Harris v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Cassius Ramon Harris, )

)

Plaintiff, )

)

v. ) Case No.: 2:19-cv-00841-AMM

)

Social Security Administration, )

Commissioner, )

)

Defendant. )

MEMORANDUM OF DECISION

Plaintiff Cassius Ramon Harris brings this action pursuant to the Social

Security Act (the “Act”), seeking review of the decision of the Commissioner of

Social Security (“Commissioner”) denying his claim for a period of disability and

disability insurance benefits (“benefits”). See 42 U.S.C. § 405(g). Based on the

court’s review of the record and the parties’ briefs, the court REVERSES and

REMANDS the decision of the Commissioner.

I. Introduction

On June 5, 2017, Mr. Harris protectively filed an application for benefits

under Title II of the Act alleging disability as of December 23, 2015. R. 24, 90-91.

Mr. Harris’s application alleges disability due to chronic pulmonary sarcoidosis,

pulmonary hypertension, combat related PTSD, obstructive sleep apnea,

hypertension, left ventricular disfunction, chronic dry eye disease, hyperlipidemia,

severe mood disorder, and bilateral achilles tendonitis. R. 90-91. He is a college

graduate and has past relevant work experience as an imagery analyst and a

professional fire fighter/EMT. R. 103, 205.

The Social Security Administration (“SSA”) initially denied Mr. Harris’s

application on November 22, 2017. R. 24, 105-11. On January 11, 2018, Mr. Harris

filed a request for a hearing before an Administrative Law Judge (“ALJ”). R. 24.

That request was granted, R. 114-16, and Mr. Harris received a hearing before ALJ

Clarence Guthrie on January 10, 2019. R. 24, 41-86. On February 15, 2019, the ALJ

issued an unfavorable decision, finding that Mr. Harris was not disabled from

December 23, 2015 through the date of the decision. R. 21-35. Mr. Harris was 42

years old at the time of the ALJ decision. R. 35, 90.

Mr. Harris appealed to the Appeals Council. R. 167-70. Mr. Harris submitted

a letter brief and additional evidence. R. 2, 8-15, 309-13. After the Appeals Council

denied Mr. Harris’s request for review of the ALJ’s decision, R. 1-4, the ALJ’s

decision became the final decision of the Commissioner and subject to this court’s

review.

The Act establishes a five-step test for the ALJ to determine disability. 20

C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is engaging

in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work

activity is work activity that involves doing significant physical or mental activities.”

20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or

profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant engages in

substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §

404.1520(b). Second, the ALJ must determine whether the claimant has a medically

determinable impairment or a combination of medical impairments that significantly

limits the claimant’s ability to perform basic work activities. 20 C.F.R. §§

404.1520(a)(4)(ii), (c). Absent such impairment, the claimant may not claim

disability. Id. Third, the ALJ must determine whether the claimant’s impairment

meets or medically equals the criteria of an impairment listed in 20 C.F.R. § 404,

Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If

such criteria are met, the claimant is declared disabled. 20 C.F.R. §

404.1520(a)(4)(iii).

If the claimant does not fulfill the requirements necessary to be declared

disabled under the third step, the ALJ still may find disability under the next two

steps of the analysis. The ALJ must first determine the claimant’s residual functional

capacity, which refers to the claimant’s ability to work despite his impairments. 20

C.F.R. §§ 404.1520(e), 404.1545. In the fourth step, the ALJ determines whether the

claimant has the residual functional capacity to perform past relevant work. 20

C.F.R. § 404.1520(a)(4)(iv). If the ALJ determines that the claimant is capable of

performing past relevant work, then the claimant is deemed not disabled. Id. If the

ALJ finds the claimant unable to perform past relevant work, then the analysis

proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In this step, the

ALJ must determine whether the claimant is able to perform any other work

commensurate with his residual functional capacity, age, education, and work

experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the

claimant to the Commissioner to prove the existence, in significant numbers, of jobs

in the national economy that the claimant can do given his residual functional

capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),

404.1560(c).

The ALJ determined that Mr. Harris meets the insured status requirements of

the Act through December 31, 2022. R. 26. Next, the ALJ found that Mr. Harris had

not engaged in substantial gainful activity since his alleged onset date of disability,

December 23, 2015. R. 26. The ALJ decided that, since that date, Mr. Harris has had

the following severe impairments: morbid obesity, degenerative joint disease of the

bilateral shoulders, sarcoidosis, systemic hypertension, pulmonary hypertension,

post-traumatic stress disorder (“PTSD”), depression, and mood disorder. R. 26. As

to Mr. Harris’s complaint of a sleep-related breathing disorder, the ALJ found it to

be a “non-severe impairment” on the ground that the medical evidence established

that Mr. Harris’s “obstructive sleep apnea is controlled with continuous positive

airway pressure therapy.” R. 27. Overall, the ALJ determined that Mr. Harris did not

have “an impairment or combination of impairments that meets or medically equals

the severity of one of the listed impairments” to support a finding of disability. R.

27-29.

The ALJ found that Mr. Harris had the residual functional capacity to perform

sedentary work with certain non-exertional limitations. R. 29. The ALJ determined

that Mr. Harris can:

occasionally climb ladders, ropes, or scaffolds; can

frequently reach bilaterally; can occasionally be exposed

to weather or humidity, extreme cold, extreme heat,

irritants such as fumes, odors, dust, and gases, poorly

ventilated areas, and chemicals; can never be exposed to

workplace hazards such as moving mechanical parts and

high exposed places; can work in a low stress work

environment, defined as: tasks that are simple and routine

in nature with no inflexible or fast-paced production

requirements (such as assembly line work) and no more

than occasional changes in the work setting; can work in a

non-public work setting with only incidental contact with

co-workers and no tandem tasks; and can accept

instructions and respond appropriately to supervisors,

where this interaction occurs occasionally throughout the

day.

R. 29.

According to the ALJ, Mr. Harris is “unable to perform any past relevant

work,” he is a “younger individual,” and he has “at least a high school education,”

as those terms are defined by the regulations. R. 33. The ALJ determined that

“[t]ransferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding that

the claimant is ‘not disabled,’ whether or not the claimant has transferable job skills.”

R. 33. Because Mr. Harris cannot perform the full range of sedentary work, the ALJ

enlisted a vocational expert and used Medical-Vocation Rule 201.28 as a guideline

to ascertain whether there are a significant number of jobs in the national economy

that Mr. Harris is capable of performing. That expert concluded that there are indeed

a significant number of such jobs in the national economy, such as bench and table

worker, assembler, surveillance-system monitor, and inspector. R. 34. Based upon

these findings, the ALJ concluded that Mr. Harris did not have a disability as defined

in the Act, from December 23, 2015 through February 15, 2019. R. 35. Mr. Harris

now challenges that decision.

II. Standard of Review

This court’s role in reviewing claims brought under the Act is a narrow one.

The only issues before this court are whether the record reveals substantial evidence

to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d

835, 838 (11th Cir. 1982), and whether the correct legal standards were applied, see

Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d

129, 131 (11th Cir. 1986). The Act mandates that the Commissioner’s findings are

conclusive if supported by “substantial evidence.” Martin v. Sullivan, 894 F.2d 1520,

1529 (11th Cir. 1990); see 42 U.S.C. § 405(g). This court may not reconsider the

facts, reevaluate the evidence, or substitute its judgment for that of the

Commissioner; instead, it must review the record as a whole and determine if the

decision is reasonable and supported by substantial evidence. See Martin, 894 F.2d

at 1529 (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

Substantial evidence falls somewhere between a scintilla and a preponderance

of evidence; “[i]t is such relevant evidence as a reasonable person would accept as

adequate to support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth,

703 F.2d at 1239) (other citations omitted). If the Commissioner’s factual findings

are supported by substantial evidence, they must be affirmed even if the

preponderance of the evidence is against the Commissioner’s findings. See Martin,

894 F.2d at 1529. However, no decision is automatic, for “[d]espite th[e] deferential

standard [for review of claims], it is imperative that th[is] Court scrutinize the record

in its entirety to determine the reasonableness of the decision reached.” Bridges v.

Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,

883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is

grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

III. Discussion

A. Applicable Law

As noted above, at the fifth step of the disability determination, the

Commissioner must show “the existence of other jobs in the national economy

which, given the claimant’s impairments, the claimant can perform.” Hale v. Brown,

831 F.2d 1007, 1011 (11th Cir. 1987). “The SSA’s regulations establish how the

agency may determine whether there is suitable work available in the national

economy at step five.” Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359

(11th Cir. 2018); see 20 C.F.R. § 404.1566. The regulations provide that “[w]ork

exists in the national economy when there is a significant number of jobs (in one or

more occupations) having requirements which [the claimant is] able to meet with

[his] physical or mental abilities and vocational qualifications.” 20 C.F.R. §

404.1566(b).

In making this determination, the ALJ may take administrative notice of job

data, such as: “(1) Dictionary of Occupational Titles, published by the Department

of Labor[.]” Id. at § 404.1566(d). Additionally, “[i]f the issue in determining whether

[the claimant is] disabled is whether [his] work skills can be used in other work and

the specific occupations in which they can be used, or there is a similarly complex

issue, [the ALJ] may use the services of a vocational expert or other specialist.” Id.

at § 404. 1566(e); Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) (stating that

when the claimant cannot perform a full range of work or has non-exertional

impairments that significantly limit basic work skills, the primary method for

determining whether the claimant can perform other jobs is through vocational

expert testimony). An ALJ poses hypothetical questions to a vocational expert to

obtain testimony. “In order for a vocational expert’s testimony to constitute

substantial evidence, the ALJ must pose a hypothetical question which comprises all

of the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.

2002).

Ordinarily, vocational expert evidence should be consistent with the DOT.

Social Security Ruling 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (“SSR 00-

4p”). When a vocational expert’s testimony conflicts with the DOT, there are certain

duties that the ALJ must discharge. The SSA has issued a Policy Interpretation

Ruling governing the use of vocational expert evidence in disability decision-making

“to clarify [its] standards for identifying and resolving” “conflicts between

occupational evidence provided by a [vocational expert]…and information in the

DOT.” Id. As the Eleventh Circuit has explained, “SSR 00-4p imposes a duty on

ALJs to identify and resolve apparent conflicts between DOT data and [vocational

expert] testimony.” Washington, 906 F.3d at 1362.

Under SSR 00-4p and Washington, the ALJ must affirmatively identify

apparent conflicts, “explain any discrepancy[,] and detail in the decision how the

discrepancy was resolved.” Id; SSR 00-4p, at *1 (directing the ALJ to “[i]dentify

and obtain a reasonable explanation for any conflicts”). This is an affirmative duty

of the ALJ and does not depend on notice of apparent conflicts by the claimant. Id.

at 1362-63; SSR 00-4p, at *4 (providing that ALJ “must explain the resolution of

the conflict irrespective of how the conflict was identified”).

If an ALJ fails to “properly discharge this duty,” his decision is not supported

by substantial evidence. Washington, 906 F.3d at 1362. Additionally, an ALJ’s

attempt to explain away obvious conflicts without resolving them warrants remand.

See Overman v. Astrue, 546 F.3d 456, 464 (7th Cir. 2008).

B. Vocational Expert Testimony and the ALJ’s Decision

The ALJ called vocational expert Dr. David W. Head to testify at the

administrative hearing. R. 78-85. First, Dr. Head testified that Mr. Harris’s past work

could be classified as an intelligence specialist, firefighter, and EMT. R. 79. Next,

the ALJ asked Dr. Head: “Will you please advise us if your opinions conflict with

the Dictionary of Occupational Titles?” R. 80. Dr. Head responded: “Yes.” R. 80.

The ALJ did not ask any questions about this conflict. R. 80. Instead, he asked

hypothetical questions to Dr. Head. R. 80.

The ALJ’s initial hypothetical question tracked Mr. Harris’s residual

functional capacity, as determined by the ALJ, with the following exception: while

the residual functional capacity limited Mr. Harris to “a non-public work setting with

only incidental contact with co-workers and no tandem tasks,” R. 29, the

hypothetical referred to “occasional interaction with the public and with co-

workers.” R. 80 (emphasis added). In response to this hypothetical, Dr. Head

identified four jobs suitable for Mr. Harris: bench and table worker, assembler,

surveillance-system monitor, and inspector. R. 81. The ALJ then modified the

hypothetical to track the language in the residual functional capacity, and Dr. Head

testified that Mr. Harris would still be able to perform the four named jobs. R. 82.

Mr. Harris’s attorney cross-examined Dr. Head and likewise asked

hypothetical questions. R. 83-85. In response to the attorney’s hypothetical

questions, Dr. Head testified that the jobs identified would be eliminated if the

individual in the hypothetical: “has marked limitations in the ability to accept

instructions and respond appropriately to criticism from supervisors;” has “a marked

limitation in the ability to respond to changes in the work setting;” or “has a marked

limitation in the ability to interact with coworkers, supervisors or the general public.”

R. 84.

Following cross-examination, the vocational expert testified:

ALJ: Okay. Dr. Head, if there are any discrepancies

between the exact requirements of the hypotheticals I gave

you and the exact requirements of those jobs in the DOT,

how did you resolve any discrepancies that you saw?

[Dr. Head]: That would be based on my training and

experience and particularly in testifying in Social Security

hearings.

ALJ: Okay. So it’s your professional opinion that those

jobs are available in those numbers, with those

hypotheticals I gave, is that right?

[Dr. Head]: Yes, sir.

R. 85.

In relying on Dr. Head’s testimony, the ALJ stated: “The vocational expert

testified that any discrepancies between the hypotheticals and the Dictionary of

Occupational Titles were based upon his education and experience in the field. I

relied on the vocational expert’s expertise to the extent that there was a conflict

between the vocational expert’s testimony and the information contained in the

Dictionary of Occupational Titles.” R. 34.

Additionally, the ALJ addressed his finding that Mr. Harris had a “marked”

limitation in interacting with others and Dr. Head’s testimony that such a limitation

would eliminate the jobs for the hypothetical individual, as follows:

I also note that in response to questioning by the

claimant’s representative, the vocational expert testified

that there would be no jobs that an individual could

perform if the individual had a “marked” limitation in

interacting with others. The term “marked” is not defined

in the Dictionary of Occupational Titles, and was not

defined for the vocational expert, thus making the

vocational expert’s response unclear. Indeed, I have found

the claimant to have “marked” limitations in interacting

with others, however I have accounted for these marked

limitations with the significant social restrictions in the

claimant’s residual functional capacity, which are

expressed in vocational terms. I have relied on the

vocational expert’s response to the residual functional

capacity set forth above, which included specific function-

by-function abilities.

R. 34-35. The ALJ’s written decision states: “In interacting with others, the claimant

has a marked limitation.” R. 28.

C. Analysis

Mr. Harris claims that even with the residual functional capacity determined

by the ALJ, he cannot perform any jobs identified by the ALJ and vocational expert.

Doc. 11 at 23. Specifically, Mr. Harris asserts there is an apparent conflict between

the jobs identified and the limitations found. The job of bench and table worker

requires constant reaching, but the ALJ found Mr. Harris is limited to frequent

reaching. Id. Additionally, the vocational expert identified assembler jobs, but the

ALJ specifically eliminated assembly line work. Id. at 24. The vocational expert

identified inspector jobs, but Mr. Harris notes that “there is no such position listed”

in the applicable resources. Id. at 25. As to the jobs of bench and table worker,

assembler, and inspector, the Commissioner acknowledges “an unresolved conflict

between the DOT’s job descriptions…and the [vocational expert’s] testimony that

an individual with [Mr. Harris’s] reaching limitations could perform those jobs.”

Doc. 15 at 18.

Although applicable law requires the ALJ to identify conflicts between the

DOT’s job descriptions and vocational expert testimony, “explain any discrepancy,

and detail in the decision how the discrepancy was resolved,” Washington, 906 F.3d

at 1362; accord SSR 00-4p, the ALJ did not do that here. Faced with an obvious,

admitted conflict between the DOT and the vocational expert’s testimony, the ALJ

did not identify it, inquire into it, resolve it, or obtain a reasonable explanation for

it. The ALJ erred in failing to discharge these duties.

The Commissioner does not assert that the ALJ discharged the duties. Instead,

the Commissioner argues that the ALJ’s error is harmless because Mr. Harris can

perform work as another job identified – surveillance-system monitor. Doc. 15 at

18. Mr. Harris argues that he cannot perform the job of surveillance-system monitor

both because the job is substantially the same as his past work and because he is

limited to low-stress work. Doc. 18 at 5-6.

There are three problems with the ALJ’s ruling in this regard. First, after

finding that Mr. Harris could not perform his past work as intelligence specialist,1

the ALJ did not identify, let alone address, the apparent conflict between the

vocational expert’s findings about Mr. Harris’s past relevant work as an intelligence

specialist and the job of surveillance-system monitor. The ALJ’s decision does not

discuss the evidence about similar adverse mental health impacts of these jobs.

More particularly, the record shows that with respect to his past work in the

Air Force, which the vocational expert classified as intelligence specialist work, the

ALJ found (1) that Mr. Harris is unable to perform that work, R. 33, and (2) that

1 At the hearing, the ALJ verbalized this finding: “I mean, as far as being an imagery analyst

for the Air Force, we can mechanically put that together and you can’t do that any more.” R. 76.

work was the cause of Mr. Harris’s PTSD. R. 29. While serving in the Air Force,

Mr. Harris was deployed in place in Birmingham. R. 57. At the ALJ hearing, Mr.

Harris testified that, “we were the eyes for the predator and reaper and full motion

video, real life video -- we did close air support, BDA, vehicle follows, persistent

surveillance of things like that, of high value targets to the United States military and

we took them out.” R. 57-58. It was after a difficult mission in the fall of 2015 that

Mr. Harris went to see Dr. David Myers and was diagnosed with PTSD. R. 72, 88.

Dr. Myers’s letter regarding his 2015 diagnostic interview, which was considered by

the ALJ, states that Mr. Harris reported symptoms of hypervigilance, triggering

events, withdrawal, intense physiological distress, feelings of detachment, startle

responses, and difficulty concentrating. R. 630.

After his PTSD diagnosis, the Air Force took Mr. Harris off surveillance

mission in 2015 and medically retired him in November 2017. R. 72, 285. The Air

Force records indicate that Mr. Harris “witnessed death and destruction while

performing target surveillance for drones and has been treated with multiple

psychotropic medications and psychotherapy. Despite treatment, symptoms

of…conditions have not resolved and render [Mr. Harris] unfit for continued medical

service.” R. 288. The VA’s Disability Benefits Questionnaire for Mr. Harris’s PTSD

reflects that he experiences the following symptoms: “recurrent, involuntary, and

intrusive distressing memories of the traumatic event(s);” “recurrent distressing

dreams in which the content and/or affect of the dream are related to the traumatic

event(s); “intense or prolonged psychological distress at exposure to internal or

external cues that symbolize or resemble an aspect of the traumatic event(s).” R.

913-14.

As defined in the DOT listing, the surveillance-system monitor job is a

“protective service occupation,” requiring an individual to “monitor[] premises…to

detect crime or disturbances…using closed circuit television monitors” and

“[o]bserve[] television screens.” Doc. 12-4. The vocational expert described the job

of surveillance-system monitor as “one that does not call for interacting with the

public but observing the public on a screen, either for violations of safety or of legal

requirements.” R. 81.

The record contains no testimony about or analysis of Mr. Harris’s ability to

do a job similar to his past relevant work, which he can no longer do and which

caused his PTSD. The ALJ’s failure to identify this discrepancy, let alone resolve it

or detail in the decision how he resolved it, or obtain a reasonable explanation for it,

violated applicable law and SSR 00-4p.

Second, the ALJ did not identify, let alone address, another apparent conflict

between the vocational expert testimony and the DOT regarding Mr. Harris’s ability

to perform the surveillance-system monitor job – namely, a discrepancy concerning

Mr. Harris’s ability to interact frequently with co-workers. The ALJ found that Mr.

Harris’s residual functional capacity is limited to “work in a non-public work setting

with only incidental contact with co-workers and no tandem tasks” and interaction

with supervisors “where this interaction occurs occasionally throughout the day.” R.

29. The vocational expert testified that Mr. Harris would not be able to perform the

jobs identified – including surveillance-system monitor – if he had a “marked

limitation in the ability to interact with coworkers, supervisors or the general public.”

R. 84. And, the DOT entry for surveillance-system monitor is replete with

indications that the job involves frequent interaction with people: “notifies

authorities by telephone of need for corrective action;” “telephones police or other

designated agency to notify authorities of location of disruptive activity;” “notifies

repair service of equipment malfunctions;” and “Speaking-Signaling: Talking with

and/or signaling people to convey or exchange information. Includes giving

assignments and/or directions to helpers or assistants.” Doc. 12-4 at 1-2.2

Additionally, for all job listings in the DOT, various “temperaments” are listed. For

surveillance-system monitor, one temperament is P, which indicates “dealing with

people.” Id. at 6. The P “variable involves interpersonal relationships in job

situations beyond receiving work instructions.” Operational Definitions of

Vocational Temperaments, Handbook for Analyzing Jobs (USDOL, 1991).

2 The court takes judicial notice of the information contained in the Dictionary of

Occupational Titles. See Moon v. Astrue, 2010 WL 749635, at *5 n.5 (M.D. Ga. Feb. 25, 2010).

Put simply, all the record evidence on this issue reflects an apparent,

unresolved conflict between the DOT listing for surveillance-system monitor and

Mr. Harris’s residual functional capacity limitations. “[T]he conflict is manifest from

even a cursory, side-by-side comparison of the [vocational expert’s] testimony and

the DOT.” Washington, 906 F.3d at 1366. “This doesn’t mean that the [vocational

expert] was wrong, but it does mean that there was a conflict, it was apparent, and it

was important.” Id. As with the previous conflict, the ALJ’s reliance on the

vocational expert’s testimony without resolving the conflict and detailing in his

decision his basis for the resolution, or obtaining a reasonable explanation for it,

violated applicable law and SSR 00-4p.

Third, the internal inconsistencies and contradictions in the vocational

expert’s testimony required the ALJ to investigate further, and his failure to do so

requires reversal. 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. at 1364 (quoting Henry v. Comm’r

of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015)). Throughout the vocational

expert’s testimony there was contradiction and confusion regarding Mr. Harris’s

ability to perform the jobs identified by the vocational expert. Notably, the

Commissioner concedes that three of the four jobs identified by the vocational expert

directly conflicted with the reaching limitations in the residual functional capacity

delineated by the ALJ. Doc. 15 at 18.

Additionally, there was contradictory testimony regarding the availability of

jobs and Mr. Harris’s limitations with working with others. R. 81, 82, 84. The

vocational expert testified on direct examination that an individual limited to a non-

public setting, with only incidental contact with coworkers, and occasional

supervision would be able to perform the four jobs identified. R. 82. However, on

cross examination, the vocational expert testified that an individual with a “marked

limitation in the ability to interact with coworkers, supervisors or the general public,”

would not be able to perform the identified jobs. R. 84.

The conflict between the vocational expert’s testimony on direct examination

and his testimony on cross-examination should have been apparent to the ALJ. See

Overman, 546 F.3d at 464. As in Washington, the ALJ asked nothing of the

vocational expert to elicit a “fuller” explanation. Washington, 906 F.3d at 1366.

Instead, “[t]he vocational expert’s testimony was internally inconsistent, and created

a critical void in the record.” Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1282-

83 (11th Cir. 2020). As in Goode, it is not the court’s “job or duty to speculate on

what the testimony would have been without the error.” Id. at 1283.

In any event, the record reflects that the contradiction was apparent to the ALJ

when he drafted his decision: the ALJ appears to “attempt[] to rescue the [vocational

expert’s] testimony” by stating the vocational expert was not given a definition of

“marked.” See Overman, 546 F.3d at 464; R. 34-35. Implicit in “the ALJ’s attempt

to explain away the seemingly contradictory statements is … an acknowledgment

that there were apparent discrepancies.” Overman, 546 F.3d at 464.

Ultimately, because of the apparent conflicts between the vocational expert’s

testimony and the DOT, the unresolved and unexplained conflict between the

vocational expert’s testimony and the ALJ’s findings, and the internal

inconsistencies in the vocational expert’s testimony, the vocational expert’s

testimony was unreliable. Overman, 546 F.3d at 465. “[A] finding based on such

unreliable vocational expert testimony is equivalent to a finding that is not supported

by substantial evidence and must be vacated.” Goode, 966 F.3d at 1282 (internal

quotations marks omitted). 3

VI. Conclusion

The ALJ’s determination that Mr. Harris is not disabled is not supported by

substantial evidence. The Commissioner’s final decision is therefore reversed and

remanded to the Commissioner to conduct further proceedings consistent with this

3 Mr. Harris also argues that the ALJ erred in his evaluation of Mr. Harris’s mental health

limitations and morbid obesity. Doc. 11 at 10-23. Additionally, Mr. Harris argues that the Appeals

Council erred in denying review based on the evidence he submitted after the ALJ’s denial

decision. Id. at 21-24. Because the court is remanding the case on the basis of the errors discussed

above, the court does not reach the other issues raised by Mr. Harris.

opinion. A separate order in accordance with this memorandum of decision will be

entered.

DONE and ORDERED this 29th day of September, 2020.

ANNA M. hans.

UNITED STATES DISTRICT JUDGE

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