Mowery v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ELIZABETH A. MOWERY,

Plaintiff,

v. Case No. 6:22-cv-2314-ACC-LLL

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

ORDER

This cause is before the Court on the Complaint of Plaintiff Elizabeth Mowery

seeking review of the final decision of the Commissioner of Social Security (the

“Commissioner”) denying her application for Supplemental Security Income

(“SSI”) under the Social Security Act. See 42 U.S.C. §§ 405(g), 1383(c)(3). (Doc.

1). The United States Magistrate Judge has submitted a report recommending that

the decision of the Commissioner be affirmed. (Doc. 25).

After an independent de novo review of the record in this matter, including

the Objections filed by Plaintiff Mowery (Doc. 26) and the Commissioner’s

Response1 (Doc. 27), the Court agrees entirely with the findings of fact and

1 The Commissioner’s Response to Plaintiff’s Objections (Doc. 27) incorporated the

conclusions of law in the Report and Recommendation, and the Commissioner’s

decision will be affirmed.

I. BACKGROUND

The Court briefly sets forth the relevant procedural history. On September

18, 2019, Plaintiff filed her application for SSI benefits, alleging disability

beginning on August 1, 2019, when she was 51 years old, due to neuropathy in both

feet, strokes, spinal stenosis, arthritis, diabetes, high blood pressure, chronic

obstructive pulmonary disease (“COPD”), anxiety, bronchial problems, asthma,

severe foot pain, chronic knee pain, vein blockage, and a heart issue. R. 125, 140,

319.

After her application was denied initially and on reconsideration, on

February 17, 2022, an Administrative Law Judge (“ALJ”) held a hearing at

Plaintiff’s request. R. 102-23, 139-64, 167-78. Considering Plaintiff’s age,

education, work experience as a merchandise distributor, and residual functional

capacity, the ALJ determined that Plaintiff could perform light work with

additional limitations, and, although she was unable to perform any past relevant

work, there were jobs existing in significant numbers in the national economy that

she could perform, including office helper, mail clerk, and bench worker. R. 79-95.

On March 29, 2022, the ALJ issued a decision finding Plaintiff not disabled through

the date of the decision. R. 74-101. Plaintiff appealed the ALJ’s decision to the

Appeals Council, which denied Plaintiff’s request for review on October 4, 2022, and

granted a thirty-day extension for filing of a civil action. R. 5, 10-16. Thereafter, on

December 13, 2022, Plaintiff filed her Complaint in this Court. (Doc. 1).

II. LEGAL STANDARDS

A. Review of Magistrate Judge’s Report & Recommendation

In the Eleventh Circuit, a district judge may accept, reject or modify a

magistrate judge’s report and recommendation after conducting a careful and

complete review of the findings and recommendations. 28 U.S.C. § 636(b)(1);

Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). A district judge must

conduct a de novo review of the portions of a magistrate judge’s report and

recommendation to which a party objects. 28 U.S.C. § 636(b)(1)(C). The district

judge “may accept, reject, or modify, in whole or in part, the findings or

recommendations” made by the magistrate judge. Id. This requires that the district

judge “give fresh consideration to those issues to which specific objection has been

made by a party.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990)

(citing H.R. Rep. No. 94–1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S.Code

Cong. & Admin. News 6162, 6163). A district judge reviews legal conclusions de

novo, even in the absence of an objection. See Cooper–Houston v. Southern Ry., 37

F.3d 603, 604 (11th Cir. 1994).

B. Social Security Sequential Evaluation Process

When an ALJ makes a disability determination, the ALJ follows a five-step

evaluation process: (1) whether Plaintiff is currently performing substantial gainful

activity; (2) whether Plaintiff has a severe impairment or combination of

impairments; (3) whether the severe impairment meets or exceeds an impairment in

the Listings of Impairments; (4) whether the Plaintiff can perform her past relevant

work despite the impairment; and (5) whether Plaintiff can perform other jobs that

exist in the national economy given her residual functional capacity (“RFC”), age,

education, and work experience. Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094,

1101–02 (11th Cir. 2021)2; 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Plaintiff has

the burden of proof on the first four steps; the Commissioner carries the burden on

the fifth step. Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1279 (11th Cir. 2020).

The Eleventh Circuit has explained that, in Social Security appeals, the court

“must determine whether the Commissioner’s decision is supported by substantial

evidence and based on proper legal standards.” Winschel v. Comm’r of Soc. Sec.,

631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence is more than a scintilla

and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Id. The court “will affirm the Commissioner’s decision if it

is supported by substantial evidence, even if the preponderance of the evidence

weighs against it.” Buckwalter v. Acting Comm'r of Soc. Sec., 5 F.4th 1315, 1320

(11th Cir. 2021). Under this limited standard of review, a court must not make fact-

findings, re-weigh the evidence, or substitute its judgment for that of the ALJ. See

id.

III. PLAINTIFF’S OBJECTIONS

Plaintiff’s objections to the ALJ’s decision, and the Magistrate Judge’s Report

& Recommendation affirming that decision, focus on four main issues. Plaintiff’s

Objections restate four of the five arguments she made in the original briefing, albeit it

slightly streamlined. Compare Doc. 26 at 1-2 with Doc. 15 at 5-20. Plaintiff argues

essentially that the ALJ failed to properly evaluate: (1) the testimony of the

vocational expert (“VE”) regarding other jobs in the national economy Plaintiff

could perform; and (2) the walking/standing components of the three cited jobs; (3)

Plaintiff’s subjective physical complaints; and (4) the consultative psychologist’s

opinion. (Doc. 26). The Commissioner responds that Plaintiff inappropriately asks the

Court to “play the role of the ALJ and reweigh the evidence.” (Docs. 22, 27). The Court

first addresses Plaintiff’s RFC, the evidence supporting it, including her subjective

complaints and the opinion of the consultative psychologist, and then turns to the VE’s

testimony.

A. Objections Related to Plaintiff’s RFC and Subjective Complaints

The ALJ found “in light of Plaintiff’s pain and tenderness, she is limited to

light exertion, standing and/or walking 4 hours out of an 8-hour workday,

occasionally climbing, occasionally balancing, stooping, kneeling, crouching and

crawling, and tolerating frequent exposure to vibrating surfaces, tools and workplace

hazards; with additional mental limitations (discussed in § B infra). R. 82, 89.

Plaintiff argues that in determining her RFC, the ALJ failed to properly

evaluate her complaints of pain and numbness in her foot and leg, along with other

diabetes or vascular complications, which required her to use a cane. (Doc. 26 at 20-

21). She objects to the portion of the Report and Recommendation (“R&R”) finding

that the ALJ fairly considered Plaintiff’s cane usage unnecessary because, she

argues, some of the medical records cited in the R&R described a swollen right leg,

venous insufficiency of the leg, and foot and leg numbness, all of which she contends

support her use of a cane; she also points to a physician’s suggestion (Dr. Carter of

the North Jefferson Medical Center) that she use a cane. (Id.). She points to medical

records showing that she had a fracture in her right great toe, for which doctors

recommended she wear a boot, as well as complaints of leg swelling, numbness, and

pain, foot pain, headaches, and loss of vision. (Id. at 21 (citing R. 88, 1314, 1340,

1368)). The Commissioner argues that the ALJ properly incorporated Plaintiff’s

subjective complaints in partially limiting Plaintiff to a reduced range of light and

simple work with specific limitations and determined Plaintiff’s other subjective

allegations were inconsistent with the objective medical evidence. In the R&R,

Magistrate Judge Lambert thoroughly addressed the point Plaintiff now raises in

objection—Dr. Carter’s suggestion that Plaintiff use a cane—finding that the ALJ

had specifically considered Dr. Carter’s opinion on that issue and found it not

persuasive. (Doc. 25 at 12, 17).

To establish a disability based upon a complaint of pain, a claimant must

show: (1) evidence of an underlying medical condition; and (2) either (a) objective

medical evidence confirming the severity of the alleged pain, or (b) the objectively

determined medical condition can be reasonably expected to give rise to the claimed

pain. Raper v Comm’r of Soc. Sec., 89 F.4th 1261, 1277 (11th Cir. 2024) (quoting

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002)). “The claimant’s

subjective testimony supported by medical evidence that satisfies the standard is

itself sufficient to support a finding of disability.” Id. (citing Holt v. Sullivan, 921

F.2d 1221, 1223 (11th Cir. 1991) (per curiam). “[I]n certain situations, pain alone

can be disabling, even when its existence is unsupported by objective evidence.” Id.

(quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)).

“If the ALJ discredits subjective testimony, he must articulate explicit and

adequate reasons for doing so.” Wilson, 284 F.3d at 1225. “Failure to articulate the

reasons for discrediting subjective testimony requires, as a matter of law, that the

testimony be accepted as true.” Id. (citing Cannon v. Bowen, 858 F.2d 1541, 1545

(11th Cir. 1988)). A reviewing court will not disturb an ALJ’s clearly articulated

credibility finding that is supported by substantial evidence on the record. Foote, 67

F.3d at 1562 (citation omitted). Moreover, there is no requirement that the ALJ

specifically refer to every piece of evidence in her decision, so long as the reviewing

court can conclude the ALJ considered the claimant’s medical condition as a whole.

Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam).

In this case, the ALJ applied the correct standard and addressed in detail

Plaintiff’s subjective complaints by citing to specific medical records and statements

in the records:

In the disability report, the claimant stated that neuropathy in

both feet, two stroke[s], spinal stenosis, arthritis in both knees and back,

diabetes, high blood pressure, COPD, anxiety, bronchial issues, asthma,

severe pain – feet, chronic pain – knees, vein blockage and hole in the

heart, limited her ability to work. (Exhibit 2E)

In the function report, the claimant stated that she lived with

family. She stated that she has physical issues with dressing and

showering. However, she had no issues in other areas of personal care.

She can prepare simple meals. She can keep up laundry. She can shop

for groceries. She can manage finances. She spends time with others.

(Exhibit 6E)

In the pain questionnaire, the claimant stated that her spinal

stenosis cause[s] severe pain in her neck, shoulder, back and head.

(Exhibit 15E) . . . . In a second cardiac questionnaire, dated June 27,

2021, the claimant stated that she does not have any chest discomfort.

She stated that she has shortness of breath. She stated that she does not

go for walks anymore. (Exhibit 26E) In the disability appeal report, the

claimant stated that she can barely walk. She has pain in her hips. She

gets dizzy. (Exhibit 30E)

At the disability hearing [on February 17, 2022], the claimant

testified that she is fifty-three (53) years old. She is not currently

working. She stated that she stopped working in 2018. . . . She stopped

working due to knee, back and feet pain. She stated that she has

arthritis. She has neuropathy in the feet. She takes medication and she

experiences side effects. The medication makes her feel tired. She

stated that she broke her knees and back. She experienced a recent fall

in Georgia that occurred in January 2022. She stated that prior to the

fall she was already limited in walking. She stated that she can sit for

ten to fifteen (10 to 15) minutes without pain. She stated that she needs

to use a walker. She needs to use a wheelchair. She cannot put pressure

on her back. She had surgery on her leg. She has experienced mini

She takes medication for depression and anxiety. She has been using a

wheelchair since January 2022. (Hearing Testimony)

R. 82-83 (emphasis added). The ALJ summarized medical records regarding

Plaintiff’s neuropathy in her feet due to diabetic complications from Type 2

diabetes—sometimes described as “uncontrolled”—and arthritis in her toes:

[O]n September 26, 2019, the claimant presented . . . due to right

foot pain. (Exhibit 12F/286) An X-Ray report of the right foot showed

mild chronic appearing degenerative arthritic changes in the small toes

. . . . The claimant stated that she noticed her feet were becoming

discolored. She smoked around a half pack of cigarettes a day. She

reported that she had a history of two transient ischemic attacks in

December 2018 and July 2019. (Exhibit 1F/3) . . . There was no

evidence of any lower-level edema noted. . . . She did have a small

dime-sized plantar pressure wound on the fifth metatarsal joint. . . . Her

sensation is slightly diminished due to peripheral diabetic neuropathy.

(Exhibit 1F/5) An image of the right foot revealed pressure ulcer to the

right foot and type II diabetes neuropathy. (Exhibit 1F/6)

On October 7, 2019, the claimant . . . underwent a sharp

debridement of her ulceration removing a small one (1) mm core in the

right foot. (Exhibit 1F/15) A physical examination showed that the

claimant ambulated in normal shoe gear. There were no signs of any

lesions. There was some discoloration and increased erythema in the

right foot. The claimant was instructed regarding proper management

of sugars, quality of shoe gear and monitoring the feet daily. (Exhibit

1F/17) On October 21, 2019, the records indicated that the claimant

would benefit from bilateral lower extremity angiography. (Exhibit

1F/28)

R. 83-84. The ALJ also detailed the records of Plaintiff’s stent placement and

bypass surgery in her right leg that caused numbness:

On October 29, 2019, the claimant . . . underwent a stent

placement in the right superficial femoral artery. (Exhibit 1F/32) On

December 20, 2019, . . . the records indicated echocardiographic

findings consistent with patent foramen ovale (PFO) and mitral

regurgitation (MR). (Exhibit 3F/6) A physical examination showed

lower extremities were cold. (Exhibit 3F/7) Her ejection fraction was

fifty to fifty-five percent (50 to 55%). (Exhibit 3F/8)

On January 4, 2020, the claimant sought emergency care . . . for

an evaluation of right lower extremity discoloration, pain, and

numbness. (Exhibit 3F/25) While admitted, on January 7, 2020, the

claimant underwent right lower extremity femoral popliteal bypass

procedure with a propaten graft. . . . On January 9, 2020, she was

discharged home in stable condition. (Exhibit 3F/26)

On January 30, 2020, the claimant returned . . . and . . . physical

examination showed a small open wound and minimal drainage in the

right groin. (Exhibit 3F/185) . . . On September 3, 2020, . . . her right

medial thigh wound had healed completely and no longer draining any

fluid. She stated that her claudication improved. She continued to

smoke cigarettes. (Exhibit 12F/9) . . . On June 2, 2021, the claimant

presented to Brevard Health Alliance with complaint of cerebral

vascular assault and peripheral arterial disease. Her physical

examination was unremarkable. (Exhibit 24F/8)

R. 84. The ALJ additionally summarized the medical records for treatment of

Plaintiff’s cervical spine and hip pain complaints:

On June 1, 2020, the claimant presented to Dr. Frank Cater [at

North Jefferson Medical Center] and complained of left hip pain. An

X-Ray of the hip showed good joint space. (Exhibit 4F/4)

On June 23, 2020, the claimant sought emergency care . . . [for]

weakness on the right side arm and leg. She claimed that she had some

mild slurred speech and altered mentation. A computed tomography

(CT) of the head was unremarkable. MRI of the brain showed chronic

change, but no acute infarct. A CT of the head and neck showed

atherosclerotic change but no significant stenosis. . . . MRI of the

cervical spine showed thickening of the posterior longitudinal ligament.

Degenerative disk disease with cervical spondylosis but no cord

compression. The claimant was advised to use a walker at home. The

claimant was diagnosed with right-sided weakness may be related to

cervical spondylosis, stroke was ruled out. (Exhibit 6F/6)

On July 7, 2020, the claimant . . . had some discomfort on full

extension of the neck. She had pain with range of motion of her right

shoulder and hips. She had good strength in deltoids, biceps, triceps,

wrist extensors, writs flexors and hand grip. She appeared to have good

strength in iliopsoas, quadriceps, hamstrings, foot dorsi and plantar

disease, mainly in C5-C6, C6-C7. The C6-C7 level was the worst, with

central and rightward disc protrusion. At C5-C6, there was bilateral disc

bulging. The claimant appeared to have a component of some

ossification of posterior ligament. (Exhibit 11F/6)

On July 27, 2020, the claimant presented to [Dr. Carter at] the

North Jefferson Medical Center and the records indicated that the

claimant was ambulatory and using her cane. (Exhibit 10F/5) In a

follow-up appointment, on August 24, 2020, the claimant stated that

she felt a bit unsteady and had a fall and a couple of near falls. She was

using a cane to walk and considering going to a walker instead. (Exhibit

11F/2)

On September 23, 2020, the claimant . . . complained of midline

cervical pain. A physical examination showed . . . no evidence of

peripheral edema. (Exhibit 14F/3). . . . There was decreased range of

motion with tenderness to palpation bilateral cervical facets. There was

tenderness [] present over the facet margins bilaterally. Motor strength

was four out five (4/5) generally. There were diminished reflexes in the

cervical spine. Her gait was antalgic. (Exhibit 14F/4)

On January 13, 2021, a physical examination showed that the

claimant ambulated normally. She displayed normal gait and station.

(Exhibit 17F/9)

On July 24, 2021, Dr. Steven Gallas examined the claimant in a

consultative examination at the request of the Administration. . .

Regarding the back, there was no evidence of deformity, muscle spasm

or tenderness. Straight leg raising was normal in seated and supine

positions. Regarding extremities, there were no deformities, swollen

joints, wounds, or ulcers. Neurovascular findings were normal in the

right and lower extremities. . . Normal light touch and pinprick

sensation except little to no sensation in the right leg below patella. She

had no difficulty getting on and off the examination table. She was

unable to do tandem walking, walking on heels, walking on toes, and

squatting/rising due to right leg numbness. There was mild antalgic gait

with right sided limp. The claimant did not use an assistive device to

ambulate. (Exhibit 22F)

On August 17, 2021, an X-Ray report of the cervical spine

showed spondylitis disease from C3-C4 through C6-C7. There was

degenerative change of the atlantoaxial articulation. Soft tissue

calcifications in the neck adjacent to the cervical spine. (Exhibit 25F)

R. 84-86 (emphasis added).

Based on a review of the record as a whole, the Court finds that the ALJ’s

summary of Plaintiff’s responses on the administration forms and her hearing

testimony accurately reflected Plaintiff’s statements about her subjective

complaints. The ALJ considered Plaintiff’s statements that she needed to use a cane

prior to January 2022, when she fell a month before the hearing and began using a

wheelchair. Plaintiff testified that her ability to walk was limited (R. 109-10); she

could sit without pain for only “maybe” 10-15 minutes, and she used a walker and

wheelchair because she was unable to put any weight on her knee or pressure on her

back (R. 110-11); a leg by-pass made her leg numb from the knee down (R. 111);

and she had used a walker or cane since 2020 (before her January 2022 fall). (R.

115-17).

The ALJ also properly considered the medical records, including X-rays,

treatment and assessment notes regarding Plaintiff’s impairments to partially

discount Plaintiff’s complaints:

[T]he medical evidence of record supports the presence of physical and

mental impairments reasonably [] expected to cause the types of

symptoms that the claimant alleges, but not to the full extent to which

she alleges them. Therefore, the undersigned find the claimant’s

subjective complaints to be partially consistent with the evidence of

record.

R. 87. The ALJ noted that Plaintiff had undergone surgery and received a stent for

peripheral vascular issues in her right lower extremity which “the record reflects that

the surgery was generally successful in relieving the symptoms” and “after four

noted from the follow up visit in February 2020—two years before the ALJ’s

hearing:

[Plaintiff] reported continued smoking and reported numbness in

bilateral lower extremity and neuropathy. (Exhibit 12F) She was

encouraged to stop smoking and increase walking to improve function.

(Exhibit 12F). From December 2019 until after her recovery period

from the graft, the claimant had mobility issues due to claudication and

dyspnea on exertion. She had surgery without complications in January

2020 and proceeded with physical therapy and occupational therapy to

assist with gait, balance, mobility. Her estimated recovery period was

four (4) weeks. Unfortunately, the claimant developed an abscess as a

complication from smoking and diabetes mellitus. By September 2020,

she was healed. There was no indication from hospital records that

hand-held assistive device was necessary after her recovery from the

graft and wound.

In early 2020, the claimant stated complain[ts] of bilateral knee

and hip pain to her provider [Dr. Carter] at North Jefferson Medical

Center. (Exhibits 4F and 13F) She was noted as having arthritis, but

there is no imaging to support that except for minimal arthritis in her

right foot from a prior examination from a hospital in 2019. (Exhibit

1F)

By July 27, 2020, the claimant was noted as using a cane in the

treatment notes. However, the claimant was also recovering from a

wound abscess following the graft at that time. The doctor noted that

there was no significant or remarkable physical examination findings

except for noted reported tenderness in hip or knees when palpated.

(Exhibit 10F) Her gait, station, muscle strength and range of motion

were not noted in the treatment notes. Other objective findings

indicated her diabetes mellitus was stable. (Exhibit 10F) Her last visit

there was in September 2020. As of this date, there no indication in the

treatment notes to support a hand-held assistive device [or] hand-held

assistive device was necessary.

In August 2020, the claimant reported using a cane to Dr. Robert

Abramson. (Exhibit 11F/2) She was referred for neurology follow-up

after discharge from Doctor’s Hospital where she had complained of

right sided weakness but CVA was ruled out. (Exhibit 6F/6) The

hospital noted the weakness was likely related to cervical spondylosis

and she was advised to use a walker at home and referred to neurology.

(Exhibit 6F/6) The doctor performed a physical examination and had

of motion. The claimant complained of pain or discomfort. (Exhibit

11F/6) Surgery was not indicated, she was referred for lumbar MRI,

and treatment was conservative. The claimant did not return for further

treatment.

In November 2020, the claimant began treatment at Florida

Community Health Centers. (Exhibit 15F, 17F and 18F) Through

January 2021, the records indicated the claimant was ambulating

normally. Her gait and station were also normal. (Exhibit (17F/9-15

and 18F/12-18) Treating notes do not indicate that a hand-held

assistive device was medically necessary.

Upon examination for the consultative examination on March 29,

2021, the claimant appeared with a walker to ambulate. However, the

doctor opined she was able to ambulate, balance, stance, and gait with

an antalgic gait. Even though the report found the claimant was limited

to sedentary work-part time, the specific findings and comments

concerning gait, station and ambulation suggest the hand-held assistive

device is not medically necessary. Further, more recent medical visits

showed the claimant had normal gait, strength at 5/5 at all extremities

and sensation intact. (Exhibit 21F/6 [R. 1363-70]) On June 22, 2021,

the claimant was admitted to Parrish Medical Center for headaches and

loss of vision with history of transient ischemic attack (TIA). (Exhibit

21F) She was discharged after a neurological consultation who advised

there was no acute CVA and “nothing to do.” (Exhibit 21F/4 [R. 1368])

She had a right foot fracture at distal pharynx of right first digit but also

found to have neurologically normal gait, strength at 5/5 in all the four

extremities, normal tone, and sensation intact. (Exhibit 21F/6)

In June 2021, the claimant began treating at Brevard Health

Alliance. (Exhibits 24F and 26F) The medical records do not indicate

any use of a hand-held assistive device or medical necessity for one.

The physical examination was also unremarkable except for decreased

strength in right upper extremity. There was no[] mention of any

musculoskeletal abnormalities or problems with gait or station. . . .

The facts in the record do not dispute that the claimant has

conditions, which singly or in combination, may cause her pain and

other difficulty. What these pieces of evidence suggest is that the

claimant’s symptoms may not be accurately reported, may not exist at

the level of severity assumed by the claimant’s testimony at hearing and

may have other mitigating factors against their negative impact on the

claimant’s ability to engage in work activity. The above residual

functional capacity, as determined by the undersigned, gives adequate

weight to the facts as determined to be consistent with the evidence.

The medical evidence of record is void of objective evidence to support

a more restrictive residual functional capacity.

R. 88-89 (emphasis added). The ALJ specifically discussed and rejected Dr. Carter’s

July 2020 suggestion that Plaintiff use a cane, and the suggestion of a walker from

Dr. Ujjin around the same time (June 2020), as inconsistent with the other medical

evidence:

On June 24, 2020, Dr. Ruj Ujjin advised that the claimant use her

walker at home. (Exhibit 6F/6) The medical opinion is not persuasive

due to the lack of consistency and supportability with the record. The

doctor’s statement was precautionary and the claimant was referred to

a specialist for a follow-up. The claimant attended a follow-up

appointment and her records did not indicate a hand-held assistive

device was medically necessary. On June 24, 2020, the claimant was

discharged from Doctor's Hospital after complaining [of] right sided

weakness. CVA was ruled out. The weakness was likely related to

cervical spondylosis. She was advised to use a walker at home (6F/6).

Upon follow-up from this discharge with Dr. Abramson, MD, there was

nothing significant noted in his assessment to indicate that a cane or

walker was medically necessary. (Exhibit 11F)

On July 27, 2020, Dr. Frank Carter suggested that the claimant

maybe use a walk based on her subjective symptoms of knee pain, hip

pain, and chronic vertigo. (Exhibit 10F/5 and 13F/4) The undersigned

found the medical opinion not persuasive based on the lack of

consistency and supportability with the record. In early 2020, the

claimant started to complain of bilateral knee and hip pain to her

provider at North Jefferson Medical Center. (Exhibits 4F and 13F) She

was noted as having arthritis, but there is no imaging to support that

except for minimal arthritis in her right foot done at Augusta University

Medical College Hospital in 2019. By July 27, 2020, she was noted by

Dr. Carter as using a cane. There are no significant or remarkable

physical examination findings except for noted reported tenderness in

hip or knees when palpated. (Exhibit 10F) Her gait, station, muscle

strength, range of motion, etc. is not noted in the treatment notes. Other

objective findings indicated her diabetes was stable. (Exhibit 10F).

R. 90.

Overall review of the relevant medical records indicates that, although at times

Plaintiff required a cane or walker while recovering from surgery or short-term

medical issues, the ALJ repeatedly noted the physical examination findings by

Plaintiff’s healthcare providers and the consultative examiner, who found Plaintiff

had normal gait and strength in the extremities and “no problem” with her gait as of

late 2021. R. 1363-70. Accordingly, substantial evidence supports the ALJ’s

decision. See, e.g., Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005) (“To

the extent that . . . other evidence . . . undermine[s] the ALJ’s RFC determination,

[plaintiff] misinterpret[s] the narrowly circumscribed nature of our appellate review,

which precludes us from ‘re-weigh[ing] the evidence or substitut[ing] our judgment

for that [of the Commissioner] . . . even if the evidence preponderates against’ the

decision.” (footnote omitted)).

The ALJ clearly considered the record in detail as a whole, including all of

the medical evidence following Plaintiff’s treatments for diabetic skin complications

and the bypass procedure for vascular issues, as well as wound recovery after

treatment, in determining that the claimant was not disabled. See Howard v. Soc.

Sec. Admin., Comm’r, 566 F. App’x 784, 787 (11th Cir. 2014) (“even if the AC

improperly failed to consider some of [the plaintiff's] additional evidence, any error

was harmless because we have independently reviewed all submitted evidence.”).

B. Dr. Singh’s Consultative Report

The ALJ found at Step 2 that Plaintiff had the severe impairment of anxiety

but her depression was not severe because it did not cause more than minimal

limitation in her ability to perform basic work activities. R. 79-80. While the ALJ

did not find that the severity of Plaintiff’s mental impairments equaled a Listing, the

ALJ did find that Plaintiff had mild limitations in understanding, remembering, or

applying information, adapting or managing oneself; and moderate limitations in

interacting with others and in concentrating, persisting, or maintaining pace. R. 81.

Therefore, the ALJ included the following mental limitations in Plaintiff’s RFC:

Plaintiff is limited in her ability to understand, remember, carry out simple, routine,

rote or repetitive tasks, and interact with the general public occasionally. R. 89. The

ALJ noted in discussing Plaintiff’s RFC that she had reported mental health

symptoms at the hearing but found that the “record was not supportive of any marked

mental limitations” (R. 89), providing specific descriptions of Plaintiff’s functioning

in discussing the extent of the limitations. See R. 81. The ALJ found that the clinical

mental health notes showed that Plaintiff’s mental status examinations were

consistently unremarkable. R. 89.

Plaintiff argues that the ALJ, in determining the mental limitations in her RFC,

erred in evaluating and in finding unpersuasive the opinion of Dr. Singh, a

psychologist who performed a consultative examination of her in July 2021. (Doc.

26 at 21). The Commissioner responds that the ALJ properly analyzed Dr. Singh’s

opinion and the ALJ’s finding is supported by substantial evidence. (Doc. 22 at 21-

24). Magistrate Judge Lambert determined in the R&R, applying the amended

Regulations in place at the time Plaintiff filed her claim (see 20 C.F.R. §§ 404.1520c,

416.920c), that the ALJ specifically considered Dr. Singh’s opinion, found it

unpersuasive, and adequately addressed the supportability and consistency of Dr.

Singh’s opinion. (Doc. 25 at 20 (citing R. 86-87, 92)). She found that the evidence

the ALJ relied on when making the findings at Step 2 regarding Plaintiff’s mental

impairments, and in her explicit consideration of Dr. Singh’s opinion, were sufficient

to conclude the ALJ’s finding was supported by substantial evidence. (Id.)

Plaintiff now contends, in objecting to the Magistrate Judge’s R&R, that the

ALJ erred in rejecting Dr. Singh’s opinion about Plaintiff’s moderate mental

impairments because it was based on Plaintiff’s “subjective statements,” without the

ALJ citing evidence from the record that contradicted Dr. Singh’s opinion. Plaintiff

contends that the ALJ should not have discounted Dr. Singh’s opinion because the

Administration had requested his opinion, and the ALJ failed to explain why it was

not persuasive when, as a psychologist, Dr. Singh would be entitled to support his

opinion based on a patient’s subjective statements. (Doc. 26 at 22 (citing Thompson

v. Berryhill, No. 4:18-CV-133-FL, 2019 WL 2980030 at *12, 2019 U.S. Dist. LEXIS

113691 at *32 (E.D.N.C. Apr. 22, 2019) (finding that an ALJ’s rejection of a

psychiatrist’s opinion on the grounds that it relies on a plaintiff’s subjective

statements “raises the specter” that the ALJ is “impermissibly making a medical

judgment” because “[p]sychology and psychiatry necessarily rely on such subjective

reports because the types of disorders they deal with are not usually susceptible to

direct physical observation as in other medical arenas.”)).

Plaintiff points specifically to Dr. Singh opining that: Plaintiff would not be

able to manage her funds if awarded due to memory problems; her impairments

moderately limited her functionality; and his note that Plaintiff had observable signs

of skin lesions that she attributed to anxiety. (Doc. 26 at 22 (citing R. 1414)). She

argues that the ALJ did not adequately explain the basis for discounting Dr. Singh’s

consultative opinion that Plaintiff was moderately impaired since providers noted in

her treatment records that she had recurrent moderate major depressive disorder and

anxiety. (Id. (citing R. 759, 1437, 1442)).

Judge Lambert set forth the correct Social Security Regulations (“SSR”) the ALJ

was required to apply at the time Plaintiff filed her application. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (Jan. 18,

2017); 20 C.F.R. §§ 404.1520c; 416.920c (“[f]or claims filed . . . on or after March 27,

2017, the rules in [§§ 404.1520c; 416.920c] apply.”). Under the revised regulations, the

ALJ no longer “defer[s] or give[s] any specific evidentiary weight, including controlling

weight, to any medical opinion(s) or prior administrative medical finding(s), including

those from [] medical sources.” Id. §§ 404.1520c(a), 416.920c(a). Rather, the

Commissioner must “consider” the “persuasiveness” of all medical opinions and prior

administrative medical findings. Id. To that end, the Commissioner considers five factors:

(1) supportability; (2) consistency; (3) the source’s relationship with the claimant; (4) the

source’s area of specialization; and (5) any other relevant factors which “tend to support

or contradict a medical opinion or prior administrative medical finding.” Id. §§

404.1520c(c); 416.920c(c).

The most important of these factors are supportability and consistency, and the ALJ

must explain the consideration of those two factors. Id. §§ 404.1520c(a), (b)(2);

416.920c(a), (b)(2). Supportability refers to the extent to which a medical source has

articulated support for a medical source’s own opinion and consistency refers to the extent

to which the provider’s opinion conforms to other evidence in the record. Id. at §§

404.1520c(c); 416.920c(c); Barber v. Comm’r of Soc. Sec., No. 6:20-cv-1222-LRH, 2021

WL 3857562, at *3 (M.D. Fla. Aug. 30, 2021) (citation omitted). The ALJ may, but is not

required to, explain how she considered the other factors (i.e., relationship with claimant,

specialization, and “other factors”). 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2). In

assessing the supportability and consistency of a medical opinion, the regulations provide

that the ALJ need only explain the consideration of these factors on a source-by-source

basis—the regulations themselves do not require the ALJ to explain the consideration of

each opinion from the same source. Id. §§ 404.1520c(b)(1); 416.920c(b)(1).

The ALJ summarized Dr. Singh’s evaluation notes:

[O]n July 27, 2021, Dr. Binny Singh evaluated the claimant in a consultative

evaluation at the request of the Administration. The claimant reported that

she [received] treatment for depression and anxiety in her thirties. She was

prescribed medication and received individual counseling services. She

denied the current receipt of treatment. She denied a history of psychiatric

hospitalizations. The claimant stated that she was able to complete light

household chores and watches television. A mental status examination

of the evaluation. She did not demonstrate fine motor tremors. She walked

slowly with a limp. She was dressed casually with adequate hygiene. She

maintained appropriate eye contact and was cooperative towards the

examiner. She presented with euthymic mood and congruent affect. Her

expressive and receptive language skills appeared below average. She

spoke slowly and appeared to have difficulties finding words. Her

thought processes were logical with appropriate content. Her attention

and concentration evidenced deficits. She correctly spelled the word

"world" forwards and backwards. She correctly counted to forty by

multiples of three slowly with errors She evidenced impairments in

memory functioning. She recalled three of three words immediately and

one of three words after a two-minute interval. Her recent and remote

memory recall appeared intact. She denied thoughts of hurting herself

and others. She denied symptoms of psychosis and did not evidence

perceptual disturbances during this evaluation. Her insight, judgment,

and impulse control all seemed fair based upon information obtained at

this evaluation. (Exhibit 23F) On December 1, 2021, the claimant

presented to Brevard Health Alliance and denied depression and

anxiety. (Exhibit 26F/17) Her mental status examination was

unremarkable. (Exhibit 26F/18)

On December 1, 2021, the claimant presented to Brevard Health

Alliance and denied depression and anxiety. (Exhibit 26F/17) Her

mental status examination was unremarkable. (Exhibit 26F/18).

On January 11, 2022, the claimant presented to Brevard Health

Alliance . . . [and] requested to be placed on medication for depression

and anxiety. (Exhibit 26F/11) . . .

At the hearing, the claimant reported mental health symptoms

but the record is not supportive of any marked mental limitations.

Specifically, clinical notes show that the claimant’s mental status

examinations were consistently unremarkable.

R. 86-87. The ALJ determined that the medical evidence supported the presence of

mental impairments reasonably expected to cause the types of symptoms that Plaintiff

alleged, but not to the full extent to which she alleged them, and her subjective complaints

were partially consistent with the evidence of record. R. 87. The ALJ explained her

discounting of Dr. Singh’s opinion:

On July 27, 2021, Dr. Binny Singh evaluated the claimant in a

consultative evaluation at the request of the Administration. The doctor

stated that the claimant was not capable of managing her funds based on her

reported memory problems. Social functioning was mildly impaired based

on her reported interactions. Functional ability was moderately impaired

based upon her reported symptoms. (Exhibit 23F)

The undersigned found the medical opinion of Dr. Singh not

persuasive based on a lack of consistency and supportability with the record.

The doctor apparently relied quite heavily on the subjective report of

symptoms and limitations provided by the claimant, and seemed to

uncritically accept as true most, if not all, of what the claimant reported.

R. 92. The ALJ detailed the reasons she partially discounted Dr. Singh’s opinion based on

his uncritical acceptance of Plaintiff’s reported limitations which were contradicted by the

unremarkable mental status findings in other contemporaneous medical records.

Additionally, as Judge Lambert pointed out in the R&R, one of Dr. Singh’s July 2021

findings—that Plaintiff was “not capable of managing her funds based on her reported

memory problems” (R. 1414)—was directly contradicted by Plaintiff’s own report from

a month prior on an SSA self-report form that she was able to pay bills, count change,

handle a savings account, “use a checkbook/money orders,” and that “this had not changed

since her illness began.” R. 408, 412. The ALJ’s reasons for discounting Dr. Singh’s

consultative opinion were based on substantial evidence.

C. Objections Related to the VE’s testimony

1. VE’s testimony

Plaintiff argues that the VE’s testimony did not constitute substantial evidence to

support the ALJ’s finding at Step 5 that Plaintiff could perform other jobs in the national

economy because the VE did not volunteer the source for the number of jobs that the ALJ

found Plaintiff could perform, citing Biestek v. Berryhill, 587 U.S. _, 139 S. Ct. 1148

(2019). The Commissioner argues that Plaintiff’s counsel did not object or inquire of the

VE about this issue at the administrative hearing, and the VE’s testimony regarding the

number of jobs available in the national economy was substantial evidence supporting the

ALJ’s Step 5 finding.

Plaintiff now concedes that proceedings “might have been more efficient” had her

counsel raised an objection to the VE’s jobs testimony at the hearing, but she argues that

she did not need to object at the hearing to preserve error because “the ALJ bears the Step

5 burden to probe about the vocational expert’s methodology.” (Doc. 26 at 12). She argues

that the record here fails to demonstrate where the VE obtained the jobs numbers that he

relied upon, or the methodology he used to reach his conclusions. Thus, she argues, the

record is incomplete to meet the substantial evidence threshold because the VE testimony

lacks the markers of reliability regarding the job numbers “except for saying they were

consistent” with the Dictionary of Occupational Titles3 (“DOT”). She argues that if

there is a conflict between occupational evidence provided by the VE and information in

the DOT, the ALJ cannot rely on the VE’s testimony. As applied in this case, Plaintiff

argues that the DOT “does not estimate how many positions exist in the national economy

for each job title” and cannot be used to analyze current job numbers, citing cases in which

3 The DOT is an “extensive compendium of data about the various jobs that exist in the United

States economy[, including] information about the nature of each type of job and what skills or

the VE cited sources in addition to the DOT. (Doc. 26 at 5). She argues that it was not

clear what, if any, job-number sources the VE was referring to at Step 5, as neither a source

nor method for estimating jobs was entered into evidence so ultimately there was “no real

explanation in the record” to draw a “job number position” from the evidence and the

ALJ’s findings.

Plaintiff further argues that, because the VE did not testify about the job data

sources in the record, his testimony was in “obvious or apparent” conflict with job

information provided in the DOT, and because both “the ALJ and VE should have known

the DOT is not a source of job numbers, citing it alone is not substantial evidence of jobs

at Step 5,” the VE’s testimony was “incomplete on its face,” and the sources a “complete

mystery.” (Id. at 7-9, 13). Plaintiff similarly objects that the R&R “does not identify

anything in the record th[at] could possibly serve as a basis for the job numbers at issue .

. . aside from the DOT, nor was any method provided or described that used those

sources.” (Id. at 13-15).

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), superseded on other grounds by 20 C.F.R. § 404.1520c.

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 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. 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. 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 v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359

(11th Cir. 2018).

Based on a de novo review of the Record in the case, the Court finds that the VE

was well-qualified (see R. 485-87), Plaintiff stipulated to the VE’s qualifications (R. 118),

and when the VE testified regarding the number of available jobs, Plaintiff’s counsel failed

to ask any questions regarding the source of the job numbers provided. See R. 119-20.

Here, the ALJ asked the VE whether there were other jobs a hypothetical individual could

perform at the light exertional level, with certain postural and environmental limitations,

as well as mental limitations, but “able to understand, remember, and carry out simple,

routine, rote, or repetitive tasks, and can interact with the general public occasionally.” R.

119. The VE responded:

That hypothetical would still allow for office helper, DOT 239.567-010,

light, SVP 2. Approximately 138,300 jobs nationally. Mail clerk, DOT

209.687-026, light, SVP 2. Approximately 47,400 jobs nationally. Bench

worker, DOT 706.684-022, light, SVP 2. Approximately 33,500 jobs

nationally.

R. 119.4 Plaintiff’s counsel did not object to these numbers at the hearing or ask for the

source of the numbers. Cf. Goode, 966 F.3d at 1284 n.3 (noting that the ALJ curtailed

4 The VE did not testify that the jobs numbers were from the DOT. See R. 119. To the extent

claimant’s attempts during the hearing to question the VE about his flawed testimony

with the incorrect number of jobs, and that it was “not a case in which the claimant

failed to challenge or question the [VE’s] methodology or job numbers”).

When the ALJ modified the hypothetical individual’s capacity for standing and/or

walking to four hours out of an eight-hour workday, the VE testified it would “erode” or

reduce the number of office helper jobs to 82,900 and mail clerk to 28,400 jobs (both

nationally), but not the bench worker jobs which could be done with a sit/stand at will

option. R. 120. Based on the VE’s testimony, the ALJ made the following Step 5 findings:

If the claimant had the residual functional capacity to perform the full range

of light work, a finding of “not disabled” would be directed by Medical-

Vocational Rule 202.11. However, the claimant’s ability to perform all or

substantially all of the requirements of this level of work has been impeded

by additional limitations. To determine the extent to which these limitations

erode the unskilled light occupational base, the Administrative Law Judge

asked the vocational expert whether jobs exist in the national economy for

an individual with the claimant’s age, education, work experience, and

residual functional capacity. The vocational expert testified that given all of

these factors the individual would be able to perform the requirements of

representative occupations such as

• Office helper (DOT# 239.567-010) light exertional, with an SVP of

two, there are approximately 138,300 jobs in the nation – however the

vocational expert testified that the number of jobs would be eroded by forty

percent (40%) to 82,900 jobs;

• Mail clerk (DOT# 209.687-026) light exertional, with an SVP of

two, there are approximately 47,400 jobs in the nation – however the

vocational expert testified that the number of jobs would be eroded by forty

percent (40%) to 28,400 jobs;

• Bench worker (DOT# 706.684-022) light exertional, with an SVP

of two, there are approximately 33,500 jobs in the nation.

The vocational expert testified that the number of jobs in the office

helper position (DOT number 239.567-010, light exertional, SVP of two)

would be eroded by forty percent (40%) due to reduction in

standing/walking requirement.

The vocational expert testified that the number of jobs in the mail

clerk position (DOT number 209.687-026, light exertional, SVP of two)

would be eroded by forty percent (40%) due to reduction in

standing/walking requirement.

The vocational expert testified that the number of jobs in the bench

worker position (DOT number 706.684-022, light exertional, with a SVP of

two) would not have any erosion because the work can be done with

sit/stand option at will. As a result, there will be no change in the job

numbers.

The vocational expert testified what is generally permissible by

employers in terms of absenteeism, off task behavior and customary work

breaks. The vocational expert testified the opinion is based on professional

experience, education, and training. . . . The vocational expert also testified

there were no transferable skill to other sedentary exertional work based on

his education and experience.

Finally, the vocational expert testified that his testimony concerning

erosion was based on experience, training, and SSR 00-4p.

Pursuant to SSR 00-4p, the undersigned has determined that the

vocational expert’s testimony is consistent with the information contained

in the Dictionary of Occupational Titles.

Based on the testimony of the vocational expert, the undersigned

concludes that, considering the claimant’s age, education, work experience,

and residual functional capacity, the claimant is capable of making a

successful adjustment to other work that exists in significant numbers in the

national economy. A finding of “not disabled” is therefore appropriate under

the framework of the above-cited rule.

R. 93-95.

In arguing that the ALJ should not have relied on the VE’s testimony, Plaintiff

essentially reads into the Supreme Court’s decision in Biestek v. Berryhill, 139 S. Ct. 1148

(2019), a categorical rule that the VE should volunteer during the hearing the source from

which the VE obtained the jobs numbers in order for the ALJ to properly rely on the VE’s

expert vocational testimony. Plaintiff misapprehends the holding of Biestek, where the

underlying her opinion regarding job availability, despite a request from the claimant’s

counsel, did not categorically preclude the expert’s testimony from counting as

“substantial evidence”; instead, whether supporting data constitutes substantial evidence

for the ALJ to rely on depends on the facts of the particular case. Id. at 1156-57.

The Supreme Court provided an example—similar to the situation in this case—

describing when a VE’s testimony would constitute substantial evidence:

Assuming no demand [for supporting data], a vocational expert’s testimony

may count as substantial evidence even when unaccompanied by supporting

data. Take an example. Suppose an expert has top-of-the-line credentials,

including professional qualifications and many years’ experience; suppose,

too, she has a history of giving sound testimony about job availability in

similar cases . . . . Now say that she testifies about the approximate number

of various sedentary jobs an applicant for benefits could perform. She

explains that she arrived at her figures by surveying a range of representative

employers; amassing specific information about their labor needs and

employment of people with disabilities; and extrapolating those findings to

the national economy by means of a well-accepted methodology. She

answers cogently and thoroughly all questions put to her by the ALJ and the

applicant’s lawyer. And nothing in the rest of the record conflicts with

anything she says. But she never produces her survey data. Still, her

testimony would be the kind of evidence—far more than a mere scintilla—

that a reasonable mind might accept as adequate to support a finding about

job availability.

Id. at 1155 (internal quotations and citation omitted). This is not a case—like the Supreme

Court’s other example—of a “less-qualified expert” who fails to “produce such data” and

“offer[s] testimony that is so feeble, or contradicted, that it would fail to clear the

substantial-evidence bar.” Id. at 1155-56.

The Commissioner cites a number of cases from the Eleventh Circuit (pre-Biestek)

which have held over the years that the VE does not have to provide the data in support

of the expert testimony in order for the ALJ to rely upon it. (Doc. 22 at 9-10 (citing Bryant

v. Comm’r of Soc. Sec., 451 F. App’x 838, 840 (11th Cir. 2012) (explaining the “Social

Security regulations provide that an ALJ may rely on a VE’s knowledge and expertise,

and they do not require a VE [to] produce detailed reports or statistics in support of her

testimony” and holding the vocational expert’s testimony constituted substantial

evidence); Pena v. Comm’r of Soc. Sec., 489 F. App’x 401, 402-03 (11th Cir. 2012)

(explaining “the ALJ was entitled to rely upon the VE’s testimony without requiring the

VE to provide a comprehensive statistical explanation of how he arrived at the reduced

job number figures” and holding the testimony constituted substantial evidence); Leigh v.

Comm’r of Soc. Sec., 496 F. App’x 973, 975 (11th Cir. 2012) (affirming the ALJ’s reliance

on vocational expert testimony and observing claimant did not offer any evidence

controverting the testimony or object to the testimony); Leonard v. Comm’r of Soc. Sec.,

409 F. App’x 298, 301 (11th Cir. 2011) (explaining the vocational expert’s “recognized

expertise provides the necessary foundation for his or her testimony; no additional

foundation is required” and holding the vocational expert’s testimony constituted

substantial evidence); Hurtado v. Comm’r of Soc. Sec., 425 F. App’x 793, 795 (11th Cir.

2011) (concluding the ALJ did not err in relying on vocational expert’s testimony in part

where claimant “did not object to the VE’s testimony or qualifications, offer any evidence

controverting the VE’s testimony, or even question the VE”)).

The analysis in a case decided two years after Biestek is helpful here. Bacon v.

Commissioner of Social Security, 861 F. App’x 315, 320 (11th Cir. 2021), held that the

VE’s testimony constituted substantial evidence supporting the ALJ’s finding regarding

the number of jobs available in the national economy despite the plaintiff’s arguments that

the ALJ failed to resolve an apparent conflict between the VE’s testimony and the DOT.

The Eleventh Circuit panel in a per curiam opinion found that the ALJ’s Step 5 finding

based on the VE’s testimony to the number of jobs available in the national economy for

a certain DOT job (325,000) was significant and constituted substantial evidence. Id. at

320-21. As in this case, the only evidence presented to the ALJ regarding the availability

of other jobs the plaintiff could perform was through the VE’s testimony with the number

available in the national economy, and the plaintiff failed to present the “other evidence”

that he later proposed to the ALJ or Appeals Council. Id. at 320. The panel noted that he

had not presented the evidence at the hearing, had not “object[ed] to the VE’s testimony

or inquire[d] further into her methodology,” and had “stipulated that the VE was qualified

to testify.” Id. (“because the VE’s testimony is the only evidence regarding the number of

jobs available in the record, this Court is foreclosed from considering other evidence

suggested by [the plaintiff] in the district court and on appeal”); see Moore v. Saul, No.

8:18-cv-2423-T-CPT, 2020 WL 814003 at *3-*4 (M.D. Fla. Feb. 19, 2020) (finding VE’s

testimony constituted sufficient evidence for ALJ’s Step 5 finding regarding the number

of jobs available where the VE indicated his testimony was consistent with the DOT and

where the claimant “did not object to the VE’s qualifications” or “request any supporting

data for the VE’s conclusion or challenge the reliability of his jobs number”); Geisler v.

Saul, No. 5:18-CV-400-OC-JRK, 2020 WL 1243246, at *4 (M.D. Fla. Mar. 16, 2020)

(holding that the VE’s testimony provided substantial evidence to support the ALJ’s Step

5 findings where the claimant’s counsel effectively cross examined the VE about his

methodology and sources, counsel did not object to the VE’s testimony during the hearing,

and the record contained no evidence of the VE’s level of reliance on skilltran data or

other sources for the job numbers); Smith-Russo v. Comm’r of Soc. Sec., No. 2:18-CV-

630-MRM, 2020 WL 13954613, at *6 (M.D. Fla. Mar. 11, 2020) (holding where the

claimant’s attorney did not challenge the VE’s qualifications, cross-examine the VE

regarding discrepancies between the job numbers and the OES, or argue a conflict

between the VE’s testimony and the DOT, the VE’s testimony was substantial evidence

upon which the ALJ could rely); cf. Ruenger v. Kijakazi, 23 F.4th 760, 763-64 (7th Cir.

2022) (where claimant did challenge the job-number estimate and the VE was unclear

about the compiling those estimates, the ALJ “must compel the [VE] to offer a reasoned

and principled explanation of the methodology she used to produce the estimate”).

In this case, Plaintiff has not disputed that the VE was well-qualified, and when the

VE testified regarding the number of available jobs, Plaintiff’s counsel failed to ask any

questions regarding the source of the numbers provided or challenge the VE’s methods.5

The VE testified that he relied on his professional education and experience for his opinion

about employers’ toleration of absences, being off-task, and breaks. R. 121. The ALJ

considered the VE’s testimony and found, considering the claimant’s age, education, work

experience, and RFC, that Plaintiff was capable of making a “successful adjustment to

other work that exists in significant numbers in the national economy.” R. 94-95. The

VE’s unchallenged testimony constituted sufficient evidence to support the ALJ’s finding

at Step 5 and Plaintiff’s objection on this point is overruled.

2. No conflict between the VE’s testimony and the DOT at Step 5

Plaintiff argues that there was a conflict between the VE’s testimony and the DOT

and the ALJ violated Social Security Ruling 00-4p (“SSR 00-4p”) by “failing to explore

this issue” with the VE. (Doc. 26 at 16-17). 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 is directed to 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.

Plaintiff argues that the ALJ’s assessment that she could only stand and/or walk for

4 hours in an 8-hour day conflicts with the DOT’s general description of “light work” and

“[n]one of the three cited jobs contain more specific guidance on their respective standing

requirements and the VE did not provide any basis in the testimony to accommodate this

discrepancy.” (Id. at 13-15). Plaintiff challenges the VE’s testimony in this case as

equating a “four-hour combined stand and walk restriction” to a “sit/stand option at will”

and assuming standing in a confined area would be required, without testifying to any

specific job duties. (Doc. 26 at 17 (citing R. 120-22)). She argues that the ALJ-assigned

RFC contains no language about changing positions or being able to sit/stand at will, and

the VE described jobs that required standing in a confined space with some walking.

The Social Security Regulations provide that a job is in the “light work”

category “when it requires a good deal of walking or standing, or when it involves

sitting most of the time with some pushing and pulling of arm or leg controls.” 20

C.F.R. §§ 404.1567(b), 416.967(b). In his testimony quoted supra, the VE specified

three jobs—office helper, mail clerk, and bench worker—that the DOT provides are

rated as “light work,” which is defined as a job “requir[ing] walking or standing to

a significant degree” or “sitting most of the time but entails pushing and/or pulling

of arm or leg controls.”6 Plaintiff essentially argues that the VE’s testimony was

incomplete or vague because the VE did not first explain his reasons why the

potential jobs he listed were in the subset of light work jobs that require no more

than four hours total of standing or walking. (Doc. 26 at 19). She complains that the

VE did not respond to the ALJ’s inquiry by referring to his experience, or an

explanation of the three jobs he listed.

The Commissioner argues that the ALJ reasonably relied on the vocational

expert’s testimony regarding the conflict between the DOT’s description of the

positions and Plaintiff’s standing and walking limitations. The Commissioner argues

that the ALJ properly identified the conflict between Plaintiff’s standing and walking

limitations and explained the effect that limitations would have on the occupational

base, citing the VE’s testimony regarding the erosion that Plaintiff’s standing and

walking limitations would have, and noting that the vocational expert based his

testimony on his experience and training (Doc. 22 at 15 (citing R. 94)).

Contrary to Plaintiff’s arguments that the VE failed to explain the

inconsistency, it is clear that the ALJ relied on the VE’s testimony in the Step 5

finding (quoted supra) after asking the VE specifically if his testimony was

consistent with the DOT. R. 121. The VE responded:

It’s consistent with the DOT, however under SSR 00-4p the DOT lists

the maximum expectant requirements of occupations and not the range,

therefore a light duty job doesn’t mean a person has to stand, walk, or

lift. For example, a sewing machine operator may have no standing,

walking, or lifting, and it’s light duty due to physical effort, therefore

the erosions are in line with the DOT, just not at the maximum level.

R. 121. The VE’s testimony was sufficient to explain why there was not a potential

conflict between the ALJ’s limitation that Plaintiff not stand and/or walk for more

than four hours in an eight-hour workday and the requirements of “light work.” The

VE testified that the reduced number of jobs available based on the ALJ’s

hypothetical restriction and clarified any apparent conflict with the DOT. Because

the VE provided a sufficient explanation on which the ALJ relied, the ALJ’s decision

was based on substantial evidence.

Therefore, it is ORDERED as follows:

1. The Report and Recommendation filed November 23, 2023 (Doc. 25)

2. Plaintiff's objections ace OVERRULED.

3. The final decision of the Commissioner of the Social Security

Administration denying Plaintiff Elizabeth Ann Mowery’s claim for Social Security

Income is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).

4. The Clerk is DIRECTED to enter judgment, accordingly, and CLOSE

the case.

DONE and ORDERED in Orlando, Florida on March 4, 2024.

Mins b> Eaninl

United States Distt Judge

Copies furnished to:

Counsel of Record