Lee Lowery v. Acting Commissioner of the Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13913
Non-Argument Calendar
____________________
LEE LOWERY,
Plaintiff-Appellant,
versus
ACTING COMMISIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-02420-JEM
____________________
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22-13913 Opinion of the Court 2
Before WILSON, J ORDAN, and L UCK , Circuit Judges.
PER C URIAM :
Lee Lowery appeals the district court’s order affirming the
Social Security Administration’s denial of his claim for disability
insurance benefits (“DIB”) pursuant to 42 U.S.C. § 1383(c)(3). First,
Mr. Lowery argues that the administrative law judge (“ALJ”)
improperly omitted his emotional support dog from her residual
functional capacity (“RFC”) finding. Second, he contends that the
ALJ failed to adequately account for a limitation in his treating
psychologist’s opinion in the RFC because she omitted the
psychologist’s opinion that he struggles with multi-step directions.
Third, he asserts that the ALJ erred in finding that he could perform
light-exertion work despite his limitations.
For the reasons which follow, we agree with Mr. Lowery on
the first two points, and reverse and remand for further
proceedings before the ALJ.
I
Mr. Lowery filed an application for DIB in January of 2017,
alleging a disability onset of October of 2013, later amended to
December of 2016. In his initial disability report, he claimed to be
suffering from PTSD, as well as knee and ear conditions, which
limited his ability to work since October of 2012. When disability
examiners denied his application initially and on reconsideration,
Mr. Lowery requested a hearing before an ALJ.
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22-13913 Opinion of the Court 3
The ALJ held a hearing in February of 2019. At the hearing,
the ALJ acknowledged that Mr. Lowery was accompanied by his
emotional support dog, Beano. Before the ALJ, Mr. Lowery
argued that the bilateral degenerative joint disease in his knees and
his PTSD, stemming from his service in the Gulf War, affected his
ability to concentrate, get along with others, and hold a full-time
job.
The ALJ presented two hypothetical scenarios to the
vocational expert (“VE”) to assess what jobs Mr. Lowery could
perform. The VE testified that an individual with Mr. Lowery’s
physical, psychological, and interpersonal limitations could work
as an office cleaner, photocopy operator, and garment sorter, for
which there were 177,000, 45,400 and 28,700 jobs, respectively, in
the national economy. Next, the ALJ presented the same scenario
with the additional limitation of requiring a cane to ambulate. The
VE stated that this individual could work as a photocopy operator
and as a garment sorter, but not as an office cleaner.
The ALJ then asked how the need for an emotional support
dog in close proximity to the individual would affect his ability to
hold a job. The VE said that if an employee needed an emotional
support dog nearby throughout the workday, the employer might
have to provide an accommodation if it met the requisite ADA
standards and if the dog were required for psychiatric reasons. But
the ALJ did not pose a hypothetical scenario to the VE which
includes the use of an emotional support dog.
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22-13913 Opinion of the Court 4
In May of 2019, the ALJ issued a decision denying Mr.
Lowery’s application, concluding that he was not disabled and thus
did not qualify for DIB. Although the ALJ found that Mr. Lowery
had three severe impairments (PTSD, major joint dysfunction, and
obesity), she concluded that he retained the RFC to perform light
work as set out in 20 C.F.R. § 404.1567(b).
To reach these conclusions, the ALJ relied on and
summarized Mr. Lowery’s medical treatment records from 2016 to
2018. The ALJ highlighted the opinion of Dr. John Whitley, PhD,
a psychologist who evaluated Mr. Lowery in December of 2017,
and opined that he had moderate difficulties interacting with others
and would do better with “solitary, simple work with simple
changes.” The ALJ acknowledged Dr. Whitley’s observation that
Mr. Lowery would struggle with multi-step and complex
directions.
The ALJ determined that although Mr. Lowery could not
perform his past relevant work as a tubing inspector, there were a
significant number of jobs in the national economy that he could
perform. In particular, the ALJ concluded that, based on his RFC
and the VE’s answers to the hypothetical questions, Mr. Lowery
could work as an office cleaner, a photocopy operator, or a
garment sorter. Because Mr. Lowery qualified for those
occupations, which collectively accounted for 251,100 jobs in the
national economy, he was not disabled for DIB purposes.
The Appeals Council declined to review the ALJ’s decision.
Mr. Lowery subsequently sought judicial review of the agency’s
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22-13913 Opinion of the Court 5
decision in federal court. The district court affirmed, concluding
that the ALJ’s findings were supported by substantial evidence. Mr.
Lowery timely appealed.
II
We review de novo the ALJ’s application of legal principles,
and we review the ALJ’s resulting decision “to determine whether
it is supported by substantial evidence.” Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Crawford v. Comm’r of
Soc. Sec. 363 F.3d 1155, 1158 (11th Cir. 2004). We will affirm the
ALJ’s decision if it is supported by substantial evidence, even if the
preponderance of evidence weighs against it. See id. at 1158-59. But
we will not “affirm simply because some rationale might have
supported the ALJ’s conclusion.” Owens v. Heckler, 748 F.2d 1511,
1516 (11th Cir. 1984).
III
Before addressing in detail Mr. Lowery’s assignment of
error, we set out some background information about the
administrative process used to evaluate a DIB claim.
Eligibility for DIB requires that a claimant be disabled. See
42 U.S.C. § 423(a)(1)(E). A claimant is disabled if he cannot engage
in substantial gainful activity due to a medically determinable
impairment expected to last for a continuous period of at least 12
months. See § 423(d)(1)(A).
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The SSA sets out a five-step, sequential evaluation process
for determining whether a claimant is disabled for DIB purposes.
See 20 C.F.R. § 404.1520(a)(2), (4). An ALJ must evaluate whether
(1) the claimant is presently engaged in substantial gainful activity,
(2) the claimant has a medically severe impairment, (3) the
impairment is equivalent to one of those listed in the appendix of
the relevant disability regulation, (4) the impairment prevents the
claimant from performing his or her past work, and (5) the claimant
possesses the RFC to perform other work in the national economy,
considering their age, education, and work experience. See §
404.1520(a)(4)(i)–(v).
Importantly, the claimant bears the burden of proof for the
first four steps. At step five, the burden temporarily shifts to the
Commissioner to prove that the claimant will be able to perform
other jobs in the national economy despite the claimant’s
limitations. See Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th 1315
(11th Cir. 2021).
A
Mr. Lowery first contends that the ALJ erred at step five by
(1) omitting his need for his emotional support dog, Beano, in his
RFC, and (2) failing to include his need for Beano in the
hypothetical questions presented to the VE.
In order to help analyze the step-five requirement—whether
there are enough jobs in the national economy that the claimant
can perform—the SSA has created Medical–Vocational Guidelines
(“the grids”). See 20 C.F.R. § 404.1567. Five degrees of RFC are
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outlined in the grids by general exertional level: sedentary, light,
medium, heavy, and very heavy exertion. See 20 C.F.R. §
404.1569(a). These RFC levels reflect the maximum degree to
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). If the ALJ finds that a claimant’s exertional
capacity, education, age, and skills fit precisely within a particular
grid level, the ALJ may conclude that the claimant is not disabled.
See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Exclusive reliance on the grids is not appropriate when a
claimant “is unable to perform a full range of work at a given
functional level or when a claimant has non-exertional
impairments that significantly limit basic work sills.” Walker v.
Bowen, 826 F.2d 996, 1002–03 (11th Cir. 1987). “When the grids are
not controlling, the preferred method of demonstrating job
availability is through expert vocational testimony.” Id. at 1003.
We have held that where a hypothetical question posed to a
VE does not comprehensively account for impairments found by
the ALJ, the VE’s answer does not qualify as substantial evidence
to support the ALJ’s decision. See Pendley v. Heckler, 767 F.2d 1561,
1563 (11th Cir. 1985). Here, the ALJ found Mr. Lowery capable of
light work, but this finding was qualified by many additional
physical restrictions, including limits on climbing ramps and stairs;
on understanding and carrying out simple instructions; on
maintaining concentration, persistence, and pace for more than
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22-13913 Opinion of the Court 8
two-hour periods; on interacting with the public; and on
performing team-based work.
After acknowledging that this restrictive RFC precluded Mr.
Lowery’s return to his past work as a tubing inspector, the ALJ
determined that based on his RFC and the VE’s answers to the two
hypothetical questions, Mr. Lowery could work as an office
cleaner, photocopy operator, or garment sorter.
In reaching this conclusion, the ALJ failed to account for an
additional mental restriction that she found qualified Mr. Lowery’s
RFC: his need for Beano, the emotional support dog that he
received as part of a clinical study for veterans suffering from
PTSD. One of the reasons provided by the ALJ for the RFC
assigned to Mr. Lowery was that Beano was performing his
intended function: Mr. Lowery “was getting beneficial support
from his emotional support dog” and it helped mitigate his PTSD
symptoms.
As a result, the ALJ’s hypotheticals posed to the VE were not
complete. By failing to include Mr. Lowery’s need for Beano by
his side during the workday, the factual assumptions underlying
the hypothetical scenario posed to the VE did not fully account for
Mr. Lowery’s limitations. Accordingly, we conclude that the ALJ’s
decision is not supported by substantial evidence.
The district court concluded that the ALJ’s decision was
supported by substantial evidence because it viewed Mr. Lowery’s
dog as not being medically necessary. This rationale, however, was
not carried into the ALJ’s findings. The ALJ never excluded Beano
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22-13913 Opinion of the Court 9
from her RFC finding because it was not medically necessary, or
for any other reason. Instead, the ALJ failed to acknowledge the
VE’s testimony that the dog “would be considered an
accommodation,” which only “some employers might consider”
accommodating. The district court’s rationale was thus a post hoc
rationalization of the ALJ’s decision, which we cannot affirm. See
generally S.E.C. v Chenery Corp., 332 U.S. 194, 196 (1947).
In any event, the reconstructed version of the ALJ’s decision
ultimately flounders. In evaluating a record for DIB purposes, an
ALJ may consider, in addition to objective medical evidence, any
“treatment other than medication” and “any measures that the
claimant used to relieve his pain or symptoms.” 20 C.F.R. §
404.1529(c)(3). This is exactly what the ALJ did: she factored Beano
into Mr. Lowery’s RFC as a measure for him to alleviate his PTSD.
By failing to account for Mr. Lowery’s need for his dog during the
workday in the RFC and hypotheticals, the ALJ issued a decision
which lacked substantial evidence. The Commissioner thus failed
to meet its burden of showing that Mr. Lowery could perform
other gainful employment in the national economy.
Next we consider whether the ALJ’s error can be deemed
harmless. As a general proposition, reviewing courts apply the
harmless error doctrine in reviewing a decision of the
Commissioner denying a DIB claim. See Diorio v. Heckler, 721 F.2d
726, 728 (11th Cir. 1983). But reviewing courts will not affirm on
harmless error grounds “[w]here an insufficient record precludes a
determination that substantial evidence support[s] the ALJ’s denial
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of benefits.” Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656,
658 (4th Cir. 2017).
Assuming that the harmless error doctrine applies in these
circumstances, we conclude that a remand is required. First, the
Commissioner waived any harmless error argument by failing to
present it in her submission to this Court. See United States v. Hall,
858 F.3d 254, 280 n.8 (4th Cir. 2017) (explaining that the
government may waive a harmless error argument). Second,
notwithstanding the Commissioner’s waiver, we are unable to
conclude that the ALJ’s errors are harmless in this case. The
administrative record does not clearly demonstrate that, needing a
dog by his side, Mr. Lowery can actually perform the three
occupations identified by the VE and relied on by the ALJ at step
five. And we cannot assume that the VE would have answered in
a similar manner had the ALJ instructed her to consider the added
limitation of needing an emotional support dog nearby at work.
Accordingly, a remand is appropriate for the ALJ to properly make
this factual determination.
B
With respect to his second argument, Mr. Lowery claims
that the ALJ erred by assigning great weight to Dr. Whitley’s
opinion—stating that Mr. Lowery struggled with complex and
multi-step directions—and not including the latter limitation in his
RFC.
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For claims filed before March 27, 2017—like Mr. Lowery’s—
the ALJ must give a treating physician’s opinion “substantial or
considerable weight unless there is good cause to discount [it].”
Simon v. Comm’r of Soc. Sec., 7 F.4th 1094, 1104 (11th Cir. 2021)
(quotation marks omitted). A “treating source” is a physician or
other medical source who has provided the claimant with medical
treatment and has, or previously had, an ongoing treatment
relationship with the claimant. See 20 C.F.R. § 404.1527(a)(2).1
The weight to be given to a physician’s opinion depends on
several factors, including (1) the length of treatment and frequency
of evaluation; (2) the nature and extent of the treatment
relationship; (3) the medical evidence supporting the opinions;
(4) its consistency with the record as a whole; (5) whether there is
specialization in the medical area at issue: and (6) any other factors
tending to support or contradict the opinion. See § 404.1527(c); see
also Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1260 (11th Cir.
2019).
When a VE provides evidence about a job’s requirements,
the ALJ has an affirmative duty to inquire about any “apparent
conflicts” between that evidence and information provided in the
Dictionary of Occupational Titles (“DOT”). See Buckwalter, F.4th
at 1321. A conflict is apparent if it is “apparent to an ALJ who has
1 For claims filed on or after March 27, 2017, the SSA does not give “any specific
evidentiary weight” to any medical opinion. See 20 C.F.R. § 404.1520c. For
claims filed before March 27, 2017, however, the rule regarding treating
physicians’ opinions still applies. See § 404.1527.
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ready access to and a close familiarity with the DOT.” Washington
v. Comm’r of Soc. Sec., 906 F.3d 1353, 1366 (11th Cir. 2018). If the
“conflict is reasonably ascertainable or evident,” the ALJ must
identify it. See id. Apparent means “seeming real or true, but not
necessarily so.” Id. (quotation marks omitted). Where the VE’s
evidence is inconsistent with the information in the DOT, the ALJ
must resolve the conflict before relying on the VE’s evidence to
support a determination that a claimant is or is not disabled. See
Buckwalter, 5 F.4th at 1321. According to SSR 00-4P, neither the
VE’s testimony nor the DOT automatically trumps when the two
conflict. See id. Although SSR 00-4P is not binding on us, the SSA
is nevertheless bound to follow it. See id.
In Buckwalter, we explained that the difference between jobs
with level one and level two reasoning is the length of the
instructions, not their complexity. See id. at 1323. Although level
one is limited to instructions with only one or two steps, the
instructions in level two are not limited in length. See id. Simple
instructions under level one and uninvolved instructions under
level two are not in conflict because “simple” and “uninvolved” are
similarly defined. Id.
As noted, if there is an apparent conflict between the RFC
and requirements for the jobs identified by the ALJ, the ALJ must
address the conflict. See Viverette v. Comm’r of Soc. Sec., 13 F.4th
1309, 1317 (11th Cir. 2021). If she fails to address the conflict, then
the remaining question is whether the failure is harmless. See id.
In Viverette, we ruled that the ALJ’s failure to address the conflict
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between the RFC and one of the identified jobs was not harmless.
See id. at 1318. We noted that the ALJ identified three possible
occupations that the claimant could perform and cumulatively
determined that those occupations existed in significant numbers
in the national economy. See id. Because around eighty percent of
the named jobs conflicted with the RFC, we could not conclude
that the error was harmless. See id. at 1318.
As an initial matter, the ALJ properly assigned great weight
to Dr. Whitley’s opinion. Because Mr. Lowery filed his DIB claim
in January of 2017, Dr. Whitley’s opinion was still subject to the
treating physician rule. See Simon, 7 F.4th at 1104. But the ALJ is
not required to refer to every piece of evidence provided by a
claimant in a decision, so long as the decision does not broadly
reject the claimant’s position or disregard the claimant’s whole
medical condition. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005).
Turning to Mr. Lowery’s claim, the ALJ failed to address an
apparent conflict between Lowery’s RFC and the requirements of
the garment sorter and photocopy operator jobs. Dr. Whitley
opined that Mr. Lowery would struggle with multi-step directions.
Yet, an individual working as a photocopy operator or garment
sorter must be able to carry out detailed but uninvolved
instructions and level two reasoning. See DOT §§ 207.685-014,
222.687-014. As we held in Buckwalter, 5 F.4th at 1321, jobs
requiring level two reasoning do not possess a limit in the length
of instructions. This conflicts with Dr. Whitley’s opinion—to
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22-13913 Opinion of the Court 14
which the ALJ assigned great weight—that Mr. Lowery would
struggle with multi-step directions. As a result, the ALJ based her
finding of fact on the VE’s testimony about a total number of
251,100 jobs, without considering an apparent conflict that affected
74,100 of those jobs.
Although the number of jobs generally available to Mr.
Lowery is greater than that available to the claimant in Viverette,
we remain hesitant to make any factual determinations ourselves.
“[W]here additional (or more specific) agency fact-finding is
needed, remand is the appropriate disposition.” Viverette, 13 F.4th
at 1318. Because the ALJ did not find that the remaining office
cleaner jobs alone exist in significant numbers and, again, because
the Commissioner has waived any harmless error argument, we
decline to determine this question ourselves.
C
We turn to Mr. Lowery’s third and final argument, which is
that the ALJ’s RFC finding does not reasonably account for
Lowery’s cane, knee brace, shoe lift, or obesity. Five degrees of
RFC are outlined in the grids by general exertional level: sedentary,
light, medium, heavy, and very heavy exertion. See 20 C.F.R. §
404.1569(a).
“The ALJ has a basic obligation to develop a full and fair
record.” Welch v. Brown, 854 F.2d 436, 440 (11th Cir. 1988). This
obligation ensures that the ALJ fulfills her duty and allows us to
determine whether the ALJ’s findings are supported by substantial
evidence. See id.
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22-13913 Opinion of the Court 15
Here, there is substantial evidence in the record to support
the ALJ’s finding that Mr. Lowery could perform light work
because his medical records stated that his knee pain was managed
through medication and physical therapy, his pain diminished after
he warmed up, his knee brace and shoe lift helped him walk better,
and he primarily used his cane in the mornings. Accordingly, the
ALJ adequately considered Mr. Lowery’s knee condition and his
various ambulatory devices and determined that he could perform
light work.
IV
The judgment of the district court is reversed and the matter
is remanded with instructions to remand to the Commissioner for
further proceedings before the ALJ.
AFFIRMED IN PART; REVERSED AND REMANDED IN
PART.
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