[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11862

________________________

D.C. Docket No. 8:18-cv-02773-PDB

ANTONIO VIVERETTE, 

 Plaintiff - Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(September 21, 2021)

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 

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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. Barhart, 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 

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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.” 

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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.” 

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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, 

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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.” 

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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). 

1 SOC groups do not have a one-to-one match to DOT occupations. See generally Goode v. 

Comm’r of Soc. Sec., 966 F.3d 1277, 1281 (11th Cir. 2020) (describing the problem). The SOC 

group for check weigher, for example, contains many DOT occupations, some of which may 

require level 3 reasoning. The VE offered no additional testimony distinguishing which DOT 

occupations within each SOC group met Mr. Viverette’s RFC and specific limitations.

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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 less than a preponderance, but rather such relevant 

evidence as a reasonable person would accept as adequate to support a conclusion.” 

Id. Nevertheless, substantial evidence requires “more than a scintilla.” Winschel v. 

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). In reviewing for 

substantial evidence, we “may not decide the facts anew, reweigh the evidence, or 

substitute our judgment for that of the [ALJ].” Id. “Even if the evidence 

preponderates against the [ALJ’s] findings, we must affirm if the decision reached 

is supported by substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 

1155, 1158–59 (11th Cir. 2004).

III

In Washington v. Commissioner of Social Security, 906 F.3d 1353 (11th Cir. 

2018), we considered the effect of Social Security Ruling (SSR) 00-4p, 2000 WL 

1898704 (Dec. 4, 2000), which addresses what ALJs must do to resolve conflicts 

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between the DOT and expert testimony. We held in Washington that “SSR 00-4p 

imposes a duty on ALJs to identify and resolve apparent conflicts between DOT data 

and VE testimony, and this duty is not fulfilled simply by taking the VE at his word 

that his testimony comports with the DOT when the record reveals an apparent 

conflict between the VE’s testimony and the DOT.” 906 F.3d at 1362. See also id. 

at 1365 (“SSR 00-4p is properly understood to impose an affirmative duty on the

ALJs to identify apparent conflicts, ask the VE about them, and explain how the 

conflict was resolved in the ALJ’s final decision.”). A conflict is “apparent,” we 

explained, when it is “reasonably ascertainable or evident,” i.e., when it is 

“seeming[ly] real or true, but not necessarily so.” Id. at 1366 (citation and internal 

quotation marks omitted).

We concluded in Washington that there was an apparent conflict between the 

DOT, which indicated that certain positions required “frequent” fine manipulation,

and a VE’s testimony that a claimant who could only engage in “occasional” fine 

manipulation could perform such jobs. See id. “The difference between the ability 

to occasionally perform a task and frequently perform a task,” we explained, “is 

patent and significant in determining whether work exists in the national economy 

for a claimant.” Id. Because the ALJ had not identified and resolved this apparent 

conflict, and thereby “breached his duty,” we reversed and remanded. See id. at 

1366–67.

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Recently, in Buckwalter v. Acting Commissioner of Social Security, 5 F.4th

1315 (11th Cir. 2021), we held that there is no apparent conflict between a claimant’s 

RFC to understand, carry out, and remember simple instructions and level 2 

reasoning, which requires the ability to “[a]pply commonsense understanding to 

carry out detailed but uninvolved written or oral instructions.” 5 F.4th at 1323–24. 

Although we acknowledged a “potential[] tension,” and described the matter as a 

“close question,” we ruled that the two concepts could be readily reconciled. Id. at 

1323. We followed the decisions of the Fourth and Eighth Circuits and concluded 

that “‘detailed’ indicates length rather than complexity, and ‘uninvolved’ also 

denotes a lack of complexity.” Id. (citing Lawrence v. Saul, 941 F.3d 140, 143–44 

(4th Cir. 2019), and Moore v. Astrue, 623 F.3d 599, 605 (8th Cir. 2010)).

This case is one step beyond Buckwalter. The question we face is whether 

there is an apparent conflict between an RFC limitation to simple, routine, and 

repetitive tasks and level 3 reasoning. 

A

At step four of the analysis, the ALJ found that Mr. Viverette’s 

RFC is limited to simple, routine, and repetitive tasks. At step five, the ALJ—

relying on the testimony of the VE—listed “document preparer” as one of the 

representative jobs that Mr. Viverette could perform in the national economy. 

The DOT defines the duties of a document preparer in the following way:

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Prepares documents, such as brochures, pamphlets, and catalogs, for 

microfilming, using paper cutter, photocopying machine, rubber 

stamps, and other work devices: Cuts documents into individual pages 

of standard microfilming size and format when allowed by margin 

space, using paper cutter or razor knife. Reproduces document pages 

as necessary to improve clarity or to reduce one or more pages into 

single page of standard microfilming size, using photocopying 

machine. Stamps standard symbols on pages or inserts instruction 

cards between pages of material to notify MICROFILM-CAMERA 

OPERATOR (business ser.) 976.682-022 of special handling, such as 

manual repositioning, during microfilming. Prepares cover sheet and 

document folder for material and index card for company files 

indicating information, such as firm name and address, product 

category, and index code, to identify material. Inserts material to be 

filmed in document folder and files folder for processing according to 

index code and filming priority schedule.

DOT, § 249.587-018. As noted, the DOT provides that the position of “document 

preparer” requires level 3 reasoning. See id. 

The DOT defines level 3 reasoning as 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.” 

DOT, App. C, § III, 1991 WL 688702. We explained in Buckwalter that level 3 

reasoning is different than level 1 and level 2 reasoning because it “lifts the 

restrictions on how complex the instructions can be—allowing for any 

‘instructions.’” Buckwalter, 5 F.4th at 1323. 

B

The Seventh and Eighth Circuits have held that there isn’t an apparent conflict 

between a limitation to simple tasks and level 3 reasoning. See, e.g., Terry v. Astrue, 

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580 F.3d 471, 478 (7th Cir. 2009); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 

2007); Hillier v. Soc. Sec. Admin., 486 F.3d 359, 367 (8th Cir. 2007). The Fourth, 

Ninth, and Tenth Circuits, however, have come to the opposite conclusion. See 

Keller v. Berryhill, 754 F. App’x 193, 197 (4th Cir. 2018); Zavalin v. Colvin, 778 

F.3d 842, 847 (9th Cir. 2015); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 

2005).2

For a number of reasons, we conclude that the view of the Fourth, Ninth, and 

Tenth Circuits is more persuasive. That view is also more in line with our 

understanding of the concept of apparent conflict as set out in Washington.

First, it seems to us from a side-by-side comparison that there is an apparent 

conflict under Washington between an RFC to simple, routine, and repetitive tasks 

and level 3 reasoning, which requires the ability to apply commonsense 

understanding furnished in written, oral, or diagrammatical form and to deal with 

problems involving several concrete variables in or from standardized situations. As 

the Tenth Circuit put it: “This limitation seems inconsistent with the demands of 

level 3 reasoning.” Hackett, 395 F.3d at 1176. See also Keller, 754 F. App’x at 

197–98 (“A limitation to short and simple instructions appears more consistent with 

2 Like the circuits, the district courts are also divided on the question. Compare, e.g., Lori P. v. 

Comm’r of Soc. Sec., No. 2:19-cv-00193, 2021 WL 1207456, at *8 (D. Vt. Mar. 31, 2021), and 

Graves v. Saul, No. 7:18-cv-00177-O-BP, 2020 WL 896669, at *4 (N.D. Tex. Feb. 25, 2020), with, 

e.g., Ferguson v. Berryhill, 381 F. Supp. 3d 702, 708 (W.D. Va. 2019), and Estrada, 417 F. Supp.

2d at 1303–04. 

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Reasoning Development Level 1 or Level 2 than with Level 3. Indeed, it seems that 

such a limitation falls somewhere between Levels 1 and 2.”) (citations and footnote 

omitted).

Second, we agree with the Ninth Circuit’s analysis: “[A] limitation to simple, 

routine tasks is at odds with Level 3’s requirements because it may be difficult for a 

person limited to simple, repetitive tasks to follow instructions in diagrammatic form 

as such instructions can be abstract.” Zavalin, 776 F.3d at 847 (citation and internal 

quotation marks omitted). Furthermore, “there is no rigid correlation between 

reasoning levels and the amount of education that a claimant has completed. While

. . . educational background is relevant, the DOT’s reasoning levels clearly 

correspond to the claimant’s ability because they assess whether a person can ‘apply’ 

increasingly difficult principles of rational thought and ‘deal’ with increasingly 

complicated problems.” Id. (citation omitted). For similar reasons, the SSA has told 

its VEs that “[t]here is an apparent conflict between a job that requires . . . level 3 

[reasoning] and a hypothetical individual [who] can perform only ‘simple’ or 

‘repetitive’ tasks.” See SSA, Office of Hearing Operations, Office of the Chief ALJ, 

Vocational Expert Handbook 39 (June 2020). 

Third, the Seventh and Eighth Circuits based their contrary decisions in part 

on evidence in the record that the claimant had performed similar (or identical) level 

3 reasoning jobs in the past or had the cognitive capacity to do so. In Terry, the 

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Seventh Circuit reasoned that the claimant “d[id] not argue that she cannot perform 

[level 3 reasoning skills], perhaps because the record suggests she can: she finished 

high school, completed training to become a certified nurse’s assistant, and has the 

cognitive capacity to follow simple instructions.” 580 F.3d at 478. The Eighth 

Circuit acknowledged in Hillier that “in the abstract tension exists between only 

being able to understand, remember, and follow simple, concrete instructions and 

working as a cashier [a level 3 reasoning occupation],” but explained that it did “not 

decide cases in the abstract,” and noted that the claimant had previously worked as 

a cashier for Wendy’s and the Salvation Army. See 486 F.3d at 367. This evidence 

demonstrated that the claimant “ha[d] the mental capacity to work as a cashier.” Id. 

The record here is far different. Mr. Viverette did not finish eighth grade, has never 

worked, and can read, write, and do math only a “little.” The decisions of the 

Seventh and Eighth Circuits, therefore, are distinguishable on their facts.

Fourth, the substantive analysis of the Seventh Circuit in Terry gives us pause. 

The Seventh Circuit analyzed the claimant’s ability to “perform only ‘simple’ work” 

and concluded that she retained the capacity to reason at level 3 in part because she 

could “follow simple instructions.” Terry, 580 F.3d at 478. Level 3 reasoning, 

however, requires more than the ability to carry out simple instructions. As we 

explained in Buckwalter, level 3 reasoning “lifts the restrictions on how complex the 

instructions can be—allowing for any ‘instructions.’” Buckwalter, 5 F.4th at 1323. 

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Terry, in other words, may have relied on an incorrect (or at least incomplete) 

understanding of level 3 reasoning.

Fifth, in a more recent decision the Eighth Circuit has explained that an 

apparent conflict can exist in certain situations where the claimant is limited to 

simple tasks and a listed occupation demands level 3 reasoning. In Thomas v. 

Berryhill, 881 F.3d 672, 676–77 (8th Cir. 2018), the ALJ found that the claimant 

had an RFC limiting her to one- to two-step tasks and concluded that she was not 

disabled at step five because she could perform the job of a new accounts clerk. 

Because the position of new accounts clerk requires level 3 reasoning under the 

DOT, the Eighth Circuit held that there was an apparent conflict and remanded for 

the ALJ to address the matter. “An apparent conflict . . . existed between the [VE’s] 

testimony that someone limited to ‘[one] to [two] step tasks’ could work as a new 

accounts clerk and the DOT description that being such a clerk involves a higher 

level of reasoning [i.e., level 3 reasoning]. Because that conflict was ‘apparent’ and 

not just ‘possible,’ the ALJ needed to do more than have the [VE] affirm that his 

testimony was consistent with the DOT.” Id. at 678. Given its decision in Thomas, 

the Eighth Circuit has moved closer to (if not aligned itself) with the position of the 

Fourth, Ninth, and Tenth Circuits.

 We hold, therefore, that that there is an apparent conflict between an RFC 

limitation to simple, routine, and repetitive tasks and level 3 reasoning, and in doing 

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so join the decisions of the Fourth, Ninth, and Tenth Circuits. This does not mean 

that there is an actual conflict or that an ALJ is categorically prohibited from 

including a job with level 3 reasoning in the step five analysis for a claimant with 

such a limitation. It does mean that the ALJ is required to address the apparent 

conflict and provide a reasonable explanation for her determination. See 

Washington, 906 F.3d at 1366 (“This doesn’t mean that the VE [or ALJ were] wrong, 

but it does mean that there was a conflict, it was apparent, and it was important.”). 

IV

The ALJ’s failure to address the apparent conflict, however, is not the end of 

the matter. Although the document preparer position is out of the equation for now, 

see Buckwalter, 5 F.4th at 1321 (the failure to address an apparent conflict means 

that an ALJ’s decision is not supported by substantial evidence), the Commissioner 

urges us to conclude—as did the district court—that the error was harmless. 

According to the Commissioner, the ALJ also found that Mr. Viverette could work 

as a final assembler or a check weigher (both of which require level 1 reasoning), 

and the VE testified that there are 7,000 and 14,000 jobs nationally available for 

those positions. See generally Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he 

burden of showing that an error is harmful normally falls upon the party attacking 

the agency’s determination.”); Washington, 906 F.3d at 1366 (holding that the ALJ’s 

failure to address an apparent conflict was not harmless). 

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On this record, we cannot conclude that the ALJ’s failure to address the 

apparent conflict as to the document preparer position was harmless. In the words 

of Washington, “[w]e can’t disregard the error”—the failure to address the apparent 

conflict—“on the grounds that no conflict in fact existed.” 906 F.3d at 1366. Our 

conclusion, moreover, remains the same even if we dig deeper.

At step five, an ALJ must “ascertain whether [the] jobs [that a claimant can 

perform] ‘exist[ ] in significant numbers in the national economy.’” Biestek v. 

Berryhill, 139 S.Ct. 1148, 1152 (2019) (quoting 20 C.F.R. §§ 404.1560(c)(1) & 

416.960(c)(1)). See also Barnhart v. Thomas, 540 U.S. 20, 25 (2003); Winschel, 

631 F.3d at 1180. As noted, the VE testified that there are 104,000 document 

preparer positions available nationally, 7,000 final assembler positions available 

nationally, and 14,000 check weigher positions available nationally. The ALJ 

referenced this testimony collectively and concluded that Mr. Viverette “is capable 

of making a successful adjustment to other work that exists in significant numbers 

in the national economy.” D.E. 13-2 at 32. But she apparently treated the three 

occupations (one of which we must here assume is off the table) cumulatively for 

purposes of the “significant numbers” determination, for she did not make any 

findings about how many jobs were available in the national economy for each of 

the occupations. In other words, the ALJ did not make a finding about how many 

final assembler or check weigher jobs were available nationally or whether the 

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number of final assembler and check weigher jobs, either separately or cumulatively, 

constituted a significant number, absent the document preparer jobs. 

“Whether there are a significant number of jobs a claimant is able to perform 

with his limitations is a question of fact to be determined by a judicial officer [i.e., 

the ALJ].” Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986). See also Brooks 

v. Barnhart, 133 F. App’x 669, 670 (11th Cir. 2005) (“The ALJ, relying on the VE’s 

testimony, and not the VE, determines whether a specific number of jobs constitutes 

a significant number.”) (citing Martinez with approval). Here, the ALJ based her

finding of fact on the VE’s testimony about a total number of 125,000 jobs, without 

considering an apparent conflict that affected 104,000 of those jobs. Given that over 

eighty percent of the jobs presented to the ALJ are affected by the apparent conflict 

and that we are reviewing the decision of the ALJ (on behalf of the Commissioner) 

for substantial evidence, we are hesitant to make any factual determinations 

ourselves about whether the final assembler or check weigher positions exist in 

significant numbers in the national economy. Where additional (or more specific) 

agency fact-finding is needed, remand is the appropriate disposition. See Allen v. 

Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (“[J]udicial line-drawing in this 

context is inappropriate, [because] the issue of numerical significance entails many 

fact-specific considerations requiring individualized evaluation, and . . . [because]

the evaluation ‘should ultimately be left to the ALJ’s common sense in weighing the 

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statutory language as applied to a particular claimant’s factual situation.’”) (citation 

omitted).3

 

Even if we thought that the ALJ had made specific findings about the number 

of final assembler and check weigher jobs available in the national economy, and 

about whether those numbers were significant, our recent decision in Goode v. 

Comm’r of Soc. Sec, 966 F.3d 1277 (11th Cir. 2020)—issued after the district court’s 

decision—counsels in favor of remand. In Goode, the VE testified there were 43,000 

bakery worker jobs nationally and 1,000 such jobs regionally based on the closest 

matching SOC code for that DOT occupation. This SOC code, however, covered

65 DOT jobs, only one of which the claimant was actually capable of performing. 

Because the VE never took the additional step of approximating how many of those 

specific jobs within the SOC code the claimant could perform, we found that the 

testimony was unreliable. As a result, the ALJ’s decision was not supported by 

substantial evidence. See id. at 1283–84. 

In Mr. Viverette’s case the VE testified that there were 14,000 check weigher 

jobs nationally, but on cross-examination stated that this number included the total 

3 The Tenth Circuit faced a very similar situation in Kimes v. Comm’r of Soc. Sec., 817 F. App’x 

654 (10th Cir. 2020), and remanded for the ALJ to make specific findings about the number of 

jobs available nationally for a specific occupation: “In determining whether the ‘significant 

numbers’ requirement was satisfied, the ALJ considered both jobs together, for a total of 96,000 

jobs. He did not consider whether [the occupation of] industrial cleaner, alone, with only 16,000 

jobs, satisfies the requirement. It is not for this court to decide, in the first instance, whether a 

relatively low number qualifies as a ‘significant number’ of jobs.” Id. at 659. We find Kimes to 

be persuasive and follow its approach.

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of sedentary unskilled jobs within the relevant SOC code. Significantly, she also 

said that she did not know whether the other DOT occupations within the SOC code 

required level 1 or level 2 reasoning or something higher. See D.E. 13-2 at 55–57. 

Because we have now held that there is an apparent conflict between level 3

reasoning and a limitation to simple, routine, and repetitive tasks, and because the 

VE did not take the additional step mandated in Goode to estimate what portion of 

jobs within the relevant SOC code Mr. Viverette can perform, the 14,000 number 

for the check weigher position may be overstated. As a result, a “remand [here]

would [not] be an idle and useless formality.” N.L.R.B. v. Wyman-Gordon Co., 394 

U.S. 759, 766 n.6 (1969).4

V

The judgment of the district court is reversed, with instructions that the case 

be remanded to the Commissioner for further proceedings.

REVERSED AND REMANDED.

4 Mr. Viverette’s counsel sought to ask the VE about the final assembler position, but the ALJ cut 

that questioning short because she had another hearing scheduled, and that hearing was already 

behind schedule. See D.E. 13-2 at 57–58.

USCA11 Case: 20-11862 Date Filed: 09/21/2021 Page: 20 of 20