Davis v. Berryhill
MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's application for disability and DIB is AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 5/11/18. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
RICHARD DAVIS, JR.,
NANCY A. BERRYHILL,
Acting Commissioner of
CIVIL ACTION NO. 17-CV-293-N
MEMORANDUM OPINION AND ORDER
Plaintiff Richard Davis Jr. (“Davis”) brought this action under 42 U.S.C. §§
405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant
Commissioner of Social Security (“the Commissioner”) denying his applications for a
period of disability and disability insurance benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. § 401, et seq. Upon consideration of the parties’ briefs
(Docs. 9, 12) and those portions of the administrative record (Doc. 8) (hereinafter cited
as “(Tr. [page number(s) in lower-right corner of transcript])”) relevant to the issues
raised, the Court finds that the Commissioner’s final decision is due to be
AFFIRMED under sentence four of § 405(g).1
On April 17, 2017, Davis filed a Title II application for a period of disability
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. 16, 17).
Additionally, the parties elected to waive oral argument. (See Docs. 15 ,18).
and disability insurance benefits (“DIB”), with the Social Security Administration
(“SSA”), alleging disability beginning March 2, 2014.2 (Tr. 258-262). After his
application was initially denied, Davis requested a hearing before an Administrative
Law Judge (“ALJ”) with the SSA’s Office of Disability Adjudication and Review. A
hearing was held October 29, 2015, and on August 11, 2016, the ALJ issued an
unfavorable decision on Davis’ application, finding: “Based on the application for a
period of disability and [DIB] protectively filed on April 17, 2014, [Davis] is not
disabled under sections 216(i) and 223(d) of the Social Security Act.” (Tr. 36).
On July 26, 2017, the Commissioner’s decision on Davis’ application became
final when the Appeals Council for the Office of Disability Adjudication and Review
denied Davis’ request for review of the ALJ’s decision. (Tr. 17-42).
subsequently filed this action under § 405(g) for judicial review of the Commissioner’s
final decision. (See Doc. 1); 42 U.S.C. § 1383(c)(3) (“The final determination of the
Commissioner of Social Security after a hearing [for SSI benefits] shall be subject to
judicial review as provided in section 405(g) of this title to the same extent as the
Commissioner’s final determinations under section 405 of this title.”); 42 U.S.C. §
405(g) (“Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action commenced within
sixty days after the mailing to him of notice of such decision or within such further
“For DIB claims, a claimant is eligible for benefits where she demonstrates disability on or before the
last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005). For SSI claims, a claimant
becomes eligible in the first month where she is both disabled and has an SSI application on file. 20
C.F.R. § 416.202–03 (2005).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
time as the Commissioner of Social Security may allow.”); Ingram v. Comm’r of Soc.
Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is
that a court may review, under sentence four of section 405(g), a denial of review by
the Appeals Council.”).
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, 496 F.3d at
1260 (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 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.”).3 “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
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
Nevertheless, “ ‘[t]here is no burden upon the district court to distill every potential argument that
could be made based on the materials before it…’ “ Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239
(11th Cir. 2012) (per curiam) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (en banc)) (ellipsis added). Generally, claims of error not raised in the district court are
deemed waived. See Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 – 16 (11th Cir. 1994)
(“As a general principle, [the court of appeals] will not address an argument that has not been raised
in the district court…Because Stewart did not present any of his assertions in the district court, we
decline to consider them on appeal.” (applying rule in appeal of judicial review under 42 U.S.C. §§
405(g), 1383(c)(3)); Hunter v. Comm’r of Soc. Sec., 651 F. App’x 958, 962 (11th Cir. 2016) (per curiam)
(unpublished) (same); Cooley v. Comm’r of Soc. Sec., 671 F. App’x 767, 769 (11th Cir. 2016) (per curiam)
(unpublished) (“As a general rule, we do not consider arguments that have not been fairly presented
to a respective agency or to the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999)
(treating as waived a challenge to the administrative law judge’s reliance on the testimony of a
vocational expert that was ‘not raise[d] . . . before the administrative agency or the district court’).”);
In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight Program
Litig., 905 F.2d 1457, 1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory,
or defense for appeal, she must first clearly present it to the district court, that is, in such a way as to
afford the district court an opportunity to recognize and rule on it.”); Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999) (applying In re Pan American World Airways in Social Security appeal).
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)).
[Commissioner]’s failure to apply the correct law or to provide the reviewing court
with sufficient reasoning for determining that the 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
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
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
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).5
“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
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
5 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual steps of this
five-step sequential evaluation.
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
“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 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.
At Step One, the ALJ determined that Davis met the applicable insured status
requirements through December 31, 20156, and that he had not engaged in
substantial gainful activity since the alleged disability onset date of March 2, 2014.
(Tr. 22). At Step Two, the ALJ determined that Davis had the following severe
impairments: osteoarthritis of the left knee, obesity, diabetes mellitus, status post
mitral valve repair, chronic obstructive pulmonary disease (“COPD”), specific
learning disorders (provisional); and borderline intellectual functioning versus low
average intellectual functioning (20 C.F.R. 404.1520(c). (Tr. 22). At Step Three, the
ALJ found that Davis did not have an impairment or combination of impairments
that met or equaled the severity of one of the specified impairments in the relevant
Within the transcript, this date is listed as 2018 rather than 2015. It is clear from the record that
2015 was the date intended.
Listing of Impairments. (Tr. 24).
At Step Four,
the ALJ must assess: (1) the claimant’s residual functional capacity
(“RFC”); and (2) the claimant’s ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant’s RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant’s] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine whether
the claimant: (1) can return to her past relevant work under the fourth
step; and (2) can adjust to other work under the fifth step…20 C.F.R. §
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv)
& (f). If the claimant cannot return to her past relevant work, the ALJ
moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant’s RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That is,
the ALJ must determine if the claimant is limited to a particular work
level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the claimant’s
RFC and determines that the claimant cannot return to her prior
relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Davis had the RFC “to perform light work as defined
in 20 CFR 404.1567(b) except for the following limitations: the claimant cannot climb
ladders, ropes, or scaffolds; He can occasionally climb ramps and stairs. He is capable
of occasional kneeling, crouching, and crawling. The claimant cannot work around
unprotected heights or hazardous machinery. He can occasionally tolerate exposure
to dust, fumes, odors, and gases. He cannot work around loud noise. The claimant
cannot perform tasks requiring fine auditory discrimination, but he can hear
adequately for normal verbal communication. The claimant is limited to simple
routine tasks, with verbal instructions.” (Tr. 29).
Based on this RFC, the ALJ determined that Davis was unable to perform any
past relevant work as a truck driver, mill wright, insulation installer, or off-road
trucker. (Tr. 34). At Step Five, after taking testimony from a vocational expert, the
ALJ found that there exist significant numbers of jobs in the national economy that
Davis can perform given his RFC, age, education, and work experience. (Tr. 35).
Thus, the ALJ found that Davis was not disabled under the Social Security Act. (Tr.
a. First Claim of Error (Failure to Find Certain Impairments Were
Davis argues that the ALJ committed reversible error by failing to find that
Davis’ hearing loss, obstructive sleep apnea (“OSA”), cardiac dysrhythmias, chronic
heart failure, and acute deep venous thrombosis to be severe impairments. (Doc. 9 at
1). Importantly, Davis does not argue that the ALJ’s findings were not supported by
substantial evidence. Rather, he argues “the medical records support” a finding that
the above referenced impairments were severe and that treatment records indicate
that the ALJ should have determined that these impairments were severe. (Doc. 9 at
The question before this Court is not whether an alternative determination
may be supported by the record, but whether the decision reached was supported by
substantial evidence. See Ingram, 496 F.3d at 1260. “‘Even if the evidence
preponderates against the [Commissioner]’s factual findings, we must affirm if the
decision reached is supported by substantial evidence.’” Ingram, 496 F.3d at 1260
(quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). While the medical
records may support an alternative determination, there remains substantial
evidence within the record upon which the ALJ’s determination was based. Further,
the ALJ specifically articulated the rationale behind his determination and as a
result, Plaintiff’s first assignment of error is without merit.7
b. Second Claim of Error (Availability of Jobs in the National
Davis’ second and final claim of error asserts that the ALJ’s Step Five
determination that there exist significant numbers of jobs in the national economy
that Davis can perform, given his RFC, age, education, and work experience, is not
supported by substantial evidence. As Davis summarizes in his brief:
At the hearing, the Vocational Expert testified that the Plaintiff could
perform the requirements of the following jobs: Delivery/Courier, with a
25% reduction in jobs due to the verbal instruction limitation and
another 10-15% reduction due to hearing-related limitations; Textile
Laundry Folder, with a 10-15% reduction due to hearing-related
limitations; and Assembler of Small Productions, with a 25% reduction
due to the verbal instruction limitation and another 10-15% due to
hearing-related limitations. Tr. at 35. The job numbers given for these
jobs nationally were 76,830, 419,840, and 218,740, respectively. Id. The
vocational expert testified that she relied on her professional experience
and observation in determining the reduced number of jobs due to the
hearing-related limitations and need for verbal instructions in the
residual functional capacity, but otherwise her testimony was consistent
with the DOT. Tr. at 104.
For more discussion, see Defendant’s Brief (Doc. 12 at 5-7)(providing specific examples of substantial
evidence supporting the ALJ’s determination that these impairments were not severe).
However, using the program Job Browser Pro by SkillTRAN, the DOT
code for Delivery/Courier and the number of jobs given were for the OES
group, which consists of 7 unique DOT codes. Total employment for the
OES group is 74,060 nationally, 1,340 in Alabama, and 110 in the region.
When those numbers are reduced by 40%, it becomes 44,436 nationally,
804 in Alabama, and 66 in the region. However, these numbers include
the whole OES group. The employment numbers for this specific DOT
code are 27,558 nationally, 499 in Alabama, and 41 in the region, before
the 40% reduction. This job does not exist in the significant numbers
quoted by the vocational expert and with the reduction in numbers due
to the vocational expert using an OES group; this job does not exist
in significant numbers once the reduction is in place.
(Doc. 9 at 7, footnote omitted, emphasis added).
Defendant responds indicating that “Plaintiff contends that the ALJ’s step five
determination is not supported by substantial evidence because the vocational
expert’s testimony on which the ALJ relied is contradicted by data from [SkillTran].”
(Doc. 12 at 12, ¶B). Davis’ claim is a bit more complex. Davis argues that the numbers
of available jobs provided by the vocational expert were incorrect because the
vocational expert did not provide numbers specific to the individual DOT codes for
the jobs she testified Davis could perform. Rather, Davis contends that the numbers
the vocational expert utilized were for an occupational employment statistics group
(“OES group”) and included numbers of jobs for several unique DOT codes rather
than only the DOT code for each job the vocational expert testified Davis could
perform. As a result, Davis argues that the vocational expert’s calculations were
incorrect because they were based on a larger number than what should have been
Davis represents that the “date source for Job Browser Pro … is the U.S. Department of Labor,
Dictionary of Occupational Title 4th Edition, Revised (1991), (including subsequent amendments by
the U.S. Department of Labor).” (Doc. 9 at 7 n.2). Some courts refer to the program as “Job Browser
Pro” and others as “SkillTran.”
used for the calculation. Other than the similarities between the numbers cited by
the vocational expert and those Davis cites from SkillTran, there is no evidence that
the vocational expert relied upon numbers from an OES group rather than the
specific DOT codes. Only speculation and assumption result in this conclusion.
The only testimony regarding the source of the vocation expert’s numbers is
the following exchange:
ALJ: And is your testimony consistent with the Dictionary of
VE: With the exception of the reduction in numbers and that’s based on
my experience and familiarity with those types of jobs.
(Tr. at 104).9 Davis’ counsel did not cross examine the vocational expert regarding
use of an OES group number rather than individual DOT codes and the undersigned
has found no evidence in the record indicating that the vocational expert used
numbers from an OES group. The undersigned likens this claim to a claim raised in
Cardone v. Colvin in the Central District of California. 2014 WL 1516537, at *1 (C.D.
Cal. Apr. 18, 2014). In Cardone, when presented with a similar claim, that court held:
First, substantial evidence supports the ALJ's non-disability
determination at step five. Plaintiff does not dispute the accuracy of the
hypothetical question the ALJ posed to the VE. [See JS at 5.] Thus, the
VE's testimony in response to the ALJ's complete hypothetical question,
without more, was substantial evidence supporting the ALJ's
Even assuming that the VE's testimony did not accurately reflect the DOT, binding precedent in this
Circuit holds “that when the VE's testimony conflicts with the DOT, the VE's testimony ‘trumps' the
DOT.” Jones v. Apfel, 190 F.3d 1224, 1229–30 (11th Cir. 1999). See also Jones v. Comm'r of Soc. Sec.,
423 Fed.Appx. at 939 (11th Cir. 2011) (per curiam) (unpublished) (“Even assuming arguendo that the
ALJ incorrectly found that the VE's testimony was consistent with the DOT, such error was harmless.
See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying harmless error analysis to ALJ's
incorrect statements that were irrelevant to whether claimant had a severe impairment). In this
Circuit, a VE's testimony trumps the DOT to the extent the two are inconsistent. See Jones, 190 F.3d
determination that plaintiff was able to perform work that exists in
significant numbers in the national economy, and the ALJ was entitled
to rely on it. See 20 C.F.R. § 416.966(e) (“If the issue in determining
whether you are disabled is whether your work skills can be used in
other work and the specific occupations in which they can be used, or
there is a similarly complex issue, we may use the services of a[VE] or
other specialist.”); Bayliss, 427 F.3d at 1217–18 (“The ALJ's reliance on
testimony the VE gave in response to the hypothetical ... was proper.”).
See also Social Security Ruling (“SSR”) 83–14,4 1983 WL 31254, *4.
Further, the VE's testimony amounts to substantial evidence. Osenbrock
v. Apfel, 240 F.3d 1157, 1163 (9th Cir.2001) (testimony of a VE
constitutes substantial evidence). Plaintiff notes that the ALJ “did not
inquire how the [VE] derived the numbers of jobs,” and asserts that
plaintiff's “attorney at the hearing wholly abdicated the responsibility
to inquire.” [See JS at 5–6.] But neither the ALJ nor the VE was required
to identify the methodology used to determine the jobs plaintiff can
perform; rather, the VE's expertise alone was a sufficient foundation.
Bayliss, 427 F.3d at 1218 (“A VE's recognized expertise provides the
necessary foundation for his or her testimony,” and thus, “no additional
foundation is required”).
Second, plaintiff's lay assessment of the raw vocational data derived
from Job Browser Pro [SkillTran] does not undermine the reliability of
the VE's opinion, which the ALJ adopted at step five. [AR at 34.] The
data presented by plaintiff—while it included some information as to the
methodology used to determine the size of each of the Occupational
Employment Survey (“OES”) Groups [see, e.g., AR at 221–24]—was
unaccompanied by any analysis or explanation from a vocational expert
or other expert source to put the raw data into context. Moreover,
although in determining whether a significant number of jobs exists in
the national economy, the Commissioner “take[s] administrative notice
of reliable job information available from various governmental and
other publications,” Job Browser Pro is not among those publications
specifically listed by the Commissioner. (See 20 C.F.R. § 416.966(d)).
Furthermore, while plaintiff identifies several decisions in which courts
have acknowledged that a VE's testimony that relies on Job Browser Pro
data may constitute substantial evidence, none holds that a VE must
rely on it or that this source controls when it conflicts with the VE's
Third, even assuming that the data from Job Browser Pro constitutes
substantial evidence, the data would only support an alternative finding
regarding the number of jobs available for plaintiff in the economy. See
Valenzuela v. Colvin, 2013 WL 2285232, at *4 (C.D.Cal. May 23, 2013)
(“[A]ssuming arguendo that the data from Job Browser Pro constitutes
substantial evidence, the data, at best, would support an alternative
finding regarding the number of job[s] available for plaintiff in the
economy.”). The Ninth Circuit has held that “[w]here the evidence is
susceptible to more than one rational interpretation, one of which
supports the ALJ's decision, the ALJ's conclusion must be upheld.”
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002). Moreover, when
the record contains ambiguous or conflicting evidence, the
Administration is responsible for resolving the conflict. See Lewis v.
Apfel, 236 F.3d 503, 509 (9th Cir.2001). As such, the ALJ's decision
should be upheld.
Fourth, as plaintiff concedes, plaintiff's counsel at the hearing failed to
challenge the VE's job numbers, inquire about the methodology used to
derive those numbers, or present competent evidence regarding other
jobs data. [See JS at 6; AR at 77.] Rather, plaintiff waited until after the
ALJ's adverse decision to submit alternative job data to the Appeals
Council. “Counsel are not supposed to be potted plants at administrative
hearings. They have an obligation to take an active role and to raise
issues that may impact the ALJ's decision while the hearing is
proceeding so that they can be addressed.” Solorzano v. Astrue, 2012 WL
84527, at *6 (C.D.Cal. Jan.10, 2012) (rejecting plaintiff's contention that
“apparent conflicts” existed between the VE's testimony and the
Dictionary of Occupational Titles when plaintiff's counsel failed to
question the VE at the hearing about any alleged conflicts or request the
ALJ do so).
Cardone v. Colvin, 2014 WL 1516537, at *5–6 (C.D. Cal. Apr. 18, 2014)(footnotes
omitted). Similarly, Davis’ counsel did not inquire into the vocational expert’s
methodology or data source and has presented lay interpretation of SkillTran data,
which, if correct, leads only to an alternative conclusion than that reached by the
ALJ. Unlike Cardone, there is nothing before this court indicating that Davis
presented this data to the Appeals Council. While Cardone is not controlling
authority, the undersigned finds its analysis instructive and agrees with its
Additionally, the vocational expert testified that her testimony was consistent
with the DOT and that the reduction in numbers was based on her knowledge and
expertise. (Tr. at 104). The Court of Appeals for the Eleventh Circuit has held:
…[T]he Social Security regulations clearly allow that the Commissioner
may rely on a VE for her knowledge or expertise. See 20 C.F.R. §§
404.1560(b)(2), 404.1566(e), 416.960(b)(2), 416.966(e); see also Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir.2005) (“A VE's recognized
expertise provides the necessary foundation for his or her testimony.
Thus, no additional foundation is required.”)….The VE's testimony is
therefore substantial evidence, as it is relevant evidence that a
reasonable person would accept as adequate to support the conclusion
that there is work available in significant numbers in the national
economy that [the Claimant] is able to perform..
Curcio v. Comm'r of Soc. Sec., 386 F. App'x. 924, 926 (11th Cir. 2010)(internal citation
omitted). Accordingly, the undersigned finds that Davis’ second claim of error is
In accordance with the foregoing analysis, it is ORDERED that the Commissioner’s
August 11, 2016 final decision denying Davis’ application for a period of disability and DIB
is AFFIRMED under sentence four of 42 U.S.C. § 405(g). Final judgment shall issue
separately in accordance with this Order and Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 11th day of May 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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