Roy v. Commissioner of Social Security

Filing 21

OPINION AND ORDER reversing and remanding the Commissioner's final decision; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James Klindt on 8/29/2024. (KAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION
ROBERT WILLIAM ROY,
Plaintiff,
v.

Case No. 2:23-cv-343-JRK

MARTIN J. O’MALLEY,
1
Commissioner of Social Security,
Defendant.
OPINION AND ORDER 2
I.

Status

Robert William Roy (“Plaintiff”) is appealing the Commissioner of the
Social Security Administration’s (“SSA(’s)”) final decision denying his claims for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
Plaintiff’s alleged inability to work is the result of a hernia operation, a bulging
disc and other back issues, a dislocated clavicle, pinched nerves, hip issues, and

1

Mr. O’Malley was sworn in as Commissioner of the Social Security
Administration on December 20, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil
Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit.
No further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. ' 405(g).
2
The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge
(Doc. No. 11), filed July 18, 2023; Referral Order (Doc. No. 12), entered July 21, 2023.

knee issues. Transcript of Administrative Proceedings (Doc. No. 10; “Tr.” or
“administrative transcript”), filed July 14, 2023, at 98-99, 114, 127, 145, 274.

3

Prior to the filing of the applications at issue in this appeal, Plaintiff on
October 6, 2014 filed an application for DIB and on June 1, 2016 an application
for SSI. See Tr. at 76. Those applications were denied initially and upon
reconsideration. See Tr. at 76. Then, an Administrative Law Judge (“ALJ”)
issued a decision on September 23, 2016 finding Plaintiff was not disabled
through the date of the decision. Tr. at 76-86. Plaintiff requested review of the
decision and submitted a brief and some third-party correspondence in support
of the request. Tr. at 95-96. The Appeals Council denied Plaintiff’s request for
review. Tr. at 91-94. Plaintiff did not appeal this final determination.
Later, Plaintiff protectively filed the instant DIB and SSI applications on
March 14, 2018 and December 5, 2018 respectively, alleging a disability onset
date of January 1, 2014 in the DIB application and December 1, 1989 in the SSI
application. Tr. at 245-46 (DIB), 247-57 (SSI). 4 The applications were denied
initially, Tr. at 113-23, 124, 172-75 (DIB), 98-112, 125, 176-79 (SSI), and upon
reconsideration, Tr. at 144-58, 159, 180-86 (DIB), 126-43, 160, 187-93 (SSI).

3

Some of the cited documents are duplicated in the administrative transcript.
Citations are to the first time a document appears.
4
The DIB application was actually filed on March 15, 2018. Tr. at 245. The SSI
application was actually filed on December 20, 2018. Tr. at 247. The administrative transcript
contains protective filing date of March 14, 2018 for the DIB application and December 5, 2018
for the SSI application. Tr. at 114, 145 (DIB), 98, 127 (SSI).
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5

On July 16, 2020, an ALJ held a hearing, during which the ALJ heard
from Plaintiff, who was represented by counsel, and a vocational expert (“VE”).
See Tr. at 42-72. The ALJ issued a decision on July 24, 2020 finding Plaintiff
not disabled through the date of the decision. Tr. at 15-36. As part of the
decision, the ALJ denied Plaintiff’s request to reopen the prior-filed
applications. See Tr. at 16. Plaintiff sought review of the decision by the Appeals
Council and submitted a brief in support of the request. Tr. at 4-5 (Appeals
Council exhibit list and order), 239-41 (request for review), 335-36 (brief). On
December 9, 2020, the Appeals Council denied Plaintiff’s request for review, Tr.
at 1-3, making the ALJ’s decision the final decision of the Commissioner.
Plaintiff appealed the final decision to this Court on January 28, 2021.
Complaint (Doc. No. 1), Case No. 2:21-cv-75-JES-NPM. On December 10, 2021,
on motion of Defendant, the Court entered an Order reversing and remanding
the matter for further administrative proceedings. Tr. at 743-44; see Tr. at 745
(Judgment). In particular, Defendant was instructed to obtain testimony from
a VE “to clarify the effect of the assessed limitations on Plaintiff’s occupational
base,” and to ensure certain requirements were met with respect to the VE’s
testimony. Tr. at 743-44. On remand, the Appeals Council on February 27, 2022

5

The hearing was held via telephone, with Plaintiff’s consent, because of
extraordinary circumstances caused by the earlier stages of the COVID-19 pandemic. Tr. at
45, 331.
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entered an Order vacating the final decision and remanding the matter to an
ALJ consistent with the Court’s Order. Tr. at 750-51.
On June 22, 2022, the ALJ held a hearing, during which he heard from a
VE.

6

Tr. at 695-706. On July 21, 2022, the ALJ issued a Decision finding

Plaintiff not disabled through the date of the Decision. Tr. at 668-86. 7 Plaintiff
requested review of the decision by the Appeals Council and submitted written
exceptions to the Decision. Tr. at 621-22, 629, 636 (exhibit list and orders), 63864 (exceptions and attachments). On March 29, 2023, the Appeals Council
declined to assume jurisdiction, Tr. at 632-35. However, on April 14, 2023, the
Appeals Council set aside its March 29, 2023 determination, considered in
detail Plaintiff’s written exceptions to the ALJ’s Decision, and determined there
was no reversible error on the part of the ALJ. Tr. at 624-27. Then again, on
April 19, 2023, the Appeals Council set aside its April 14, 2023 determination
to decline jurisdiction, again considered in detail Plaintiff’s written exceptions
to the ALJ’s Decision, and determined there was no reversible error on the part

6

This hearing was also held via telephone with Plaintiff’s consent. Tr. at 698.
Plaintiff’s counsel was “satisfied with [Plaintiff’s] testimony” from the prior hearing “with
regard to functionality,” Tr. at 699, so the ALJ heard only from a VE at this hearing, Tr. at
699-705.
7
Two pages of the Decision are out of order in the administrative transcript. Page
two of the Decision (although accurately marked “Page 2”) appears before page one and was
mistakenly numbered for administrative transcript purposes as Tr. at 668. Page one appears
next and is mistakenly numbered Tr. at 669.
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of the ALJ. Tr. at 617-20. The ALJ’s Decision, therefore, became the final
decision of the Commissioner. Tr. at 618.
On May 15, 2023, Plaintiff commenced this action under 42 U.S.C. §§
405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1) seeking judicial
review of the Commissioner’s final decision.
On appeal, Plaintiff argues the ALJ erred in: 1) “not apply[ing] res
judicata” and “fail[ing] to associate with the present record all of the medical
evidence from the prior application[s]”; 2) “improperly fail[ing] to apply grid rule
201.10 to find [] Plaintiff disabled as of his 50th birthday”; 3) relying on the VE’s
testimony given the VE’s reliance on SkillTRAN and also the ALJ’s alleged
failure to make required step-five findings; and 4) assessing a residual
functional capacity (“RFC”) that did not mirror an assessment given at the
state-agency

level.

Plaintiff’s

Memorandum

in

Opposition

to

the

Commissioner’s Decision (Doc. No. 14; “Pl.’s Mem.”) filed August 4, 2023, at 12; see id. at 8-11 (first issue), 11-14 (second issue), 14-21 (third issue), 21-22
(fourth issue). On October 6, 2023, Defendant filed a Memorandum in Support
of the Commissioner’s Decision (Doc. No. 18; “Def.’s Mem.”), responding to
Plaintiff’s arguments. Then, Plaintiff on October 20, 2023 filed Plaintiff’s Reply
Brief (Doc. No. 20; “Reply”).
After a thorough review of the entire record and consideration of the
parties’ respective arguments, the undersigned finds that the Commissioner’s
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final decision is due to be reversed and remanded for reconsideration at step
five of whether Plaintiff can perform work that exists in significant numbers in
the national economy. On remand, reevaluation of this issue may impact the
Administration’s consideration of the remaining issues on appeal. For this
reason, the Court need not address the parties’ arguments on those issues. See
Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam)
(declining to address certain issues because they were likely to be reconsidered
on remand); Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913 F.2d
882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need
not be addressed when the case would be remanded on other issues).
II.

The ALJ’s Decision

When determining whether an individual is disabled, 8 an ALJ must
follow the five-step sequential inquiry set forth in the Code of Federal
Regulations (“Regulations”), determining as appropriate whether the claimant
(1) is currently employed or engaging in substantial gainful activity; (2) has a
severe impairment; (3) has an impairment or combination of impairments that
meets or medically equals one listed in the Regulations; (4) can perform past

8

“Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A).
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relevant work; and (5) retains the ability to perform any work in the national
economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7
F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,
357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of
persuasion through step four, and at step five, the burden shifts to the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 67386. At step one, the ALJ determined Plaintiff “has not engaged in substantial
gainful activity since January 1, 2014, the alleged onset date.” Tr. at 673
(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has
the following severe impairments: degenerative disc disease of the cervical and
lumbar spines, mild left shoulder degenerative changes, status-post remote
hernia

repair

with

residual

testicular

epididymitis,

attention

deficit

hyperactivity disorder (ADHD), neurocognitive disorder, anxiety, [and]
depression.” Tr. at 673 (emphasis and citation omitted). At step three, the ALJ
ascertained that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 674
(emphasis and citation omitted).
The ALJ determined that Plaintiff has the following RFC:
[Plaintiff can] lift/carry 20 pounds occasionally and 10 pounds
frequently; sit for six hours in an eight hour workday; stand and/or
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walk for six hours in an eight hour workday; occasional climbing of
ramps or stairs but no climbing of ladders, ropes, or scaffolds;
frequent balancing, stooping, kneeling and crouching; no crawling;
frequent overhead reaching with the left upper extremity; no
exposure to hazardous machinery or unprotected heights; able to
understand, remember, and carry out simple tasks while
maintaining attention and concentration for two hours at a time
before requiring a regularly scheduled break; low stress work
defined as having only occasional decision-making and only
occasional changes in the work setting; and occasional interaction
with coworkers, supervisors, and the public.
Tr. at 676 (emphasis omitted).
At step four, the ALJ found that Plaintiff “is unable to perform any past
relevant work” as a “Maintenance Worker.” Tr. at 684 (some emphasis and
citation omitted). At the fifth and final step of the sequential inquiry, after
considering Plaintiff’s age (“44 years old, which is defined as a younger
individual . . . on the alleged disability onset date” with a subsequent “changed
age category to closely approaching advanced age”), education (“limited
education”), work experience, and RFC, the ALJ found that “there are jobs that
exist in significant numbers in the national economy that [Plaintiff] can
perform,” Tr. at 684-85 (some emphasis omitted), such as “Marker,” “Router,”
and “Checker (I),” Tr. at 685. The ALJ concluded Plaintiff “has not been under
a disability . . . from January 1, 2014, through the date of th[e D]ecision.” Tr. at
686 (emphasis and citation omitted).

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III.

Standard of Review

This Court reviews the Commissioner’s final decision as to disability
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given
to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported
by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial
evidence is something ‘more than a mere scintilla, but less than a
preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial
evidence standard is met when there is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.
Berryhill, 587 U.S. 97, 103 (2019); Samuels v. Acting Comm’r of Soc. Sec., 959
F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court to
reweigh the evidence; rather, the entire record is reviewed to determine
whether “the decision reached is reasonable and supported by substantial
evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation
omitted). The decision reached by the Commissioner must be affirmed if it is
supported by substantial evidence—even if the evidence preponderates against
the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004) (per curiam).
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IV.

Discussion

Plaintiff contends the ALJ erred at step five in relying on the VE’s
testimony about the number of jobs available in the national economy. Pl.’s
Mem. at 14-21. According to Plaintiff, “the job numbers offered by the VE
appear to be for some larger groups of jobs, and otherwise appear to be
significantly overstated.” Id. at 16.
At step five in the sequential inquiry, “the ALJ must determine if there
is other work available in significant numbers in the national economy that the
claimant has the ability to perform.” Phillips, 357 F.3d at 1239. To make this
determination, the ALJ may pose a hypothetical question to a VE. See Wilson
v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (citing Wolfe v. Chater, 86
F.3d 1072, 1077-78 (11th Cir. 1996)); see also Zimmer v. Comm'r of Soc. Sec.,
211 F. App'x 819, 820 (11th Cir. 2006) (citing Jones v. Apfel, 190 F.3d 1224,
1229 (11th Cir.1999) (“An ALJ relies on the testimony of a [VE] to determine
what level of skill the claimant achieved in his [or her] past work, whether the
claimant has transferable skills, and whether the claimant can perform other
jobs.”)). “In order for a [VE]’s testimony to constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Wilson, 284 F.3d at 1227 (citing Jones, 190 F.3d at 1229). If
there are “apparent conflicts” between a VE’s testimony and the Dictionary of
Occupational Titles (“DOT”), the ALJ must identify them, “ask the VE about
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them, and explain how the conflict was resolved in the ALJ’s . . . [D]ecision.”
Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1365 (11th Cir. 2018); see
also SSR 00-4P, 2000 WL 1898704, at *2. The ALJ is required to “articulate
specific jobs” that exist in the national economy “that the claimant can perform,
and this finding must be supported by substantial evidence, not mere intuition
or conjecture.” Allen v. Sullivan, 880 F.2d 1200, 1202 (11th Cir. 1989) (citation
omitted).
Here, the ALJ asked the VE about the jobs that can be performed by an
individual with Plaintiff’s age, education, and ultimate RFC. See Tr. at 701-02.
The VE testified that Plaintiff can perform the jobs of “marker,” with
“approximately

300,000

in

the

national

economy”;

“router,”

with

“approximately 52,000 in the national economy”; and “checker I,” with “35,000
in the national economy.” Tr. at 701-02. The VE confirmed that her testimony
was consistent with the DOT. Tr. at 703. Then, Plaintiff’s counsel asked for the
“source of the job numbers,” to which the VE replied that she “use[s]
SkillTRAN.” Tr. at 704. In the written Decision, the ALJ adopted the ALJ’s
testimony, finding that Plaintiff can perform “representative occupations such
as” “Marker,” “Router,” and “Checker (I).” Tr. at 685. The ALJ did articulate the
specific number of jobs available for each position as testified to by the VE, but
the ALJ in making the ultimate step five findings, determined generally that

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Plaintiff “is capable of making a successful adjustment to other work that exists
in significant numbers in the national economy.” Tr. at 686.
Challenging these findings, Plaintiff relies heavily on Goode v. Comm’r of
Soc. Sec., 966 F.3d 1277, 1282 (11th Cir. 2020) and Viverette v. Comm’r of Soc.
Sec., 13 F.4th 1309, 1318 (11th Cir. 2021). According to Plaintiff, the ALJ’s
Decision runs afoul of Goode because, similar to the situation in Goode, the
“Checker I” jobs belong in SkillTRAN to a larger group of 33 different
occupations: collectively, those 33 occupations account for 54,760 jobs, but the
Checker I position only accounts for about 4,604 jobs. Pl.’s Mem. at 16-17 (citing
Tr. at 852). Thus, Plaintiff argues the VE’s testimony that 35,000 jobs are
available is not accurate or supported. Id. Plaintiff points out other large
discrepancies for the remaining two jobs (300,000 marker jobs as stated by the
VE versus 136,785 as actually stated by SkillTRAN; 52,000 router jobs as stated
by the VE versus 25,152 as actually stated by SkillTRAN). Id. at 18.
In Goode, the Eleventh Circuit was faced with a similar issue as the one
presented here with the Checker I position: a standard occupational
classification code relied upon by a VE that grouped many different DOT
positions into one for purposes of job employment numbers. Goode, 966 F.3d at
1283-84. The Eleventh Circuit held that a VE’s failure to take a step of
“approximat[ing] how many of those are the specific job or jobs that [Plaintiff]
can perform” was error necessitating remand. Id. at 1284-85. Later in Viverette,
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when an ALJ “apparently treated . . . cumulatively” three different jobs “for
purposes of the ‘significant numbers’ determination,” the Eleventh Circuit was
“hesitant to make any factual determinations about whether [two untainted
jobs] exist in significant numbers in the national economy” after one job was
removed for error in the VE’s testimony. Viverette, 13 F.4th at 1318.
Here, the matter must be reversed and remanded under Goode and
Viverette. The VE testified that she relied upon SkillTRAN for the job numbers,
but the actual SkillTRAN numbers—which are included in the administrative
transcript 9—are not even close to the numbers about which the VE testified.
Compare Tr. at 701-04, with Tr. at 852-53. In now defending the
Administration’s final decision, Defendant points out that the Eleventh Circuit
approves the use of the SkillTRAN software, but Defendant fails to address the
great discrepancies between the VE’s testimony and the printouts of the
SkillTRAN software that were submitted at the administrative level. See Def.’s
Mem. at 18-19. Moreover, Defendant fails to address Viverette at all. See id. at
15-19.

9

The ALJ noted that Plaintiff had not, at the time of the Decision, submitted any
“evidence demonstrating that . . . [the VE’s] testimony concerning th[e] jobs or their prevalence
in the national economy is inaccurate.” Tr. at 670. In requesting review by the Appeals Council
however, Plaintiff’s counsel specifically challenged the findings on numbers of jobs as
inaccurate and submitted a printout of the relevant jobs from SkillTRAN Job Browser Pro. Tr.
at 828, 852-53. The Appeals Council ultimately rejected this assertion without analysis of the
alleged inconsistency. Tr. at 617-20.
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The Checker I job, much like the job at issue in Goode, appears to be
grouped together with multiple other jobs without any extrapolation by the VE
as to actual numbers available for just the Checker I job. This is error, and it is
not harmless. Although the ALJ wrote about the specific number of jobs
available for each position, the ALJ did not determine whether these jobs, singly
or in combination, satisfy the “significant numbers in the national economy”
requirement. Cf. Gonzalez v. Comm’r of Soc. Sec., No. 8:22-cv-1403-DNF, 2024
WL 489494, at *7 (M.D. Fla. Feb. 8, 2024) (quotations omitted) (distinguishing
Viverette when an ALJ found “each of the proffered jobs, individually, exists in
significant numbers in the national economy, and expressly considered the
available number of jobs for the proffered positions both singly and in
combination”). Because the Court may not substitute its judgment for that of
the ALJ to determine whether the jobs in this instance existed in significant
numbers in the national economy, reversal and remand is required. See, e.g.,
Thomson v. Comm’r of Soc. Sec., No. 6:23-cv-1758-DNF, 2024 WL 3423008, at
*4 (M.D. Fla. July 15, 2024) (reversing and remanding pursuant to Viverette
when the ALJ did not make a finding about whether two remaining jobs “taken
singly or in combination, existed in significant numbers in the national
economy”); Wickersham v. Comm’r of Soc. Sec., No. 8:22-cv-1403-DNF, 2023 WL

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5970918, at *5 (M.D. Fla. Sept. 14, 2023) (same).

10

Moreover, even if the error

on the Goode issue were deemed harmless, the large and unexplained
discrepancies between the VE’s testimony and the actual data provided with
respect to all the jobs at issue necessitate further consideration and
explanation. Judicial review is frustrated, and the Court is unable to find that
the ALJ’s Decision is supported by substantial evidence.
V.

Conclusion

In light of the foregoing, it is
ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), REVERSING the Commissioner’s final
decision and REMANDING this matter with the following instructions:
(A)

Reconsider at step five whether jobs exist in significant numbers in

the national economy that Plaintiff can perform, specifically resolving the
apparent inconsistency between the VE’s testimony and actual
SkillTRAN data;

10

There are some differences in opinion among the Judges of this Court about
whether remand is required when the record does not demonstrate that a large percentage of
jobs are affected by error on the part of the ALJ (as was the case in Viverette). See, e.g.,
Denmark v. Kijakazi, No. 8:20-cv-2852-AEP, 2022 WL 831903, at *7-8 (M.D. Fla. Mar. 21,
2022) (finding remand is not required when “a small percentage” of jobs are affected by error
and recognizing decisions to the contrary in the Middle District of Florida). Here, given the
inconsistencies between the VE testimony and the actual SkillTRAN data cited by Plaintiff
across all three jobs, remand is required for further development and findings.
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(B)

If appropriate, address Plaintiff’s other arguments in this appeal;

and
(C)

Take such other action as may be necessary to resolve this claim

properly.
2.

The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on August 29, 2024.

kaw
Copies to:
Counsel of Record

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