United States District Court, M.D. Florida, Orlando Division
MEMORANDUM OF DECISION
C. IRICK, UNITES STATES MAGISTRATE JUDGE.
Levesque (Claimant) appeals the Commissioner of Social
Security's final decision denying her applications for a
period of disability and disability insurance benefits. Doc.
1. Claimant argues that the Administrative Law Judge (ALJ)
erred by: 1) failing to comply with Social Security Ruling
00-4p; and 2) failing to properly weigh the opinions of
Claimant's treating gastroenterologist, Dr. Lisa A.
Panzini, M.D. Doc. 18 at 13-21. Claimant requests that the
matter be remanded for further administrative proceedings.
Id. at 25. For the reasons set forth below, the
Commissioner's final decision is
case stems from Claimant's applications for a period of
disability and disability insurance benefits. R. 18. Claimant
alleged a disability onset date of May 1, 2012. Id.
On June 19, 2015, the ALJ entered a decision finding that
Claimant was capable of performing light work and could
perform her past relevant work. R. 18-28. Thus, the ALJ
concluded that Claimant was not disabled. R. 28. Claimant
filed a request for review of the hearing decision. R. 12. On
July 9, 2016, the Commissioner's Appeals Council denied
the request for review. R. 1-6. On September 9, 2016, the
Complaint was timely filed in this Court requesting that this
Court reverse the decision of the Commissioner or, in the
alternative, remand the case for a de novo hearing.
Doc. 1. This action is therefore ripe for judicial review
under 42 U.S.C. § 405(g).
THE ALJ'S DECISION.
issued the operative decision on June 19, 2015. R. 18-28. The
ALJ found that Claimant had the following severe impairments:
scleroderma; left wrist tendinitis; left ulnar neuritis. R.
20. The ALJ found that Claimant did not have an impairment or
combination of impairments that meets or medically equals any
listed impairment. R. 22-23 The ALJ found that
“[C]laimant had the residual functional capacity
[(RFC)] to perform light work as defined in 20 CFR
404.1567(b) except with no more than occasional bilateral
fine and gross manipulation.” R. 22-23. The ALJ, in light
of this RFC, found that Claimant was able to perform her past
relevant work as a realtor. R. 27-28. Thus, the ALJ found
that Claimant was not disabled from her alleged onset date,
May 1, 2012, through the date last insured, December 31,
2014. R. 28.
STANDARD OF REVIEW.
Social Security appeals, [the court] must determine whether
the Commissioner's decision is supported by substantial
evidence and based on proper legal standards.”
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (quotations omitted). The
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla - i.e., the
evidence must do more than merely create a suspicion of the
existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support
the conclusion. Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995) (citing Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) and Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Where the
Commissioner's decision is supported by substantial
evidence, the District Court will affirm, even if the
reviewer would have reached a contrary result as finder of
fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner's decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th
Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358
(11th Cir. 1991). The Court must view the evidence as a
whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560.
The District Court “‘may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for
that of the [Commissioner].'” Phillips v.
Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
Social Security Ruling 00-4p.
asserts that the ALJ failed to apply the correct legal
standards at step four of the sequential process, and that
the ALJ's decision is not supported by substantial
evidence, because the ALJ failed to comply with Social
Security Ruling (SSR) 00-4p. Doc. 18 at 13-14. According to
Claimant, the ALJ erred by failing to resolve a conflict
between the testimony of the Vocational Expert (VE) and the
Dictionary of Occupational Titles (DOT). Id. The
Commissioner argues in response that, pursuant to SSR 00-4p,
the ALJ must only resolve such a conflict if the ALJ is aware
of that conflict, although the Commissioner admits that there
was, in fact, a conflict between the VE's testimony and
the DOT. Thus, because the ALJ was not aware of the conflict,
the ALJ was not obligated to resolve the conflict and, in
turn, did not violate SSR 00-4p. Doc. 18 at 14-17.
four of the sequential evaluation process, the ALJ must
determine a claimant's RFC and ability to do past
relevant work. Phillips, 357 F.3d at 1238 (citing 20
C.F.R. § 404.1520(a)(4)(iv)). The ALJ may rely on a
VE's testimony in determining whether a claimant can
perform his or her past relevant work. Hennes v.
Comm'r of Soc. Sec. Admin., 130 F. App'x 343,
346 (11th Cir. 2005) (citing 20 C.F.R. §
404.1560(b)(2)). In order for a VE's testimony to
constitute substantial evidence, the ALJ must pose a
hypothetical question which is accurate and includes all of a
claimant's limitations. Jones v. Apfel, 190 F.3d
1224, 1229 (11th Cir. 1999). The ALJ, however, is not
required to include each and every symptom of the
claimant's impairments, Ingram v. Comm'r of Soc.
Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007), or
medical findings that the ALJ properly rejected as
unsupported, Crawford v. Comm'r of Soc. Sec.,
363 F.3d 1155, 1161 (11th Cir. 2004), in the hypothetical
the Eleventh Circuit has explained that “[i]f there is
a conflict between the DOT and the jobs identified by a VE in
response to the hypothetical question, the testimony of the
vocational expert ‘trumps' the DOT because
‘the DOT is not the sole source of admissible
information concerning jobs.'” Leigh v.
Comm'r of Soc. Sec., 496 Fed.Appx. 973, 975 (11th
Cir. 2012) (quoting Jones v. Apfel, 190 F.3d 1224,
1229-30 (11th Cir. 1999)). Indeed, “[t]he DOT is not
comprehensive, . . . the SSA does not consider it to be
dispositive [, and] a VE is ‘an expert on the kinds of
jobs an individual can perform based on his or her capacity
and impairments.'” Id. (quoting
Phillips, 357 F.3d at 1240). Specifically, as to the
SSR at issue here, the Circuit explained that:
SSR 00-4p states that when a VE provides evidence about the
requirements of a job or occupation, the ALJ has an
affirmative responsibility to ask about any possible conflict
between that VE's testimony and the DOT. SSR 00-4p. When
the VE's testimony is inconsistent with the DOT, the ALJ
must resolve this conflict before relying on the VE to
determine whether the individual is or is not disabled.
Id. In Leigh, the VE did not alert the ALJ
to any conflict between the DOT and the VE's testimony,
and the Circuit found that, even if there were a conflict
between the DOT and the VE's testimony, the ALJ did not
err in simply relying upon the VE's testimony.
Id. (citing Jones, 190 F.3d at 1229-30
(explaining that the testimony of a VE trumps the DOT where
there is an inconsistency)); see also Hurtado v.
Comm'r of Soc. Sec., 425 F. App'x 793, 795-96
(11th Cir. 2011) (even assuming that an inconsistency
existed, no error in relying on VE testimony because it
trumps any inconsistent provision of the DOT); Peeler v.
Comm'r of Soc. Sec., 400 F. App'x 492, 496 (11th
Cir. 2010) (“The ALJ did not err in relying on Dr.
Feldman's testimony even if it conflicted with
information in the DOT because under our precedent Dr.
Feldman's testimony trumps the DOT.”);
Sollars-D'Annunzio v. Astrue, No.
5:08-CV-80-OC-GRJ, 2009 WL 302170, at *9-10 (M.D. Fla. Feb.
6, 2009) (finding that “the law of the Circuit provides
that where there is a conflict between the testimony of the
VE and the description in the DOT the testimony of the VE
trumps the DOT”).
addition, pursuant to SSR 00-4p, the ALJ is only required to
resolve a conflict between the DOT and the VE's testimony
if the ALJ is aware of that conflict. See
Sollars-D'Annunzio, 2009 WL 302170, at *9
(“SSR 00-4p only requires the VE to resolve the
conflict when he is made aware of the conflict”). As
the court in Sollars-D'Annunzio explained:
The ALJ has two obligations under SSR 00-4p with regard to
reconciling any conflict between the testimony of the VE and
the DOT. First, “[w]hen a VE ... provides evidence
about the requirements of a job or occupation, the
adjudicator has an affirmative responsibility to ask about
any possible conflicts between that VE ... evidence and
information provided in the DOT.” This means the ALJ
must ask if there is a conflict. The second requirement under
SSR 00-4p provides that “when there is an apparent
unresolved conflict between VE ... evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE ... evidence to support a
determination or decision about whether the claimant is
disabled.” This means that where the ALJ learns of a
conflict he is required to discuss and resolve the conflict.
Id. (internal citations omitted). In that case, the
court found that “the ALJ complied with this obligation
by directing the VE to point out any conflicts, ” based
on the following colloquy:
ALJ: Let me request from you at the outset that if there are
any conflicts with the information that you provide with the
Dictionary of Occupational Titles including its companion
publication, The Selected Characteristics of Occupations
defined in the revised Dictionary of Occupational Titles,
that you ...