GREGORY J. KELLY, District Judge.
Evel John Ortiz (the "Claimant") appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying Claimant's claim for benefits. See Doc. No. 1. Claimant alleges that the Administrative Law Judge (the "ALJ") erred by: 1) offering an "inherently inconsistent" residual functional capacity assessment ("RFC"); 2) failing to obtain the testimony of a vocational expert ("VE") when determining there was other work that Claimant can perform; 3) failing to consider Claimant's back condition in the RFC; 4) relying on testimony from the VE without inquiring whether that testimony conflicted with the Dictionary of Occupational Titles (the "DOT"); and 5) failing to consider the side-effects of Claimant's medications. Doc. No. 21 at 1-15. Claimant requests that the Commissioner's final decision be reversed and remanded for an award of benefits. Doc. No. 21 at 15. For the reasons more fully discussed below, the final decision of the Commissioner is
On June 7, 2007, Claimant applied for disability benefits alleging an onset of disability as of May 1, 2006, due to manic depressive disorder, high blood pressure, kidney disease, and pain. R. 52, 56, 113-125, 174. Claimant's application was denied initially and upon reconsideration. R. 49-56. On August 19, 2009, a hearing was held before ALJ Gerald Murray. R. 24-48. Claimant and a VE testified at the hearing. R. 24.
At the hearing, the ALJ first received testimony from the VE regarding Claimant's past relevant work. R. 26-29. The VE testified that Claimant's past relevant work includes the following: 1) a motel desk clerk, DOT number 238367038, which is classified by the DOT as being light work, semi-skilled; and 2) a reservations clerk, DOT number 238367038, which is classified by the DOT as sedentary work, semi-skilled. R. 27. Thus, the VE testified that Claimant's past relevant work is semi-skilled. R. 27.
On September 24, 2009, the ALJ issued a decision finding Claimant not disabled. R. 9-23. The ALJ made the following significant findings:
R. 9-23 (emphasis added). Thus, the ALJ determined that Claimant has the RFC to perform light work, except that Claimant is limited to "unskilled or skilled work." R. 14.
At step-four, the ALJ found, based on the VE's testimony, that Claimant's past-relevant work includes a motel desk clerk and a reservation clerk, which the ALJ acknowledged are semi-skilled jobs. R. 21. The ALJ then found that: "[i]n comparing the [C]laimant's [RFC] with the physical and mental demands of this work . . . the [C]laimant is able to perform it as actually and generally performed." R. 21. Thus, the ALJ found that based upon Claimant's RFC, he is capable of performing his past-relevant, semi-skilled work. R. 22.
In the alternative to his decision that the Claimant is capable of performing his past-relevant work, at step-five, the ALJ states:
R. 21-22 (emphasis added). Thus, in the alternative to his finding at step-four that Claimant can perform past-relevant work, the ALJ found at step-five that there was other work that Claimant can perform. More specifically, unskilled light work. R. 21-22. In making this finding, the ALJ relied exclusively on the medical-vocational grids. R. 22. The ALJ noted that if a Claimant has additional exertional or nonexertional impairments, which preclude performance of substantially all the demands of work at a given level, then the medical-vocational guidelines are only used as a framework. R. 22. However, in this case, the ALJ found that Claimant's "additional limitations have little or no effect on the occupation base of
Regarding Claimant's allegations of debilitating back and neck pain, in determining Claimant's RFC, the ALJ states:
R. 17 (emphasis added). Thus, in determining Claimant's RFC, the ALJ noted that Claimant complained of neck and back pain, had positive MRI findings, and was diagnosed with cervicalgia, cervical spondylosis, degenerative disc disease, and cervical spinal stenosis, but because Claimant refused all treatment suggestions, the ALJ found that his symptoms from these impairments "may not have been as serious as has been alleged." R. 17.
Regarding Claimant's medications and the side-effects therefrom, the ALJ noted that Claimant testified that he does not want to be on painkillers; his medications cause fatigue, blurred vision, and confusion; and that sometimes the only way to function is by not taking his medications. R. 15. The ALJ also noted that Claimant was currently prescribed Prozac, Wellbutrin, and Seroquel, but treatment records show that Claimant was not compliant with his medications. R. 16. Ultimately, the ALJ found that Claimant's statements regarding the intensity and persistence of his symptoms were not credible to the extent they are inconsistent with the ALJ's RFC. R. 15.
On February 25, 2010, the Appeals Council denied Claimant's request for review of the ALJ's decision. R. 1-5. On April 20, 2010, Claimant appealed the Commissioner's final decision in the District Court. Doc. No. 1.
As mentioned above, Claimant argues that the ALJ erred by: 1) offering an "inherently inconsistent" RFC (Doc. No. 21 at 7-9); 2) failing to obtain testimony from a VE regarding whether there was other work that Claimant can perform (Doc. No. 21 at 9-10); 3) failing to consider Claimant's back impairments when determining Claimant's RFC (Doc. No. 21 at 10-12); 4) failing to ask the VE whether his testimony conflicted with the DOT (Doc. No. 21 at 13-14); and 5) failing to consider the side-effects of Claimant's medications (Doc. No. 21 at 14-15).
As to the second issue, Claimant asserts that the ALJ erred by relying exclusively on the medical-vocational grids at step-five to determine there was other work Claimant can perform because Claimant has non-exertional limitations which preclude a full range of light work. Doc. No. 21 at 9-10. As to the third issue, Claimant maintains that because the ALJ failed to find Claimant's back impairment a severe impairment at step-two, that the ALJ did not consider it in the ALJ's RFC. Doc. No. 21 at 10. Regarding the fourth issue, Claimant maintains that the ALJ erred at step-four, when determining Claimant could perform his past-relevant work, because he failed to ask the VE whether his testimony regarding that work conflicted with the DOT. Doc. No. 21 at 13-14. Claimant does not allege that there is such a conflict, only that the ALJ erred by failing to inquire if there was one. Id. Lastly, Claimant asserts that the ALJ erred by "failing to consider the side effects of the [C]laimant's medications." Doc. No. 21 at 14. Claimant states that "the ALJ does not even note these side effects in his decision." Doc. No. 21 at 15.
The Commissioner acknowledges that the ALJ's RFC, limiting Claimant to "unskilled or skilled" light work is inconsistent. Doc. No. 22 at 5. However, the Commissioner asserts that the RFC as written is a drafting error, and it is apparent from the decision that the ALJ intended to limit Claimant to unskilled or semi-skilled work. Id. The Commissioner maintains that the ALJ's finding at step-four, that Claimant is capable of performing his past-relevant semi-skilled work, supports the conclusion that the ALJ's RFC merely contains a drafting error. Doc. No. 22 at 6. The Commissioner contends that the error is harmless and remand would be an empty exercise. Id. at 7. The Commissioner also argues that Claimant's suggestion that the ALJ actually intended to limit Claimant to only unskilled work due to his findings at step-five regarding other work that Claimant can perform ignores the fact that the ALJ's finding at step-five was an alternative finding. Doc. No. 22 at 7. Thus, the Commissioner maintains that the ALJ's finding at step-five also supports the Commissioner's contention that the RFC should have been for unskilled and semi-skilled work. Doc. No. 22 at 7-8.
As to the remaining issues, the Commissioner asserts that ALJ properly relied on the VE's testimony at step-four, considered Claimant's back impairments at step-two and in determining Claimant's RFC, relied on the grids at step-five, and considered the side-effects of Claimant's medications. Doc. No. 22 at 8-15. Thus, the Commissioner requests the Court affirm the final decision. Doc. No. 22 at 15.
Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 CFR §§ 404.1520(a), 416.920(a). In Doughty v. Apfel, 245 F.3d 1274, (11th Cir. 2001), the Eleventh Circuit explained the five-step sequential evaluation process as follows:
Id. (citations omitted). The steps are followed in order. If it is determined that the claimant is not disabled at a step of the evaluation process, the evaluation will not go on to the next step.
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
Where the Commissioner's decision is supported by substantial evidence, the District Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The District Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). The District Court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004).
The ALJ found that Claimant retains the RFC for light work except that he is further limited to "unskilled or skilled" work. R. 14. All parties agree that the ALJ's statement is inconsistent, but the parties disagree as to the result that should follow. Claimant implicitly acknowledges the ALJ's statement that Claimant could perform "skilled" work does not make sense and assigns no meaning to the word by arguing that the ALJ apparently meant to find Claimant could only perform unskilled work. Id. In so doing, Claimant maintains the ALJ's RFC finding is entirely inconsistent with the remainder of the ALJ's opinion, which finds Claimant's past-relevant work was semi-skilled work and Claimant could perform that work. Thus, Claimant argues that it prevents the Court from determining whether the final decision is supported by substantial evidence. Doc. No. 21 at 7-9.
The Commissioner acknowledges the ALJ's reference to "skilled" light work in the ALJ's RFC finding is a mistake, but maintains it constitutes a typographical error and from the remainder of the ALJ's decision it is clear the ALJ found Claimant is limited to unskilled or semi-skilled work. Doc. No. 22 at 5-6. The Commissioner further maintains that the ALJ's misstatement is harmless error. Id.
The Court finds the Commissioner's argument persuasive for three primary reasons. First, reviewing the ALJ's entire decision, it is clear that the ALJ found that Claimant is limited to unskilled or semi-skilled work because if Claimant could in fact perform skilled light work, then Claimant could perform a full range of light work and there would be no additional limitations. Furthermore, under the Social Security Act, jobs are classified only as unskilled, semi-skilled, or skilled. 20 C.F.R. §§ 404.1568, 416.968. All parties agree that the ALJ's statement that Claimant could perform skilled work is not accurate. Therefore, semi-skilled work is the only other work classification available.
Second, the VE testified that Claimant's past-relevant work is semi-skilled. R. 27. In his decision, the ALJ specifically referred to the VE's testimony, noted that Claimant's past-relevant work is semi-skilled, and found that based on his RFC, Claimant is capable of performing that work. R. 21 ("This work does not require the performance of work-related activities precluded by the [C]laimant's [RFC]."). Immediately thereafter, at step-five, based on the medical-vocational grids, the ALJ made an alternative finding that Claimant is capable of performing other light work. R. 21-22. More specifically, the ALJ found that Claimant can perform unskilled light work. R. 22.
Third, the Court finds that the ALJ's drafting error is harmless error. The Eleventh Circuit has stated that "when an incorrect application of the regulations results in harmless error because the correct application would not contradict the ALJ's ultimate findings, the ALJ's decision will stand." Mills v. Astrue, 226 Fed.Appx. 926, 931-32 (11th Cir. 2007) (unpublished) (citing Diorio v. Heckler, 721 F.3d 726, 728 (11th Cir. 1983) (finding that ALJ's mischaracterization of past work was harmless error, because there was no severe impairment found)). In this case, from the ALJ's opinion it is clear that the ALJ simply made a drafting or typographical error in determining Claimant's RFC. This error does not contradict the ALJ's ultimate findings and a remand to correct the error would be an empty exercise. See Fisher v. Bowen, 869 F.2d 1055, 2068 (7th Cir. 1989) ("No principal of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is some reasons to believe that the remand might led to a different result.").
Claimant argues that the ALJ erred at step-five by relying exclusively on the medical-vocational grids because, based on the ALJ's RFC, Claimant is not capable of performing a full range of light work. Doc. No. 21 at 9-10. Because the ALJ found that Claimant is capable of performing his past-relevant work at step-four, there is no reason for the Court to analyze whether the ALJ erred in his alternative finding at step-five. See Lucas v. Sullivan, 918 F.2d 1567, 1573, n. 2 (11th Cir. 1990) ("[B]ecause the ALJ concluded that [the claimant] is capable of performing her past relevant work [at step-four], testimony from a vocational expert was not necessary.").
Claimant argues that the ALJ did not consider Claimant's back impairment in determining Claimant's RFC. Doc. No. 21 at 10-12 ("[T]he ALJ does not indicate how this condition affects the [C]laimant's residual functional capacity."). As set forth above, in determining Claimant's RFC, the ALJ thoroughly reviews Claimant's allegations and the medical evidence regarding Claimant's back condition. R. 17. The ALJ ultimately finds Claimant's allegations regarding the intensity, persistence, and limiting effects of his overall symptoms not credible to the extent they conflict with the ALJ's RFC. R. 15. The ALJ also specifically rejects the intensity of Claimant's symptoms regarding his back impairment based on Claimant's failure to follow through with the treatment recommendations to alleviate his pain. R. 17. Thus, the Claimant's argument that the ALJ failed to consider Claimant's back impairment when determining RFC is without merit.
Claimant maintains that the ALJ erred, at step-four, by failing to ask the VE whether there was any conflict in testimony regarding the requirements of Claimant's past-relevant work and the DOT. Doc. No. 21 at 13-14. Although Social Security Rulings 00-4p requires an ALJ to "elicit a reasonable explanation" for any "apparent unresolved conflict" between the testimony of the VE and the DOT, this agency ruling is not binding on the court. See Miller v. Commissioner of Social Security, 246 Fed.Appx. 660, 662 (11th Cir. 2007). Further, the ALJ is not required to resolve a conflict that is not identified at the hearing and, is not otherwise apparent. See Kelley v. Astrue, 2009 WL 2731341 at *7 (M.D. Fla. Aug. 26, 2009); Brijbag v. Astrue, 2008 WL 276038 (M.D. Fla. Jan. 31, 2008).
In this case, not only did the Claimant fail to raise any issue of conflict at the hearing or suggest here that a conflict actually exists, a review of the hearing transcript clearly reveals that the VE testified as to Claimant's past-relevant work as classified by the DOT. R. 27. Thus, no actual conflict between the DOT and the VE's testimony is apparent. Accordingly, the Court finds the Claimant's argument that it was reversible error for the ALJ not to inquire about any conflict between the VE's testimony and the DOT to be without merit.
The Claimant asserts the ALJ erred by "failing to consider the side-effects of the [C]laimant's medications." Doc. No. 21 at 14. Moreover, after noting that Claimant complained at the hearing of suffering side-effects of drowsiness and fatigue, Claimant argues that "the ALJ does not even note these side effects in the decision." Doc. No. 14-15. Claimant's argument is factually inaccurate.
As set forth above, the ALJ specifically states in his decision that the Claimant testified that he does not want to be on painkillers; his medications cause fatigue, blurred vision, and confusion, and sometimes the only way for him to function is by not taking the medications. R. 15. The ALJ also notes that Claimant was taking Prozac, Wellbutrin, and Seroquel, but that the medical record reveals that Claimant was non-compliant with his medications. R. 16. Ultimately, the ALJ found Claimant's testimony not credible to the extent that it is inconsistent with the ALJ's RFC.
Based on the forgoing, it is
