Case: 12-12425 Date Filed: 11/14/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12425
Non-Argument Calendar
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D.C. Docket No. 8:10-cv-02495-MAP
LEAH LEIGH,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
lllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 14, 2012)
Before TJOFLAT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Leah Leigh applied for disability insurance benefits under Titles II and
XVIII of the Social Security Act (“SAA”), asserting that she became unable to
work due to her disabling condition on June 10, 1994. After a series of
proceedings, an Administrative Law Judge (“ALJ”) found her not disabled.1 After
the Commissioner denied the requested benefits, Leigh appealed to the District
Court. She now appeals the District Court’s order affirming the Commissioner’s
decision. At issue is whether substantial evidence supported the ALJ’s finding
that Leigh could perform a significant number of existing jobs in the national
economy based on the testimony of a vocational expert (“VE”).
The ALJ posed a hypothetical question to a VE about whether a claimant
with Leigh’s impairments, which limited her to “simple, routine, repetitive tasks”,
could perform jobs in the United States. The VE testified that such a person could
work as a small parts assembler, a ticket seller, and a file clerk or office helper.
The ALJ relied on the VE’s testimony in finding that Leigh could perform other
jobs in the United States and, thus, was not disabled.
1
The ALJ’s findings regarding Leigh’s ailments are not contested. The ALJ found that
Leigh suffered from carpal tunnel syndrome and lateral epicondylitis of the upper right extremity,
degenerative changes of the left ankle, cervical sprain with some degenerative disease,
irregularities at the coccyx, asthma, gastroesophageal reflux disease, hepatis C, irritable bowell
syndrome, and adjustment disorder with depressed mood.
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On appeal, Leigh argues that the VE’s testimony conflicted with the
Dictionary of Occupational Titles (“DOT”) because the required reasoning levels
for the three jobs the VE identified did not conform to the limitation that she could
only perform simple, routine, repetitive tasks. She argues that, under Social
Security Ruling 00-4p (“SSR 00-4p”), the ALJ had a duty to investigate whether
the VE’s testimony was consistent with the DOT or not.
Our task, here, is to determine whether the ALJ’s decision is supported by
substantial evidence and is based upon proper legal standards. See Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Eligibility for
disability insurance benefits requires that the claimant is under a disability. 42
U.S.C. § 423(a)(1)(E). In order to determine whether a claimant is disabled, the
SAA applies a 5-step sequential evaluation. 20 C.F.R. § 404.1520(a). This
process includes an analysis of whether the claimant: (1) is unable to engage in
substantial gainful activity; (2) has a severe medically determinable physical or
mental impairment; (3) has such an impairment that meets or equals a Listing and
meets the duration requirements; (4) can perform his past relevant work, in light of
his residual functional capacity; and (5) can make an adjustment to other work, in
light of his residual functional capacity, age, education, and work experience. 20
C.F.R. § 404.1520(a)(4).
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As to the fifth prong, the Commissioner bears the burden of showing that, in
light of the claimant’s residual functional capacity and other factors, a significant
number of jobs that the claimant can perform exist in the national economy.
Winschel, 631 F.3d at 1180; 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).
An ALJ may make this determination by posing hypothetical questions to a
VE. See Winschel, 631 F.3d at 1180. In fact, an ALJ may rely solely on the
testimony of a VE in making this determination. Jones v. Apfel, 190 F.3d 1224,
1230 (11th Cir. 1999). For the testimony of a VE to constitute substantial
evidence, “the ALJ must pose a hypothetical question which comprises all of the
claimant’s impairments.” Id. at 1229. If there is a conflict between the DOT and
the jobs identified by a VE in response to the hypothetical question, the testimony
of the vocational expert “trumps” the DOT because “the DOT is not the sole
source of admissible information concerning jobs.” Id. at 1229-30 (quotation
omitted). The DOT is not comprehensive, and the SSA does not consider it to be
dispositive. Id. at 1230. Further, 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).
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SSR 00-4p states that when a VE provides evidence about the requirements
of a job or occupation, the ALJ has an affirmative responsibility to ask about any
possible conflict between that VE’s testimony and the DOT. SSR 00-4p. When
the VE’s testimony is inconsistent with the DOT, the ALJ must resolve this
conflict before relying on the VE to determine whether the individual is or is not
disabled. Id.
Here, in response to the ALJ’s hypothetical question concerning a claimant
with the same impairments and limitations as Leigh, the VE opined that Leigh
could work as a small parts assembler, a ticket seller, and a file clerk or office
helper. See Phillips, 357 F.3d at 1240; Jones, 190 F.3d at 1229. The ALJ asked
the VE if there were any inconsistencies between his opinion and the DOT, and
the VE responded that there were not. Further, Leigh did not offer any evidence
controverting the VE’s opinion, nor did she object to the opinion. Even assuming
that there was an inconsistency between the VE’s opinion and the DOT, the ALJ
did not err in relying on the VE’s opinion to determine that Leigh was not
disabled. See Jones, 190 F.3d at 1229-30 (explaining that the testimony of a VE
trumps the DOT where there is an inconsistency). Because there was no apparent
inconsistency between the VE’s opinion and the DOT, the ALJ’s decision is
supported by substantial evidence. The District Court’s judgment is, accordingly,
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AFFIRMED.
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