Strother v. Commissioner of Social Security

Filing 28

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 6/28/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICK STROTHER,
Plaintiff,
v.

Case No: 8:16-cv-486-T-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Rick Strother, 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 (“DIB”) and Supplemental Security Income (“SSI”). 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 setting forth their respective 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, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act 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 his 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.
B. Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,

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1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed applications for a period of disability, DIB, and SSI on March 7, 2012,
alleging a disability onset date of August 31, 2009. (Tr. 291-99). Plaintiff’s applications were
denied initially on May 3, 2012, and upon reconsideration on August 22, 2012. (Tr. 213-16, 21720, 226-34, 235-43). Plaintiff requested a hearing and, on November 18, 2013, an administrative
hearing was held before Administrative Law Judge William M. Zellman (“the ALJ”). (Tr. 12466). On February 10, 2014, the ALJ entered a decision finding that Plaintiff was not under a
disability from August 31, 2009, through the date of the decision. (Tr. 99-112). Plaintiff filed a
request for review which the Appeals Council denied on January 15, 2016. (Tr. 30-36). Plaintiff
initiated this action by filing a Complaint (Doc. 1) on February 29, 2016. The case is now ripe for
review pursuant to 42 U.S.C. § 405(g).
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff has engaged in
substantial gainful activity since August 31, 2009, the alleged onset date. (Tr. 101). The ALJ
explained that Plaintiff had not engaged in substantial gainful activity from the alleged onset date
to 2011 or following 2011 and, thus, he continued with the sequential evaluation. (Tr. 101). At
step two, the ALJ found that Plaintiff had the following severe impairments: bipolar disorder,

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attention deficit hyperactivity disorder, and narcissistic traits. (Tr. 102). At step three, the ALJ
found 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. (Tr. 102).
Before proceeding to step four, the ALJ formulated Plaintiff’s residual functional capacity
(“RFC”) as follows: “The claimant’s ability to meet the physical demands of work is subject to no
significant limitations. However, relative to his ability to meet the basic mental demands of work,
he is limited to unskilled jobs that involve no more than occasional decision-making, occasional
changes in the work setting, or occasional interaction with others.” (Tr. 104). At step four, the
ALJ found that Plaintiff was unable to perform his past relevant work as a restaurant host and
theme park attendant. (Tr. 106).
At step five, the ALJ relied on the testimony of a vocational expert to find that considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. (Tr. 107). Specifically, the ALJ found
that Plaintiff can perform the requirements of such jobs as stock clerk, laundry worker, and
industrial cleaner. (Tr. 107). The ALJ concluded that Plaintiff had not been under a disability since
August 31, 2009, the alleged onset date, through the date of the decision, February 10, 2014. (Tr.
107).
II.

Analysis
Plaintiff raises four issues on appeal: (1) whether the ALJ erred by improperly considering

Plaintiff’s work history and receipt of unemployment benefits; (2) whether the ALJ erred by
improperly evaluating the opinion of Dr. Pushkash; (3) whether the ALJ erred by failing to
properly perform a Psychiatric Review Technique; and (4) whether the ALJ erred by failing to

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resolve inconsistencies between the testimony of the vocational expert and the Dictionary of
Occupational Titles pursuant to SSR 00-04p. The Court will address each issue in turn.
1) Whether the ALJ erred by improperly considering Plaintiff’s work history and
receipt of unemployment benefits.
Plaintiff argues that the ALJ erred by failing to consider the evidence of Plaintiff’s erratic
work behavior and receipt of unemployment benefits as evidence supporting Plaintiff’s claim for
disability benefits. (Doc. 21 p. 6).

Plaintiff contends that the fact that Plaintiff received

unemployment benefits does not mean he may not also receive disability benefits and the fact that
the ALJ consider this evidence may suggest that the ALJ abused his discretion by discriminating
against Plaintiff. (Doc. 21 p. 6). Further, Plaintiff argues that the ALJ failed to consider a critical
piece of evidence, i.e. the fact that he has had over 100 jobs since 1998. (Doc. 21 p. 6). Plaintiff
contends that the ALJ’s finding that Plaintiff performed work at the substantial gainful activity
level in 2011, earning over $14,000, misleadingly suggests this income comes from a single job
which ended only because of a layoff. (Doc. 21 p. 7). Plaintiff notes that the $14,000 earned in
2011 came from five different jobs. (Doc. 21 p. 7). Finally, Plaintiff contends that the ALJ’s
reliance on this fact is inconsistent with the ALJ’s own finding that Plaintiff is unable to perform
past relevant work. (Doc. 21 p. 7).
Defendant argues that the ALJ properly considered Plaintiff’s employment history and
receipt of unemployment benefits, along with other relevant evidence, in assessing Plaintiff’s
subjective complaints. (Doc. 26 p. 7).
The Court begins with Plaintiff’s arguments concerning the ALJ’s treatment of Plaintiff
receiving unemployment benefits. While the receipt of unemployment benefits, standing alone,
does not automatically disqualify a claimant from consideration of Social Security benefits, an
ALJ may consider a claimant’s receipt of unemployment benefits in making a credibility
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determination. See Boyd v. Astrue, 2011 WL 1259795, at *6 (M.D. Fla. Mar. 31, 2011). Here, the
ALJ considered Plaintiff’s receipt of unemployment benefits as just one factor in support of the
ALJ’s finding that Plaintiff was not entirely credible. In addition, Plaintiff considered Plaintiff’s
work history, the fact that his records showed minimal and conservative treatment with a history
of non-compliance, and the opinions of physicians. The ALJ did not improperly place dispositive
weight to the fact that Plaintiff received unemployment benefits but properly considered the fact
pursuant to the regulations. See 20 C.F.R. § 404.1529(c)(3)(vii) (providing that the ALJ may
consider “[o]ther factors concerning [a claimant’s] functional limitations and restrictions due to
pain or other symptoms).

Contrary to Plaintiff’s argument, there is no evidence the ALJ

improperly “discriminated” against Plaintiff in considering his receipt of unemployment benefit.
Likewise, the Court finds no error in the ALJ’s treatment of Plaintiff’s job history. The
record shows that Plaintiff engaged in significant, ongoing work activity after his alleged disability
onset date, showing that his impairments were not as limiting as alleged. (Tr. 104-05, 133-35, 138,
326-27, 453). See 20 C.F.R. §§ 404.1571, 416.971 (providing that “[t]he work . . . that you have
done during any period in which you believe you are disabled may show that you are able to work
at the substantial gainful level). The ALJ noted that in 2011--after Plaintiff’s alleged disability
onset date--Plaintiff performed work at the level of substantial gainful activity, earning over
$14,000. (Tr. 101, 105, 138, 327). The ALJ noted that Plaintiff testified that he stopped working
as a construction helper because of a layoff due to a workforce reduction, rather than due to a
disabling condition. (Tr. 105, 138-40). The ALJ noted that at the time of hearing, Plaintiff was
working 30 hours per week as a dishwasher and that he limited his hours to avoid going over Social
Security limits. (Tr. 105, 132-33, 135-36). The ALJ also noted that Plaintiff testified that he
believed he could perform other work, such as janitorial or security jobs. (Tr. 10). Contrary to

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Plaintiff’s argument, the ALJ did not err by improperly considering Plaintiff’s work history, but
properly considered Plaintiff’s testimony from the administrative hearing. While the ALJ did not
specifically note that Plaintiff had over 100 jobs since 1998, the ALJ did acknowledge that “[t]he
claimant has had many previous jobs, most of which have been short-lived.” (Tr. 105). In essence,
Plaintiff is requesting the Court to reweigh the evidence as to Plaintiff’s work history. The Court
declines to do so. The ALJ’s treatment of Plaintiff’s work history and receipt of unemployment
benefits is supported by substantial evidence.
2) Whether the ALJ erred by improperly evaluating the opinion of Dr. Pushkash.
Plaintiff argues that the ALJ erred by according little weight to the opinion of consultative
examiner Mark Pushkash, Ph.D. (Doc. 21 p. 7-8). Plaintiff contends that while the ALJ noted that
Plaintiff could perform his serial sevens and could recall seven digits forward, the ALJ failed to
note that Plaintiff could only recall three in reverse. (Doc. 21 p. 8). In addition, Plaintiff argues
that contrary to the ALJ’s finding, Dr. Pushkash’s opinion is not internally inconsistent. (Doc. 21
p. 8). Finally, Plaintiff contends that Dr. Pushkash’s opinion is consistent with his continued loss
of employment. (Doc. 21 p. 8). In response, Defendant argues that substantial evidence supports
the ALJ’s finding that Dr. Pushkash’s opinion was entitled to little weight. (Doc. 26 p. 14).
The record shows that in April 2012, Dr. Pushkash opined Plaintiff had the intellectual
capability to comprehend, recall, and follow-through on instructions, but his ability to concentrate
and persist on tasks was severely impaired due to untreated ADHD and hypomania (Tr. 412). Dr.
Pushkash also opined Plaintiff did not cope well with frustration and would have substantial
difficulties in social functioning because he was highly distractible (Tr. 412).
In his decision, after reviewing Dr. Pushkash’s opinion, the ALJ explained that
[w]hile this assessment was considered as the opinion of an examining
medical source, it has been given little weight because it is internally
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inconsistent. For example, while Dr. Pushkash noted severe limitations in
concentration, his examination revealed that the claimant was able to
recall seven digits forward and perform serial 7’s to 50 without error.
Further, the opinion is inconsistent with the claimant’s continued work
activity and wide range of activities of daily living, including shopping in
stores, performing volunteer work, and living with friends. Lastly this
opinion was given little weight because the claimant was receiving no
treatment at the time.
(Tr. 106).
Here, the Court finds that the ALJ did not commit reversible error by according little weight
to Dr. Pushkash’s opinion. The record shows that Dr. Pushkash examined Plaintiff a single time
and, thus, his opinion was not entitled to any special deference. See McSwain v. Bowen, 814 F.2d
617, 619 (11th Cir. 1987) (providing that the opinions of one-time examiners are not entitled to
special deference because they are not from treating physicians). While the opinion was not
entitled to any special deference, the ALJ examined Dr. Pushkash’s opinion at length and
explained his reasoning for according the opinion little weight. Contrary to Plaintiff’s argument,
the fact that Plaintiff could only recall three digits in reverse does not undermine the ALJ’s finding
that Dr. Pushkash’s opinion that Plaintiff had severe limitations in concentration was undermined
by his ability to do serial sevens and his ability to recall seven digits forward. (Tr. 106, 411). In
the same way, it was not erroneous for the ALJ to consider Plaintiff’s continued work, wide range
of daily activities, and the fact that Plaintiff was examined while he was not being treated for his
conditions in according little weight to the opinion. Plaintiff has failed to show that the ALJ erred
in his consideration of Dr. Pushkash’s opinion. Accordingly, the Court will not disturb the ALJ’s
finding.

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3) Whether the ALJ erred by failing to properly perform a Psychiatric Review
Technique.
Plaintiff argues that the ALJ erred by failing properly complete a Psychiatric Review
Technique Form (“PRTF”) and, specifically, to provide the rating for Plaintiff’s limitations in the
area of social functioning. (Doc. 21 p. 9). Plaintiff argues that the ALJ attempted to improperly
circumvent the requirement to complete a PRTF by adopting the opinions of non-examining state
agency medical doctors. (Doc. 21 p. 10).
Defendant responds that the ALJ properly incorporated the PRTF mode of analysis into his
decision. (Doc. 26 p. 5). Defendant contends that the ALJ specifically addressed Plaintiff’s
limitations in the area of social functioning, contrary to Plaintiff’s argument. (Doc. 26 p. 7).
In Moore v. Barnhart, the Eleventh Circuit held that “where a claimant has presented a
colorable claim of mental impairment, the social security regulations require the ALJ to complete
a PRTF and append it to the decision, or incorporate its mode of analysis into his findings and
conclusions.” Moore v. Barnhart, 405 F.3d 1208, 1214 (11th 2005). This technique requires
separate evaluations on a four-point scale of how the individual's mental impairment impacts four
functional areas: “activities of daily living; social functioning; concentration, persistence, or pace;
and episodes of decompensation.” Id. (quoting 20 C.F.R. § 404.1520a(c)(3–4)). The ALJ is
required to complete a PRTF and append it to the decision or incorporate the results of this
technique into the findings and conclusions of his decision. Id. at 1214. Failure to do so requires
remand. Id.
In this case, the Court finds the ALJ committed no error in not completing a PRTF. While
the ALJ did accord great weight to the PRTFs of the state agency medical consultants Roger
Rattan, Ph.D., and Craig Childs, Ph.D., the ALJ did not improperly attempt to circumvent the
requirement to complete a PRTF by merely adopting Drs. Rattan and Child’s findings. Drs. Rattan
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and Child opined that Plaintiff had only mild difficulties in his activities of daily living and social
functioning, moderate limitations in maintaining concentration, persistence, or pace, and no
episodes of decompensation. (Tr. 102, 172, 181, 194, 205). Contrary to Plaintiff’s claim, the ALJ
directly addressed Plaintiff’s limitations in the area of social functioning, specifically stating “[i]n
social functioning, the claimant has moderate difficulties.” (Tr. 103). Thus, the ALJ found Plaintiff
to be even more limited in social functioning than opined by Drs. Rattan and Child, again, contrary
to Plaintiff’s claim that the ALJ merely adopted their opinions without completing his own
analysis. The ALJ explained that
[a]lthough the claimant testified that he does not like to be ordered what
to do and the brief of the claimant’s representative alleged marked social
limitations (See Exhibit 11E), the claimant’s functional report showed that
he lives with friends, shops in stores, and performs volunteer work.
(Exhibit 4E). These activities demonstrate an ability to be around others.
(Tr. 104). Plaintiff’s arguments lack merit and the Court affirms the ALJ properly completed a
PRTF.
4) Whether the ALJ erred by failing to resolve inconsistencies between the testimony
of the vocational expert and the Dictionary of Occupational Titles pursuant to
SSR 00-04p.
Plaintiff argues that the testimony of the vocational expert provided at the administrative
hearing is in conflict with the Dictionary of Occupational Titles (“DOT”). (Doc. 21 p. 11). As an
example, Plaintiff notes that there are four different job codes which contain the term “laundry
worker” in the DOT, but the vocational expert only testified that a hypothetical person with
Plaintiff’s RFC could perform the work of “laundry worker” without further clarification or
citation to the DOT. (Doc. 21 p. 12). In addition, Plaintiff argues that the ALJ erred by failing to
resolve the inconsistency in the vocational expert’s testimony concerning the job of “stock clerk.”
(Doc. 21 p. 12). Specifically, at the hearing, the vocational expert testified that “stock clerk” was
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a job requiring Specific Vocational Preparation (SVP) of 4, but further testified that “based on my
experience, there are jobs that are learned in 30 days or less for that so I’m just correcting the
DOT.” (Tr. 160). In response, Defendant argues that the ALJ properly relied on the vocational
expert’s testimony to find that Plaintiff could perform other work. (Doc. 26 p. 17).
As set forth above, at step five, the burden shifts to the Commissioner to prove that the
claimant is capable of performing other work available in the national economy, considering the
claimant’s RFC, age, education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R.
§ 1520(a)(4)(v). If the claimant is capable of performing other work, he will be found not disabled.
Id. In determining whether the Commissioner has met this burden, the ALJ must develop a full
and fair record regarding the vocational opportunities available to the claimant. Allen v. Sullivan,
880 F.2d 1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this
determination. The first is by applying the Medical Vocational Guidelines (“the Grids”), and the
second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir.
2004).
In this case, the ALJ found that Plaintiff could not perform his past relevant work. (Tr.
107). Therefore, the burden shifted to the ALJ to prove that Plaintiff was capable of performing
other work available in the national economy. To help him in this inquiry, the ALJ obtained
testimony from a vocational expert. (Tr. 159-60). The ALJ asked the vocational expert whether a
hypothetical individual with Plaintiff’s vocational factors and RFC could perform other work. (Tr.
159-60). The vocational expert testified that the hypothetical person would be able to perform the
jobs of stock clerk, laundry worker, and industrial cleaner, which existed in significant numbers.
(Tr. 159-60). At the hearing, the ALJ noted that the job of stock clerk was semiskilled and that he
had limited the hypothetical to unskilled. (Tr. 160). The vocational expert testified that based on

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his experience, there were stock clerk jobs that were learned in 30 days or less, despite the DOT’s
classification of that occupation as semiskilled. (Tr. 160).
In his decision, the ALJ relied on the vocational expert’s testimony at step five to find that
there was other work available in significant numbers in the national economy Plaintiff could
perform. (Tr. 107). The ALJ specifically found that “[p]ursuant to SSR 00-04p, the undersigned
has determined that the vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles.” (Tr. 107).
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
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. Comm’r of Soc. Sec., 391 F. App'x 772, 775 (11th Cir.
2010).
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Here, the Court finds that the ALJ’s step five finding is supported by substantial evidence.
Despite Plaintiff’s argument that the ALJ violated SSR 00-04p by failing to resolve conflicts, the
transcript of the administrative proceeding shows that the ALJ acknowledged a conflict between
the vocational expert’s testimony and the DOT. The ALJ noted that he limited his hypothetical to
unskilled and stock clerk was listed in the DOT as semiskilled with SVP of 4. The vocational
expert testified that based on his experience, there are stock clerk jobs that are learned in 30 days
or less, i.e., unskilled work. (Tr. 160). Thus, the ALJ acknowledged and resolved an apparent
conflict.
To the extent that Plaintiff is arguing that the ALJ erred by failing to cite to specific DOT
codes at step five, the Court rejects this argument. As Defendant notes, the DOT is not the sole
source of job information, and a vocational expert may identify examples of jobs based on his/her
experience regarding work in the nation. 20 C.F.R. § 404.1566(d),(e); Jones v. Apfel, 190 F.3d
1224, 1229 (11th Cir.1999) (noting that “the DOT is not the sole source of admissible information
concerning jobs.”). Plaintiff has failed to show that he was prejudiced by the ALJ’s failure to cite
to specific DOT code numbers. For these reasons, the Court finds that the ALJ did not err by
failing to resolve any conflict between the vocational expert’s testimony and the DOT.
III.

Conclusion

The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on June 28, 2017.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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