Viverette v. Comm'r of Soc. Sec.

Decision Date21 September 2021
Docket NumberNo. 20-11862,20-11862
Citation13 F.4th 1309
Parties Antonio VIVERETTE, Plaintiff - Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Michael A. Steinberg, Michael A. Steinberg & Associates, Tampa, FL, for Plaintiff - Appellant.

Mark Weaver, Assistant Regional Counsel, Richard Vincent Blake, Shannon Kathleen Fishel, Brian C. Huberty, Beverly E. Williams, Social Security Administration, Office of the General Counsel, Atlanta, GA, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Defendant - Appellee.

Before JORDAN, BRASHER, and JULIE CARNES, Circuit Judges.

JORDAN, Circuit Judge:

The Dictionary of Occupational Titles, published by the Department of Labor, contains descriptions of thousands of jobs available in the national economy, and is used by the Commissioner of Social Security to adjudicate benefit applications by claimants. See 20 C.F.R. § 416.966(d)(1). As relevant here, the DOT specifies the general educational requirements, including the level of reasoning skills, required for each job. See Estrada v. Barnhart , 417 F. Supp. 2d 1299, 1302 (M.D. Fla. 2006). Level 3 reasoning, according to the DOT, means the ability to "[a]pply commonsense understanding furnished in written, oral, or diagrammatical form [and to d]eal with problems involving several concrete variables in or from standardized situations." U.S. Dept. of Labor, Dictionary of Occupational Titles, App. C, § III, Components of the Definition Trailer, 1991 WL 688702 (4th ed. 1991).

Antonio Viverette appeals the district court's order affirming the decision of an administrative law judge denying his application for supplemental security income (SSI) benefits, pursuant to 42 U.S.C. § 1383(c). He argues that the ALJ erred in two ways: (1) ruling that he could perform a job with level 3 reasoning after finding that his residual functional capacity limited him to simple, routine, and repetitive tasks; and (2) basing the number of available jobs on unreliable vocational expert testimony.

Whether there is an apparent conflict between a limitation to simple, routine, and repetitive tasks and level 3 reasoning is a question that has divided some of our sister circuits, and is one of first impression for us. We now join the Fourth, Ninth, and Tenth Circuits and hold that there is an apparent conflict between a limitation to simple, routine, and repetitive tasks and the demands of level 3 reasoning. Because the ALJ did not address that apparent conflict—as required by our precedent—and because we cannot say that the error was harmless, we reverse and remand for further proceedings before the ALJ.

I

Mr. Viverette applied for SSI benefits on July 27, 2015, alleging a disability onset date of January 1, 1999, when he was 24 years old. He listed five conditions limiting his ability to work: (1) a below-the-knee left leg amputation; (2) diabetes

; (3) arthritis ; (4) pain in his lower back; and (5) "slow learning." He also indicated that he only completed 7th grade and never worked. The Social Security Administration rejected Mr. Viverette's claim for SSI benefits. After the SSA denied reconsideration, Mr. Viverette requested a hearing before an ALJ.

A

Before the hearing, Mr. Viverette submitted school, prison, and medical records to document his limitations. For example, Dr. Fred L. Alberts, Jr. stated in his report that Mr. Viverette had a 7th-grade education level, and that his "[a]ttention and concentration were consistent with his Extremely Low range of intellectual functioning." Dr. Eniola Owi wrote in her report that Mr. Viverette had a "[h]istory of type 2 Diabetes mellitus

," "S/p BKA Lt leg due to crush injury," and "[r]esidual limp with prosthesis."

At a hearing before the ALJ in October of 2017, Mr. Viverette testified that he was in prison awaiting trial on several charges. He had a driver's license and could drive. He started the 8th grade but dropped out before finishing. In school, he had trouble "[c]omprehending, reading and writing," and "was a slow learner." He had never been employed. When asked the reason, he said that he "never had the education to work" and he "just didn't never know how to fill out an application."

Mr. Viverette explained that his mother, who had passed away right before he went to jail, "did everything for" him. When asked if he thought that he could do his laundry himself, he responded "I ain't never done it." When asked what his average day was like before he went to jail, i.e., "did [he] do anything," he said that "[he] could try." That was "the only thing [he could] tell" the ALJ, and he was unable to give a definite "answer because [he] always had [his] mom and dad take care of [him]." He had a child whom he did not see, as she was taken away from him.

As to his physical condition, Mr. Viverette testified that he wore a prosthesis, which was "messed up" at the time. His stump had been "bad" since he was in jail and was "a little red." He wore his prosthesis when he had to walk and, when he was not wearing it, he sat on his prison bed. He had been to prison multiple times and said "yes" when asked if he had "a low bunk pass or ... [was] exempt from doing work." He "walk[ed] with a limp" and "ha[d] bad back pains."

When asked if he thought that he could do "a job where [he was] sitting all day long, and ... just doing simple, routine work like putting things together, like assembly type of work," Mr. Viverette said "[y]es, sir, if [he] underst[oo]d how to do it because [his] education [was] not really good." If he "had a sit down job," he could wear his prosthesis the entire time and he thought that he "could be on [his] feet an hour a day." In response to a question about whether he could read and write, he said that he could "comprehend it a little bit" and "read and write a little." As to his math capabilities, he indicated that he could do "a little."

B

A claimant is disabled for purposes of SSI benefits when he is unable "to do any substantial gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.905(a). The Social Security regulations set out a five-step, sequential evaluation process for determining whether a claimant is disabled for purposes of SSI benefits. See § 416.920(a)(1), (4). An ALJ must evaluate whether (1) the claimant was engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the severe impairment meets or equals an impairment listed by the SSA; (4) the claimant has the residual functional capacity (RFC) to perform past relevant work; and (5) there are other jobs the claimant could perform given his RFC, age, education, and work experience. See §§ 416.920(a)(4)(i)(v). An "RFC [is] that which an individual is still able to do despite the limitations caused by his or her impairments." Phillips v. Barnhart , 357 F.3d 1232, 1238 (11th Cir. 2004).

At steps one and two, the ALJ found that Mr. Viverette had not engaged in substantial gainful activity since his application date and had a number of severe impairments (obesity

, remote bilateral hip fracture, below-knee amputation of his left leg, diabetes mellitus, borderline intellectual functioning, depressive disorder, and cocaine dependence currently in remission). At step three, however, the ALJ found that Mr. Viverette lacked "an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1."

The ALJ found at step four that Mr. Viverette had the RFC "to perform sedentary work" subject to certain restrictions, including (i) not operating left leg foot controls; (ii) "occasionally climb[ing] ramps and stairs but ... never climb[ing] ladders or scaffolds;" and (iii) "occasionally stoop[ing], kneel[ing], crouch[ing or] crawl[ing]" but never "working at unprotected heights or operating motor vehicle[s]." The ALJ specifically found that he was "limited to simple, routine, and repetitive tasks" and "simple work-related decisions," but could "frequently interact with supervisors, coworkers and the general public."

Finally, at step five, the ALJ found that there were jobs that existed in significant numbers in the national economy that Mr. Viverette can perform. The ALJ noted that the vocational expert (VE) testified that Mr. Viverette "would be able to perform the requirements of representative occupations," such as document preparer, with about 104,000 jobs nationally; final assembler, with about 7,000 jobs nationally; and check weigher, which had about 14,000 jobs nationally. These jobs, and their estimated numbers, were drawn from groups set out in the Standard Occupation Classification (SOC) system.1

According to the DOT, the occupation of document preparer requires level 3 reasoning. The occupations of final assembler and check weigher, on the other hand, require level 1 reasoning.

When the Appeals Council declined to review the ALJ's decision, Mr. Viverette filed suit in federal court. The district court concluded that Mr. Viverette was not disabled and that any alleged error by the ALJ in failing to address a potential conflict between Mr. Viverette's limitations and level 3 reasoning as to the document preparer position was harmless due to the availability of other positions (i.e., final assembler and check weigher).

II

Where 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). On the factual side, we determine whether the ALJ's decision is supported by substantial evidence. On the legal side, we review questions of law de novo. See Moore v. Barnhart , 405 F.3d 1208, 1211 (11th Cir. 2005).

"Substantial evidence is...

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