Harman v. Berryhill

Filing 28

Order re: 1 Complaint filed by James M. Harman stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period ofdisability, disability insurance benefits, and supplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 3/28/19. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES M. HARMAN,
Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION NO. 18-00078-B

ORDER
Plaintiff James M. Harman (hereinafter “Plaintiff”) seeks
judicial review of a final decision of the Commissioner of Social
Security denying his claim for a period of disability, disability
insurance benefits, and supplemental security income under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq.,
and 1381, et seq.

On October 22, 2018, the parties consented to

have the undersigned conduct any and all proceedings in this case.
(Doc. 20).
conduct

Thus, the action was referred to the undersigned to

all

proceedings

and

order

the

entry

of

judgment

in

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73.

(Doc. 21).

Upon careful consideration of the

administrative record and the memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner be REVERSED
and REMANDED.

Procedural History1

I.

Plaintiff filed his application for benefits on December 23,
2014, alleging disability beginning July 24, 2012, based on asthma,
anxiety,

supraventricular

tachycardia,

shoulder

restrictions,

blood clot, osteoarthritis in the back, scoliosis, blood pressure,
learning problems, and illiteracy.

(Doc. 12 at 216).

Plaintiff’s

application was denied and, upon timely request, he was granted an
administrative hearing before Administrative Law Judge Warren L.
Hammond, Jr. (hereinafter “ALJ”) on January 6, 2017.
92).

(Id. at 45,

Plaintiff attended the hearing with his counsel and provided

testimony related to his claims.

(Id. at 48-63).

A vocational

expert (hereinafter “VE”) also appeared at the hearing and provided
testimony.

(Id. at 63-66).

On April 21, 2017, the ALJ issued an

unfavorable decision finding that Plaintiff is not disabled.
at 11).

The Appeals Council denied Plaintiff’s request for review

on January 4, 2018.
dated

(Id.

April

Commissioner.

21,

Having

(Id. at 5).
2017,

became

Therefore, the ALJ’s decision
the

final

decision

of

the

(Id.).
exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

Oral argument

was conducted on November 27, 2018 (Doc. 27), and the parties agree

1

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.

2

that this case is now ripe for judicial review and is properly
before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issues on Appeal
1. Whether the ALJ reversibly erred by finding
Plaintiff’s supraventricular tachycardia,
degenerative disc disease, and asthma to be
non-severe impairments?
2. Whether substantial evidence supports the
ALJ’s
Residual
Functional
Capacity
determination?
3. Whether the ALJ reversibly erred at step five
of the sequential evaluation process by
failing to ask for or identify Dictionary of
Occupational Titles (DOT) codes for the jobs
that he found Plaintiff could perform?

III. Factual Background
Plaintiff was born on January 30, 1978, and was thirty-eight
years of age at the time of his administrative hearing on January
6, 2017. (Doc. 12 at 68). Plaintiff reached, but did not complete,
the ninth grade in school.

(Id. at 49).

At his administrative

hearing, Plaintiff reported that he can “hardly read or write.”
(Id. at 52).

Plaintiff worked as a construction worker or laborer

from 1997 until 2012.

(Id. at 217).

According to Plaintiff, he

injured his right shoulder while raking asphalt during his most
recent employment as a public service worker for Mobile County and
has not worked since his injury.

(Id. at 51, 346).

At his hearing, Plaintiff testified he can no longer work
because he is basically illiterate and because of back problems,

3

shoulder pain, difficulty breathing, and anxiety.
54).

(Id. at 52,

Plaintiff’s right shoulder was treated with medication,

physical therapy, injections, and surgically.
302, 331).

(Id. at 287, 299,

His heart issues were treated surgically and with

medication and monitored by an implantable event monitor and Holter
monitor, while his asthma was treated with medication.
351,

423,

441,

443,

446,

454).

Plaintiff

was

(Id. at

prescribed

medications for his back, such as Naproxen, Zanaflex and Norco.
(Id. at 487, 496).

Plaintiff was prescribed Valium and Celexa for

anxiety in 2012, but he stopped taking anxiety medication in 2013
and has not sought mental health treatment or taken any medications
for anxiety since that time.
IV.

(Id. at 22, 348, 402-03, 407).

Standard of Review
In reviewing claims brought under the Act, this Court’s role

is a limited one.

The Court’s review is limited to determining

(1) whether the decision of the Commissioner is supported by
substantial evidence and (2) whether the correct legal standards
were applied.2
1990).

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.

A court may not decide the facts anew, reweigh the

evidence, or substitute its judgment for that of the Commissioner.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

2

The

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).

4

Commissioner’s findings of fact must be affirmed if they are based
upon substantial evidence.
(11th Cir. 1991).

Brown v. Sullivan, 921 F.2d 1233, 1235

“Substantial evidence is more than a scintilla,

but less than a preponderance” and consists of “such relevant
evidence as a reasonable person would accept as adequate to support
a conclusion.”
Cir. 1983).

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

In determining whether substantial evidence exists,

a reviewing court must consider the record as a whole, taking into
account

evidence

both

favorable

and

unfavorable

to

the

Commissioner’s decision. Chester v. Bowen, 792 F.2d 129, 131 (11th
Cir. 1986) (per curiam); Short v. Apfel, 1999 U.S. Dist. LEXIS
10163, at *4 (S.D. Ala. June 14, 1999).
V.

Statutory and Regulatory Framework
An individual who applies for Social Security disability

benefits must prove his or her disability.
416.912.

20 C.F.R. §§ 404.1512,

Disability is defined as the “inability to 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); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
The Social Security regulations provide a five-step sequential
evaluation process for determining whether a claimant has proven
his or her disability.

20 C.F.R. §§ 404.1520, 416.920.

5

The claimant must first prove that he or she is not engaged
in substantial gainful activity. Carpenter v. Comm’r of Soc. Sec.,
614 F. App’x 482, 486 (11th Cir. 2015) (per curiam).

The second

step requires the claimant to prove that he or she has a severe
impairment or combination of impairments.

Id.

If, at the third

step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the claimant
is automatically found disabled regardless of age, education, or
work experience.

Id.

If the claimant cannot prevail at the third

step, the ALJ must determine the claimant’s residual functional
capacity (“RFC”) before proceeding to step four. Id. A claimant’s
RFC is an assessment, based on all relevant medical and other
evidence, of a claimant’s remaining ability to work despite his or
her impairments.
Cir. 1997).

Lewis v. Callahan, 125 F.3d 1436, 1440 (llth

Once a claimant’s RFC is determined, the evaluation

proceeds to the fourth step, where the claimant must prove an
inability to perform his or her past relevant work.

Carpenter,

614 F. App’x at 486.
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that the claimant is capable of engaging in another kind of
substantial gainful employment which exists in significant numbers
in the national economy, given the claimant’s RFC, age, education,
and work history.

Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.

6

1985) (per curiam). If the Commissioner can demonstrate that there
are such jobs the claimant can perform, the burden then shifts
back to the claimant to prove his or her inability to perform those
jobs in order to be found disabled.

Hale v. Bowen, 831 F.2d 1007,

1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562,
1564 (11th Cir. 1985)).
VI.

The ALJ’s Findings
In the case sub judice, the ALJ found that Plaintiff has the

severe impairment of right shoulder disorder.

(Doc. 12 at 16).

The ALJ also found that Plaintiff’s supraventricular tachycardia
status post-ablation, degenerative disc disease, and asthma, when
considered individually and in combination, do not cause more than
a minimal limitation in the ability to perform basic work activity
and, thus, are non-severe impairments.

(Id.).

The ALJ further

found that Plaintiff’s impairments, when considered individually
and in combination, did not meet or medically equal any of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(20

C.F.R.

§§

404.1520(d),

416.925, and 416.926).

404.1525,

(Id. at 23-24).

404.1526,

416.920(d),

The ALJ determined that

Plaintiff has the RFC to perform a range of light work with the
following additional limitations: occasional postural restrictions
with

respect

to

climbing

ramps,

stairs,

ladders,

ropes,

and

scaffolds, balancing, stooping, kneeling, crouching, and crawling;
occasional

manipulative

restrictions

7

with

respect

to

reaching

overhead; environmental restrictions including avoiding hazards,
dangerous machinery, and heights; and illiteracy.

(Id. at 24).

The ALJ concluded that Plaintiff is not able to perform his past
relevant work as a construction laborer.

(Id. at 28).

Utilizing

the testimony of the VE, the ALJ concluded that Plaintiff can
perform other

jobs

that exist

in

significant

numbers

in

the

national economy, such as ironer, mill stenciler, and blending
tank tender.

(Id. at 28-29).

is not disabled.

Thus, the ALJ found that Plaintiff

(Id. at 29).

VII. Discussion
A.

The ALJ’s finding, at step two, that
Plaintiff’s supraventricular tachycardia,
degenerative disc disease, and asthma
were
non-severe
impairments
is
not
reversible error.

In his brief, Plaintiff argues that the ALJ reversibly erred
in

finding

that

his

supraventricular

tachycardia

(“SVT”),

3

degenerative disc disease, and asthma were non-severe impairments.
(Doc. 13 at 2-8).

The Commissioner counters that Plaintiff’s

argument is irrelevant and moot, as the ALJ found that Plaintiff
had

a

severe

impairment

and

accordingly

proceeded

with

the

disability evaluation, thereby rendering the finding that other

3

Supraventricular tachycardia is a series of rapid heartbeats that
begin in or involve the upper chambers (atria) of the heart. SVT
can cause the heart to beat very rapidly or erratically.
See
https://www.hopkinsmedicine.org/heart_vascular_institute/conditi
ons_treatments/conditions/supraventricular_tachycardia.html.

8

impairments were non-severe immaterial.

(Doc. 18 at 4-6).

Having

carefully reviewed the record, the Court finds that, assuming
arguendo

that

the

ALJ

erred

in

finding

some

of

Plaintiff’s

impairments not to be severe, any such error was harmless.
For an impairment to be severe, it must be more than “a slight
abnormality or a combination of slight abnormalities that causes
no more than minimal functional limitations[.]”
416.924(c)

(emphasis

added).

Indeed,

it

must

20 C.F.R. §
“significantly

limit[]” an individual’s “ability to do basic work activities[.]”
20 C.F.R. §§ 404.1520(c), 416.920(c) (emphasis added).

“[I]t is

[the]

a

Plaintiff’s

burden

to

prove

the

existence

of

severe

impairment and she must do that by showing an impact on her ability
to work.”

Marra v. Colvin, 2013 U.S. Dist. LEXIS 105669, at *13-

14, 2013 WL 3901655, at *5 (M.D. Fla. July 29, 2013) (citing Bowen
v. Yuckert, 482 U.S. 137, 146 (1987)); see also Barnhart v. Thomas,
540

U.S.

20,

24

(2003)

(“At

step

two,

the

SSA

will

find

nondisability unless the claimant shows that he has a ‘severe
impairment,’

defined

as

‘any

impairment

or

combination

of

impairments which significantly limits [the claimant’s] physical
or mental ability to do basic work activities.’”) (quoting 20
C.F.R. §§ 404.1520(c), 416.920(c)); McDaniel v. Bowen, 800 F.2d
1026, 1031 (11th Cir. 1986) (“Unless the claimant can prove, as
early as step two, that she is suffering from a severe impairment,
she will be denied disability benefits.”).

9

At step two the ALJ must determine if the
claimant has any severe impairment. This step
acts as a filter; if no severe impairment is
shown the claim is denied, but the finding of
any severe impairment, whether or not it
qualifies as a disability and whether or not
it results from a single severe impairment or
a combination of impairments that together
qualify as severe, is enough to satisfy the
requirement of step two.
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987).

See also

Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951 (11th
Cir. 2014) 4 (per curiam) (“[W]e have recognized that step two
requires only a finding of ‘at least one’ severe impairment to
continue on to the later steps. . . . [T]he regulations state that
the only consequence of the analysis at step two is that, if the
ALJ finds no severe impairment or impairments, he should reach a
conclusion of no disability. . . . Here, the ALJ found multiple
severe impairments and accordingly proceeded to step three of the
evaluation. Based on our precedent and the regulations, therefore,
it is apparent that there is no need for an ALJ to identify every
severe impairment at step two.

Accordingly, even assuming that

Tuggerson-Brown is correct that her additional impairments were
‘severe,’ the ALJ’s recognition of that as a fact would not, in

4

Federal Appendix cases are unpublished Eleventh Circuit opinions
and are not considered binding precedent, but they may be cited as
persuasive authority. 11th Cir. R. 36-2; 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.”).

10

any

way,

have

changed

the

step-two

analysis,

and

she

cannot

demonstrate error below.”); Bennett v. Astrue, 2013 U.S. Dist.
LEXIS 115951, at *14, 2013 WL 4433764, at *5 (N.D. Ala. Aug. 16,
2013) (“[T]he Eleventh Circuit has determined that ‘[n]othing
requires that the ALJ must identify, at step two, all of the
impairments that should be considered severe’ and, even if the ALJ
erred by not recognizing every severe impairment, the error was
harmless since he found at least one such impairment.”); Ferguson
v. Astrue, 2012 U.S. Dist. LEXIS 139135, at *25, 2012 WL 4738857,
at *9 (N.D. Ala. Sept. 27, 2012) (“[B]ecause step two only acts as
a

filter

to

consideration,

prevent
the

non-severe

ALJ’s

finding

impairments
of

other

from

severe

disability
impairments

allowed him to continue to subsequent steps of the determination
process and his failure to list headaches as severe does not
constitute reversible error because, under the Social Security
regulations, the ALJ at later steps considers the combined effect
of all the claimant’s impairments.”) (emphasis in original).
In this case, the ALJ found at step two of the evaluation
process that Plaintiff had the severe impairment of right shoulder
disorder.

(Doc. 12 at 16).

Thereafter, the ALJ determined that

Plaintiff’s SVT, degenerative disc disease, and asthma were not
severe impairments.
detailed

summary

of

(Id.).
the

After doing so, the ALJ provided a
evidence

relating

to

each

alleged

impairment and explained his reasons for finding Plaintiff’s SVT,

11

degenerative
impairments.

disc

disease,

and

(See id. at 16-23).

asthma

to

be

non-severe

The ALJ then proceeded with the

subsequent steps of the evaluation process and rendered an RFC
finding based on the record as a whole, expressly noting that he
limited Plaintiff to light exertional work to fully accommodate
Plaintiff’s severe and non-severe impairments.

(See id. at 27).

Accordingly, since the ALJ determined that Plaintiff suffered from
a severe impairment at step two and then proceeded beyond step two
in the sequential analysis, any error in failing to find that
Plaintiff

suffered

from

other

severe

impairments

harmless and provides no basis for remand.

is

rendered

See Gray v. Comm’r of

Soc. Sec., 550 F. App’x 850, 853-54 (11th Cir. 2013) (per curiam);
Packer v. Comm’r, Soc. Sec. Admin., 542 F. App’x 890, 892 (11th
Cir. 2013) (per curiam); Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 824-25 (11th Cir. 2010) (per curiam).
B.

The Residual Functional Capacity for a
range of light work with the stated
restrictions
is
not
supported
by
substantial evidence.

Next, Plaintiff argues that the ALJ’s RFC for a range of light
work is not supported by substantial evidence because the ALJ did
not adequately account for Plaintiff’s shoulder impairment and did
specify any reasons for not including in the RFC all of the
functional limitations given by Plaintiff’s treating orthopedist,
Dr. Joseph McGowin.

(Doc. 13 at 8-10).

12

Having reviewed the record

at length, the Court finds that the RFC is not supported by
substantial evidence because it omits a restriction on overhead
lifting (on Plaintiff’s right side), although the record clearly
establishes such a restriction.
RFC is a measure of what a claimant can do despite his or her
credible limitations.

See 20 C.F.R. § 404.1545.

Determinations

of a claimant’s RFC are reserved for the ALJ, and the assessment
is to be based upon all the relevant evidence of a claimant’s
remaining ability to work despite his or her impairments and must
be supported by substantial evidence.

See Beech v. Apfel, 100 F.

Supp. 2d 1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546;
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); Saunders
v. Astrue, 2012 U.S. Dist. LEXIS 39571, at *9-10, 2012 WL 997222,
at *3-4 (M.D. Ala. Mar. 23, 2012).

Once the ALJ has determined

the claimant’s RFC, the claimant bears the burden of demonstrating
that the ALJ’s decision is not supported by substantial evidence.
See Flynn v. Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985) (per
curiam).

Plaintiff has met his burden in this case.

The record shows that Plaintiff reported feeling a sudden
sharp pain in the right anterior shoulder while at work raking
asphalt on November 29, 2010.

(Doc. 12 at 295, 346).

Plaintiff

was initially seen by Dr. John McMillin, who diagnosed an upper
arm

strain

and

recommended

treatment

with

medication, Biofreeze and physical therapy.

13

over-the-counter

(Id. at 293-95).

An

x-ray of Plaintiff’s right shoulder/humerus taken on November 29,
2010 was negative.

(Id. at 295).

on

2011,

January

10,

A right shoulder MRI performed

revealed

findings

tendinopathy of the supraspinatus tendon.

consistent
(Id. at 289).

with
On

January 11, 2011, after reviewing the MRI results, Dr. McMillin
diagnosed Plaintiff with rotator cuff syndrome and referred him to
an orthopedist for further treatment.

(Id. at 290).

The next day, Plaintiff presented to Dr. Joseph McGowin for
orthopedic

treatment.

(Id.

at

346).

Following

a

physical

examination, Dr. McGowin injected Plaintiff’s subacromial bursa
and started him on a home rotator cuff exercise program and Mobic.
(Id.). Dr. McGowin performed a right shoulder arthroscopy on April
4, 2011.

(Id. at 342).

The arthroscopy showed some findings of

Grade 2 posterior laxity, no inferior or anterior laxity, and an
anterior acromial spur with no obvious labral pathology or rotator
cuff pathology.

(Id.).

The anterior acromial spur was removed

without release of a significant portion of the coracoacromial
ligament.

(Id.).

On May 17, 2011, Dr. McGowin noted that Plaintiff’s physical
therapy report showed improvements, but that Plaintiff still had
a little limited internal rotation and occasional discomfort. (Id.
at 338).

Dr. McGowin continued Plaintiff on Mobic and prescribed

three weeks of work hardening.

(Id.).

Plaintiff initially showed

good progress, and Dr. McGowin released him to return to regular

14

duty work on June 13, 2011.

(Id. at 337).

Three months later,

Plaintiff returned to Dr. McGowin complaining of right shoulder
pain, and a physical exam produced a positive Sulcus test, positive
apprehension, and positive relocation.

(Id. at 336).

On November

14, 2011, Dr. McGowin performed an arthroscopic Bankart repair of
Plaintiff’s right shoulder, with the arthroscopy showing findings
of capsular redundancy and insufficient anterior inferior labrum
with instability.

(Id. at 335).

After the surgery, Plaintiff

underwent physical therapy and experienced some improvement in
motion, particularly forward flexion, but he had a mild restriction
of abduction, and his internal rotation remained significantly
restricted.
Dr.

(Id. at 329).

McGowin

ordered

a

functional

capacity

examination

(“FCE”), which he reviewed with Plaintiff on April 18, 2012.
at 328-29).

(Id.

The FCE showed significant limitations of activities,

pushing, pulling, gripping, and particularly work above shoulder
level.

(Id. at 328).

Dr. McGowin opined that Plaintiff could

engage in work at the medium duty level, and that he had the
following permanent work restrictions: no lifting of more than
forty pounds to waist level, no repeated work above shoulder level,
and no lifting greater than five pounds above shoulder level.
(Id.). Dr. McGowin concluded that Plaintiff was at maximum medical
improvement and assigned him a partial permanent impairment rating
of twenty percent of the upper extremity, with twelve percent of

15

the whole man for his right shoulder.

(Id.).

After the conclusion of Plaintiff’s treatment by Dr. McGowin,
Plaintiff’s

treatment

records

reflect

no

specific

complaints

pertaining to his right shoulder; however, he was prescribed pain
medication on some visits to his primary care provider.5
487, 490, 496).

(Id. at

And, his primary care provider referred him to

Dr. Tim Revels for complaints of low back pain.

(Id. at 673).

Plaintiff was seen by Dr. Revels on June 10, 2015.

(Id.).

Revels’ physical

extremities

revealed

no

examination

tenderness,

of

Plaintiff’s

swelling,

upper

deformities,

Dr.

instability,

weakness, or atrophy, normal muscle tone and bulk, and full and
painless range of motion of all joints tested in all planes.

(Id.

at 675).
Plaintiff presented for a consultative examination with Dr.
Brian Wood on September 17, 2016, where Plaintiff reported right
shoulder pain.

(Id. at 716).

Upon a physical examination,

Plaintiff had weakness in the right proximal arm on a scale of 3/5
and

pain

internal

with

shoulder

rotation.

abduction

(Id.

at

to

719-20).

5

eighty

degrees

Plaintiff

and

had

with

normal

On January 17, 2014, Plaintiff presented to his primary care
physician with a complaint of left shoulder pain brought on when
his dog yanked on its leash. (Doc. 12 at 488). Within two weeks,
the pain had improved greatly after he was given a Toradol shot
and prescribed muscle relaxant and pain medication. (Id. at 49091).

16

reflexes, intact sensation, intact cranial nerves, no muscular
atrophy, and no cerebellar abnormalities.

(Id. at 720).

He also

had a reduced range of motion in both shoulders, more so on the
right.

(Id.).

Dr.

Wood

noted

that

Plaintiff’s

physical

examination findings were suggestive of tendinopathy or unhealed
rotator cuff tear and that symptoms were likely to improve with
surgical or medical management.

(Id.).

Dr. Wood opined that

Plaintiff can lift and carry five to ten pounds on an occasional
basis on the right side and has a limited ability to reach, handle,
or grasp on the right side.

(Id. at 721).

Dr. Wood found no

limitations with respect to Plaintiff’s left shoulder.

(See id.).

Plaintiff argues that the ALJ did not adequately account for
his

shoulder

impairment,

restriction, in the RFC.

in

particular

his

overhead

lifting

As noted supra, the ALJ found that

Plaintiff has a right shoulder disorder, and to accommodate said
disorder, the ALJ limited Plaintiff to light work with occasional
overhead reaching and no exposure to hazards, dangerous machinery,
or heights.

(Id. at 16, 24, 26).

The ALJ noted that the

limitations were supported by Dr. Wood’s findings and consistent
with the orthopedic treatment records, which noted some ongoing
problems

in

these

areas

surgery.

(Id. at 26).

on

clinical

exams

after

Plaintiff’s

The ALJ also noted that Plaintiff reported

in his function report that he can lift forty pounds to the waist,
not much over his head, and that he cannot reach “too high” and

17

cannot complete some tasks because of shoulder pain.

(Id.).

According to the ALJ, Plaintiff’s allegations were accounted for
in the RFC.

(Id.).

Based upon the record before the Court, the undersigned finds
that while the ALJ’s decision includes a detailed summary of
Plaintiff’s medical evidence, recognition that Plaintiff’s right
shoulder disorder is documented in the medical records, and an RFC
that limits Plaintiff to occasional overhead reaching, the ALJ
erred in not including any overhead lifting restrictions.

Based

on his treatment of Plaintiff and the FCE findings, Dr. McGowin
opined

that

Plaintiff

was

particularly

restricted

in

above-

shoulder work and that Plaintiff should not lift greater than five
pounds above the shoulder level.

(Id. at 328).

Similarly, Dr.

Wood opined that Plaintiff could only lift and carry five to ten
pounds occasionally on his right side.6

(Id. at 721).

The ALJ

gave Dr. McGowin’s opinions partial weight and noted that he was
limiting Plaintiff to light exertional work “to fully accommodate”
his residual right shoulder disorder.

(Id. at 27).

The ALJ

restricted Plaintiff to occasional overhead reaching but did not
include any overhead lifting restriction.

6

(Id. at 24).

The ALJ gave Dr. Wood’s opinions partial weight due to
inconsistencies between his narrative report and the information
in the MSS form. (Doc. 12 at 27).

18

The undersigned finds that the lack of an overhead lifting
restriction (on Plaintiff’s right side) is inconsistent with the
substantial medical evidence, including the FCE findings, the
medical opinions of Dr. McGowin and Dr. Wood, and with Plaintiff’s
testimony regarding his difficulties with overhead lifting.

Plus,

it was inconsistent for the ALJ to find that Plaintiff’s right
shoulder disorder limits him to occasional overhead reaching but
imposes no limitations on his ability to perform overhead lifting,
particularly on the right side.

Because of said error, this case

is remanded to the ALJ to re-evaluate Plaintiff’s RFC, determine
whether Plaintiff’s right shoulder disorder imposes an overhead
lifting restriction, and, if so, determine whether there are jobs
in the national economy that Plaintiff can perform in view of such
restriction.
C.

The ALJ erred at step five of the
sequential evaluation process by failing
to ask for, identify, and resolve
apparent conflicts between the VE’s
testimony and the DOT.

Plaintiff next argues that the ALJ erred at step five of the
sequential evaluation process by relying solely on testimony from
the VE regarding other jobs that exist in significant numbers in
the national economy that Plaintiff is able to perform, without
asking for or identifying corresponding Dictionary of Occupational
Titles (“DOT”) codes for the jobs the ALJ found Plaintiff could
perform.

(Doc. 13 at 10).

Plaintiff points out that the ALJ did

19

not ask for or provide corresponding DOT codes for the occupations
of

ironer,

mill

stenciler,

and

blending

tank

tender,

and

he

maintains that without knowing the codes, the DOT requirements for
the given jobs cannot be determined.

(Id.).

The Commissioner

counters that the VE’s testimony constituted substantial evidence
to support the ALJ’s findings because the occupations identified
by the VE are easily correlated to the DOT and that, even if the
VE’s testimony was inconsistent with the DOT, the VE’s testimony
trumps the DOT.

(Doc. 18 at 8).

The Court has reviewed the record

at length and finds that this matter must be remanded for further
consideration.
At

the

administrative

hearing,

the

VE

testified

that,

considering an individual of Plaintiff’s age, education, and work
experience, with all the limitations contained in the RFC (as set
forth above), there are jobs existing in the national economy that
such an individual could perform, in numbers the ALJ found to be
significant.

(See Doc. 12 at 28, 65).

In response to the ALJ’s

hypothetical, the VE identified the following jobs that Plaintiff
could

perform

given

the

stated

limitations:

ironer,

mill

stenciler, and blending tank tender, all of which the VE testified
were light exertion and unskilled.

(Id. at 65).

The VE did not

provide DOT codes that corresponded to the identified occupations.
(See id.).

The VE did not state, and the ALJ did not ask, whether

her testimony was consistent with the DOT.

20

(Id.).

On cross-

examination, Plaintiff’s attorney presented the VE with additional
hypotheticals but did not ask or attempt to ask any questions
regarding

DOT

codes

testimony and DOT.

or

potential

conflicts

(See id. at 65-66).

between

the

VE’s

However, in his decision,

the ALJ stated that he had determined that the VE’s testimony was
consistent with the DOT.

(Id. at 29).

Social Security Ruling 00-4p (“SSR 00-4p”) “is designed to
identify and obtain a reasonable explanation for any conflicts
between occupational evidence provided by a vocational expert and
information in the DOT.”

Davis v. Astrue, 2012 U.S. Dist. LEXIS

176929, at *17, 2012 WL 6213124, at *7 (M.D. Fla. Dec. 13, 2012).
Under SSR 00-4p, an ALJ “must: [i]dentify and obtain a reasonable
explanation

for

any

conflicts

between

occupational

evidence

provided by VEs . . . and information in the [DOT] . . . and
[e]xplain in the determination or decision how any conflict that
has been identified was resolved.”
at *1, 2000 WL 1898704, at *1.

SSR 00-4p, 2000 SSR LEXIS 8,

The Ruling further states that

when a VE provides evidence about the requirements of a job or
occupation, the ALJ “has an affirmative responsibility to ask about
any

possible

conflict

between

information provided in the DOT.”
*9, 2000 WL 1898704, at *4.

that

VE

.

.

.

evidence

and

SSR 00-4p, 2000 SSR LEXIS 8, at

Beyond this general duty to ask about

possible conflicts, if evidence from a VE “appears to conflict
with the DOT,” the ALJ must “obtain a reasonable explanation for

21

the apparent conflict.”7

Id.

Further, “[w]hen an ALJ identifies

an apparent conflict that was not raised during a hearing, [the
ALJ] can request an explanation of the conflict by submitting
interrogatories to the vocational expert.”

Washington v. Comm'r

of Soc. Sec., 906 F.3d 1353, 1363 (11th Cir. 2018) (citation and
internal quotation marks omitted).

“During or after the hearing,

the ALJ is expected to take notice of apparent conflicts, even
when they are not identified by a party, and resolve them.”

Id.

Under SSR 00-4p, “[n]either the DOT nor the VE . . . evidence
automatically ‘trumps’ when there is a conflict.”
SSR LEXIS 8, at *5, 2000 WL 1898704, at *2.

SSR 00-4p, 2000

Rather, the ALJ “must

resolve the conflict by determining if the explanation given by
the VE . . . is reasonable and provides a basis for relying on the
VE . . . testimony rather than on the DOT information.”

Id.

“SSR 00-4p imposes an independent, affirmative obligation on
the part of the ALJ to undertake a meaningful investigatory effort
to uncover apparent conflicts, beyond merely asking the VE if there
is one.”

Washington, 906 F.3d at 1364.

Pursuant to SSR 00-4p,

the ALJ has an affirmative duty “to identify apparent conflicts,

7

In this context, the term “apparent conflict” is “taken to mean
apparent to an ALJ who has ready access to and a close familiarity
with the DOT.
Put another way, if a conflict is reasonably
ascertainable or evident, the ALJ is required to identify it, ask
about it, and resolve it in his opinion.” Washington v. Comm'r of
Soc. Sec., 906 F.3d 1353, 1366 (11th Cir. 2018).

22

ask the VE about them, and explain how the conflict was resolved
in the ALJ’s final decision.”

Id. at 1365.

In Washington, the

Eleventh Circuit made clear that, because the Ruling implicates
the substantive rights of benefits applicants, “we will require
the agency to follow the procedure laid out in SSR 00-4p.”

Id. at

1361.
In the case at bar, the ALJ did not ask the VE during her
brief testimony whether her testimony was consistent with the DOT
or whether any of the identified occupations corresponded to a DOT
code.

In response to the ALJ’s hypothetical, the VE identified

three occupations.

For each occupation she identified, the VE

testified that each was “light exertion” with an “SVP of 2,”8 and
she provided the national employment figures for the position.
(See Doc. 12 at 65).

Although there was no mention of the DOT at

the administrative hearing, the ALJ stated in his decision that
“[p]ursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information
contained in the Dictionary of Occupational Titles.”

(Id. at 29).

The Commissioner argues that Plaintiff has not identified any
conflicts between the VE’s testimony and the DOT, and that the
VE’s identified occupations are easily correlated to the DOT.

8

The DOT “lists Specific Vocational Preparation (SVP) in terms of
the time necessary for a typical worker to learn the job.” Hanley
v. Astrue, 2008 WL 2557496, at *3 (N.D. Fla. June 20, 2008).

23

(Doc. 18 at 8).

In support of this assertion, the Commissioner

cites DOT codes for the occupations of ironer, mill stenciler, and
blending tank tender.

(Id.).

The Court notes that the DOT codes

cited by the Commissioner for the occupations of ironer (302.687010) and mill stenciler (659.685-026) are light work positions
with SVP levels of two.

However, the Commissioner’s DOT citation

for the position of blending tank tender (520.685-030) requires
heavy exertion of fifty to one-hundred pounds of force frequently
and is patently inconsistent with the VE’s testimony that the job
is light exertion.
Based on the foregoing, the ALJ erred, first when he failed
to ask the VE whether her testimony conflicted with the DOT, and
second when he failed to identify or ask about the apparent
conflict between the VE’s testimony and the DOT listing for the
occupation of blending tank tender and failed to resolve that
apparent conflict.

Moreover, the Court cannot say the ALJ’s error

was a harmless one.

The VE did not provide DOT codes for the three

given occupations, the ALJ did not ask the VE about apparent
conflicts, and on review, the Court has no reasonable basis to
conclude that the ALJ adequately resolved the above-referenced
conflict.
The Commissioner next argues that, even if the testimony given
by the VE did conflict with the DOT, the ALJ did not err when he
relied on the VE’s testimony because “in the Eleventh Circuit, the

24

VE’s testimony trumps the information in the DOT . . . .”
18 at 8).

(Doc.

While this argument may have had merit at the time the

Commissioner’s brief was drafted, see Jones v. Comm’r of Soc. Sec.,
423 F. App’x 936, 938 (11th Cir. 2011) (citing Jones v. Apfel, 190
F.3d 1224, 1229-30 (11th Cir. 1999)), the Eleventh Circuit has
since

made

clear

that

it

will

require

the

Social

Security

Administration to follow SSR 00-4p, which provides that neither
the DOT nor the VE evidence automatically trumps when there is a
conflict and directs ALJs to ask about, identify, explain, and
resolve any conflicts between the VE’s testimony and the DOT.
Washington, 906 F.3d at 1361.

See

Because the ALJ did not perform the

required analysis under SSR 00-4p, the ALJ’s findings at step five
and his disability determination are not based on substantial
evidence.

See id. at 1356 (“The failure to discharge this duty

means that the ALJ’s decision, when based on the contradicted VE
testimony, is not supported by substantial evidence.”); Brooks v.
Berryhill, 2017 U.S. Dist. LEXIS 160679, at *9, 2017 WL 4366725,
at *4 (M.D. Ala. Sept. 29, 2017) (“Thus, the ALJ’s step four
findings and disability determination are not based on substantial
evidence

and

proper

legal

standards

were

not

employed.”).

Accordingly, the Court must remand this matter for additional
administrative proceedings consistent with the requirements of SSR
00-4p.

25

VIII. Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties, it is hereby ORDERED that the decision of the Commissioner
of Social Security denying Plaintiff’s claim for a period of
disability,

disability

insurance

benefits,

and

supplemental

security income be REVERSED and REMANDED.
DONE this 28th day of March, 2019.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

26