Ronnie Bacon, Jr. v. Commissioner of Social Security

R
       USCA11 Case: 20-13974     Date Filed: 06/23/2021   Page: 1 of 13



                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 20-13974
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 8:19-cv-01186-JRK



RONNIE BACON, JR.,

                                                           Plaintiff - Appellant,

                                       versus

COMMISSIONER OF SOCIAL SECURITY,

                                                          Defendant - Appellee.

                      ________________________

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

                               (June 23, 2021)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ronnie Bacon, Jr., appeals the district court’s affirmance of the

Commissioner’s denial of his applications for a period of disability, disability

insurance benefits (“DIB”), and supplemental security income (“SSI”), pursuant to

42 U.S.C. §§ 405(g) and 1383(c)(3). He argues that the Administrative Law Judge

(“ALJ”) erred by failing to resolve an apparent conflict between the vocational

expert’s (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”)

regarding Bacon’s ability to perform work as a mail clerk and a cleaner and

polisher, where his Residual Functional Capacity (“RFC”) limited him to

performing simple, routine, and repetitive tasks in a lower-stress work environment

without fast-paced production quotas. He argues that the mail clerk position was

inconsistent with his RFC because it had a General Educational Development

(“GED”) reasoning level of three, and the cleaner and polisher position was

inconsistent because it required constant reaching, handling, and near acuity.

Second, he argues that the ALJ erred by accepting the VE’s estimate that there

were 325,000 cleaner and polisher jobs that existed in the national economy

because that number was clearly and unmistakably unreasonable. We address each

claim in turn.

                                          I.

      When the Appeals Council denies review of the ALJ decision, as here, we

review de novo the legal principles upon which the ALJ’s decision is based, but the


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ALJ’s factual findings are conclusive if supported by substantial evidence.

Washington v. Comm’r of Soc. Sec., 

906 F.3d 1353

, 1358 (11th Cir. 2018). We

review de novo the district court’s determination as to whether the ALJ’s decision

was supported by substantial evidence. Wilson v. Barnhart, 

284 F.3d 1219

, 1221

(11th Cir. 2002). “Substantial evidence is more than a scintilla and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Crawford v. Comm’r of Soc. Sec., 

363 F.3d 1155

, 1158 (11th Cir.

2004) (quotation marks omitted). We will deem the Commissioner’s decision

supported by substantial evidence even if the preponderance of the evidence

weighs against it. 

Id. at 1158-59

. However, we will not “affirm simply because

some rationale might have supported the ALJ’s conclusion.” Owens v. Heckler,

748 F.2d 1511

, 1516 (11th Cir. 1984). We will not decide the facts anew, make

credibility determinations, or re-weigh the evidence. Winschel v. Comm’r of Soc.

Sec., 

631 F.3d 1176

, 1178 (11th Cir. 2011). We apply harmless error review to

Social Security cases. See Diorio v. Heckler, 

721 F.2d 726

, 728 (11th Cir. 1983).

      Eligibility for DIB and SSI requires that the claimant be disabled. 42 U.S.C.

§§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if he is unable to engage in

substantial gainful activity by reason of a medically determinable impairment that

can be expected to result in death or which has lasted or can be expected to last for

a continuous period of at least 12 months. 42 U.S.C. §§ 423(d)(1)(A),


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1382c(a)(3)(A). To determine whether a claimant is disabled, the ALJ applies a

five-step sequential analysis. 20 C.F.R. § 404.1520(a). This process includes an

analysis of whether the claimant: (1) is unable to engage in substantial gainful

activity; (2) has a severe medically determinable physical or mental impairment;

(3) has such an impairment that meets or equals a listed impairment and meets the

duration requirements; (4) can perform his past relevant work, in light of his RFC;

and (5) can make an adjustment to other work, in light of his RFC, age, education,

and work experience. Id. § 404.1520(a)(4).

      If the claimant successfully demonstrates an impairment that prevents him

from performing his past work, then the analysis moves to step five, and the

burden temporarily shifts to the Social Security Administration (“SSA”) to show

the existence of other jobs in the national economy that the claimant can perform,

given his impairments. Washington, 906 F.3d at 1359. The ALJ may use a VE’s

testimony to determine whether the claimant has the ability to adjust to other work

in the national economy. Phillips v. Barnhart, 

357 F.3d 1232

, 1240 (11th Cir.

2004); see also 20 C.F.R. § 404.1566(e). A VE “is an expert on the kinds of jobs

an individual can perform based on his or her capacity and impairments.” Phillips,

357 F.3d at 1240

. If the SSA makes that showing, then the burden shifts back to

the claimant to show that she is unable to perform the jobs suggested by the SSA.

Washington, 906 F.3d at 1359. In other words, step five of the analysis asks the


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ALJ to determine, in light of the DOT and the VE’s testimony, “whether jobs exist

in the national economy in significant numbers that the claimant could perform in

spite of his impairments.” Id. at 1360.

      According to Social Security Ruling 00-4p (“SSR 00-4p”), the ALJ has an

affirmative duty to identify and resolve apparent conflicts between a VE’s

testimony and information in the DOT. SSR 00-4p, 65 Fed. Reg. 75759-01, 75760

(Dec. 4, 2000). If the VE’s evidence appears to conflict with the DOT, the ALJ

will obtain a reasonable explanation of the apparent conflict. Id. Where the VE’s

evidence is inconsistent with the information in the DOT, the ALJ must resolve the

conflict before relying on the VE’s evidence to support a determination or decision

that a claimant is or is not disabled. Id.

      Although SSR 00-4p is not binding on us, the SSA is nevertheless bound to

follow it, even where the internal procedures espoused in that interpretation are

more rigorous than otherwise would be required. Washington, 906 F.3d at 1361.

In Washington, we rejected the Commissioner’s argument that SSR 00-4p only

required the ALJ to ask the VE whether his testimony was consistent with the

DOT. Id. at 1361-62. Instead, we held that SSR 00-4p imposed upon the ALJ an

affirmative obligation to identify any apparent conflicts and to resolve them, and

an ALJ’s failure to discharge that duty means that the ALJ’s decision is not

supported by substantial evidence. Id. at 1362.


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      “Apparent” means “apparent to an ALJ who has ready access to and a close

familiarity with the DOT.” Id. at 1366. In other words, the ALJ is required to

identify conflicts that are “reasonably ascertainable or evident.” Id. In

Washington, we took “apparent” to mean “seeming real or true, but not necessarily

so,” and concluded that the conflict between the VE’s testimony and the DOT

“present[ed] one of the clearest examples of an ‘apparent conflict.’” Id. (quotation

marks omitted). There, the claimant suffered from nerve damage stemming from

his diabetes that caused pain and numbness in his extremities and diminished

visual acuity. Id. at 1356. At step five of the sequential analysis, the ALJ had

asked the VE whether jobs existed in the national economy for someone who could

only engage in “occasional” fine manipulation. Id. at 1366. The VE identified two

jobs that were described by the DOT as involving “frequent” fine manipulation.

Id. We characterized the conflict as apparent and important because the difference

between performing an action “occasionally” versus “frequently” is “patent and

significant in determining whether work exists in the national economy for a

claimant.” Id. Accordingly, because “the conflict [was] manifest from even a

cursory, side-by-side comparison of the VE’s testimony and the DOT,” we

determined that the ALJ “unmistakably” breached his duty. Id.

      The DOT “lists maximum requirements of occupations as generally

performed, not the range of requirements of a particular job as it is performed in


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specific settings.” SSR 00-4p, 65 Fed. Reg. at 75760. A VE “may be able to

provide more specific information about jobs or occupations than the DOT.” Id.

The mail clerk job has a Specific Vocational Preparation (“SVP”) level of two and

a reasoning level of three. DOT 209.687-026. A job with the reasoning level of

three requires the ability to “[a]pply commonsense understanding to carry out

instructions furnished in written, oral, or diagrammatic form” and to “[d]eal with

problems involving several concrete variables in or from standardized situations.”

Id.

      The cleaner and polisher job has an SVP level of two and a reasoning level

of one. DOT 709.687-010. A job with a reasoning level of one requires the ability

to “[a]pply commonsense understanding to carry out simple one- or two-step

instructions” and to “[d]eal with standardized situations with occasional or no

variables in or from these situations encountered on the job.” Id. The DOT

description states that a cleaner and polisher “[c]leans and polishes chromium or

nickel plated articles with cloth and liquid cleanser. May remove paint or other

foreign matter adhering to surface of article with solvent, knife, or steel wool. May

be designated according to type of metal cleaned as Chrome Cleaner (any

industry); Nickel Cleaner (any industry).” Id. It further states that reaching,

handling, and near acuity are “constantly” required. Id.




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         Even if the VE’s testimony that Bacon could perform work as a mail clerk

was apparently inconsistent with his RFC limitations to “simple, routine, and

repetitive tasks,” the inconsistency would have been harmless. See Diorio, 

721

F.2d at 728

. The VE testified, and the ALJ found, that Bacon also was capable of

performing work as a cleaner and polisher, which has a reasoning level of one.

Moreover, Bacon does not assert that his limitations to “simple, routine, and

repetitive tasks” apparently conflict with the cleaner and polisher job’s reasoning

level.

         Instead, he challenges that there was a different apparent conflict as to the

cleaner and polisher job because his RFC limits him to “lower stress work

environment[s], without fast[ paced] production quotas” while the DOT describes

the position as requiring constant reaching, handling, and near acuity. DOT

709.687 010. However, a VE is an expert on the kinds of jobs that an individual

can perform and can give more specific information than the DOT, and here, the

VE concluded that the hypothetical individual that the ALJ posed—to which

Bacon did not object and which accurately incorporated Bacon’s restrictions—was

capable of performing work as a cleaner and polisher. See Phillips, 

357 F.3d at

1240

; see also SSR 00-4p. And when the ALJ directly asked if her opinion would

change based on Bacon’s limitation to a lower stress work environment without




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fast paced production quotas, the VE reaffirmed that Bacon still could perform

work as a cleaner and polisher with those additional limitations.

      Moreover, there does not appear to be any “apparent” conflict between

Bacon’s RFC limitations and the DOT’s reaching, handling, and near acuity

requirements, which, notably, do not appear in the job’s main description

paragraph. See DOT 709.687 010. The ALJ found that, as for Bacon’s physical

limitations, he could lift and carry certain amounts, stand and walk for certain

periods of time, and should generally avoid climbing and hazardous industrial

machinery. However, the ALJ evaluated Bacon’s mental limitations separately

and specifically determined that he was better suited for lower stress work without

fast paced production quotas due to his mental difficulty with “adapting and

managing [him]self.” As such, unlike the contradiction between the terms

“occasionally” and “frequently” at issue in Washington, constant reaching,

handling, and near acuity with respect to cleaning and polishing items does not so

clearly contradict the RFC limitations on stress and production quotas that were

imposed due to Bacon’s mood disorder, rather than his physical impairments. See

Washington, 906 F.3d at 1366.

      Thus, it is not “reasonably ascertainable” or “evident” from the DOT

description of the cleaner and polisher job that a person who was limited to a lower

stress work environment without past paced production quotas could not perform


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that work. See Washington, 906 F.3d at 1356. Accordingly, the ALJ did not err in

relying on the VE’s opinion, and we affirm as to this issue.

                                          II.

      When the Appeals Council denies review, we only look to the evidence that

was actually presented to the ALJ in determining whether the ALJ’s decision is

supported by substantial evidence. Falge v. Apfel, 

150 F.3d 1320

, 1323 (11th Cir.

1998). Statements by counsel in briefs are not evidence. Travaglio v. Am. Express

Co., 

735 F.3d 1266

, 1270 (11th Cir. 2013).

      Work exists in the national economy when it exists in significant numbers

either in the region where the claimant lives or in several other regions of the

country. 20 C.F.R. § 404.1566(a). The ALJ, relying on the VE’s testimony,

determines whether a specific number of jobs constitutes a significant number. 20

C.F.R. § 404.1560(c); see Phillips, 

357 F.3d at 1240

. Although we previously

have not addressed in a published opinion how many jobs constitute a significant

number, we have upheld an ALJ’s finding that 174 small appliance repairman

positions in the area in which the claimant resided, 1,600 general appliance repair

jobs in Georgia, and 80,000 jobs nationwide established the existence of work in

significant numbers. See Allen v. Bowen, 

816 F.2d 600

, 602 (11th Cir. 1987).

      Among other sources of job data, the Commissioner will take administrative

notice of the DOT, as well as the Occupational Outlook Handbook, published by


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         USCA11 Case: 20-13974      Date Filed: 06/23/2021   Page: 11 of 13



the Bureau of Labor Statistics (“BLS”). 20 C.F.R. § 404.1566(d)(1), (5). In

Goode, a VE presented flawed testimony by converting the DOT code for a bakery

worker to the wrong Specific Occupational Classification (“SOC”) group code to

determine the number of available jobs, and neither the VE nor the Commissioner

provided the actual number of available jobs, and the VE’s numbers were

substantially overstated because the SOC group code represented the aggregate

number of jobs available for 65 separate DOT codes, rather than the specific DOT

code that applied to the claimant. Goode v. Comm’r of Soc. Sec., 

966 F.3d 1277

,

1282-83 (11th Cir. 2020). There, we reversed and held that when an ALJ relies on

a VE’s testimony regarding the number of jobs available in the national economy

that the claimant could perform, “that testimony cannot be both internally

inconsistent and incomplete.” 

Id. at 1285-86

. We also recognized that Goode was

“not a case in which the claimant failed to challenge or question the [VE’s]

methodology or job numbers.” 

Id. at 1284 n.3

 (emphasis added). Rather, the

record showed that the claimant there had made several attempts during her

hearing to question the VE about his flawed testimony and credibility, but the ALJ

had cut the claimant’s questioning short by urging her to “move on.” 

Id.

      Here, substantial evidence supported the ALJ’s finding that cleaner and

polisher jobs existed in significant numbers in the national economy. The ALJ

could make this determination with evidence through a VE’s testimony, and the


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VE here estimated that there were 325,000 cleaner and polisher jobs in the national

economy. See Phillips, 

357 F.3d at 1240

. And when the Appeals Council denies

review, as here, this Court’s review is limited to deciding whether the ALJ’s

decision was supported by substantial evidence and may not decide the facts anew.

See Winschel, 

631 F.3d at 1178

. Thus, we must look only to the evidence that was

presented to the ALJ, and not evidence that was subsequently presented to the

district court or this Court. See Falge, 

150 F.3d at 1323

.

      At Bacon’s hearing, the only evidence presented to the ALJ regarding the

availability of cleaner and polisher jobs was through the VE’s testimony that there

were 325,000 of them in the national economy. In the district court and on appeal,

Bacon suggests that other evidence—i.e., evidence not presented to the ALJ or

Appeals Council and not included in the administrative record—might show that

the VE’s testimony about the number of cleaner and polisher jobs far

overestimated the actual number. But, Bacon did not present such evidence before

the ALJ, nor did he object to the VE’s testimony or inquire further into her

methodology. In fact, he stipulated that the VE was qualified to testify. Thus,

unlike Goode, this was a case in which the claimant failed to challenge or question

the VE’s methodology or job numbers. See Goode, 966 F.3d at 1284 n.3.

Furthermore, because the VE’s testimony is the only evidence regarding the

number of jobs available in the record, this Court is foreclosed from considering


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other evidence suggested by Bacon in the district court and on appeal. See Falge,

150 F.3d at 1323

.

      Thus, the VE’s testimony that there were 325,000 cleaner and polisher jobs

available in the national economy was neither clearly and unmistakably wrong on

its face, nor was it internally inconsistent and incomplete. See Goode, 966 F.3d at

1285-86. Furthermore, considering that this Court has stated that as few as 80,000

jobs nationally constituted a significant number, the ALJ’s step five finding was

supported by substantial evidence. See Allen, 

816 F.2d at 602

. We therefore

affirm on this issue.

      AFFIRMED.




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