Herring v. Commissioner of Social Security

Filing 23

OPINION AND ORDER affirming the Commissioner's decision. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 2/14/2018. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ANGELA HERRING,
Plaintiff,
v.

CASE NO. 3:16-cv-1470-J-MCR

ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and disability insurance
benefits (“DIB”). Plaintiff alleges she became disabled on November 1, 2012.
(Tr. 177.) A hearing was held before the assigned Administrative Law Judge
(“ALJ”) on June 4, 2015, at which Plaintiff was represented by an attorney. (Tr.
53-83.) The ALJ found Plaintiff not disabled from November 1, 2012 through
June 29, 2015, the date of the decision.2 (Tr. 15-27.)
In reaching the decision, the ALJ found that Plaintiff had “the following
severe impairments: disorders of the spine; anxiety disorder;
fibromyalgia/inflammatory arthritis; osteoarthritis; migraine headaches; disorders
1

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 12, 14.)
2

Plaintiff had to establish disability on or before September 30, 2017, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 15.)

of the left shoulder; neuropathy; and carpal tunnel syndrome [status post] leftsided surgical release.” (Tr. 17.) The ALJ then found that Plaintiff had the
residual functional capacity (“RFC”) to perform a reduced range of light work. (Tr.
19-20.) Then, after finding that Plaintiff was unable to perform her past relevant
work, the ALJ concluded that Plaintiff could perform other jobs existing in
significant numbers in the national economy. (Tr. 25-26.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from November 1, 2012 through June 29, 2015. Plaintiff has exhausted
her available administrative remedies and the case is properly before the Court.
The Court has reviewed the record, the briefs, and the applicable law. For the
reasons stated herein, the Commissioner’s decision is AFFIRMED.
I.

Standard of Review

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
2

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 v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.

Discussion3
A.

The ALJ Properly Evaluated Dr. Rocha’s Opinions

Plaintiff’s first argument is that the ALJ’s RFC finding is deficient as a
matter of law because it does not accurately describe all of Plaintiff’s impairments
and limitations. Specifically, Plaintiff argues that the ALJ failed to consider the
seven consistent opinions of her treating physician, Lily Rocha, M.D., regarding
her work-related limitations, which were issued on February 22, 2013, May 27,
2013, June 21, 2013, July 19, 2013 (three separate opinions), and September 16,
2013. Plaintiff points out that each of Dr. Rocha’s opinions establishes that
Plaintiff is unable to sit, stand, and walk, in combination, for the duration of an
eight-hour workday due to her physical impairments, that she is limited to no

3

Plaintiff raises two issues on appeal, which the Court addresses in reverse

order.
3

more than sedentary lifting and carrying requirements, and that she would be
absent from work over two days a month. Plaintiff argues that the ALJ failed to
provide good/specific/supported reasons for assigning very limited weight to Dr.
Rocha’s opinions as to Plaintiff’s physical limitations. Plaintiff asserts that the
ALJ failed to address the § 404.1527 factors when weighing Dr. Rocha’s opinions
and considered the subject opinions in isolation from each other. At the same
time, Plaintiff asserts that the ALJ did not address each opinion individually as he
should have, given that the opinions are premised on different impairments.
Plaintiff further argues that the ALJ erred in his evaluation of Dr. Rocha’s opinions
with respect to Plaintiff’s mental limitations. Plaintiff explains that despite giving
these opinions great weight, the ALJ failed to incorporate them into the RFC
finding or explain why they were excluded therefrom. According to Plaintiff, the
ALJ gave great weight to Dr. Rocha’s opinion that Plaintiff would be absent from
work more than two days a month, but failed to incorporate this opinion in his
findings without an explanation.
Defendant responds that the ALJ properly considered Dr. Rocha’s opinions
in assessing Plaintiff’s RFC. Defendant asserts that substantial evidence
supports the ALJ’s decision to give little weight to Dr. Rocha’s opinions in regards
to Plaintiff’s physical impairments. As to Dr. Rocha’s opinions with respect to
Plaintiff’s mental impairments, Defendant argues that Plaintiff misreads the ALJ’s
decision and that the ALJ properly afforded great weight to Dr. Rocha’s opinion
4

that Plaintiff’s anxiety did not significantly interfere with her functioning.
1.

The ALJ’s Decision

The ALJ determined that Plaintiff has the RFC to perform a reduced range
of light work as follows:
[Plaintiff] needs to be able to perform her tasks in either the seated
or standing position at her option; she needs to avoid ladders or
unprotected heights; she needs to avoid the operation of heavy
moving machinery; she is limited to occasional bending, crouching,
kneeling and stooping; she needs to avoid squatting and crawling;
she needs to avoid the push and pull of arm controls; she needs to
avoid overhead reaching; she needs to avoid the operation of foot
controls; and she needs simple tasks with low stress and no
production line.
(Tr. 19-20.)
In making this determination, the ALJ considered, among others, the
opinions of Dr. Rocha. He noted:
Throughout 2013 and 2014, the claimant followed up with her
primary care physician, Lily Rocha, MD, who prescribed a variety of
medications for the claimant’s impairments, provided referrals to
specialists, and monitored blood work. Dr. Rocha provided
numerous disability opinions, but her treatment notes are
handwritten and include minimal detail or explanation of findings;
therefore, they are less useful than other records (see e.g., Exhibit
29F).
(Tr. 21-22.) The ALJ weighed Dr. Rocha’s opinions as follows:
The numerous and repetitive Medical Source Statements from
treating primary care physician Lily Rocha, MD, are given limited
weight because they indicate fairly extreme limitations that are
largely unsupported by Dr. Rocha’s treatment notes and which
conflict with some of the opinions offered by specialists, including the
claimant’s orthopedist, regarding her ability to perform fine and gross
5

manipulation and overhead reaching. For example, Dr. Rocha
indicates that the claimant cannot perform manipulative motions with
her hands on a sustained basis, which is contrary to the orthopedic
surgeon’s opinion, but Dr. Rocha states that the claimant can reach
overhead 100% of the time, which is contradicted by the evidence
and the claimant’s statements regarding her left shoulder disorder
(Exhibits 4F, 7F-9F, 12F, 14F, 20F and 23F-26F). As such, these
opinions were given very limited weight, and only to the extent that
they were consistent with other medical evidence of record.
Conversely, Dr. Rocha’s opinions regarding the claimant’s anxiety,
namely that it does not significantly interfere with her functioning and
that it would not preclude an ability to perform simple tasks, are
given great weight as they are consistent with the overall medical
evidence of record and with the claimant’s reported symptoms and
conservative treatment (Exhibits 6F, 19F and 30F).
(Tr. 24.)
2.

Dr. Rocha’s Opinions

On February 22, 2013, Dr. Rocha completed a Medical Source Statement
Concerning the Nature and Severity of Plaintiff’s Physical Impairment. (Tr. 28892.) Dr. Rocha opined that in an eight-hour workday, Plaintiff could sit for up to
two hours and stand/walk for up to two hours; she should not sit continuously;
she could lift and carry 10 pounds occasionally and never 20 pounds; she had
significant limitations in doing repetitive reaching, handling, fingering, or lifting;
her condition interfered with the ability to keep her neck in a constant position;
she could not do a full time competitive job requiring activity on a sustained basis;
she should not push, pull, or bend; emotional factors contributed to the severity of
her symptoms; she was incapable of low stress jobs; and she would be absent

6

from work two or three times per month as a result of her impairments. (Tr. 28992.) Dr. Rocha’s prognosis was poor. (Tr. 288.) As a basis for her conclusions,
Dr. Rocha cited Plaintiff’s pain, which caused severe discomfort and stress. (Tr.
291.) However, Dr. Rocha noted that she had been able to completely relieve
Plaintiff’s pain with medication without unacceptable side effects. (Tr. 288.)
On May 3, 2013, Dr. Rocha completed a Supplemental Mental Impairment
Questionnaire, opining that Plaintiff did not suffer from a mental impairment that
significantly interfered with daily functioning. (Tr. 300.) She noted that Plaintiff
was on Xanax for anxiety. (Tr. 301.)
On May 27, 2013, Dr. Rocha completed a Treating Source Orthopedic
Questionnaire for Plaintiff’s neck disc disease. (Tr. 306.) She noted decreased
grip strength, decreased ability to perform fine manipulation, chronic pain, and
total body pain. (Tr. 307.) She rated Plaintiff’s grip strength as 4/5 and her lower
extremity strength as 4/5. (Id.) Dr. Rocha opined that Plaintiff was not capable of
performing fine/gross manipulations on a sustained basis because repetitive
activity was hampered by pain. (Id.)
On June 21, 2013, Dr. Rocha completed another Medical Source
Statement Concerning the Nature and Severity of Plaintiff’s Physical Impairment.
(Tr. 475-77.) This time, Dr. Rocha noted that she had not been able to
completely relieve Plaintiff’s pain with medication without unacceptable side
effects. (Tr. 475.) Dr. Rocha opined that in an eight-hour workday, Plaintiff could
7

sit for up to two hours and stand/walk for up to two hours; she could rarely lift and
carry less than 10 pounds and never 10 pounds; she had significant limitations in
doing repetitive reaching, handling, fingering, or lifting; her condition interfered
with the ability to keep her neck in a constant position; she could not do a full time
competitive job requiring activity on a sustained basis; she should not pull or bend
and needed to avoid noise; emotional factors contributed to the severity of her
symptoms and functional limitations; she was capable of low stress jobs; and she
would be absent from work two or three times per month as a result of her
impairments. (Tr. 475-77.) Dr. Rocha’s prognosis was fair to poor. (Tr. 475.)
On July 19, 2013, Dr. Rocha completed a Medical Opinion Regarding
Ability to Do Physical Activities. (Tr. 309-11.) She opined that Plaintiff could walk
two or three city blocks without rest; she could continuously sit for 20 minutes and
stand for 30 minutes at one time; she could sit, stand or walk less than two hours
in an eight-hour workday; she needed a job permitting shifting positions at will;
and she would need to take four unscheduled breaks lasting 45 minutes to an
hour. (Tr. 309-10.) She also opined that Plaintiff could safely lift and carry less
than 10 pounds frequently, 10 pounds occasionally, and never 20 pounds. (Tr.
310.) She further opined that Plaintiff had significant limitations in doing repetitive
reaching, handling, or fingering: she could use her hands and fingers 80% (right)
and 90% (left) of the time, and she could use her arms for reaching (including
overhead reaching) 100% of the time in an eight-hour workday, but she could not
8

do so continuously. (Id.) Dr. Rocha imposed additional limitations, including
never twisting or climbing ladders and occasionally stooping, crouching, and
climbing stairs. (Tr. 311.) Her prognosis was fair to poor. (Tr. 309.) She opined
that Plaintiff would be absent from work more than twice a month. (Tr. 311.)
On July 19, 2013, Dr. Rocha also completed a Medical Opinion
Questionnaire - Physical Activities. (Tr. 716-18.) She opined that Plaintiff could
walk two or three city blocks without rest; she could continuously sit for 20
minutes and stand for 30 minutes at one time; she could sit, stand or walk less
than two hours in an eight-hour workday; she needed a job permitting shifting
positions at will; and she would need to take four (including regular) breaks
lasting 45 minutes to an hour. (Tr. 716-17.) She also opined that Plaintiff could
safely lift and carry less than 10 pounds frequently, 10 pounds occasionally, and
never 20 pounds. (Tr. 717.) She further opined that Plaintiff had significant
limitations in doing repetitive reaching, handling, or fingering: she could use her
hands and fingers 80% (right) and 90% (left) of the time, and she could use her
arms for reaching (including overhead reaching) 100% of the time in an eighthour workday, but she could not do so continuously. (Id.) Dr. Rocha imposed
additional limitations, including never twisting or climbing ladders and
occasionally stooping, crouching, and climbing stairs. (Tr. 718.) Her prognosis
was fair to poor. (Tr. 716.) She opined that Plaintiff would be absent from work
more than twice a month. (Tr. 718.)
9

On July 19, 2013, Dr. Rocha also completed a Fibromyalgia Questionnaire.
(Tr. 313-18.) She answered the question “Does your patient meet the American
Rheumatological criteria for fibromyalgia?,” with “unknown.” (Tr. 313.) She noted
multiple tender points, chronic fatigue, morning stiffness, muscle weakness,
subjective swelling, frequent, severe headaches, numbness and tingling, anxiety,
panic attacks, and carpal tunnel syndrome. (Id.) She also noted that emotional
factors contributed to the severity of Plaintiff’s symptoms and functional
limitations. (Tr. 314.) She opined that Plaintiff’s experience of symptoms was
often severe enough to interfere with attention and concentration. (Tr. 315.) She
opined that Plaintiff could walk two or three city blocks without rest; she could
continuously sit for 20 minutes and stand for 30 minutes at one time; she could
sit, stand or walk less than two hours in an eight-hour workday; she needed a job
permitting shifting positions at will; and she would need to take three or four
unscheduled breaks lasting 45 minutes to an hour. (Tr. 315-16.) She also
opined that Plaintiff could safely lift and carry less than 10 pounds frequently, 10
pounds occasionally, and never 20 pounds. (Tr. 317.) She further opined that
Plaintiff had significant limitations in doing repetitive reaching, handling, or
fingering: she could use her hands and fingers 80% (right) and 90% (left) of the
time, and she could use her arms for reaching (including overhead reaching)
100% of the time in an eight-hour workday, but she could not do so continuously.
(Id.) Her prognosis was again fair to poor. (Tr. 313.) She opined that Plaintiff
10

would be absent from work more than twice a month. (Tr. 318.)
On July 19, 2013, Dr. Rocha also completed a Medical Opinion
Questionnaire (Mental Impairments). (Tr. 874-76.) She opined that Plaintiff had
a fair ability to travel in unfamiliar places, to use public transportation, to perform
at a consistent pace without an unreasonable number and length of rest periods,
to accept instructions and respond appropriately to criticism from supervisors, to
respond appropriately to changes in a routine work setting, and to deal with
normal work stress, and she had poor or no ability to deal with the stress of
semiskilled and skilled work. (Id.) Her prognosis was again fair to poor. (Tr.
874.) She opined that Plaintiff would be absent from work more than twice a
month. (Tr. 876.)
On September 16, 2013, Dr. Rocha completed a Treating Source
Fibromyalgia Questionnaire. (Tr. 629-30.) She noted history of chronic pain,
chronic fatigue, and positive tender points. (Tr. 629.) She rated Plaintiff’s grip
strength as 4/5 with decreased ability to perform both fine and gross manipulation
and Plaintiff’s lower extremity strength as 4/5. (Tr. 630.) She opined that Plaintiff
required frequent periods of rest on a daily basis. (Id.)
3.

Standard for Evaluating Opinion Evidence

The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 404.1520(a)(3). With regard to
medical opinion evidence, “the ALJ must state with particularity the weight given
11

to different medical opinions and the reasons therefor.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial weight must be
given to a treating physician’s opinion unless there is good cause to do otherwise.
See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
“‘[G]ood cause’ exists when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless weigh the medical opinion based on: (1) the length of the
treatment relationship and the frequency of examination, (2) the nature and
extent of the treatment relationship, (3) the medical evidence supporting the
opinion, (4) consistency of the medical opinion with the record as a whole, (5)
specialization in the medical issues at issue, and (6) any other factors that tend to
support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6). “However, the
ALJ is not required to explicitly address each of those factors. Rather, the ALJ
must provide ‘good cause’ for rejecting a treating physician’s medical opinions.”
Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir. June 22, 2011)
(per curiam).
Although a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518
12

(11th Cir. 1984) (per curiam); 20 C.F.R. § 404.1527(c)(2), “[t]he opinions of state
agency physicians” can outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted,” Cooper v. Astrue, 2008 WL 649244,
*3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ may reject any medical opinion if
the evidence supports a contrary finding.” Wainwright v. Comm’r of Soc. Sec.
Admin., 2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see also
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).
4.

Analysis

The ALJ provided good reasons, supported by substantial evidence, for
according limited weight to Dr. Rocha’s opinions regarding Plaintiff’s physical
limitations. For example, the ALJ properly observed that Dr. Rocha’s assessed
physical limitations are largely unsupported by her treatment notes, which are
handwritten and include minimal detail or explanation of findings. (See, e.g., Tr.
422-29, 811-18.) In addition, the ALJ properly observed that Dr. Rocha’s
assessed physical limitations are inconsistent with other parts of the record,
including the opinions of Dr. Curtis, Plaintiff’s orthopedist, regarding Plaintiff’s
ability to perform fine and gross manipulation and overhead reaching.
The physical examinations of Plaintiff’s hands, fingers, and wrists by Dr.
Curtis were normal, with some abnormalities noted with her elbows. (See Tr.

13

619, 623, 659.)4 On September 20, 2013, Dr. Curtis completed a Treating
Source Orthopedic Questionnaire, where he noted Plaintiff had chronic pain,
decreased grip strength, radiculopathy, and weakness in her hands secondary to
chronic mild carpal tunnel syndrome. (Tr. 631-32.) He assessed Plaintiff’s grip
strength as 4/5 and her lower extremity strength as 5/5. (Tr. 632.) Dr. Curtis
opined that Plaintiff was capable of performing fine/gross manipulations on a
sustained basis. (Id.)
As the ALJ observed, Dr. Curtis’s opinions were supported by the overall
evidence. (See Tr. 321 (“[Patient] is [complaining of] neck pain radiating to
bilateral arms, she is completely stable on current medication with no side
effect.”); Tr. 500 (“At the present time, I have explained to this patient that I don’t
find any neurovascular deficit at the upper or lower extremities. There is some on
the symptoms with the [range of motion] of the [left upper extremity]. I don’t find
any mandatory indication for any procedure or any further study to be done at the
left shoulder. . . . There is a definite chronic situation here in the spine secondary

4

While there were more abnormal findings during Plaintiff’s physical
examinations at the Arthritis & Osteoporosis Treatment Center in 2014 and 2015, such
as tenderness in both wrists, ankles, shoulders, knees, and all MTP joints of the left
foot, painful range of motion in the shoulders, chronic synovial changes in the knees,
metatarsalgia in the feet, synovitis of the joints of the upper and lower extremities (see
Tr. 790-91, 795, 802, 855-56, 902, 995, 1000, 1004, 1008, 1011, 1015, 1018-19, 102223), Plaintiff received only conservative treatment (medications and some injections) at
this Center and was advised to exercise, follow a diet, and take supplements (see Tr.
791, 795-96 (also noting that Plaintiff “is a therapeutic challenge due to severe
[gastroesophageal reflux disease], erosions in esophagus . . . and intolerance to
multiple medications”), 802, 805, 856-57, 902).
14

to the previous car accident. . . . PROGNOSIS: Good. DISABILITY: Partial
permanent, because of the injury at the cervical spine. ACTIVITY: As much as
the patient can tolerate it.”); Tr. 778-79 (“Patient maintains full range of motion of
the hand. She does note some decrease in her grip strength over the last several
years. . . . The patient maintains full extension and full flexion including full grip[.] .
. . Because the patient is not too pleased with the results of her left carpal tunnel
release which was performed at an outside facility 3 months ago, the patient is
currently not interested in invasive treatment for her right hand carpal tunnel
syndrome. . . . I have recommended the patient continue the use of nonsteroidal
anti-inflammatory medication and I provided her with a cockup wrist brace.”); Tr.
1002 (“She is able to perform activities of daily living with some difficulty in
climbing stairs, walking and standing.”).)
Dr. Curtis’s opinions also seem consistent with the results of diagnostic
tests. As the ALJ observed, many of the imaging studies showed “only minimal
or mild abnormalities, with some moderate abnormalities, but no severe
abnormalities.” (Tr. 23.) The record supports this observation. (See Tr. 295
(“The [February 27, 2013] EMG/NCs was technically satisfactory and revealed no
abnormalities.”); Tr. 334 (noting that the July 7, 2012 MRI of the left shoulder
showed “mild, chronic hypertrophic changes and impingement at the
acromioclavicular joint with moderate tendinopathy”); Tr. 625-28 (noting the
August 7, 2013 Electromyography of the upper extremities was normal and the
15

August 5, 2013 Nerve Conduction Studies suggested mild bilateral carpal tunnel
syndrome, right side slightly more prominent); Tr. 1027-28 (noting the March 11,
2014 X-ray report showed, inter alia, normal hands other than possible mild
degenerative disease affecting the PIP joints; mild degenerative changes in the
DIP joints of the feet; symmetrical narrowing of joint space suggestive of
inflammatory arthritis with superimposed moderate degenerative disease
affecting both knee joints; loss of normal cervical curvature, disk degeneration
affecting C5-C6, C6-C7, C7-T1, and T3, mild degenerative changes in the facet
joints, and encroachment of neuroforaminal at C5-C6 on the right and C6-C7 on
the left; generalized osteopenia and some degeneration of facet joints at L4-L5
and S1); Tr. 1029 (noting the July 22, 2014 MRI of the right wrist showed: “Small
to moderate sized erosion at the proximal hamate. Small erosion at the radial
aspect of the third metacarpal head. Mild synovitis. . . . No significant
tenosynovitis. . . . Findings may be a manifestation of an inflammatory
arthropathy such as rheumatoid arthritis.”).)
Based on the foregoing, the Court finds that the ALJ’s reasons for giving
limited weight to Dr. Rocha’s opinions regarding Plaintiff’s physical impairments
are supported by substantial evidence. To the extent Plaintiff invites the Court to
re-weigh the evidence or substitute its decision for that of the ALJ, the Court
cannot do so. As long as the ALJ’s findings are based on correct legal standards
and are supported by substantial evidence, the Commissioner’s decision must be
16

affirmed even if the reviewer would have reached a different conclusion.
Further, as Defendant points out, Plaintiff seems to misread the ALJ’s
decision with respect to Dr. Rocha’s opinions regarding Plaintiff’s mental
impairments. According to Plaintiff, the ALJ gave great weight to Dr. Rocha’s
opinion that Plaintiff would be absent from work more than two days a month, but
failed to incorporate this opinion in his findings without an explanation. In reality,
the ALJ gave great weight to Dr. Rocha’s opinion that Plaintiff’s anxiety did not
significantly interfere with her functioning and would not preclude an ability to
perform simple tasks, because it was consistent with the overall medical
evidence, Plaintiff’s symptoms, and her conservative treatment. (Tr. 24.)
Contrary to Plaintiff’s argument, the ALJ did not give great weight to Dr. Rocha’s
opinion that she would be absent from work for two days a month. Therefore,
Plaintiff’s argument with respect to Dr. Rocha’s mental opinions is also rejected.
B.

The ALJ Properly Relied on the Vocational Expert’s
Testimony

Plaintiff’s second argument on appeal is that the ALJ erred in relying on the
testimony of the Vocational Expert (“VE”), which was inconsistent with information
in the Dictionary of Occupational Titles (“DOT”), without obtaining an explanation
for the inconsistency, in accordance with SSR 00-4p.5 Plaintiff states that despite
5

Pursuant to SSR 00-4p: “When there is an apparent unresolved conflict
between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE or VS evidence to support a
(continued...)
17

the ALJ’s limitation in the RFC and the hypothetical question that Plaintiff needs
to avoid overhead reaching, all three jobs identified by the VE—ticket taker,
photocopy machine operator, and office helper—require frequent reaching.
Plaintiff argues that even if the reality of these positions is that they require less
than frequent overhead reaching, the ALJ was required at the very least to obtain
a reasonable explanation for the conflict between the DOT and the VE’s
testimony.
Defendant responds that there was no apparent inconsistency and points
out that Plaintiff’s attorney did not question the VE about any inconsistency or
raise the issue during the hearing. Defendant asserts that SSR 00-4p does not
require an ALJ to independently investigate a VE’s testimony or further
interrogate a VE when the VE testifies that no inconsistency or conflict exists
between the VE’s testimony and the DOT. Defendant adds that even if there was
a conflict between the DOT and the jobs identified by the VE in response to the
hypothetical question, the VE’s testimony outweighs the DOT because the DOT
is not the sole source of admissible information regarding jobs. The Court agrees
with Defendant.
At the hearing, the following exchange took place between the ALJ and the
VE:

5

(...continued)
determination or decision about whether the claimant is disabled.”
18

Q
A
Q

A

Q
A

And is your testimony consistent with the DOT?
Yes it is.
I don’t see references to the time and attendance of the
sit/stand. How is it you’re able to testify regarding those
elements?
That’s based upon my professional experience which includes
labor market surveys and also there are published surveys of
employers which relate to both the sit/stand option and off task
behavior and absenteeism -Thank you.
-- that I’ve reviewed.

(Tr. 81.) In his decision, the ALJ determined, pursuant to SSR 00-4p, that the
VE’s testimony was consistent with the information contained in the DOT; to the
extent the testimony provided was outside of the DOT, it was based on the VE’s
professional experience, including job analyses, and the ALJ accepted it as
competent and credible. (Tr. 26.)
At the hearing, Plaintiff’s counsel did not object to this testimony or
question the VE about any inconsistency concerning Plaintiff’s overhead reaching
limitation. As such, there was no apparent inconsistency for the ALJ to resolve.
See Chambers v. Comm’r of Soc. Sec., No. 16-11971, 662 F. App’x 869, 873
(11th Cir. Dec. 1, 2016) (per curiam) (“[T]here was no apparent
inconsistency—indeed, [plaintiff] did not question the vocational expert about any
inconsistency or raise the issue before the ALJ, and the vocational expert
affirmed that his testimony was consistent with the DOT.”); Gray v. Colvin, No.
3:12cv506/EMT, 2014 WL 1118105, *9 (N.D. Fla. Mar. 20, 2014) (finding “there
was no apparent conflict for the ALJ to resolve and thus no error” where plaintiff’s
19

counsel raised no challenge or objection to the VE’s statement that his testimony
was consistent with the DOT); Terwilliger v. Colvin, 2013 WL 2251563, *13 (N.D.
Fla. May 21, 2013) (“In this case, neither the VE nor the Plaintiff made the ALJ
aware of any potential conflict between the VE’s testimony and the DOT. Even
assuming a conflict existed, however, the ALJ was entitled to rely upon the VE’s
testimony.”).
Despite the fact that the ALJ was not made aware of any apparent conflict
other than the sit/stand option which was brought up at the hearing, Plaintiff now
suggests that when there is a conflict between the VE’s testimony and the DOT,
the ALJ must obtain an explanation for the conflict before relying on the VE’s
testimony. However, in the Eleventh Circuit, the ALJ is not required to do so, in
light of Jones v. Apfel, 190 F.3d 1224 (11th Cir. 1999). See Jones v. Comm’r of
Soc. Sec., 423 F. App’x 936, 939 n.4 (11th Cir. Apr. 19, 2011) (per curiam) (“To
the extent SSR 00-4p conflicts with [Jones v. Apfel, 190 F.3d 1224 (11th Cir.
1999)], we are bound by Jones.”); see also Terwilliger, 2013 WL 2251563 at *12
(“Although SSR 00-4p was promulgated after Jones was decided, it does not
undo the Jones rule.”).
In Jones, the Eleventh Circuit held that when there is a conflict between the
VE’s testimony and the DOT, “the VE’s testimony ‘trumps’ the DOT . . . because
the DOT ‘is not the sole source of admissible information concerning jobs.” 190
F.3d at 1229-30. The court explained:
20

The DOT itself states that it is not comprehensive. It provides
occupational information on jobs in the national economy, and it
instructs “DOT users demanding specific job requirements [to]
supplement th[e] data with local information detailing jobs within their
community.” . . . Additionally, the Code of Federal Regulations states
that the SSA will take administrative notice of reliable job information
available from various governmental and other publications, such as
the DOT. See 20 C.F.R. § 404.1566(d)(1). By this wording, the SSA
itself does not consider the DOT dispositive. As noted in the DOT,
the ALJ should supplement the DOT data with local information
detailing jobs in the regional community. The VE provides this vital
information. . . . As such, we conclude that the VE’s testimony is
crucial to an ALJ’s determination at step 5 of the sequential
evaluation process. Due to the significance of the VE’s testimony,
we . . . hold that an ALJ may rely solely on the VE’s testimony.
Id. at 1230.
Therefore, to the extent there was a conflict between the VE’s testimony
and the DOT in this case, albeit one of which the ALJ was unaware, the ALJ did
nor err in relying on the VE’s testimony. See Chambers, 662 F. App’x at 873
(“[E]ven if there was a conflict between the DOT and the jobs identified by the
vocational expert in response to the hypothetical question, the testimony of the
vocational expert outweighs the DOT because the DOT is not the sole source of
admissible information concerning jobs.”). “[T]he VE is an expert on the kinds of
jobs a person can perform, while the DOT simply provides generalized overviews
of jobs and not the specific requirements of a job.” Hurtado v. Comm’r of Soc.
Sec., 425 F. App’x 793, 795-96 (11th Cir. Apr. 25, 2011) (per curiam); see also
Jones, 423 F. App’x at 939 (“The DOT provides descriptions of occupations, not
of the numerous jobs within those occupations, and the VE ‘may be able to
21

provide more specific information about jobs or occupations than the DOT.’”).6
Therefore, Plaintiff’s second argument is also rejected.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
DONE AND ORDERED at Jacksonville, Florida, on February 14, 2018.

Copies to:
Counsel of Record

6

Plaintiff states that “[a]t no point did the vocational expert declare that he was
relying upon any other authority or vocational resource to support his opinions, except
when discussing the basis for her testimony regarding how a ‘sit stand option’ affects a
person’s ability to work.” (Doc. 22 at 3.) However, as noted earlier, Plaintiff’s counsel
did not question the VE concerning Plaintiff’s overhead reaching limitation or the
reasoning behind the VE’s testimony. “When no one questions the vocational expert’s
foundation or reasoning, an ALJ is entitled to accept the vocational expert’s conclusion,
even if that conclusion differs from the [DOT].” Terwilliger, 2013 WL 2251563 at *12
n.36 (internal citations and quotation marks omitted).
22