United States District Court, M.D. Florida, Orlando Division
MEMORANDUM OF DECISION
C. IRICK UNITES STATES MAGISTRATE JUDGE.
Yesenia Barreto Quinones (Claimant) appeals the Commissioner
of Social Security's final decision denying her
applications for a period of disability, Social Security
Disability Insurance (SSDI), and Supplemental Security Income
(SSI) payments. Doc. 1. Claimant argues that the
Administrative Law Judge (ALJ) erred by: 1) failing to comply
with Social Security Ruling 00-4p; and 2) finding
Claimant's testimony concerning her limitations not
credible. Doc. 22 at 17-30. Claimant requests that the matter
be remanded for further administrative proceedings.
Id. at 30. For the reasons set forth below, the
Commissioner's final decision is
case stems from Claimant's applications for a period of
disability, SSDI, and SSI payments, protectively filed on
March 19, 2013. Doc. 22 at 1. Claimant alleged a disability
onset date of May 15, 2011. Id. On April 6, 2015,
the ALJ entered a decision finding that Claimant was capable
of performing a limited range of sedentary work, although she
could not perform her past relevant work as a nurse. R.
26-34. Thus, the ALJ concluded that Claimant was not
disabled. R. 34. On June 22, 2016, the Commissioner's
Appeals Council denied Claimant's request for review.
Doc. 22 at 2. On August 25, 2016, the Complaint was filed
timely in this Court requesting that this Court remand the
case for further administrative proceedings. Doc. 1. This
action is therefore ripe for judicial review under 42 U.S.C.
THE ALJ'S DECISION.
issued the operative decision on April 6, 2015. R. 22-34. The
ALJ found that Claimant had the following severe impairments:
asthma, congenital hip dysplasia, chronic pain, congenital
foot deformity, and chronic leg length discrepancy. R. 26.
The ALJ found that Claimant did not have an impairment or
combination of impairments that meets or medically equals any
listed impairment. Id.
found that “claimant has the residual functional
capacity [(RFC)] to perform less than the full range of
sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a).” Id. Specifically, the ALJ imposed
the following additional limitations within the RFC:
[Claimant] can lift and/or carry no more than 10 pounds. She
can stand and/or walk with normal breaks for a total of two
hours in an eight-hour workday. She can sit with normal
breaks for a total of six hours in an eight-hour workday. She
would require a sit/stand option while remaining at the
workstation on an at will basis (this option means that the
claimant could alternate sitting/standing while perform her
assigned duties). The claimant should avoid the frequent
ascending and descending of stairs. She should avoid frequent
pushing and pulling motions with her lower extremities within
the aforementioned weight restrictions. The claimant, due to
mild to moderate pain and medication side effects, should
avoid hazards in the workplace such as unprotected areas of
moving machinery, heights, ramps, ladders, scaffolding, and
on the ground unprotected areas of holes and pits. She can
perform each of the following postural activities
occasionally: balancing, stooping, crouching, kneeling, and
crawling. The claimant should avoid the climbing of ropes,
scaffolds, and of ladders exceeding six feet. She should be
allowed to elevate either lower extremity to foot stool level
R. 26-27. The ALJ, in light of this RFC, found that
Claimant was not able to perform her past relevant work as a
nurse. R. 32. However, based upon the vocational expert's
testimony, the ALJ found that Claimant was able to perform
the following jobs existing in the national economy: food and
beverage clerk; addresser; and document preparer. R. 33.
Thus, the ALJ found that Claimant was not disabled from her
alleged onset date, May 15, 2011, through the date of the
decision, April 6, 2015. R. 33-34.
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 comply with Social Security
Ruling (SSR) 00-4p.Doc. 22 at 17-18. According to Claimant,
conflicts existed between the testimony of the Vocational
Expert (VE) and the Dictionary of Occupational Titles (DOT),
and the ALJ failed to obtain a reasonable explanation for
these conflicts. Id. However, Claimant failed to
argue explicitly either that the ALJ applied an incorrect
legal standard or that the ALJ's decision was not based
upon substantial evidence, and failed also to cite any legal
authority supporting her request of remand on the basis of
the alleged violation identified by Claimant. See
id. In response, the Commissioner makes a three prong
argument: (1) there was no conflict between the VE's
testimony and the DOT; (2) even assuming a conflict, the VE
provided a reasonable explanation; and (3) even if there were
a violation of SSR 00-4p, remand would not be appropriate
because Claimant has failed to establish prejudice. Doc. 22
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 advise me. Otherwise, I will assume there are no
such conflicts. Is that fair?
VE: Yes, Your Honor.
Id. Thus, the court found that “by expressly
directing the VE to advise the ALJ of any inconsistencies,
the ALJ satisfied the first requirement of SSR 00-4p.”
Id. If the VE does not advise the ALJ of a conflict,
and the ALJ is not otherwise aware of a conflict, there is no
violation of SSR 00-4p. See id.; see also Wright
v. Comm'r of Soc. Sec., No. 6:12-CV-1640-ORL-31,
2014 WL 982626, at *9 (M.D. Fla. Mar. 12, 2014) (“The
plain language of the SSR provides that the ALJ should
inquire on the record as to whether the testimony is
consistent with the DOT and, when there is an
apparent unresolved conflict, the adjudicator must
elicit a reasonable explanation for the conflict before
relying on the VE evidence.”) (emphasis in original).
the ALJ expressly directed the VE to advise the ALJ of any
conflict between the VE's testimony and the DOT, and the
VE failed to make the ALJ aware of any such conflict.
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, that you so advise us.
R. 774-75. Thus, as in Sollars-D'Annunzio, the
ALJ fulfilled his first obligation under SSR 00-4p. But
before moving on to consider whether the ALJ complied with
his second obligation as described in
Sollars-D'Annunzio (i.e., “where the ALJ
learns of a conflict he is required to discuss and resolve
the conflict”), the Court must necessarily find that
there is a conflict for the ALJ to resolve, and, if there is,
that the ALJ was aware of such a conflict and discussed and
resolved it. As described in the following paragraphs, the
Court finds that Claimant has not established that there was
a conflict between the VE's testimony and the
DOT that would give rise to the ALJ's obligation to
discuss and resolve such a conflict. Nevertheless, if there
were a conflict, the ALJ sufficiently discussed that conflict
and resolved it. And regardless, the ALJ did not err in
relying upon the VE's testimony.
the course of VE's testimony, the ALJ asked hypothetical
questions, including a hypothetical question that involved a
limited range of sedentary work, which resulted in the VE
testifying that a hypothetical claimant could perform the
jobs of food and beverage clerk, addresser, and document
preparer. R. 774-804. The VE also testified that a
hypothetical claimant could perform those jobs with
additional limitations, including a requirement that a
hypothetical claimant be permitted to sit and stand at will
and a further requirement that a hypothetical claimant be
permitted to elevate the claimant's feet to foot-stool
level at will. Id. Claimant's representative, an
attorney, attempted to cross-examine the VE at length about
the VE's basis for concluding that a hypothetical
claimant could perform those jobs with those additional
restrictions. Id. In particular, during the VE's
testimony about the sit/stand-at-will restriction,
Claimant's representative questioned the expert in an
attempt to establish that the VE had not actually observed
someone performing the identified occupations sitting and
standing at will - the apparent point being that: if the VE
had not seen a particular class of employee performing the
job with the identified restrictions, then how could the VE
opine that the hypothetical claimant could perform those
occupations with the listed restrictions. Id. Thus,
the following exchange occurred, which is cited to by
Claimant in her brief:
ATTY: Have you actually observed, with the food
and beverage order clerk, people being -- employees being
able to switch from sitting to standing at will?
VE: I don't need to observe it. It's quite obvious.
ATTY: Okay. If you haven't observed it and it's not
delineated in the Bureau of Occupational --
ALJ: Okay. Well, I think -- I think I understand your point
-- is that if a hypothetical is posed to a vocational expert
and the vocational expert gives an opinion but hasn't
specifically seen that event, that becomes a basis, in your
opinion, to challenge the vocational expert because it's
not may or may not be specifically addressed in the DOT.
ATTY: Correct. And -
ALJ: Okay. Well, at that point, the vocational expert is