Hull v. Berryhill

Filing 20

MEMORANDUM OPINION AND ORDER that the Commissioner's be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 12/11/17. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CANTRECE L. HULL,
Plaintiff,
v.
NANCY A. BERRYHILL1, Acting
Social Security Commissioner,
Defendant.

)
)
)
)
) CIVIL ACTION NO. 17-00137-N
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) Plaintiff Cantrece Hull (“Hull” or
“Plaintiff”) seeks judicial review of an adverse social security ruling denying
disability insurance benefits and supplemental security income. (Docs. 1, 11). With
the consent of the parties, the Court has designated the undersigned Magistrate
Judge to conduct all proceedings and order the entry of judgment in this civil action,
in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D.
Ala. GenLR 73. (See Docs. 15, 16). The parties requested that oral argument be
waived, and their request was granted. (Docs. 18-19). After considering the
administrative record and the memoranda of the parties, the Court finds that the
decision of the Commissioner due to be AFFIRMED.
PROCEDURAL BACKGROUND
On May 22, 2014, Plaintiff protectively applied for disability insurance
benefits and supplemental security income. (R. 20). Plaintiff alleged a disability

Nancy A. Berryhill has replaced Carolyn Colvin and is now the acting Social Security
Commissioner.

1

onset date of September 1, 2011. (Id.). On July 24, 2014, the application was denied,
and Plaintiff requested a hearing. (Id.). On November 4, 2015, Plaintiff attended a
hearing before an Administrative Law Judge (“ALJ”) and the ALJ rendered an
unfavorable decision on March 25, 2016. (R. 17-77).
At the time of the administrative hearing, Plaintiff was thirty nine years old
and had completed one year of a four year college program. (Doc. 11 at 10). She had
previous work history as a gate guard and in used car sales. (Id.). Plaintiff alleges
she is disabled due to diabetes mellitus, hypertension, osteoarthritis of the left
knee, major depressive disorder, and panic disorder. (Id.).
On March 26, 2016, the ALJ entered a decision unfavorable to Plaintiff and
on March 9, 2017, the Appeals counsel denied Plaintiff’s request for review. (R. 177).
Plaintiff presented the following claims on appeal:
1. The Administrative Law Judge committed reversible error in
violation of Social Security Regulations 20 C.F.R. §416.945, 20 C.F.R.
§404.1545, and Social Security Ruling 96-8p in that the Administrative
Law Judge’s residual functional capacity determination was not
supported by substantial evidence.
2. Given the Administrative Law Judge’s finding that the Plaintiff is
limited to “simple routine tasks of unskilled work involving short,
simple instructions and simple work decisions with few changes in
work setting”; and “can interact with co-workers and supervisors on a
basic level and interact with the public occasionally on a basic level,”
the VE’s testimony that the Plaintiff can perform jobs as an election
clerk (DOT #205.367-030) or call out operator (DOT #237.367-014) or
tube operator (DOT #239.687-014), conflicts with the DOT because,
according to the DOT, an individual who “is limited to simple,
unskilled tasks” could not perform any of
these three jobs.

2

(Doc. 11 at 1-2). Defendant has responded to—and denies—these claims.
(Doc. 12, generally).
STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ‘
“ Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)
(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [Commissioner].’ “ Id. (quoting
Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in
original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))).
“‘Even if the evidence preponderates against the [Commissioner]’s factual findings,
[the Court] must affirm if the decision reached is supported by substantial
evidence.’ “ Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
3

conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
findings

of

fact.

No

similar

presumption

of

validity

attaches

to

the

[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).

This Court

“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘The [Commissioner]’s failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the
4

proper legal analysis has been conducted mandates reversal.’” Ingram, 496 F.3d at
1260

(quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).

Accord Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994).
In sum, courts “review the Commissioner’s factual findings with deference
and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo
the legal principles upon which the Commissioner’s decision is based. Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

However, we review the resulting

decision only to determine whether it is supported by substantial evidence.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for DIB and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment ... 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).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x. 604, 609 (11th Cir. 2015) (per
curiam) (unpublished).2
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or

In this Circuit, “[u]npublished opinions are not considered binding precedent, but they may be cited
as persuasive authority.” 11th Cir. R. 36-2. See also Henry v. Comm’r of Soc. Sec., 802 F.3d 1264,
1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the Federal Appendix are cited as
persuasive authority.”).

2

5

equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).3
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).

“These factors must be considered both singly and in

combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant is capable—given his or her age, education, and work history—of engaging

The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual steps of
this five-step sequential evaluation.

3

6

in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).

Finally, although the “claimant bears the

burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.

In determining whether a

claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). If the
applicant attacks only the ALJ’s decision, the Court may not consider evidence that
was presented to the Appeals Council but not to the ALJ. See id. at 1324.
7

DISCUSSION
At Step Two, the ALJ found that Plaintiff has severe impairments of obesity,
diabetes mellitus, hypertension, osteoarthritis of the left knee, major depressive
disorder, and panic disorder. (R. at 26). At Step Three, the ALJ found that “[t]he
claimant does not have an impairment or combination of impairments that meets or
equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).”

(R. at 27).

The ALJ then determined that “[t]he claimant has the

residual functional capacity to perform sedentary work as defined in CFR
404.1567(a) and 416.967(a) except no climbing ladders, ropes or scaffolds; can climb
one flight of stairs with use of banister; can walk ¼ of a mile then sit; no stooping,
kneeling, or crawling; limited to simple routine tasks of unskilled work involving
short, simple instructions and simple work decisions with few changes in work
setting; can interact with co-workers and supervisors on a basic level and interact
with the public occasionally on a basic level.” (R. at 25).
At Steps Four and Five the ALJ found that Plaintiff is unable to perform any
past relevant work but that there were a significant number of other jobs in the
national economy which she was able to perform (R. at 29). As a result, the ALJ
concluded that Plaintiff was not disabled.
Claim One
Plaintiff asserts that the ALJ’s determination was in error because his
“residual functional capacity determination was not supported by substantial
evidence.” (Doc. 11 at 2). The burden of proof rests on a claimant through Step Four.
8

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 One through Step Four. At Step Five, 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.
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 her 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 Guidelines, 20 C.F.R. pt. 404 subpt.
P, app. 2 (“grids”), or hear testimony from a vocational expert (VE). Id. at 1239-40.
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.
Substantial Evidence
“The RFC assessment is a function-by-function assessment based upon all of
the relevant evidence of an individual’s ability to do work-related activities.” Social
Security Ruling 96-8p, Titles II and XVI: Assessing Residual Functional Capacity
9

in Initial Claims, 1996 WL 374184, *3.

It involves determining the claimant’s

ability to do work in spite of his or her impairments in consideration of all relevant
evidence. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The Court notes
that the ALJ is responsible for determining a claimant’s RFC. 20 C.F.R. § 416.946
(2015); see also Robinson v. Astrue, 3605 F. App’x. 993, 999 (11th Cir. 2010) (stating
that “the task of determining a claimant’s residual functional capacity and ability to
work is within the province of the ALJ, not of doctors”). That decision cannot be
based on “sit and squirm” jurisprudence. Wilson v. Heckler, 734 F.2d 513, 518 (11th
Cir. 1984). However, the Court also notes that the social security regulations state
that Plaintiff is responsible for providing evidence from which the ALJ can make an
RFC determination. 20 C.F.R. § 416.945(a)(3).
As noted previously, the ALJ determined that “[t]he claimant has the
residual functional capacity to perform sedentary work as defined in CFR
404.1567(a) and 416.967(a) except no climbing ladders, ropes or scaffolds; can climb
one flight of stairs with use of banister; can walk ¼ of a mile then sit; no stooping,
kneeling, or crawling; limited to simple routine tasks of unskilled work involving
short, simple instructions and simple work decisions with few changes in work
setting; can interact with co-workers and supervisors on a basic level and interact
with the public occasionally on a basic level.” (R. at 25). The ALJ explained that he
gave great weight to the medical opinion of William Bose, M.D. As explained in the
ALJ’s opinion, Dr. Bose’s September 30, 2015 treatment record contained the
following permanent work restrictions: “sedentary (sitting) job only. No stooping,
squatting, kneeling, crawling, carrying or climbing of ladders. Ok to go up and down
10

one flight of stairs with banister. May walk up to ¼ mile with short break before
resuming.” (R. at 451).
Plaintiff takes issue with the ALJ’s evaluation of Dr. Bose’s opinion, arguing
that the ALJ’s RFC does not contain all of the restrictions or limitations assigned to
Plaintiff by Dr. Bose. (Doc. 11 at 4). Plaintiff argues that the RFC does not fully
take into account the severity of Plaintiff’s impairments, that the ALJ did not
include reasons for disregarding Plaintiff’s ability to carry, and that the ALJ failed
to fully consider the opinion of the consultative examiner, Dr. Bose. (Doc. 11 at 5).
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of
[the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite impairment(s), and [the
claimant’s]

physical

or

mental

restrictions.”

20

C.F.R.

§§

404.1527(a)(2),

416.927(a)(2). Absent “good cause,” an ALJ is to give the medical opinions of
treating physicians “substantial or considerable weight.” Lewis, 125 F.3d at 1440;
see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause exists “when
the: (1) treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.” Phillips, 357 F.3d at 1241. With
good cause, an ALJ may disregard a treating physician’s opinion, but he “must
clearly articulate [the] reasons” for doing so. Id. at 1240–41.
Here, the ALJ did not disregard Dr. Bose’s opinion, rather he gave it great
weight, and considered it in conjunction with the additional evidence in the record,
11

including Plaintiff’s own testimony. At the hearing, the ALJ asked Plaintiff, “Now,
how much can you lift?” She answered, I think comfortably five pounds, ten pounds
would probably be my maximum.” She then stated that was able lift a gallon jug,
and to pour it. (R. at 50-51).
As defined in 20 C.F.R. § 404.1567(a), “Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary
in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.”
While Dr. Bose did include a carrying restriction in his recommended work
restrictions, the recommendation did not include a specific weight limit. The Court
finds it unreasonable to assume that this meant Plaintiff cannot lift or carry any
amount of weight under any circumstances. Thus, the Court does not find that the
ALJ

disregarded

Dr.

Bose’s

medical

opinion.

Rather,

he

developed

the

recommendation in more detail by asking Plaintiff about her ability to lift.
Accordingly, the Court finds that the ALJ’s decision with regard to Plaintiff’s RFC
to perform sedentary work is supported by substantial evidence.
Claim Two
In her second claim, Plaintiff argues that her case should be remanded
because the ALJ failed to resolve a conflict between the VE’s hearing testimony and
the DOT. The ALJ found that Plaintiff is “limited to ‘simple routine tasks of
unskilled work involving short, simple instructions and simple work decision with
12

few changes in work setting’; and ‘can interact with co-workers and supervisors on a
basic level and interact with the public occasionally on a basic level.’” (Doc. 11 at 5,
quoting R. at 67-68 (administrative hearing transcript)). Plaintiff claims that the
positions that the VE determined she could still work – election clerk, call out
operator, and tube operator – all exceed the reasoning level limitations described in
the ALJ’s decision. (Doc. 11 at 5-6). According to Plaintiff, because the ALJ failed to
adhere to SSR 00-4P and resolve the alleged conflict between the VE’s testimony
and the DOT, the matter must be remanded for such resolution. Id.
In pertinent part, SSR 00-4P reads:
Occupational evidence provided by a VE or VS generally should be
consistent with the occupational information supplied by the DOT.
When there is an apparent unresolved conflict between VE or VS
evidence and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE or VS evidence to
support a determination or decision about whether the claimant is
disabled. At the hearings level, as part of the adjudicator’s duty to fully
develop the record, the adjudicator will inquire, on the record, as to
whether or not there is such consistency.
Neither the DOT nor the VE or VS evidence automatically “trumps”
when there is a conflict. The adjudicator must resolve the conflict by
determining if the explanation given by the VE or VS is reasonable and
provides a basis for relying on the VE or VS testimony rather than on
the DOT information.
SSR 00-4P. Plaintiff argues that each job identified by the VE requires a Reasoning
Development Level of 2, which means Plaintiff must be able to “[a]pply
commonsense understanding to carry out detailed but uninvolved written or oral
instructions” and “[d]eal with problems involving a few concrete variables in or from
standardized situations.” DICTIONARY OF OCCUPATIONAL TITLES, § 205.367030 (election clerk); § 239.687-014 (tube operator); § 237.367-014 (call out operator).
13

As Defendant points out, the election clerk and call out operator positions actually
require a Reasoning Development Level of 3.4 However, the tube operator position
does require a Reasoning Development Level of 2. Because the ALJ found that he
should be limited to simple, routine tasks, Plaintiff argues that he is unable to
perform the reasoning requirements attached to each position.
The Court finds Plaintiff’s argument unpersuasive, as this Circuit has held
that any claimant limited to simple, routine, repetitive tasks by an ALJ or VE can
perform tasks and occupations associated with level two reasoning as defined by the
DOT. See generally Miller v. Comm’r of Soc. Sec., 246 F. App’x. 660 (11th Cir. 2007)
(no remand where VE identified reasoning level three jobs for a plaintiff who could
only perform simple, routine, and repetitive work); Chambers v. Comm’r of Soc.
Sec., 662 F. App’x. 869, 872 (11th Cir. 2016) (“As for jobs labeled with reasoning
levels of two or three, they may also be jobs with simple tasks.”); See also Hurtado v.
Astrue, 2010 WL 1850261, at *1 (S.D. Fla. Apr. 14, 2010) (“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.”); Menendez v. Colvin,
2015 WL 1311460, at *4-5 (S.D. Fla. Mar. 23, 2015) (collecting other cases). Thus,
Plaintiff’s argument fails and remand is not required.
Further, even if a conflict exists, the law of this Circuit establishes that the
ALJ did not err when he relied on the VE’s testimony in the face of conflicting DOT
evidence. In a case involving similar allegations, the Eleventh Circuit held that the

4

This error is immaterial given the controlling case law cited herein.

14

testimony of a VE “trumps” the definitions contained in the DOT if the two sources
provide conflicting evidence:
The ALJ determined that Jones was not capable of performing a full
range of sedentary work, so he appropriately called a VE to testify
whether Jones, given her limitations, was capable of performing other
jobs in the national economy. The VE identified the above-mentioned
jobs that Jones could perform with her limitations. Notwithstanding,
Jones argues that the ALJ’s reliance on the VE’s testimony was
improper because the exertional and environmental requirements of
some of the jobs identified by the VE, such as hand packager and nut
sorter, conflict with the DOT.
…
We agree with the Sixth Circuit that when the VE’s testimony conflicts
with the DOT, the VE’s testimony “trumps” the DOT. We so hold
because the DOT is not the sole source of admissible information
concerning jobs. The DOT itself states that it is not comprehensive. It
provides occupational information on jobs in the national economy, and
it instructs DOT users demanding specific job requirements to
supplement the data with local information detailing jobs within their
community. Additionally, the Code of Federal Regulations states that
the SSA will take administrative notice of reliable job information
available from various governmental and other publications, such as
the DOT. By this wording, the SSA itself does not consider the DOT
dispositive.
Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999) (citations and quotations
omitted). Despite the fact that Social Security Administration promulgated Rule 004P after Jones, the Eleventh Circuit continues to apply the directive set forth in
that decision. See Leigh v. Comm’r of Soc. Sec., 496 F. App’x. 973, 975 (11th Cir.
2012) (discussing SSR 00-4p to hold “[e]ven assuming that there was an
inconsistency between the VE’s opinion and the DOT, the ALJ did not err in relying
on the VE’s opinion to determine that Leigh was not disabled.”); Miller, 246 F.
App’x. at 662 (applying Jones and finding that “[o]ur precedent establishes that the

15

testimony of a vocational expert ‘trumps’ an inconsistent provision of the DOT in
this Circuit.”).
Additionally, when addressing the VE, the ALJ stated, “And I will expect
that your testimony today will be based on your knowledge, education, training and
experience and will be consistent with the DOT unless you tell me otherwise.” (R. at
66-67). Based on this, the Court finds that the ALJ complied with SSR 00-4P (“At
the hearings level, as part of the adjudicator’s duty to fully develop the record, the
adjudicator will inquire, on the record, as to whether or not there is such
consistency.”). Here, the ALJ noted the need for the VE’s testimony to be consistent
with the DOT. Plaintiff was present at this hearing, was represented by counsel,
and did not raise any inconsistency after the VE gave this testimony. Further,
counsel did not seek further clarification on whether such a conflict actually existed.
Thus, the ALJ properly relied on the vocational expert’s testimony concerning the
alleged conflict, and such reliance is supported by the substantial evidence. See
Chambers, 662 F. App’x. at 873 (argument that the ALJ should have questioned the
vocational expert about any inconsistency with the DOT failed because “there was
no apparent inconsistency—indeed, Chambers did not question the vocational
expert about any inconsistency or raise the issue before the ALJ, and the vocational
expert affirmed that his testimony was consistent with the DOT.”); Brijbag v.
Astrue, 2008 WL 276038, at *2 (M.D. Fla. Jan. 31, 2008) (“[T]he ALJ need not
independently corroborate the VE’s testimony and should be able to rely on such
testimony where no such apparent conflict exists with the DOT.”).

16

In light of the foregoing and because substantial evidence of record supports
the Commissioner’s determination that Plaintiff can perform the physical and
mental requirements of sedentary work as identified by the ALJ, and Plaintiff
makes no meritorious argument that this residual functional capacity would
preclude his performance of the jobs identified by the VE during the administrative
hearing

(compare

Doc.

8

with

Tr.

82-83),

the

Commissioner’s

fifth-step

determination is due to be affirmed. See, e.g., Owens v. Commissioner of Social
Security, 508 Fed.Appx. 881, 883 (11th Cir. Jan. 28, 2013) (“The final step asks
whether there are significant numbers of jobs in the national economy that the
claimant can perform, given h[er] RFC, age, education, and work experience. The
Commissioner bears the burden at step five to show the existence of such jobs ...
[and one] avenue[ ] by which the ALJ may determine [that] a claimant has the
ability to adjust to other work in the national economy ... [is] by the use of a
VE[.]”(internal citations omitted)); Land v. Commissioner of Social Security, 494 F.
App’x. 47, 50 (11th Cir. Oct. 26, 2012) (“At step five ... ‘the burden shifts to the
Commissioner to show the existence of other jobs in the national economy which,
given the claimant’s impairments, the claimant can perform.’ The ALJ may rely
solely on the testimony of a VE to meet this burden.” (internal citations omitted)).

CONCLUSION
Plaintiff has raised two claims in bringing this action and both are without
merit.

Upon consideration of the entire record, the Court finds “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”
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Richardson v. Perales, 402 U.S. 389, 401 (1971). Therefore, it is ORDERED that
the Commissioner’s decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d
947, 950 (5th Cir. 1980), and that this action be DISMISSED. Final judgment will
be entered separately.
DONE and ORDERED this the 11th day of December 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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