Conrad v. Commissioner of Social Security

Filing 16

OPINION AND ORDER. It is ORDERED that the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g), and the clerk is directed to enter judgment in Conrad's favor, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Nicholas P. Mizell on 3/10/2025. (TLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CRYSTAL MARIE CONRAD,
Plaintiff,
v.

2:23-cv-900-NPM

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Crystal Marie Conrad seeks judicial review of a denial of Social
Security disability benefits. The Commissioner of the Social Security
Administration filed the transcript of the proceedings (Doc. 8),1 Conrad filed an
opening brief (Doc. 12), and the Commissioner responded (Doc. 13). As discussed
in this opinion and order, the decision of the Commissioner is reversed and
remanded.
I.

Eligibility for Disability Benefits and the Administration’s Decision
A.

Eligibility

The Social Security Act and related regulations define disability as the
inability to do any substantial gainful activity by reason of one or more medically
determinable physical or mental impairments that can be expected to result in death

1

Cited as “Tr.” followed by the appropriate page number.

or that have lasted or can be expected to last for a continuous period of not less than
twelve months. 2 Depending on its nature and severity, an impairment limits
exertional abilities like walking or lifting, nonexertional abilities like seeing or
hearing, tolerances for workplace conditions like noise or fumes, or aptitudes
necessary to do most jobs such as using judgment or dealing with people.3 And when
functional limitations preclude both a return to past work and doing any other work
sufficiently available in the national economy (or an impairment meets or equals the
severity criteria for a disabling impairment as defined in the regulatory “Listing of
Impairments”), the person is disabled for purposes of the Act.4
B.

Factual and procedural history

On September 15, 2020, Conrad applied for disability insurance benefits. (Tr.
163, 210, 216). She asserted an onset date of January 9, 2019, alleging disability due
to the following: bipolar, depression, posttraumatic stress disorder (PTSD), and back
and neck injury. (Tr. 165, 169). As of the alleged onset date, Conrad was 25 years
old and had a high school education. (Tr. 165, 170). Conrad previously worked as a

2

See 42 U.S.C. §§ 416(i), 423(d), 1382c(a)(3); 20 C.F.R. § 404.1505.

3

See 20 C.F.R. §§ 404.1513(a)(2)(i)-(iv) (discussing the various categories of work-related
abilities), 404.1522(b) (providing examples of abilities and aptitudes necessary to do most jobs),
404.1545(b)-(d) (discussing physical, mental, and other abilities that may be affected by an
impairment), 404.1594(b)(4) (defining functional capacity to do basic work activities).
4

See 20 C.F.R. § 404.1511.

2

medical records clerk and receptionist. (Tr. 27, 170).
On behalf of the administration, a state agency 5 reviewed and denied
Conrad’s application initially on December 23, 2020, and upon reconsideration on
May 6, 2022. (Tr. 90, 95). At Conrad’s request, Administrative Law Judge (ALJ)
Ryan Johannes held a hearing on February 9, 2023. (Tr. 37-63). The ALJ issued an
unfavorable decision finding Conrad not disabled. (Tr. 14-33). Conrad’s timely
request for review by the administration’s Appeals Council was denied. (Tr. 1-3).
Conrad then brought the matter to this court, and the case is ripe for judicial review.
C.

The ALJ’s decision

The ALJ must perform a five-step sequential evaluation to determine if a
claimant is disabled. 20 C.F.R. § 404.1520(a)(1). This five-step process determines:
(1) whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform [her] past
relevant work; and (5) if not, whether, in light of [her] age, education, and
work experience, the claimant can perform other work that exists in
significant numbers in the national economy.

Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (internal
quotation omitted); see also 20 C.F.R. § 404.1520(a)(4).

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In Florida, a federally funded state agency develops evidence and makes the initial determination
whether a claimant is disabled. See 42 U.S.C. § 421(a); 20 C.F.R. § 404.1503(a).

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The governing regulations provide that the Social Security Administration
conducts this “administrative review process in an informal, non-adversarial
manner.” 20 C.F.R. § 404.900(b). Unlike judicial proceedings, Social Security
Administration hearings “are inquisitorial rather than adversarial.” Washington v.
Comm’r of Soc. Sec., 906 F.3d 1353, 1364 (11th Cir. 2018) (quoting Sims v. Apfel,
530 U.S. 103, 111 (2000) (plurality opinion)). “Because Social Security hearings
basically are inquisitorial in nature, ‘[i]t is the ALJ’s duty to investigate the facts and
develop the arguments both for and against granting benefits.’” Id. Indeed, “at the
hearing stage, the commissioner does not have a representative that appears ‘before
the ALJ to oppose the claim for benefits.’” Id. (quoting Crawford & Co. v. Apfel,
235 F.3d 1298, 1304 (11th Cir. 2000)). “Thus, ‘the ALJ has a basic duty to develop
a full and fair record. This is an onerous task, as the ALJ must scrupulously and
conscientiously probe into, inquire of, and explore for all relevant facts.’” Id.
(quoting Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015)).
Nonetheless, while the claimant is relieved of the burden of production during
step five as to whether there are enough jobs someone like the claimant can perform,
the claimant otherwise has the burdens of production and persuasion throughout the
process. See 20 C.F.R. § 404.1512 (providing that the claimant must prove
disability); see also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (noting
the regulations “place a very heavy burden on the claimant to demonstrate both a

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qualifying disability and an inability to perform past relevant work”). In short, the
“overall burden of demonstrating the existence of a disability as defined by the
Social Security Act unquestionably rests with the claimant.” Washington, 906 F.3d
at 1359 (quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).
At step one of the evaluation, the ALJ found Conrad had not engaged in
substantial gainful activity since January 9, 2019, the alleged onset date. (Tr. 19). At
step two, the ALJ characterized Conrad’s severe impairments as: lumbar
degenerative disc disease; cervical degenerative disc disease; and migraines. Id. At
step three, the ALJ determined Conrad did not have an impairment or combination
of impairments that met or medically equaled the severity of an agency-listed
impairment. (Tr. 21).
As a predicate to step four, the ALJ arrived at the following RFC:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except occasional climbing stairs and ramps;
never climbing ladders and scaffolds; frequent balancing; occasional
stooping; frequent kneeling or crouching; never crawling; frequent handling
or fingering; avoid concentrated exposure to vibration; avoid all exposure to
moving mechanical part and unprotected heights; and work can be performed
sitting or standing alternatively every thirty minutes provided that they are
not off work 10% of the work period.

(Tr. 23). At step four, the ALJ found Conrad unable to perform her past relevant
work because the functional demands exceeded her RFC. (Tr. 27-28). At step five,
the ALJ found Conrad could perform other work that exists in significant numbers
in the national economy. (Tr. 28). In support, a vocational expert opined during the

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ALJ hearing that three occupations represent the kinds of jobs that an individual of
Conrad’s age, education, work experience, and RFC can perform:
• Marker (DOT# 209.587-034); light; SVP 2; with 53,000 positions in the
national economy;
• Garment Sorter (DOT# 222.687-014); light; SVP 2; with 23,000 positions
in the national economy;
• Classifier (DOT# 361.687-014); light; SVP 2; with 55,000 positions in
the national economy.

(Tr. 28).6 Thus, for purposes of the Act, the ALJ concluded Conrad was not disabled
from January 9, 2019, the alleged onset date, through February 27, 2023, the date of
decision. (Tr. 29).
II.

Analysis
Conrad’s appeal presents several issues, but one requires remand—the ALJ’s

failure to resolve the apparent conflict between the RFC’s stand/walk limitation and
the stand/walk demands of the occupations the vocational expert offered as examples
of the work Conrad could perform.

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The DOT numbers refer to the Dictionary of Occupational Titles and its detailed explanations
concerning each occupation’s requirements. These descriptions include exertion and skill levels.
Exertion refers to the work—in a purely physical sense—that the job requires, and it is divided
into five categories: sedentary, light, medium, heavy, and very heavy. Skill refers to the time it
takes—during or before a job, such as prior experience or education—to develop necessary
abilities, and it is divided into three categories: unskilled, semiskilled, and skilled. The “SVP”
(Specific Vocational Preparation) provides further subdivision of the three skill categories into
nine levels: SVP 1 and 2 are unskilled; SVP 3 and 4 are semiskilled; and SVP 5 through 9 are
skilled.

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A.

The ALJ’s duty to resolve apparent conflicts

ALJs have an affirmative duty to identify and resolve apparent conflicts
between a claimant’s limitations and the demands of occupations—as defined in the
DOT—that a vocational expert offers as examples of the work that a claimant can
perform. Washington, 906 F.3d at 1356. “During or after the hearing, the ALJ is
expected to take notice of apparent conflicts, even when they are not identified by a
party, and resolve them.” Id. at 1363. And whenever a conflict is apparent, the ALJ
must also ask the vocational expert about it. This involves more than simply asking
the expert to confirm no conflict, but to provide a reasonable explanation for any
apparent discrepancy. See id. Finally, the ALJ’s decision must detail how the conflict
was resolved. An ALJ’s failure to fully discharge this duty prevents the expert’s
contradicted opinion from serving as substantial evidence. See id. at 1356.
B.

The ALJ’s failure to resolve an apparent conflict

During the hearing, the ALJ asked the vocational expert to opine about the
number of available jobs in the national economy for someone of Conrad’s age,
education, and work experience and limited to, among other things, sitting or
standing alternatively, every thirty minutes provided they are not off work 10% of
the work period. (Tr. 60). Opining that such jobs existed in significant numbers, the
expert referred to the occupations of marker, garment sorter, and classifier as
examples. (Tr. 60-61). The ALJ asked the expert whether there were any conflicts

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between this opinion testimony and the demands of these occupations as described
in the DOT. (Tr. 61). The expert replied:
No conflicts, Your Honor, with the exception of the intervals of sitting and
standing every thirty minutes, the on-task rate, and the absenteeism, all
would be based on my education and experience in the vocational field.

Id. Nevertheless, the ALJ did not ask the expert to provide a reasonable explanation
for the discrepancy between these occupations as “light work” and Conrad’s
limitation of alternating between sitting and standing every thirty minutes, i.e.,
standing for four hours and sitting for four hours in an 8-hour day.
As we reasoned in Horne v. Commissioner of Social Security, No. 2:20-cv181-JLB-MRM, 2021 WL 3023679 (M.D. Fla. June 28, 2021), report and
recommendation adopted, 2021 WL 3022727 (July 16, 2021), light work generally
requires an ability to walk for about six hours a day, because—by definition—light
work involves carrying up to ten pounds frequently. Id. at *14 (citing SSR 83-10,
1983 WL 31251, at *6 (S.S.A. 1983)). Indeed, the governing regulations explain that
light work “requires a good deal of walking or standing ….” 20 C.F.R.
§ 404.1567(b). And given the ALJ’s failure to explore this issue with the vocational
expert, we must reverse and remand for a proper resolution of this conflict. See
Horne, 2021 WL 3022727 at *1; see also, Hayer v. Comm’r of Soc. Sec., No. 2:21cv-436-SPC-NPM, 2022 WL 3567358, *4 (M.D. Fla. Aug. 3, 2022), report and
recommendation adopted, 2022 WL 3544374 (Aug. 18, 2022) (agreeing with Horne

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that ALJ failed to resolve an apparent conflict between light-work jobs and a
stand/walk limitation of four hours in the RFC); Knapp v. Kijakazi, No. CA 21-0394MU, 2022 WL 1019988, *6 (S.D. Ala. Apr. 5, 2022) (same).
III.

Conclusion
The ALJ relied on opinion testimony from a vocational expert without

properly resolving an apparent conflict between the testimony and the DOT. This
constitutes reversible error. See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353,
1356 (11th Cir. 2018). On remand, any issues relating to the claim may be considered
by the Appeals Council or administrative law judge whether or not they were
previously raised in the administrative proceedings. See 20 C.F.R. § 404.983(a).
Accordingly, the decision of the Commissioner is REVERSED and REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g), and the clerk is directed to enter
judgment in Conrad’s favor.
ORDERED on March 10, 2025

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