Elawyers Elawyers
Ohio| Change

Juan Hernandez vs Commissioner of Social Security, 11-10356 (2011)

Court: Court of Appeals for the Eleventh Circuit Number: 11-10356 Visitors: 34
Filed: Jul. 11, 2011
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 11-10356 ELEVENTH CIRCUIT Non-Argument Calendar JULY 11, 2011 _ JOHN LEY CLERK D.C. Docket No. 8:09-cv-02490-TGW JUAN HERNANDEZ, llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, llllllllllllllllllllllllllllllllllllllllDefendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (July 11, 20
More
                                                                   [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                         FILED
                                                                 U.S. COURT OF APPEALS
                                 No. 11-10356                      ELEVENTH CIRCUIT
                             Non-Argument Calendar                     JULY 11, 2011
                           ________________________                     JOHN LEY
                                                                         CLERK
                      D.C. Docket No. 8:09-cv-02490-TGW

JUAN HERNANDEZ,

                                   llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                       versus

COMMISSIONER OF SOCIAL SECURITY,

                                  llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                  (July 11, 2011)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Juan Hernandez appeals the district court’s order affirming Michael Astrue’s

(“the Commissioner”) denial of his application for disability insurance benefits, 42
U.S.C. § 405(g), and Supplemental Security Income benefits, 42 U.S.C. § 1383(c)(3).

On appeal, Hernandez argues that the Administrative Law Judge (“ALJ”) erred by

finding that he could return to his past relevant work as a truck driver. After careful

review, we affirm.

      We review the Commissioner’s factual findings to determine whether they are

supported by substantial evidence. Ingram v. Comm’r of Soc. Sec. Admin., 
496 F.3d 1253
, 1260 (11th Cir. 2007). Substantial evidence is defined as “such relevant

evidence as a reasonable person would accept as adequate to support a conclusion.”

Bloodsworth v. Heckler, 
703 F.2d 1233
, 1239 (11th Cir. 1983). It is “more than a

scintilla, but less than a preponderance.” 
Id. In conducting
this review, we may not

reweigh the evidence or substitute our judgment for that of the ALJ. Dyer v.

Barnhart, 
395 F.3d 1206
, 1210 (11th Cir. 2005). On the other hand, we will reverse

where the ALJ fails to apply the correct law or to “provide [us] with sufficient

reasoning for determining that the proper legal analysis has been conducted.” Keeton

v. Dep’t of Health & Human Servs., 
21 F.3d 1064
, 1066 (11th Cir. 1994).

      The social security regulations establish a five-step, sequential evaluation

process to determine disability for both SSI and disability benefits claims. See 20

C.F.R. §§ 404.1520, 416.920. The ALJ must evaluate: (1) whether the claimant

engaged in substantial gainful employment; (2) whether the claimant has a severe

                                          2
impairment; (3) whether the severe impairment meets or equals an impairment in the

Listing of Impairments; or (4) whether the claimant has the residual functional

capacity (“RFC”) to perform his past relevant work; and (5) whether, in light of the

claimant’s RFC, age, education and work experience, there are other jobs the claimant

can perform. See Phillips v. Barnhart, 
357 F.3d 1232
, 1237 (11th Cir. 2004); 20

C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

      The sequential process places a “very heavy burden” on the claimant to

demonstrate both a qualifying disability and an inability to perform past relevant

work. Moore v. Barnhart, 
405 F.3d 1208
, 1211 (11th Cir. 2005). Throughout the

process, the burden is on the claimant to introduce evidence in support of his

application for benefits. Ellison v. Barnhart, 
355 F.3d 1272
, 1276 (11th Cir. 2003).

      At step four of the sequential evaluation process, the ALJ assesses the

claimant’s RFC and a claimant’s ability to do past relevant work. See 20 C.F.R. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv). The RFC is “an assessment, based upon all of

the relevant evidence, of a claimant’s remaining ability to do work despite his

impairments.” Lewis v. Callahan, 
125 F.3d 1436
, 1440 (11th Cir. 1997) (citing 20

C.F.R. § 404.1545(a)). The claimant bears the burden of showing that he cannot

perform his past work as he actually performed it and as it is generally performed in

the national economy. See Social Security Ruling (“SSR”) 82-61, available at 1982

                                         
3 WL 31387
; see also 20 C.F.R. §§ 404.1520(f), 416.920(f). We have construed those

regulations to require that a claimant prove that he is not able to “perform his past

kind of work, not that he merely be unable to perform a specific job he held in the

past.” Jackson v. Bowen, 
801 F.2d 1291
, 1293-94 (11th Cir. 1986) (emphasis in

original) (holding that, although claimant showed that he could not perform his past

job as a link belt operator at a pipe manufacturing factory, he did not show that he

could not perform such jobs in general because he did not show that climbing and

descending stairs is generally a requisite of such jobs).

      An ALJ may rely on information contained in the Dictionary of Occupational

Titles (“DOT”) to determine whether a claimant can perform his past relevant work

as it is generally performed in the national economy. See SSR 82-61; 20 C.F.R.

404.1560(b)(2); Jones v. Apfel, 
190 F.3d 1224
, 1230 (11th Cir. 1999) (holding that,

while the information in the DOT is not dispositive, the ALJ may “take administrative

notice of reliable job information available from various governmental and other

publications, such as the DOT”). Generally, vocational expert testimony is not

necessary to determine whether a claimant can perform his past relevant work. Lucas

v. Sullivan, 
918 F.2d 1567
, 1573 n.2 (11th Cir. 1990).

      As an initial matter, substantial evidence supports the ALJ’s finding that

Hernandez could perform past relevant work. The ALJ found that Hernandez was

                                          4
capable of performing light work. Hernandez does not challenge that finding on

appeal, and thus abandons any challenge to that finding. See Allstate Ins. Co. v.

Swann, 
27 F.3d 1539
, 1542 (11th Cir. 1994) (noting that issues not raised on appeal

are considered abandoned).

        Moreover, the ALJ’s determination that Hernandez could perform his past

relevant work as a truck driver, as it is performed in the general economy, is

supported by substantial evidence. The record demonstrates that the ALJ adequately

considered evidence of the duties of a type of truck driver, a telephone-directory

distributor, in finding that Hernandez could perform work of the same kind as past

relevant work. In making this finding, the ALJ referred to the DOT identification

number for the telephone-directory distributor position. From the DOT classification,

the ALJ determined that the telephone-directory distributor position required only

light exertion. The ALJ was permitted to rely on the DOT classifications to determine

whether Hernandez’s past relevant work was light in exertion as it is generally

performed in the national economy. See SSR 82-61; 20 C.F.R. § 404.1560(b)(2);

Jones, 190 F.3d at 1230
. The DOT does, in fact, indicate that the position of

telephone-directory distributor requires a light level of exertion. See DOT Listing

No. 906.683-018, available at DICOT § 906.683-018. Because the ALJ determined

that Hernandez’s RFC allowed for light exertion, and because a telephone-directory

                                         5
distributor job required only light exertion, there was substantial evidence to support

the ALJ’s decision in this case.1

       Accordingly, we affirm.

       AFFIRMED.




       1
         Notably, Hernandez does not attempt to argue that his RFC prevents him from
performing work as a telephone-directory distributor, but that he cannot perform the
telephone-directory distributor job because he is not fluent in English. However, the Dictionary
of Occupational Titles does not specify that the applicant must be able to perform the telephone-
directory distributor job in English. See DOT Listing No. 906.683-018, available at DICOT §
906.683-018. Hernandez thus failed to carry his heavy burden of establishing that he was unable
to perform this kind of work. See 
Moore, 405 F.3d at 1211
.

       Finally, because substantial evidence supports the ALJ’s finding that Hernandez could
perform his past relevant work, we need not reach the issue of whether the ALJ erred by
misapplying the Medical-Vocational Guidelines nor whether the ALJ erred by not considering
Dr. Cater’s opinion, as Hernandez raises that issue solely in the context of step five of the
sequential evaluation. See 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4) (providing that if a
claimant is found to be not disabled at any particular step in the sequential analysis, the
Commissioner will make its determination without moving on to the next step).

                                                6

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer