CANNON

v.

COMMISSIONER OF SOCIAL SECURITY

The Plaintiff seeks judicial review of the Commissioner’s denial of her claim for Social Security Income (SSI) and Disability Insurance Benefits (DIB). After careful review and with the benefit of oral argument, the Court reverses the Commissioner’s decision and remands the case to the Social Security Administration (SSA).

I.

The Plaintiff was born in 1984, has at least a high school education, and has past relevant work experience as a nurse’s assistant and home care giver. (R. 364, 1283). In late 2017, the Plaintiff applied for SSI and DIB, alleging disability as of March 2016 due to migraines, depression, back problems, bipolar disorder, and anxiety in crowded areas. (R. 364–65, 384–85). The SSA denied the Plaintiff’s applications both initially and on reconsideration. (R. 382, 402, 427, 447). At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a hearing on the matter in February 2019. (R. 35–72, 474–75). The Plaintiff was represented by counsel at that proceeding and testified on her own behalf. (R. 35, 39– 67). A vocational expert (VE) also testified. (R. 67–72). In a decision issued in March 2019, the ALJ found that the Plaintiff was not disabled. (R. 11–29). The Plaintiff sought review of that decision in federal court,

which resulted in the matter being remanded for further consideration. (R. 1335–37). On remand, the ALJ held another hearing, at which the Plaintiff was again represented by counsel and again testified on her own behalf. (R. 1292, 1297–1304). A VE testified again as well. (R. 1304–07). In a decision handed down in May 2021, the ALJ determined that the Plaintiff (1) had not engaged in any substantial gainful activity since her alleged onset date in March 2016; (2) had the severe impairments of anxiety, obesity, bipolar disorder, reactive airway disease, and degenerative disc disease; (3) did not, however, have an impairment or combination of impairments that met or medically equaled the severity of any of the listings;¹ (4) had the residual functional capacity (RFC) to perform a

II.

The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).2 A physical or mental impairment under the Act “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).

To determine whether a claimant is disabled, the Social Security Regulations (Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (per curiam) (citing 20 C.F.R. 2 Unless otherwise indicated, citations to the Code of Federal Regulations are to the version in effect at the time of the ALJ’s decision. § 404.1520(a)(4)).³ Under this process, an ALJ must assess whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment; (3) has a severe impairment that meets or equals one of the listings; (4) has the RFC to engage in her past relevant work; and (5) can perform other jobs in the national economy given her RFC, age, education, and work experience. Id. (citing Phillips v. Barnhart, 357 F. 3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). Although the claimant has the burden of proof through step four, the burden temporarily shifts to the Commissioner at step five. Goode v. Comm’r of Soc. Sec., 966 F. 3d 1277, 1278–79 (11th Cir. 2020) (citation omitted); Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727, 734 (11th Cir. 2017) (per curiam) (citing Jones v. Apfel, 190 F. 3d 1224, 1228 (11th Cir. 1999)). If the Commissioner carries that burden, the claimant must then prove she cannot engage in the work identified by the Commissioner. Goode, 966 F. 3d at 1279.

In the end, “‘the overall burden of demonstrating the existence of a disability . . . rests with the claimant.’” Washington v. Comm’r of Soc. Sec., 906 F. 3d 1353, 1359 (11th Cir. 2018) (quoting Doughty v. Apfel, 245 F. 3d 1274, 1280 (11th Cir. 2001)). A claimant who does not prevail at the administrative level may seek judicial review in federal court provided the Commissioner has issued a final decision on the claimant’s disability application after a hearing. 42 U.S.C. § 405(g). Judicial review is confined to determining whether the Commissioner applied the correct legal standards and whether the decision is buttressed by substantial evidence. Id.; Hargress

III.

The Plaintiff raises five challenges on appeal: (1) the ALJ did not properly consider certain medical opinions and prior administrative findings; (2) the ALJ’s RFC determination and hypothetical to the VE did not account for all of the Plaintiff’s mental limitations; (3) the ALJ erred by failing to identify and resolve a discrepancy between the VE’s testimony and the Dictionary of Occupational Titles (DOT);⁴ (4) the

ALJ wrongly disregarded a prior letter from the SSA; and (5) the appointment of the

A. As noted above, at step five of the sequential evaluation process, the burden of proof temporarily shifts to the Commissioner “to show that ‘there is other work available in significant numbers in the national economy that the claimant is able to perform’” despite her impairments. Sampson, 694 F. App’x at 734 (quoting Jones, 190

F. 3d at 1228); see also 20 C.F.R. §§ 404.1560(c), 416.960(c) (“[T]o support a finding that you are not disabled at this fifth step of the sequential evaluation process, we are responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do . . . .”). To satisfy this burden, the Commissioner may “take administrative notice of reliable job information available from various governmental and other publications,” including the DOT. 20 C.F.R. §§ 404.1566(d), 416.966(d). The Regulations also permit the Commissioner to predicate her decision at step five on information supplied by a VE. Id. at §§ 404.1566(e), 416.966(e); Phillips, 357 F. 3d at 1240. “A [VE] is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments.” Phillips, 357 F. 3d at 1240.

The ALJ’s duty to take notice of and to resolve apparent inconsistencies between the DOT and VE testimony exists both during and after the hearing and does not depend on whether they are raised by a party. Id. at 1363. “The failure to properly discharge this duty means that the ALJ’s decision . . . is not supported by substantial evidence.” Id. at 1362.

B.

In this case, the ALJ engaged in a colloquy with the VE as to whether the Plaintiff could engage in jobs that were present in the national economy other than her past relevant work. (R. 1305–06). In addressing the ALJ’s inquiries, the VE asserted that an individual with the Plaintiff’s age, education, work experience, and RFC could perform the representative occupations of photocopy machine operator, housekeeping cleaner, and mail clerk. Id. The VE also testified that the number of jobs nationally for each of these positions was 10,000 for photocopy machine operator, 221,000 for housekeeping cleaner, and 13,000 for mail clerk. Id. The VE did not state, however, whether this testimony comported with the DOT, nor did the ALJ ask that question. Id. In his decision, the ALJ simply recited the VE’s testimony at step five and then stated that “[p]ursuant to SSR 00-4p, . . . the [VE’s] testimony [was] consistent with the information contained in the DOT . . . since the [VE]’s testimony [was] based on [the VE’s] education, training, and professional experience and there [was] no contradictory evidence suggesting that it [was] inconsistent.” (R. 1284). The ALJ also summarily added that “[b]ased on the testimony of the [VE],” the Plaintiff was

“capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (R. 1285). The Plaintiff now argues there is an apparent discrepancy—unresolved by the ALJ—between the VE’s testimony that the Plaintiff could engage in the mail clerk occupation and the qualifications for this position as set forth in the DOT. (Doc. 16). In particular, the Plaintiff notes that the mail clerk job has a reasoning level of three,⁶ id., which necessitates that the holder of the job be able to “[a]pply [a] commonsense 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,” DOT #209.687-026, 1991 WL 671813 (G.P.O. Jan.¹, 2016). The Plaintiff maintains that these requirements do not cohere with VE’s testimony that the Plaintiff could carry out the duties and responsibilities of the mail clerk job despite her limitation—as determined by the ALJ—to simple, routine, and repetitive tasks.

(Doc. 16). The Commissioner does not meaningfully dispute that the VE erred in failing to identify and resolve this evident discrepancy. Nor could she validly do so under the governing Eleventh Circuit precedent. See Viverette, 13 F. 4th at 1317 (“We hold

. . . that there is an apparent conflict between an RFC limitation to simple, routine, and repetitive tasks and level [three] reasoning[.]”). The fact that the ALJ breached his duty to address this apparent conflict, however, “is not the end of the matter.” Id. at 1317. Even though the mail clerk position cannot be considered a viable occupation for the Plaintiff for purposes of the

Court’s analysis here, the Commissioner insists that the ALJ’s mistake was harmless because the ALJ identified two other jobs—photocopy machine operator and

Both parties cite Viverette to buttress their respective positions. (Docs. 16, 23, 24). In Viverette, the Eleventh Circuit found that the ALJ did not properly address an apparent conflict between the claimant’s RFC and the positions the VE testified the claimant could perform. Viverette, 13 F. 4th at 1317. The occupations identified by the

VE and the number of jobs nationally for each of these positions were as follows: document preparer (104,000 jobs), final assembler (7,000 jobs), and check weigher (14,000 jobs). Id. at 1313. While accounting for the fact that the evident discrepancy effectively eliminated the document preparer job on appeal, the Commissioner in Viverette asserted—and the district court determined—that this error was harmless because the claimant could still work as a final assembler or a check weigher. Id. at 1317. The Eleventh Circuit disagreed, stating that it could not conclude based upon the record before it “that the ALJ’s failure to address the apparent conflict as to the document preparer position was harmless.” Id. at 1318.

The Eleventh Circuit provided three reasons for its conclusion, two of which are pertinent here. First, the court observed that it could not simply “‘disregard the [ALJ’s] error . . . on the grounds that no conflict in fact existed.’” Id. (quoting Washington, 906 F. 3d at 1366). In other words, the court could not resolve the evident inconsistency for the ALJ. Second, the court noted that in the ALJ’s decision: The ALJ referenced th[e VE’s] testimony collectively and concluded that [the claimant was] “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” But [the ALJ] apparently treated the three occupations (one of which [the court] assume[d was] off the table) cumulatively for purposes of the “significant numbers” determination, for [the ALJ] 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 number of final assembler and check weigher jobs, either separately or cumulatively, constituted a significant number, absent the document preparer jobs.

Id. (internal citation omitted). The court then added that given that “over eighty percent of the jobs presented to the ALJ” did not comport with the claimant’s restrictions, it was “hesitant to make any factual determinations about whether the final assembler or check weigher positions exist[ed] in significant numbers in the national economy.” Id. Viverette seemingly forecloses the Commissioner’s argument here. Akin to Viverette, the ALJ in this case “treated the three occupations [at issue] . . . cumulatively for purposes of the ‘significant numbers’ determination,” and did not make separate “findings about how many jobs were available in the national economy” for each of the remaining positions. Id.7 And like in Viverette, the ALJ’s failure to make this

Cisneros v. Comm’r of Soc. Sec., 2022 WL 354717, at *3 (M.D. Fla. Feb.⁷, 2022). The requirement that the ALJ render such determinations is especially important since, as the Viverette court observed, “the issue of numerical significance entails many fact-specific considerations requiring individualized evaluation.” 13 F. 4th at 1318 (quoting Allen v. Barnhart, 357 F. 3d 1140, 1144 (10th Cir. 2004)). And, on appeal, the Court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [ALJ].” Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178 (11th Cir. 2011). A survey of the case law reveals that the Court’s resolution of the harmless error analysis conforms to the approach adopted by a large majority of the other courts in this District. See, e.g., Toonen v. Comm’r of Soc. Sec., 2023 WL 2446374, at *5 (M.D.

“specific finding” as to the number of remaining jobs available in the national economy. The Court therefore does not decide this issue here. Fla. Mar. 10, 2023) (finding that the ALJ’s failure to resolve an apparent conflict was not harmless under Viverette because the ALJ did not make a specific finding as to whether the remaining number of jobs existed in significant numbers in the national economy); Dionne v. Comm’r of Soc. Sec., 2023 WL 1452201, at *10–11 (M.D. Fla. Jan. 13, 2023) (same), report and recommendation adopted, 2023 WL 1441821 (M.D. Fla. Feb.¹, 2023); Ledford v. Comm’r of Soc. Sec., 2022 WL 2195001, at *3–5 (M.D. Fla. June¹, 2022) (same), report and recommendation adopted, 2022 WL 2193158 (M.D. Fla. June

17, 2022); Grech v. Kijakazi, 2022 WL 485111, at *5–6 (M.D. Fla. Feb. 17, 2022) (same); Franklin v. Comm’r of Soc. Sec., 2022 WL 2294062, at *4–6 (M.D. Fla. Feb.⁸, 2022) (same); Cisneros, 2022 WL 354717, at *3 (same); Roussin v. Comm’r of Soc. Sec., 2021 WL 6205948, at *15–16 (M.D. Fla. Dec. 16, 2021) (same), report and recommendation adopted, 2022 WL 19698 (M.D. Fla. Jan.³, 2022); Rodriguez v. Kijakazi,

2021 WL 6127795, at *3–4 (M.D. Fla. Nov. 2, 2021) (same), report and recommendation adopted, 2021 WL 6126964 (M.D. Fla. Dec. 27, 2021). The Commissioner’s attempts to convince the Court to reach a contrary conclusion are unavailing. The crux of the Commissioner’s position is that the ALJ’s mistake affected far fewer jobs in the aggregate than did the error in Viverette and that

Viverette can be read as authorizing a reviewing court in such a circumstance to assess whether the remaining jobs (after the conflicted position is removed) are sufficiently prevalent nationwide so as to render the ALJ’s error harmless. (Docs. 16, 23). In essence, the Commissioner requests the Court to decide as a matter of law that the number of jobs identified by the VE here are “significant.” Id. There are a couple of problems with the Commissioner’s position. To begin, in focusing exclusively on the significance determination, the Commissioner does not address whether—as discussed above—the ALJ here satisfied Viverette’s requirement that he make “specific findings” about both “the number of [remaining] jobs available in the national economy” and the significance of those numbers. 13 F. 4th at 1319 (emphasis added). Moreover, as to the significance finding itself, the Commissioner’s approach seemingly contravenes the teachings of Viverette and its progeny, insofar as it requires the Court to engage in the difficult task of discerning in the first instance “what number jobs would cross the line from insignificant to significant.” Dionne, 2023 WL 1452201,

at *11 (citing Viverette, 13 F. 4th at 1318–19). As the Tenth Circuit observed in Allen, “judicial line-drawing in this context is inappropriate [because] the issue of numerical significance entails many fact-specific considerations requiring individualized evaluation, and, most importantly, that the evaluation should ultimately be left to the ALJ’s common sense in weighing the statutory language as applied to a particular claimant’s factual situation.” 357 F. 3d at 1144 (internal quotation marks and citation omitted).⁸

In light of the above, the Court need not address the Plaintiff’s other challenges. See Demenech v. Sec’y of Dep’t of Health & Hum. Servs., 913 F. 2d 882, 884 (11th Cir. 1990) (per curiam) (declining to address the claimant’s remaining arguments due to the conclusions reached in remanding the case); Jackson v. Bowen, 801 F. 2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam) (stating that where remand is required, it may be unnecessary to review other claims raised) (citations omitted). On remand, however, the ALJ must consider all the record evidence in accordance with the governing case law and the applicable regulatory provisions in evaluating the Plaintiff’s impairments. Diorio v. Heckler, 721 F. 2d 726, 729 (11th Cir. 1983) (stating that, on remand, the ALJ must reassess the entire record).

IV.

For the foregoing reasons, it is hereby ORDERED: 1. The Commissioner’s decision is reversed, and the case is remanded for further proceedings before the Commissioner consistent with this Order. 2. The Clerk of Court is directed to enter Judgment in the Plaintiff's favor and to close the case. SO ORDERED in Tampa, Florida, this 30th day of March 2023.

Oi aidaas "Bik.

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge Copies to: Counsel of record