Evelyn Clay v. JoAnne Barnhart ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3527
___________
Evelyn Clay, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Defendant - Appellee. *
___________
Submitted:
Filed: August 9, 2005
___________
Before
___________
MELLOY, Circuit Judge.
The district court1 affirmed the Commissioner’s denial of Ms. Clay’s claim for
social security disability benefits. On appeal, Ms. Clay argues that her physical and
mental impairments, taken together, meet Listing 12.05(C) for mental retardation.
1
The Honorable H. David Young, United States Magistrate Judge for the
Eastern District of Arkansas.
See 20 C.F.R. Pt. 404, Subpt. P., App. 1 (2001). She argues in the alternative that the
administrative law judge (“ALJ”) erred when he found that she could perform
available jobs. We affirm.
I.
Ms. Clay applied for social security disability benefits on March 31, 1992,
alleging disability due to pain and limited mobility in her left knee and right arm. She
also alleged poor hearing and a humming in her ear. The present appeal follows her
fifth administrative hearing on the 1992 application. The first four hearings on her
application resulted in two remand orders from the Appeals Council and two remand
orders from the district court. During the protracted pendency of her application, she
was subjected to repeated physical and mental examinations. Accordingly, in her
latest hearing, on September 24, 2001, extensive evidence was available. The record
before us includes information from multiple hearings as well as a large, cumulative
body of medical evidence.
Her medical history, prior to her application, included surgery in the late
1970’s due to an infection in her right ear; a gunshot wound and related surgery on
her right arm in the early 1980’s; and a 1986 left knee fracture followed by surgery.
She has a plate and pin in her left knee. She claims to have re-injured her knee in
1989. Her current complaints of left knee, right arm, and right ear defects and/or pain
are all claimed as residual effects of these prior events. She claims a disability onset
date of sometime in the “1970’s.”
Ms. Clay did not initially claim mental retardation as a source of disability, and
the record contains no reference to IQ testing or mental retardation before the date of
her application for benefits. She dropped out of school in the ninth grade and
received poor grades prior to that time. She claims that she was seen in 1975 by a
psychiatrist in Blytheville, Arkansas, for problems related to the fact that she would
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“fly off the handle.” There is no suggestion that this earlier visit involved evaluation
for, or diagnosis of, mental retardation.
On May 14, 1992, a consultative physician, Dr. James P. Russell, examined
Ms. Clay. He noted that she reported that her left knee swelled occasionally, and that
she had pain from the prior knee fracture and gunshot wound to the arm, but that she
did not have intermittent pain caused by walking or standing. He reported that she
could hear normal conversations. An audiogram showed that she had moderately
severe hearing loss in her right ear and moderate to mild hearing loss in her left ear.
She exhibited normal ranges of motion in all joints other than her left knee, which
was limited to 90 degrees compared to a normal range of motion of 135 degrees. He
noted that this restricted range partially limited her ability to squat. He also noted that
she could hold a pen and write and grip objects with her hands and that she denied
having any mood related disorders or hallucinations. He concluded, “This lady could
do work activities such as sitting, standing would be compromised by her left knee,
walking would be compromised, carrying/handling objects would be compromised.
She can hear; although, that is compromised as described above.”
On October 31, 1992, she was treated and released at an emergency room for
a crack cocaine overdose. This appears to have been an isolated incident as the
record does not support an inference that she was a habitual user or addict. The
emergency room doctor recommended that she enter a treatment program. She did
not enter a treatment program.
On December 18, 1992, a consultative psychiatrist, Dr. Crupie, examined Ms.
Clay at the request of the ALJ. The ALJ ordered the exam because Ms. Clay had
claimed that she was seeing and hearing things. Dr. Crupie concluded that Ms. Clay
suffered from no psychiatric illness or disorder and that the things she saw and heard
were most likely night terrors or dreams. He set forth a clinical estimate that her IQ
was eighty. He did not claim to have conducted a physical examination, but reported
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that she claimed pain as her reason for not being able to work. In his report, under
“diagnosis,” he wrote “chronic pain syndrome involving left knee, right shoulder and
upper arm.” He also noted, “I feel that this patient is describing her situation and
condition honestly. I do not think that she is consciously exaggerating or
malingering.” He rated her as unlimited/very good or good in all categories of mental
or personality-related job skills other than “understand, remember and carry out
complex job instructions” and “demonstrate reliability,” for which he rated her as
“fair” and “poor or none,” respectively.
In June 1993, Ms. Clay’s attorney sent her to another consultative psychiatrist
for evaluation, Dr. Justin H. Adler. Dr. Adler noted Ms. Clay’s physical condition,
stating that she walked without difficulty, without limping, and without the aid of a
supporting device. He also noted that she claimed that she occasionally took Tylenol
for pain, but that she was not taking any prescription pain medication. Her chief
complaint was bad nerves. Dr. Adler did not offer an opinion as to whether Ms. Clay
exaggerated her mental infirmities. He diagnosed her as having “Conversion
Hysterical Disorder manifested by subjective pain sensations in an individual of
limited intellectual endowment.” He concluded:
I don’t believe that Mrs. Clay is consciously exaggerating her
discomforts. She actually believes that she has pains as the result of her
knee surgery. There is however a lack of commensurate emotional
response to her pains which suggests a psycho-pathological dissociative
reaction (Hysterical Reaction)[.] Her limited intellect also may play a
contributory role here. Her hallucinatory experiences are very vague
and more suggestively due to her limited mentality also, a fact not
uncommon in individuals of a lowered socio-economic status. The
prognosis for substantial improvement is very doubtful.
On February 10, 1998, a consultative psychologist, Michael Inman, Ph.D.,
examined Ms. Clay. Dr. Inman stated that Ms. Clay was initially hostile, was
resentful throughout her examination, and was “ostensibly complying with the
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evaluation, though providing minimal effort.” He stated that her minimal effort “was
best exemplified on IQ testing, on Block Design Subtest, when she would discontinue
the task even when considerable time remained.” He found that her “[g]eneral fund
of information was limited, but consistent with her general full scale IQ . . . [she] was
able to successful[ly] perform simple calculations, including addition, subtraction,
multiplication and division . . . [and] abstract reasoning was limited and quit[e]
concrete, though again considered commensurate with her full scale IQ[.] Judgment
and social reasoning were grossly intact.”
Dr. Inman administered a Wechsler Adult Intelligence Scale-III test (IQ test)
and found Ms. Clay’s Verbal, Performance, and Full Scale IQ scores to be 65, 62, and
61, respectively. Although he noted that she exhibited minimal effort and
discontinued tasks on the IQ test when there was still time left, he ultimately
concluded that, “Present subtests [sic] results are considered a valid indication of Ms.
Clay’s intellectual abilities, which are within the higher range of mildly mentally
retarded.”
Dr. Inman administered other tests and determined that, regarding these other
tests, Ms. Clay was consciously exaggerating her symptoms to secure benefits.
Regarding results from an Minnesota Multiphasic Personality Inventory-2 test
(“MMPI-2 test”), Dr. Inman stated, “Ms. Clay responded to the MMPI-2 items in an
extremely exaggerated manner. . . . Moreover, she responded in a non-defense
manner . . . suggesting that her pattern of excessive symptom checking was for the
purpose of falsely claiming psychological problems. . . . One is left, therefore, with
the conclusion that current results are from extreme and conscious exaggeration of
her symptoms apparently secondary to attempts to secure benefits.” He diagnosed
Ms. Clay with somatization disorder, dependent personality traits, and chronic pain
syndrome involving left knee, right shoulder, and right arm. He stated that
malingering remained to be ruled out. He concluded, “There is considerable evidence
that her responses are extremely exaggerated, based on objective evidence of an
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extremely high F score on her MMPI-2 as well as my own subjective impressions
throughout the evaluation. My clinical impression was that Ms. Clay was probably
malingering though this is difficult to assess.” He specifically noted, however, that
“[d]espite Ms. Clay’s extreme exaggeration of her physical symptoms, her intellectual
abilities nevertheless fall within the mildly mentally retarded range.”
On September 5, 2001, another consultative psychologist, Richard C.
Maddock, Ph.D., examined Ms. Clay. Dr. Maddock described her as defensive,
indifferent, disinterested, and only minimally cooperative. He administered a full
battery of psychological tests. He could not score her MMPI-2 test because she
skipped many items and “filled out columns on the answer sheet in straight-line
fashion, ignoring the questions and their ‘True-False’ alternatives.” He also
administered the Wahler Physical Symptoms Inventory and concluded that her
“results suggest a strong emotional component to her physical complaints and also
suggest malingering.”
Dr. Maddock also administered an IQ test. Ms. Clay received Verbal,
Performance and Full Scale IQ scores of 61, 57, and 56, respectively. Dr. Maddock
noted that these scores were lower than the scores found by Dr. Inman in 1998. He
concluded that the scores he measured, as well as her earlier scores were not valid,
stating, “Since malingering has been an issue with Ms. Clay since the beginning and
was addressed at least one time by Dr. Inman when he tested her, the scores from
2/10/98 are probably not valid. This would mean that neither set of scores could be
considered to be valid or reliable.” In reaching this conclusion about Dr. Inman’s
scores, Dr. Maddock created a graph on which he plotted the scores he measured
against the scores Dr. Maddock measured to demonstrate the decrease over three
years’ time. He concluded that the difference in scores supported the conclusion that
both sets were unreliable.
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Dr. Maddock also administered a Wide Range Achievement Test. He found
that Ms. Clay’s various raw scores on the Achievement Test equated to first grade or
kindergarten levels of achievement. Because he found that she was malingering,
however, he found the Achievement Test results to be invalid.
To test for malingering, Dr. Maddock conducted a “Computerized Assessment
of Response Bias assessment (CARB).” Dr. Maddock concluded that the results of
the CARB assessment verified malingering and resulted in scores that “could only be
related to giving misleading responses.” Dr. Maddock stated, “It is extremely
unlikely that even an individual who has sustained a severe brain injury would
perform this poorly in the absence of symptom exaggeration or malingering issues.”
Dr. Maddock, like all the psychologists and psychiatrists who examined Ms.
Clay, noted that she cared for herself, dressed appropriately, was understandable
when she talked and was able to communicate effectively. He concluded, however,
that “Ms. Clay has not been open and honest during this interview. There was
extensive evidence of malingering and exaggeration of symptoms in order to establish
eligibility for disability benefits.”
On September 21, 2001, Dr. James T. Galyon, an orthopedist, examined Ms.
Clay. He concluded that she could not rotate her right forearm/hand outwardly but
that she could rotate the right forearm/hand inwardly (full pronation but zero degrees
supination), and that the limitation would impact her ability to work. He concluded
that she had a full range of motion in her other joints, including her left knee, and that
her left knee was not disabling or limiting.
At Ms. Clay’s fifth hearing, a vocational expert testified and answered
hypothetical questions asked by the ALJ. The hypothetical questions involved
progressively more restrictive combinations of impairments to determine what jobs
would be available to someone with these different levels of impairment. The first
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hypothetical involved a person who had mild to moderate pain that was mostly
controlled with over-the-counter pain medicine and who had a residual functional
capacity that included the ability to: lift or carry ten pounds frequently and up to
twenty pounds occasionally; stand or walk about six hours in an eight-hour day, one
to two hours without interruption; walk for two blocks without walking on uneven
ground; sit with no limitation; and only occasionally balance, kneel, crouch, crawl,
or stoop. In this first hypothetical, the ALJ also included a restriction regarding
borderline intellect and issues related to depression by further restricting the person
to perform only, “simple, unskilled work, level three or below [meaning] unskilled
or semi-skilled level three or below . . . understand, remember, [and] follow simple,
concrete instructions . . . drive . . . work with supervision, superficial contact with the
public [and] coworkers . . . [and] can meet and agree to change.” Based on these
limitations, the vocational expert recommended cashier work, with 1.6 million jobs
available nationally, 16,000 statewide, and 8500 in two local counties. The
vocational expert also recommended work as a machine operator, with 157,000 jobs
available nationally, 3100 state-wide, and , and 1000 in two local counties.
The ALJ then amended his hypothetical to include a further limitation with
more restrictive pain so that the worker would only be able to stand or walk for four
hours out of an eight hour day and only be able to perform work while sitting down.
The vocational expert classified this hypothetical as unskilled work at sedentary
exertional levels and recommended assembly work with 161,000 jobs available
nationally, 2000 state-wide, and 500 in two local counties, respectively.
During her interviews with the mental health professionals and through
testimony at her five hearings, Ms. Clay described her daily activities and work
history. She had worked part time, for short periods of time as a food worker,
waitress, dish washer, and machine operator. She cared for herself and, for a period
of time, for her grandchild. Early in the extended application process, she reported
that she performed various household chores, but later she claimed that her son or
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daughter did most of the housework. She claimed to attend church regularly,
socialize seldomly, and watch television most of the time.
Applying the five-step sequential analysis of 20 C.F.R. § 404.1520(a)-(g), the
ALJ found that Ms. Clay had not engaged in substantial gainful activity since her
alleged onset date. Although Ms. Clay had worked at a few part time jobs, the ALJ
concluded that she had no relevant past work experience. He found that her
impairments were severe, but alone or in combination, neither medically nor
functionally equal to any listed impairment. The ALJ found that Ms. Clay was
physically and mentally restricted in the manner that he described in his first
hypothetical and that there were a significant number of jobs available nationally for
someone with those restrictions. He specifically found that Ms. Clay had some
physical limitations but that her extreme subjective complaints were not borne out by
the evidence. Also, he found that, although she was a person of limited intellectual
abilities, her mental diagnosis was malingering rather than mental retardation.
Ultimately, he found her not disabled and denied her application for benefits.
The Appeals Council denied further review, making the ALJ’s denial of
benefits the Commissioner’s final decision. The district court affirmed, finding the
evidence sufficient to support the Commissioner’s findings under the deferential
standards applicable to the review of social security determinations.
II.
We review the district court’s decision to uphold the denial of social security
benefits de novo. Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); Pettit v.
Apfel, 218 F.3d 901, 902 (8th Cir. 2000). Our review of the Commissioner’s
decision, however, is deferential, and we do not substitute our own view of the
evidence for that of the Commissioner. Id. Rather, we affirm the Commissioner’s
decision if it is supported by substantial evidence on the record as a whole. Dixon v.
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Barnhart, 353 F.3d 602, 604 (8th Cir. 2003); Grebenick v. Chater, 121 F.3d 1193,
1197-98 (8th Cir. 1997); Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997).
Substantial evidence is evidence that a reasonable mind would find adequate to
support a decision, considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cunningham, 222 F.3d at 500; Young
v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). If there is substantial evidence to
support the Commissioner’s conclusion, we may not reverse even though there may
also be substantial evidence to support the opposite conclusion. Clark v. Apfel, 141
F.3d 1253, 1255 (8th Cir. 1998); Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir. 1996).
In evaluating claims for disability, we conduct a five step sequential
evaluation: (1) is the claimant engaging in substantial gainful activity; (2) does the
claimant have severe impairment(s); (3) does the impairment or combination of
impairments meet or equal an impairment listed in the Listing of Impairments in
Appendix 1, Subpart P, 20 C.F.R. Part 404; (4) does the impairment or combination
of impairments prevent the claimant from doing past relevant work; and (5) does the
impairment or combination of impairments prevent the claimant from performing any
other work which exists in significant numbers in the national economy. 20 C.F.R.
§ 404.1520(a)-(g). Here, Ms. Clay argues that, at the third step, the Commissioner
erroneously found that she did not meet the listing for mental retardation. She also
argues that the Commissioner erroneously found against her at the fifth step by
mischaracterizing her residual functional capacity and by relying on inadequate
responses from the vocational expert regarding available work.
The listing for mental retardation, Listing 12.05, 20 C.F.R. Pt. 404, Subpt. P.,
App. 1 (2001), describes mental retardation as, “significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset of
the impairment before age 22.” To show a sufficiently severe disorder under
subsection (C) of Listing 12.05, an applicant must show “[a] valid verbal,
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performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing additional and significant work-related limitation of function.”
We have emphasized in the past that IQ scores must be valid, that the Commissioner
need not rely exclusively on IQ scores, and that the Commissioner may disregard test
scores that are inconsistent with an applicant’s demonstrated activities and abilities
as reflected in the record as a whole. Muncy v. Apfel, 247 F.3d 728, 733 (8th Cir.
2001); Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998).
Here, Ms. Clay did not initially claim mental retardation and there is no
evidence other than her poor performance in, and early exit from, school to suggest
onset of an impairment before age 22. The absence of a record of treatment,
diagnosis, or even inquiry into a mental impairment prior to applying for benefits
weighs against finding there to be an impairment.
The first psychiatrist who examined Ms. Clay, Dr. Crupie in 1992, did not
examine her to determine her IQ or to assess her for mental retardation. Rather, he
examined her because she claimed to be seeing and hearing things. Dr. Crupie
believed that Ms. Clay dealt honestly with him in all respects and did not falsely
exaggerate any symptoms. He gave a clinical estimate that Ms. Clay’s IQ was eighty
and rated her as good or very good/unlimited in categories such as “follow work
rules,” “relate to co-workers,” “deal with the public,” “use judgment,” “interact with
supervisor(s),” “deal with work stresses,” “function independently,” “maintain
attention/concentration,” “understand, remember and carry out detailed, but not
complex job instructions,” and “understand, remember and carry out simple job
instructions.” Dr. Crupie’s opinion strongly supports the Commissioner’s conclusion
because there is no suggestion that Ms. Clay was malingering or feigning mental
infirmity at the time of Dr. Crupie’s examination. In this regard we note that “a
person’s IQ is presumed to remain stable over time in the absence of any evidence of
a change in the claimant’s intellectual functioning.” Muncy, 247 F.3d at 734. There
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is no evidence of disease or trauma to explain a change in performance between 1992
and her later, 1998 and 2001 evaluations.
The next psychiatric examination was the 1993 examination by Dr. Adler. Ms.
Clay’s attorney sent her to Dr. Adler because she claimed to have “bad nerves.”
There is nothing in Dr. Adler’s report to suggest that he or Ms. Clay’s attorney
believed Ms. Clay to be mentally retarded, although Dr. Adler clearly believed Ms.
Clay to be a person of limited intellect. Like Dr. Crupie, Dr. Adler did not believe
Ms. Clay to be malingering or consciously exaggerating her symptoms. He
concluded that she genuinely believed she was in great physical pain and that this
belief, like her belief that she was seeing things, was related to her limited intellectual
abilities. We believe that Dr. Adler’s opinion also strongly supports the
Commissioner’s findings because, again, in the absence of a suggestion of
malingering, Ms. Clay did not exhibit limitations consistent with mental retardation.
The next exam occurred much later, in 1998. During this exam, Dr. Inman
conducted an IQ test and found IQ scores that ranged from sixty-one to sixty-five.
Dr. Inman specifically stated that Ms. Clay failed to make a serious effort in her
testing, and he specifically cited a subpart of the IQ test as an example of her failure
to make more than a minimal effort. He also noted that she exaggerated her physical
complaints and falsely checked symptoms on a different test in a probable attempt to
claim psychological problems and that malingering remained to be ruled out.
Notwithstanding these comments, Dr. Inman referred to the IQ scores he obtained as
valid. He also noted that Ms. Clay’s abilities with simple calculations, her general
fund of knowledge, and her abstract reasoning were considered commensurate with
her full scale IQ. Accordingly, in Dr. Inman’s opinion, Ms. Clay demonstrated
abilities consistent with the low IQ scores he measured. He also noted, however, that
her judgment and social reasoning were grossly intact.
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Viewed in its entirety, we believe that Dr. Inman’s opinion was equivocal and
that it was not error for the ALJ to disregard his findings. Dr. Inman’s conclusion
that he obtained valid IQ scores is at odds with his specific claim that Ms. Clay failed
to put forth a serious effort when taking the IQ test, at odds with Dr. Crupie’s
observations of Ms. Clay and estimate of her IQ, and at odds with Dr. Adler’s
assessment of Ms. Clay. Interpretation of Dr. Inman’s findings was a factual matter
clearly within the province of the ALJ’s authority as a decisionmaker, and the
equivocal nature of Dr. Inman’s report left the ALJ free to disregard his conclusions.
We held in Bentley v. Shalala, 52 F.3d 784, 785 (8th Cir. 1995), that it is the ALJ’s
role to resolve conflicts in experts’ opinions. We believe this rule holds true whether
the conflicts are between experts or internal to one expert’s opinion.
Three years later, Dr. Maddock found IQ scores that ranged from fifty-six to
sixty-one. He was convinced, however, that Ms. Clay was malingering, and he
declared that his own results were invalid. Dr. Maddock also opined that it was likely
that the results Dr. Inman obtained were invalid. He based his opinion of Dr. Inman’s
results on the fact that Dr. Inman had stated that malingering remained to be ruled
out. Accordingly, Dr. Maddock’s opinion lends no support to Ms. Clay’s application
and casts further doubt upon the validity of Dr. Inman’s findings.2
2
Ms. Clay argues that Dr. Inman excluded Ms. Clay’s IQ test scores from his
statement of concern regarding malingering. She also argues that Dr. Maddock
ignored the applicable margin of error when he compared the IQ test results that he
and Dr. Inman obtained. We believe that Ms. Clay’s arguments in this regard miss
the mark. Dr. Inman’s opinion was internally inconsistent, and the ALJ was justified
in relying on Dr. Inman’s comments about minimal effort rather than his conclusion
that the test scores were valid. Also, Dr. Inman clearly had general concerns about
malingering, even if he only stated that malingering remained to be ruled out, and
even if his concerns focused on physical impairments. These concerns, verified by
Dr. Maddock, cast suspicion on Ms. Clay’s motivations, her credibility, and the
validity of all of Dr. Maddock’s and Dr. Inman’s tests involving Ms. Clay.
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This is not a case, as in Muncy, 247 F.3d at 733-34, where the court is faced
with a decision from the Commissioner that involved choosing between multiple
valid IQ scores. Rather, in this case, there is substantial evidence to support the
conclusion that Ms. Clay’s demonstrated abilities were inconsistent with those
expected from a person with an IQ below seventy. Further, of the two sets of IQ
scores, one was invalid by the tester’s own admission, and the other was sufficiently
suspect that the Commissioner was entitled to disregard it notwithstanding the tester’s
opinion that the scores were valid. Even though it might be possible to conclude that
Dr. Inman’s test results were valid and that the record could support a finding that
Ms. Clay meets Listing 12.05(C), there is substantial evidence to support the
Commissioner’s conclusions, and support for Ms. Clay’s position is not so
compelling that we may reverse the Commissioner’s finding. Dixon, 353 F.3d at 604
(“‘If, after review, we find it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s findings, we must
affirm the decision of the Commissioner.’” (quoting Nguyen v. Chater, 75 F.3d 429,
431 (8th Cir. 1996))).
Regarding Ms. Clay’s arguments surrounding the hypothetical questions posed
to the vocational expert, we find no reversible error. Ms. Clay’s first argument, that
the ALJ erred by omitting additional restrictions from the hypothetical questions,
relies on the opinion of Dr. Inman. The ALJ concluded that additional restrictions
were not supported by the evidence, and we find no error in the ALJ’s determination.
See Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir. 1985) (noting that “the
hypothetical is sufficient if it sets forth the impairments which are accepted as true
by the ALJ”).
In her second argument concerning the vocational expert, Ms. Clay claims that
the conclusion she could work as a cashier is inconsistent with the hypothetical and
inconsistent with the Dictionary of Occupational Titles’ (1994) description of cashier.
Here, the ALJ’s hypothetical limited possible jobs to “simple unskilled work, level
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three or below,” to be performed by a person with the ability to “understand,
remember, [and] follow simple, concrete instructions . . . [and have only] superficial
contact with the public.” The Dictionary of Occupational Titles (1994) (“DOT”), in
fact, states that the general position of cashier requires “level three” intellectual
abilities. On this point, the expert’s opinion presents no conflict. The ALJ, however,
set forth further restrictions (superficial contact with public, simple, concrete
instructions) that are arguably inconsistent with level three functioning and arguably
inconsistent with the DOT’s definition of the job of cashier. Accordingly, Ms. Clay’s
argument concerning her ability to work as a cashier may have merit.
Even though this argument may have merit, it does not demonstrate that Ms.
Clay is entitled to benefits. Cashier was not the only job the expert found Ms. Clay
could perform. The expert also opined that, with even greater limitations, a
significant number of jobs would be available in the areas of unskilled, sedentary
assembly work. Because the evidence supports a finding that a significant number
of jobs would be available even if we disregard cashier jobs, Ms. Clay’s argument
does not warrant reversal.
The judgment of the district court is affirmed.
______________________________
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