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Quinones v. Commissioner of Social Security

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

February 12, 2018

INGRID YESENIA BARRETO QUINONES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF DECISION

          DANIEL C. IRICK UNITES STATES MAGISTRATE JUDGE.

         Ingrid 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 AFFIRMED.

         I. PROCEDURAL HISTORY.

         This 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. § 405(g).

         II. THE ALJ'S DECISION.

         The ALJ 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.

         The ALJ 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 at will.

R. 26-27.[1] 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.

         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 comply with Social Security Ruling (SSR) 00-4p.[2]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 at 18-21.

         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)).[3] 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 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).

         Here, 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.
VE: Okay.

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.

         During 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:[4] 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 ...

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