Wilkerson v. Astrue
ORDER denying 9 Motion for Summary Judgment; granting 11 Motion to Affirm; adopting 14 Report and Recommendation of United States Magistrate Judge F. Keith Ball for the reasons stated in the order. The decision of the Commissioner is affirmed, and this action is dismissed with prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on March 25, 2014. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:13cv67-DPJ-FKB
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
This social-security appeal is before the Court on the Report and Recommendation
(“R&R”)  of United States Magistrate Judge F. Keith Ball, following referral for hearing by
this Court. After considering the parties’ submissions, Judge Ball concluded that Defendant’s
Motion to Affirm the Commissioner’s Decision  should be granted and that Plaintiff’s
Motion for Summary Judgment  should be denied. Plaintiff filed timely Objections  to the
R&R, and the Commissioner declined to file a substantive response, resting instead on its
previous submissions . Having now fully considered the premises, the Court concludes that
the R&R should be adopted as the opinion of this Court.
Plaintiff pursued two issues in her motion that she continues to press in her objections:
(1) the ALJ erred in his Step 5 findings by failing to incorporate all limitations found at Step 2
into Plaintiff’s residual functional capacity (“RFC”) and the hypothetical posed to the vocational
expert (“VE”); and (2) the ALJ failed to resolve a conflict between the VE’s testimony and the
Dictionary of Occupational Titles (“DOT”). On these issues, Judge Ball found that the ALJ
properly incorporated Plaintiff’s moderate limitation in concentration, persistence, and pace into
her RFC and the hypothetical to the VE, and that no conflict existed between the VE’s testimony
and the DOT. He further observed that Plaintiff waived her second contention. Judge Ball
concluded that substantial evidence supported the ALJ’s findings and recommended that the
Commissioner’s decision be affirmed.
Incorporation of Plaintiff’s Limitations in RFC and VE Hypothetical
At Step 2 of the sequential evaluation process, the ALJ found that Plaintiff has “moderate
difficulties” in concentration, persistence, and pace. R.  at 16.1 The ALJ noted that these
difficulties “are documented in the consultive examination by [Dr.] Boggs.” Id. The ALJ
concluded that the limitations were “no more than moderate in degree,” based in part on his
observation that Plaintiff “continues to drive[,] indicat[ing] she is capable of maintaining
concentration to a significant degree.” Id. At Step 5 of the process, the ALJ articulated
Plaintiff’s residual functional capacity as follows:
[She] has the residual functional capacity to perform light work . . . except her
work must permit her to sit or stand at will. She is capable of occasional
crouching, crawling, kneeling, stooping or climbing of stairs but cannot climb
ladders or ropes. She can frequently balance. She cannot cope with the stress of
highly exacting tasks and cannot carry out complex job instructions, but she can
adjust to a work routine of simple instructions, simple tasks and simple job
decision[s]. She should have no more than occasional contact with the general
public, but she is able to receive normal supervision and interact with coworkers
without distracting them or being distracted by them. Her work should not require
writing reports or reading of instruction manuals and should not require
Id. at 17–18. His hypothetical question to the VE mirrored this RFC. Id. at 56–58.
Plaintiff asserts that the RFC and corresponding hypothetical failed to incorporate the
moderate limitations in concentration, persistence, and pace found by the ALJ. Judge Ball
disagreed, noting that “the ALJ’s findings that Wilkerson could not follow complex instructions
or perform highly exacting tasks represent the specific functional limitations within the broad
Citations reflect the original pagination of the administrative record.
category of limitations in concentration, persistence, and pace.” R&R  at 6. This conclusion
is consistent with Fifth Circuit precedent. See Bordelon v. Astrue, 281 F. App’x 418, 423 (5th
Cir. 2008) (explaining that an RFC and hypothetical that included “restrictions to rare public
interaction, low stress, and simple, one- to two-step instructions reflect that the ALJ reasonably
incorporated [the claimant’s] moderate concentration, persistence, and pace limitations”);
Westover v. Astrue, No. 4:11-CV-816-Y, 2012 WL 6553102, at * 10 (N.D. Tex. Nov. 16, 2012)
(concluding that RFC and hypothetical limiting claimant to following detailed, but not complex,
instructions properly incorporated moderate limitations in concentration, persistence, and pace).
The Court agrees with Judge Ball that the ALJ’s RFC and hypothetical sufficiently incorporated
the functional limitations related to concentration, persistence, and pace.
Conflict between VE and DOT
Relying on the testimony of a Vocational Expert, the ALJ concluded that Plaintiff could
not perform any of her past relevant work in light of her RFC, but that she could perform three
jobs that exist in significant numbers in the national economy: small parts assembler,
surveillance systems monitor, and security clerk. The VE identified each of these jobs by an
Occupational Code Number from the Department of Labor’s Dictionary of Occupational Titles.
The DOT classifies the small parts assembler and security clerk positions as requiring a
reasoning development level of 2, while the surveillance systems monitor position requires a
reasoning development level of 3. Plaintiff asserts that the VE’s conclusion that she could
perform these jobs is inconsistent with their DOT classification because her limitations preclude
her from performing a job requiring a reasoning development level above level 1.
As an initial matter, Plaintiff waived this issue by failing to present it before the ALJ. As
Judge Ball noted, the Fifth Circuit held in Carey v. Apfel, that “claimants should not be permitted
to scan the record for implied or unexplained conflicts between the specific testimony of an
expert witness and the voluminous provisions of the DOT, and then present that conflict as
reversible error . . . .” 230 F.3d 131, 146–47 (5th Cir. 2000) (quoted in Barratt v. Astrue, No.
07-51067, 2008 WL 2325636, at *2 (5th Cir. June 6, 2008)). Plaintiff did not address this
portion of the R&R, which is dispositive of her second issue.
Even if the issue had not been waived, the Court agrees with Judge Ball’s conclusion for
the reasons stated in the R&R. See R&R  at 8–9 (providing definitions for reasoning
development levels); see also Gaspard v. Soc. Sec. Admin. Com’r, 609 F. Supp. 2d 607, 617 &
n.22 (E.D. Tex. 2009) (collecting cases and noting that “a limitation to simple and repetitive
tasks is consistent with a reasoning level of 2”).
For the foregoing reasons, the Court finds that the Report and Recommendation of the
United States Magistrate Judge should be adopted as the opinion of this Court.
IT IS, THEREFORE, ORDERED that Plaintiff’s objections to the Report and
Recommendation are hereby overruled.
IT IS FURTHER ORDERED that the Report and Recommendation of United States
Magistrate Judge F. Keith Ball be, and the same is hereby, adopted as the finding of this Court;
Plaintiff’s motion  is denied; Defendant’s motion  is granted; the decision of the
Commissioner is affirmed; and this action is dismissed with prejudice.
A separate judgment will be entered in accordance with the Order as required by Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 25th day of March, 2014.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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