DANIEL P. JORDAN, III, District Judge.
This 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 Recommendation.
Ruffin 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.
The ALJ assessed Ruffin's residual functional capacity ("RFC") as follows:
Admin. 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.
Ruffin 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. 1991).
In this 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.
Ruffin's 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.
This "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 marks omitted)).
The 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)).
And 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. . .").
The 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.
"[N]umerous 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).
This 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))).
But 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 simple, routine work environment does not necessarily preclude the ability to perform jobs with reasoning levels of 2 or 3."); Gaspard v. Soc. Sec. Admin., 609 F.Supp.2d 607, 617 (E.D. Tex. 2009) (holding "jobs requiring reasoning level 2 or higher" are not in direct conflict with limitation to "simple one or two-step tasks on a repetitive basis").
These cases aside, Ruffin correctly observes that the DOT describes level-one reasoning as the ability to "[a]pply commonsense understanding to carry out simple one- or two-step instructions." DOT, App. C, 1991 WL 688702 (4th ed. 1991). On the other hand, DOT Reasoning Level three makes no reference to one- or two-step instructions, stating instead that such employees "[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. Ruffin therefore says that a direct conflict exists. See Pl.'s Obj.  at 3.
The problem is that the Reasoning Levels and the RFC are not neatly aligned. As SSR 00-4P states, "The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A VE, VS, or other reliable source of occupational information may be able to provide more specific information about jobs or occupations than the DOT." SSR 00-4P, 2000 WL 1898704, at *3 (emphasis added); see also Haas v. Barnhart, 91 F. App'x 942, 947-48 (5th Cir. 2004) (rejecting proposed conflict with other DOT classifications and noting that DOT "lists the maximum requirements for a position" (quoting SSR 00-4P, 2000 WL 1898704, at *3)). So while the top of DOL Reasoning Level three might arguably surpass an RFC that limits work to tasks involving one- to two-step instructions, it is not apparent that such limitations exclude the range that Reasoning Level three addresses.
Nevertheless, Ruffin contends that a "trend" exists in this district to remand based on similar conflicts. Pl.'s Obj.  at 4. She bases this argument on the following two 2012 cases that ended in remand: Report & Recommendation, Jefferson v. Astrue, No. 2:12cv5-KS-MTP (S.D. Miss. Jan. 29, 2013), ECF No. 15, adopted by Order, Jefferson v. Astrue, No. 2:12cv5-KS-MTP (S.D. Miss. Mar. 22, 2013), ECF No. 16 and Lloyd v. Astrue, No. 1:11CV263-LG-RHW, 2012 WL 3685967, at *4 (S.D. Miss. June 21, 2012), report & recommendation adopted, 2012 WL 3655463 (S.D. Miss. Aug. 24, 2012).
Lloyd seems like a closer fit. There, like here, the ALJ did not follow SSR 00-4P when the RFC limited the plaintiff to one- to two-step instructions yet the alternative occupations carried DOT Reasoning Level three. But the court in Lloyd stopped short of saying that an actual conflict existed, stating instead that there "appear[s] to be an unexplained inconsistency." Id. at *4. The court then remanded for "further development." Id. Jefferson relied on Lloyd, and both relied on Prochaska v. Barnhart, where the Seventh Circuit remanded for the ALJ's failure to follow SSR 00-4P because the court could not tell whether a conflict existed. Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006). While the courts in Lloyd and Jefferson faithfully followed Prochaska, they did not have the benefit of Graves, where the Fifth Circuit adopted the harmless-error standard and noted that a plaintiff has the burden of showing that the error was harmful. Graves, 837 F.3d at 593 n.2 (citation omitted). Finally, neither Lloyd nor Jefferson are binding. Accordingly, the Court agrees with the Report and Recommendation that there is no direct or obvious conflict. See Report and Recommendation  at 7.
All of this leads to the final issue—whether Ruffin waived this argument by failing to raise it before the ALJ. See id. at 9. In Carey v. Apfel, the Fifth Circuit noted that
230 F.3d at 146-47. Carey was decided just before SSR 00-4P became official policy. But the Fifth Circuit has since applied Carey despite arguments based on SSR 00-4P. See, e.g., Barratt v. Astrue, No. 07-51067, 2008 WL 2325636, at *2 (5th Cir. June 6, 2008). And as recently observed in Graves, Carey has not been overruled. Graves, 837 F.3d at 593 n.1.
As courts have frequently noted, Carey examined three types of conflicts that can arise from VE testimony. The first two are more direct: (1) when the VE testifies "that a particular job requires a particular exertional or skill level, [but] the DOT expressly provides that the job requires a different exertional level"; and (2) "when the [VE]'s testimony places the ALJ's finding with respect to the claimant's [RFC] or the claimant's specific impairments in conflict with the exertional or skill level or the specific skills required for the identified jobs in the DOT." Carey, 230 F.3d at 144 n.2. The present case falls under the second category, which Carey describes as "less obvious" in nature. Id. at 146.
But the facts in Carey did not fall under either of these two categories. Id. Although Carey lost an arm in an accident, the VE identified alternative occupations for which the DOT required "some ability to finger and handle things." Id. Noting that the DOT did not require "bilateral fingering ability and dexterity," the Fifth Circuit saw no conflict. Id. But even assuming "any implied or indirect conflict," the court found no fault in relying on the VE when an indirect conflict exists. Id. The court then offered an alternative holding: "Moreover, claimants should not be permitted to scan the record for implied or unexplained conflicts . . . and then present [those] conflict[s] as reversible error," having failed to raise them before the hearing officer. Id. at 146-47.
It is not entirely clear how broadly a court should construe Carey. As noted, the court expressly stated that the facts did not fit the two categories of conflicts it identified—"direct" and "less obvious." Id. And that has led some courts to limit the bar on after-asserted arguments to implied or indirect conflicts like those in Carey. See Dunn v. Colvin, No. 4:12-CV-496-Y, 2013 WL 4756377, at *5 n.3 (N.D. Tex. Sept. 4, 2013) (finding no waiver related to "less obvious" conflict when VE testifies that plaintiff can perform jobs in conflict with DOT); Romine v. Barnhart, 454 F.Supp.2d 623, 631 (E.D. Tex. 2006) (remanding for failure to explore conflict under SSR 00-4P) (citing Prochaska, 454 F.3d at 735-36). Other courts say the bar does not apply to "direct and obvious conflicts." See, e.g., Bartlett v. Colvin, No. 3:14-CV-1595-BN, 2015 WL 4041848, at *5 (N.D. Tex. July 2, 2015).
It appears, however, that the Fifth Circuit has painted with a broader brush. For example, in the unreported decision in Barratt v. Astrue, the alleged conflict would have fallen under Carey's first category of direct conflicts because the VE's testimony regarding job requirements allegedly conflicted with the DOT. See Barratt, 2008 WL 2325636; Carey, 230 F.3d at 144 n.2. Yet the court found that the plaintiff waived the conflict. Barratt, 2008 WL 2325636, at *2 (citing Carey, 230 F.3d at 146-47). The court then rejected the argument that reversal was required because the ALJ failed to comply with SSR 00-4P, viewing it as a "procedural impropriet[y]" that did not "cast into doubt the existence of substantial evidence to support the ALJ's decision." Id. at *2 n.1.
Similarly, in Haas v. Barnhart, the plaintiff claimed that the VE's testimony regarding exertional levels conflicted with the DOT. 91 F. App'x 942, 947 (5th Cir. 2004). This would have been a direct conflict under Carey. Nevertheless, the Haas court explained that waiver is still an issue:
Id. at 947-48 (quoting Carey, 230 F.3d at 146-47).
These decisions are not outliers. See Pineda v. Astrue, 289 F. App'x 710, 714 (5th Cir. 2008) (refusing to consider argument that "at least some of the jobs that roughly correspond to those identified by the [VE] are described in the DOT as exceeding her exertional level" because plaintiff did not question VE during hearing) (citing Carey, 230 F.3d at 146-47); Bryant v. Astrue, 272 F. App'x 352, 356-57 (5th Cir. 2008) (holding that plaintiff waived conflict between VE's description of job requirements and DOT by failing to cross-examine VE) (citing Carey, 230 F.3d at 146-47); White v. Astrue, 240 F. App'x 632, 634 (5th Cir. 2007) (explaining that reliance on VE testimony, "which White did not challenge through cross-examination, was elicited by hypothetical questions incorporating the RFC determination," so "such reliance was proper") (citing Carey, 230 F.3d at 146-47) (additional citation omitted); Harvey v. Astrue, 228 F. App'x 390, 392 (5th Cir. 2007) (refusing to hear argument that some positions VE identified had DOT exertional requirements above plaintiff's abilities because plaintiff failed to raise issue during hearing) (citing Carey, 230 F.3d at 146-47); see also Gheen v. Colvin, No. 3:12CV806-CWR-FKB, 2014 WL 12540509, at *5-6 (S.D. Miss. Feb. 18, 2014) (alternatively holding that plaintiff waived conflict between RFC of simple work involving one- to two-step instructions and alternative occupations with Reasoning Levels of two and three) (citing Carey, 230 F.3d at 146-47), report & recommendation adopted, 2014 WL 12540543 (S.D. Miss. Mar. 31, 2014).
Although the available authority is not binding, the Court gives greater weight to the unpublished opinions from the Fifth Circuit. Regardless, given the considerable uncertainty whether the VE's testimony in this case actually conflicted with the DOT, the Court concludes that this purported "unexplained" conflict does not require remand because Ruffin failed to raise it before the hearing officer. See Carey, 230 F.3d at 142; see also Sasich v. Colvin, No. CV 15-461-JWD-RLB, 2016 WL 7826808, at *5-6 (M.D. La. Nov. 14, 2016) (holding that alleged conflict between simple tasks and level-three reasoning was "indirect or implicit, at best" and not "direct or apparent"), report & recommendation adopted, 2017 WL 188133 (M.D. La. Jan. 17, 2017); Zapata v. Colvin, No. 4:13-CV-340-Y, 2014 WL 4354243, at *11 (N.D. Tex. Sept. 2, 2014) (finding waiver and holding that "even assuming there was a conflict between the VE's testimony and the information contained in the DOT and/or SCO, such a conflict is not a direct or obvious conflict; instead, it would be an implied or indirect conflict"); Johnson, 2012 WL 5472418, at *13, *15 (noting that because the conflict between simple work and DOT Reasoning Level three was not an "apparent conflict," SSR 00-4P does not apply, and plaintiff "cannot challenge in this court any implied or indirect conflict that she failed to raise at the hearing"); Abel v. Astrue, No. 3:09CV327-TSL-FKB, 2011 WL 1099890, at *7 (S.D. Miss. Mar. 2, 2011) (finding waiver and noting that "[w]hile certainly an argument can be made that the ability to perform only simple, repetitive tasks is inconsistent with Level 3 reasoning, the two are not in obvious, direct conflict"), report & recommendation adopted, 2011 WL 1044155 (S.D. Miss. Mar. 22, 2011). Accordingly, the Court agrees with Magistrate Judge Anderson that the purported conflict was waived and that substantial evidence otherwise supports the ALJ's decision.
It is therefore ordered that the Report and Recommendation  of United States Magistrate Judge Linda R. Anderson is adopted as the opinion of the Court. Ruffin's Motion for Summary Judgment  is denied; Defendant's Motion to Affirm  is granted; the decision of the Social Security Administration is affirmed; and this appeal is dismissed with prejudice. A separate judgment will be entered in accordance with Federal Rule of Civil Procedure 58.
Id. at *1-4 (emphasis added).
580 F.3d at 478 (internal citation and quotation marks omitted, punctuation altered); see also Windham v. Colvin, No. 3:14CV250TSL-JCG, 2015 WL 5224398, at *1, *7 (S.D. Miss. Sept. 8, 2015) (adopting report and recommendation that "it remains questionable that a conflict was `apparent' [under SSR 00-4P] because Windham failed to raise the issue").