays basketball
and plays video games, the latter sometimes for thirty minutes at a time. (AR 61.) He also
testified that he did not think he could work because he is “slow at things.” (AR 62.) He did,
however, testify that he thought he could do an “easy” job like stocking shelves at Jewel. (AR
55, 62.)
His aunt, McCain-King, testified, among other things, that McCain was getting “worse”
at following directions and remembering things (AR 71-72); that he can go shopping so long as
he used a list (TR 75-76); that she tried to get him a janitor job and a job at McDonald’s (AR 7273); that she gives him little jobs, like washing a car, to make a little money (AR 77); that she did
not think he can do a job (AR 81-82); and that she tried to take him to a mental health place but
he did not want to wait to see the psychiatrist and did not go back (AR 79-80, 84).
Dr. Kravitz, a psychologist, testified and opined that McCain did not meet or equal the
Commissioner’s Listing of Impairments 12.02 with the B criteria. (AR 90.) He opined that
McCain has a cognitive deficit and characterological personality traits that are maladaptive and
dysfunctional in society; however, Dr. Kravitz testified there was little support for a diagnosis of
schizoid personality disorder, which was based on a one-time impression by Dr. Neufeld. (AR
86-87.) Based on the record, Dr. Kravitz testified that McCain’s impairments cause moderate
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limitations on concentration, persistence, or pace; moderate limitations on social functions; and
mild to moderate limitations with his activities of daily living. (AR 90-91.) Dr. Kravitz further
testified that McCain would be limited in the types of work he could do to “fairly simple” tasks.
Specifically, Dr. Kravitz said those tasks would need to be routine, consistent, repetitive and
predictable, with only incidental public contacts, limited interactions with other employees and
instructive supervisory contacts. (AR 94-95.)
Hamersa, the VE, testified that McCain had no past relevant work experience. (AR 96.)
The ALJ asked Hamersa hypothetically if there are available jobs for someone with McCain’s
limitations, including very limited reading, short, simple instructions, limited contact with other
employees and the public, limited supervision, and a routine, predictable and consistent
environment. Hamersa responded affirmatively and stated that there are available jobs as a
janitor, kitchen helper or hand packager. (AR 96-97.)
Following the hearing, on May 25, 2011, the ALJ issued a decision finding that McCain
was not disabled within the meaning of the Social Security Act (the “SSA”), from June 1, 1995
through the date of the decision. (AR 27-39.) In making her decision, the ALJ made findings
according to the requisite five-step analysis, discussed in more detail below: (1) McCain had not
engaged in substantial gainful activity; (2) he had a severe impairment in the form of cognitive
impairment; (3) his impairment did not meet or equal the criteria of a Listing of Impairments, 20
CFR 404.1520(d), under the SSA; (4) he had residual functional capacity to perform a full range
of work at all exertional levels but with certain non-exertional limitations, including limited
reading and simple instructions, in a routine, predictable and consistent environment; and
(5) McCain was able to perform jobs that exist in significant numbers in the national economy.

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LEGAL STANDARD
Section 405(g) of the SSA grants federal courts the authority to review the
Commissioner’s final decision and enter a judgment, affirming, modifying, or reversing the
decision, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). The scope of
judicial review is quite limited; a district court will affirm the ALJ’s decision as long as it is
supported by substantial evidence in the record and no error of law occurred. Id.; Schmidt v.
Apfel, 201 F.3d 970, 972 (7th Cir. 2000). Substantial evidence means “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Skinner v. Astrue, 478
F.3d 836, 841 (7th Cir. 2007) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). This is
more than a scintilla but can be less than a preponderance. Skinner, 478 F.3d at 841. “The ALJ
is not required to address every piece of evidence or testimony presented, but must provide a
‘logical bridge’ between the evidence and the conclusions.” Jones v. Astrue, 623 F.3d 1155,
1160 (7th Cir. 2010) (internal citations omitted). In determining whether substantial evidence
supports the ALJ’s decision, the court will review the entire administrative record but will not
reweigh evidence, reevaluate facts, make decisions of credibility, resolve conflicts in the
evidence, or substitute its judgment for that of the ALJ. Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000).
ANALYSIS
The determination of whether a claimant suffers from a disability as defined in the SSA is
conducted through a five-step inquiry, evaluated in sequence: (1) whether the claimant is
engaged in substantial gainful activity, i.e., is employed; (2) whether the claimant has a severe
impairment; (3) whether the claimant’s impairment meets or equals one of the impairments listed
by the Commissioner as conclusively disabling (see 20 C.F.R. § 404, Subpt. P, App.);
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(4) whether the claimant can perform his past relevant work 1; and (5) whether the claimant is
capable of performing work in the national economy. 20 CFR § 404.1520; Kastner v. Astrue,
697 F.3d 642, 646 (7th Cir. 2012). The claimant has the burden of proof for steps one through
four; the Commissioner has the burden of proof for step five. Clifford, 227 F.3d at 868.
The ALJ’s Step Three Finding that McCain Did Not Have a Listed Impairment
McCain challenges the ALJ’s finding at step three that his impairments do not meet or
equal a listed impairment. He argues that the ALJ improperly discredited statements made by
McCain’s aunt and grandmother and that the ALJ ignored portions of Dr. Kravitz’s testimony
regarding McCain’s limitations.
At step three, an ALJ must evaluate whether a claimant is so severely impaired that he is
disabled, regardless of his age, education and work experience. 20 CFR § 404.1520(d). To
satisfy this step, the claimant’s condition must meet or equal one of the impairments listed in 20
CFR Part 404 Subpart P Appendix 1. With respect to mental disorders, a claimant will be found
to be disabled if he has at least two of the following functional limitations, described as
“paragraph B” criteria: “marked” restrictions on activities of daily living; “marked” difficulties
in maintaining social functioning; “marked” difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration.
In this case, the ALJ, applying the “paragraph B” criteria, found that McCain’s mental
impairments, considered singly or in combination, did not meet or equal the listing 12.02 and
12.08. (AR 30.) First, the ALJ found that McCain had mild restriction in his activities of daily

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The term past relevant work means work performed (either as the claimant actually
performed it or as it is generally performed in the national economy) within the last 15 years or
15 years prior to the date that the disability must be established.
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living. The ALJ relied on McCain’s testimony and also his statements to Dr. Neufeld that
McCain plays basketball, plays with his child, does chores, walks his niece to school, and takes
public transportation by himself; the ALJ also relied on his aunt’s testimony that he can go to the
store with a list. (Id. 30-31.) The ALJ next found that McCain had moderate difficulties in
social functioning, noting, among other things, that McCain spends time with his family and
friends on a daily basis, does not have a problem getting along with others, and is very respectful
to authority figures. The ALJ then found that McCain has moderate difficulties with respect to
concentration, persistence or pace, noting that while his aunt testified he has problems following
through, McCain testified that he can do some activities requiring concentration or persistence,
such as video games, for thirty minutes. Lastly, the ALJ found that McCain had no episodes of
decompensation of extended duration. (Id. 31.) The ALJ also noted that her finding was
supported by Dr. Kravitz’s testimony that McCain’s impairment did not meet or medically equal
a listing. (Id.)
In making this finding, the ALJ discounted some testimony by McCain’s relatives,
finding them to be both “somewhat credible”; McCain argues this was error. (AR 36.) The ALJ
described McCain’s aunt’s testimony as consistent with the record that McCain has some
cognitive limitations; however, the ALJ did not find that his aunt’s testimony credible to show
that he was totally disabled. Furthermore, the ALJ found that McCain’s emotional or psychiatric
condition, as described by his aunt and grandmother, was not supported by objective evidence in
the record. (Id.) In particular, the ALJ noted that McCain had never sought psychiatric
treatment or been prescribed psychiatric medicine. (Id.) The ALJ also noted that when McCain
sought medical treatment for unrelated physical issues, his mental status examinations were

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normal. (AR 34, 36.) The ALJ further noted that McCain had never been in trouble with the law
or been observed by the police to have psychiatric issues. (AR 36.)
According to Social Security Policy Interpretation Ruling, SSR 06-03P, 2006 WL
2329939 (S.S.A. Aug. 9, 2006), an ALJ should explain the weight given to opinions by family
members and “consider such factors as the nature and extent of the relationship, whether the
evidence is consistent with other evidence, and any other factors that tend to support or refute the
evidence.” In this case, the ALJ properly explained the weight given to statements by McCain’s
relatives based on her consideration of other evidence in the record. It is not this Court’s
function to reweigh evidence or make decisions of credibility. Clifford, 227 F.3d at 869.
McCain cites to Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir. 2011), where the
Seventh Circuit reversed the denial of benefits, in part because the ALJ issued a “perfunctory”
opinion that used “boilerplate” language, failed to explain her adverse credibility determination,
and discussed “so little of the evidence.” Unlike Martinez, the ALJ in this case discussed the
evidence supporting her conclusions and gave reasons why she found the relatives’ statements to
be “somewhat credible.” It is clear that the ALJ evaluated the relatives’ statements in the context
of the rest of the record. Therefore, the ALJ committed no error in discounting some of
McCain’s relatives’ statements.
McCain also complains that that the ALJ ignored Dr. Kravitz’s testimony that, if he had
relied upon the relatives’ statements instead of the other evidence in the record, he would have
changed his opinion to be that Plaintiff had “moderate to marked” limitations. However, as
discussed above, the ALJ explained the reasoning for discounting the relatives’ statements over
the other evidence in the record, and as such, reasonably did not adopt the portion of Dr.
Kravitz’s testimony that was based on the relatives’ statements. An ALJ is in a “unique
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position” to observe a witness, and for this reason, an ALJ’s credibility determinations are not
normally disturbed. Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997). As such, the ALJ
properly weighed Dr. Kravitz’s testimony.
Substantial evidence supports the ALJ’s finding that McCain’s impairment does not meet
or equal a listing. As discussed above, the ALJ supported her finding with an explanation of the
evidence she relied upon, thus building a “logical bridge” between her conclusions and the
evidence. Jones, 623 F.3d at 1160. That finding is also consistent with a report prepared and
submitted by a state agency doctor, Donald Henson, who opined that McCain’s personality
disorder was not a severe impairment and that he had only mild limitations under the Paragraph
B criteria. (AR 36; AR 345.) Likewise, Kirk Boyenga, Ph.D. submitted a state agency report in
February 2010 that affirmed the initial rejection of McCain’s disability claim for lack of
impairment. (AR 349-51.) An ALJ “may properly rely upon the opinion of [state agency]
medical experts.” Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). The ALJ’s finding at
step three is affirmed.
The ALJ’s Finding that McCain had Residual Functional Capacity
Before moving from step three to step four, an ALJ must assess a disability claimant’s
residual functional capacity (“RFC”). 20 CFR 404.1520(a)(4). The ALJ then uses that
assessment at both steps four and five. Id. In this case, the ALJ found that McCain had the RFC
to work at all exertional levels, with certain non-exertional limitations, including very limited
reading, short and simple oral instructions, incidental public contact, no joint tasks, limited
interaction with other employees, limited supervision, in a routine, predictable and consistent
environment. (AR 37.) The ALJ stated that this finding was based on Dr. Kravitz’s opinion.
(Id.)
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McCain argues that the ALJ committed an error because the ALJ’s limitations did not
exactly match the testimony by Dr. Kravitz, who testified, inter alia, that McCain would be
unable to handle unpredictable, high levels of work stress; would need a rote, repetitive work
environment; would need supervisory contacts that are task-focused and instructive in nature,
offered in a neutral tone; and would need simple, routine tasks that could be performed
independently. (AR 93-95.) McCain is quibbling over semantics, as it is clear that the ALJ
reasonably applied the limitations put forth by Dr. Kravitz. Furthermore, an ALJ considers
medical opinions together with the rest of the relevant evidence in the record and is not required
to adopt a doctor’s medical conclusion verbatim. 20 CFR § 404.1527(b)-(c); see also Armstrong
v. Barnhart, 287 F. Supp. 2d 881, 886 (N.D. Ill. 2003) (“Certainly, plaintiff does not mean to
suggest that an ALJ must always take his or her residual functional capacity assessment directly
from the mouth of a physician.”). Therefore, the ALJ did not commit an error in paraphrasing
Dr. Kravitz’s testimony when assessing McCain’s RFC.
McCain also argues that the ALJ committed an error because she found McCain’s
testimony regarding his symptoms not credible to the extent that they were inconsistent with
objective medical evidence. However, the ALJ’s assessment of McCain’s credibility was not as
limited or narrow as McCain contends. Rather, the ALJ considered a wide variety of factors,
including testimony about his daily activities, objective medical evidence, his treatment history,
and judged McCain’s credibility based on inconsistencies in the record. (AR 34-36.) For
example, the ALJ noted that McCain “may have exaggerated some in his testimony that he could
not read a simple headline . . . . as his reading skills have previously been described as at least
the third grade level.” (AR 35-36.) The ALJ pointed to McCain’s Individual Education Plan,
which listed his strengths as “he likes to read, plays basketball and video games, and good social
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life.” (AR 35.) The ALJ further noted that McCain had testified that he thought he could
possibly work a job stocking shelves. (AR 35.)
It is proper for an ALJ to consider factors such as daily activities, objective evidence, and
the claimant’s testimony, and to make credibility assessments accordingly. See, e.g., Scheck, 357
F.3d at 703 (ALJ used proper procedures when she considered objective medical evidence and
the claimant’s testimony, including finding testimony as not credible, in determining RFC). As
such, an ALJ is not required to believe all of a claimant’s testimony and is “free to discount the
applicant’s testimony on the basis of other evidence in the case.” Johnson v. Barnhart, 449 F.3d
804, 805 (7th Cir. 2006); see also Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000) (“While a
hearing officer may not reject subjective complaints of pain solely because they are not fully
supported by medical testimony, the officer may consider that as probative of the claimant’s
credibility.”). Rather, it “is only when the ALJ’s determination lacks any explanation or support
that it will [be declared] patently wrong.” Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008)
(internal citations and quotations omitted).
In this case, the ALJ properly and carefully explained why she found McCain’s
credibility about the extent of his impairment to be “somewhat limited” when viewed in light of
other evidence, including contradictions in his own testimony. (See AR 35.) As such, the ALJ
did not commit an error in discounting some of McCain’s allegations about the severity of his
impairment in assessing his RFC.
The ALJ’s Step Five Finding that McCain Could Perform Jobs
Finally, McCain argues the Commissioner did not meet her burden of proving that
McCain can perform jobs that exist in adequate numbers in the national economy. McCain first
argues that the ALJ did not adequately include all of McCain’s limitations when she asked the
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VE the hypothetical question whether jobs existed that matched McCain’s RFC. (AR 38.)
Specifically, McCain contends that the ALJ failed to include any specific limitations on
concentration, persistence or pace, including Dr. Kravitz’s testimony that McCain has moderate
difficulties, or his testimony that, if he relied on McCain’s relatives’ statements, McCain would
have moderate to marked difficulties.
McCain essentially rehashes the same argument discussed and rejected above. As noted
above, the ALJ’s RFC finding reasonably accounted for and was consistent with the limitations
identified by Dr. Kravitz. Likewise, the ALJ’s hypothetical question to the VE tracked her RFC
finding. (Compare AR 37 with AR 96.) Specifically, the ALJ asked the VE if there were jobs
that involved very limited reading; with oral, short and simple instructions; where the applicant
“has to be shown what he needs to do, he can’t be left with a written sheet telling him what needs
to be done”; with incidental contact with the public; with limited interaction with other
employees and no joint tasks and limited supervision; and in a routine, predictable and consistent
environment. (AR 96.)
In the case cited by McCain, O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.
2010), the Seventh Circuit explained that the ALJ is required to generally “orient the VE to the
totality of a claimant’s limitations,” including deficiencies of concentration, persistence and
pace. However, the court specifically noted that there is no “per se requirement” that the ALJ
mention the specific terminology of “concentration, persistence and pace,” and that hypotheticals
omitting those terms are acceptable where it is “manifest that the ALJ’s alternative phrasing
specifically excluded those tasks that someone with the claimant’s limitations would be unable to
perform.” Id. In O’Connor-Spinner, the Seventh Circuit remanded the ALJ’s decision because
the ALJ failed to expressly refer and account for “all limitations” that the ALJ had found to exist.
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Id. at 618, 621. In contrast, in Herrold v. Astrue, No. 2:10-CV-00489-JD, 2012 WL 96735, at
*27 (N.D. Ind. Mar. 21, 2012), the district court, distinguishing O’Connor-Spinner, affirmed the
ALJ’s decision where the court found that the ALJ’s RFC finding was supported by substantial
evidence and where the hypothetical posed by the ALJ to the VE was “entirely consistent” with
the ALJ’s RFC finding.
As in Herrold, the ALJ’s RFC finding here was supported by substantial evidence.
Likewise, as in Herrold and in contrast to O’Connor-Spinner, the ALJ expressly accounted for
all limitations for McCain’s RFC when she posed the hypothetical to the VE. Therefore, the
ALJ’s hypothetical was not inadequate to capture McCain’s RFC.
Finally, McCain argues that the VE’s testimony that McCain could perform the jobs of
janitor, kitchen helper or hand packager is inconsistent with the skills required for those jobs, as
described in the Dictionary of Occupational Titles (“DOT”). McCain contends that, under the
DOT, the kitchen helper and hand packager jobs require Level 2 Reasoning skills, and the janitor
job requires Level 3 Reasoning and Reading skills, all of which McCain argues exceed his
abilities.
An ALJ is required to ask a VE if his testimony conflicts with the DOT before relying on
that testimony. Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). The ALJ must also
“investigate and resolve any apparent conflict” between the VE’s testimony and the DOT. Id. at
570 (emphasis added); see also Social Security Ruling 00-4p. A conflict “is apparent if it is ‘so
obvious that the ALJ should have picked up on [it] without any assistance.’” Id. (citing Overman
v. Astrue, 546 F.3d 456, 462–63 (7th Cir. 2008)). Thus, where a conflict is not apparent, the ALJ
will not err in relying on the VE’s testimony. See Weatherbee, 649 F.3d at 571 (holding that the
ALJ did not err where there was no apparent conflict with the VE’s testimony). For example, in
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Herrold, 2012 WL 967354, at *27-29, the district court rejected the claimant’s argument that the
ALJ’s ruling should be set aside because the VE’s testimony conflicted with the DOT. The court
found that the ALJ had specifically directed the VE to the restrictions in the hypothetical and that
the VE affirmed that her testimony was consistent with the DOT. Id.
In this case, ALJ properly oriented the VE to the limitations in McCain’s RFC. After the
VE testified about janitor, kitchen helper and hand packager jobs, the ALJ asked the VE if his
testimony was consistent with the DOT, and the VE responded that it was. (AR 96.) As in
Weatherbee and Herrold, there was no apparent conflict, and the ALJ was entitled to rely on the
VE’s testimony.
Furthermore, it is important to note that courts addressing the Social Security regulations
and the DOT have noted that there is not a uniform conclusion on the scope of the DOT’s Levels
for reasoning. This is because the “Social Security regulations and the DOT use markedly
different standards for addressing a claimant’s ability to understand, remember, and concentrate
on job duties.” Thompkins v. Astrue, No. 09 C 1339, 2010 WL 5071193, at *10 (N.D. Ill. Dec. 6,
2010) (citing Masek v. Astrue, No. 08 C 1277, 2010 WL 1050293, at *22 (N.D. Ill. March 22,
2010)). “Thus, no one-to-one parallel can be found between ‘simple’ as it used under the
regulations and the DOT's requirements; a task may be ‘simple’ under the regulations and still
involve the kind of ‘detailed’ tasks required under Level 2 reasoning.” Id. As such, courts have
held that Level 2 is “not inconsistent with a claimant’s limitations to simple, routine tasks.” Id.;
see also Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (finding that Level 2
reasoning is consistent with an RFC of simple, routine tasks); Money v. Barnahrt, 91 Fed. App’x
210, 214 (3d Cir. 2004) (“Working at reasoning Level 2 would not contradict the mandate that
her work be simple, routine and repetitive”); Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D.
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Cal. 2005); Flaherty v. Halter, 182 F. Supp. 2d 824, 850 (D. Minn. 2001) (ALJ’s finding of
limitation to simple, routine, repetitive, concrete, tangible tasks did not conflict with the DOT’s
Level 2 reasoning requirement).
Thus, in Thompkins, the ALJ asked the VE for jobs involving “simple, routine, repetitive
tasks,” and the VE identified Level 2 jobs, including hand packager. The court noted that the
“uninvolved” qualification in Level 2 is consistent with the limitation to “simple” tasks and held
that that any error from the ALJ’s failure to question the VE about a conflict was harmless. 2010
WL 5071193 at *11. Likewise, in this case, any failure by the ALJ to further question the VE
was harmless error. The decision to deny McCain disability benefits is affirmed.
CONCLUSION
For the foregoing reasons, McCain’s Motion for Summary Judgment [11] is denied; the
Commissioner’s Motion for Summary Judgment [23] is granted; and the Commissioner’s final
decision is affirmed. The civil case is terminated.

Date:____December 4, 2013________

______________________________
JOHN W. DARRAH
United States District Court Judge

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