Peterson v. Commissioner of Social Security

Filing 23

OPINION AND ORDER accepting and adopting 19 Report and Recommendations; overruling 20 Objections; affirming the Decision of the Commissioner of Social Security. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 11/16/2020. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RODNEY T. PETERSON,
Plaintiff,
v.

Case No:

COMMISSIONER
SECURITY,

OF

2:19-cv-566-FtM-29NPM

SOCIAL

Defendant.
OPINION AND ORDER
This

matter

is

before

the

Court

on

consideration

of

Magistrate Judge Nicholas P. Mizell’s Report and Recommendation
(Doc. #19), filed on September 25, 2020, recommending that the
Decision

of

the

Commissioner

be

affirmed.

Plaintiff

filed

Objections to the United States Magistrate Judge’s Report and
Recommendation (Doc. #20) on October 9, 2020, and a Notice of
Correction (Doc. #22) on November 13, 2020.
filed a Response (Doc. #21) on October 23, 2020.

The Commissioner
For the reasons

set forth below, the objections are overruled and the Decision of
the Commissioner is affirmed.
I.
The Court adopts and incorporates in full the portions of the
Report and Recommendation discussing eligibility under the Social
Security Act, the procedural history of the case, the summary of

the Administrative Law Judge’s (ALJ) Decision, the outline of the
issues, and the discussion of the standards of review. (Doc. #19,
pp. 1-6.)
At Step Four of the familiar five-step evaluation process,
the ALJ determines a claimant’s “residual functional capacity”
(RFC).

RFC “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).

Here, the ALJ found that plaintiff had the RFC to

perform “light work”, but with thirteen (13) restrictions:
claimant has the residual functional capacity
to perform light work as defined in 20 [C.F.R.
§] 416.967(b) except he can perform no more
than frequent forward reaching with the left
upper extremity, and no overhead reaching with
the left upper extremity. The claimant can
only frequently, as opposed to constantly,
stoop; only occasionally balance, kneel,
crawl, and climb ramps or stairs; and never
crouch or climb ladders, ropes, or scaffolds.
The claimant must also avoid concentrated
exposure to extreme cold, wetness, vibration,
and workplace hazards, including dangerous
moving machinery and unprotected heights.
Additionally, the claimant is limited to
performing simple, routine, repetitive tasks
that do not involve reading over the fourth
grade level. The claimant can have no more
than occasional interaction with supervisors,
coworkers, and the general public. The
claimant can also tolerate no more than
occasional
work
setting
or
process
adjustments.

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(Tr. 19).

With this RFC, the ALJ determined plaintiff could not

perform his “past relevant work,” and therefore proceeded to Step
Five.
At Step Five, the burden of going forward shifts to the
Commissioner to show that significant numbers of other jobs exist
in the national economy which the claimant can perform given his
RFC.

To make this showing, the Commissioner may take judicial

notice of jobs data from certain sources, including the Department
of Labor’s Dictionary of Occupational Titles (DOT), or may use the
services of a vocational expert or other specialist, or both. 1
Sometimes, there is an apparent conflict between the DOT and the
testimony of a vocational expert.

When this occurs, there is “an

affirmative duty on the ALJs to identify apparent conflicts, ask
the VE about them, and explain how the conflict was resolved in
the ALJ’s final decision.”

Washington v. Comm'r of Soc. Sec., 906

F.3d 1353, 1365 (11th Cir. 2018).
Here, the ALJ relied upon the testimony of a vocational expert
and the DOT at Step Five of the sequential evaluation.
found that

three

jobs

existed

in

significant

numbers

The ALJ
in

the

national economy which plaintiff could perform - marker, cleaner,

1

Although not relevant here, in some cases the Commissioner
may also rely on the Medical Vocational Guidelines.

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and

advertising

distributor.

The

ALJ

therefore

determined

plaintiff was not under a disability as of the pertinent date.

In

due course, this became the final Decision of the Commissioner.
II.
Plaintiff

raised

Commissioner’s

three

Decision,

grounds

each

for

relating

reversal

either

to

of

the

the

RFC

determination or the failure to comply with Washington.

The

Magistrate Judge ruled against plaintiff on each claim of error,
and recommended that the decision of the Commissioner be affirmed.
Plaintiff filed specific objections as to each ruling and the
recommendation,

and

issues de novo.

therefore

the

district

court

reviews

the

28 U.S.C. § 636(b)(1) (“A judge of the court

shall make a de novo determination of those portions of the report
or

specified

proposed

findings

or

recommendations

to

which

objection is made.”).
A. Failure to Resolve Conflicts Between DOT and VE
Plaintiff argues that there were apparent conflicts between
the testimony of the vocational expert and the DOT requirements
for each of the three jobs the ALJ concluded plaintiff could
perform.

Despite these apparent conflicts, plaintiff asserts, the

ALJ failed to fulfill the affirmative obligations imposed by
Washington, 906 F.3d at 1365, and therefore the Commissioner’s

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Decision is not supported by substantial evidence.

The Court

addresses each job.
(1)

Cleaner, Housekeeper

The

DOT’s

classification

of

the

relevant

“cleaner,

housekeeper” job, DOT 323.687-014, provides that “crouching” is
“occasionally” required.
of

the

RFC

Plaintiff

restrictions

asserts

there

(Tr. 409.)
determined
was

a

But “never crouch” was one
by

the

conflict

ALJ.

between

(Tr.
the

19.)
DOT’s

“occasional” crouching requirement and the vocational expert’s
testimony that plaintiff could work as a cleaner despite an RFC
restriction that he could “never crouch.”

This apparent conflict

required the ALJ to comply with the Washington obligations, which
was not done.
There

was

certainly

an

inconsistency

between

the

DOT

requirement and the vocational expert’s testimony, and the ALJ did
not address or resolve this inconsistency.

The Magistrate Judge

found, however, that
any
failure
to
resolve
this
apparent
inconsistency between the vocational expert
and the DOT is harmless because there is no
apparent and unresolved conflict concerning
the
other
representational
occupations
identified by the expert. Wooten v. Comm’r of
Soc. Sec., 787 F. App’x 671, 674 (11th Cir.
2019) (holding that even if there had been an
inconsistency between the vocational expert’s
testimony and the DOT, the ALJ’s error was
harmless when the vocational expert identified

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other jobs existed in significant numbers in
the national economy Plaintiff could perform)
(Doc. #19, pp. 8-9.)

The Commissioner’s Response does not assert

that cleaner is a job which plaintiff can perform, relying only on
marker and advertising distributer.
Eleventh

Circuit

has

previously

(Doc. #21, p. 4.)

applied

the

doctrine in social security disability cases.

The

harmless-error

Zoslow v. Comm'r

of Soc. Sec., 778 F. App’x 762, 764 (11th Cir. 2019) (citing Diorio
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).

The harmless

error finding is only accurate, however, if there was no reversible
error as to the marker and advertising distributer jobs.

For the

reasons

errors.

set

forth

below,

the

Court

finds

no

such

Therefore, the Court determines that the failure to resolve the
apparent

conflict

as

to

the

cleaner

job

was

harmless

error.

Plaintiff’s objection is overruled.
(2)

Marker

The DOT’s classification of the “marker” job, DOT 209.587034, requires a reasoning level of 2.

A GED reasoning level of

two requires the ability to “[a]pply commonsense understanding, to
carry out detailed but uninvolved written [or] oral instructions.
Deal with problems involving a few concrete variables in or from
standardized situations.” (Tr. 386.) The RFC determined by the ALJ
limited

plaintiff

to

performing

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“simple,

routine,

repetitive

tasks.” (Tr. 19.)
requires

more

Plaintiff asserts that a reasoning level of 2

than

the

ability

to

perform

“simple,

routine,

repetitive tasks,” resulting in conflict between the DOT and the
vocational expert’s testimony that plaintiff could work as a
marker.

As a result, plaintiff argues, this conflict required the

ALJ to fulfill the Washington obligations, which was not done.
The Magistrate Judge found there was no conflict between
reasoning level 2 and performing “simple, routine, repetitive
tasks,”

and

therefore

the

Washington

obligations

triggered.
As for the purported conflict between an RFC
limitation to simple, routine, repetitive
tasks, and the DOT’s description of jobs
within the occupation of marker as having a
Level 2 reasoning classification—which means
the jobs entail applying common sense to carry
out detailed but uninvolved instructions, and
dealing with a few concrete variables in
standardized situations—the Eleventh Circuit
has examined this contention and found no
conflict. See Valdez v. Comm’r of Soc. Sec.,
— F. App’x —, No. 19-13052, 2020 WL 1951406,
*3 (Apr. 23, 2020) (jobs with a DOT Level 2
reasoning are not inconsistent with an RFC
limitation to simple, routine, and repetitive
work); see also Lawrence v. Saul, 941 F.3d
140, 144 n.8 (4th Cir. 2019) (joining “every
other circuit to consider the issue” and
finding no apparent conflict between “simple,
routine, repetitive” and Level 2 reasoning).
(Doc. #19, p. 8.)

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were

not

Plaintiff argues that Valdez was simply dicta, and that the
more recent Albra v. Acting Comm'r of Soc. Sec., 825 F. App’x 704,
708

(11th

conflict.

Cir.

2020)

supports

the

existence

of

an

apparent

The Commissioner responds that Valdez was not dicta,

citing a Middle District of Florida opinion finding it to be a
holding, and that Albra is “unavailing.”
Valdez

and

Unpublished

Albra

are

opinions

unpublished
are

not

(Doc. #21, p. 4.)

Eleventh

controlling

Circuit

Both

opinions.

authority,

persuasive only insofar as their legal analysis warrants.

and

are

United

States v. Rodriquez–Lopez, 363 F.3d 1134, 1138 n.4 (11th Cir.
2004).
An

“apparent

conflict”

is

one

“that

is

reasonably

ascertainable or evident from a review of the DOT and the VE's
testimony.” Washington, 906 F.3d at 1365.

“At a minimum, a

conflict is apparent if a reasonable comparison of the DOT with
the VE's testimony suggests that there is a discrepancy, even if,
after further investigation, that turns out not to be the case.”
Id. “The failure to properly discharge this duty means the ALJ's
decision is not supported by substantial evidence.” Id. at 1362.
In the absence of binding authority, the Court finds Lawrence and
the cases cited therein to be persuasive.

There were no “apparent

conflict” between a GED Reasoning Level of 2 and the ability to

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perform “simple, routine, and repetitive tasks.”

Therefore, the

Court overrules plaintiff’s objection.
(3)

Advertising Distributor

The DOT’s definition of an advertising material distributor
is

one

who

“[d]istributes

advertising

material,

such

as

merchandise samples, handbills, and coupons, from house to house,
to business establishments, or to persons on the street, following
oral instructions, street maps, or address lists.”
010; Tr. 421.
weather

is

DOT 230.687-

Plaintiff argues that this constant exposure to

inconsistent

with

the

RFC’s

limitation

to

“avoid

concentrated exposure to extreme cold [or] wetness.” (Tr. 19.)
This conflict, plaintiff argues, required the ALJ to comply with
the Washington obligations, which was not done.
The Magistrate Judge found no apparent conflict, stating
a review of the DOT’s occupational definition
reveals that “extreme cold,” “wet and/or
humid,” and “exposure to weather” are three
separate characteristics among many (such as
noise, vibration, radiation, electric shock,
and others), and that the DOT classifies both
extreme cold and wetness as conditions that do
not exist for jobs within this occupation. DOT
230.687-010, 1991 WL 672162. This conveys that
cold or wet conditions refer to something
other than weather-related conditions, and so
there is no conflict between the DOT and the
RFC concerning this occupation.
(Doc. #19, pp. 7-8.)

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While an advertising material distributor by definition has
constant exposure to weather, such exposure is not apparently
inconsistent

with

exposure

extreme

to

the

RFC
cold

limitation
[or]

to

“avoid

wetness.”

concentrated

DOT

230.687.010

specifically states that the job does not involve extreme heat,
wet and/or humid conditions, vibration, or atmospheric conditions.
(Tr. 424.)

The vocational expert did not disagree.

The ALJ’s

hypothetical question included avoiding concentrated exposures to
extremes

of

cold,

wetness,

vibration,

and

hazards,

and

the

vocational expert included advertising material distributor as
such a job.

(Doc. #14-3, Tr. 100-01.)

The Court finds there is

no conflict between the DOT requirements and the testimony of the
vocational

expert,

and

therefore

plaintiff’s

objection

is

overruled.
B. Lack of Spelling Ability As RFC Component
Plaintiff asserts that the ALJ erred by not including a lessthan-kindergarten-equivalent
determination

and

vocational expert.

the

spelling

hypothetical

limitation
questions

in
posed

the

RFC

to

the

Based on this omission, plaintiff asserts that

the ALJ’s RFC and Step Five determinations are not supported by
substantial evidence.

(Doc. #20, pp. 4-5.)

The Magistrate Judge stated:

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In light of the overall record, the omission
of a spelling limitation to the less than
kindergarten level does not render either the
RFC or the vocational expert’s testimony
unsupported by substantial evidence. Indeed,
that indication was contradicted by the
finding that Plaintiff could read at a fourthgrade level, his obtaining an IQ score of 93
when in the fifth grade, and his attending
school through at least the tenth grade. (Tr.,
p. 20). And as the ALJ summarized, “the record
is
replete
with
observations
from
[Plaintiff’s]
treating
and
examining
providers noting . . . average apparent
intellect” (Id., p. 25). Further, because it
was consistent with the medical evidence and
the record as a whole, the ALJ appropriately
gave great weight to the psychological
consultant’s
conclusion
that
Plaintiff
retained the capacity “to meet the mental
demands of a simple vocation on a sustained
basis.” (Id., p. 26). On balance, a spelling
limitation to less than kindergarten level
appears unsupported by the record.
Even if a spelling limitation should have been
included in either the RFC or the hypothetical
posed to the vocational expert, any error was
harmless and the ALJ’s step-five determination
remains supported by substantial evidence for
two reasons. First, the job descriptions for
the representative occupations identified by
the vocational expert do not suggest that any
particular level of spelling ability is
required.
For
instance,
the
advertising
distributor jobs do not entail drafting or
composing any advertising material, but only
distributing material prepared by others. DOT
230.687-010, 1991 WL 672162. And markers
generally attach price tickets to articles of
merchandise. DOT 209.587-034, 1991 WL 671802.
Second, Plaintiff has not demonstrated that
any spelling limitation would somehow reduce
the number of jobs otherwise available to him
in these or similar occupations to something

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less than a significant number. See Washington
v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359
(11th Cir. 2018) (finding that if at step
five, the Commissioner meets the burden of
showing jobs exist in significant numbers in
the national economy, “the burden shifts back
to the claimant to prove she is unable to
perform
the
jobs
suggested
by
the
[Commissioner].” (citation omitted)).
(Doc. #19, pp. 11-12.)
Plaintiff relies on the November 2017 report of clinical
psychologist

Mabel

Lopez,

Ph.D.,

which

reported

kindergarten level for spelling and math. 2

a

less

than

Plaintiff asserts that

this required the ALJ to include a spelling limitation in the RFC
and the questions to the vocational expert.
While there is record-evidence which could support such a
limitation, the issue is whether there is substantial evidence to
support the ALJ’s failure to include the spelling limitation in
the

RFC

determination

vocational expert.

and

the

hypothetical

questions

to

the

The issue is not whether there is some evidence

which would support such a spelling limitation, but whether there
was substantial evidence supporting the ALJ’s determination to
omit such a limitation.

The Court does not reweigh the evidence

or substitute its own judgment for that of the Commissioner “If
the Commissioner's decision is supported by substantial evidence

2

Plaintiff has not filed an objection to the Magistrate
Judge’s treatment of the math level.

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we must affirm, even if the proof preponderates against it.”

Miles

v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
The Court agrees with the Magistrate Judge that there was
substantial evidence to support the failure to include a spelling
limitation in the RFC and the questions to the vocational expert.
Additionally, the Court agrees that even if such a limitation was
required,

its

omission

in

this

case

was

harmless

error.

Therefore, plaintiff’s objection is overruled.
C. “Limited” Education or Functionally Illiterate?
Plaintiff argues that the ALJ’s finding that plaintiff has a
“limited” education is not supported by substantial evidence.
Plaintiff

asserts

Kindergarten
illiterate.
The

that

level

an

ability

suggests

that

to

spell

at

plaintiff

is

less

than

a

functionally

(Doc. #20, pp. 5-6.)

Magistrate

Judge

summarized

plaintiff’s

argument

follows:
Plaintiff argues the ALJ erred in finding
Plaintiff had a limited education and should
have
found
Plaintiff
illiterate
or
functionally illiterate. (Doc. 18, pp. 28-29).
Plaintiff relies on Dr. Lopez’s finding
Plaintiff has a 6.5 grade equivalent for word
reading, 4.6 grade equivalent for sentence
comprehension,
less
than
a
kindergarten
equivalent for spelling and math, and a 4.6
grade equivalent for a composite reading
score. (Id.).

- 13 -

as

(Doc. #19, p. 13.)

The Magistrate Judge then correctly set forth

the regulatory definition of illiteracy:
Under the regulations, “[i]lliteracy means the
inability to read or write. We consider
someone illiterate if the person cannot read
or write a simple message such as instructions
or inventory lists even though the person can
sign his or her name. Generally, an illiterate
person has had little or no formal schooling.”
20 C.F.R. § 1564(b)(1).
(Doc. #19, pp. 13-14.)
In evaluating a claimant's education, formal schooling or
training is the primary factor, but the ALJ may also consider past
work

experience

and

responsibilities,

daily

activities,

and

hobbies. 20 C.F.R. §§ 404.1564(a), 416.964(a). “The term education
also includes how well [the claimant] is able to communicate in
English.”

Thomas v. Comm'r of Soc. Sec., 497 F. App'x 916, 918

(11th Cir. 2012) (citing Id. at §§ 404.1564(b), 416.964(b)). A
claimant who is determined to have a “limited education” has
“ability in reasoning, arithmetic, and language skills, but not
enough to . . . do most of the more complex job duties needed in
semi-skilled

or

skilled

jobs.”

Id.

at

§§

404.1564(b)(3),

416.964(b)(3).
The Magistrate Judge concluded that there was substantial
evidence supporting the ALJ’s limited education finding.

The

evidence showed plaintiff can read at the 4th grade level; can read

- 14 -

and understand English and write more than his name in English;
and engaged “in several activities that demonstrate his capacity
to

read,

write,

follow

instructions

and

perform

basic

math

calculations, including driving, riding a motorcycle, preparing
meals and doing laundry.”

(Doc. #19, p. 14.)

The ALJ also

considered plaintiff’s full-scale IQ score of 63 in November 2017,
and the prior IQ of 93; that plaintiff left school after completing
the Tenth Grade with mostly D and F grades; that plaintiff reported
significant challenges and limitations in reading and writing
(id., Tr. 19-20); the consultative examination by Dr. Kasprzak as
to plaintiff’s intellectual ability in the intellectual disorder
range (id., Tr. 23); and the evaluation of Dr. Lopez (id., Tr.
24).

The

support

Court

the

concludes

finding

of

there
a

was

limited

substantial
education.

evidence

to

Therefore,

Plaintiff’s objection is overruled.
Accordingly, it is now
ORDERED:
1.

The Report and Recommendation (Doc. #19) is accepted and

adopted by the Court as set forth above.
2.

Plaintiff's Objections (Doc. #20) are OVERRULED.

3.

The Decision of the Commissioner of Social Security is

affirmed.

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4.

The Clerk of the Court shall enter judgment accordingly

and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of November, 2020.

Copies:
Hon. Nicholas P. Mizell
U.S. Magistrate Judge
Counsel of Record

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16th

day