Hurtado v. Commissioner of Social Security
425 F. App'x 793
11th Cir.
2011
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Jeanette HURTADO, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 10-12680

United States Court of Appeals, Eleventh Circuit.

April 25, 2011.

Non-Argument Calendar.

Second, we cannot agree that the IJ‘s findings were tainted by confusion. To be sure, Dvorak may be correct that in one instance the translator improperly substituted the term “arrest” in place of “attack,” which Dvorak claims impeded his ability to testify regarding his fear of State authorities. However, the record reveals that the IJ soon after asked Dvorak to discuss each incident in some detail, which clarified any confusion the translation error may have caused. Similarly, during that same exchange the translator initially mistranslated the term “testimony” in describing the motivation for the attacks against Dvorak‘s wife. Here too, however, the IJ took pains to ensure that Dvorak, the translator, and the immigration court all understood exactly what Dvorak meant. We conclude that, in so doing, the IJ adequately rectified any confusion that arose during this exchange.

Finally, Dvorak was not unfairly limited in his presentation of evidence. To begin, the record belies Dvorak‘s contention that he was forced to answer only “yes” or “no” to certain questions. Rather, the IJ required Dvorak to respond to a series of question by answering only “yes” or “no,” and then permitted him to elaborate on his answers through longer explanations. Nor was this questioning itself improper. To the contrary, the IJ properly acted within the scope of his statutorily prescribed discretion to question individuals appearing before him. See 8 U.S.C. § 1229a(b). Lastly, mistranslations during Dvorak‘s asylum interview did not limit his ability to present evidence in the later proceedings before the IJ. Indeed, there is no indication that the IJ prevented Dvorak from submitting any evidence whatsoever. To the contrary, it was on account of conflicts between Dvorak‘s testimony—i.e., evidence that he was permitted to submit—and statements in his earlier asylum interview that led the IJ to conclude Dvorak was “not worthy of credence.” Thus, Dvorak has failed to substantiate his claim that he was deprived of an opportunity to present necessary evidence.3

For these reasons, Dvorak has failed to demonstrate that the IJ‘s or BIA‘s actions deprived him of due process or caused him substantial prejudice. As a result, we must deny his petition. .

PETITION DENIED.

Adam Neidenberg, Lavan and Neidenberg, Ft Lauderdale, FL, for Plaintiff-Appellant.

Bert W. Coleman, SSA Office of General Counsel, Kansas City, MO, Wifredo A. Ferrer, U.S. Attorney, Anne R. Schultz, U.S. Attorney‘s Office, Miami, FL, Steven R. Petri, Assistant U.S. Attorney, U.S. Attorney‘s Office, Fort Lauderdale, FL, for Defendant-Appellee.

Before EDMONDSON, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

Jeanette Hurtado appeals the district court‘s order affirming the Social Security Commissioner‘s denial of Hurtado‘s application for disability insurance benefits. No reversible error has been shown; we affirm.

Our review of the Commissioner‘s decision is limited to whether substantial evidence supports the decision and whether the correct legal standards were applied. . “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” . Under this limited standard of review, we may not make fact-findings, re-weigh the evidence, or substitute our judgment for that of the Administrative Law Judge (“ALJ“). .

A person who applies for Social Security disability benefits must prove that she is disabled. See 20 C.F.R. § 404.1512.1 The Social Security Regulations outline a five-step sequential evaluation process for determining whether a claimant is disabled.

20 C.F.R. § 404.1520(a)(4). The ALJ must evaluate (1) whether the claimant engaged in substantial gainful work; (2) whether the claimant has a severe impairment; (3) whether the severe impairment meets or equals an impairment in the Listings of Impairments; (4) whether the claimant has the residual functional capacity (“RFC“) to perform her past relevant work; and (5) whether, in the light of the claimant‘s RFC, age, education, and work experience, there are other jobs the claimant can perform. Id.

Here, the ALJ concluded that Hurtado had severe impairments of bipolar disorder, major depressive disorder, obsessive compulsive disorder, and osteoarthritis of the hips and lumbar spine. At step four, the ALJ concluded that Hurtado lacked the RFC to do her past relevant work as an elementary school teacher. Relying on the testimony of a vocational expert (“VE“), the ALJ concluded that other work was available in significant numbers in the national and local economies that Hurtado could perform and determined that Hurtado was not disabled. The VE opined that Hurtado could perform jobs such as fast food worker and mail clerk. These jobs involved reasoning levels of 2 and 3 respectively under the Dictionary of Occupational Titles (“DOT“).

On appeal, Hurtado argues that a conflict existed between the VE‘s testimony and the DOT because the reasoning levels of the jobs identified by the VE were inconsistent with her RFC, which limited her to “simple, routine tasks with limited contact with the public.” Because of this unresolved conflict, Hurtado contends, the VE testimony did not constitute substantial evidence on which the ALJ could base the determination that she was not disabled.2

At the fifth step of the sequential process, an ALJ may rely solely on the testimony of a VE in determining whether work is available in significant numbers in the national economy that a claimant is able to perform. . For the testimony to constitute substantial evidence, “the ALJ must pose a hypothetical question which comprises all of the claimant‘s impairments.” .

We discern no apparent conflict between the VE‘s testimony and the DOT provisions at issue. Hurtado argues that the reasoning levels for a fast food worker and a mail clerk are inconsistent with the ALJ‘s hypothetical limiting her to only simple routine work. But, while Hurtado allegedly suffers from memory and concentration problems, she has the ability to reason. Hurtado worked for 17 years as a teacher, she had a master‘s degree, and, a recent evaluation concluded that Hurtado had “intact and fairly well organized thought processes,” as well as “average to high average cognitive ability.” The doctor who completed Hurtado‘s mental residual functional capacity assessment concluded that she retained “adequate mental ability to carry out simple instr[uctions] and to relate adequately to others in a routine work setting.”

Given the ALJ‘s hypothetical that Hurtado could perform only simple routine work, the VE believed that Hurtado could perform the fast food worker or mail clerk jobs. At her hearing, Hurtado did not object to the VE‘s testimony or qualifications, offer any evidence controverting the VE‘s testimony, or even question the VE. And the VE is an expert on the kinds of limitations is undisputed.

jobs a person can perform, while the DOT simply provides generalized overviews of jobs and not the specific requirements of a job. See SSR 00-4p; ; see also (explaining that “[t]he DOT itself states that it is not comprehensive” and “the [Social Security Administration] itself does not consider the DOT dispositive“). So, the VE identified no jobs that went beyond Hurtado‘s RFC, even under the definitions in the DOT; and the ALJ did not err in relying on the VE‘s testimony.3

Even assuming that an inconsistency existed between the VE‘s testimony and the DOT, the ALJ did not err by relying on the VE‘s testimony because it “trump[ed]” any inconsistent provisions of the DOT. (explaining that, if there is a conflict between the DOT and the jobs identified by a VE in response to the hypothetical question, the testimony of the VE “trumps” the DOT because “the DOT is not the sole source of admissible information concerning jobs“). (quotation omitted).

The ALJ committed no error in relying upon the VE‘s testimony; and this testimony constituted substantial evidence supporting the ALJ‘s conclusion that Hurtado could perform a significant number of existing jobs in the national economy.

AFFIRMED.

Notes

1
Disability is the “inability to engage in 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.” 42 U.S.C. § 423(d)(1)(A).
2
That the ALJ‘s hypothetical question to the VE comprised all of her impairments and limitations is undisputed.
3
To the extent mistranslations during Dvorak‘s asylum interview affected his proceedings at all, the proper challenge would have been to the IJ‘s adverse credibility determination. However, because Dvorak does not challenge that determination, we may not address this issue in this appeal. See . Hurtado argues that the VE did not consider the “limited public contact” restriction in her RFC. But the VE specifically considered this limitation before concluding that she could work as a fast food worker or mail clerk.
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