Sugarman v. Commissioner of Social Security

Filing 31

ORDER denying 25 Plaintiff's Motion for Summary Judgment; granting 29 Defendant's Motion for Summary Judgment; and AFFIRMING the administrative decision below. Signed by Magistrate Judge Edwin G. Torres on 10/27/2017. (abu)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-CV-20332-TORRES
SCOTT LEE SUGARMAN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration,
Defendant.
__________________________________________/
ORDER ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY
JUDGMENT
This matter is before the Court on the Parties’ Cross Motions for Summary
Judgment. Plaintiff SCOTT SUGARMAN (“Plaintiff” or “Sugarman) filed his Motion
on June 24, 2017 [D.E. 25]; Defendant NANCY A. BERRYHILL, Commissioner of
Social Security (“Defendant” or “Commissioner”) filed her Motion on August 23, 2017
[D.E. 29] and Responded in Opposition to Plaintiff that same day. [D.E. 30]. 1 The
issues before this Court are whether the record contains substantial evidence to
support the denial of benefits to Plaintiff and whether the ALJ applied the proper
legal standards. Upon a review of the filings, the record in this case and the relevant
authorities, we hereby find that Defendant’s Motion for Summary Judgment be
GRANTED, Plaintiff’s Motion be DENIED, and the administrative decision below

The Parties filed their consent to the undersigned Magistrate’s jurisdiction in
this matter on January 19, 2017. [D.E. 20].

1

be AFFIRMED.
I.

BACKGROUND

On January 27, 2011, Plaintiff applied for Social Security benefits, alleging a
disability onset date of January 3, 2011. The Social Security Administration denied
the application on May 11, 2011. [D.E. 19, p. 149]. He sought reconsideration of that
decision on June 22, 2011, which was once again denied on September 6, 2011. Id., p.
168. After requesting a hearing before an administrative law judge (“ALJ”) following
this second denial, Plaintiff appeared before ALJ M. Hart on November 7, 2012. Also
present at the hearing were Plaintiff’s counsel and vocational expert Ted Mitchell.
Plaintiff was 44 years old at the time the hearing took place. Id., p. 35. He
attended school until the seventh grade but never obtained a GED. When asked to
describe his condition and symptoms, Sugarman claimed that he has difficulty
performing regular, day-to-day functions because he becomes dizzy, fatigued and
confused. Id., p. 53. He also described feelings of paranoia, memory loss, anxiety and
sensitivity to sounds and light that he battles on a daily basis. Id., p. 53, 55. Plaintiff
also discussed ongoing problems related to carpal tunnel syndrome and tinnitus,
which requires treatment with a speech and hearing specialist. Id., p. 60-61
In terms of prior job history, Sugarman worked as a pool cleaner,
groundskeeper, maintenance worker, and parking lot attendant prior to the initiation
of his disability claim. Id., pp. 48-51. He testified that he had not worked since
January 2011 and that he experiences his symptoms when he sits and stands during
working hours. Id., p. 52. Plaintiff told the ALJ that he believes his conditions stem

2

from Lyme disease. Id.
Plaintiff also testified as to the limitations that allegedly arise from his claimed
mental and physical conditions, testifying that he has issues bending over and lifting
things off the ground. Id., p. 69. He stated he could not lift any weight with regularity,
and that he often need to lay on his back throughout the day to relax and correct his
equilibrium. Id., p. 71. Sugarman indicated that his dizziness prevents him from
standing for longer than 10 minutes at a time, and that he cannot walk more than
five minutes before becoming exhausted. Id., p. 72. He does not use a cane or other
walking device to assist himself throughout the day. Id.
At home, Plaintiff stated that he tries to rest most of the day due to his
conditions. Id., p. 75. He lives with his significant other, who assists him throughout
the house and helps him tie his shoes, buy groceries, and clean laundry. Id., pp. 7981. He admitted he is able to help with certain chores around the house, and tries to
help his significant other clean dishes and load laundry. Id. He also claims that he
has difficulty being amongst large groups of people, as the noises aggravate his
hearing issues. Id., p. 73.
The ALJ examined the vocational expert (“VE”) after Plaintiff testified. 2 The
ALJ presented the VE with a hypothetical, asking if a claimant with the same age,
education, and work experience as Plaintiff could return to his past relevant work if
such work was “limited to simple, routine, and repetitive tasks performed in a work

2

Plaintiff’s counsel did not object to Mr. Mitchell serving as a vocational expert.

3

environment free of fast-paced production requirements involving only simple workrelated decisions and routine work place changes.” Id., p. 103. The VE answered in
the negative. Id., p. 104. The VE further explained, however, that there were jobs in
the national economy that a hypothetical individual with the same limitations as
Plaintiff could perform: marker, order caller, and cleaner/housekeeper. Id. The VE
provided additional details, stating that each position was considered a “light”
exertion position as defined by the Social Security regulations, see 20 C.F.R. §
404.1567, and required a Specific Vocational Preparation (“SVP”) level of 2.
On December 31, 2012, the ALJ denied Plaintiff’s claim for benefits and found
that he was not disabled within the meaning of the Social Security Act. [D.E. 19, pp.
25-37]. In denying these claims, the ALJ applied the sequential evaluation process
used in evaluating such claims. See 20 C.F.R. § 404.1520; 416.920. This process
requires the ALJ to consider, in sequence, whether a claimant: (1) is working; (2) has
one or more severe impairments, as defined in the regulations; (3) has one or more
impairments that meet or medically equals an impairment listed in the regulations,
20 C.F.R. Part 404, Subpart P, Appendix 1 (“listed impairments”); (4) can return to
her past relevant work; and (5) if not, whether she can perform other work that exists
in the national economy. 3

If the claimant establishes that an impairment prevents him from performing
past work, the burden shifts to the Commissioner at step five to show that other jobs
in the national economy exist which, given the claimant’s limitations as a result of
the impairment, he can still perform despite the conditions. Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir.
1986). If the Commissioner carries this burden, the claimant must rebut the finding
and show that he cannot perform the work suggested by the Commissioner. Hale v.
3

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The ALJ first found that Plaintiff had not engaged in substantial gainful
activity since the date he claims he became disabled. The ALJ proceeded to the second
step and determined that Sugarman had the following severe impairments: “history
of borderline intellectual functioning (BIF), rule out psychotic disorder, mood
disorder, tinnitus with mild mixed hearing loss and Eustachian tube dysfunction,
possible Lyme disease, history of depression, arthralgia, left wrist carpal tunnel
syndrome, and history of anxiety with panic attacks.” [D.E. 19, p. 27].
At step three, the ALJ found that Plaintiff’s severe impairments did not meet
or medically equal the severity of any of the listed impairments defined by Social
Security regulations. Moving to step four, the ALJ considered the entire record and
assessed Sugarman’s residual functional capacity, finding Plaintiff able to “perform
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b),” with certain
limitations. Id. Those limitations included Plaintiff avoiding concentrated exposure
to moving machinery and exposure to unprotected heights and moderate noise. The
ALJ also determined that Plaintiff was limited to “simple, routine, and repetitive
tasks performed in a work environment free of fast-paced production requirements.”
Id. Finally, Plaintiff should be limited “to only occasional interaction with the public.”
Id. As a result of these limitations, the ALJ determined that the claimant could not
perform any of his past relevant work.
At step five, and based on testimony by the vocational expert, the ALJ found
that despite the severe impairments alleged by Plaintiff, he still maintained the

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
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residual functional capacity to perform other work as it existed in the national
economy. [D.E. 19, p. 36]. Specifically, the ALJ found that Plaintiff could work as a
marker, order caller, and housekeeper/cleaner, all of which are light duty, unskilled
positions requiring a Specific Vocational Preparation (“SVP”) level of “2.” In
comparing Sugarman’s residual functional capacity with the physical and mental
demands of his past relevant work, the ALJ determined that Plaintiff could perform
these jobs and that significant numbers existed in the national economy. Accordingly,
the ALJ found that Sugarman “has not been under a disability” as defined under the
Social Security Act and denied his claim. Id., pp. 36-37.
Sugarman appealed the ALJ’s decision, which was denied on November 25,
2014. He then timely sought review of the ALJ’s decision with this Court.
II.

STANDARD OF REVIEW

The fundamental determination to be made in these cases is whether the
Plaintiff is, in fact, disabled. A disability is defined as an “inability to engage in 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 12 months.” 42 U.S.C.
§ 423(d)(1)(A). To qualify as a disability, the physical or mental impairment must be
so severe that the claimant is not only unable to perform previous work, “but cannot,
considering his age, education, and work experience, engage in any other kind of
substantial gainful work” that exists in the national economy. 42 U.S.C. §
423(d)(2)(A). The claimant bears the burden of proving that he is disabled. Moore v.

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Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003).
Judicial review of an ALJ’s final decision is limited to a determination as to
whether there is substantial evidence in the record as a whole to support ALJ’s
findings, and whether the correct legal standards were applied. See 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Kelley v. Apfel, 185 F.3d 1211,
1212 (11th Cir. 1999). “Substantial evidence is more than a scintilla, but less than a
preponderance. It is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983) (citing Richardson, 402 U.S. at 401); see also Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996).
In determining whether substantial evidence supports the ALJ’s decision, a
reviewing court should not re-weigh the evidence or decide the facts anew. Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Instead, so long as the
ALJ’s findings are supported by substantial evidence, they are deemed conclusive and
we must defer to those findings even if the evidence may preponderate against it. See
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004); Hunter v.
Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (“In determining
whether substantial evidence supports a decision, we give great deference to the
ALJ’s factfindings.”); Miles, 84 F.3d at 1400. However, no presumption of validity
attaches to the ALJ’s conclusions of law. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th
Cir. 1991).

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III.

ANALYSIS

As grounds for remand, the Plaintiff makes two arguments. First, he claims
that the ALJ improperly relied on Plaintiff’s non-compliance with treatment in
making his credibility determination, which required investigation into the
circumstances surrounding such non-compliance. Second, Sugarman asserts that the
ALJ violated Social Security Rule 00-4P (“SSR 00-4P”) when he failed to reconcile an
alleged inconsistency between the vocational expert’s testimony and Dictionary of
Occupational Titles (“DOT”). We address each argument in turn.
A.

Substantial
Evidence
Supports
the
ALJ’s
Credibility
Determination With Regard to Plaintiff’s Non-Compliance with
Treatment

In order to demonstrate disability based on testimony concerning subjective
pain, “the claimant must satisfy two parts of a three-part test showing: (1) evidence
of an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise” to the claimed symptoms.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); Powell v. Comm’r of Soc.
Sec., 571 F. App’x 914, 916 (11th Cir. 2014). Under Social Security regulations, the
ALJ must follow a two-step analytical model when considering such complaints: first,
the ALJ must determine whether there is an underlying medically determinable
impairment that could reasonably be expected to cause the claimant’s pain or other
symptoms; and second, once a claimant has established that the impairment could
reasonably produce his symptoms, the ALJ evaluates the intensity and persistence of

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the symptoms and their effect on the claimant’s work. 20 C.F.R. § 416.929(a), (c);
Powell, 571 F. App’x at 916.
Here, the ALJ applied the correct legal standards. In making his finding that
Plaintiff possessed the residual functional capacity to perform light work, he correctly
applied the two-step process: first, he provided a detailed analysis of the record
medical evidence and determined that Plaintiff’s claimed impairments “could
reasonably be expected to cause the alleged symptoms.” [D.E. 19, p. 31]. However, he
found that Plaintiff’s statements about the intensity, persistence and limiting effects
of those symptoms were not entirely credible, before providing detailed analysis as to
why this was the case. Id.
Further, the substantial evidence supported this determination. The ALJ
discussed countless treatment records that indicated satisfactory management of the
conditions Plaintiff claimed resulted in his alleged disability, including those dealing
with his mental and physical health. The ALJ took particular note of the fact that
certain medical records, dated after the onset of

Plaintiff’s claimed disability,

indicated that Mr. Sugarman “was trying to work three jobs,” including maintenance
work and employment as a parking lot attendant. According to the ALJ, “[s]uch work
activity at multiple jobs would suggest an ability to perform at least light exertional
work.” [D.E. 19, p. 32]. Another factor supporting the ALJ’s determination involved
certain “compliance problems” Plaintiff encountered with regard to the taking of
prescribed medications. The ALJ supported this assertion by citing to each medical
record that discussed these compliance issues, finding that although “[the

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compliance] factors are not dispositive,” they would nevertheless serve as “negative
factors in evaluating the credibility of the claimant’s allegations that his impairments
preclude him from working in any capacity.” [D.E. 19, p. 33]; see also Dawkins v.
Bowen, 848 F.3d 1211, 1213 (11th Cir. 1988) (“[R]efusal to follow prescribed medical
treatment without a good reason will preclude a finding of disability.”).
Plaintiff now argues that the ALJ committed error because he failed to
adequately investigate the reasons for Plaintiff’s non-compliance. [D.E. 25, p. 5].
Plaintiff’s first argument involves an alleged inability to pay for the medications he
was prescribed by doctors during the course of his alleged disability. Id., p. 6. Because
“poverty excuses noncompliance,” Dawkins, 848 F.2d at 1213, Plaintiff argues that
the ALJ committed error when he failed to determine whether the alleged noncompliance took place because Plaintiff did not have the means to afford his
prescribed medication.
Plaintiff primarily relies on Dawkins to support this argument, but it is
distinguishable. In Dawkins, the claimant testified at the administrative hearing
that she was unable to take her prescribed medication because she could not always
afford to refill her prescription. Id. at 1213. In denying benefits, the ALJ relied
“primarily if not exclusively” on evidence pertaining to the claimant’s noncompliance
with the prescribed medical treatment. Id. at 1212. On appeal, the Eleventh Circuit
reversed and remanded the case, concluding that because the ALJ’s finding that
claimant was not disabled was “inextricably tied to the finding of noncompliance,” the
ALJ erred by failing to consider the claimant’s ability to afford the prescribed medical

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treatment. Id. at 1214.
Here, and unlike Dawkins, the ALJ’s determination that Plaintiff did not
suffer from a disability was not “inextricably tied to the finding of noncompliance.”
Indeed, it was but one of several factors that impacted the ALJ’s determination. A
cursory review of the decision demonstrates that the ALJ based his denial primarily
on (1) Plaintiff’s report to his doctors that he had worked three separate jobs during
the time he claimed he suffered from a disability, and (2) a review of the medical
evidence, which contained no indication by any treating physician that Sugarman
was unable to work as a result of his claimed medical conditions. Because the ALJ’s
decision to deny disability rested primarily on several other grounds, Plaintiff’s
reliance on Dawkins is misplaced, and the ALJ’s failure to consider Sugarman’s
finances did not constitute reversible error. See Ellison, 355 F.3d at 1275 (ALJ did
not have to consider evidence regarding Social Security claimant's ability to afford
his seizure medication because claimant's alleged failure to take his seizure
medication was but one consideration in denying the disability claim); Brown v.
Comm’r of Soc. Sec., 425 F. App’x 813, 817 (11th Cir. 2011) (“Nevertheless, if the
claimant's failure to follow medical treatment is not one of the principal factors in the
ALJ's decision, then the ALJ's failure to consider the claimant's ability to pay will not
constitute reversible error.”); see also Allen v. Sullivan, 880 F.2d 1200, 1203 (11th
Cir. 1989) (“In sum, the ALJ specifically articulated at least three reasons for
rejecting appellant's subjective complaints of pain. Her argument that he improperly
discredited her testimony on this point is accordingly without merit.”).

11

Plaintiff also attempts to tie his non-compliance to “the effects of [his]
psychological impairments and borderline intellectual functioning.” [D.E. 25, p. 5]. In
support of this argument, he cites to the Eleventh Circuit’s decision in Lucas v.
Sullivan, 918 F.3d 1567 (11th Cir. 1990). But once again, such reliance is misplaced.
Lucas stands for a very simple proposition: a claimant’s failure to adhere to
prescribed medical treatment cannot be grounds for denial of social security benefits
“when the reason for such failure is beyond the claimant’s control.” Id. at 1574 (citing
Dawkins, 848 F.2d at 1213–14) (non-compliance does not prevent claimant from
receiving

benefits

where

non-compliance

is

result

of

inability

to

afford

treatment); McCall v. Bowen, 846 F.2d 1317, 1319 (11th Cir. 1988) (absent evidence
that claimant's weight was within her control, claimant's failure to lose weight upon
physician's recommendation did not preclude claimant from receiving disability
benefits)). Plaintiff’s contention would be correct if, in fact, he demonstrated that
some condition beyond his control caused his compliance issues, but he makes no such
demonstration here; Sugarman does not cite to a single piece of record evidence that
would support his argument that his intellectual capacity or mental condition
somehow prevented him from complying with his doctor’s orders.
The evidence in the record also flatly contradicts Plaintiff’s claim. The medical
records reviewed by the ALJ contain numerous references to Sugarman’s compliance
with his doctor’s treatment recommendations, including those having to do with the
taking of certain medications. It is therefore nonsensical for Plaintiff to claim that his
intellectual capacity prevented him from taking medications in the face of valid

12

record evidence showing that this was not an issue at various points during the course
of his alleged disability.
Accordingly, we find Plaintiff’s contentions regarding the ALJ’s findings are
without merit and that the substantial evidence supports the ALJ’s credibility
determination.
B.

Social Security Ruling 00-4P Does Not Control, and Does Not
Support Remand

Plaintiff also argues that his case should be remanded because the ALJ failed
to resolve a conflict between the VE’s hearing testimony and the DOT. Specifically,
Sugarman claims that the ALJ found that he should be limited to simple, routine
work-related tasks, but that the positions that the VE determined he could still work
– marker, order caller, or housekeeper – all exceed the reasoning level limitations
described in the ALJ’s decision. [D.E. 25, p. 7-9]. According to Plaintiff, because the
ALJ failed to adhere to SSR 00-4P and resolve the alleged conflict between the VE’s
testimony and the DOT, the matter must be remanded for such resolution. Id.
In pertinent part, SSR 00-4P reads:
Occupational evidence provided by a VE or VS generally should be
consistent with the occupational information supplied by the DOT.
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

13

provides a basis for relying on the VE or VS testimony rather than on
the DOT information.
SSR 00-4P. Plaintiff argues that each job identified by the VE requires a Reasoning
Development Level of 2, which means Sugarman must be able to “[a]pply
commonsense understanding to carry out detailed but uninvolved written or oral
instructions” and “[d]eal with problems involving a few concrete variables in or from
standardized situations.” DICTIONARY OF OCCUPATIONAL TITLES, § 209.587-034, 1991
WL 671802 (marker); § 209.667-014, 1991 WL 671807 (order caller); § 323.687-014,
1991 WL 672783 (cleaner, housekeeping). Because the ALJ found that he should be
limited to simple, routine tasks, Plaintiff argues that he is unable to perform the
reasoning requirements attached to each position.
This argument fails for three reasons. First, numerous courts have held that
any claimant limited to simple, routine, repetitive tasks by an ALJ or VE can perform
tasks and occupations associated with level two reasoning as defined by the DOT. See
generally Miller v. Comm’r of Soc. Sec., 246 F. App’x 660 (11th Cir. 2007) (no remand
where VE identified reasoning level three jobs for a plaintiff who could only perform
simple, routine, and repetitive work); Chambers v. Comm’r of Soc. Sec., 662 F. App’x
869, 872 (11th Cir. 2016) (“As for jobs labeled with reasoning levels of two or three,
they may also be jobs with simple tasks.”); Terry v. Astrue, 580 F.3d 471 (7th Cir.
2009) (level three reasoning not inconsistent with plaintiff's ability to perform only
simple work); Renfrow v. Astrue, 496 F.3d 918 (8th Cir. 2007) (reasoning level three
not inconsistent with plaintiff's inability to do complex work); Hackett v. Barnhart,
395 F.3d 1168, 1176 (10th Cir. 2005) (stating that “level-two reasoning appears more

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consistent with Plaintiff's RFC” of “simple and routine work tasks”); Lara v. Astrue,
305 F. App’x 324 (9th Cir. 2008) (plaintiff who is able to perform simple repetitive
tasks capable of doing work at reasoning level two); Money v. Barnhart, 91 F. App’x
210 (3d Cir. 2004) (“Working at reasoning level 2 would not contradict the mandate
that [claimant's] work be simple, routine and repetitive.”); Hurtado v. Astrue, 2010
WL 1850261, at *1 (S.D. Fla. Apr. 14, 2010) (“Most courts which have addressed this
issue have held that the requirement of Reasoning Level 2 or 3 is not inconsistent
with the ability to perform only simple tasks.”); Menendez v. Colvin, 2015 WL
1311460, at *4-5 (S.D. Fla. Mar. 23, 2015) (collecting other cases). These cases
demonstrate that Plaintiff’s argument is based on the flawed assumption that an
underlying conflict between the VE’s testimony and the DOT actually exists; each of
these cases reflect that this is decidedly not true. See Menendez, 2015 WL 1311460 at
*6 (“Since no apparent conflict was raised at the hearing between the expert’s
testimony and the DOT, the ALJ was not required to address SSR 00-4p). For this
reason, we find that no underlying conflict exists here, which is sufficient to deny the
request for remand from the outset.
Second, even assuming that Plaintiff could convince us that there actually was
a conflict, the law of this Circuit establishes that the ALJ did not err when he relied
on the VE’s testimony in the face of conflicting DOT evidence. In a case involving
similar allegations, whereby a claimant challenged an ALJ’s denial based on identical
arguments raised by Plaintiff here, the Eleventh Circuit held that the testimony of a
VE “trumps” the definitions contained in the DOT if the two sources provide

15

conflicting evidence:
The ALJ determined that Jones was not capable of performing a full
range of sedentary work, so he appropriately called a VE to testify
whether Jones, given her limitations, was capable of performing other
jobs in the national economy. The VE identified the above-mentioned
jobs that Jones could perform with her limitations. Notwithstanding,
Jones argues that the ALJ's reliance on the VE's testimony was
improper because the exertional and environmental requirements of
some of the jobs identified by the VE, such as hand packager and nut
sorter, conflict with the DOT.
…
We agree with the Sixth Circuit that when the VE's testimony
conflicts with the DOT, the VE's testimony “trumps” the DOT. We so
hold because the DOT is not the sole source of admissible information
concerning jobs. 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 the 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. By this wording, the SSA itself does not consider the DOT
dispositive.
Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999) (citations and quotations
omitted). Despite the fact that Social Security Administration promulgated Rule 004P after Jones, the Eleventh Circuit continues to apply the directive set forth in that
decision. See Leigh v. Comm’r of Soc. Sec., 496 F. App’x 973, 975 (11th Cir. 2012)
(discussing SSR 00-4p to hold “[e]ven assuming that there was an inconsistency
between the VE’s opinion and the DOT, the ALJ did not err in relying on the VE’s
opinion to determine that Leigh was not disabled.”); Miller, 246 F. App’x at 662
(applying Jones and finding that “[o]ur precedent establishes that the testimony of a
vocational expert ‘trumps’ an inconsistent provision of the DOT in this Circuit.”). The

16

guidance provided by this Circuit states that the ALJ must give precedence to the
VE’s testimony, even in the face of a conflict between the two sources. He did so here.
Third, and once again assuming that Plaintiff’s theory about the alleged
conflict had merit, the ALJ complied with SSR 00-4P by asking whether the VE’s
testimony was consistent with the DOT. [D.E. 19, p. 107]; SSR 00-4P (“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.”). Here, the ALJ asked if the VE’s testimony was consistent with the
DOT, which the VE answered in the affirmative. Sugarman, present at this hearing
and represented by counsel, did not raise any inconsistency after the VE gave this
testimony, and did not seek further clarification on whether such a conflict actually
existed. Thus, the ALJ properly relied on the vocational expert’s testimony
concerning the alleged conflict, and such reliance is supported by the substantial
evidence. See Chambers, 662 F. App’x at 873 (argument that the ALJ should have
questioned the vocational expert about any inconsistency with the DOT failed
because “there was no apparent inconsistency—indeed, Chambers 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.”);
Brijbag v. Astrue, 2008 WL 276038, at *2 (M.D. Fla. Jan. 31, 2008) (“[T]he ALJ need
not independently corroborate the VE’s testimony and should be able to rely on such
testimony where no such apparent conflict exists with the DOT.”).

17

IV.

CONCLUSION

In sum, we must ultimately determine whether the ALJ’s decision can be
supported by substantial evidence, and whether he applied the correct legal
standards. 42 U.S.C. § 405(g); Wolfe v. Chater, 86 F.3d 1072, 1076 (11th Cir. 1996).
We answer both questions in the affirmative, and therefore ORDER that Plaintiff’s
Motion for Summary Judgment be DENIED, Defendant’s Cross Motion for Summary
Judgment be GRANTED, and the ALJ’s decision be AFFIRMED.
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of
October, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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