Gibson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SARA JEAN GIBSON,

Plaintiff,

v. 2:23-cv-154-NPM

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

ORDER

Plaintiff Sara Jean Gibson seeks judicial review of a denial of Social Security

disability benefits. The Commissioner of the Social Security Administration filed

the transcript of the proceedings (Doc. 7),1 Gibson filed an opening brief (Doc. 16),

and the Commissioner responded (Doc. 18). As discussed in this opinion and order,

the decision of the Commissioner is affirmed.

I. Eligibility for Disability Benefits and the Administration’s Decision

A. Eligibility

The Social Security Act and related regulations define disability as the

inability to do any substantial gainful activity by reason of one or more medically

determinable physical or mental impairments that can be expected to result in death

or that have lasted or can be expected to last for a continuous period of not less than

1 Cited as “Tr.” followed by the appropriate page number.

twelve months.2 Depending on its nature and severity, an impairment limits

exertional abilities like walking or lifting, nonexertional abilities like seeing or

hearing, tolerances for workplace conditions like noise or fumes, or aptitudes

necessary to do most jobs such as using judgment or dealing with people.3 And

when functional limitations preclude both a return to past work and doing any other

work sufficiently available in the national economy (or an impairment meets or

equals the severity criteria for a disabling impairment as defined in the regulatory

“Listing of Impairments”), the person is disabled for purposes of the Act.4

B. Factual and procedural history

On April 23, 2020, Gibson filed an application for disability insurance

benefits. (Tr. 253). In the application, Gibson asserted an alleged onset date of

February 8, 2016, alleging disability due to the following: multiple sclerosis,

anxiety, and vertigo. (Tr. 76-77, 92-93). As of the onset date, Gibson was 40 years

old with a college degree in business communications. (Tr. 44, 76, 92, 305). Gibson

previously worked as a relationship manager, establishing and maintaining

2 See 42 U.S.C. §§ 416(i), 423(d), 1382c(a)(3); 20 C.F.R. § 404.1505.

3 See 20 C.F.R. §§ 404.1513(a)(2)(i)-(iv) (discussing the various categories of work-related

abilities), 404.1522(b) (providing examples of abilities and aptitudes necessary to do most jobs),

404.1545(b)-(d) (discussing physical, mental, and other abilities that may be affected by an

impairment), 404.1594(b)(4) (defining functional capacity to do basic work activities).

4 See 20 C.F.R. § 404.1511.

relationships with her company’s clients. (Tr. 88, 110, 296-97, 305).

On behalf of the administration, a state agency 5 reviewed and denied

Gibson’s application initially on November 18, 2020, and upon reconsideration on

December 21, 2021. (Tr. 76-91, 92-113). At Gibson’s request, Administrative Law

Judge (ALJ) Maria C. Northington held a hearing on April 11, 2022. (Tr. 39-75). On

May 2, 2022, the ALJ issued an unfavorable decision finding Gibson not disabled.

(Tr. 16-34). Gibson’s timely request for review by the administration’s Appeals

Council was denied. (Tr. 4-7). Gibson then brought the matter to this court, and the

case is ripe for judicial review.

C. The ALJ’s decision

The ALJ must perform a five-step sequential evaluation to determine if a

claimant is disabled. 20 C.F.R. § 404.1520(a)(1). This five-step process determines:

(1) whether the claimant is engaged in substantial gainful activity; (2) if not,

whether the claimant has a severe impairment or combination of

impairments; (3) if so, whether these impairments meet or equal an

impairment listed in the Listing of Impairments; (4) if not, whether the

claimant has the residual functional capacity (“RFC”) to perform [her] past

relevant work; and (5) if not, whether, in light of [her] age, education, and

work experience, the claimant can perform other work that exists in

significant numbers in the national economy.

Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (internal

quotation omitted); see also 20 C.F.R. § 404.1520(a)(4).

5 In Florida, a federally funded state agency develops evidence and makes the initial determination

whether a claimant is disabled. See 42 U.S.C. § 421(a); 20 C.F.R. § 404.1503(a).

The governing regulations provide that the Social Security Administration

conducts this “administrative review process in an informal, non-adversarial

manner.” 20 C.F.R. § 404.900(b). Unlike judicial proceedings, Social Security

Administration hearings “are inquisitorial rather than adversarial.” Washington v.

Comm’r of Soc. Sec., 906 F.3d 1353, 1364 (11th Cir. 2018) (quoting Sims v. Apfel,

530 U.S. 103, 111 (2000) (plurality opinion)). “Because Social Security hearings

basically are inquisitorial in nature, ‘[i]t is the ALJ’s duty to investigate the facts and

develop the arguments both for and against granting benefits.’” Id. Indeed, “at the

hearing stage, the commissioner does not have a representative that appears ‘before

the ALJ to oppose the claim for benefits.’” Id. (quoting Crawford & Co. v. Apfel,

235 F.3d 1298, 1304 (11th Cir. 2000)). “Thus, ‘the ALJ has a basic duty to develop

a full and fair record. This is an onerous task, as the ALJ must scrupulously and

conscientiously probe into, inquire of, and explore for all relevant facts.’” Id.

(quoting Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015)).

Nonetheless, while the claimant is relieved of the burden of production during

step five as to whether there are enough jobs someone like the claimant can perform,

the claimant otherwise has the burdens of production and persuasion throughout the

process. See 20 C.F.R. § 404.1512 (providing that the claimant must prove

disability); see also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (noting

the regulations “place a very heavy burden on the claimant to demonstrate both a

qualifying disability and an inability to perform past relevant work”). In short, the

“overall burden of demonstrating the existence of a disability as defined by the

Social Security Act unquestionably rests with the claimant.” Washington, 906 F.3d

at 1359 (quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).

At step one of the evaluation, the ALJ found Gibson had not engaged in

substantial gainful activity since February 8, 2016, the alleged onset date. (Tr. 18).

At step two, the ALJ characterized Gibson’s severe impairments as: multiple

sclerosis, cervical spondylosis with C5 plaque, anxiety beginning therapy in 2021,

depression, alcohol dependence, and cannabis-use disorder. (Tr. 19). At step three,

the ALJ determined Gibson did not have an impairment or combination of

impairments that met or medically equaled the severity of an agency-listed

impairment. (Tr. 20).

As a predicate to step four, the ALJ arrived at the following RFC:

[T]he claimant had the residual functional capacity to perform

light work as defined in 20 CFR 404.1567(b) as follows. Light

work involves the ability to occasionally lift and/or carry up to

20 pounds as defined in the regulations, as well as, lift/carry 10

pounds frequently. This includes sedentary work as defined in

the regulations. The claimant has no limits for sitting in an

eight-hour workday. She is capable of standing and/or walking

for up to six hours in an eight-hour workday. In the course of

work, she should be allowed the ability to optionally alternate

between sitting and standing about every 30 to 60 minutes, but

such would not cause her to be off-task nor would it cause her

to leave the workstation. She is able to perform occasional

postural functions of climbing ramps/stairs, kneeling, and

stooping. She is to perform no crawling, no crouching and no

climbing of ladders/ropes/scaffolds. In the course of work, the

claimant is to have no exposure to extremes of heat, humidity

or cold temperatures. The claimant is to perform no work that

would involve hazardous situations such as work at

unprotected heights or work around dangerous machinery that

may cause harm to self or others. No work with vibratory tools

or equipment. Secondary to mental impairments, the claimant

retains the capacity to understand, remember and carry-out

simple instructions and perform simple routine tasks as

consistent with unskilled work. The claimant can make

judgments regarding simple work-related decisions.

(Tr. 23). Consequently, the ALJ found Gibson was unable to perform her past

relevant work. (Tr. 32). At step five, the ALJ found Gibson could perform other

work that exists in significant numbers in the national economy. (Tr. 33-34). In

support, a vocational expert testified that an individual of Gibson’s age, education,

work experience, and RFC can perform the following representative occupations:

• Electronic Worker, DOT #726.687-010, light; SVP 2, with 52,000 jobs

in the national economy;

• Plastics Assembler, DOT #712.687-010,6 light, SVP 2, with 75,000 jobs

in the national economy;

• Final Assembler, DOT #713.687-018, sedentary, SVP 2, with 65,000 jobs

in the economy;

• Semi-Conductor Bonder, DOT #726.685-066, sedentary SVP 2, with

38,000 jobs in the economy.

(Tr. 33).7

6 By typographical error, the ALJ incorrectly identified this as DOT #772.687-010 (glass worker).

7 The DOT numbers refer to the Dictionary of Occupational Titles and its detailed explanations

concerning each occupation’s requirements. These descriptions include exertion and skill levels.

Exertion refers to the work—in a purely physical sense—that the job requires, and it is divided

into five categories: sedentary, light, medium, heavy, and very heavy. Skill refers to the time it

takes—during or before a job, such as prior experience or education—to develop necessary

Thus, for purposes of the Act, the ALJ concluded Gibson was not disabled from

February, 8, 2016, the alleged onset date, through December 31, 2021, the date last

insured. (Tr. 34).

II. Analysis

Gibson’s appeal presents the following issues for review:

(1) Whether the ALJ committed reversible error by omitting Gibson’s

ability to perform math at a fifth-grade level from the RFC;

(2) Whether the ALJ committed reversible error by omitting manipulative

limits from the RFC;

(3) Whether the ALJ erred by finding Gibson could perform work with an

SVP level of 2;

(4) Whether the ALJ adequately considered Gibson’s moderate limitation

in concentrating, persisting, or maintaining pace; and

(5) Whether substantial evidence supports the ALJ’s step-five finding that

a significant number of vocationally relevant jobs exist in the national

economy.

A. Standard of review

The court “may not decide the facts anew, make credibility determinations, or

reweigh the evidence.” Buckwalter v. Acting Comm’r of Soc. Sec., 997 F.3d 1127,

1132 (11th Cir. 2021). While the court must account for evidence both favorable and

abilities, and it is divided into three categories: unskilled, semiskilled, and skilled. The “SVP”

(Specific Vocational Preparation) provides further subdivision of the three skill categories into

nine levels: SVP 1 and 2 are unskilled; SVP 3 and 4 are semiskilled; and SVP 5 through 9 are

skilled.

unfavorable to a disability finding and view the evidence as a whole, Foote v. Chater,

67 F.3d 1553, 1560 (11th Cir. 1995), the court’s review of the administration’s

decision is limited to determining whether “it is supported by substantial evidence

and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d

1155, 1158 (11th Cir. 2004). “Substantial evidence is more than a scintilla and is

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

a conclusion.” Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1280 (11th Cir. 2020)

(quoting Crawford, 363 F.3d at 1158)).

“[T]he threshold for such evidentiary sufficiency is not high.” Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019). The inquiry is “case-by-case,” and “defers

to the presiding ALJ, who has seen the hearing up close.” Id. at 1157. In other words,

a “presumption of validity attaches” to the ALJ’s factual findings. Walker v. Bowen,

826 F.2d 996, 999 (11th Cir. 1987). And if supported by substantial evidence, the

ALJ’s findings of fact are conclusive. 42 U.S.C. § 405(g). This means the district

court will affirm, even if the court would have reached a contrary result as finder of

fact, and even if the court finds that the evidence “preponderates against” the

agency’s decision. Noble v. Comm’r of Soc. Sec., 963 F.3d 1317, 1323 (11th Cir.

2020) (quoting Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991)).

B. The ALJ did not err by omitting Gibson’s fifth-grade level math

skills from the RFC.

In April 2015, Dr. Kimberly Buck completed a neuropsychological evaluation

of Gibson. Even though Gibson had a college degree, Dr. Buck opined that Gibson’s

math performance was at a fifth-grade level. (Tr. 316). But the ALJ did not include

this limitation in the RFC or the hypothetical question posed to the vocational expert.

So Gibson argues the hypothetical question was insufficient, and the RFC is not

based on substantial evidence. (Doc. 16 at 6-9). This argument lacks merit.

As an initial matter, Dr. Buck’s evaluation occurred in April 2015—almost

a year before the alleged onset date. As such, her opinions therein are of little

relevance. See Santos v. Soc. Sec. Admin., Comm’r, 731 F. App’x 848, 857 (11th

Cir. 2018). What’s more, an ALJ need not include findings in the hypothetical

question to the vocational expert when the ALJ had properly rejected them as

unsupported. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.

2004). Here, the ALJ explained that she found Dr. Buck’s opinion unpersuasive

because her overall impression was that Gibson could not return to work. (Tr. 317).

And this is a finding reserved for the ALJ. 20 C.F.R. § 404.1520b(c)(3)(i); Proenza

v. Comm’r of Soc. Sec., No. 20-14237, 2021 WL 3073777, *2 (11th Cir. July 21,

2021) (ALJ properly rejected doctor’s opinion that claimant was unable to work

because “such a finding is reserved to the Commissioner, not a claimant’s

physician”). Additionally, it seems Gibson met with Dr. Buck no more than once,

which is further reason to discount her opinions. See 20 C.F.R. § 404.1520c(c)(3)(ii).

Gibson also contends that the ALJ addressed Dr. Buck’s opinion only once in

the decision. But this is untrue. Although she addresses Dr. Buck by name once in

the opinion, she otherwise considers Dr. Buck’s opinions throughout. (Tr. 21, 22,

26, 31). Besides, it is not reversible error when an ALJ fails to identify a physician

by name so long as the ALJ summarized the physician’s treatment notes and it did

not affect the ALJ’s ultimate decision. See Hunter v. Comm’r of Soc. Sec., 609 F.

App’x 555, 558 (11th Cir. 2015). Such is the case here.

Even if the ALJ should have included Gibson’s purported mathematical

deficiencies in the RFC, her failure to do so was harmless. The ALJ concluded, based

on vocational expert testimony, that Gibson could perform work as an electronic

worker, a plastics assembler, a final assembler, and a semi-conductor bonder. (Tr.

33). The DOT defines each of these jobs as a math level 1, which is the lowest level

provided in the DOT. See DICOT 726.687-010, Electronics Worker, 1991 WL

679633; DICOT 712.687-010, Assembler, Plastic Hospital Products, 1991 WL

679245; DICOT 713.687-018, Final Assembler, 1991 WL 679271; DICOT 726.685-

066, Bonder, Semiconductor, 1991 WL 679631. So even assuming the ALJ had

limited Gibson’s mathematical skills to a fifth-grade level, she would still be able to

work in the identified roles. Cf. Peterson v. Comm’r of Soc. Sec., No. 2:19-cv-566-

FTM-29NPM, 2020 WL 7364600, *5 (M.D. Fla. Sept. 25, 2020), report and

recommendation adopted, 2020 WL 6708022 (Nov. 16, 2020), aff’d, 2021 WL

3163662 (11th Cir. July 27, 2021) (finding harmless error when ALJ failed to

include kindergarten-level math skills in RFC because the DOT defined the

identified jobs as a math level 1, which the vocational expert testified is the lowest

level possible);8 see also Williams v. Barnhart, 140 F. App’x 932, 936 (11th Cir.

2005) (observing that if an ALJ errs in omitting a functional limitation from the

residual functional capacity, the omission is harmless if it would not have altered the

testimony of the vocational expert).

C. The ALJ did not err by omitting manipulative limitations from the

RFC.

Gibson once again cites to Dr. Buck. In her neuropsychological evaluation,

she determined that Gibson has fine motor difficulties. Specifically, she opined that

Gibson evidenced “severely deficient performance tasks of speeded attention with a

motor component and mental switching” and “her performance on a task of speeded

fine motor coordination was in the borderline deficient range for her dominant hand

and in the severely deficient range for her non-dominant hand.” (Tr. 317). Gibson

argues the ALJ erred by not performing a persuasiveness analysis for this opinion

and otherwise including it in the RFC.

But as noted above, Dr. Buck’s evaluation is of little relevance since it

predates the alleged onset date, and she only treated Gibson once. Furthermore, the

findings of Dr. Buck quoted above do not state any work restrictions and, thus, are

8 Notably, Gibson’s counsel unsuccessfully advanced this same argument in Peterson.

not vocationally relevant “medical opinions,” that require a persuasiveness analysis.

20 C.F.R. §§ 404.1513(a)(2), 404.1520b(c)(3)(i). So this argument fails.

Gibson also reads other evidence in the record as compelling the inclusion of

her manipulative limitations. For instance, she cites various notes of Dr. Maniar

Sanjeev, but the cited evidence is largely Dr. Sanjeev recording Gibson’s subjective

complaints of tingling/numbness, weakness, and fatigue. (Doc. 16 at 10). Dr.

Sanjeev also noted Gibson’s relapsing/remitting MS and that she exhibited slight

limping. (Tr. 357, 373, 381, 474, 496, 512, 609). And Gibson also cites her hearing

testimony that she drops things, has cut herself trying to prepare food, and has

difficulty grasping items. (Tr. 57, 59). But simply citing other evidence in the record

to support her manipulative limitations will not suffice. See Sims v. Comm’r of Soc.

Sec., 706 F. App’x 595, 604 (11th Cir. 2017) (“Under a substantial evidence standard

of review, [a claimant] must do more than point to evidence in the record that

supports her position; she must show the absence of substantial evidence supporting

the ALJ’s conclusion.”). It appears Gibson is asking the court to reweigh the

evidence. But it cannot.

Although Gibson cites portions of Dr. Sanjeev’s notes, the remainder of his

notes reveal Gibson exhibited normal motor functioning, including normal

sensation, reflexes, range of motion, and coordination. He also noted that objective

observations remained stable and normal, including Gibson’s motor examination

being intact with no focal atrophy; her muscle tone was normal; she evidenced 5/5

normal power and strength in all distal upper and lower extremity muscles; her

coordination was normal; and she had a normal range of motion. And updated

imaging revealed the stable condition of Gibson’s MS on multiple occasions. (Tr.

27, 355-57, 364-65, 372-73, 380-81, 405, 446-452, 464-66, 472-74, 480-81, 487-89,

495-96, 503, 510-12, 607-09, 754-56, 762-63, 769-71, 786-88). Other treaters from

Dr. Sanjeev’s office made similar observations. (Tr. 599-600, 674-75, 731-33, 741-

42, 778-79, 794-96, 804-05, 813-15, 823-25). The remainder of the record also

includes normal findings, such as normal/full range of motion in wrist and fingers;

no difficulty with balance or gait; no neurological or motor deficiency; 5/5 grip

strength; and normal ability to grasp, pinch, and manipulate. (Tr. 324, 329, 336, 341,

650, 654, 719, 852, 858, 864, 870).

As for Gibson’s hearing testimony, the ALJ explained that he found Gibson’s

subjective statements concerning intensity, persistence, and limiting effects of her

symptoms inconsistent with the record. (Tr. 26). Gibson never disputed this

conclusion, so she has abandoned any challenge to it. See Access Now, Inc. v. Sw.

Airlines, 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument that

has not been briefed before the court is deemed abandoned and its merits will not be

addressed.”); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.

2014).

Based on the foregoing, substantial evidence supports the ALJ’s omission of

any manipulative limits from the RFC.9 Thus, there is no reversible error as to this

issue.

D. The ALJ did not err in finding Gibson could perform work at an

SVP level of 2.

Before Gibson’s claim was presented to the ALJ, a disability examiner with

the state agency found that Gibson could perform work that requires only “a very

short, on the job training period” (Tr. 117, 119, 129, 132), which Gibson argues

would equate to an SVP 1. Thus, she contends the ALJ erred by finding that she

could perform work at an SVP level 2. But this ignores that SVP 1 jobs have no

training period and that knowledge commensurate with SVP 2 work can be acquired

before the job begins. Both SVP 1 and SVP 2 jobs are unskilled.

Time and again, Gibson’s counsel have copy and pasted this same argument

into the briefing submitted on their clients’ behalf. And every time, the court has

rejected this argument. See, e.g., Brakefield v. Comm’r of Soc. Sec., No. 2:23-cv-24-

KCD, 2024 WL 303060, *4 (M.D. Fla. Jan. 26, 2024); Flores v. Kijakazi, No. 8:22-

cv-958-WFJ-AEP, 2023 WL 6782270, *7-8 (M.D. Fla. Aug. 14, 2023), report and

recommendation adopted, 2023 WL 5697385 (Sept. 5, 2023); Poelker v. Comm’r of

9 Notably, Gibson turns a blind eye to the fact that the state-agency determinations also omitted

any manipulative limitations (Tr. 85, 107) even though she argues—erroneously—in the next

section that such determinations are binding.

Soc. Sec., No. 2:21-cv-880-JLB-NPM, 2023 WL 6940241, *4 (M.D. Fla. Mar. 10,

2023); Hull v. Comm’r of Soc. Sec., No. 2:21-cv-789-JLB-NPM, 2023 WL 5933342,

*4 (M.D. Fla. Mar. 8, 2023); Spencer v. Comm’r of Soc. Sec., No. 2:22-cv-18-JES-

KCD, 2022 WL 19474741, *5 (M.D. Fla. Dec. 8, 2022), report and recommendation

adopted, 2023 WL 2674700 (Mar. 29, 2023); Guth v. Comm’r of Soc. Sec., No. 2:21-

cv-106-JLB-NPM, 2022 WL 8211404, *10 (M.D. Fla. Aug. 5, 2022), report and

recommendation adopted, 2022 WL 4115784 (Sept. 9, 2022); Whitney v. Comm’r

of Soc. Sec., No. 2:21-cv-217-JES-NPM, 2022 WL 8208682, *6 (M.D. Fla. Aug. 1,

2022), report and recommendation adopted, 2022 WL 4298661 (Sept. 19, 2022);

Hultgren v. Comm’r of Soc. Sec., No. 2:20-cv-892-SPC-NPM, 2022 WL 1085547,

*10 (M.D. Fla. Feb. 9, 2022), report and recommendation adopted, 2022 WL

736176 (Mar. 11, 2022); Garrow v. Saul, No. 5:19-cv-586-OC-18JBT, 2020 WL

5802493, *4 (M.D. Fla. Aug. 19, 2020), report and recommendation adopted sub

nom. 2020 WL 5797867 (Sept. 29, 2020). Offering no rationale for the court to

change course, it is time for counsel to retire this argument.

E. The ALJ adequately accounted for Gibson’s moderate limitation in

concentrating, persisting, or maintaining pace.

At steps two and three of the sequential evaluation, the ALJ assesses the

functional impacts of mental-health impairments across four domains: (1)

understanding, remembering, or applying information; (2) interacting with others;

(3) concentrating, persisting, or maintaining pace; and (4) adapting or managing

oneself. See 20 C.F.R. § 404.1520a(c)(3); SSR 96-8p, 1996 WL 374184, *4 (July 2,

1996). For each domain, the ALJ rates the limitation using a five-point scale:

(1) none; (2) mild; (3) moderate; (4) marked; or (5) extreme. 20 C.F.R.

§ 404.1520a(c)(4). An “extreme” limitation in a particular domain means the

claimant cannot function in that area independently, appropriately, effectively, and

on a sustained basis. See 20 C.F.R. § 404.1520a(c)(4). “Mild” connotes a slight

limitation, “marked” suggests a serious one, and “moderate” indicates something

less than serious but more than slight. Cf. 20 C.F.R. § 404.1520a(c)(4) & (d). And

at step five in the sequential analysis, an ALJ must account—explicitly or

implicitly—for any moderate limitations in one or more of these domains when

soliciting opinion testimony from a vocational expert, or the ALJ must indicate in

the decision that the evidence otherwise supports the RFC that underlies the expert’s

opinions. See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1181 (11th Cir.

2011).

Here, the ALJ found that Gibson had a moderate limitation in the domain of

concentrating, persisting, or maintaining pace. (Tr. 22). Apart from the RFC, the

ALJ does not seem to have accounted, implicitly or explicitly, for this limitation in

the hypothetical question to the vocational expert. And standing alone, an RFC that

limits the claimant to unskilled work may not adequately account for a moderate

limitation in this domain. See, e.g., Richter v. Comm’r of Soc. Sec., 379 F. App’x

959, 960 (11th Cir. 2010). But that is not all that we have here.

“[W]hen medical evidence demonstrates that a claimant can engage in simple,

routine tasks or unskilled work despite limitations in concentration, persistence, and

pace, courts have concluded that limiting the hypothetical to include only unskilled

work sufficiently accounts for such limitations.” Winschel, 631 F.3d at 1180. On that

score, the ALJ explained:

In addressing the claimant’s moderate limitation in the ability

to concentrate, persist, or maintain pace, the claimant is limited

to understanding and remembering simple instructions,

maintaining focus to perform simple tasks, and is otherwise

able to render simple work-related decisions. This is justified

in light of the grossly normal cognitive findings throughout

care and the psychological evaluation.

(Tr. 30 (emphasis added)). Substantial evidence supports the ALJ’s conclusion.

Even Dr. Buck’s examination suggests that Gibson “performed in the average

range on tasks of simple verbal and non-verbal attention and concentration, along

with more complex nonverbal attention tasks that required working memory and

mental manipulation.” (Tr. 316). Other examiners repeatedly observed that Gibson

exhibited normal behavior, thought content, and judgment; and her recent and

remote memory, attention, and fund of knowledge were all intact. (Tr. 329, 336, 341,

356, 364, 372, 380, 465, 480, 487-88, 495, 503, 510-11, 599, 607-08, 674, 732, 741,

754-55, 762, 770, 778, 786-87, 795, 804, 813-14, 824, 858, 864, 870). Additionally,

Dr. Michael Inman performed a consultative psychological examination. (Tr. 709-

14). Therein, he opined that Gibson’s thought processes were logical and goal

oriented without tangential or circumstantial flight of ideas; she had an average IQ;

she was well prepared and organized for the evaluation, including supplying her

medical records and completing a history form; and her cognitive skills were well

preserved. (Tr. 711-13). Dr. Inman also noted that Gibson was able to follow

directions, remember the appointment, arrange for transportation, arrived early, and

even took her own notes during the evaluation. (Tr. 712-13). Gibson’s minimal and

conservative mental treatment also bolsters the ALJ’s finding. (Tr. 710, 872-84).

Finally, the ALJ observed Gibson’s hobbies include playing music and growing

orchids, which require focus and attention to detail. (Tr. 22). She also watches TV

and plays solitaire for roughly 90 minutes daily, and she drives three to four times

per week. (Tr. 22, 49, 53).

To counter this plethora of evidence, Gibson cites to one page from Dr. Rajan

Sareen’s notes where he observed “decreased concentration.” (Tr. 720). This does

not serve to displace the foregoing evidence. And she cites to Dr. Inman’s diagnosis

of depression, anxiety, and alcohol abuse as well as his observations that Gibson had

mild difficulty going from sit-to-stand after sitting for an hour; she groaned as she

stood; her observed affect was tearful; she worried about her future given her MS;

and she was able to recall only one out of four words on a free recall after fifteen

minutes. (Doc. 16 at 16 (citing Tr. 712-14)). But it is unclear how this relates to

concentration, persistence, or pace, and Dr. Inman’s other opinions (as described

above) are on point.

“Because the medical evidence showed that [Gibson] could perform simple,

routine tasks despite her limitations in concentration, persistence, and pace, the

ALJ’s limiting of [Gibson’s] functional capacity to unskilled work sufficiently

accounted for her moderate difficulties in concentration, persistence, and pace.”

Mijenes v. Comm’r of Soc. Sec., 687 F. App’x 842, 846 (11th Cir. 2017). Thus, there

is no reversible error.

F. Substantial evidence supports the ALJ’s finding that a significant

number of vocationally relevant jobs exist in the national economy.

While the claimant always bears the burden of proving that she is incapable

of performing any substantial gainful activity, the administration has the initial

burden at step five to show that there are a significant number of jobs that can be

performed by someone with the claimant’s age, education, work experience, and

RFC. To satisfy this burden, the administration routinely relies on the opinions of

vocational experts who testify during the ALJ hearings.

A vocational expert “is an expert on the kinds of jobs an individual can

perform based on his or her capacity and impairments.” Phillips v. Barnhart, 357

F.3d 1232, 1240 (11th Cir. 2004). And because an ALJ may rely upon a vocational

expert’s knowledge or expertise, Bryant v. Comm’r of Soc. Sec., 451 F. App’x 838,

839 (11th Cir. 2012), we are only concerned with whether the vocational expert’s

testimony constitutes substantial evidence and not whether substantial evidence

supports the vocational expert’s testimony. See Pace v. Comm’r of Soc. Sec., 760 F.

App’x 779, 781 (11th Cir. 2019).

The Social Security regulations “do not require a [vocational expert] to

produce detailed reports or statistics in support of her testimony.” 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) (same). Rather, a vocational expert’s recognized expertise provides the

necessary foundation for his or her testimony. No additional foundation is required.

See Leonard v. Comm’r of Soc. Sec., 409 F. App’x 298, 301 (11th Cir. 2011). So, a

vocational expert’s number-of-jobs testimony “may count as substantial evidence

even when unaccompanied by supporting data.” Biestek v. Berryhill, 139 S. Ct. 1148,

1155 (2019).

The regulations do not require any degree of precision, and the available data

in this area is imperfect. Moreover, the traditional rules of evidence do not apply,

and opinion testimony in this kind of proceeding is not subject to litigation-like

scrutiny. But a vocational expert’s testimony will fail to supply substantial evidence

in support of an ALJ’s unfavorable step-five finding if the claimant demonstrates at

the hearing that the expert’s methodology contains several significant mistakes and

thereby lacks a “baseline of reliability.” Goode v. Comm’r of Soc. Sec., 966 F.3d

1277, 1285 (11th Cir. 2020).

The ALJ included the vocational expert’s resume as part of the record, which

reflects he is well qualified with over thirty-five years of experience in the vocational

rehabilitation field and has been a vocational expert for the social security

administration since 1992. He also holds a master’s degree in rehabilitation

counseling from the University of Scranton. (Tr. 272-74). The vocational expert

testified that a hypothetical claimant with Gibson’s RFC could work as an electronic

worker, with 52,000 jobs in the national economy; a plastics assembler, with 75,000

jobs in the national economy; a final assembler, with 65,000 jobs in the economy;

and a semi-conductor bonder, with 38,000 jobs in the economy. (Tr. 71). However,

in the ALJ’s decision, she cited the wrong DOT number for the plastics-assembler

occupation. Thus, the argument goes, there is no way to know which DOT number

the ALJ was referencing, and these 75,000 jobs cannot be considered. This would

significantly decrease the number of jobs for the representative occupations that

Gibson is capable of working—from 230,000 to 155,000. And, in her view, this error

alone necessitates a remand. (Doc. 16 at 23).

Although it is true that the ALJ identified the wrong DOT number, this error

is harmless because, at the hearing, the vocational expert identified it correctly. And

the ALJ otherwise incorporated the proper information into her opinion, including

the number of available jobs. The ALJ’s blunder seems to have been nothing more

than a scrivener’s error. Either way, she correctly applied the 75,000 jobs available

nationally, which is the key component of a step-five finding. Thus, there is no

inconsistency between the ALJ’s decision and the vocational expert’s testimony.

Plus, the vocational expert identified, and the ALJ incorporated, three other

occupations. See Campbell v. Comm'r of Soc. Sec., No. 6:18-cv-2189-ORL-MAP,

2019 WL 6463983, *5 (M.D. Fla. Dec. 2, 2019) (“Even assuming the reference to

the wrong DOT code is more than a simple mistake, because the ALJ identified two

other jobs Plaintiff can perform, the error is clearly a harmless one.”).

Not done yet, Gibson argues the job estimates provided by the vocational

expert were “dramatically overstated.” (Doc. 16 at 25). Citing figures in the

Occupational Employment and Wage Survey (“OEWS”), she argues the number of

jobs in the electronics-worker, final-assembler, and semi-conductor-bonder

occupations are much lower than the vocational expert asserted. But this court has

previously considered and rejected such OEWS-based arguments. See Mccutcheon

v. Comm’r of Soc. Sec., No. 8:19-cv-3023-T-MAP, 2021 WL 268197, *4 (M.D. Fla.

Jan. 27, 2021). This is because an ALJ is only required to independently verify a

vocational expert’s testimony “when there is a conflict between the testimony and

the DOT.” Id. (citing Webster v. Comm’r of Soc. Sec., 773 F. App’x 553, 555 (11th

Cir. 2019)); Perez v. Kijakazi, No. 21-cv-23740, 2022 WL 17094932, *9 (S.D. Fla.

Nov. 3, 2022), report and recommendation adopted, No. 21-23740-civ, 2022 WL

17093619 (S.D. Fla. Nov. 21, 2022) (noting that ALJ has no affirmative duty to

resolve conflicts with sources outside the DOT). The purported conflict here is

between the vocational expert’s testimony and the OEWS, so the ALJ was not

required to address it.10

Indeed, Gibson’s counsel never raised this purported conflict to the ALJ,

questioned the vocational expert about his methodology, or otherwise objected to

the vocational expert’s testimony on these grounds. Courts have routinely “found a

[vocational expert’s] testimony regarding job numbers to be substantial evidence

even when the basis for those calculations was not provided,” and have rejected a

claimant’s “post-hearing research” into the jobs data discussed by the vocational

expert. Santana v. Kijakazi, No. 1:21-cv-23680, 2023 WL 2479768, *7 (S.D. Fla.

Feb. 22, 2023), report and recommendation adopted, 2023 WL 2477509 (Mar. 13,

2023) (collecting cases); Valdez v. Comm’r of Soc. Sec., 808 F. App’x 1005, 1010

(11th Cir. 2020) (refusing to consider occupational-employment statistics presented

for the first time to the district court). Besides, the relevant inquiry is not whether

the vocational expert’s testimony is supported by substantial evidence; it is whether

the ALJ’s decision is. Pace, 760 F. App’x at 781. Since there is no apparent

10 Gibson’s counsel has previously raised a similar argument—based on the Occupational

Information Network and the Occupational Retirement Survey—which the court rejected for the

same reason. See, e.g., Hill v. Comm’r of Soc. Sec., No. 2:22-cv-39-SPC-NPM, 2023 WL 2919821,

*8 (M.D. Fla. Jan. 31, 2023), report and recommendation adopted, 2023 WL 2728220 (Mar. 31,

2023).

inconsistency between the vocational expert’s testimony and the DOT, substantial

evidence supports the ALJ’s step-five finding.

II. Conclusion

Upon consideration of the submissions of the parties and the administrative

record, substantial evidence supports the ALJ’s decision and there was either no

error or no harmful error in the ALJ’s application of the correct legal standard.

Accordingly, the decision of the Commissioner is AFFIRMED pursuant to sentence

four of 42 U.S.C. § 405(g), and the clerk is directed to enter judgment, terminate any

pending motions and deadlines, and close the case.

ORDERED on March 22, 2024.

NICHOLAS P. ZE

United States Magistrate Judge

24 -