# Partipilo v. Commissioner of Social Security

> District Court, M.D. Florida · July 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10113346

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113346

## How later opinions describe it (automated extraction)

- finding 840 jobs in the national economy constituted a significant number

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SAVANNAH PARTIPILO,

Plaintiff,

v. Case No: 8:22-cv-1461-JSS

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.
___________________________________/

ORDER

Plaintiff Savannah Partipilo seeks judicial review of the denial of her claim for
a period of disability and disability insurance benefits. As the Administrative Law
Judge’s (ALJ) decision was based on substantial evidence and employed proper legal
standards, the decision is affirmed.
BACKGROUND
A. Procedural Background
Plaintiff filed an application for a period of disability and disability insurance
benefits (DIB) on October 12, 2013. (Tr. 18, 1708, 1926.) The Commissioner denied
Plaintiff’s claims both initially and upon reconsideration. (Tr. 118–21, 127–30.) Upon
Plaintiff’s request, the ALJ held a hearing on April 13, 2016, at which Plaintiff
appeared and testified. (Tr. 37–66, 141–43.) Following the hearing, the ALJ issued
an unfavorable decision dated July 1, 2016, finding Plaintiff not disabled. (Tr. 15–36.)
Subsequently, Plaintiff requested a review from the Appeals Council, which the
Appeals Council denied. (Tr. 1–6.) Plaintiff then timely filed a complaint in the
United States District Court for the Northern District of Florida, and the case was

remanded for further proceedings. (Tr. 1797–1822.) On August 19, 2020, the same
ALJ held another hearing, and on November 3, 2020, issued a new decision finding
Plaintiff not disabled and denying Plaintiff’s claims for benefits. (Tr. 1684–1715,
1726–91.) On May 18, 2022, the Appeals Council denied Plaintiff’s request for review
of the ALJ’s November 3, 2020 decision. (Tr. 1680–82.) Plaintiff then timely filed a

complaint with this court. (Dkt. 1.) The case is now ripe for review under 42 U.S.C.
§ 405(g).
B. Factual Background and the ALJ’s Decision
Plaintiff, who was born in 1969, claimed disability beginning on July 1, 2008,

later amended to April 1, 2012. (Tr. 194, 1687, 1706, 1749, 1934, 1954.) Plaintiff has
one year of college education and past relevant work experience as a taxi driver,
cashier, and dancer. (Tr. 200, 1706.) Plaintiff alleged disability due to scoliosis both
thoracic and lumbar, acute renal failure, arachnoid cyst in spine caused neuropathy,
spinal stenosis, bipolar, attention deficit disorder, depression, degenerative disc

disease, neuropathy, and osteoarthritis. (Tr. 199.)
In rendering the decision, the ALJ concluded that Plaintiff had not performed
substantial gainful activity since April 1, 2012, the amended alleged onset date. (Tr.
1689.) After conducting a hearing and reviewing the evidence of record, the ALJ
determined that Plaintiff had the following severe impairments: degenerative disc
disease (DDD), history of thoracic arachnoid cyst status post-surgical removal,
scoliosis, degenerative joint disease (DJD), history of adrenal insufficiency, asthma,

affective disorder, anxiety disorder, and attention deficit disorder (ADD). (Tr. 1690.)
Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 1690–
94.) The ALJ then concluded that Plaintiff retained a residual functional capacity

(RFC) to
perform sedentary work as defined in 20 CFR 404.1567(a) except she was
limited to occasional climbing and balancing with no climbing of ladders,
ropes or scaffolds; she would need to avoid concentrated exposure to
extreme cold, extreme heat, vibration, and pulmonary irritants; and she
would need to avoid even moderate exposure to hazards. She was further
limited to simple routine tasks; occasional interaction with supervisors,
coworkers and the public; and gradual change in a routine work setting.
(Tr. 1694.) In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective
complaints and determined that, although the evidence established the presence of
underlying impairments that reasonably could be expected to produce the symptoms
alleged, Plaintiff’s statements as to the intensity, persistence, and limiting effects of her
symptoms were not entirely consistent with the medical evidence and other evidence
in the record. (Tr. 1695.)
Considering Plaintiff’s RFC and the assessment of a vocational expert (VE), the
ALJ determined that Plaintiff could not perform her past relevant work but could
perform other jobs existing in significant numbers in the national economy, such as
escort vehicle driver, painter, and tube operator. (Tr. 1706–07.) Accordingly, based
on Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the
ALJ found Plaintiff not disabled. (Tr. 1708.)

APPLICABLE STANDARDS
To be entitled to benefits, a claimant must be disabled, meaning that the
claimant must be unable to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a continuous period of not less
than twelve months. 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment” is
an impairment that results from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques. 42 U.S.C. § 423(d)(3).
The Social Security Administration, in order to regularize the adjudicative
process, promulgated the detailed regulations currently in effect. These regulations
establish a “sequential evaluation process” to determine whether a claimant is
disabled. 20 C.F.R. § 404.1520. If an individual is found disabled at any point in the

sequential review, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a). Under this
process, the ALJ must determine, in sequence, the following: (1) whether the claimant
is currently engaged in substantial gainful activity; (2) whether the claimant has a
severe impairment, i.e., one that significantly limits the ability to perform work-related
functions; (3) whether the severe impairment meets or equals the medical criteria of
20 C.F.R. Part 404, Subpart P, Appendix 1; and, (4) whether the claimant can perform
his or her past relevant work. If the claimant cannot perform the tasks required of his
or her prior work, step five of the evaluation requires the ALJ to decide if the claimant

can do other work in the national economy in view of the claimant’s age, education,
and work experience. 20 C.F.R. § 404.1520(a). A claimant is entitled to benefits only
if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); 20
C.F.R. § 404.1520(g).
A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal
standards. See 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197,

229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court
reviews the Commissioner’s decision with deference to the factual findings, no such
deference is given to the legal conclusions. Keeton v. Dep’t of Health & Hum. Servs., 21
F.3d 1064, 1066 (11th Cir. 1994).
In reviewing the Commissioner’s decision, the court may not decide the facts

anew, re-weigh the evidence, or substitute its own judgment for that of the ALJ, even
if it finds that the evidence preponderates against the ALJ’s decision. Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s failure to apply
the correct law, or to give the reviewing court sufficient reasoning for determining that
he or she has conducted the proper legal analysis, mandates reversal. Keeton, 21 F.3d
at 1066. The scope of review is thus limited to determining whether the findings of
the Commissioner are supported by substantial evidence and whether the correct legal

standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002).
ANALYSIS
Plaintiff’s sole argument on appeal is whether the ALJ erred by relying on

“unreliable and false” VE testimony. (Dkt. 19 at 3.) Plaintiff’s argument is two-fold.
First, Plaintiff argues that the VE overestimated the number of jobs in the national
economy that Plaintiff could perform. (Id. at 4–5.) Second, Plaintiff challenges the
VE’s inability to explain the methodology that he used to arrive at that number. (Id.
at 5–6.) The Commissioner responds that the ALJ reasonably relied on the VE’s

expertise, and that the VE’s testimony constitutes substantial evidence supporting the
ALJ’s decision. (Dkt. 20 at 7–11.) For the reasons that follow, Plaintiff’s contentions
do not warrant reversal.
At step five of the sequential evaluation process, the ALJ bears the burden “for
providing evidence that demonstrates that other work exists in significant numbers in

the national economy that [a claimant] can do, given [her] residual functional capacity
and vocational factors.” 20 C.F.R. § 404.1560(c)(2). “The ALJ may satisfy this
burden and provide this evidence through a VE’s testimony.” Brooks v. Barnhart, 133
F. App’x 669, 670 (11th Cir. 2005)1 (citation omitted); see also 20 C.F.R. § 404.1566(e)
(permitting the use of VEs to aid in determining the specific occupations a claimant
can perform). VEs may use a variety of data sources and methodologies to generate

job-number estimates. See Biestek v. Berryhill, 139 S. Ct. 1148, 1152–53 (2019)
(describing different types of data sources VEs may use); Goode v. Comm’r of Soc. Sec.,
966 F.3d 1277, 1284 (11th Cir. 2020) (“As far as we can tell from the cases and the
literature, there are various methods available to a vocational expert, to be used in

conjunction with his knowledge and expertise.”). The Supreme Court held that a VE’s
job-numbers testimony may constitute substantial evidence even if the VE, upon
request, refuses to disclose the underlying data on which the estimates were based.
Biestek, 139 S. Ct. at 1157; see also Bryant v. Comm’r of Soc. Sec., 451 F. App’x 838, 839
(11th Cir. 2012) (“The Social Security regulations provide that an ALJ may rely on a

VE’s knowledge and expertise, and they do not require a VE produce detailed reports
or statistics in support of her testimony.”). However, a VE may “offer testimony that
is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.”
Biestek, 139 S. Ct. at 1155–56. The substantial evidence inquiry for VE testimony must
proceed on a “case-by-case” basis, taking “into account all features of the vocational

expert’s testimony, as well as the rest of the administrative record.” Id. at 1157.
Here, the VE testified that an individual with Plaintiff’s age, education, work
experience, and RFC could “perform the requirements of representative occupations

1 In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See
11th Cir. R. 36-2.
such as escort vehicle driver (DOT 919.663-022), with approximately 600,000
positions in the national economy; painter (DOT 735.687-018), with approximately
12,000 positions in the national economy; and tube operator (DOT 239.687-014), with

approximately 3,000 positions in the national economy.” (Tr. 1706–07, 1777.)
Following this testimony, Plaintiff’s counsel asked: “On escort driver, how did you
come up with . . . 600,000 full time escort drivers nationally?” (Tr. 1785.) The VE
testified that he obtained those job numbers from Job Pro Browser, which he described
as “estimates done by the Department of Labor” which “SkillTrans has gotten . . . and

published them in that database.” (Tr. 1785–86.) Plaintiff’s counsel then objected to
the VE’s testimony “in regards to number of jobs, and especially for escort vehicle
driver.” (Tr. 1787.)
In her decision, the ALJ overruled Plaintiff’s objection, explaining:
At the hearing and in a post-hearing brief (Ex. C20E), the claimant’s
representative objected to these job numbers on the ground that the
vocational expert’s methodology for determining numbers of jobs is not
reliable and the numbers did not appear in Job Browser Pro per the
representative. The undersigned overrules this objection. The vocational
expert has professional knowledge and experience in job placement.
Accordingly, the vocational expert’s job information is found to be
reliable.
The regulations as currently written are clear on this matter. The
Administrative Law Judge (ALJ) does not determine who qualifies as an
expert witness. Rather, the Commissioner of the Social Security
Administration (SSA) designates who qualifies to be a vocational expert
(VE) (HALLEX I-2-5-48, I-2-5-52 and I-2-5-61). The Commissioner has
not delegated the power to override the decision with regard to the
qualifications of the VE to the ALJs. Despite the representatives’
challenge to the VE’s qualifications to provide testimony on job numbers
in the lengthy arguments set forth in the post-hearing brief, the
undersigned is bound to follow the law as it written. SSA has already
determined that Mr. Cowart is qualified to testify as a VE; and the
undersigned is permitted to ask the VE to provide the number of specific
jobs identified in the national economy (HALLEX I-2-5-55).
The representative argued that the VE’s job number methodology is
unreliable. However, in Bryant v. Commissioner of Social Security, 451 Fed.
Appx. 838, 839 (11th Cir. 2012), the 11th Circuit held that “the social
security regulations provide that an ALJ may rely on a [vocational
expert’s] knowledge and expertise, and they do not require a [vocational
expert] to produce detailed reports or statistics in support of her
testimony.” Thus, the VE’s expertise has already been established and
no additional foundation or disclosure is required with regard to the
testimony regarding job numbers. The undersigned recognizes Mr.
Cowart as a VE who is fully qualified by the SSA guidelines and in
accordance with the 11th Circuit.
Further, the 11th Circuit has determined that a total of only 23,800 jobs
in the national economy identified by the VE was based on substantial
evidence and constitutes a significant number in the national economy.
Atha v. Commissioner, Social Security Administration, 616 Fed. Appx. 931,
934-35 (11th Cir. 2015). Thus, assuming, arguendo, that the VE’s job
numbers are inaccurate, reducing them by 97 percent in this case would
still result in 24,000 total jobs available to this claimant in the national
economy, which the 11th Circuit has found to be significant.
Pursuant to SSR 00-4p, the undersigned has determined that the VE’s
testimony is consistent with the information contained in the Dictionary
of Occupational Titles, as supplemented by his own professional
education, training, experience, and research.
(Tr. 1707.)
Plaintiff first argues that the VE’s “testimony is clearly and unmistakably
wrong” because contrary to the VE’s estimates, “SkillTran does not indicate there are
600,000 escort vehicle drivers nationally.” (Dkt. 19 at 5.) Rather, Plaintiff argues that
“[a]ccording to a publication from SkillTran, there are an estimated 33,927 escort
vehicle drivers nationally. [sic] there are 2228 tube operator jobs and 29 painter jobs.”
(Id.) Plaintiff contends that “[e]ither the vocational witness did not know how to use
a Job Browser Pro, or falsely testified.” (Id.)
While Plaintiff’s job estimates differ substantially from those of the VE, the ALJ

found that even “reducing them by 97 percent in this case would still result in 24,000
total jobs available to this claimant in the national economy, which the 11th Circuit
has found to be significant.” (Tr. 1707); see Atha v. Comm’r of Soc. Sec., 616 F. App’x
931, 935 (11th Cir. 2015) (finding 23,800 jobs in national economy constituted a

“significant number”); Brooks, 133 F. App’x at 671 (finding 840 jobs in the national
economy constituted a significant number); Best v. Comm’r of Soc. Sec., No. 2:17-cv-219-
FtM-MRM, 2018 WL 3569255, at *7 (M.D. Fla. July 25, 2018) (finding 2,000 jobs
constituted a significant number of jobs in the national economy). Moreover, “[t]he
ALJ, relying on the VE’s testimony, and not the VE, determines whether a specific

number of jobs constitutes a significant number.” Brooks, 133 F. App’x at 670 (citation
omitted); see also Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309, 1318 (11th Cir. 2021)
(“Whether there are a significant number of jobs a claimant is able to perform with his
limitations is a question of fact to be determined by a judicial officer [i.e., the ALJ].”)
(quoting Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986)). And here, the ALJ

made an independent factual determination that even reducing the number of
positions would still result in a significant number of jobs that Plaintiff could perform.
Accordingly, to the extent there was any error in the VE’s job number estimate, such
error was harmless as it would not contradict the ALJ’s ultimate findings. See Garrow
v. Saul, No. 5:19-cv-586-Oc-18JBT, 2020 WL 5802493, at *5 (M.D. Fla. Aug. 19,
2020), report and recommendation adopted, 2020 WL 5797867 (M.D. Fla. Sept. 29, 2020)
(finding any error harmless where the plaintiff provided contrary job estimates derived

from Job Browser Pro because “[r]egardless of whether the VE’s estimate was exact,
the number of jobs that Plaintiff argues exists in the national economy (over 96,000) is
still more than sufficient to constitute a significant number of jobs”); see also Denomme
v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 877 (11th Cir. 2013) (“When, however,

an incorrect application of the regulations results in harmless error because the correct
application would not contradict the ALJ’s ultimate findings, the ALJ’s decision will
stand.”) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).
Further, as the Commissioner points out, “the relevant inquiry before this Court
is whether the VE’s testimony constitutes substantial evidence supporting the ALJ’s

decision, not whether substantial evidence supports the VE’s testimony.” (Dkt. 20 at
7 (citing Pace v. Comm’r of Soc. Sec., 760 F. App’x 779, 781 (11th Cir. 2019).) The VE,
whose education and experience include a master’s degree and over thirty years as a
vocational rehabilitation counselor, and whose qualifications Plaintiff did not
challenge (see Tr. 1775), repeatedly confirmed that his testimony was consistent with

the Dictionary of Occupational Titles (DOT) and its companion publications. (Tr.
1776–78, 1950–52.) The ALJ found the VE’s job information reliable based upon the
VE’s “professional knowledge and experience in job placement.” (Tr. 1707.)
Accordingly, the VE’s testimony constitutes substantial evidence upon which the ALJ
could rely. See Bryant, 451 F. App’x at 839; see also Curcio v. Comm’r of Soc. Sec., 386 F.
App’x 924, 926 (11th Cir. 2010) (“the Social Security regulations clearly allow that the
Commissioner may rely on a VE for her knowledge or expertise”) (citing 20 C.F.R. §§

404.1560(b)(2), 404.1566(e), 416.960(b)(2), 416.966(e); Bayliss v. Barnhart, 427 F.3d
1211, 1218 (9th Cir. 2005) (“A VE’s recognized expertise provides the necessary
foundation for his or her testimony. Thus, no additional foundation is required.”)).
Finally, although Plaintiff’s job number estimates could support a different
conclusion, this court must affirm if the ALJ’s decision is supported by substantial

evidence. See Bloodsworth, 703 F.2d at 1239; see also Feliciano v. Comm’r of Soc. Sec., No.
5:19-cv-428-Oc-18PRL, 2020 WL 5947878, at *3 (M.D. Fla. Sept. 3, 2020), report and
recommendation adopted, 2020 WL 5946624 (M.D. Fla. Oct. 7, 2020) (“[T]he fact that
job number data presented by Plaintiff might support an alternative finding is not itself

determinative. This Court’s job is not to reweigh the evidence; rather, it must affirm
if substantial evidence supports the ALJ’s decision even if the evidence was susceptible
to more than one interpretation.”); De Lashmit v. Comm’r of Soc. Sec., No. 2:17-cv-363-
FtM-99CM, 2018 WL 4610611, at *10 (M.D. Fla. July 19, 2018), report and
recommendation adopted, 2018 WL 3954341 (M.D. Fla. Aug. 17, 2018) (“although the

data presented by Plaintiff both to the Appeals Council and to this Court could support
an alternative finding, the question for the Court is whether substantial evidence
supports the ALJ’s findings, not whether the record could support a different one”);
Davis v. Berryhill, No. 17-cv-293-N, 2018 WL 2208432, at *7 (S.D. Ala. May 14, 2018)
(“even assuming that the data from Job Browser Pro constitutes substantial evidence,
the data would only support an alternative finding regarding the number of jobs
available for plaintiff in the economy”). Accordingly, the ALJ did not err in relying

upon the VE’s testimony.
Second, Plaintiff argues that “even if, arguendo, the vocational witness relied
on information provided by SkillTran, when asked about her (sic) methodology in
estimating the job numbers, the vocational witness could not explain the
methodology.” (Dkt. 19 at 5.) Plaintiff relies on Milner v. Kijakazi, No. cv 20-1016

KK, 2022 WL 1125402 (D.N.M. Apr. 15, 2022), an unpublished district court decision
from outside this Circuit, for the proposition that a VE’s reliance on SkillTRAN alone
is not sufficient to constitute reliable testimony.
Contrary to Plaintiff’s assertion that the VE “could not explain the
methodology[,]” (Dkt. 19 at 5), the VE explained that “the Department of Labor has

done some estimates, . . . [a]nd SkillTrans has gotten that information from the
Department of Labor, . . . and published them in that database.” (Tr. 1785–86.) This
demonstrates that the VE understood SkillTRAN’s methodology. See Frankie M. v.
Kijakazi, No. 1:20-cv-228-JVB, 2022 WL 168094, at *2 (N.D. Ind. Jan. 19, 2022)

(finding that the VE’s testimony regarding job numbers was sufficiently reliable, where
“[t]he VE used the SkillTRAN program, which is accepted in the field, and the VE
was able to descriptively, though not mathematically, explain how the program
derived its estimates of job numbers”).
Moreover, the Eleventh Circuit has endorsed Job Browser Pro as an acceptable
method for a VE to assess job numbers. See Goode v. Comm’r of Soc. Sec., 966 F.3d 1277,
1284 (11th Cir. 2020) (explaining that one method for estimating job numbers is “the

occupational density method” which “approximates job numbers using a software
program known as JobBrowser Pro from SkillTRAN, which interprets available
data”); Breaux v. Comm’r of Soc. Sec., No. 20-21917-CIV, 2021 WL 3721547, at *2 (S.D.
Fla. Aug. 23, 2021) (“Contrary to Plaintiff’s position, the Eleventh Circuit has
endorsed Job Browser Pro as a tool for interpreting and presenting jobs data.”) (citing

Goode, 966 F.3d at 1284); Eminisor v. Comm’r of Soc. Sec., No. 3:19-cv-974-J-PDB, 2020
WL 5810237, at *6 (M.D. Fla. Sept. 30, 2020) (“The vocational expert’s use of Job
Browser Pro does not diminish the reliability of his testimony. Even if he did not know
exactly how Job Browser Pro determines the percentages, Job Browser Pro is used by

most vocational consultants he knows, indicating its reliability as a way to determine
job numbers.”). Moreover, the VE’s education and over thirty years’ experience as a
counselor in vocational rehabilitation provide an adequate basis for relying on his
testimony regarding using SkillTRAN.
In sum, the evidence here constitutes “more than a mere scintilla[,]” see Biestek,

139 S. Ct. at 1154, and provides an adequate foundation for the VE’s job estimates.
Accordingly, the ALJ properly relied on the VE’s testimony to conclude that a
substantial number of jobs exist in the national economy that Plaintiff could perform,
and her decision is supported by substantial evidence.
CONCLUSION
Accordingly, after due consideration and for the foregoing reasons:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk of Court is directed to enter final judgment in favor of the
Commissioner and close the case.
ORDERED in Tampa, Florida, on July 6, 2023.

JULIE §. SNEED
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113346. Public record. Not legal advice.