White v. Commissioner of Social Security

Filing 27

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED and this action is REMANDED for further proceedings. See Opinion and Order for details. The Clerk is directed to enter judgment accordingly, and close the file. Signed by Magistrate Judge Carol Mirando on 8/26/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BARBARA WHITE,
Plaintiff,
v.

Case No: 2:15-cv-139-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Barbara White appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her claim for Supplemental
Security Income (“SSI”) benefits. For the reasons discussed herein, the decision of
the Commissioner is reversed and this matter is remanded pursuant to 42 U.S.C. §
405(g), sentence four.
I.

Issues on Appeal 1

Plaintiff raises two issues on appeal: (1) whether substantial evidence supports
the Administrative Law Judge’s (“ALJ”) conclusion that Plaintiff does not meet or
medically equally Listing 12.05C; and (2) whether the Vocational Expert’s (“VE”)
testimony is consistent with the Dictionary of Occupational Titles (“DOT”).

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
1

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 n.1 (11th Cir.
2013).

II.

Procedural History and Summary of the ALJ’s Decision

Plaintiff filed an application for SSI, alleging a disability that began on
September 25, 2010. Tr. 159-67. The Social Security Administration denied her
claim initially on January 23, 2012 and upon reconsideration on February 13, 2012.
Tr. 87-95. Plaintiff requested and received a hearing before ALJ Sandra Lord, on
August 5, 2013, during which she was represented by an attorney.

Tr. 35-54.

Plaintiff testified at the hearing. Id.
On August 20, 2013, the ALJ issued an unfavorable decision and denied
Plaintiff’s claim. Tr. 14-22. At step one, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity since November 14, 2011, the application date.
Tr. 16. At step two, the ALJ determined that Plaintiff had the following severe
impairments: seizure disorder, asthma, right shoulder disorder, diabetes, and
learning disorder. Id. At step three, the ALJ concluded that Plaintiff “[did] not
have an impairment or combination of impairments that [met] or medically equal[ed]
the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.” Tr. 16.
The ALJ next determined that Plaintiff had the residual functional capacity
(“RFC”) to perform sedentary work 2 as defined in 20 C.F.R. 416.967(a) except she
occasionally can climb ramps or stairs. Tr. 18. Additionally the ALJ concluded
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are
2

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She can never climb ladders or scaffolds. She can never reach overhead
with the right upper extremity. She can never be exposed to dust, odors,
fumes, pulmonary irritants, extreme cold, or extreme heat. She can
never be exposed to hazards such as unprotected heights, moving
mechanical parts, or operating a motor vehicle. She is limited to
performing simple, routine tasks but not at a productive rate pace. She
cannot perform assembly line work. She can frequently respond
appropriately to supervisors. She can occasionally respond
appropriately to coworkers. She can never respond appropriately to the
public.

Id.
In making this determination, the ALJ considered the entire record and found
that although Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms,” her “statements concerning the intensity,
persistence and limiting effects of these symptoms [were] not entirely credible. . . .”
Tr. 18-19. The ALJ next found that Plaintiff had no past relevant work, but found
there are jobs that exist in significant numbers in the national economy that Plaintiff
can perform. Tr. 20-21. Thus, the ALJ found that Plaintiff was not disabled and
denied her claim. Tr. 22.
Following the ALJ’s decision, Plaintiff filed a request for review with the
Appeals Council, which was denied on February 4, 2015. Tr. 1-5. Accordingly, the
ALJ’s August 20, 2013 decision is the final decision of the Commissioner. Plaintiff
filed a timely appeal in this Court on March 3, 2015. Doc. 1.

required occasionally and other sedentary criteria are met.” 20 C.F.R. 404.1567(a). Social
Security Ruling 83-10 elaborates on § 404.1567(a) by providing that “‘occasionally’ means
occurring from very little up to one-third of the time,” and that “periods of standing or walking
should generally total no more than about 2 hours of an 8-hour workday, and sitting should
generally total approximately 6 hours of an 8-hour workday.” Kelley v. Apfel, 185 F.3d 1211,
1214 n.2 (11th Cir. 1999).

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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.”

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).

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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 fact
findings.” 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 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

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1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).
IV.

Discussion

a. Whether substantial evidence supports the ALJ’s conclusion that
Plaintiff does not meet or medically equally Listing 12.05C
Plaintiff argues that the ALJ failed to apply the relevant legal standard when
she determined that Plaintiff did not meet the requirements for Listing 12.05C. Doc.
18 at 11. Plaintiff states that the evidence of record supports that she meets Listing
12.05C, and the ALJ’s failure to discuss Listing 12.05C and why the evidence does
not establish that Plaintiff meets the Listing was an error. Id. The Commissioner
responds that the Listing 12.05 requires a diagnosis of intellectual disability, and
here, the ALJ properly noted that Dr. Cheryl Kasprzak, a licensed psychologist,
diagnosed Plaintiff with borderline intellectual functioning.

Doc. 23 at 7.

Additionally, the Commissioner states that the ALJ noted activities that would not
support the deficits in adaptive functioning. Id. at 8.
The listings describe impairments that the Commissioner considers severe
enough to prevent a person from doing “any gainful activity, regardless of his or her
age, education, or work experience.” See 20 C.F.R. §§ 404.1625(a), 416.925(a). If an
adult’s impairment “meets or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. . . .” Bowen v. Yuckert, 482 U.S. 137, 141
(1987), cited in Sullivan v. Zebley, 493 U.S. 521, 532 (1990). The Eleventh Circuit
has described how the standard is met or equaled:

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In order to meet a listing, the claimant must (1) have a diagnosed
condition that is included in the listings and (2) provide objective
medical reports documenting that this condition meets the specific
criteria of the applicable listing and the duration requirement. A
diagnosis alone is insufficient. [] In order to equal a listing, the medical
findings must be at least equal in severity and duration to the listed
findings.

Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (citing 20
C.F.R. § 416.925(c)-(d)). The burden of establishing that a claimant’s impairments
meet or equal a listing rests with the claimant, who must produce specific medical
findings that satisfy all the criteria of a particular listing. 20 C.F.R. § 404.1520(a)(4).
If Plaintiff contends that an impairment meets a listing, as she does here (Doc.
18 at 11), she bears the burden of “present[ing] specific medical findings that meet
the various tests listed under the description of the applicable impairment.”

Wilkinson on Behalf of Wilkinson, 847 F.2d at 662. In doing so, Plaintiff must have
a diagnosed condition that is included in the listings.

Id. Diagnosis of a listed

impairment, however, is not enough; as the claimant must also provide objective
medical reports documenting that her impairment meets the specific criteria of the
applicable listing. Id.; accord Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir.
2002). Further, “[a]n impairment that manifests only some of [the specific] criteria
[of the applicable impairment], no matter how severely, does not qualify.” Sullivan

v. Zebley, 493 U.S. 521, 530 (1990).
The introductory material to the mental disorders listings clarifies Listing
12.05, stating:
The structure of the listing for intellectual disability (12.05) is different
from that of the other mental disorders listings. Listing 12.05 contains

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an introductory paragraph with the diagnostic description for
intellectual disability. It also contains four sets of criteria (paragraphs
A through D). If your impairment satisfies the diagnostic description
in the introductory paragraph and any one of the four sets of criteria,
[the Commissioner] will find that your impairment meets the listing.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00A. Listing 12.05 provides, that a claimant
is disabled if he or she meets the following criteria:
12.05 Intellectual disability: intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal
needs (e.g., toileting, eating, dressing, or bathing) and inability to follow
directions, such that the use of standardized measures of intellectual
functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and
significant work-related limitation of function;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70,
resulting in at least two of the following:
1. Marked restriction in activities of daily living; or
2. Marked difficulties in maintaining social functioning; or

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3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (emphasis added). 3 Accordingly, in order
to meet Listing 12.05, “a claimant must at least[:] 1) have significantly subaverage
general intellectual functioning; 2) have deficits in adaptive [functioning]; and 3) have
manifested deficits in adaptive [functioning] before age 22.” Crayton v. Callahan,
120 F.3d 1217, 1219 (11th Cir. 1997); 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05.
Additionally, a claimant must meet one of the four sets of criteria found in 12.05A, B,
C, or D, in order to show that his or her impairments are severe enough to meet or
equal Listing 12.05.

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A).

Thus, the

claimant must satisfy both the diagnostic description for intellectual disability and
any one of the four sets of criteria in 12.05. Hickel v. Comm’r of Soc. Sec., 539 F. App’x
980, 983 (11th Cir. 2013).
Relevant here, as noted above, paragraph C of Listing 12.05 is met when the
claimant shows: 1) “a valid verbal, performance, or full scale IQ of 60 through 70”;
and 2) “a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” Id. at § 12.05(C). Generally, a claimant meets
the criteria for presumptive disability under section 12.05C when the claimant
satisfies two prongs: a valid I.Q. score of 60 to 70 inclusive; and evidence of an

The Court notes that currently Listing 12.05 uses “Intellectual disability” in place
of “Mental retardation,” amended on August 1, 2013. See 78 Fed. Reg. 46,499, 46,501. The
listing, however, has not substantively changed. Id.
3

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additional mental or physical impairment that has more than “minimal effect” on the
claimant’s ability to perform basic work activities. Lowery, 979 F.2d at 837. “It is
settled, however, that the presence of a more than slight or minimal limiting
impairment satisfies the second criteria of section 12.05(C), even if the impairment
is treatable.” Davis v. Shalala, 985 F.2d 528, 262 n.3 (11th Cir. 1993).
The Eleventh Circuit has upheld an ALJ’s conclusion that a claimant did not
meet or equal the criteria for 12.05C, despite having an IQ score that fell within the
required range, when the claimant’s deficits in adaptive functioning were not
reflective of an intellectual disability. Perkins v. Comm’r of Soc. Sec., 553 F. App’x
870, 873 (11th Cir. 2014); Hickel, 539 F. App’x at 983-84; see also Harris v. Comm’r

of Soc. Sec., 505 F. App’x 874, 876 (11th Cir. 2013) (finding that substantial evidence
supported the ALJ’s conclusion that the Plaintiff’s adaptive skills demonstrated that
he was not intellectually disabled despite having a qualifying IQ score). In Perkins,
the Plaintiff had an IQ score between 60 and 70. Id. at 871. The ALJ also found
that Plaintiff had several other severe impairments.

Id. at 872.

The ALJ

concluded, however, that the Plaintiff did not meet the criteria for 12.05C because
the record indicated that he had good activities of daily living, and his past work as
a skilled cook evidenced that he did not have the deficits in adaptive functioning that
were reflective of someone with an intellectual disability. Id. at 873.
Similarly, in Hickel, the ALJ acknowledged that the Plaintiff had a valid IQ
score between 60 and 70. 539 F. App’x at 984. The ALJ found, however, that the
Plaintiff did not have deficits in adaptive functioning because the Plaintiff worked

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part time, had friends, attended church regularly, drove, cared for her personal needs,
and was able to prepare simple meals, groom, dress and bathe herself. Id. The ALJ
noted that although the Plaintiff attended special education classes, she graduated
from high school. Id. Accordingly, the ALJ found that the Plaintiff did not meet the
requirements of 12.05 because she lacked deficits in adaptive functioning. Id. The
court found that substantial evidence supported the ALJ’s finding. Id. at 985.
Here, the ALJ simply stated that 12.05C is not met “because the claimant has
a verbal IQ score of 70 and a full-scale IQ score of 71.” Tr. 19. The evidence reflects
that Plaintiff has a verbal IQ score of 70, and the ALJ did not question the validity of
the score. Tr. 631. The record also reflects, and the ALJ also found, that Plaintiff
has additional severe impairments including seizure disorder, asthma, right shoulder
disorder, diabetes, and learning disorder. Tr. 16. The ALJ, however, provided no
other rationale for her conclusion that Plaintiff does not meet the criteria for 12.05C
other than Plaintiff’s IQ score, which falls within the required range for 12.05C.
Plaintiff argues that because the record contains evidence that she appears to
meet 12.05C, the ALJ’s failure to discuss the listing and why it is not met was in
error. Doc. 18 at 11. Plaintiff also asserts that the ALJ’s failure to articulate why
Plaintiff’s verbal IQ score does not meet the statutory requirements also was
improper. Doc. 18 at 12. Plaintiff contends that even if the Court can identify a
reason for Plaintiff not meeting Listing 12.05C, the Court must reverse the ALJ’s
decision because the decision may only be upheld based on the bases articulated in

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agency order. Doc. 18 at 12 (citing Baker v. Comm’r of Soc. Sec., 384 F. App’x 893,
896 (11th Cir. 2010)).
The Commissioner states that the ALJ adequately demonstrated her reasons
for determining that Plaintiff does not meet 12.05C because the ALJ referenced the
records from Dr. Kasprzak, who diagnosed Plaintiff with borderline intellectual
functioning. Doc. 23 at 8. Additionally, the Commissioner argues that Plaintiff’s
activities would not support the deficits in adaptive functioning required for a finding
of intellectual disability.

Id. The Commissioner states, “Plaintiff has a driver’s

license, cares for 3 small children, visits with friends and relatives, shops for
groceries, plays computer games, and volunteers at a soup kitchen.” Id. Thus, the
Commissioner contends that Plaintiff does not meet the strict requirements of
12.05C.
While the Commissioner’s argument may have merit, the ALJ did not make a
finding that the reason Plaintiff did not meet the listings was due to Plaintiff’s
adaptive functioning. Unlike Hickel, Harris and Perkins where the ALJ made a
specific finding that the claimants did not meet the deficits in adaptive functioning
required in 12.05, despite having the requisite IQ, here, the ALJ simply stated that
12.05C is not met because Plaintiff has a verbal IQ score of 70 and a full scale IQ
score of 71. Tr. 18. The ALJ made no mention of why the IQ scores did not meet
the requirements of 12.05C, which state that a Plaintiff must have a verbal or full
scale IQ between 60 and 70. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (emphasis
added). Additionally, the ALJ made no reference to Plaintiff’s adaptive functioning

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as it relates to whether Plaintiff met the listing. 4 “If an action is to be upheld, it must
be upheld on the same bases articulated in the agency’s order.” Baker, 384 F. App’x
at 896; see also Owens v. Heckler, 748 F.2d 1511, 1515-16 (11th Cir. 1984) (declining
to affirm an ALJ’s conclusion simply because some rational may have supported it
and because the ALJ’s articulation of the standard being applied was ambiguous).
Here, it is unclear on what basis the ALJ determined Plaintiff did not meet the listing.
Accordingly, the Court finds that the ALJ’s decision is not supported by substantial
evidence. See Winschel, 631 F.3d at 1179 (stating an ALJ decision that lacks some
measure of clarity cannot be affirmed simply because some rationale may have
supported the decision); see also Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
1981) (stating that when an ALJ fails to sufficiently explain his decision, the Court
cannot meet its duty to scrutinize the record to determine whether the conclusions
reached are rational).

b. Whether the VE’s testimony is consistent with the DOT
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,
and repetitive tasks.”

Doc. 18 at 12-13.

The crux of her argument is that the

reasoning levels noted in the DOT for each position are inconsistent with the VE’s
testimony that Plaintiff could perform the jobs of glass frame polisher and

The Court notes that the ALJ considered many of Plaintiff’s activities of daily living
when the ALJ explained the RFC finding. Tr. 20. This, however, was after the ALJ
concluded that Plaintiff failed to meet the listings.
4

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surveillance system monitor under the limitation of “simple, routine, repetitive tasks”
because they have reasoning levels higher than 1. Id. at 13. The Commissioner
simply responds that even if these jobs are inconsistent with the DOT, Plaintiff raises
no issue with the job of lens inserter, which has a reasoning level of 1, and a SVP of
2.

Doc. 23 at 9.

The Commissioner contends that this job represents alternate

work, and therefore, the ALJ’s decision is supported by substantial evidence. Id.
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
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. 18. The ALJ included
this limitation in her hypothetical to the VE. Tr. 48-49. The VE testified that a
hypothetical individual with the limitations set forth in Plaintiff’s RFC would be able
to perform the job of eyeglass frame polisher (DOT 713.684-030), lens inserter (DOT
713.687-030) and surveillance system monitor (DOT 379.367-010). Tr. 21, 51. The

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ALJ complied with her obligation under SSR 00-4p and inquired whether the VE
testimony was consistent with the DOT, and the VE stated that it was. Tr. 51.
The Court recognizes that some courts in this district have addressed similar
arguments and found that a limitation to simple, routine, or repetitive tasks is
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). Other courts in this circuit, including this Court, have held that a required
reasoning level of 2 or 3 is not inconsistent with the ability to perform simple tasks.

See Hobbs v. Colvin, No. 8:13-cv-3233-T-24 MAP, 2015 WL 628763, at *5 (M.D. Fla.
Feb. 12, 2015) (citation omitted); Gray v. Colvin, No. 3:12-cv-506/EMT, 2014 WL
1118105, at *8 (N.D. Fla. Mar. 20, 2014); Stone v. Comm’r of Soc. Sec., No. 2:16-cv253-FtM-CM, 2016 WL 4425865, at *8-9 (M.D. Fla. August 21, 2016). Additionally,
other courts previously have 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); Stone, 2016 WL 4425865, at *8-9.
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

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level for the jobs the VE identified that the plaintiff could perform in the DOT. 496
F. App'x 973, 975 (11th Cir. 2012). 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, 190 F.3d at 1229-30).
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 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-OCGRJ, 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-CV-48-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.”).

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In the present case, the ALJ complied with her duty under SSR 00-4p. The
VE testified that there was no conflict. Tr. 51. The ALJ fully complied with her
obligation under SSR 00-4p and was not under an independent obligation to identify
and resolve any inconsistency aside from the ones presented by the VE.
Additionally, there was no apparent inconsistency between the DOT and VE
testimony. Because the Court finds, however, that remand is appropriate for other
reasons, the Court will direct the Commissioner to clarify the VE testimony and the
DOT with regard to the reasoning requirements for the eye glass frame polisher and
surveillance system monitor.
V.

Conclusion

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. reconsider whether Plaintiff meets the requirements for Listing
12.05C and sufficiently explain the rationale for her decision;
B. clarify the VE testimony and DOT with regard to the reasoning
requirements for the eye glass frame polisher and surveillance
system monitor;
C. make any other 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 Barbara
White, and close the file.

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DONE and ORDERED in Fort Myers, Florida on this 26th day of August, 2016.

Copies:
Counsel of record

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