Nikia Webster v. Commissioner of Social Security

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13246
Non-Argument Calendar
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D.C. Docket No. 8:17-cv-01063-JSS
NIKIA WEBSTER,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 16, 2019)
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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Nikia Webster, through counsel, appeals the district court’s order affirming
the Commissioner of the Social Security Administration’s (“SSA”) decision to
deny his application for Social Security Income (“SSI”) benefits. On appeal, he
argues that the Administrative Law Judge (“ALJ”) erred by relying on the
Vocational Expert’s (“VE”) testimony, which he asserts was not supported by
substantial evidence because he argues that it was inconsistent with figures
provided by the Bureau of Labor Statistics.
When, as here, an ALJ denies benefits and the Appeals Council denies
review, we review the ALJ’s decision as the Commissioner’s final decision.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review de novo the
legal principles upon which an ALJ based its decision, but review the resulting
decision “only to determine whether it is supported by substantial evidence.”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
Substantial evidence is “less than a preponderance, but rather such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. In conducting this limited and deferential review, we do not
decide the facts anew, make credibility determinations, or re-weigh the evidence.
Id. Rather, so long as it is supported by substantial evidence, we defer to the ALJ’s
decision even if the evidence may preponderate against it. See Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004).
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The Social Security regulations provide a five-step evaluation process for
determining whether a claimant has proved that he is disabled. See 20 C.F.R.
§ 404.1520(a). In relevant part, at the fifth step, the Commissioner must consider
the claimant’s residual functional capacity (“RFC”) and his age, education, and
work experience to see if she can make an adjustment to other work. Id.
§ 404.1520(a)(4)(v). At the fifth step, the Commissioner bears the burden of
showing that, in light of the claimant’s RFC and other factors, a significant number
of jobs that the claimant can perform exist in the national economy. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011); see 20 C.F.R.
§ 404.1520(a)(4)(v). If such jobs exist, then the claimant is not disabled. See 20
C.F.R. § 404.1520(a)(4)(v).
The ALJ must articulate specific jobs that the claimant is able to perform,
and this finding must be supported by substantial evidence, not mere intuition or
conjecture. Wilson, 284 F.3d 1219, 1227 (11th Cir. 2002). 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 the testimony of a VE. Jones v.
Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999).
In order for the vocational expert’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question that comprises all of the
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claimant’s impairments. Winschel, 631 F.3d at 1180. A VE 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). An
ALJ may rely solely on the testimony of a VE in making this determination. Id. at
1230. If the Commissioner can demonstrate that there are jobs the claimant can
perform, the claimant must prove she is unable to perform those jobs in order to be
found disabled. Id. at 1228.
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 ALJ, relying on the VE's testimony,
determines whether a specific number of jobs constitutes a significant number. 20
C.F.R. § 404.15 12(g); see Jones, 190 F.3d at 1230. We have upheld an ALJ's
finding that 174 small appliance repairman positions in the area in which the
claimant resided, 1,600 general appliance repair jobs in Georgia, and 80,000 jobs
nationwide established the existence of work in significant numbers. Allen v.
Bowen, 816 F.2d 600, 602 (11th Cir. 1987).
The VE’s testimony—based on his own experience of having completed
supervisor surveys for the specific jobs for which he found Webster qualified, his
knowledge of the industry, and the Dictionary of Occupational Titles (“DOT”)—
constituted “substantial evidence” that there were a significant number of jobs that
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existed in the national economy that Webster could perform. See Winschel, 631
F.3d at 1180; 20 C.F.R. § 404.1520(a)(4)(v). Webster’s argument that the
Standard Occupational Classification (“SOC”) code job numbers reported by the
Bureau of Labor Statistics demonstrate that the VE’s testimony was unreliable is
unavailing. First, during the hearing, Webster did not question the VE’s
qualifications and the questions that he posed to the VE did not address his present
concerns about the reliability of the VE’s testimony. Moreover, the VE’s
testimony indicated that he relied on his own experience of surveying employers as
well as the DOT. The VE properly considered the hypothetical scenario that the
ALJ presented concerning an individual with the same impairments as Webster.
Further, to the extent that Webster argues that the ALJ was required to
independently verify a VE’s testimony, we have held that the ALJ is only required
to do so when there is a conflict between the VE’s testimony and the DOT.
Washington v. Comm’r Soc. Sec., 906 F.3d 1353, 1365 (11th Cir. 2018). Here, the
conflict is between the number of available jobs the VE reported and the number of
available jobs shown in the figures provided by the Bureau of Labor Statistics
through its publication of the Occupational Employment Statistics (“OES”).
Unlike the situation in which the VE’s testimony conflicts with the DOT, this
Court has not placed an affirmative duty on the ALJ to independently investigate a
conflict between the VE’s testimony and job availability figures provided by the
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Bureau of Labor Statistics in the OES. Furthermore, the figures in the OES are not
part of the SSA’s regulatory scheme. 20 C.F.R. § 404.1566(d)(1), (5).
Accordingly, because substantial evidence supports the ALJ’s finding that Webster
was not disabled, we affirm. See Jones, 190 F.3d at 1228.
AFFIRMED.
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