stating “the ALJ must consider a claimant’s impairments in combination” (citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984))
How later courts described this case
- stating “the ALJ must consider a claimant’s impairments in combination” (citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984))
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TIFFANY NICOLE LUCK VALLS,
Plaintiff,
v. Case No. 3:20-cv-339-JRK
KILOLO KIJAKAZI,1 Acting
Commissioner of Social Security,
Defendant.
/
OPINION AND ORDER2
I. Status
Tiffany Nicole Luck Valls (“Plaintiff”) is appealing the Commissioner of
the Social Security Administration’s (“SSA(’s)”) final decision denying her
claims for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). Plaintiff’s alleged inability to work is the result of a brain injury,
shoulder and back problems (including sciatica issues and herniated discs),
Rheumatoid arthritis, various broken bones, headaches, depression, and an
1 Kilolo Kijakazi recently became the Acting Commissioner of Social Security.
Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted
for Andrew Saul 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. 15), filed August 21, 2020; Reference Order (Doc. No. 17), entered August 24, 2020.
anxiety disorder. See Transcript of Administrative Proceedings (Doc. No. 16;
“Tr.” or “administrative transcript”), filed August 21, 2020, at 115, 129, 143,
162, 386.
On November 29, 2016, Plaintiff filed an application for DIB. Tr. at 314-
17. On December 8, 2016, Plaintiff filed an application for SSI. Tr. at 318-25.3
In both applications, Plaintiff alleged a disability onset date of March 29, 2016.
Tr. at 314, 318. The applications were denied initially, Tr. at 113, 114-26, 189-
92 (DIB); Tr. at 127, 128-40, 193-96 (SSI), and upon reconsideration, Tr. at 141,
142-59, 198-203 (DIB); Tr. at 160, 161-78, 204-09 (SSI).4
On February 7, 2019, an Administrative Law Judge (“ALJ”) held a
hearing, during which he heard from Plaintiff, who was represented by counsel,
and a vocational expert (“VE”). See Tr. at 51-76. On May 29, 2019, the ALJ
issued a Decision finding Plaintiff not disabled through the date of the Decision.
See Tr. at 24-38.
Thereafter, Plaintiff requested review of the Decision by the Appeals
Council and submitted additional evidence in the form of a brief authored by
3 Although actually completed on November 29, 2016 and December 8, 2016,
respectively, see Tr. at 314, 318, the protective filing date of both of the applications is listed
elsewhere in the administrative transcript as November 28, 2016, see, e.g., Tr. at 114, 128,
143, 162.
4 The administrative transcript also contains denials of DIB and SSI claims that
were filed on June 10, 2016, with a protective filing date of June 6, 2016. See Tr. at 91, 92-
101, 179-82 (DIB); Tr. at 102, 103-12, 183-86 (SSI); see also Tr. at 312-13 (DIB application
summary dated June 10, 2016).
Plaintiff’s representative. Tr. at 4-5, 10-14. On February 3, 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. On April 2, 2020, 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 challenges: 1) the accuracy of the ALJ’s
interpretation of the VE’s testimony about the jobs Plaintiff can perform; and
2) the ALJ’s assignment of less than full weight to Plaintiff’s treating sources’
opinions. Plaintiff’s Memorandum of Law (Doc. No. 20; “Pl.’s Mem.”), filed
October 23, 2020, at 20-21 (first argument), 21-25 (second argument). On
December 21, 2020, Defendant filed a Memorandum in Support of the
Commissioner’s Decision (Doc. No. 21; “Def.’s Mem.”) addressing Plaintiff’s
arguments.
After a thorough review of the entire record and consideration of the
parties’ respective memoranda, the undersigned finds that the Commissioner’s
final decision is due to be reversed and remanded for further proceedings
because the VE’s testimony is not clear enough to provide substantial evidence
upon which the ALJ could base the findings about the jobs Plaintiff can perform.
The matter must be remanded for the VE’s testimony to be clarified. Also on
remand, the SSA shall address Plaintiff’s remaining argument as appropriate.
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,5 an ALJ must
follow the five-step sequential inquiry set forth in the 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 relevant work; and (5) retains the ability to
perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; 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).
5 “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).
Here, the ALJ followed the five-step inquiry. See Tr. at 27-38. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful
activity since March 29, 2016, the alleged onset date.” Tr. at 27 (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 spine,
rheumatoid arthritis, a major depressive disorder and anxiety.” Tr. at 27
(emphasis and citation omitted). At step three, the ALJ found 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 27 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following residual functional
capacity (“RFC”):
[Plaintiff can] perform sedentary work as defined in 20 [C.F.R.
§§] 404.1567(a) and 416.967(a) except she requires a 30 minute
sit/stand option. She can occasionally climb ramps and stairs. She
can occasionally stoop. She must avoid climbing ladders, ropes or
scaffolds. She must avoid jobs requiring her to balance, kneel,
crouch, and crawl. She can occasionally reach overhead and can
perform no more than frequent handling and fingering bilaterally.
She must avoid concentrated exposure to work around moving
mechanical parts or work at unprotected heights. The individual
requires a handheld assistive device to reach the workstation but
does not require it at the workstation. She is further limited to
performing simple tasks with little variation that take a short time
to learn (up to and including 30 days). She is limited to jobs having
a specific vocational preparation (SVP) level of 1 or 2. She is able to
deal with the changes in a routine work setting. She is able to relate
adequately to supervisors. She can occasionally interact with
coworkers and the general public.
Tr. at 29 (emphasis omitted).
At step four, the ALJ relied on the testimony of the VE and found that
Plaintiff “is unable to perform any past relevant work” as a “Newspaper
carrier,” an “Office Manager,” and a “Construction Inspector (Superintendent).”
Tr. at 36 (some emphasis and citation omitted). At the fifth and final step of the
sequential inquiry, after considering Plaintiff’s age (“32 years old . . . on the
alleged disability onset date”), education (“at least a high school education”),
work experience, and RFC, the ALJ again relied on the VE’s testimony and
found that “there are jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform,” Tr. at 36-37 (emphasis and citation
omitted), such as “Document Preparer,” “Addresser,” and “Cutter and Paster,”
Tr. at 37. The ALJ concluded Plaintiff “has not been under a disability . . . from
March 29, 2016, through the date of th[e D]ecision.” Tr. at 38 (emphasis and
citation omitted).
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, 139 S. Ct. 1148, 1154 (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).
IV. Discussion
Plaintiff argues the ALJ erred in relying on the VE’s testimony about the
jobs she can perform. Pl.’s Mem. at 20-21. According to Plaintiff, when read as
a whole, the VE’s testimony does not support the ALJ’s step-five findings
because of “confusion as to what the ALJ’s hypothetical meant by a ‘30-minute
sit-stand option.’” Id. (quoting Tr. at 71 (hearing hypothetical)). Responding,
Defendant argues the ALJ “reasonably concluded” that the VE testified a
person with the required sit-stand option would be able to perform the jobs
identified. Def.’s Mem. at 7; see id. at 4-7.
An ALJ poses a hypothetical question to a VE as part of the step-five
determination of whether the claimant can obtain work in the national
economy. See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). When
the ALJ relies on the testimony of a VE, “the key inquiry shifts” from the RFC
assessment in the ALJ’s written decision to the adequacy of the RFC description
contained in the hypothetical posed to the VE. Brunson v. Astrue, 850 F. Supp.
2d 1293, 1303 (M.D. Fla. 2011) (quoting Corbitt v. Astrue, No. 3:07-cv-518-HTS,
2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008) (unpublished)).
In determining an individual’s RFC and later posing a hypothetical to a
VE that includes the RFC, the ALJ “must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not ‘severe.’”
SSR 96-8P, 1996 WL 374184, at *5; see also 20 C.F.R. § 404.1545(a)(2); Swindle
v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating “the ALJ must consider
a claimant’s impairments in combination” (citing 20 C.F.R. § 404.1545; Reeves
v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984))). “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 v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)). While the
hypothetical question must include all of the claimant’s impairments, it need
not include impairments properly rejected by the ALJ. See McSwain v. Bowen,
814 F.2d 617, 620 n.1 (11th Cir. 1987).
An “ALJ has a basic duty to develop a full and fair record.” Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (citing Brown v.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (per curiam)). This requires an ALJ
to “scrupulously and conscientiously probe into, inquire of, and explore for all
relevant facts.” Id. (quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
1981)). If “the record reveals evidentiary gaps which result in unfairness or
clear prejudice,” then remand is appropriate. Id. (quoting Brown, 44 F.3d at
935).
Here, the ALJ posed the following hypothetical to the VE:
Q . . . If we start the first hypothetical with an
individual the claimant’s age, education, the past work
as you described it for us. An individual limited to work
at the sedentary exertional level with a 30-minute sit-
stand option, with the occasional [sic] of ramps and
stairs, no climbing of ladders, ropes, and scaffolds, no
balancing, occasional stooping, but no kneel, crouch, or
crawl. Only occasional overhead reaching, and no more
than frequent handling and fingering on both sides.
They should not have concentrated exposure to work
around moving mechanical parts or work at
unprotected heights. They would also require a
handheld assistive device to reach the workstation, but
would not require it when they were at the workstation.
From a mental standpoint, they would be limited to
performing simple tasks with little variation that take
short period of time [sic] to learn, and that would be up
to and including 30 days, indicating they are jobs with
a specific vocational preparation or SVP level of 1 or 2.
Able to deal with the changes at a routine work setting.
Socially would relate adequately to supervisors with
only occasional coworker and general public contact.
Sorry. Would that individual be able to do the past
work?
A No, sir.
Q Would there be other positions that the
individual would be able to perform?
A Yes, your honor.
Tr. at 71-72. The VE went on to describe the jobs of “document preparer,”
“addresser,” and “cutter and paster.” Tr. at 72. The ALJ then posed a second
hypothetical, not relevant here, about what would happen if the individual
spent twenty percent of the workday off-task, and the VE testified the
individual would not be able to maintain competitive employment. Tr. at 73.
When the ALJ asked the VE if there “are any conflicts between the
testimony and Dictionary of Occupational Titles,” the VE responded, “No
conflict, sir, however, testimony related to time off-task, overhead reach, and
attendance would all be based on professional experience.” Tr. at 73. The ALJ
then clarified, “Okay. And also for the sit-stand and the cane use?” Tr. at 73. To
which the VE responded, “Oh, yes, sir, thank you. And the assistive device as
well.” Tr. at 74.
At this point, Plaintiff’s counsel asked the following question regarding
the 30-minute sit-stand option:
Atty: . . . I just wanted to clarify, . . . the 30-minute sit-
stand option that we discussed in the first hypothetical,
that would be an individual who is sitting for 30
minutes and then standing for 30 minutes, and that
individual - - and that, like, throughout the day, that
individual would be able to perform those jobs?
Tr. at 74. The VE responded: “Oh, okay. At that point, that would through [sic]
them off-task were it would be - - I’m sure it would exceed the 15 percent off-
task so the individual would not be able to perform the job.” Tr. at 74.
Plaintiff’s counsel then turned to the ALJ and stated, “Okay. Maybe I
need to find out from you, judge, is that - - I don’t know what - - perhaps our - -
all of our impressions of sit-stand option are a little bit different - -” Tr. at 74.
The following exchange then occurred between the ALJ, Plaintiff’s counsel, and
the VE:
ALJ: Right, and that’s my fault for - - at the 30 minute
break, they would be allowed a five-minute stretch
break at the workstation to - - for ease.
VE: Okay. My apologies. [INAUDIBLE] positioning,
and then go back to sitting because it is primarily a
sedentary position.
ATTY: Sure.
VE: So, would not be able to maintain the - - of course,
it would through [sic] the individual off-task without an
accommodation of the writing desk or as such.
ATTY: Okay. All right. Thank you.
ALJ: Oh, okay.
Tr. at 74-75.
The transcription of the hearing is not the best quality. The parties agree
that the word “through” is likely an error, and the VE likely said “throw” when
“through” appears. See Pl.’s Mem. at 21; Def.’s Mem. at 6 n.1. In addition, the
inaudibility of part of the VE’s testimony about the critical issue adds to the
challenge of deciphering it.
At the end of the day, the undersigned cannot determine from the VE’s
testimony whether the VE intended to testify that a 30-minute sit-stand option,
as later clarified by the ALJ, would preclude the jobs that the VE had previously
identified. The VE’s ultimate phrases of “would not be able to maintain the - -”
and “it would [throw] the individual off-task without an accommodation of the
writing desk or as such,” Tr. at 75, suggest that the VE intended to testify that
such a sit-stand option would not allow the individual to perform the jobs
identified, at least without some sort of accommodation that was not adequately
explained. But the ALJ obviously interpreted the VE’s testimony to allow
Plaintiff to perform the jobs identified, see Tr. at 37-38, without explaining how
he came to that interpretation in light of the vagueness of the VE’s testimony.
Without more explanation from the VE and the ALJ, the record is not complete,
and the ALJ’s step-five findings cannot be supported by substantial evidence.
The ALJ therefore abrogated the duty to develop a full and fair record on this
issue, and clear prejudice has resulted. The matter must be remanded for
clarification of the VE’s testimony.
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), and pursuant to § 1383(c)(3), REVERSING
the Commissioner’s final decision and REMANDING this matter with the
following instructions:
(A) Fully develop the record as to the VE’s testimony about the jobs
Plaintiff can perform;
(B) If appropriate, address the other issue raised by Plaintiff in this
appeal; and
(C) Take such other action as may be necessary to resolve these claims
properly.
2. The Clerk is further directed to close the file.
3. In the event benefits are awarded on remand, Plaintiff’s counsel
shall ensure that any § 406(b) fee application be filed within the parameters set
forth by the Order entered in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures
for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)).
DONE AND ORDERED in Jacksonville, Florida on September 28, 2021.
Vertes □□□
JAMES R. KLINDT
United States Magistrate Judge
kaw
Copies:
Counsel of Record
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