Rodney T. Peterson v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10086
Non-Argument Calendar
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D.C. Docket No. 2:19-cv-00566-JES-NPM
RODNEY T. PETERSON,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 27, 2021)
Before LUCK, LAGOA and DUBINA, Circuit Judges.
PER CURIAM:
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Appellant Rodney Peterson appeals the district court’s order affirming the
Social Security Commissioner’s (“Commissioner”) denial of his claim for
supplemental security income (“SSI”). On appeal, Peterson argues that the
administrative law judge (“ALJ”) failed to resolve inconsistencies between the
vocational expert’s (“VE”) testimony and the Dictionary of Occupational Titles
(“DOT”) description of the jobs of marker and advertising material distributor. He
also argues that the ALJ’s residual functional capacity (“RFC”) determination was
not supported by substantial evidence because it did not include a spelling
limitation. Finally, he argues that there was insufficient evidence to support the
ALJ’s finding that he had a limited education and could not read at the
fourth-grade level. After reading the parties’ briefs and reviewing the record, we
affirm the district court’s order denying SSI benefits.
I.
Peterson applied for SSI on October 29, 2015, alleging he had become
disabled on December 28, 2013. After a hearing, an ALJ issued a decision denying
Peterson’s application, and the Appeals Council denied Peterson’s request for
review. Peterson then filed an action in federal district court, and a magistrate
judge issued a report and recommendation (“R&R”) recommending that the district
court affirm the Commissioner’s decision. The district court issued an order and
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judgment adopting the magistrate judge’s R&R and affirmed the Commissioner’s
decision. Peterson then perfected the instant appeal.
II.
When an ALJ denies benefits and the appeals council denies review, “we
review the ALJ’s decision as the Commissioner’s final decision.” Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review de novo the legal
principles upon which an ALJ based its decision but review the resulting decision
to determine whether it is supported by substantial evidence. Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). “[T]he threshold for such evidentiary
sufficiency is not high.” Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154
(2019). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.”
Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011)
(quotation marks omitted). “We may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the Commissioner.” Id. (quotation
marks and brackets omitted). Rather, if the ALJ’s decision is supported by
substantial evidence, we defer to that decision even if the evidence may
preponderate against it. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59
(11th Cir. 2004).
III.
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A disability is defined as an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or 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).
The mere diagnosis of a medical impairment is insufficient, as it does not reveal
the extent to which the impairment limits the claimant’s ability to work. Moore,
405 F.3d at 1213 n.6.
An individual claiming Social Security disability benefits must prove that he
is disabled. Id. at 1211. The Social Security regulations establish a five-step,
“sequential” process for determining whether a claimant is disabled. 20 C.F.R.
§ 416.920(a)(1). Throughout the process, the burden is on the claimant to
introduce evidence in support of his application for benefits. Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003). If an ALJ finds a claimant disabled or not
disabled at any given step, the ALJ does not go on to the next step. 20 C.F.R.
§ 416.920(a)(4).
At the first step, the ALJ must determine whether the claimant is currently
engaged in substantial gainful activity. Id. § 416.920(a)(4)(i), (b). At the second
step, the ALJ must determine whether the impairment or combination of
impairments for which the claimant allegedly suffers is “severe.” Id.
§ 416.920(a)(4)(ii), (c). At the third step, the ALJ must decide whether the
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claimant’s severe impairments meet or medically equal a listed impairment. Id.
§ 416.920(a)(4)(iii), (d). Where, as here, the ALJ finds that the claimant’s severe
impairments do not meet or equal a listed impairment, the ALJ must then
determine, at step four, whether he has the RFC to perform his past relevant work.
Id. § 416.920(a)(4)(iv), (e)-(f). “[RFC] is an assessment . . . of a claimant’s
remaining ability to do work despite his impairments.” Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997).
If the claimant cannot perform his past relevant work, the ALJ must then
determine, at step five, whether the claimant’s RFC permits him to perform other
work that exists in the national economy. 20 C.F.R. § 416.920(a)(4)(v), (g). The
ALJ may satisfy that burden and provide that evidence through a VE’s testimony.
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.
Finally, the burden shifts back to the claimant to prove he is unable to perform the
jobs suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987). An ALJ is not required to include in either the RFC or the hypothetical
posed to the vocational expert any limitations that are not supported by the record.
Crawford, 363 F.3d at 1161.
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According to 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 Social Security
Administration is nevertheless bound to follow it, even where the internal
procedures espoused in that interpretation are more rigorous than otherwise would
be required. Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1361 (11th Cir.
2018). 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
that an ALJ’s failure to discharge that duty means that the ALJ’s decision is not
supported by substantial evidence. Id. at 1362. We noted that “apparent” means
“apparent to an ALJ who has ready access to and a close familiarity with the
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DOT.” Id. at 1366. In other words, the ALJ is required to identify conflicts that
are “reasonably ascertainable or evident.” Id.
IV.
Here, the ALJ found that Peterson could perform the jobs of marker and
advertising material distributor. An individual working as a marker marks and
attaches price tickets to articles of merchandise to record price and identifying
information, marks selling price by hand on boxes containing merchandise, or on
price tickets; ties, glues, sews, or staples price ticket to each article; presses lever
or plunger of mechanism that pins, pastes, ties, or staples ticket to article; may
record number and types of articles marked and pack them in boxes; may compare
printed price tickets with entries on purchase order to verify accuracy and notify
supervisor of discrepancies; and may print information on tickets, using a ticket-
printing machine. DOT 209.587-034. The job requires a reasoning level of two,
which requires the individual to “apply commonsense understanding to carry out
detailed but uninvolved written or oral instructions” and “[d]eal with problems
involving a few concrete variables in or from standardized situations.” Id. It
requires a math level of one and a language level of one, including printing simple
sentences containing subject, verb, and object, and series of numbers, names, and
addresses. Id.
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An individual working as an advertising material distributor distributes
advertising material “from house to house, to business establishments, or to
persons on street, following oral instructions, street maps, or address lists.” DOT
230.687-010. The job requires a reasoning level of one, a math level of one, and a
language level of one, including printing simple sentences containing subject, verb,
and object, and series of numbers, names, and addresses. Id. It requires constant
exposure to weather but does not require exposure to any extreme cold, extreme
heat, or wetness. Id.
Based on our review of the record, we are persuaded that the ALJ properly
relied on VE testimony to determine that Peterson could perform the jobs of
marker and advertising material distributor. We conclude that there was no
apparent conflict between an RFC limitation to simple, routine, repetitive tasks and
the DOT’s description of jobs requiring level two reasoning. See Valdez v.
Comm’r of Soc. Sec., 808 F. App’x 1005, 1009 (11th Cir. 2020) (indicating that an
RFC limitation to simple, routine, repetitive tasks does not conflict with a level
three reasoning requirement). Additionally, we conclude that there is no apparent
conflict between Peterson’s RFC limitations and the level two reasoning
requirements. The record indicates that a psychological consultant found that
Peterson was only moderately limited in his ability to carry out detailed
instructions, would need repetition of only some of the more detailed instructions,
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and was able to meet the mental demands of a simple vocation on a sustained basis
despite the limitations resulting from any impairment. This provides sufficient
evidence to support the ALJ’s decision not to include a limitation to only simple
instructions in Peterson’s RFC.
Moreover, the record demonstrates that the ALJ did not err by failing to
raise any alleged conflict between an RFC limitation to avoid concentrated
exposure to cold or wetness and the indication that an advertising distributor will
be subject to constant exposure to weather. Under the DOT classifications,
extreme cold, wet and/or humid, and exposure to weather are listed as separate
characteristics for occupations. DOT 230.687-010. Further, the DOT description
of advertising distributor specifically states that extreme cold and wetness are not
conditions that exist for jobs in this occupation. See id. Peterson claims that a
conflict exists because one RFC commentary was that he should avoid very wet
floors because of his balance issues. However, the ALJ did not include this
limitation in Peterson’s RFC, so no conflict exists between the RFC and the DOT
description of advertising distributor. Further, Peterson does not explain how the
advertising distributor job would expose him to very wet floors, given that the job
requires walking or driving from house to house or business to business. In sum,
the record shows that the ALJ properly relied on VE testimony to determine that
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there were a significant number of jobs in the national economy Peterson could
perform with his RFC.
V.
Peterson contends that the ALJ’s RFC assessment failed to include
limitations on his spelling skills and that the jobs the ALJ found he could perform
required language skills that exceeded his abilities. However, the record
demonstrates that the ALJ’s decision not to include a spelling limitation in
Peterson’s RFC was supported by substantial evidence. The record shows that
Peterson can read at a fourth-grade level, that he had a full-scale intelligence
quotient (“IQ”) score of 93 in fifth grade, that he attended school through at least
the tenth grade, and that he successfully filled out disability forms by hand.
Because a spelling limitation to less than kindergarten levels is contradicted by the
record, the ALJ did not err in failing to include it in Peterson’s RFC. Furthermore,
Peterson has failed to demonstrate that he is unable to perform the jobs suggested
by the VE based on any spelling limitations and, thus, has not met his burden of
showing that he is unable to perform the jobs of marker and advertising distributor
VI.
Peterson argues that the evidence that he completed the tenth grade in high
school does not indicate that he has limited education, but rather, the evidence
indicates that he might be functionally illiterate. Peterson asserts that he acquired a
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neurocognitive disorder after he was aged 21 and his newer IQ score of 63 is more
relevant than the IQ score from fifth grade. Thus, Peterson argues that the ALJ’s
finding that he had limited education was not supported by substantial evidence.
The regulations generally consider the seventh through eleventh grade level
of formal education to be a “limited education.” 20 C.F.R. § 416.964(b)(3).
However, the numerical grade alone may not be sufficient to determine an
individual’s educational abilities depending on the evidence presented. See id.
§ 416.964(b). The record demonstrates that Peterson did complete the tenth grade,
which indicates a limited education level. See id. § 416.964(b)(3). The record also
does not contain objective evidence confirming the existence of a traumatic brain
injury, as alleged by Peterson. Moreover, Peterson fails to demonstrate that the
ALJ should have found him to be illiterate because Peterson indicated that he could
read and understand English and write more than his name. Peterson also
completed his function report without assistance from anyone, indicating that he is
not illiterate. Based on our review of the record, we conclude that the ALJ
properly concluded that Peterson had a limited education level and was not
functionally illiterate, but rather could read at the fourth-grade level.
Accordingly, for the aforementioned reasons, we affirm the district court’s
order affirming the Commissioner’s denial of SSI benefits to Peterson.
AFFIRMED.
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