     Case: 19-30969      Document: 00515435684         Page: 1    Date Filed: 06/01/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 19-30969                                FILED
                                  Summary Calendar                           June 1, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
DERRICK DWAYNE DELL,

              Plaintiff - Appellant

v.

ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,

              Defendant – Appellee.


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:18-CV-756


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Derrick Dell applied for disability insurance benefits, claiming he could
no longer work because of a variety of physical and mental ailments. An
administrative law judge (“ALJ”) evaluated Dell’s application under the five-
step sequential evaluation process that the Social Security Administration
(“SSA”) uses to determine whether an individual is disabled. See Schofield v.
Saul, 950 F.3d 315, 317 (5th Cir. 2020). “There is no material dispute in this
case with regard to the first four steps,” so we confine our discussion to the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-30969
fifth. Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). And at the fifth step,
the ALJ considered Dell’s “residual functional capacity and . . . age, education,
and work experience to see if ” Dell could “make an adjustment to other work.”
20 C.F.R. § 404.1520(a)(4)(v).
      A vocational expert testified at Dell’s hearing in front of the ALJ.
Vocational experts have specialized knowledge and testify “about working
conditions and physical demands of various jobs; . . . the existence and numbers
of those jobs in the national economy; and involvement in or knowledge of
placing adult workers with disabilities into jobs.” Biestek v. Berryhill, 139 S.
Ct. 1148, 1152 (2019). The ALJ posed hypothetical questions to the vocational
expert to determine if jobs would be available given Dell’s residual functional
capacity. The expert testified Dell would be able to perform the requirements
of a variety of occupations, numbering 1.4 million jobs in the national economy.
But, because of Dell’s education level, the expert suggested that the ALJ should
consider only half of those jobs to be open to Dell. During the hearing, Dell’s
counsel did not question or object to any part of the expert’s testimony or
qualifications.
      Relying, in part, on the testimony that Dell met the requirements for
approximately 700,000 jobs, the ALJ concluded that Dell “was capable of
making a successful adjustment to other work that existed in significant
numbers in the national economy.” Thus, Dell was not disabled. Schofield, 950
F.3d at 318 (citing 20 C.F.R. § 404.1520(g)). The Appeals Council reviewed that
decision and ultimately affirmed, again relying on the vocational expert’s
testimony. That decision constitutes the SSA’s final decision. Higginbotham v.
Barnhart, 405 F.3d 332, 337–38 (5th Cir. 2005). After the district court
affirmed the SSA’s decision, Dell timely appealed to this court.
      We review the SSA’s decision for substantial evidence and “look to [the]
existing administrative record and ask[ ] whether it contains ‘sufficien[t]
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                                  No. 19-30969
evidence’ to support the agency’s factual determinations.” Biestek, 139 S. Ct.
at 1154 (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)).
Dell’s contention on appeal is the SSA’s decision is not supported by
substantial evidence because the vocational expert’s testimony was unreliable.
Dell’s contention lacks merit.
      First, Dell suggests that the vocational expert needed to disclose her
methodology. But Dell never asked for the methodology in front of the SSA.
And the Supreme Court has already rejected a categorical rule that would
require a vocational expert to always disclose their methodology. Biestek, 139
S. Ct. at 1157; see also Krell v. Saul, 931 F.3d 582, 587 (7th Cir. 2019) (“Biestek
clearly held that vocational experts are not categorically required to provide
their underlying data.”).
      Second, Dell suggests that we should require the SSA to apply Daubert-
style rigor to the testimony of vocational experts. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). “Daubert, however, does not apply
in agency proceedings.” Palm Valley Health Care, Inc. v. Azar, 947 F.3d 321,
329 (5th Cir. 2020). Nor do the federal rules of evidence. 42 U.S.C. § 405(b)(1)
(“Evidence may be received at any hearing before the Commissioner of Social
Security even though inadmissible under rules of evidence applicable to court
procedure.”).
      Third, Dell appears to speculate that there might be methodological
problems with the vocational expert’s job data. For example, Dell says there
might be inconsistencies between the expert’s data about the number of jobs
available in the national economy and other sources of employment
information, such as the Dictionary of Occupational Titles (DOT). We’ve
previously stated, however, that applicants:
      should not be permitted to scan the record for implied or
      unexplained conflicts between the specific testimony of an expert

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                                 No. 19-30969
      witness and the voluminous provisions of the DOT, and then
      present that conflict as reversible error, when the conflict was not
      deemed sufficient to merit adversarial development in the
      administrative hearing.

Carey, 230 F.3d at 146–47. Not only did Dell decline to question the vocational
expert about any possible methodological problems with her data in front of
the ALJ, but, even now, Dell fails to point to any data that conflicts with or
undermines the expert’s testimony. We will not reverse when the vocational
expert’s testimony remains “clear and unchallenged.” Id. at 147; see also
Graves v. Colvin, 837 F.3d 589, 593 (5th Cir. 2016).
      Finally, Dell argues that the SSA should have required more testimony
from the vocational expert. In particular, Dell argues that the expert needed
to explain why she reduced the available jobs number by 50%. While the expert
did not provide much of “an explanation or supporting authority” for the 50%
reduction, we again note “ that [Dell] had an opportunity to but did not raise
the issue . . . at the hearing before the ALJ.” Haas v. Barnhart, 91 F. App’x
942, 948 (5th Cir. 2004). And in all events, the record reflects that “the ALJ
scrupulously incorporated into the hypothetical questions all of [Dell’s]
disabilities,” and the expert answered those questions in her testimony.
Masterson v. Barnhart, 309 F.3d 267, 274 (5th Cir. 2002). Given this
“testimony and Dell’s failure to refute [it], substantial evidence supports the
[SSA’s] finding.” Id.; see Haas, 91 F. App’x at 948.
      AFFIRMED.




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