MOORE

v.

COMMISSIONER OF SOCIAL SECURITY

The Plaintiff seeks judicial review of the Commissioner’s denial of her claims for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). For the reasons discussed below, the Commissioner’s decision is affirmed.

I.

The Plaintiff was born in 1987, is high school educated, and has past relevant work experience as a fast food worker. (R. 22, 38, 49, 247, 254). In January 2015, she applied for DIB and SSI, claiming disability as of November 13, 2013, due to several alleged impairments, including diabetes, migraines, back problems, two bulging disks,

The ALJ subsequently convened a supplemental hearing on July 26, 2017 (R. 32-43), primarily to take additional VE testimony (R. 34). The Plaintiff was again represented at that hearing and testified on her own behalf, as did a different VE. (R. 34-42). In a decision dated October², 2017, the ALJ found that the Plaintiff: (1) met the insured status requirements through December 31, 2017, and had not engaged in substantial gainful activity since her alleged onset date of November 13, 2013; (2) had the severe impairments of migraine headaches, cervical degenerative disc disease, and lumbar degenerative disc disease/degenerative joint disease; (3) did not, however,

have an impairment or combination of impairments that met or medically equaled the severity of any of the listed impairments; (4) had the residual functional capacity (RFC) to perform a limited range of sedentary work, with some functional, postural, and environmental restrictions; and (5) was unable to perform her past relevant work but, based on the VE’s testimony, was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. (R. 12-24). In light of these findings, the ALJ concluded that the Plaintiff was not disabled. (R. 23). The Appeals Council denied the Plaintiff’s request for review. (R. 1-6). Accordingly, the ALJ’s decision became the final decision of the Commissioner. II. The Social Security Act (the Act) defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).² A physical or mental impairment under the Act “results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). To determine whether a claimant is disabled, the Social Security Regulations (Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (citing 20 C.F.R. § 404.1520(a)(4));

see also 20 C.F.R. § 416.920(a)(4).3 Under this process, an ALJ must determine whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment; (3) has a severe impairment that meets or equals an impairment

III.

The Plaintiff’s sole contention on appeal is that the ALJ’s decision is not supported by substantial evidence because the ALJ erred in relying on the VE’s testimony regarding the number of jobs available to her. (Doc. 22 at 5-9). After careful review of the record and the governing authority, the Court finds this contention to be without merit. As noted above, at step five of the sequential evaluation process, the burden of proof temporarily shifts to the Commissioner “to show that ‘there is other work available in significant numbers in the national economy that the claimant is able to perform’” despite her impairments. Sampson, 694 F. App’x at 734 (quoting Jones, 190 F. 3d at 1228); see also 20 C.F.R. §§ 404.1560(c), 416.960(c) (“[T]o support a finding that you are not disabled at this fifth step of the sequential evaluation process, we are responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do . . . ”). To carry this burden, the Commissioner may “take administrative notice of reliable job information available from various governmental and other publications,” including the Dictionary of Occupational Titles (DOT)⁴ and other sources set forth in the Regulations. 20 C.F.R. §§ 404.1566(d), 416.966(d). The Regulations also permit the Commissioner to predicate his decision at step five on information supplied by a VE. Id. at §§ 404.1566(e), 416.966(e); Phillips, 357 F. 3d at 1240. “A [VE] is an expert on the kinds of jobs an individual can perform based on . . . her capacity and impairments.” Phillips, 357 F. 3d at 1240. “When the ALJ uses a [VE], the ALJ will pose hypothetical question(s) to the

[VE] to establish whether someone with the limitations that the ALJ has previously determined that the claimant has will be able to secure employment in the national economy.” Id. In rendering this opinion, “a VE may rely on his knowledge and expertise without producing detailed reports or statistics in support of his testimony.” Griffin v. Comm’r of Soc. Sec., 2018 WL 3352929, at *10 (M.D. Fla. June 20, 2018) (citing Curcio v. Comm’r of Soc. Sec., 386 F. App’x 924, 926 (11th Cir. 2010); Bryant v. Comm’r of Soc. Sec., 451 F. App’x 838, 839 (11th Cir. 2012)), report and recommendation adopted, 2018 WL 3344535 (M.D. Fla. July 9, 2018). An ALJ may, in turn, base his step-five determination solely on the VE’s testimony. Webster v. Comm’r of Soc. Sec.,

773 F. App’x 553, 555 (11th Cir. 2019) (per curiam) (citation omitted). Here, the VE testified at the supplemental hearing that an individual with the Plaintiff’s age, education, experience, and RFC could perform the job of surveillance

To begin, the Plaintiff did not object to the VE’s qualifications at the hearing. Nor did she request any supporting data for the VE’s conclusion or challenge the reliability of his jobs number. See Biestek, 139 S. Ct. at 1155 (stating when no demand is made “a [VE’s] testimony may count as substantial evidence even when unaccompanied by supporting data”); Webster, 773 F. App’x at 555 (rejecting plaintiff’s contention that VE’s testimony was unreliable based on Standard Occupational Classification code job numbers reported by the BLS, and highlighting plaintiff’s failure to challenge VE’s qualifications or question VE on reliability of job numbers); Grome v. Comm’r of Soc. Sec. Admin., 2019 WL 4594597, at *4 (M.D. Fla. Sept. 23,

2019) (rejecting plaintiff’s argument that ALJ improperly relied on VE’s testimony “that there was a significant number of jobs in the national economy that [p]laintiff could have performed” where, “at the administrative hearing, [p]laintiff’s attorney stipulated to the VE’s qualifications and did not question the job numbers cited by the

773 F. App’x at 556. As the Court explained: [T]o the extent that [the plaintiff] argues that the ALJ was required to independently verify a VE’s testimony, we have held that the ALJ is only required to do so when there is a conflict between the VE’s testimony and the DOT. . . . Unlike the situation in which the VE’s testimony conflicts with the DOT, this Court has not placed an affirmative duty on the ALJ to independently investigate a conflict between the VE’s testimony and job availability figures provided by the [BLS] in the OES. Furthermore, the figures in the OES are not part of the SSA’s regulatory scheme.

Id. at 555-56 (internal citation omitted); see also Grome, 2019 WL 4594597, at *4 (“[T]o the extent [p]laintiff argues that the ALJ was required to independently verify the VE’s testimony, in the Eleventh Circuit, ‘the ALJ is only required to do so when there is a conflict between the VE’s testimony and the DOT.’”) (quoting Webster, 777 F. App’x at 555). Based upon all of the above, the Court concludes that substantial evidence supports the ALJ’s step-five finding, made in reliance on the job numbers supplied by the VE, and that remand to the Commissioner is unwarranted.

IV.

For the foregoing reasons, it is hereby ORDERED: 1. The Commissioner’s decision is affirmed. 2. The Clerk is directed to enter Judgment in the Defendant’s favor and to close the case. DONE and ORDERED in Tampa, Florida, this 19th day of February 2020.

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to: Counsel of record