Smeed v. Commissioner of Social Security
Filing
24
OPINION AND ORDER reversing and remanding this action to the Commissioner for further consideration. See Opinion and Order for details. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Mac R. McCoy on 9/26/2017. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARL SMEED,
Plaintiff,
v.
Case No: 2:16-cv-489-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Carl Smeed’s Complaint (Doc. 1) filed on June 22, 2016.
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying his claim for disability, disability insurance benefits, and
supplemental security income. The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed
legal memoranda in support of their positions. For the reasons set out herein, the decision of the
Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
I.
Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.
Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do his previous work or any other
substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.
Procedural History
On November 14, 2012, Plaintiff filed an application for disability and disability
insurance benefits (“DIB”) and on January 25, 2013, Plaintiff filed an application for
supplemental security income (“SSI”). (Tr. at 79, 80, 200-231). Plaintiff asserted an onset date
of June 1, 2006. (Id. at 200, 225). Plaintiff’s applications were denied initially on May 15,
2013, and on reconsideration on August 1, 2013. (Id. at 79, 80, 102, 103). A hearing was held
before Administrative Law Judge (“ALJ”) Donald E. Garrison on October 16, 2014. (Id. at 3660). The ALJ issued an unfavorable decision on November 7, 2014. (Tr. at 19-28). The ALJ
found Plaintiff not to be under a disability from June 1, 2006 through the date of the decision.
(Id. at 28).
On April 29, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-5).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on June 22, 2016. (Doc.
1). This case is ripe for review. The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (See Doc. 20).
C.
Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through June 30, 2006.
(Tr. at 21). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since June 1, 2006, the alleged onset date. (Id.). At step
two, the ALJ found that Plaintiff suffered from the following severe impairments: major
depressive disorder, learning disorder not otherwise specified, status-post closed head injury, and
status-post fracture of the right leg with length discrepancy. (Id.). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, subpt. P,
app. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Tr.
at 22). At step four, the ALJ determined that Plaintiff has the residual functional capacity
(“RFC”) to:
lift and carry up to ten pounds. He is able to sit up to six hours in an eight-hour
workday. He is capable of walking and standing up to two hours in an eight-hour
workday. He is limited to engaging in occasional postural activities, such as
1
Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
3
climbing, balancing, stooping, crouching, kneeling, and crawling. He must never
be exposed to heights, moving machinery, or driving. He is limited to
understanding, remembering, and carrying out short and simple instructions. He is
limited to making judgments on simple work-related decisions. He is limited to
occasional contact with supervisors and coworkers. He must never have contact
with the public. He is illiterate.
(Id. at 23).
The ALJ determined that Plaintiff was not capable of performing his past relevant work
as a tattoo artist. (Id. at 27). After considering Plaintiff’s age, education, work experience, and
RFC, the ALJ found that there are jobs that exist in significant numbers in the national economy
that Plaintiff can perform. (Id.). Specifically, the ALJ determined that Plaintiff was able to
perform the following jobs: (1) tuner/textile, DOT # 782.687-030, sedentary, unskilled, with an
SVP of 1; (2) blower/stuffer, DOT # 731.685-014 sedentary, unskilled, with an SVP of 2; and (3)
small assembler, DOT # 706.684-030, sedentary, unskilled, with an SVP of 2. (Id. at 27-28). 2
The ALJ concluded that Plaintiff was not under a disability from June 1, 2006, through the date
of the decision. (Id. at 28).
D.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, 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., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
2
“DOT” refers to the Dictionary of Occupational Titles.
4
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
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 evidence preponderates 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 evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.
Analysis
On appeal, Plaintiff raises the following five (5) issues:
1) Whether the ALJ violated Plaintiff’s due process rights given that he prohibited
cross-examination of the vocational expert concerning the basis for the number of
jobs that the vocational expert said were available in the national economy.
2) Whether the ALJ erred in precluding Plaintiff from properly addressing the conflict
between the vocational expert testimony and the DOT given that the vocational
expert inaccurately characterized the reasoning level of some of the jobs identified
by the vocational expert and given that the demands of such jobs exceeded
Plaintiff’s RFC.
3) Whether the ALJ properly assessed Plaintiff’s RFC given that the RFC did not
include Plaintiff’s anxiety, sleep disturbance, scoliosis, reported aneurysms, and
heart murmur.
4) Whether the Commissioner met her burden of showing that there are a significant
number of jobs that exist in the national economy that Plaintiff could perform given
that the ALJ found that Plaintiff is illiterate and given that all the jobs identified by
the vocational expert require reading and recognizing the meaning of 2500 words
and printing simple sentences containing subject, verb, and object.
5) Whether the Commissioner met her burden of showing that there are significant
number of jobs that exist in the national economy that Plaintiff could perform given
5
that the ALJ did not include in the hypothetical question to the vocational expert
Plaintiff’s anxiety, sleep disturbance, scoliosis, reported aneurysms, and heart
murmur and given that in order for the vocational expert testimony to constitute
substantial evidence, the ALJ was required to pose a hypothetical question which
comprised all of Plaintiff’s limitations.
(Doc. 21 at 1-2).
A.
Whether the ALJ Violated Plaintiff’s Due Process Rights by Barring CrossExamination of the Vocational Expert Concerning the Basis of the Number of
Jobs Available in the National Economy.
Plaintiff argues that when Plaintiff’s representative attempted to explore the issue of the
source of the vocational expert’s job numbers, the ALJ stopped the representative from crossexamining the vocational expert on this issue in violation of Plaintiff’s due process rights. (Doc.
21 at 10). Plaintiff also raises a second issue that the ALJ erred in relying on the vocational
expert’s testimony because the vocational expert relied solely on SkillTran to arrive at the
number of jobs in the national economy. (Id. at 16). 3
The Commissioner argues that the Eleventh Circuit has rejected arguments challenging
the methodology underpinning a vocational expert’s testimony. (Doc. 23 at 5).
In completing the five-step sequential process, the ALJ has a duty to develop a full and
fair record, whether the claimant is represented by counsel or not. Mosley v. Acting Comm’r of
Soc. Sec. Admin., 633 F. App’x 739, 741 (11th Cir. 2015) (citing Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981)). Nevertheless, the claimant bears the burden of proving that he is
disabled and, accordingly, is responsible for producing evidence to support his claim. Id.
Moreover, remand is required only when:
. . . “the record reveals evidentiary gaps which result in unfairness or clear
prejudice.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 2015). In other words,
3
This second argument was raised by Plaintiff later in his brief. (See Doc. 21 at 16). Because
this issue relates to the vocational expert’s testimony regarding the number of jobs in the national
economy, the Court will address this issue out of order.
6
“there must be a showing of prejudice before we will find that the claimant’s right
to due process has been violated to such a degree that the case must be remanded
to the [ALJ] for further development of the record.” Id. Prejudice requires a
showing that “the ALJ did not have all of the relevant evidence before him in the
record (which would include relevant testimony from claimant), or that the ALJ did
not consider all of the evidence in the record in reaching his decision.” Kelley v.
Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985).
Id. at 742.
Here, Plaintiff argues that the ALJ failed to afford Plaintiff his due process rights by
failing to allow Plaintiff’s representative the opportunity to fully explore the issue of the source
of the vocational expert’s job numbers. The exchange concerning job numbers is as follows:
ATTY:
VE:
ATTY:
ALJ:
VE:
ATTY:
ALJ:
VE:
ATTY:
ALJ:
ATTY:
ALJ:
ATTY:
ALJ:
ATTY:
ALJ:
Then, the source of your job numbers, please.
Can you give me – on the puller through, nationwide,
395,000; 500 Florida.
Oh well, I’m sorry. Will you –
He’s asking for the source.
Oh.
Thank you, your honor.
He’s asking for the source.
Oh, the source? From Skill Tran [sic].
And how does Skill Tran [sic] come up with their numbers?
We’re not going to go into that.
Well then, I’ll –
He stated the basis for his opinion.
Exhibits 16E and 17E, I’ll just rely on those objections, the
written objections, your honor. I have –
Very well.
– no further questions, thank you.
The objections that you call my attention to are overruled.
All right, any closing argument?
(Tr. at 57-58).
Plaintiff’s counsel asked the source of the vocational expert’s job numbers. (Tr. at 58).
The vocational expert responded SkillTran. (Id.). Plaintiff’s counsel then asked the vocational
expert how SkillTran arrives at its numbers. (Id.). The ALJ foreclosed that inquiry. (Id.). The
Court recognizes that when a vocational expert testifies as to the source or sources of his
7
estimates for jobs, a vocational expert is not required to “provide a comprehensive statistical
explanation of how he arrived” at the number of jobs in the national economy that a plaintiff is
able to perform. See Pena v. Comm’r of Soc. Sec., 489 F. App’x 401, 402 (11th Cir. 2012); see
also Bryant v. Comm’r of Soc. Sec., 451 F. App’x 838, 839 (11th Cir. 2012) (after vocational
expert testifies that she based her opinion on census figures, state information, labor market
surveys, and job analyses, she was not required to provide detailed reports or statistics and the
ALJ is permitted to rely on her opinion).
In this case, however, Plaintiff also argues that the vocational expert’s sole reliance on
SkillTran does not constitute substantial evidence such that an ALJ may rely on that information.
(See Doc. 21 at 16). In making this argument, Plaintiff relies upon Thompson v. Comm’r of Soc.
Sec., No. 2:15-CV-53-FTM-CM, 2016 WL 1008444, at *1 (M.D. Fla. Mar. 15, 2016). (Doc. 21
at 16). In Thompson, the plaintiff sought judicial review of the denial of her claim for Social
Security disability insurance benefits and supplemental security income. Id. The District Court
held, inter alia, that when a vocational expert relies solely on a computer-based program such as
SkillTran to determine whether jobs exist in significant numbers in the national economy and
does not endorse those numbers based on her knowledge and expertise, then the vocational
expert’s testimony is unreliable. Thompson, 2016 WL 1008444, at *6; see also Hancock v.
Comm’r of Soc. Sec., No. 6:15-CV-206-ORL-DNF, 2016 WL 4927642, at *4 (M.D. Fla. Sept.
16, 2016).
Here, the vocational expert testified that he relied on SkillTran as the sole source of his
information to determine whether there were a significant number of jobs in the national
economy that Plaintiff could perform. (Tr. at 58). The ALJ then foreclosed further inquiry on
the source of these statistics. (Id.). The record in unclear, however, as to whether the ALJ would
8
have allowed Plaintiff’s counsel to ask additional questions regarding the vocational expert’s
testimony as to the number of jobs in the national economy – not related to how SkillTran
derived its number – or if any further inquiry on that point was also foreclosed.
Nonetheless, the ALJ ultimately relied on the vocational expert’s testimony in the
decision. (See id. at 27). Such reliance on SkillTran alone without the vocational expert’s
endorsement of the resulting numbers based on the vocational expert’s knowledge and
experience is unreliable. See Thompson, 2016 WL 1008444, at *6. The Court finds that the ALJ
erred in relying on the vocational expert’s testimony as to the number of jobs in the national
economy based solely on SkillTran. See Thompson, 2016 WL 1008444, at *6. To be clear, the
Court finds that the ALJ did not err in foreclosing Plaintiff’s representative from further inquiry
as to how SkillTran derives it numbers. The Court finds that the ALJ did err, however, by failing
to elicit testimony from the vocational expert as to whether – based on the vocational expert’s
knowledge and experience – the vocational expert endorsed SkillTran’s job numbers. See Pena,
489 F. App’x at 402; Thompson, 2016 WL 1008444, at *1. Therefore, the ALJ’s decision was
not supported by substantial evidence as to the number of jobs in the national economy that
Plaintiff is able to perform.
B.
Whether the ALJ Erred in Precluding Plaintiff from Addressing the Conflict
Between the Vocational Expert’s Testimony and the DOT.
Plaintiff argues that even though the vocational expert claimed that his testimony did not
conflict with the DOT, his testimony did in fact conflict. (Doc. 21 at 12). Specifically, Plaintiff
argues that the jobs of stuffer and atomizer assembler both have a reasoning level of 2 in the
DOT whereas the vocational expert testified that these jobs have a reasoning level of 1. (Id.).
Plaintiff claims that a reasoning level of 1 corresponds to the limitations in the ALJ’s
hypothetical for an individual who is able to understand, remember, and carry out short simple
9
instructions and a reasoning level of 2 exceeds this individual’s capabilities. (Id. at 12-13).
Further, Plaintiff argues that the requirements for reasoning level 2 jobs – of being able to follow
written instructions – contradicts the hypothetical posed to the vocational expert in that the ALJ
limited the individual to a person who is not able to read and write. (Id.).
The Commissioner responds that even if there is a conflict, the vocational expert’s
testimony trumps the DOT and remand serves no purpose. (Doc. 23 at 8-9).
At step five of the sequential evaluation, the ALJ must determine whether jobs exist in
significant numbers in the national economy that a plaintiff can perform. Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). “The general rule is that after determining the
claimant’s RFC and ability or inability to return to past relevant work, the ALJ may use the grids
to determine whether other jobs exist in the national economy that a claimant is able to perform.”
Phillips v. Barnhart, 357 F.3d 1232, 1242 (11th Cir. 2004). An ALJ may use the Medical
Vocational Guidelines or may obtain the testimony of a vocational expert to determine whether
there are jobs that exist in the national economy that a claimant can perform. Winschel, 631 F.3d
at 1180. If the ALJ decides to use a vocational expert, for the vocational expert’s opinion to
constitute substantial evidence, “the ALJ must pose a hypothetical question which comprises all
of the claimant’s impairments.” Id. (citing Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002)).
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 . . . evidence and information provided in the DOT. In these
situations, the adjudicator will:
Ask the VE . . . if the evidence he or she has provided conflicts with information
provided in the DOT; and
10
If the VE’s . . . evidence appears to conflict with the DOT, the adjudicator will
obtain a reasonable explanation for the apparent conflict.
SSR 00-4p, 2000 WL 1898704, at *4, Dec. 4, 2000.
In this case, the ALJ limited Plaintiff to jobs where he could understand, remember, and
carry out short and simple instructions and was further limited to making judgments on simple
work-related decisions. (Tr. at 23). The ALJ included these limitations in the hypothetical to the
vocational expert. (Id. at 54-55). With these limitations, the vocational expert found that
Plaintiff was capable of performing work as a puller/turner; blower/stuffer; and small
assembler/atomizer assembler. (Id. at 55-56). Further, at the outset of the hearing, the ALJ
specifically asked that the vocational expert’s testimony be consistent with the DOT unless the
vocational expert indicated otherwise. (Id. at 39). The vocational expert agreed. (Id.). Thus,
the ALJ complied with SSR 00-4p.
Even though the ALJ did not err in relying on the vocational expert’s testimony regarding
reasoning levels and literacy, the issue becomes whether this action should be remanded due to
the vocational expert misleading the ALJ as to the reasoning levels of two jobs. It is undisputed
that the vocational expert mistakenly testified that all three jobs had a reasoning level of one, but
in actuality two of the three jobs had a higher reasoning level. (Tr. at 57; Doc. 23 at 8). The
vocational expert correctly identified the job of “puller through or a turner in the textile garment
manufacturing industry” as having an SVP of 1 and a reasoning level of 1. (See id. at 55, 57).
By testifying correctly as to one job, the Court considers whether the vocational expert’s mistake
was harmless error. Upon consideration, the Court finds it is not. First, the ALJ relied on the
vocational expert’s mistaken testimony to reach his decision and the Court cannot know how
important this testimony was to the ALJ’s final decision. See Akins v. Comm’r of Soc. Sec., No.
608-CV-1575-ORL-DAB, 2009 WL 2913538, at *7 (M.D. Fla. Sept. 10, 2009). Second, as
11
stated above, the Court finds that this case must be remanded on other grounds. Accordingly, the
Court finds it appropriate to remand this action to allow a vocational expert to properly testify as
to the reasoning level of the jobs that Plaintiff may be able to perform.
C.
Whether the ALJ Erred in Failing to Include in Plaintiff’s RFC Limitations
Based on Plaintiff’s Anxiety, Sleep Disturbance, Scoliosis, Reported
Aneurysms, and Heart Murmur.
Plaintiff contends that the ALJ failed to include in Plaintiff’s RFC limitations for his
anxiety, sleep disturbance, scoliosis, reported aneurysms, and heart murmur. (Doc. 21 at 19).
Plaintiff cites to the record to show that Plaintiff was diagnosed with these impairments. (Id. at
19-20).
The Commissioner responds that the ALJ included all of Plaintiff’s functional limitations
in the RFC and, further, Plaintiff failed to show that even if he was diagnosed with these
impairments, these impairments caused additional functional limitations. (Doc. 23 at 9-10).
“The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite his impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). An individual’s RFC is his ability to do
physical and mental work activities on a sustained basis despite limitations secondary to his
established impairments. Delker v. Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla.
2009). In determining a claimant’s RFC, the ALJ must consider all of the relevant evidence of
record. Barrio v. Comm’r of Soc. Sec., 394 F. App’x 635, 637 (11th Cir. 2010). However, the
Eleventh Circuit has consistently held that “the claimant bears the burden of proving that [he] is
disabled, and consequently, [he] is responsible for producing evidence in support of [his] claim.”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
12
Here, the ALJ considered Plaintiff’s diagnoses of anxiety, sleep disturbance, and scoliosis
in the decision. (See Tr. at 21, 25). Specifically the ALJ noted that Plaintiff reported that his
mood was anxious and he complained of insomnia in December 2012. (Id. at 25). Further, the
ALJ noted that Plaintiff reported he was more anxious and suffered from erratic sleep patterns
and sleep disturbance in April 2013. (Id.). The ALJ considered references in the record to
Plaintiff’s scoliosis, but concluded that overall the medical records indicate that this condition
was non-severe based upon x-rays failing to show any acute abnormalities and Plaintiff never
receiving treatment for this impairment. (Id. at 21, 25). The ALJ did not mention Plaintiff’s
reported aneurysms or heart murmur. (Doc. 21 at 20).
Although Plaintiff argues that the ALJ erred in failing to include diagnoses for anxiety,
sleep disturbance, scoliosis, reported aneurysms, and heart murmur in the RFC, a “diagnosis . . .
is insufficient to establish that a condition caused functional limitations.” Wood v. Astrue, 2012
WL 834137, at *5 (M.D. Fla. Feb. 14, 2012) (citing Moore v. Barnhart, 405 F.3d 1207, 1213 n.6
(11th Cir. 2005)). Plaintiff fails to meet his burden of showing that these impairments cause
functional limitations above and beyond those assessed by the ALJ or cause or worsen his
identified functional limitations. See Ellison, 335 F.3d at 1276; Packer v. Comm’r, Soc. Sec.
Admin., 542 F. App’x 890, 892 (11th Cir. 2013). Therefore, the Court finds that the ALJ did not
err in failing to include Plaintiff’s diagnoses of anxiety, sleep disturbance, scoliosis, reported
aneurysms, and heart murmur in Plaintiff’s RFC. However, because the Court finds remand
appropriate on other grounds, the Court will direct the Commissioner to address Plaintiff’s
anxiety, sleep disturbance, scoliosis, reported aneurysms, and heart murmur on remand.
13
D.
Whether the ALJ Erred in Finding a Significant Number of Jobs in the
National Economy that Plaintiff Could Perform for an Individual Who
Cannot Read or Write
Plaintiff states that the ALJ found Plaintiff to be illiterate and then argues that this finding
precludes Plaintiff from being able to perform all of the jobs identified by the vocational expert.
(Doc. 21 at 21). Specifically, Plaintiff argues that these jobs require an individual to be able to:
(1) recognize the meaning of 2,500 words; (2) read at a rate of 95-120 words per minute; (3)
print simple sentences containing subject, verb, and object; (4) and write a series of numbers,
names, and addresses. (Id.). Plaintiff contends that based upon the ALJ’s finding that Plaintiff is
illiterate, he is unable to perform any of the jobs identified by the vocational expert. (Id.). The
Commissioner argues that the vocational expert testified that none of the positions he identified
required an individual to be able to read to perform the job and, thus, Plaintiff is able to perform
these jobs. (Doc. 23 at 11-12).
At step five of the sequential evaluation, the ALJ must determine whether jobs exist in
significant numbers in the national economy that a plaintiff can perform. Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). An ALJ may use the Medical Vocational
Guidelines or may obtain the testimony of a vocational expert to determine whether there are
jobs that exist in the national economy that a claimant can perform. Winschel, 631 F.3d at 1180.
If the ALJ decides to use a vocational expert, for the vocational expert’s opinion to constitute
substantial evidence, “the ALJ must pose a hypothetical question which comprises all of the
claimant’s impairments.” Id. (citing Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)).
At the hearing, the ALJ included in the hypothetical that the individual could not read and
write. (Tr. at 54). Later, the vocational expert specifically addressed the issue of literacy as it
relates to these jobs. (Id. at 57-58). The vocational expert testified that these jobs are “not
14
reading jobs. They’re basically strictly show the person how to do it, they can do it.” (Id. at 57).
Thus, the vocational expert explained that the jobs identified did not require a reading level
above Plaintiff’s ability and the Court finds that the ALJ did not err in relying on this portion of
the vocational expert’s opinion. Nonetheless, because the Court is remanding this case on other
issues, the Court will direct the Commissioner to reconsider Plaintiff’s inability to read and write
at step five.
E.
Whether the ALJ Erred in Failing to Pose a Complete Hypothetical
Plaintiff argues that the ALJ failed to include Plaintiff’s anxiety, sleep disturbance,
scoliosis, reported aneurysms, and heart murmur in the hypothetical question to the vocational
expert. (Doc. 21 at 22). The Commissioner responds that the ALJ’s hypothetical included all of
Plaintiff’s limitations. (Doc. 23 at 9-11). As stated above, the Court finds that the ALJ did not
err in failing to include further limitations in the RFC for Plaintiff’s anxiety, sleep disturbance,
scoliosis, reported aneurysms, and heart murmur. Thus, the ALJ is not required to include
findings in the hypothetical that the ALJ found to be unsupported by the record. See Lee v.
Comm’r of Soc. Sec., 448 F. App’x 952, 953 (11th Cir. 2011) (citing Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004)). Consequently, the Court finds that the ALJ did
not err in failing to include Plaintiff’s anxiety, sleep disturbance, scoliosis, reported aneurysms,
and heart murmur in the hypothetical to the vocational expert. Again, because this case is being
remanded for other issues, the Court directs the Commissioner to reconsider any hypothetical
posed to a vocational expert.
15
III.
Conclusion
Upon consideration of the submission of the parties and the administrative record, the
Court finds that the decision of the Commissioner is not supported by substantial evidence as to
the number of jobs that Plaintiff is able to perform in the national economy.
IT IS HEREBY ORDERED:
(1)
The decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g) for the Commissioner to:
a)
properly consider the evidence concerning the number of jobs Plaintiff is
able to perform;
b)
reconsider the reasoning level of the jobs that Plaintiff is able to perform
and any inconsistency between the vocational expert’s testimony and the
DOT;
c)
reconsider limitations as to Plaintiff’s anxiety, sleep disturbance, scoliosis,
reported aneurysms, and heart murmur in Plaintiff’s RFC and in any
hypothetical posed to a vocational expert; and
d)
further consider Plaintiff’s illiteracy when determining if jobs exist that
Plaintiff is able to perform.
(2)
If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order
(Doc. 1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.
(3)
The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.
16
DONE AND ORDERED in Fort Myers, Florida on September 26, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
17
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