United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
MIRANDO, United States Magistrate Judge
Teresa Boccelli seeks judicial review of the denial of her
claim for a period of disability and disability insurance
benefits (“DIB”) by the Commissioner of the
Social Security Administration (“Commissioner”).
The Court has reviewed the record, the briefs, and the
applicable law. For the reasons discussed herein, the
decision of the Commissioner is AFFIRMED.
Issues on Appeal
raises the following issues on appeal: (1) whether
substantial evidence supports the finding of the
Administrative Law Judge (“ALJ”) that Plaintiff
is capable of performing jobs that exist in significant
numbers in the national economy; (2) whether substantial
evidence supports the determination of the ALJ concerning
Plaintiff's Residual Functional Capacity
(“RFC”); and (3) whether the Appeals Council
properly evaluated new evidence.
Procedural History and Summary of the ALJ's
November 5, 2012, Plaintiff filed an application for
disability and DIB alleging disability beginning August 21,
2010 due to osteoporosis, chronic injuries to her left
fingers and wrist, chronic asthma and high blood pressure.
Tr. 52, 230. Plaintiff also had a myocardial infarction in
April 2013. Tr. 52, 589. The application was denied initially
and upon reconsideration. Tr. 98-142. Plaintiff requested and
received a hearing, which was held before ALJ Henry J. Hogan
on March 6, 2014. Tr. 48-57. Plaintiff was represented by
counsel during the hearing, and Plaintiff and a vocational
expert (“VE”), Dr. Amy Vercillo, testified at the
hearing. Tr. 62-97.
April 21, 2014, the ALJ issued a decision finding Plaintiff
not disabled from August 21, 2010 through the date of the
decision. Tr. 48-57. At step one, the ALJ determined that
Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2015, and had not engaged
in substantial gainful activity since August 21, 2010, the
alleged onset date. Tr. 50. At step two, the ALJ determined
that Plaintiff has the following severe impairments: joint
dysfunction of the left hand and wrist; osteoarthritis of the
right knee; cardiovascular infarction status-post stent
placement; and asthma. Id. The ALJ also considered
Plaintiff's high blood pressure, and determined it to be
nonsevere. Tr. 51. At step three, the ALJ concluded that
Plaintiff “does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” Id. The ALJ then determined that
Plaintiff has the RFC to perform light work,  with the
[S]he would be limited to only occasional climbing of
ladders, ropes and scaffolds; occasional climbing of ramps
and stairs; and occasional stooping, crouching and crawling.
[Plaintiff] could only do occasional gross manipulation with
her left non-dominant hand. [Plaintiff] must avoid
concentrated exposure to extreme cold and extreme heat;
concentrated exposure to wetness and humidity; and
concentrated exposure to fumes, odors, dust, gases and poorly
Tr. 52. Next, the ALJ found Plaintiff is unable to perform
her past relevant work (“PRW”) as a retail
cashier, which is light semi-skilled work with a specific
vocational preparation (“SVP”) level of 3,
because of the bilateral handling requirements of the job.
Tr. 55. After considering Plaintiff's age (49 at the time
of the hearing), education (high school and one year of
college), work experience, RFC and the testimony of the VE,
the ALJ determined that there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform, such as production inspector, shipping checker
and clerical assistant. Tr. 56, 87-96. He therefore concluded
Plaintiff has not been under a disability from August 21,
2010 through the date of the decision. Tr. 57.
Appeals Council denied Plaintiff's request for review of
the ALJ's decision. Tr. 1-7. Accordingly, the ALJ's
decision is the final decision of the Commissioner. Plaintiff
filed a Complaint in this Court on December 28, 2015. Doc. 1.
Both parties have consented to the jurisdiction of the United
States Magistrate Judge, and this matter is now ripe for
review. Docs. 13, 14.
Social Security Act Eligibility and Standard of
claimant is entitled to disability benefits when she is
unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to either result in death or
last for a continuous period of not less than twelve months.
42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R.
§ 404.1505(a). The Commissioner has established a
five-step sequential analysis for evaluating a claim of
disability. See 20 C.F.R. § 416.920.
Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful
activity; (2) if not, whether the claimant has a severe
impairment or combination of impairments; (3) if so, whether
these impairments meet or equal an impairment listed in the
Listing of Impairments; (4) if not, whether the claimant has
the residual functional capacity (“RFC”) to
perform his [PRW]; and (5) if not, whether, in light of his
age, education, and work experience, the claimant can perform
other work that exists in “significant numbers in the
Atha v. Comm'r, Soc. Sec. Admin., 616 F.
App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R.
§§ 416.920(a)(4), (c)-(g), 416.960(c)(2);
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011)). The claimant bears the burden of
persuasion through step four; and, at step five, the burden
shifts to the Commissioner. Id.; Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this
Court's review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings
are supported by substantial evidence. McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing
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., evidence that must do more than create a
suspicion of the existence of the fact to be established, and
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) (internal
citations omitted); see also Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (finding that
“[s]ubstantial evidence is something more than a mere
scintilla, but less than a preponderance”) (internal
Eleventh Circuit recently has restated that “[i]n
determining whether substantial evidence supports a decision,
we give great deference to the ALJ's fact
findings.” Hunter v. Soc. Sec. Admin.,
Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing
Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d
1079, 1082 (11th Cir. 1996)). 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 preponderance of the evidence is against the
Commissioner's decision. Edwards v. Su
livan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
district court must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the
decision.” Foote, 67 F.3d at 1560; see
also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992) (stating that the court must scrutinize the entire
record to determine the reasonableness of the factual
findings). It is the function of the Commissioner, and not
the courts, to resolve conflicts in the evidence and to
assess the credibility of the witnesses. Lacina v.
Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525
(11th Cir. 2015) (citing Grant v. Richardson, 445
F.2d 656 (5th Cir.1971)).
Whether substantial evidence supports the ALJ's
finding that Plainti f is capable of
performing jobs that exist in significant numbers in the
found that Plaintiff has PRW as a cashier. Tr. 55. The ALJ
determined, however, that “based on the [VE's]
testimony, [Plaintiff] is unable to do her [PRW] due to the
bilateral handling requirements of this job.”
Id. The ALJ also concluded that considering
Plaintiff's age, education, work experience, and RFC,
there are a significant number of jobs in the national
economy that Plaintiff can perform. Tr. 56. To support his
findings, the ALJ first noted that Plaintiff is not capable
of performing the full range of light work due to additional
limitations. Id. “To determine the extent to
which these limitations erode the unskilled light
occupational base, ” the ALJ asked the VE whether jobs
exist in the national economy for an individual with
Plaintiff's age, education, work experience, and RFC.
Id. The VE testified that, given all of these
factors, the individual would be able to perform the
requirements of representative occupations such as production
inspector, Dictionary of Occupational Titles
(“DOT”) No. 741.687-101; shipping checker, DOT
No. 222.587-018; and clerical assistant, DOT No. 239.567-010.
Id., Tr. 89.
the ALJ found that the VE's testimony is inconsistent
with the information contained in the DOT, he noted
“there is a reasonable explanation for this
discrepancy, ” explaining:
The [VE] testified that the jobs listed above would require
no more than occasional use of [Plaintiff's] non-dominant
left hand. Although the [DOT] does not specify the
manipulative requirements for [Plaintiff's] non-dominant
hand in the positions identified, the testimony is based on
the [VE's] observation of the jobs in question and
knowledge regarding how the jobs are generally performed.
argues that the three jobs identified by the VE are more
demanding than her PRW because the identified jobs require
frequent to constant use of the hands. Doc. 17 at 10, 14-15;
Tr. 55, 88. Plaintiff also asserts that the VE exaggerated
the numbers of jobs in the national economy Plaintiff can
perform because the identified numbers of jobs include
various occupations that Plaintiff cannot perform. Doc. 17 at
11-14; Tr. 88. The Commissioner responds that Plaintiff's
argument is based on her interpretation of job information
provided by Job Browser Pro, a commercially-available job
information resource, which, among other things, was not
before the ALJ at the time of his decision. Doc. 19 at 15-16.
The Commissioner further claims that the ALJ is not required
give priority to information from Job Browser Pro over the
VE's testimony. Id. at 16-17.
Social Security regulations clearly permit the Commissioner
to rely on the testimony of a VE for her knowledge or
expertise. See 20 C.F.R. §§
404.1560(b)(2), 404.1566(e), 416.960(b)(2), 416.966(e).
Moreover, a VE may rely on her knowledge and expertise
without producing detailed reports or statistics in support
of her testimony. Curcio v. Comm'r of Soc. Sec.,
386 F. App'x 924, 926 (11th Cir. 2010); Bryant v.
Comm'r of Soc. Sec., 451 F. App'x 838, 839 (11th
Cir. 2012); see also Bayliss v. Barnhart, 427 F.3d
1211, 1218 (9th Cir. 2005) (“A VE's recognized
expertise provides the necessary foundation for his or her
testimony. Thus, no additional foundation is
required.”). Thus, resources such as commercially
available software and job information, including Job Browser
Pro, may be used by the VE, provided they are not the sole
resource used by the VE without any testimony or other
evidence. See Thompson v. Comm'r of Soc. Sec.,
No. 2:15-cv-53-FtM-CM, 2016 WL 1008444, at *6 (M.D. Fla.,
Mar. 15, 2016) (citing cases that allow the use of software
when the software was one resource, but not the sole
resource, on which the VE relied upon in making the
assessment). Therefore, the VE here was permitted but not
required to use commercially-available software, including
Job Brower Pro, to support her testimony.
the ALJ had considered the information from Job Browser Pro,
which the Commissioner accurately points out was not before
him, Plaintiff does not show that the ALJ must give priority
to that information over the VE's testimony. Doc. 17 at
10-11. On the contrary, the ALJ's “preferred method
of demonstrating that the claimant can perform other jobs is
through the testimony of a VE.” Jones v.
Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) (citation
omitted). If the VE “determine[s] whether there are
jobs in the region which the claimant can perform with her
precise disabilities or limitations, ” even “the
DOT does not control.” Id. at 1229. Hence,
even “when the VE's testimony conflicts with the
DOT, the VE's testimony ‘trumps' the
DOT.” Id. at 1229-30. Similarly, to the extent
that the VE's testimony including the numbers of jobs
Plaintiff can perform conflicts with the information provided
by Job Browser Pro, the Court finds that the VE's
testimony trumps the information provided by Job Browser Pro.
Doc. 17 at 11-13; see 190 F.3d at 1229.
if there is any conflict between the evidence provided a VE
and the DOT, the ALJ must “obtain a reasonable
explanation for the apparent conflict.” SSR 00-4p, 2000
WL 1898704, at *4. Furthermore, the ALJ “must resolve
this conflict before relying on the VE . . . evidence to
support a determination or decision that the individual is or
is not disabled.” Id. Here, the ALJ complied
with his obligation under SSR 00-4p and resolved the
discrepancy between the VE's testimony and the DOT. Tr.
93-96. During the hearing before the ALJ, the ALJ asked the
VE to assume, among other limitations, no more than
occasional use of the non-dominant hand. Tr. 88. The VE
identified three representative occupations - production
inspector, shipping checker, and clerical assistant - as the
jobs that a hypothetical individual with the limitations
listed by the ALJ can perform. Tr. 94. The VE testified
during the hearing that her testimony is inconsistent with
the DOT because her testimony is based on “the DOT
descriptions of the essential tasks of the job and [her]
observations of the job, and how the job is generally
performed” whereas the DOT “does not specifically
state the degree of bimanual dexterity for occupations,
” such as reaching, handling, and fingering. Tr. 96.
The ALJ's opinion considers the VE's explanation for
the discrepancy between the VE's testimony and the DOT.
Tr. 56-57. As a result, the ALJ complied with SSR 00-4p and
obtained a reasonable explanation for the conflict between
the VE's testimony and the DOT. SSR 00-4p, 2000 WL
1898704, at *4.
regard to the first category of jobs with DOT No.
741.687-101, Plaintiff asserts that the jobs require constant
exposure to atmospheric conditions, although the ALJ
determined that Plaintiff must avoid constant exposure to
fumes, odors, dust, and gases. Doc. 17 at 11. Plaintiff does
not accurately state the ALJ's finding, however, because
the ALJ found that Plaintiff must avoid
“concentrated, ” not constant,
“exposure to fumes, odors, dust, gases and poorly
ventilated areas.” Tr. 52 (emphasis added). Similarly,
as the Commissioner accurately points out, Plaintiff
misinterprets the VE's testimony by arguing that the VE
found Plaintiff's PRW was unskilled. Doc. 17 at 13. On
the contrary, the VE testified during the hearing that
Plaintiff's PRW as a retail cashier is
“semiskilled, but borderline between unskilled and
semiskilled, and skills are not transferable.”
Id.; Tr. 87; Doc. 19 at 19.
Plaintiff argues that an employability evaluation by Brian J.
Daly, M.S., CRC, CLCP (“Daly”), does not support
the ALJ's findings. Doc. 17 at 15; Tr. 9-24. Because
Daly's evaluation is dated August 13, 2014, approximately
four months after the ALJ's decision, the Court will
address this argument when analyzing whether the Appeals
Council properly analyzed Daly's evaluation as new
evidence. Tr. 9-24.
Whether substantial evidence supports the determination of
the ALJ ...