Thompson v. Commissioner of Social Security
Filing
28
OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgment in favor Plaintiff, Janelle Thompson, and close the file. Signed by Magistrate Judge Carol Mirando on 3/15/2016. (LS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JANELLE THOMPSON,
Plaintiff,
v.
Case No: 2:15-cv-53-FtM-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Janelle Thompson seeks judicial review of the denial of her claim for
Social Security disability insurance benefits (“DIB”) and supplemental security
income (“SSI”) by the Commissioner of the Social Security Administration
(“Commissioner”). The Court has reviewed the record, the briefs and the applicable
law. For the reasons discussed herein, the decision of the Commissioner is reversed
and this matter is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g),
sentence four.
I.
Issues on Appeal
Plaintiff raised three issues: 1 (1) whether substantial evidence supports the
finding of Administrative Law Judge Roxanne Fuller (the “ALJ” or “law judge”) that
there are significant jobs in the national economy that Plaintiff can perform; (2)
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc.
v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) ([A] legal claim or argument
that has not been briefed before the court is deemed abandoned and its merits will not be
addressed.”), cited in Sanchez v. Comm'r of Soc. Sec., 507 F. App'x 855, 856 (11th Cir. 2013).
1
whether the vocational expert (“VE”) testimony was defective; and (3) whether the
ALJ failed to include all the limitations determined by the state agency psychological
consultants in the RFC assessment and the ALJ’s hypothetical question to the VE.
II.
Procedural History and Summary of the ALJ Decision
On June 7, 2011, Plaintiff filed an application for a period of disability and
disability insurance benefits and an application for supplemental security income.
Tr. 102-03, 240, 251. Plaintiff’s applications allege different disability dates, August
29, 2009 or April 20, 2011, but she testified that she became disabled on April 20,
2011. Tr. 50, 240, 251. The claims initially were denied on July 18, 2011 and upon
reconsideration on August 29, 2011. Tr. 155-80. Plaintiff requested and received a
hearing before the ALJ on May 20, 2013 during which she was represented by an
attorney. Tr. 41. As of the date of the hearing, Plaintiff was forty years old and
held an associate degree in business administration. Tr. 44, 46, 240, 251. Plaintiff
and VE Susanna D. Roche testified at the hearing. The ALJ issued an unfavorable
decision on June 14, 2013. Tr. 34.
The ALJ found that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2015. Tr. 21. At step one, the ALJ concluded
that Plaintiff has not engaged in substantial gainful activity since the latter alleged
onset date of April 20, 2011. Tr. 21. At step two, the ALJ found that Plaintiff “has
the following severe impairments: obesity, disorders of the lumbar and cervical spine,
migraines,
chronic
pain
syndrome,
bipolar
schizophrenia and major depressive disorder.”
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disorder,
Tr. 22.
schizoaffective
type
She found that these
impairments “were medically determined by an acceptable medical source, have
lasted more than 12 months consecutively, and have more than a minimal effect on
the claimant’s ability to do basic work activities.”
Id.
At step three, the ALJ
concluded that Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart B, Appendix 1 . . .” Id. at 22-23. Taking into account the
effect of all of Plaintiff’s impairments, the ALJ determined that Plaintiff had the
residual functional capacity (“RFC”) to perform sedentary work, with the following
limitations:
never climb ramps or stairs; never climb ladders, ropes or scaffolds;
never balance; occasional stoop, crouch, kneel, crawl; frequent reaching
and overhead reaching of the left non-dominant arm; frequent handling
objects, that is gross manipulation with the left hand; frequent fingering,
that is fine manipulation of items no smaller than the size of a paper clip
with the left hand; occasional exposure to excessive noise; no exposure
to moving mechanical parts; no operating a motor vehicle; no exposure
to unprotected heights; able to perform simple, routine, repetitive tasks;
only occasional superficial interaction with the public, coworkers and
supervisors; must use a hand held assistive device throughout the
workday.
Id. at 25.
The ALJ found that Plaintiff’s medically determinable impairments
reasonably could be expected to cause the alleged symptoms, but her statements
concerning the intensity, persistence and the limiting effects of the symptoms are not
fully credible. Tr. 26. Next, the ALJ found that Plaintiff is unable to perform any
of her past relevant work as a car rental clerk, cleaner II, head cashier, and office
manager. Tr. 32. At step five, in considering Plaintiff’s “[RFC], age, education, and
work experience in conjunction with the Medical-Vocational Guidelines” and relying
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on the VE testimony, the ALJ found that Plaintiff is capable of performing other work
that exists in significant numbers in the national economy, namely addresser and
document preparer jobs. Id. at 32-33. Accordingly, the ALJ ruled that Plaintiff has
not been disabled through the date of the decision. Tr. 34. On December 7, 2014,
the Appeals Council denied Plaintiff’s request for review. Tr. 1-6. Accordingly, the
ALJ’s June 14, 2013 decision is the final decision of the Commissioner. Plaintiff filed
an appeal in this Court on January 29, 2015. Doc. 1. Both parties have consented
to the jurisdiction of the Magistrate Judge, and this matter is now ripe for review.
Doc. 19.
III.
Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months.
42 U.S.C. §§ 416(i)(1),
423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability. See 20 C.F.R. §§ 404.1520;
416.920. The Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”
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Atha v. Comm'r, Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir.2011)). The claimant bears the burden of persuasion
through step four, and, at step five, the burden shifts to the Commissioner. Id.;
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court’s review is
limited to determining whether the ALJ applied the correct legal standards and
whether the findings are supported by substantial evidence. McRoberts v. Bowen,
841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390
(1971)).
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence.
42 U.S.C. § 405(g).
Substantial evidence is “more than a
scintilla, i.e., evidence that must do more than create a suspicion of the existence of
the fact to be established, and such relevant evidence as a reasonable person would
accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a
mere scintilla, but less than a preponderance”) (internal citation omitted).
The Eleventh Circuit recently has restated that “[i]n determining whether
substantial evidence supports a decision, we give great deference to the ALJ’s
factfindings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir.
2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th
Cir. 1996). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
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result as finder of fact, and even if the reviewer finds that the preponderance of the
evidence is against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580,
584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991).
“The district court must view the record as a whole, taking into account evidence
favorable as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must
scrutinize the entire record to determine the reasonableness of the factual findings).
It is the function of the Commissioner, and not the courts, to resolve conflicts in the
evidence and to assess the credibility of the witnesses. Lacina v. Commissioner,
2015 WL 1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656
(5th Cir.1971)).
IV.
Analysis
a. Whether the ALJ erred in finding that there are significant jobs in
the national economy that Plaintiff can perform.
Plaintiff’s first argument on appeal concerns the ALJ’s decision in step five
that there are a significant number of jobs in the national economy that Plaintiff can
perform. Doc. 26 at 7-13. The VE testified that Plaintiff can perform the job of
document preparer, of which there are 14,904 in the national economy and 746 in the
state of Florida, and the job of addresser, of which there are 8,904 in the national
economy and 344 in the state of Florida. Tr. 72. The VE was unable to provide any
jobs in the region of Plaintiff’s domicile.
Tr. 73.
Plaintiff argues that the ALJ
incorrectly believed that there are 89,004 addresser jobs in the national economy, and
this error is significant because “[l]ack of regional numbers and a low number of
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nationwide numbers could have reasonably led the ALJ to conclude that there are no
numbers existing in the national economy which Plaintiff could perform.” Doc. 26 at
9.
This significant error, according to Plaintiff, also prevented the ALJ from
conducting a proper individual inquiry that must be done on a case by case basis. Id.
at 10 -11. Moreover, Plaintiff contends that the VE testimony lacked reliability as
she did not extrapolate the job numbers herself. Id. at 11.
The Commissioner responds that “it is clearly evident that the ALJ made a
typographical error in her June 14, 2013 decision[, and] if the ALJ actually believed
the VE testified to 89,004, she would have had to misunderstood the VE more than
once as the VE testified to the number of 8,904 twice during the hearing.” Doc. 27
at 13. The Commissioner points out that the ALJ correctly noted the remaining
numbers for available state and national jobs as testified to by the VE. Id. The
Commissioner further argues that the ALJ’s decision was supported by substantial
evidence because 23,800 jobs, which represents the combined number of VE’s
testimony, in the national economy is a significant number. Id. at 14. In response
to Plaintiff’s argument that the VE’s testimony lacked credibility, the Commissioner
contends that the VE’s experience and expertise provide a valid basis for her
testimony.
At step five of the sequential evaluation process, the ALJ considers the
claimant’s RFC, age, education, and work experience to determine whether the
claimant “can make an adjustment to other work.” 20 C.F.R. §§ 404.1520(a)(4)(v),
(g); 416.920(a)(4)(v),(g).
In making this determination, “the ALJ must articulate
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specific jobs that the claimant is able to perform, and this finding must be supported
by substantial evidence.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002).
“[I]n order for a VE testimony to constitute substantial evidence, the ALJ must pose
a hypothetical question which comprises all of the claimant’s impairments.”
Phillips, 357 F.3d at 1240 n.7 (quotation marks omitted). If the claimant is able to
perform other work, she is not disabled.
Phillips, 357 F.3d at 1239.
20 C.F.R. §§404.1520(g); 416.920(g);
If the claimant cannot perform other work, she is
disabled. Phillips, 357 F.3d at 1239. Id.
Work exists in the national economy if it exists in significant numbers either
in the region where a claimant lives or in several regions of the country. See 42
U.S.C. § 1382c(a)(3)(B); 423(d)(2)(A); 404.1566(a); Brooks v. Barnhart, 133 F. App'x
669, 670 (11th Cir. 2005). In this context, the Eleventh Circuit has held that “the
appropriate focus is the national economy.” Atha v. Comm'r, Soc. Sec. Admin., 616
F. App'x 931, 935 (11th Cir. 2015); see also Allen v. Bowen, 816 F.2d 600, 603 (11th
Cir. 1987).
As to what constitutes a “significant number” in this context, the
Eleventh Circuit has not fashioned a bright line rule. As the court recently noted,
This Court has never held that a minimum numerical count of jobs must
be identified in order to constitute work that “exists in significant
numbers” under the statute and regulations. We have concluded,
however, that the “appropriate focus under the regulation is the national
economy,” not the local economy in which the claimant lives.
Atha, 616 F. App'x at 934 (11th Cir. 2015) (citing Allen 816 F.2d at 603). In Atha,
the court upheld the ALJ’s decision that 440 jobs in Alabama and 23,800 jobs
nationally, which the VE testified that Plaintiff could perform, constituted a
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significant number. Id. at 935. In Allen, the court of appeals upheld the ALJ's
finding that work existed in significant numbers where the VE testified that there
were 174 small appliance repairman positions in the area of Georgia where the
claimant lived, 1,600 general appliance repair jobs in the state, and 80,000 such jobs
nationally, of which “[a] considerable number ... [were] in the small appliance field.”
Allen, 816 F.2d at 602. The court stressed that because an ALJ's finding as to the
existence of a sufficient quantity of jobs is a finding of fact reviewed under the
substantial evidence standard, it could not reweigh the evidence or substitute its
judgment for that of the Secretary. Id.
Here, the ALJ used Rule 201.21 of the Medical-Vocational Guidelines as a
framework for decision-making, in conjunction with the VE’s testimony, to find if
Plaintiff could perform other work.
Tr. 33, 71-79.
The ALJ asked the VE a
hypothetical that included the impairments in Plaintiff’s RFC. Tr. 71-72. Based
upon that hypothetical, the VE concluded that, although Plaintiff would not be able
to perform any of her past occupations, there were two jobs she could perform:
addresser, which is sedentary, SVP of 2, unskilled, and of which there are 8,904 jobs
nationally and 344 in Florida; and, document preparer, which is sedentary, an SVP
of 2, unskilled, and of which there are 14,904 nationally and 746 within the state of
Florida. Tr. 72. In response to the ALJ’s additional inquiry of whether limiting the
individual to being off task twenty percent of the day in addition to the regularly
scheduled breaks, the VE testified that this would eliminate work. Id. at 73. In
response to Plaintiff’s counsel’s inquiry of whether the data would be affected if an
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individual must alternate sitting and standing every twenty minutes, the VE also
testified that this would eliminate work. Tr. 78.
As stated above, the ALJ correctly noted the VE’s testimony with regard to the
types and number of jobs available, with the exception of the number of addresser
jobs in the national economy. Where the VE testified that there are 8,904 such jobs
nationally, the ALJ noted in her opinion that there are 89,004 such jobs nationally.
Tr. 33. To sum the parties’ arguments, they both agree that the number in the ALJ’s
decision is different than that offered by the VE, however they disagree as to its
significance. The ALJ concluded that “[b]ased on the testimony of the vocational
expert, . . . [and] considering the claimant’s age, education, work experience, and
residual functional capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.”
Tr. 34. In reviewing the record, and in light of the Eleventh Circuit precedent as
discussed above, the Court concludes that there is sufficient evidence to support the
ALJ’s conclusion that there exist a significant numbers of jobs in the national
economy that Plaintiff can perform. It is entirely plausible that the ALJ’s inclusion
of “89,004” jobs as opposed to “8,904” is a typographical error. Regardless of the
error, the decision of the ALJ would nonetheless be supported by substantial evidence
and would not affect the outcome. As one court has noted:
The Commissioner's decision is subject to harmless error review. See,
e.g., Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983) (applying the
harmless error rule in a social security case); see also Fed.R.Civ.P. 61.
The purpose of the harmless error rule is to avoid the waste of time and
preserve judicial resources. See Mays v. Bowen, 837 F.2d 1362, 1364
(5th Cir.1988). If an error did not effect a party's substantial rights, then
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the error is harmless and should be disregarded. See id.; see generally
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553–54, 104
S.Ct. 845, 848–49 (1984). A scrivener's error is harmless when the ALJ's
decision would be the same despite the error. See Jones v. Astrue, 821
F.Supp.2d 842, 848 (N.D.Tex.2011).
Armstrong v. Colvin, No. 6:11-CV-4172-VEH, 2013 WL 1180305, at *3 (N.D. Ala. Mar.
18, 2013). Because the Court finds, however, that remand is appropriate for the ALJ
to reconsider the VE’s testimony as to the number of jobs available that the Plaintiff
could perform, as discussed below, the Court will direct the Commissioner also to
address the typographical error upon remand.
Next, Plaintiff argues that the VE testimony lacked reliability because she
admitted that she did not extrapolate the job numbers herself but relied on the
extrapolation performed by the private Job Browser Pro SkillTran software. Doc. 26
at 11.
She argues, “[t]his is incorrect because Job Browser does not estimate
numbers for the particular DOT code.”
Id.
Plaintiff, with supporting
documentation, argues that Job Browser specifically emphasizes that its “projections
are for the OES Statistical Group, NOT an individual DOT title.” Docs. 26 at 11-13,
26-4, 26-5.
She offers the example that the job of addresser is a part of the
Occupational Employment Statistics (“OES”) group which consists of 72 different
DOT occupations and avers that,
contrary to what the VE testified at the hearing, Job Browser
specifically states that it does not separate the job numbers for
addresser from the other 71 DOT occupations. Similarly, the job of
document preparer is a part of the OES group that consists of 7 different
occupations. Job Browser specifically states that it does not separate
the numbers for the document preparer occupation from 6 other DOT
occupations.
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Doc. 26 at 11.
The Commissioner correctly responds that a VE may rely on her knowledge
and expertise without producing detailed reports or statistics in support of her
testimony. Doc. 11 at 14; see Curcio v. Comm'r of Soc. Sec., 386 F. App'x 924, 926
(11th Cir. 2010); Bryant v. Comm'r of Soc. Sec., 451 F. App'x 838, 839 (11th Cir. 2012).
In this case, however, the VE did not testify that she relied on her knowledge and
expertise in determining the number of jobs in the national economy.
The VE
testified that she exclusively relied on the extrapolation performed by the private Job
Browser Pro SkillTran software, version 1.6.6.
Tr. 73-77.
The Commissioner
argues that courts have upheld the use of commercially-available software as a
resource for use by a VE to determine the number of available jobs. Doc. 27 at 14.
Unlike other cases in which courts have upheld a VE’s testimony based on the VE’s
knowledge and expertise, in the present case, the VE testified that she relied
exclusively on the software and not on her own knowledge and expertise. In fact,
when counsel sought clarification on how the VE derived the numbers or whether she
knew how the software separated the individual addresser and document preparer
numbers from their occupation groups, the VE’s last response on this issue was,
“again, I’m not an economist or anything like that.” Tr. 77.
The Commissioner provides three cases in which courts upheld the use of
commercially-available software, including Job Browser Pro, as a resource for use by
a VE in helping the VE to determine the number of available jobs. Doc. 27 at 14
(citing Drossman v. Astrue, No. 3:10-CV-1118, 2011 WL 4496561 (N.D. Ohio Sept. 27,
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2011); Poisson v. Astrue, No. 2:11-CV-245-NT, 2012 WL 1067661 (D. Me. Mar. 28,
2012); Malone v. Astrue, No. 3:10-CV-01137, 2011 WL 5879436 (M.D. Tenn. Nov. 23,
2011)).
These cases are factually distinguishable.
In Drossman, Plaintiff
challenged the VE’s testimony regarding the job numbers for the positions that the
VE identified plaintiff could perform. 2011 WL 4496561, at *6. Specifically, as in
the present case, plaintiff argued that the VE relied on groups of occupations rather
than on individual occupations in finding the available job figures. Id. In that case,
the court upheld the ALJ’s decision to credit the VE’s testimony because the “VE did
not rely solely on the Job Browser Pro software but also consulted with other
vocational experts and sources of data used by other vocational experts.” Id. In
Poisson, while the VE acknowledged that she did not understand the exact
methodology of the computer program that generated the specific job numbers, she
“relied on her professional experience and expertise, and not strictly on a software
program, in endorsing the numbers provided to the administrative law judge.” 2012
WL 1067661, at *9.
Similarly, in Malone, the VE testified in detail as to the
methodology of the program and also testified that she used her own experience to
reduce the number of jobs where the software did not account for certain options.
2011 WL 5879436, at *3. Thus, the VE’s exclusive reliance on the software program
without any testimony or evidence that she could endorse those numbers based on
her knowledge and expertise rendered her testimony unreliable. Thus, remand is
necessary to properly consider evidence regarding the number of jobs the Plaintiff
could perform.
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b. Whether the VE testimony was defective
Plaintiff next contends that the VE testimony was defective because the VE
identified jobs in the national economy that Plaintiff can perform with a “reasoning
level” of 2 or 3, despite Plaintiff’s limitation in the hypothetical to “simple, routine,
repetitive tasks.” Doc. 26 at 13-16. The crux of her argument is that the reasoning
levels noted in the DOT for each position, not the SVP, is inconsistent with the VE’s
testimony that Plaintiff could perform the jobs of addresser and document preparer
under the limitation of “simple, routine, repetitive tasks.”
Id.
Specifically, she
avers,
[t]he job of addresser has a [r]easoning level of 2, which requires
understanding and carrying out of detailed instructions. The job of
document preparer has an even higher [r]easoning level of 3[,] which
requires understanding and carrying out instructions in written, oral,
and diagrammatic form and dealing with problems that involve several
concrete variables.
Doc. 26 at 15-16. Plaintiff further argues that the VE misinformed the ALJ of this
inconsistency because the VE did not identify it as a conflict with the DOT. Id. The
Commissioner asserts that the ALJ complied with her duty, pursuant to Social
Security Ruling (“SSR”) 00-4p, to inquire whether the VE’s testimony conflicted with
the DOT, and upon the VE stating that her testimony was consistent, with the
exception of Plaintiff’s established RFC recognizing her need to use a hand-held
assistive device, the ALJ had no duty to interrogate the VE further. Doc. 27 at 1518.
Under SSR 00-4p, “[w]hen a VE . . . provides evidence about the requirements
of a job or occupation, the adjudicator has an affirmative responsibility to ask about
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any possible conflict between that VE or VS evidence and information provided in the
DOT.” SSR 00-4p, 2000 WL 1898704, at *4. If there is a conflict, the ALJ is to
“obtain a reasonable explanation for the apparent conflict.” Id. Furthermore, she
must resolve the conflict before relying on the VE and explain in her decision how she
resolved the conflict.
Id.
The Eleventh Circuit has held that “when the VE's
testimony conflicts with the DOT, the VE's testimony ‘trumps’ the DOT.” Jones v.
Apfel, 190 F.3d 1224, 1230 (11th Cir. 1999).
In this case, the ALJ expressly determined as part of Plaintiff’s RFC that
Plaintiff is limited to “simple, routine, repetitive tasks.” Tr. 24. The ALJ included
a similar limitation in her hypothetical to the VE: “only occasional superficial
interaction with public, co-workers and supervisors and able to perform simple,
routine, and repetitive tasks.”
Tr. 72.
The VE testified that a hypothetical
individual with the limitations set forth in Plaintiff’s RFC would be able to perform
the job of addresser (DOT 209.587-010) and document preparer (DOT 249.587-018).
Tr. 72.
The ALJ complied with her obligation under SSR 00-4p and inquired
whether the VE testimony was consistent with the DOT.
Tr. 73.
The VE
responded, “well, where it does not address certain issues such as using assistive
devices and being off task.
My opinions are based on my training, experience,
education regarding issues such as that.” Tr. 73. Thus, the VE did not testify that
her testimony was inconsistent with the DOT in any other respect.
Plaintiff correctly notes that courts in this district have addressed similar
arguments and found that a limitation to simple, routine, or repetitive tasks is
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inconsistent with a reasoning level of 2 or 3. See e.g. Estrada v. Barnhart, 417 F.
Supp. 2d 1299 (M.D. Fla. 2006); Cousins v. Colvin, No. 2:12-CV-505-FTM-29, 2013
WL 5278271 (M.D. Fla. Aug. 23, 2013), report and recommendation adopted as
modified, No. 2:12-CV-505-FTM-29DNF, 2013 WL 5278483 (M.D. Fla. Sept. 18,
2013). Regardless of the existence of conflict, this Court has previously held that once
a VE testifies that her testimony is consistent with the DOT, the ALJ is not under an
obligation to inquire further, or to investigate potential conflicts that were not raised
at the hearing. Marley v. Comm'r of Soc. Sec., No. 8:13-CV-2384-T-CM, 2015 WL
847376, at *1 (M.D. Fla. Feb. 26, 2015). Several cases support this holding. In
Leigh v. Comm'r of Soc. Sec., the Eleventh Circuit upheld an ALJ decision where, as
here, the plaintiff argued that the ALJ’s inclusion of limitations of “simple, routine,
repetitive” tasks in the hypothetical to the VE conflicted with the reasoning level for
the jobs the VE identified that the plaintiff could perform in the DOT. 496 F. App'x
973, 975 (11th Cir. 2012) (unpublished). The Court did not specifically hold that
there was a conflict but instead held, “even 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 [ the plaintiff] was not disabled” because the testimony of
a VE trumps the DOT in cases of inconsistency. Id. at 975 (citing Jones v. Apfel, 190
F.3d 1224, 1229-30 (11th Cir. 1999). In Leigh, the ALJ asked the VE if there were
any inconsistences, and the VE responded in the negative. Id. at 973. The Court
found that Plaintiff “did not offer any evidence controverting the VE’s opinion, nor
did she object to the opinion. . . . [Thus, b]ecause there was no apparent inconsistency
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between the VE opinion and the DOT, the ALJ’s decision is supported by substantial
evidence. ” Id. at 975. Additionally, in Garskof v. Astrue, the court held that “the
ALJ is not required independently to identify whether there is any inconsistency.”
No. 507-CV-288-OC-GRJ, 2008 WL 4405050, at *6 (M.D. Fla. Sept. 26, 2008). This
was especially true in Garskof where “[p]laintiff never identified any conflicts at the
hearing and never raised any conflict through questioning the VE, despite being
represented by counsel.” Id. See also Dickson v. Comm'r of Soc. Sec., No. 5:13-CV48-OC-DNF, 2014 WL 582885, at *1 (M.D. Fla. Feb. 13, 2014) (“No conflicts were
raised during the hearing by the vocational expert or by Plaintiff's representative.
Neither case law nor SSR 00–4p require an ALJ to resolve a conflict that was not
identified and was not otherwise apparent.”).
In the present case, the ALJ complied with her duty under SSR 00-4p. The
VE testified that there was no conflict aside from those issues such as using an
assistive device and being off task. Tr. 73. In her decision, the ALJ writes,
[p]ursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary
of Occupational Titles (DOT), with one sole exception. The VE stated
that the DOT does not address the use of an assistive device; therefore,
she relied on her knowledge, and experience in the field to arrive at her
conclusions. I find that there is no discrepancy with the DOT, and that
the claimant relied on her expertise to address the use of a handheld
device, which is not contained in the DOT. Therefore, I find that her
testimony is reliable, and any inconsistencies are resolved adequately.
Tr. 34. Plaintiff’s counsel cross-examined the VE, however not on the issues of any
inconsistencies between her testimony and the DOT.
Tr. 73-79.
The ALJ fully
complied with her obligation under SSR 00-4p and was not under an independent
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obligation to identify and resolve any inconsistency aside from the ones presented by
the VE. Because the Court finds, however, that remand is appropriate for the ALJ
to reconsider the VE’s testimony as to the number of jobs available that the Plaintiff
could perform, the Court will direct the Commissioner to address the inconsistency
between the VE testimony and the DOT with regards to the reasoning requirements
for the addresser and document preparer jobs.
c. Whether the ALJ failed to include all the limitations determined by
the state agency psychological consultants in the RFC assessment
and the ALJ’s hypothetical question to the VE
Plaintiff next argues that the ALJ’s decision is not supported by substantial
evidence because she gave great weight to state agency psychological consultants,
Mercedes DeCubas, Ph.D., and Carlos Perez, Ph.D., but failed to include certain
adaptation limitations, included in their opinions, in the ALJ’s findings of the RFC
and in the hypothetical to the VE. Doc. 26 at 16-19. Specifically, Plaintiff argues
that both psychological consultants opined that Plaintiff has moderate limitations in
her ability to respond appropriately to changes in the work setting, however the RFC
does not include this limitation. Id. Moreover, Dr. Perez opined that timed work
may be too stressful for the Plaintiff, but this also was not included in the RFC or
hypothetical to the VE.
Id. at 18. Plaintiff contends that “the job of document
preparer involves frequent changes of tasks involving different aptitudes,
technologies, techniques, procedures, working conditions, physical demands, or
degrees of attentiveness without loss of efficiency or composure” and this may be
inconsistent with the opinions that that Plaintiff has moderate limitations in her
ability to respond appropriately to changes in the work setting. Id. Plaintiff also
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contends that the job of addresser involves “performing a few routine and uninvolved
tasks over and over again according to set procedures, sequence, or pace, with little
opportunity for diversion or interruption . . . [and] this appears to be inconsistent
with Dr. Perez opinion that time work may be too stressful.” Id.
The RFC is the most that a claimant can do despite her limitations. See 20
C.F.R. § 404.1545(a). At the hearing level, the ALJ has the responsibility of
assessing a claimant’s RFC. See 20 C.F.R. § 404.1546(c). The ALJ is required to
assess a claimant’s RFC based on all of the relevant evidence in the record, including
any medical history, daily activities, lay evidence and medical source statements.
20 C.F.R. § 404.1545(a). In assessing the medical evidence, the ALJ is required to
state with particularity the weight given to the different medical opinions and the
reasons for doing so. Sharfarz v. Bowen , 825 F.2d 278, 279 (11th Cir. 1987).
Furthermore, the claimant’s age, education, work experience and whether she
can return to her past relevant work are considered in determining her RFC,
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. §
404.1520(f)), and the RFC assessment is based upon all relevant evidence of a
claimant’s ability to do work despite her impairments. Phillips, 357 F.3d 1232,
1238 (11th Cir. 2004) (emphasis added); Lewis, 125 F.3d at 1440 (citing 20 C.F.R.
§ 404.1545(a)).
Opinions on some issues, however, such as the claimant’s RFC
and whether the claimant is disabled or unable to work, “are not medical
opinions, . . . but are, instead, opinions on issues reserved to the Commissioner
because they are administrative findings that are dispositive of a case; i.e., that would
direct the determination or decision of disability.” 20 C.F.R. § 404.1527(d); SSR 96- 19 -
5p. Thus, the ALJ is responsible for making the ultimate determination about
whether a claimant meets the statutory definition of disability. 20 C.F.R. §
404.1527(d)(1).
In determining the Plaintiff’s RFC, the ALJ stated,
In making this finding, I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 967p. I have also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-Sp,
96-6p and 06-3p.
Tr. 28. The ALJ considered Plaintiff’s testimony, medical records, and stated with
particularity the weight given to the different medical opinions. Tr. 25-32. The ALJ
gave great weight to both Drs. Perez and DeCubas, who rated Plaintiff’s adaptation
limitations. Tr. 30. Both psychologists rated four adaptation limitation areas. Tr.
98-99, 125. Both psychologists opined that Plaintiff was “moderately limited” in the
ability to respond appropriately to changes in the work setting, but otherwise stated
that Plaintiff was “not significantly limited” in the three other functional areas. Tr.
30, 98-99, 125. Both psychologists also included the narrative summary of Plaintiff’s
adaptation limitations:
FROM PSYCH.
PERSPECTIVE, ABLE TO SUSTAIN GOAL
DIRECTED ACTIVITY IN A ROUTINE SETTING. CAN FUNCTION
ADEQUATELY AS PHYSICAL ALLOWS. CLMT IS ABLE TO DO
ROUTINE TASKS. CLMT IS ABLE TO FOLLOW SIMPLE
INSTRUCTIONS & CAN TAKE CARE OF HER NEEDS AS PHYSICAL
ALLOWS. PSYCH TX. WILL BE HELPFUL TO HER FOR SUPPORT.
NEEDS A ROUTINE SETTING TO AVOID INCREASED STRESS.
Tr. 98-99, 125 (emphasis added). Furthermore, with respect to Plaintiff’s sustained
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concentration and persistence limitations, Dr. Perez opined that Plaintiff is able to
carry out simple instructions, and she “may get distracted but can sustain A&C in a
routine setting. Timed work may be too stressful.” Tr. 124. He concluded that “[i]n
summary, medical records show clmt will be able to perform simple and repetitive
tasks.” Tr. 125.
The ALJ considered both psychologists’ conclusions and limited
Plaintiff “to only simple, routine, and repetitive tasks.”
Tr. 24-25, 30.
The ALJ
included a similar limitation in her hypothetical to the VE: “only occasional superficial
interaction with public, co-workers and supervisors and able to perform simple,
routine, and repetitive tasks.” Tr. 72. The Commissioner is correct in noting that
although the ALJ did not expressly state in her RFC finding or the hypothetical to the
VE that Plaintiff has a moderate limitation in her ability to respond appropriately to
changes in the work setting, she appropriately incorporated the narrative findings of
both psychologists when she included the limitation of “simple, routine, and repetitive
tasks” to the Plaintiff’s RFC and in her hypothetical to the VE. Plaintiff relies on
Watkins v. Comm'r of Soc. Sec., 457 F. App'x 868, 869 (11th Cir. 2012), which is
distinguishable for two reasons. In Watkins, the ALJ explicitly addressed and gave
great weight to a treating physician’s RFC evaluation in determining the plaintiff’s
RFC. Id. at 871. The treating physician opined that the plaintiff could not work more
than five or six hours in an eight hour workday if she had a sit/stand option. Id. The
ALJ failed to incorporate this limitation in her RFC or her hypothetical to the VE.
Id. Unlike in Watkins, the ALJ in the present case considered the psychologists’
narrative conclusions, and included them in the Plaintiff’s RFC and her hypothetical
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to the VE, albeit not verbatim. Moreover, the psychologists opined that timed work
“may” be too stressful, but did not preclude it. Additionally, the Court agrees with
the Commissioner’s statement that Plaintiff appears to argue that timed work equates
to repetitive work, which is unsupported by the evidence.
Accordingly, the ALJ
properly considered Plaintiff’s adaptation limitation in determining Plaintiff’s RFC.
V. CONCLUSION
Upon review of the record, the undersigned concludes that the VE testimony
regarding the availability of jobs that Plaintiff can perform was unreliable.
Therefore, the Court finds that the ALJ’s decision was not supported by substantial
evidence.
ACCORDINGLY, it is hereby
ORDERED:
1.
The decision of the Commissioner is REVERSED and this matter is
REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g);
for the Commissioner to:
A.
B.
Consider the inconsistency between the VE testimony and the
DOT with regards to the reasoning requirements of the addresser
and document preparer jobs;
C.
Issue a new decision based on substantial evidence;
D.
2.
Properly consider the evidence regarding the number of jobs the
Plaintiff could perform;
Make any further determinations consistent with this Opinion
and Order, or in the interests of justice.
The Clerk of Court is directed to enter judgment in favor Plaintiff,
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Janelle Thompson, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 15th day of March, 2016.
Copies:
Counsel of record
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