Dickson v. Commissioner of Social Security
Filing
25
OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/13/2014. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JOSHUA DICKSON,
Plaintiff,
v.
Case No: 5:13-cv-48-OC-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
This cause is before the Court on Plaintiff’s Complaint (Doc. 1) filed on January 29, 2013.
Plaintiff, Joshua Dickson seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying his claim for a period of 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 Affirmed 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 which can be expected to result in
death or which 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), 1382(a)(3)(A); 20 C.F.R. §§404.1505, 416.905. The
impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy.
42 U.S.C. §§423(d)(2),
1382(a)(3); 20 C.F.R. §§404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while at step five the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5 (1987).
B. Procedural History
On March 9, 2010, Plaintiff filed an application for Disability Insurance Benefits and
Supplemental Security Income asserting a disability onset date of November 1, 1997. (Tr. p. 59,
164). Plaintiff’s application was denied initially on May 26, 2010, and denied upon reconsideration
on August 30, 2010, and October 7, 2010. (Tr. p. 60-63, 70-71, 73-74). A hearing was held before
Administrative Law Janet Mahon (“ALJ”) on November 14, 2011. (Tr. p. 31-55). The ALJ issued
an unfavorable decision on December 9, 2011. (Tr. p. 12-23). On November 28, 2012, the Appeals
Council denied Plaintiff’s request for review. (Tr. p. 1-4). The Plaintiff filed a Complaint (Doc.
1) in the United States District Court on January 29, 2013. This case is now ripe for review. The
parties consented to proceed before a United States Magistrate Judge for all proceedings. (Doc.
16).
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 he is disabled. Packer v. Commissioner of Social Security, ___ Fed. App’x. ____,
2013 WL 5788574 (11th Cir. Oct. 29, 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999)). 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 his
past relevant work; and (5) can perform other work of the sort found in the national economy.
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Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (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. Commissioner of Soc. Sec., 511 Fed. App’x. 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the Social Security Act’s insured status requirements
through September 30, 2007. (Tr. p. 12). At step one of the sequential evaluation, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since November 1, 1997. (Tr. p. 14).
At step two, the ALJ found that the Plaintiff suffered from the following severe impairments:
“degenerative disc in the back and major depressive disorder (20 CFR 404.1520(c) and
416.920(c)).” (Tr. p. 14).
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 any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d),
404.1526, 416.920(d), 416.925 and 416.926). (Tr. p. 15). At step 4, the ALJ determined that the
Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work as defined in 20
CFR § 404.1567(a) and § 416.967(a) except that he must avoid concentrated exposure to hazards
such as heights and machinery. (Tr. p. 15). The ALJ also limited the RFC of the Plaintiff to
being able to perform simple, routine tasks with only occasional interaction with the public
because of the Plaintiff’s anxiety symptoms. (Tr. p. 16). The ALJ determined that Plaintiff could
not return to his past relevant work as a nurse assistant, telephone solicitor, laundry laborer, store
laborer, cashier/checker, and survey worker. (Tr. p. 21). The ALJ found that Plaintiff was 26
years old on the alleged onset day, and is a younger individual. (Tr. p. 21). At step five, the ALJ
found that considering Plaintiff’s age, education, work experience, and RFC there are jobs in
significant numbers in the national economy that Plaintiff can perform such as document
preparer/microfilming, Dictionary of Occupational Titles (“DOT”) #249.587-018, sedentary in
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exertional capacity, SVP2/unskilled in complexity; surveillance system monitor, DOT #379.367010, sedentary in exertional capacity, SVP2/unskilled; and, pari-mutual ticket checker, DOT
#319.587-010 sedentary in exertional capacity, SVP2/unskilled. (Tr. p. 22). The ALJ determined
that the vocational expert’s testimony was consistent with the information in the DOT. (Tr. p.
22). The ALJ concluded that Plaintiff is not under a disability as defined in the Social Security
Act, from November 1, 1997 through the date of the decision. (Tr. p. 22).
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. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
and 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.
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Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine
reasonableness of factual findings).
II. Analysis
Plaintiff raises one issue on appeal. As stated by Plaintiff, it is: the ALJ erred by failing
to comply with Social Security Ruling 04-4p. Plaintiff asserts that the ALJ erred in determining
that the Plaintiff was able to perform the jobs of document preparer, ticket checker, and
surveillance systems monitor because these jobs appear to be in conflict with the descriptions of
these positions in the DOT, and the ALJ failed to provide a reasonable explanation for the
conflict. The specific conflict Plaintiff raises is that these positions require a reasoning level of 3
in the DOT, however, the ALJ’s hypothetical limited Plaintiff to simple, routine, repetitive work,
therefore, the job descriptions in the DOT as to reasoning level for these three positions are in
conflict with the ALJ’s determination of Plaintiff’s limitation to simple, routine, and repetitive
work. The Commissioner responds that the DOT General Educational Development (“GED”)
Level Three Reasoning is not necessarily inconsistent with an RFC that limits a claimant to
simple, routine tasks. The Commissioner asserts that all three jobs listed by the vocational
expert have a specific vocational preparation (“SVP”) of 2 which equates with unskilled work,
and unskilled work includes by definition work involving understanding, remembering, and
carrying out simple instructions, making simple work-related decisions, dealing with changes in
a routine work setting, and responding appropriately to supervision, co-workers, and usual work
situations, citing to SSR 96-9, 1996 WL 374185 at *9 (S.S.A.) (See, Doc. 24, p. 5). The
Commissioner also argues that even if there is a conflict between the vocational expert’s
testimony and the DOT, SSR 00-4p does not address the issue of what to do when a vocational
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expert testifies that there is no conflict between the jobs listed by the vocational expert and the
DOT, and the ALJ was unaware that a possible conflict might exist.
At the hearing, the ALJ provided a hypothetical which included that the individual was
limited “to simple, routine tasks with only occasional interaction with the public.” (Tr. p. 52).
The vocational expert, Devin Lessne testified that this individual was able to work as a document
preparer, microfilming DOT 249.587-018, with an SVP of 2; surveillance system monitor, DT
379.367-010, with an SVP of 2; and pari mutual ticket checker, DOT 219.587-010 with an SVP
of 2. (Tr. p. 53). Plaintiff’s representative at the hearing did not have any questions for the
vocational expert. (Tr. p. 54). The ALJ asked the vocational expert, Mr. Lessne, “Is your
testimony consistent with the DOT?” Mr. Lessne responded, “Yes, it is, your honor.” (Tr. p.
54).
Prior to the promulgation of SSR 00-04p, the Eleventh Circuit considered the issue of a
conflict between the testimony of a vocational expert and the definitions in the DOT. Jones v.
Apfel, 190 F.3d 1224, 1229-1230 (11th Cir. 1999). The Eleventh Circuit held that when the
vocational expert’s testimony conflicts with the DOT, then the vocational expert’s testimony
“trumps” the DOT. Id. at 1230. The Court reasoned that the DOT is not comprehensive and
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.’” Id. (citing Dictionary of Occupational Titles, Special Notice at xiii
(4th ed. 1991) (other citations omitted). A method of supplementing the DOT is by obtaining the
testimony of a vocational expert. Id.
The purpose of SSR 00-4p is to clarify the standards for use of a vocational expert at a
hearing, and requires administrative law judges to “identify and obtain a reasonable explanation
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for any conflicts between occupational evidence provided by VEs or VSs and information in the
Dictionary of Occupational Titles (DOT) . . .” 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 determination or decision
about whether the claimant is disabled. At the hearings level, as part of the
adjudicator's duty to fully develop the record, the adjudicator will inquire, on the
record, as to whether or not there is such consistency.
Neither the DOT nor the VE or VS evidence automatically “trumps” when
there is a conflict. The adjudicator must resolve the conflict by determining if the
explanation given by the VE or VS is reasonable and provides a basis for relying
on the VE or VS testimony rather than on the DOT information.
SSR 00-4p. The Court notes that “Social Security Rulings are agency rulings published under
the Commissioner’s authority and are binding on all components of the Administration. [citation
omitted]. Even though the rulings are not binding on us, we should nonetheless accord the
rulings great respect and deference . . .” Klawinski v. Commissioner of Social Security, 391 Fed.
App’x 772, 775 (11th Cir. 2010). Even though SSR 00-4p was promulgated after Jones, the
Court does not find any cases which have overturned Jones.
In the instant case, the vocational expert testified as to jobs in the national economy that
were available to an individual with the RFC of Plaintiff. The ALJ clearly asked the vocational
expert if his testimony as to the three jobs of document preparer, microfilming; surveillance system
monitor; and pari mutual ticket checker were consistent with the DOT. The vocational expert
responded they were consistent. By clearly asking whether the jobs listed were consistent with the
DOT, the ALJ complied with the requirements of SSR 00-4p. The vocational expert responded
that his testimony was consistent with the DOT, and therefore, as far as the ALJ was concerned,
there was no conflict and there was nothing to explain or resolve.
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Plaintiffs is asking the Court to go one step further than SSR 00-4p, by requiring the ALJ
to have an affirmative duty to independently investigate where there is a potential conflict between
the vocational expert’s testimony and the DOT, and not to allow the ALJ to rely on the vocational
expert’s testimony that the occupational evidence presented was consistent with the DOT. SSR
00-4p does not require an ALJ to independently investigate whether a conflict exists, it simply
requires that that ALJ ask the vocational expert if a conflict does exist, and if a conflict exists, then
the ALJ must explain and resolve the conflict. See, e.g. Martin v. Commissioner of Social Security,
170 Fed. App’x. 369, 374 (6th Cir. 2006) (“‘Nothing in SSR 00-4p places an affirmative duty on
the ALJ to conduct an independent investigation into the testimony of witnesses to determine if
they are correct’” [citation omitted]). The Court found no precedent which requires an ALJ to
independently investigate and not rely on the testimony of the vocational expert as to a conflict.
In the instant case, Plaintiff had a representative with him at the hearing, and the representative
did not ask any questions of the vocational expert nor raise the issue of any potential conflict
between the testimony of the vocational expert and the DOT.
The ALJ followed SSR 00-4p and asked the vocational expert if his testimony was
consistent with the DOT. The vocational expert testified that it was consistent. 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. The law in the Eleventh Circuit under Jones, supra, is that the vocational
expert’s testimony trumps the DOT, and therefore the ALJ may rely on the testimony of the
vocational expert even if it is in conflict with the DOT. In this case, the ALJ did not err in relying
on the vocational expert’s testimony that his testimony was consistent with the DOT, and did not
err in failing to explain or resolve any possible conflict.
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III. Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided according
to proper legal standards. The decision of the Commissioner is AFFIRMED pursuant to sentence
four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate
any pending motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida on February 13, 2014.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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