MAACK

v.

COMMISSIONER OF SOCIAL SECURITY

Plaintiff seeks judicial review of the denial of his claim for a period of disability, disability insurance benefits (DIB), and Supplemental Security Income (SSI).¹ Plaintiff argues that the Administrative Law Judge (ALJ) committed reversible error by failing to properly develop the record in accordance with Social Security Ruling (SSR) 00-4p. As the ALJ’s decision was not based on substantial evidence and failed to employ proper legal standards, the Commissioner’s decision is reversed and remanded.

I. Background

Plaintiff, who was born in 1978, claimed disability beginning March 9, 2011 (Tr. 14, 577, 584). He was 32 years old on the alleged onset date. Plaintiff obtained a high school education, and his past relevant work experience included work as an

Given his alleged disability, Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 576-606).2 The Social Security Administration (SSA) denied Plaintiff’s claims both initially and upon reconsideration (Tr. 240-56, 270-72). Plaintiff then requested an administrative hearing (see Tr. 257-67). Per Plaintiff’s request, the ALJ held an initial hearing and several supplemental hearings at which

Plaintiff appeared and testified (Tr. 35-126). Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 8-34). In rendering the administrative decision, the ALJ concluded that Plaintiff met the insured status requirements through December 31, 2015, and had not engaged in substantial gainful activity since March 9, 2011, the alleged onset date (Tr. 14). After conducting a hearing and reviewing the evidence of record, the ALJ determined that Plaintiff had the following severe impairments: low back strain, morbid obesity, hypertension, depression, anxiety, and fibromyalgia syndrome (FMS) versus chronic fatigue syndrome (CFS) (Tr. 14). Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not have an impairment or combination of impairments

II. Standard of Review

To be entitled to benefits, a claimant must be disabled, meaning he or she must be unable 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 twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). To regularize the adjudicative process, the SSA promulgated the detailed regulations currently in effect. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.

If an individual is found disabled at any point in the sequential review, further inquiry

A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178 (11th

Cir. 2011) (citation and internal quotation marks omitted). While the court reviews the Commissioner’s decision with deference to the factual findings, no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F. 3d 1253, 1260 (11th Cir. 2007) (citations omitted). In reviewing the Commissioner’s decision, the court may not reweigh the evidence or substitute its own judgment for that of the Commissioner, even if it finds that the evidence preponderates against the Commissioner’s decision. Mitchell v. Comm’r of Soc. Sec., 771 F. 3d 780, 782 (11th Cir. 2014); Winschel, 631 F. 3d at 1178 (citations omitted); Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient reasoning for determining that he or she has conducted the proper legal analysis, mandates reversal. Ingram, 496 F. 3d at 1260 (citation omitted). The scope of review is thus limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations omitted).

III. Discussion

Plaintiff argues solely that the ALJ erred by failing to properly develop the record. Namely, Plaintiff contends that an apparent conflict existed between the VE’s testimony and the DOT regarding Plaintiff’s mental limitations and the ability to perform jobs with a reasoning level of³, which the ALJ failed to resolve.⁴ Given such failure, Plaintiff argues that remand is warranted.

VE whether his or her testimony is consistent with the DOT. Id. at 1356. According to the Eleventh Circuit, when a conflict has been identified, SSR 00-4p requires the ALJ to provide a reasonable explanation for the discrepancy and to detail in the decision how the ALJ resolved the conflict. Id. The failure to do so means that the ALJ’s decision, if based upon the contradicted VE testimony, is not supported by substantial evidence. Id. Here, during the administrative hearing, the ALJ posed a hypothetical to the ALJ that included a limitation that Plaintiff’s work tasks could be up to one to five steps, learned in 30 days, performed independently at his own workstation, and performed repetitively (Tr. 57-58). In response to the hypothetical, the VE testified that such hypothetical individual with Plaintiff’s limitations could not perform Plaintiff’s past work, but such hypothetical individual could perform the jobs of document preparer, parimutuel-ticket taker, and addresser (Tr. 57-61). Subsequently, in rendering the decision, the ALJ concluded that Plaintiff maintained the RFC to perform a reduced range of light work, including a limitation that Plaintiff’s work tasks could be up to one to five steps, learned in 30 days, performed repetitively and independently at his own workstation (Tr. 16). The ALJ described such tasks as “some of the most simple tasks to learn and perform” (Tr. 16).

Thereafter, the ALJ set forth the step-five finding and summarized the VE’s testimony, as follows: As such, the VE testified that one of claimant’s age, education, work experience, and RFC would be able to perform the requirements of representative sedentary, unskilled SVP² occupations such as: Document Preparer (DOT 249.587-018) at about 31,000 jobs nationally; [Parimutuel-Ticket] Checker (DOT 219.587-010) at about 16,000 jobs nationally; and[] Addresser (DOT 209.587-010) at about⁴,500 jobs nationally. The VE testified that these jobs would still exist, and be unaffected by the use of a cane, due to it being sedentary work. These jobs allow for off-task behavior that does not exceed 6 minutes per hour. And, claimant could stand at the work station up to 6 minutes an hour, at his discretion.

VE testimony is consistent with the DOT; though any discrepancies therewith are reliably and reasonably based on the VE’s education, training, and professional experience working directly in the field with employers.

(Tr. 24). In this instance, both the document preparer and the parimutuel-ticket checker positions require a reasoning level of³, meaning that an individual must apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form and deal with problems involving several concrete variables in or from standardized situations. See Document Preparer, DOT § 249.587-018, 1991 WL 672349, & Parimutuel-Ticket Checker, DOT § 219.587-010, 1991 WL 671989. According to the Eleventh Circuit, an apparent conflict exists between demands of a level³ reasoning and a limitation to simple, routine, and repetitive tasks in the RFC. Viverette v. Comm’r of Soc. Sec., 13 F. 4th 1309, 1317 (11th Cir. 2021). Based on the holding in Viverette, Plaintiff contends that, although the ALJ did not explicitly include a limitation to “simple, routine, and repetitive tasks,” the limitation to work tasks being up to one to five steps, learned in 30 days, and performed repetitively and independently at Plaintiff’s own workstation is effectively the same limitation. Consequently, Plaintiff argues that an apparent conflict existed and, since the ALJ failed to address such apparent conflict, remand is warranted. In turn, the

Commissioner argues that no apparent conflict existed because the limitation included in the hypothetical to the VE did not equate to an ability to perform “simple, routine, and repetitive tasks” as addressed in Viverette. Notwithstanding the Commissioner’s arguments to the contrary, I find that the limitation set forth by the ALJ closely resembles the limitation addressed in Viverette, meaning that an apparent conflict existed as to two of the three jobs identified by the VE and that the ALJ therefore erred in relying upon the VE’s testimony without addressing such conflict. Notably, those two jobs accounted for 47,000 of the 51,500 jobs identified by the VE. Given the ALJ’s failure to address the apparent conflict affecting more than 90 percent of the jobs identified by the VE, remand is warranted. See id. at 1318 (“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.”) (citation omitted). IV. — Conclusion For the foregoing reasons, the ALJ failed to apply the correct legal standards, and the ALJ’s decision is not supported by substantial evidence. Accordingly, after consideration, it is hereby ORDERED: 1. The decision of the Commissioner is REVERSED and the matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative proceedings consistent with this Order. 2. The Clerk is directed to enter final judgment in favor of Plaintiff and close the case. DONE AND ORDERED in Tampa, Florida, on this 25th day of July, 2023.

MARK A. PIZZO

UNITED STATES MAGISTRATE JUDGE cc: Counsel of Record