USCA11 Case: 22-11935 Document: 19-1 Date Filed: 09/28/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11935
Non-Argument Calendar
____________________
JOSEPH RAGUSA,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cv-80235-AMC
____________________
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2 Opinion of the Court 22-11935
Before NEWSOM, GRANT, and EDMONDSON, Circuit Judges.
PER CURIAM:
Joseph Ragusa appeals the district court’s order affirming
the Social Security Commissioner’s denial of his application for dis-
ability insurance benefits (“DIB”) and supplemental security in-
come (“SSI”). No reversible error has been shown; we affirm.
I.
When -- as in this case -- an Administrative Law Judge (“ALJ”)
denies an application for benefits and the Appeals Council denies
review, we review the ALJ’s decision as the Commissioner’s final
decision. See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
Our review of the Commissioner’s decision is limited to
whether substantial evidence supports the decision and whether
the correct legal standards were applied. See Buckwalter v. Acting
Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021). “Substantial
evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclu-
sion.” Id. We review de novo the ALJ’s application of the law. See
id. “We review de novo the district court’s determination as to
whether the ALJ’s decision was supported by substantial evidence.”
Id.
A person who applies for Social Security DIB or for SSI ben-
efits must first prove that he is disabled. See 20 C.F.R. §§
404.1512(a), 416.912(a). The Social Security Regulations outline a
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22-11935 Opinion of the Court 3
five-step sequential evaluation process for determining whether a
claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The ALJ must evaluate (1) whether the claimant engaged in sub-
stantial gainful work; (2) whether the claimant has a severe impair-
ment; (3) whether the severe impairment meets or equals an im-
pairment in the Listings of Impairments; (4) whether the claimant
has the residual functional capacity (“RFC”) to perform his past rel-
evant work; and (5) whether, in the light of the claimant’s RFC,
age, education, and work experience, other jobs exist in the na-
tional economy the claimant can perform. Id.
Following two hearings, the ALJ denied Ragusa’s application
for DIB and for SSI. Applying the five-step evaluation process, the
ALJ found that Ragusa suffered from three severe impairments: is-
chemic heart disease/coronary artery disease, asthma, and diabe-
tes with neuropathy. The ALJ concluded, however, that Ragusa had
no impairment or combination of impairments that met or medi-
cally equaled an impairment in the Listing of Impairments.
The ALJ next determined that Ragusa had the RFC to per-
form light work with specified postural and environmental limita-
tions. Pertinent to this appeal, the ALJ determined that Ragusa
must “avoid concentrated exposure to extreme cold/heat, humid-
ity, wetness, fumes, odors, gases, dust and other pulmonary irri-
tants.” Considering Ragusa’s age, education, work experience, and
RFC -- together with the testimony of a vocational expert (“VE”) -
- the ALJ determined that Ragusa could perform other work in the
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4 Opinion of the Court 22-11935
national economy. Accordingly, the ALJ concluded that Ragusa
was not disabled.
Ragusa administratively appealed the ALJ’s decision to the
Appeals Council. The Appeals Council denied Ragusa’s request for
review. The district court affirmed.
II.
On appeal, Ragusa focuses on step five in the sequential eval-
uation process. According to Ragusa, the ALJ’s determination that
Ragusa could perform other work in the national economy is un-
supported by substantial evidence. In particular, Ragusa challenges
the methodology the VE used to estimate the number of available
jobs in the national economy. Ragusa also contends that the ALJ
failed to identify and resolve an “apparent conflict” between the
VE’s testimony and the Dictionary of Titles (“DOT”).
“[T]he critical inquiry at step five is whether jobs exist in the
national economy in significant numbers that the claimant could
perform in spite of his impairments.” Washington v. Comm’r of Soc.
Sec., 906 F.3d 1353, 1360 (11th Cir. 2018). In making this inquiry,
the ALJ “does not tally the number of job openings at a given time,
but rather approximates the number of positions that exist,
whether vacant or filled, and without regard to the location of the
work and a claimant’s likelihood of being hired.” See Goode v.
Comm’r of Soc. Sec., 966 F.3d 1277, 1281 (11th Cir. 2020). To esti-
mate the number of available jobs, the ALJ often relies on the tes-
timony of a VE: a professional with experience in job placement
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22-11935 Opinion of the Court 5
and knowledge of working conditions. See Biestek v. Berryhill, 139
S. Ct. 1148, 1152 (2019).
At Ragusa’s hearing, a VE identified three representative oc-
cupations that a hypothetical person with Ragusa’s limitations
could perform: (1) housekeeper, DOT 323.687-014, with an esti-
mated 102,000 jobs available in the national economy; (2) cashier,
DOT 299.687-014, with an estimated 180,000 jobs available in the
national economy; and (3) sandwich board carrier, DOT 211.462-
010, with an estimated 9,000 jobs available in the national economy.
A.
On appeal, Ragusa contends that the VE relied on a flawed
methodology in determining the estimated number of available
jobs for each of the three identified positions. As a result, Ragusa
says the VE’s testimony constituted no substantial evidence sup-
porting the ALJ’s step-five determination.
To estimate the types and number of jobs a claimant can
perform in the national economy, the VE may rely on various pub-
licly-available sources -- including the DOT -- and on “their own
experience in job placement or career counseling.” See Biestek, 139
S. Ct. at 1152-53 (quotations omitted). The DOT is a publication
produced by the Department of Labor that groups similar jobs into
“occupations” and assigns each occupation a code number. See
Goode, 966 F.3d at 1281. The DOT, however, provides no statistical
information about the number of jobs available in the national
economy. See id. To estimate the number of available jobs, the VE
must therefore consult other sources of employment statistics, like
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6 Opinion of the Court 22-11935
the Occupational Employment and Wage Statistics program the
VE used in this case. See id.
Instead of using DOT codes, these statistical sources com-
pile employment data using a job-classification system called the
Standard Occupational Classification (“SOC”) system. See Goode,
966 F.3d at 1281; U.S. BUREAU OF LABOR STATISTICS, OCCUPATIONAL
EMPLOYMENT AND WAGE STATISTICS,
https://www.bls.gov/oes/oes_emp.htm (last visited 17 August
2023). Because the SOC sorts jobs into broad occupational catego-
ries, “a single SOC group may contain multiple DOT occupations.”
See Goode, 966 F.3d at 1281 (noting that, “the use of one system to
supply the job titles and another system to provide the job numbers
creates a matching problem: a one-to-one correlation does not ex-
ist” (brackets omitted)). Thus, after the VE determines the total
number of available jobs in a given SOC group, the VE “must use
some method for associating SOC-based employment numbers to
DOT-based job types.” See id. at 1283.
Here, the VE testified that he calculated the estimated num-
ber of available jobs for each of the representative occupations by
dividing the number of available jobs within each of the pertinent
SOC groups by the number of DOT codes within that SOC group.
This method of calculation is known as the “equal distribution
method”: a method that “assumes that the total number of jobs
that exist for a given SOC group are distributed equally among the
number of DOT occupations within that SOC group.” See id. at
1284. We have included the “equal distribution method” among
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22-11935 Opinion of the Court 7
the possible methods that are “on the table” for VEs to consider in
calculating job availability. See id. (stressing that “we express no
view on the merits of any particular approach”).
Beyond relying on the “equal distribution method,” the VE
in this case also testified that he relied on the software programs
JobBrowser and SkillTRAN to assess the job-incidence data. We
have identified the use of these programs as another potential cal-
culation method “on the table” for VEs. See id. The VE testified
further that he had professional experience placing applicants in
cashier and housekeeping positions and had observed those two
positions being performed: testimony that demonstrates that the
VE applied the calculation methods “in conjunction with his [own]
knowledge and expertise.” See id.
Ragusa has failed to demonstrate that the VE’s methodol-
ogy for estimating the number of available jobs was impermissibly
inconsistent or unreliable. Nor has Ragusa presented evidence or
data contradicting the VE’s job estimates. On this record, we con-
clude that the VE’s testimony about the availability of jobs in the
national economy was sufficiently reliable to constitute substantial
evidence supporting the ALJ’s determination at step five.
B.
Ragusa next contends that the ALJ failed to resolve an “ap-
parent conflict” between the VE’s testimony and the DOT’s job de-
scription for the “sandwich board carrier” job. Given the purported
unresolved conflict, Ragusa says a remand is necessary to allow for
additional factfinding.
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8 Opinion of the Court 22-11935
An ALJ has “an affirmative duty” to identify and to resolve
“apparent conflicts” between a VE’s testimony and the DOT. See
Washington, 906 F.3d at 1365. An “apparent conflict” is “a conflict
that is reasonably ascertainable or evident from a review of the
DOT and the VE’s testimony.” Id. (“At a minimum, a conflict is
apparent if a reasonable comparison of the DOT with the VE’s tes-
timony suggests that there is a discrepancy, even if, after further
investigation, that turns out not to be the case.”). When an ALJ
fails to discharge this duty, “the ALJ’s decision, when based on the
contradicted VE testimony, is not supported by substantial evi-
dence.” Id. at 1362.
According to the DOT, the position of “sandwich board car-
rier” involves constant “exposure to weather” but no exposure to
extreme cold, to extreme heat, to atmospheric conditions, or to wet
and/or humid conditions.1 See DOT 299.687-014.
1 The Selected Characteristics of Occupations (“SCO”) -- a companion publi-
cation to the DOT -- clarifies that exposure to “extreme cold,” “extreme heat,”
and “wet and/or humid” conditions means exposure to “nonweather-related”
cold or hot temperatures and humidity. See U.S. DEP’T OF LABOR, SELECTED
CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE REVISED DICTIONARY OF
OCCUPATIONAL TITLES App. D., at D-1 (rev. ed. 1993) (emphasis added). The
SCO also provides that exposure to “atmospheric conditions” means “[e]xpo-
sure to such conditions as fumes, noxious odors, dusts, mists, gases, and poor
ventilation, that affect the respiratory system, eyes, or the skin.” See id. at D-
2. “[E]xposure to weather,” on the other hand, means “[e]xposure to outside
atmospheric conditions.” See id. at D-1.
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22-11935 Opinion of the Court 9
Meanwhile, Ragusa’s RFC contains no weather-related limi-
tation. 2 Instead, Ragusa’s RFC provides that he should “avoid con-
centrated exposure to extreme cold/heat, humidity, wetness,
fumes, odors, gases, dust and other pulmonary irritants”: condi-
tions the DOT provides expressly are “Not Present” in the job of
“sandwich board carrier.” See id.
The DOT’s job description for “sandwich board carrier” is
consistent with the VE’s testimony that a claimant with Ragusa’s
limitations could perform that position. In other words, no “rea-
sonably ascertainable or evident” conflict exists between the DOT
and the VE’s testimony. The ALJ thus committed no error in rely-
ing on the VE’s testimony at step five.
Substantial evidence supports the Commissioner’s denial of
SSI and DBI; we affirm.
AFFIRMED.
2 Never has Ragusa challenged the ALJ’s RFC determination or asserted that
his RFC should include a weather-related limitation.