Ray Zoslow v. Commissioner of Social Security

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 9, 2019
• Docket: 18-13815
• Status: Unpublished

Opinion

Case: 18-13815 Date Filed: 07/09/2019 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13815 Non-Argument Calendar ________________________

D.C. Docket No. 8:17-cv-01441-JSS

RAY ZOSLOW,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(July 9, 2019)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-13815 Date Filed: 07/09/2019 Page: 2 of 8

Ray Zoslow appeals the district court’s order affirming the administrative

law judge’s (“ALJ”) decision that he was not eligible to continue to receive

disability insurance benefits (“DIB”) pursuant to 42 U.S.C. § 405(g), because he

could perform jobs that existed in significant numbers in the national economy,

and, thus, he was not “disabled” under the Social Security Act. Zoslow argues that

the ALJ violated Social Security Ruling 00-4p (“SSR 00-4p”), because it did not

expressly resolve conflicts between two Vocational Experts’ (“VE”) testimony that

he could work as both as sales attendant and an advertising materials distributor,

and the U.S. Department of Labor’s Dictionary of Occupational Titles (“DOT”)

descriptions of the duties required of those jobs. He also argues that the ALJ erred

by relying on the VEs’ testimony that 236,000 assembler jobs existed in the

national economy.

In a social security case, when appropriate, we review the agency’s legal

conclusions de novo, and its factual findings to determine whether they are

supported by substantial evidence. Ingram v. Comm=r of Soc. Sec., 496 F.3d 1253,

1260 (11th Cir. 2007). “The federal ‘harmless-error’ statute, now codified at 28

U.S.C. § 2111, tells [federal courts of appeal] to review cases for errors of law

‘without regard to errors’ that do not affect the parties’ ‘substantial rights.’”

Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (bracketed material added). We

have previously applied harmless-error doctrine in social security cases. See

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Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (refusing to reverse on the

grounds that the ALJ committed factual errors, because they were harmless, as

they were irrelevant to the ALJ’s ultimate legal determination).

Substantial evidence is defined as “such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Miles v. Chater, 84

F.3d 1397, 1400 (11th Cir. 1996). We do not reweigh the evidence or substitute

our own judgment for that of the agency. Id. “If the Commissioner’s decision is

supported by substantial evidence we must affirm, even if the proof preponderates

against it.” Id. However, there is no presumption “that the Commissioner

followed the appropriate legal standards in deciding a claim for benefits or that the

legal conclusions reached were valid.” Id.

Social Security Agency regulations outline a five-step, “sequential”

evaluation process used to determine whether a claimant is disabled: (1) whether

the claimant is currently engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment or combination of impairments; (3) whether the

impairment meets or equals the severity of the specified impairments in the Listing

of Impairments; (4) whether, based on an RFC assessment, the claimant can

perform any of his past relevant work despite the impairment; and, if not, (5)

whether there are significant numbers of jobs in the national economy that the

claimant can perform, given the claimant=s RFC, age, education, and work

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experience. See Phillips v. Barnhart, 357 F.3d 1232, 1237B39 (11th Cir. 2004); 20

C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(1), (4)(i)-(v). RFC “is an assessment,

based upon all of the relevant evidence, of a claimant=s remaining ability to do

work despite [his] impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th

Cir. 1997).

At step five, the Commissioner bears the burden to show that a significant

number of jobs exist in the national economy, which the claimant can perform.

Phillips, 357 F.3d at 1239; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). SSA

regulations provide that “[w]ork exists in the national economy when there is a

significant number of jobs (in one or more occupations) having requirements

which [the claimant] is able to meet with [his] physical or mental abilities and

vocational qualifications.” Washington, 906 F.3d at 1359-60 (citing 20 C.F.R.

§ 416.966(b)).

In making its determination at step five, an ALJ may rely on (1) the Medical

Vocational Guidelines; (2) testimony of a vocational expert (“VE”); or (3) data

drawn from the DOT. Washington, 906 F.3d at 1360; Phillips, 357 F.3d at 1239-

40. “In order for a vocational expert’s testimony to constitute substantial evidence,

the ALJ must pose a hypothetical question which comprises all of the claimant’s

impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). The

ALJ is not required to include findings in the hypothetical that the ALJ has found

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to be unsupported. Crawford v. Comm=r of Soc. Sec., 363 F.3d 1155, 1161 (11th

Cir. 2004).

SSR 00-4p explains, in pertinent part, that before relying on VE testimony,

ALJs must address any conflicts “between occupational evidence provided by VEs

. . . and information in the Dictionary of Occupational Titles (“DOT”) . . . and

[e]xplain in the determination or decision how any conflict that has been identified

was resolved.” SSR 00-4p (2000).

In Washington, a panel of this Court concluded that, pursuant to SSR 00-4p

and the overall regulatory scheme governing disability claims:

ALJs within the SSA have an affirmative duty to identify apparent conflicts between the testimony of a [VE] and the DOT and resolve them. This duty requires more of the ALJ than simply asking the VE whether his testimony is consistent with the DOT. Once the conflict has been identified, the Ruling requires the ALJ to offer a reasonable explanation for the discrepancy, and detail in his decision how he has resolved the conflict. The failure to discharge this duty means that the ALJ’s decision, when based on the contradicted VE testimony, is not supported by substantial evidence.

906 F.3d at 1356 (alteration bracketed; emphasis added). In that case, the panel

found that the ALJ failed to comply with its duty under SSR 00-4P because it did

not notice—and thus did not resolve—a “glaring conflict” between the VE’s

testimony and the DOT. Id. at 1366. As such, the panel concluded that the ALJ

erred in that respect, and its error was not harmless because, in failing to address

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that conflict, the panel did not have a record upon which to conclude that the ALJ

adequately resolved the conflict. Id. Accordingly, the panel reversed and

remanded for further development of the record. Id. at 1366-67.

In this case, Zoslow is correct that the first VE’s testimony that a

hypothetical person with Zoslow’s limitations could perform the sales attendant

job conflicted with the DOT description of that job, which provided that the job

involved significant serving of people. Moreover, Zoslow is also correct that the

ALJ did not strictly comply with SSR 00-4p, because, while the ALJ recognized

that conflict and attempted to resolve it by questioning two VEs as to that apparent

tension, the ALJ did not expressly address or resolve that apparent conflict in its

decision. SSR-004P; Washington, 906 F.3d at 1356.

Nevertheless, here, unlike in Washington, the ALJ’s failure to explicitly

address the aforementioned conflict in its written decision was harmless, because

the record shows that the ALJ (in his colloquy with the second VE) acknowledged

the conflict and resolved it by asking the second VE to clarify the level of public

interactions required of the sales attendant position. See Diorio, 721 F.2d at 728

(applying harmless-error doctrine). As such, there is ample support in the record

upon which we can conclude that the ALJ complied with its duties under SSR 00-

4p.

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Moreover, Zoslow has also failed to demonstrate that the ALJ violated its

duty under SSR 00-4p in determining whether, based on his RFC, he could

perform the duties required of an advertising materials distributor, because the

record undermines Zoslow’s contention that the testimony of the two VEs

conflicted with the DOT’s description of the duties required of that occupation.

Thus, Zoslow has failed to show a conflict between the VEs’ testimony and the

DOT description of the advertising materials distributor position, and,

consequently, he cannot demonstrate that the ALJ abdicated its duty under SSR 00-

4p. See SSR 00-4p.

Finally, Zoslow has failed to demonstrate that the ALJ erred by relying on

the VEs’ testimony as to the number of assembler jobs that existed in the national

economy. In making its step-five determination, the ALJ was permitted to rely on

the VEs’ testimony. Washington, 906 F.3d at 1360; Phillips, 357 F.3d at 1239-40.

And since the ALJ posed the necessary hypothetical question—which included all

of Zoslow’s impairments—to the VEs, the VEs’ testimony as to the number of

assembler jobs in the national economy amounted to substantial evidence. Wilson,

284 F.3d at 1227. Thus, substantial evidence supports the ALJ’s conclusion that

an adequate number of assembler jobs existed in the national economy, and the

ALJ did not err in relying on the VEs’ testimony on that point.

Accordingly, we affirm.

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AFFIRMED.