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Levesque v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

January 17, 2018

JULIE LEVESQUE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF DECISION

          DANIEL C. IRICK, UNITES STATES MAGISTRATE JUDGE.

         Julie 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 AFFIRMED.

         I. PROCEDURAL HISTORY.

         This 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).

         II. THE ALJ'S DECISION.

         The ALJ 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.[1] 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.

         III. STANDARD OF REVIEW.

         “In 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)).

         IV. ANALYSIS.

         A. Social Security Ruling 00-4p.

         Claimant 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.

         At step 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 question.

         Further, 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”).

         In 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 ...

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