Harrison v. Astrue
MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision. Signed by Honorable Judge Terry F. Moorer on 11/14/2011. (br, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
DEBBIE G. HARRISON,
MICHAEL J. ASTRUE,
Commissioner of Social Security
CASE NO. 2:10-cv-767-TFM
MEMORANDUM OPINION AND ORDER
Debbie G. Harrison (“Plaintiff” or “Harrison”) originally applied for disability
insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401
et seq., on September 8, 2006. Tr. 13. After being denied, Harrison timely filed for and
received a hearing before an administrative law judge (“ALJ”) who rendered an
unfavorable decision on August 27, 2008. Tr. 22. Harrison subsequently petitioned for
review to the Appeals Council who rejected review of Harrison’s case on August 13,
As a result, the ALJ’s decision became the final decision of the
Commissioner of Social Security (“Commissioner”).
Judicial review proceeds
pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After careful scrutiny of the
record and briefs, for reasons herein explained, the Court AFFIRMS the Commissioner’s
I. NATURE OF THE CASE
Harrison seeks judicial review of the Commissioner’s decision denying her
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application for disability insurance benefits. United States District Courts may conduct
limited review of such decisions to determine whether they comply with applicable law
and are supported by substantial evidence. 42 U.S.C. § 405. The court may affirm,
reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
If the Commissioner’s decision is supported by substantial evidence, the district
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court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986)). The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but
rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth,
703 F.2d at 1239).
The Court will also reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
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provided they are both insured and disabled, regardless of indigence.1 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line.2 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language
for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is
Engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html
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demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits.
See 20 C.F.R. §§
404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (“grids”) or hear testimony from a vocational expert (VE). Id. at
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Harrison, age 46 at the time of the hearing, has completed the eighth grade and has
no reading or writing limitations. Tr. 27. Harrison performed past relevant work as a
waitress (semi-skilled, light) and cashier (unskilled, light).
Tr. 34. Harrison has not
engaged in substantial gainful work activity since her alleged disability onset date of
September 3, 2004. Tr. 15. Harrison last met the insured status requirements of the
See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI
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Social Security Act on December 31, 2008. Id. Harrison claims she is unable to work
because of pain in her lower back, right shoulder, feet, and right hip extending down her
Tr. 29, 117.
All of Harrison’s alleged disabilities stem from two back
surgeries, the second was a back fusion. Tr. 17. Harrison rates her average daily pain as
a level seven to eight on a ten point scale with ten being the highest level of pain. Id.
Harrison received treatment from various medical practitioners and the ALJ
considered the medical records from these practitioners. Tr. 17-20. The records from
Andalusia Regional Hospital show that Harrison suffered from a L5-S1 disk herniation
and underwent lumbar decompression surgery. Tr. 17. On September 9, 2004, Harrison
also underwent a lumbar provocative discography which revealed a L5-S1 herniated
nucleus pulposus status post lumbar laminectomy, intractable back pain, and right lower
extremity pain. Tr. 17-18. In subsequent attempts to alleviate the pain over the next few
years, Harrison underwent several epidural steroid injections. Tr. 18-19.
Harrison underwent an uneventful decompression surgery at Mizelle Memorial
Hospital on September 28, 2004. Tr. 18. Harrison suffered postoperative pain and
received treatment for postoperative anemia, migraine headaches, and reflux.
Harrison was discharged a week later on October 5, 2004. Id. Harrison returned to
Mizelle Memorial Hospital on February 6, 2006 due to nausea and vomiting, caused by
Harrison began to see Dr. Robert M. Williams on November 10, 2004, at which
time an x-ray of her lumbar spine “showed prior surgery and no acute bony change seen,”
but the x-ray indicated a fracture to her left rib. Id. Harrison saw Dr. Williams through
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February 10, 2006, for various ailments such as non-cardiac chest pain, bronchitis, right
leg pain, and neck pain. Id.
Dr. Ann L. Jacobs, a licensed psychologist, saw Harrison on December 13, 2006 at
the request of the Social Security Administration (“SSA”). Id. Dr. Jacobs discussed
Harrison’s daily activities and her health problems, including all of her medications, and
depressive symptoms. Tr. 18-19. Harrison said she was not depressed and that she has
never been hospitalized or received counseling for depression.
Tr. 18. Dr. Jacobs
reported that Harrison’s “mood was sad and her affect was in normal range.”
Harrison reported trouble sleeping. Id. Harrison reported that her medications do nothing
for her pain, but also that she is happy with her medication and benefitted from them. Tr.
Dr. Jacobs reported that Harrison’s concentration, attention, and fund of
information were good, memory functions were intact, and she was able to think
abstractly. Tr. 18. Dr. Jacobs found Harrison’s intelligence to be average. Id. Dr.
Jacobs opined that Harrison suffered from major depression, as well as recurrent, mild,
and chronic pain disorder. Id.
Dr. Lori L. Stanfield, a family practitioner with Opp Family Medicine, saw
Harrison several times between February 9, 2005 and April 3, 2007. Tr. 19. On her first
visit, Harrison discussed her insomnia, chronic sinusitis, chronic back pain, and side
effects of her pain medications, including nausea. Id. Dr. Stanfield took Harrison off
Ambien, Lipitor, and Nexium and prescribed Flexeril, Phenergan, Premarin, Restoril, and
Zocor. Id. Harrison’s subsequent visits were routine visits including nasal congestion,
ear pain, headaches, lesions on her forearm and right hand due to dermatofibroma, and
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lower abdomen pains due to urinary conditions. Id. On February 5, 2007, Harrison
presented more serious symptoms of abdominal pain with associated nausea and
vomiting, as well as left arm pain and palpitation. Id. Dr. Stanfield diagnosed Harrison
with gastroesophageal reflux disease and prescribed medication, specifically noting that
her exam was “within normal limits.” Id.
On September 11, 2007, Harrison was examined by a neurologist, Dr. Kanhaiyalal
Trivedi, who conducted multiple nerve tests and an EMG exam. Id. Dr. Trivedi found
“evidence suggestive of mild median neuropathy consistent with mild carpal tunnel
syndrome on the right side.” Id.
Harrison began treatment with Anesthesiologist Dr. Jeff L. Buchalter on April 7,
2005. Id. On Harrison’s first visit, Dr. Buchalter found that Harrison’s lumbar spine
showed “decreased range of motion on flexion and extension with right-sided paraspinal
spasm” with an antalgic gait. Id. Dr. Buchalter found Harrison to be a candidate for
“repeat epidural injections below her fusion site.”
On January, 18, 2007, Dr.
Buchalter diagnosed Harrison with “lumbago, lumbar spondylosis and intervertebral disc
protrusion,” and administered another epidural steroid injection. Id. Through June 5,
2008, Harrison’s remaining follow-up visits with Dr. Buchalter were in regard to her
complaints of persistent lower back and lower extremity pain. Id. Dr. Buchalter found
minimal improvement from the lumbar fusion, marked relief of her tailbone pain from the
epidural injections, no lower extremity edema, no gross abnormalities, and no new onset
of weakness, numbness, tingling, bowel, or bladder dysfunction. Id. Dr. Buchalter then
discussed alternative treatments with Harrison including “conservative care such as
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medication management, physical therapy, home exercise and modalities.” as well as
other types of injective treatments and surgical treatment consults. Tr. 19-20.
Dr. Clark S. Metzger, an orthopaedic specialist, treated Harrison from October 17,
2002 through December 27, 2007 for “follow-up of her back surgery and residual low
back pain, leg and hip pain.” Tr. 20. Dr. Metzger ordered multiple epidural injections at
different times because of right shoulder AC joint arthritis and trochanteric bursitis, left
shoulder rotator cuff tendonitis/impingement syndrome, right elbow lateral epicon dylitis,
right hip greater trochanteric burisits, as well as for general pain relief in her joints. Id.
Dr. Metzger noted after an examination that Harrison had “5/5 strength in all upper and
lower extremity motor groups,” and her sensory was “grossly intact.” Id.
The ALJ found that the medical record as a whole indicates that Harrison has
residual pain from two back surgeries. Tr. 20. The ALJ specifically noted that the
epidural injections gave Harrison “marked relief of her tailbone pain,” that Harrison has
full strength in her upper and lower extremity motor groups, that there is “no clear
medical evidence or treating source opinions regarding [Harrison’s] functional
limitations,” and that there is nothing in the record to establish it is medically necessary to
limit her activities. Id. The ALJ found that the evidence supports that Harrison is limited
to “light exertional activity.” Id. The ALJ notes that although Harrison was diagnosed
with major depression, Harrison denied being depressed and mentioned that her
depression was in remission. Id. The ALJ also noted that she has been on antidepressant
medication for “about 5 or 6 years,” but that she has not received any hospitalization or
any counseling for depression.
Therefore, the ALJ found that Harrison’s
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“medications appear to adequately control her symptoms, as no further treatment has been
recommended or sought.” Id. The ALJ found that the “medical record supports that
[Harrison] would only be limited to work involving only very short and simple
instructions and little public contact.” Id.
Harrison raises two issues for judicial review:
(1) Whether the ALJ failed to consider the effects of Harrison’s medications on
her ability to work; and
(2) Whether the ALJ failed to resolve the conflict between the VE’s testimony and
the Dictionary of Occupational Titles (“DOT”) in compliance with SSR 00-4p.
See Doc. 13 at 3.
The ALJ properly considered the effects of Harrison’s medications on her
ability to work.
Harrison argues that the ALJ failed to consider the effects of Harrison’s
medications on her ability to work. See Doc. 13 at 4. Harrison asserts that despite the
ALJ’s clear references to the medications and Harrison’s testimony regarding the side
effects, the ALJ “failed to reach a determination as to the side effects” of Harrison’s
medication. Id. The Court finds that in evaluating a claimant’s symptoms, the ALJ
properly considered the other required relevant factors including “[t]he type, dosage,
effectiveness, and side effects of any medication” that the claimant takes or has taken to
alleviate the claimant’s pain or other symptoms. See 20 C.F.R. § 404.1529(c)(3)(iv).
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Regarding the side effects of her medication, Harrison testified that for pain
management she takes Lortab, Ultram, Neuronton, Zoloft, and Phenergan. Tr. 28-29.
Harrison takes Phenergan to offset the nausea from Lortab. Tr. 29. Cumulatively,
Harrison claims her medicines make her drowsy. Tr. 29. Lastly, Harrison testified that
she has trouble concentrating that is “probably” caused by her medication. Tr. 32.
The Court finds that the record shows the ALJ heavily references Harrison’s
medications and the side effects caused by them.
The ALJ considered Harrison’s
testimony that she has trouble with concentration because of her medication, but found
that Dr. Jacobs’ report indicated that Harrison’s “concentration and attention were good.”
Tr. 16, 18. Therefore, the ALJ found that “[w]ith regard to concentration, persistence, or
pace, [Harrison] has mild difficulties.” Tr. 16. Harrison does not dispute Dr. Jacobs’
assessment; however, Harrison asks the court to take notice that on the day of that visit
she had not taken Lortab prior to her consultation with Dr. Jacobs. See Doc. 13 at 6.
It is the duty of the ALJ to develop a full and fair record.5 Ellison, 355 F.3d at
1276. The burden of proving disability still rests on the claimant, and the claimant is
responsible for producing evidence that supports her claim and allows the ALJ and the
Commissioner to reach the proper conclusion. Id.; see also 20 C.F.R. § 416.912(a). The
record is replete with extensive treatment records from 2002 through 2008; however, the
only medical record from a doctor which discusses Harrison’s concentration was from Dr.
Jacobs on December 13, 2006. Tr. 18. Harrison asserts that Dr. Jacobs’ assessment is not
accurate because she had not taken Lortab the day of that visit, but the extensive
The ALJ will develop a claimant’s complete medical history for at least the 12 months preceding the
month in which the claimant’s application is filed. See 20 C.F.R. § 416.912(d).
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treatment records do not show any other consultations regarding Harrison’s
concentration. See Doc. 13 at 6. As mentioned, the burden of proof is on Harrison to
produce evidence required for the ALJ to reach the proper conclusion. Ellison, 355 F.3d
Harrison failed to present any evidence that refutes Dr. Jacobs medical
assessment that Harrison’s “concentration and attention were good.” Tr. 18. Once again,
“a clearly articulated credibility finding with substantial supporting evidence in the record
will not be disturbed by a reviewing court.” Foote, 67 F.3d at 1562 (citing MacGregor,
786 F.2d at 1054).
The ALJ noted that Harrison told Dr. Jacobs that she is not as ill and she is better
able to cope with the use of her antidepressant medication. Tr. 18. Dr. Jacobs also noted
that with regard to her mental health, Harrison reported that “she was satisfied with her
medications and found benefit from the medications.” Tr. 19. “When there have been
nonexertional factors (such as depression and medication side effects) alleged, the
preferred method of demonstrating that the claimant can perform specific jobs is through
the testimony of a vocational expert.” MacGregor, 786 F.2d at 1054 (citing Cowart v.
Schweiker, 662 F.2d 731, 736 (11th Cir.1981)).
Next, the ALJ considered Harrison’s reports to Dr. Stanfield about the nausea side
effects of her medications. Tr. 19. On February 9, 2005, Dr. Stanfield considered
Harrison’s report of nausea and decided the course of action was to discontinue
Harrison’s use of Ambien, Lipitor, and Nexium.
In their place, Dr. Stanfield
prescribed Flexeril, Phenergan, Premarin, Restoril, and Zocor. Id. Since this date there
have been no further complaints of nausea to any other treating physician. Tr. 16-19. For
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the Court to find that the ALJ’s decision regarding the side effects of medication is not
supported by substantial evidence, the alleged side effects must be adequately
documented in the record. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.1990).
Where the record contains only an isolated mention of the side effects to a treating
physician and where the record does not contain any concerns about side effects from the
treating physicians, then substantial evidence supported the ALJ’s determination that the
effects do not present a significant problem. Id. Here, Harrison’s reports of side effects
are limited to February, 2005. In response Dr. Stanfield replaced the medication causing
the nausea with other medications.
Apparently, the switch was successful because
Harrison did not further complain about nausea to any other physician.
The ALJ also considered Harrison’s testimony that her medications make her
drowsy. Tr. 17. Harrison has failed to develop the record with evidence to support that
her drowsiness affects her ability to work. Swindle, 914 F.2d at 226. The only mention
that Harrison’s medication causes her to be drowsy is her own subjective testimony. Tr.
29. “A claimant's subjective testimony supported by medical evidence that satisfies the
pain standard is itself sufficient to support a finding of disability.” Foote v. Chater, 67
F.3d at 1561; see also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (stating that
the pain standard is applicable to complaints of subjective conditions other than pain). If
the ALJ “discredits subjective testimony, he must articulate explicit and adequate reasons
for doing so.” Wilson v. Barnhart, 284 F.3d 1219, 1225.
Here, the ALJ found that there is no clear medical evidence or treating source
opinion regarding Harrison’s functional limitations, and there is nothing in the record that
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says she has to limit her activities. Tr. 20; see also Colon ex rel. Colon v. Comm’r of Soc.
Sec., 411 Fed. Appx. 236, 238 (11th Cir. 2011) (holding that substantial evidence
supports the ALJ's decision to discredit claimant’s complaints related to medication side
effects because none of claimant's doctors reported any side effects from his medications,
and he did not complain to them of any side effects).
The ALJ also found that
“[Harrison’s] medications appear to adequately control her symptoms.” Tr. 20.
addition, while analyzing Harrison’s functional limitations the ALJ found that her “ability
to perform all or substantially all of the requirements of this level of work has been
impeded by additional limitations.” Tr. 21 (emphasis added).
The Court finds that the ALJ properly considered the side effects of Harrison’s
medication, and the ALJ’s decision is supported by substantial evidence in the record.
The ALJ properly resolved the conflict between the VE’s testimony and the
DOT in compliance with SSR 00-4p.
Harrison argues that the ALJ failed to resolve a conflict that exists between the
VE’s testimony and the DOT in compliance with SSR 00-4p. See Doc. 13 at 7. Harrison
asserts that the ALJ’s finding that Harrison has “the capacity to perform light work . . .
involving no more than [. . .] only very short and simple instructions” is not consistent
with ALJ’s acceptance of the VE’s testimony regarding the jobs existing in the national
economy that Harrison could perform. Id. The VE testified that Harrison could perform
jobs such as an assembler, miscellaneous food preparer, and surveillance system monitor.
Id. Harrison asserts that the “very short and simple instructions” designation made by the
ALJ would result in a General Education Development reasoning level of one under the
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DOT. Id. at 8. On the other hand, the jobs that the VE testified Harrison could perform
range from a reasoning level of two to three. Id. Harrison argues that the ALJ failed to
resolve this inconsistency, and that she is not able to perform the jobs identified by the
The court in Leonard v. Astrue provided a helpful outline of SSR 00-4p in relation
to a conflict between a VE’s testimony and the DOT:
In SSR 00-4p, the [SSA] recognized that the VE's testimony should
generally be consistent with the information contained in the DOT. See
SSR 00-4p. Accordingly, when an apparent conflict between the two arises,
the SSR directs that the ALJ “must elicit a reasonable explanation for the
conflict before relying on the VE['s testimony].” Id. Moreover, the ALJ is
obligated to inquire on the record as to whether there are any
inconsistencies between a VE's testimony and the DOT. See id. In
addition, before the ALJ can rely on the VE's testimony as substantial
evidence for his or her determination, he or she must resolve any conflict
between the VE's testimony and the DOT. See id. SSR 00-4p provides that
“[t]he adjudicator will explain in the determination or decision how he or
she resolved the apparent conflict.” Id. It also indicates that “[t]he
adjudicator must explain the resolution of the conflict irrespective of how
the conflict was identified.” Id.
Leonard v. Astrue, 487 F. Supp. 2d 1333, 1338-39 (M.D. Fla. 2007), aff’d Leonard v.
Comm'r of Soc. Sec., 409 F. App'x 298 (11th Cir. 2011).
However, it has been found that “[e]ven assuming that an inconsistency existed
between the testimony of the vocational expert and the DOT, the ALJ did not err when,
without first resolving the alleged conflict, he relied on the testimony of the vocational
expert.” Miller v. Comm'r of Soc. Sec., 246 F. App'x 660, 662 (11th Cir. 2007); see also
Wilds v. Comm'r of Soc. Sec., 322 F. App'x 800, 801 (11th Cir. 2009) (holding that if a
conflict had existed, the administrative law judge would have been entitled to rely on the
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testimony of the vocational expert). The Eleventh Circuit adopted the Sixth Circuit’s
view and held that the “VE's testimony ‘trumps’ the DOT.” Jones, 190 F.3d at 1230
(11th Cir. 1999). Although the Jones ruling was issued prior to the promulgation of SSR
00-4p, this Court has found that the “promulgation of SSR 00-4p does not [ ] undo the
rule in Jones nor does the ruling by its own wording, mandate that an ALJ has a duty to
independently investigate whether there is a conflict between the VE's testimony and the
DOT.” Campbell v. Astrue, 2010 WL 3362230, *7 (M.D. Ala. 2010) (quoting Garskof v.
Astrue, 2008 WL 4405050, *5 (M.D. Fla. 2008). The reason SSR 00-4p does not undo
the rule in Jones is because an “agency's ruling does not bind this court.” B. B. v.
Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981).6
Here, the ALJ clearly asked the VE: “[a]re those answers consistent with the
information provided in the [DOT]?” Tr. 36. To which the VE responded “[y]es, Your
Honor.” Id. The ALJ even provided Harrison’s counsel with the option to question the
VE which would have been an opportune time to raise the issue of such a conflict to the
ALJ’s attention; however, no questions were asked. Tr. 38. Accordingly, the Court finds
that the ALJ properly inquired as to whether there was a conflict between the VE’s
testimony and the DOT, and was under no further duty to independently investigate the
issue without more.
A decision of the Unit B panel of the Former Fifth Circuit is regarded an as binding
precedent which should be followed absent Eleventh Circuit en banc consideration. Stein
v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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Pursuant to the findings and conclusions detailed in this Memorandum Opinion,
the Court concludes that the ALJ’s non-disability determination is supported by
substantial evidence and proper application of the law. It is, therefore, ORDERED that
the decision of the Commissioner is AFFIRMED. A separate judgment is entered
DONE this 14th day of November, 2011.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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