[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 13052 Non

- Argument Calendar

________________________ D.C. Docket No. 8:18

- cv - 01513

- MAP

STEVE VALDEZ, Plaintiff

- Appellant,

versus COMMISSIONER OF SOCIAL SECURITY, Defendant

- Appellee.

___________ _____________ Appeal from the United States District Court for the Middle District of Florida

________________________ (April 23, 2020) Before MARTIN , ROSENBAUM , and LUCK , Circuit Judges.
PER CURIAM: Steve Valdez appeals the district court ’s order affirming the S ocial S ecurity
A dministration’s denial of his application s for a period of disability, disability

Case: 19-13052 Date Filed: 04/23/2020 Page: 1 of 102 insurance benefits, and supplemental security income. Valdez contends that the district court erred when it concluded that substantial evidence supported the administrative law judge’s 1 finding that he was not disabled. We disagree and affirm.
F ACTUAL BACKGROUND AND PROCEDURAL HISTORY At the time he applied for disability benefits, Valdez was forty

- four years old, had a ninth

- grade education , and suffered fr om sleep apnea, hip problems, depression, anxiety, diabetes, chronic obstructive pulmonary disease, bipolar disorder, poor leg circulation, and heart and kidney problems , among other things

. He previously worked as a master baker. After the S ocial S ecurity A dministration initially denied his claim, Valdez requested a hearing before an ALJ

. At the hearing, the ALJ accepted testimony from a vocational expert who Valdez agreed was qualified. T he ALJ asked the vocational expert to consider a hypothet ical individual who (1) was Valdez’s age, (2) had his education and work experience, (3) had the residual functional capacity to perform work at the sedentary exertional level, and (4) was limited to simple , routine, and repetitive tasks as defined in the D ictionary of O ccupational T itles as specific vocational preparation levels one and two. 2 The vocational expert testified that the hypothetical individual

1 From here on out, we’ll refer to the administrative law judge as the “ALJ.” 2 We’ll call the D ictionary of O ccupational T itles the “DOT

. ” Case: 19-13052 Date Filed: 04/23/2020 Page: 2 of 103 could not perform Valdez’s prior job but that there were three jobs in the national
economy that such a person could perform: lens inserter, which had about 6,000 3 jobs available; lens

- b l ock gauger, which had about 72,000 jobs available; and order clerk, which had about 24,000 jobs available. On cross

- examination, Valdez ’s attorney questioned t he vocational expert about whether the hypothetical individual could perform those jobs if he or she had certain physical limitations not included in the ALJ’s hypothetical. Relying on the vocational expert’s testimony, t he ALJ concluded that Valdez was n ot disabled because he could make an adjustment to other work in light of his residual functional capacity, age, education, and work experience

. 4 Valdez appealed the ALJ’s decision to the S ocial S ecurity
A dministration’s A ppeal C ouncil, but it denied his request for review

. Valdez then sought review in the district court, alleging that the ALJ’s decision was not supported by substantial evidence. The parties filed a joint

3 There is some dispute as to whether the vocational expert said that there were 6,000 or 86,000 lens inserter jobs in the national economy

. We’ll use the number more favorable to Valdez

. 4 The ALJ used the five

- step, sequential evaluation process to dete rmine whether Valdez was disabled. Winschel v. Comm’r of Soc. Sec. , 631 F.3d 1176, 1178 (11th Cir. 2011) ; see also 20 C.F.R. § 404.1520(a)(4) ( requiring that, if an ALJ finds a claimant not disabled at any given step, the ALJ does not proceed to the next step)

. Going step

- by

- step, the ALJ had to determine whether Valdez (1) was unable to engage in substantial gainful activity; (2) had a severe and medica lly

- determinable impairment; (3) had an impairment, or combination thereof, that meets or equals a specific impairment in the Listing of Impairments, and meets the duration requirement; (4) can perform past relevant work, in light of his residual functiona l capacity; and (5) can make an adjustment to other work, in light of his residual functional capacity, age, education, and work experience. See id. § § 404.1520(a)(4) (i)

– (v)

. Here, t he ALJ’s decision to deny Valdez’s application was based on step five , a nd the ALJ’s finding on step five is the only issue in this appeal.

Case: 19-13052 Date Filed: 04/23/2020 Page: 3 of 104 memorandum raising two issues for the district court to decide : whether the ALJ erred in : (1) finding that Valdez “ could perform the job , which according to the selected characteristics of occupations, had a reasoning level of three, when [the ALJ] found that [Valdez] was limited to simple, routine, [and] repetitive ta sks” ; and (2) “relying on the vocational expert’s testimony regarding the number of jobs for the positions of lens inserter and lens

- block gauger

. ” As to the first issue, Valdez argued that the ALJ erred in concluding that he could perform the job of an order clerk because that job required a reasoning level of three under the D epartment of L abor’s general education development scale and “a reasoning level of three is incompatible with [his] limitations to simple, routine tasks.” The commissioner of the S ocial S ecurity A dministration disagreed, arguing that “there is no apparent inconsistency between the limitation of simple work and a reasoning level of [three] ” and that, even if there was an inconsistency, the error was harmless because the ALJ identified two other jobs

— lens inserter and lens

- block
gauger

— that Valdez doesn’t dispute he c ould perform. And as to the second issue, Valdez claimed that the vocational expert’s testimony about the number of jobs available in the national economy for the positions of lens inserter and lens

- block gauger was unreliable because it conflicted with a report from th e D epartment of L abor’s occupational employment statistics. In response, the commissioner argued that Valdez did not object to the vocational

Case: 19-13052 Date Filed: 04/23/2020 Page: 4 of 105 expert’s qualifications or testimony, he did not cross

- examine the vocational expert in any way relating to job n umbers, and the vocational expert’s testimony that a significant number of jobs existed in the national economy constituted substantial evidence.
T he district court affirmed the ALJ’s decision. Relying on one of our unpublished opinions , the district co urt first found that “there [was] no inconsistency with a limitation to simple work and a reasoning level of three” and that, even if the ALJ erred, the error was harmless because the ALJ identified two other jobs available in the national economy. The di strict court then concluded that the vocational expert’s testimony that there were a significant number of lens inserter and lens

- block gauger jobs available in the national economy was substantial evidence that supported the ALJ’s decision. Valdez appeals. STANDARD OF REVIEW In social security appeals, w e review the ALJ’s decision to “determine whether [the] conclusion, as a whole, was supported by substantial evidence in the record.” Washington v. Comm’r of Soc. Sec. , 906 F.3d 1353, 1358 (11th Ci r. 2018). “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). In conducting this
li mited review, we may not decide the facts anew, make credibility determinations,

Case: 19-13052 Date Filed: 04/23/2020 Page: 5 of 106 or re - weigh the evidence. Moore v. Barnhart , 405 F.3d 1208, 1211 (11th Cir. 2005). Rather, so long as the ALJ’s decision is supported by substantial evidence, we will affirm even if the evidence weighs against the ALJ’s factual findings. Crawford , 363 F.3d at 1158

– 59. “ W e are also required to review de novo whether the [ALJ’s ] decision was based on a proper view of the law.” Washington , 906 F.3d at 1358. Finally, we apply harmless

- error review to social security cases. See Dorio v. Heckler , 721 F.2d 726, 728 (11th Cir. 1983) (“ We find that the ALJ made erroneous
statements o f fact, but we conclude that this was harmless error

. . . . ”) ; see also Molina v. Astrue , 674 F.3d 1104, 1115 (9th Cir. 2012) (“We have long recognized that harmless error principles apply in the Social Security Act context.”)

. DISCUSSION On appeal, Vald ez raises the same two arguments he made before the district
court

. Valdez claims that the ALJ erred in : (1) finding that he could perform the job of an order clerk in light of his limitation to simple, routine , and repetitive tasks ; and (2) relying on the vocational expert’s testimony to conclude that there were sufficient jobs available in the national economy for the positions of lens inserter and lens

block gauger

. We examine each in turn. First, Valdez contends that the ALJ erre d when it found that he could work as an order clerk despite being limited to simple, routine, and repetitive tasks. The DOT assigns a general education development reasoning level to each position.

Case: 19-13052 Date Filed: 04/23/2020 Page: 6 of 107 According to the DOT, a n order clerk requires a reasoni ng level of three

. S ee DOT, 209.567

- 014 (4th ed., rev. 1991) . An individual performing a job with a reasoning level of three must be able to “[a]pply common sense understanding to carry out instructions furnished in written, oral, or diagrammatic form” and “[d]eal with problems involving several concrete variables in or from standardized situations

. ”
I d. App’x C. T his reasoning level , according to Va ldez, conflicts with his residual functional capacity, which the ALJ determined limit ed him to simple , routine, and repetitive tasks. At step five of the sequential evaluation, the c ommissioner bears the burden of proving that the claimant can perform ot her work available in the national
economy after considering the claimant’s residual functional capacity , age, education, and past work experience. Doughty v. Apfel , 245 F.3d 1274, 1278 n.2 (11th Cir. 2001). To find that a claimant is not disabled under this step, “[t]he ALJ must articulate specific jobs that the claimant is able to perform, and this finding must be supported by substantial evidence, not mere intuition or conjecture.” Wilson v. Barnhart , 284 F.3d 1219, 1227 (11th Cir. 2002). An ALJ may rely on the testimony of a vocational expert as substantial evidence. Biestek v. Berryhill , 139 S. Ct. 1148, 1155 (2019). Nevertheless, a n ALJ has an affirmative duty to identify and resolve apparent conflicts between a vocational expert’s testimony and information in the DOT. Washington , 906 F.3d at 1356

.

Case: 19-13052 Date Filed: 04/23/2020 Page: 7 of 108 We haven’t decided the issue Valdez raises here

— whether a limitation to simple, routine, and repetitive work is inconsistent with a job that requires a reasoning level of three. But it i s unnecessary to decide it because , even if Valdez was not able to work as an order clerk , t he ALJ still concluded that he could perform two other jobs: lens inserter, which has a reasoning level of one, see DOT, 713.687

- 026, and lens

- block gauger, which h as a reasoning level of two, see id. 716.687

- 030

. Valdez has not argued that these jobs are inconsistent with his residual functional capacity, and they are not . Thus, any error pertaining to the ALJ’s conclusion that he could work as an order clerk is h armless because there are other jobs he is qualified to do even in light of his residual functional capacity, age, education, and work experience

. Second, Valdez claims that the ALJ ’s finding that there were a sufficient number of lens inserter and lens

- block gauger jobs in the national economy is not supported by substantial evidence

. Citing data published in the D epartment of
L abor’s o ccupational e mployment s tatistics

— which he presented for the first time
to the district court

— V aldez argues that the vocational expert’s numbers were “extremely overstated.” 5 Based on this data, Valdez urges us to conclude that the
ALJ’s decision was not supported by substantial evidence.

5 According to Valdez, the occupational employment statistics provide that there are less than 1,870 lens inserter jobs available and less than 12,320 lens

- block gauger jobs available.

Case: 19-13052 Date Filed: 04/23/2020 Page: 8 of 109 Our review of the ALJ’s decision is limited

. We review onl y whether the ALJ’s decision was supported by substantial evidence, and “we will look only to the evidence actually presented to the ALJ.” Falge v. Apfel , 150 F.3d 1320, 1323 (11th Cir. 1998); see also Cherry v. Heckler , 760 F.2d 1186, 1193 (11th Cir. 1985) (noting that a reviewing court is limited to the evidence in the administrative record)

. O ur role on appeal is not to “decide the facts anew.” Moore , 405 F.3d at 1211

. A t the hearing, the only evidence presented to the ALJ concerning the number of lens inserter and lens

- block gauger jobs available was the vocational expert’s testimony that there were approximately 78,000 of them in the national economy. Valdez didn’t present the occupational employment statistics before the ALJ or object to the voc ational expert’s testimony. In fact, he stipulated that the vocational expert was qualified to testify. As a result, we are foreclosed from consider ing the data in the occupational employment statistics on appeal. We are left with the vocational expert’s testimony that Valdez was able to work in 78,000 jobs in the national economy. We’ve held that a similar number of available jobs was substantial evidence to support the ALJ’s finding on step five

. See Allen v. Bo wen , 816 F.2d 600, 602 (11th Cir. 1987) ( uph olding an ALJ’s finding that jobs that the claimant could perform existed in significant number s based on a vocational expert’s testimony that 80,000 jobs existed nationwide ). It is here, too.

Case: 19-13052 Date Filed: 04/23/2020 Page: 9 of 1010 CONCLUSION For these reasons, the district court did not err when it affirmed the S ocial
S ecurity A dministration’s denial of Valdez’s applications for a period of disability, disability insurance benefits, and supplemental security income

. AFFIRMED . Case: 19-13052 Date Filed: 04/23/2020 Page: 10 of 10