Acosta v. Acting Commissioner of Social Security: Curtailing Post-Hearing Job-Numbers Challenges and Clarifying Harmless Error for DOT Conflicts

Introduction

In Dorys Acosta v. Acting Commissioner of Social Security, No. 24-12495 (11th Cir. June 13 2025), the Eleventh Circuit confronted two recurrent issues in Social Security disability litigation: (1) the weight to be afforded vocational-expert (“VE”) testimony about national job numbers when the claimant later seeks to impeach that testimony with outside data, and (2) the effect of an “apparent conflict” between a claimant’s residual functional capacity (“RFC”) and the job-description reasoning level contained in the Dictionary of Occupational Titles (“DOT”).

Plaintiff-appellant Dorys L. Acosta argued that the VE’s job-numbers estimates were erroneous under Department of Labor (DOL) statistics and that the ALJ failed to resolve a conflict between her RFC—limited to “simple, routine, and repetitive tasks”—and the DOT description for the job of “mail clerk,” which requires Level-3 reasoning. Both arguments were rejected. The panel (Jordan, J. Pryor, Brasher, JJ.) held that because Acosta never raised her statistics-based challenge during administrative proceedings, she could not introduce new data for the first time in district court; VE testimony alone constituted “substantial evidence.” The court also held that any unresolved DOT conflict was harmless where the ALJ identified two other occupations (produce sorter and photocopy-machine operator) totaling 216,000 positions nationwide that fit the RFC without conflict.

Summary of the Judgment

• Standard of Review: Substantial-evidence review of the ALJ’s decision, plus de novo assessment of legal standards.
• Holding #1: An ALJ may rely on unchallenged VE testimony to satisfy the step-five burden without independently consulting DOL occupational statistics. A claimant who fails to contest the VE’s methodology or job-numbers estimates before the ALJ or Appeals Council cannot later introduce contrary statistical evidence in federal court.
• Holding #2: An “apparent conflict” between a DOT reasoning-level requirement (here, Level 3 for mail clerk) and an RFC limitation to simple, routine tasks will render an ALJ’s step-five finding unsupported only if the conflict is outcome-determinative. Where the ALJ identifies other compatible occupations in significant numbers, the error is “harmless.”
• Disposition: District court’s judgment affirming the Commissioner was itself affirmed.

Analysis

1. Precedents Cited and Their Influence

• Samuels v. Acting Comm’r, 959 F.3d 1042 (11th Cir. 2020) — Establishes that the Appeals Council’s denial makes the ALJ’s decision the final agency action; thus the court looks only to evidence presented to the ALJ.
• Winschel v. Comm’r, 631 F.3d 1176 (11th Cir. 2011) — Recites the substantial-evidence standard and five-step process; reiterated here to frame review.
• Goode v. Comm’r, 966 F.3d 1277 (11th Cir. 2020) & Viverette v. Comm’r, 13 F.4th 1309 (11th Cir. 2021) — Address flaws in VE methodology and apparent DOT conflicts. Acosta relied on these to argue the VE’s numbers were unreliable and that the ALJ failed to resolve conflicts. The panel distinguished both cases: unlike in Goode or Viverette, Acosta never raised a methodology objection before the ALJ.
• Biestek v. Berryhill, 587 U.S. 97 (2019) — Supreme Court holding that VE testimony, even without supporting data, can constitute substantial evidence. This case formed the analytical foundation for rejecting Acosta’s demand for statistical corroboration.
• Washington v. Comm’r, 906 F.3d 1353 (11th Cir. 2018) — Announces ALJ’s duty to resolve “apparent conflicts.” The court acknowledged a conflict existed but applied harmless-error doctrine.
• Flowers v. Comm’r, 97 F.4th 1300 (11th Cir. 2024) — Provides the modern articulation of harmless error in Social Security appeals; decisive in deeming the DOT conflict non-prejudicial.

2. Court’s Legal Reasoning

1. Procedural Default of Job-Numbers Challenge
   • Claimant bears the burden, at the administrative level, to cross-examine or otherwise impeach VE testimony.
   • Under Falge v. Apfel, 150 F.3d 1320 (11th Cir. 1998), courts may not consider evidence that was never before the ALJ. Because Acosta introduced DOL occupational employment and wage statistics (“OEWS”) only in district court, the panel disregarded them.
   • The ALJ therefore could credit the VE’s testimony as substantial evidence even though unaccompanied by raw data (Biestek).
2. Substantial Evidence Threshold Not High
   At step five, the VE identified three unskilled, light‐exertion occupations with 216,000 to 240,000 jobs nationally. Given the low “more-than-a-scintilla” threshold, this uncontradicted testimony sufficed.
3. Apparent DOT–RFC Conflict Analysis
   • DOT lists mail clerk as requiring Level-3 reasoning.
   • RFC limited claimant to simple, routine, repetitive work.
   • Under Viverette, this is an “apparent conflict” the ALJ must resolve.
   • Failure to do so normally warrants remand, but here the conflict was deemed harmless because the ALJ alternatively relied on two other occupations (produce sorter and photocopy-machine operator) that require only Level-2 reasoning and together represent 216,000 positions—clearly “significant numbers.”
4. Harmless-Error Doctrine
   • Guided by Flowers, the court assessed whether the result would change absent the error. Because the alternative jobs alone satisfied the step-five burden, the outcome would be identical; consequently, remand would serve no purpose.

3. Potential Impact of the Decision

• Front-Loading of VE Challenges: Claimants (and their counsel) must raise objections to a VE’s methodology or numbers during the administrative hearing or risk forfeiture. This incentivizes real-time expert cross-examination and discourages strategic sand-bagging.
• Clarification of ALJ Duties: Although Washington requires ALJs to resolve DOT conflicts, Acosta confirms such an oversight may be deemed harmless in light of alternative occupations. ALJs may still be incentivized to expressly resolve all conflicts to avoid appellate uncertainty.
• Practical Weight of VE Testimony: Reiterates that VE testimony, standing alone, satisfies substantial-evidence review unless impeached in the record with methodological flaws (Goode) or common-sense improbabilities (Viverette).
• Administrative Efficiency: By limiting new statistical attacks in federal court, the decision preserves the SSA’s non-adversarial administrative framework and guards against prolonged litigation.

Complex Concepts Simplified

• Substantial Evidence: Not the “best” or even “preponderant” evidence, but merely “enough” evidence that a reasonable person could accept—more than a trivial amount.
• Vocational Expert (VE): An expert hired by the SSA (or occasionally by claimants) to explain how a claimant’s limitations translate into real-world job availability.
• Dictionary of Occupational Titles (DOT): An outdated but still-used Department of Labor reference cataloging thousands of jobs, each with a code and characteristics such as reasoning level, exertional demands, and skill level.
• Reasoning Levels (1–6): DOT’s scale of cognitive demands a job requires. • Level 1: Apply commonsense understanding to carry out simple instructions.
  • Level 3: Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form, and deal with problems involving multiple variables.
• Residual Functional Capacity (RFC): A bureaucratic description of the most an individual can still do at work on a sustained basis, considering both physical and mental limitations.
• Apparent Conflict: A mismatch obvious on its face between the VE’s testimony and the DOT (e.g., VE says a claimant restricted to simple tasks can perform a Level-3 reasoning job).
• Harmless Error: Even if a mistake occurred, the overall outcome would not change, so reversal or remand is unnecessary.

Conclusion

The Eleventh Circuit’s decision in Acosta adds two important guideposts to disability jurisprudence. First, challenges to VE job-numbers methodology must be raised before the ALJ or they are waived; courts will not entertain outside statistics belatedly offered at the district-court level. Second, while an ALJ must ordinarily reconcile conflicts between an RFC and DOT job requirements, failure to do so can be harmless when other conflict-free occupations exist in significant numbers. In practical terms, Acosta strengthens the finality of unchallenged VE testimony, streamlines post-administrative review, and signals that harmless-error analysis remains a robust check against remands that would not affect entitlement to benefits. Claimants and practitioners must now be especially vigilant during the administrative hearing, lest they lose the opportunity to dispute vocational evidence later in the judicial process.