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Boccelli v. Colvin

United States District Court, M.D. Florida, Fort Myers Division

March 30, 2017

TERESA BOCCELLI, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          CAROL MIRANDO, United States Magistrate Judge

         Plaintiff 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.

         I. Issues on Appeal[1]

         Plaintiff 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.

         II. Procedural History and Summary of the ALJ's Decision

         On 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.

         On 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, [2] with the following limitations:

[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 ventilated areas.

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.

         The 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.

         III. Social Security Act Eligibility and Standard of Review

         A 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.

         The 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 national economy.”

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 citation omitted).

         The 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 Cir. 1991).

         “The 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)).

         IV. Discussion

         a. Whether substantial evidence supports the ALJ's finding that Plainti f is capable of performing jobs that exist in significant numbers in the national economy

         The ALJ 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.

         Although 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.

Tr. 56-57.

         Plaintiff 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.

         The 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.

         Even if 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.

         Moreover, 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.

         With 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.

         Finally, 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.

         b. Whether substantial evidence supports the determination of the ALJ ...


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