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Eleventh Circuit Court of Appeals reverses district court in plaintiff’s appeal of adverse Social Security SSI determination, ruling that there is an apparent conflict between a residual function capacity limitation to simple, routine and repetitive tasks and jobs requiring “Level 3” reasoning

On September 21, 2021, in Viverette v. Commissioner of Social Security, No. 20-11862, the Eleventh Circuit Court of Appealsreversedan order denying the plaintiff’s application for supplemental security income (SSI) benefits under 42 U.S. C. § 1383(c). The main issue on appeal was whether the administrative law judge (ALJ) erred in finding that the plaintiff could perform a job with “level 3” reasoning after finding that his residual functional capacity (RFC) limited him to simple, routine, and repetitive tasks. Level 3 reasoning, according to the DOT, means the ability to “[a]pply commonsense understanding furnished in written, oral, or diagrammatical form [and to d]eal with problems involving several concrete variables in or from standardized situations.” U.S. Dept. of Labor, Dictionary of Occupational Titles, App. C, § III, Components of the Definition Trailer, 1991 WL 688702 (4th ed. 1991). The Eleventh Circuit recently held in Buckwalter v. Acting Commissioner of Social Security, 5 F.4th 1315 (11th Cir. 2021), that there is no apparent conflict between a claimant’s RFC to understand, carry out, and remember simple instructions and “level 2” reasoning, which requires the ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.” 5 F.4th at 1323–24. In this case, the Eleventh Circuit concluded that there is “an apparent conflict” between an RFC limitation to simple, routine and repetitive tasks and Level 3 reasoning, joining the Fourth, Ninth and Tenth Circuits.See Keller v. Berryhill, 754 F. App’x 193, 197 (4th Cir. 2018); Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005). However, the Eleventh Circuit additionally stated: “[t]his does not mean that there is an actual conflict or that an ALJ is categorically prohibited from including a job with level 3 reasoning in the step five analysis for a claimant with such a limitation. It does mean that the ALJ is required to address the apparent conflict and provide a reasonable explanation for her determination.” On the record in this case, the Eleventh Circuit could not conclude that the ALJ’s failure to address the apparent conflict as to the document preparer position was harmless and revered the district court ruling with instructions that the case be remanded to the Commissioner of Social Security for further proceedings.

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