Brock v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SUZANNE BROCK,

Plaintiff,

v. Case No.: 2:22-cv-368-KCD

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

ORDER

Plaintiff Suzanne Brock sues under 42 U.S.C. §§ 405(g) and 1383(c)(3)

for judicial review of the Commissioner of Social Security’s decision denying

her application for disability insurance benefits. (Doc. 1.)1 For the reasons

below, the Commission’s decision is affirmed.

I. Background

The procedural history, administrative record, and law are summarized

in the parties’ briefs (Doc. 19, Doc. 22) and is not fully repeated here. In short,

Brock filed for disability insurance benefits claiming she could not work

because of atrial fibrillation, depression, and temporomandibular joint

1 Unless otherwise indicated, all internal quotation marks, citations, and alterations have

been omitted in this and later citations.

dysfunction. (Tr. 17, 207.) After her application was denied, Brock sought

review by an administrative law judge (“ALJ”). (Tr. 11.)

Following a hearing, the ALJ agreed that Brock was not disabled.

(Tr. 12, 20.) To make this determination, the ALJ used the multi-step

evaluation process established by the Commissioner. See 20 C.F.R. §

404.1520(a).2 The ALJ found that although several of Brock’s impairments

qualified as severe, she retained the residual functional capacity (“RFC”) to

perform less than the full range of light work with restrictions:

[She can] occasionally lift and carry up to 20 pounds and

frequently lift and carry up to 10 pounds. She can sit for six

hours total in an eight-hour workday and stand and/or

walk for six hours total in an eight-hour workday. Further,

the claimant can occasionally climb stairs and ramps. She

can never climb ladders or scaffolds. Additionally, the

claimant can occasionally balance, stoop, kneel, crouch,

and crawl. Finally, she must avoid all moving mechanical

parts and unprotected heights.

(Tr. 16.) After considering the RFC and other evidence, including vocational

expert testimony, the ALJ ultimately concluded that Brock could perform her

2 An individual claiming Social Security disability benefits must prove that she is

disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Social

Security Regulations outline a five-step, sequential evaluation process used to

determine whether a claimant is disabled: (1) whether the claimant is currently

engaged in substantial gainful activity; (2) whether the claimant has a severe

impairment or combination of impairments; (3) whether the impairment meets or

equals the severity of the specified impairments in the Listing of Impairments; (4)

based on a residual functional capacity assessment, whether the claimant can

perform any of his or her past relevant work despite the impairment; and (5) whether

there are significant numbers of jobs in the national economy that the claimant can

perform given the claimant’s RFC, age, education, and work experience.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

past relevant work as a real estate agent, audit clerk, and real estate clerk.

(Tr. 22.) Thus, Brock was not disabled as that term is defined in this context.

(Tr. 22.)

Brock further exhausted her administrative remedies, and this lawsuit

timely followed. (Doc. 19 at 2.)

II. Standard of Review

Review of the Commissioner’s (and, by extension, the ALJ’s) decision

denying benefits is limited to whether substantial evidence supports the

factual findings and whether the correct legal standards were applied. 42

U.S.C. § 405(g); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002). Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,

139 S. Ct. 1148, 1154 (2019). It is more than a mere scintilla but less than a

preponderance. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The

Supreme Court recently explained, “whatever the meaning of ‘substantial’ in

other contexts, the threshold for such evidentiary sufficiency is not high.”

Biestek, 139 S. Ct. at 1154.

When determining whether the ALJ’s decision is supported by

substantial evidence, the court must view the record as a whole, considering

evidence favorable and unfavorable to the Commissioner. Foote v. Chater, 67

F.3d 1553, 1560 (11th Cir. 1995). The court may not reweigh the evidence or

substitute its judgment for that of the Commissioner. And even if the evidence

preponderates against the Commissioner’s decision, the reviewing court must

affirm if the decision is supported by substantial evidence. Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Finally, “[u]nder a substantial

evidence standard of review, [the claimant] must do more than point to

evidence in the record that supports [her] position; [she] must show the

absence of substantial evidence supporting the ALJ’s conclusion.” Sims v.

Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017).

III. Analysis

Brock argues the ALJ’s conclusion was wrong in three ways. First, she

claims the ALJ wrongly “failed to include mental limitations in the residual

functional capacity (‘RFC’) assessment.” (Doc. 19 at 1.) Next, she says

substantial evidence does not support the ALJ’s decision because he ignored

the combined effects of stress and atrial fibrillation on her RFC. (Id.) And

finally, according to Brock, the ALJ erred by concluding she could perform past

relevant work. (Id.) The Court addresses each issue in turn.

A. Mental Limitations

In step four of the analytical process, the ALJ assesses a claimant’s RFC

and ability to do past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). The

RFC, defined as the most the claimant can still do despite her limitations, is

based on an evaluation of all the relevant evidence in the record. See id.

§§ 404.1520(e), 404.1545(a)(1) and (a)(3); Social Security Ruling (“SSR”) 96-8p,

1996 WL 374184 (July 2, 1996). Put simply, the ALJ is “required to consider

all impairments, regardless of severity, in conjunction with one another” when

building the RFC. Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949,

951 (11th Cir. 2014). Thus, when an ALJ finds mild mental limitations in step

2 of the sequential process, he must have a “real discussion of how the mental

condition affected [the claimant’s] RFC.” Schink v. Comm’r of Soc. Sec., 935

F.3d 1245, 1269 (11th Cir. 2019). “If an ALJ fails to address the degree of

impairment caused by the combination of physical and mental medical

problems, the decision that the claimant is not disabled cannot be upheld.” Id.

Here, the ALJ properly considered Brock’s mild mental limitations found

in step 2 (Tr. 14-15). First, the ALJ noted that the RFC reflected his impression

of Brock’s mental limitations from step 2. (Tr. 15.) Then, the ALJ stated he

accounted for “all symptoms” when building the RFC, including Brock’s

reported depression. (Tr. 16-17.) Finally, the ALJ took care to discuss the

opinions of State agency psychological consultants Brian McIntyre, Ph.D. and

Kathryn Bell, Ph.D. (Tr. 20.) These doctors found Brock to have mild

limitations and mostly normal mental status examinations. (Tr. 20, 65-66, 85.)

Dr. McIntyre even opined Brock had no work-related limitations. (Tr. 66

(“[Claimant] appears able to complete tasks related to employment without

disruption from mental health symptoms.”).) Ultimately, the ALJ found these

opinions to be persuasive in evaluating Brock’s mental limitations, along with

Brock’s “numerous” activities of daily living. (Tr. 20-21.) Thus, the ALJ had a

“real discussion” of Brock’s mental functioning as required under Schink and

its progeny. Further, given the record outlined above, substantial evidence

supports the ALJ’s decision not to incorporate mental limitations in the RFC.

B. Combined Effects of Stress and Atrial Fibrillation

“The ALJ must make specific and well-articulated findings as to the

effect of the combination of all of the claimant’s impairments. However, a clear

statement that the ALJ considered the combination of impairments constitutes

an adequate expression of such findings.” Burgin v. Comm’r of Soc. Sec., 420

F. App’x 901, 902-03 (11th Cir. 2011). For example, the Eleventh Circuit has

said “it is clear the ALJ considered the combination issue” with the following

statement:

[B]ased upon a thorough consideration of all evidence, the

ALJ concludes that appellant is not suffering from any

impairment, or a combination of impairments of sufficient

severity to prevent him from engaging in any substantial

gainful activity for a period of at least twelve continuous

months.

Jones v. Dep't of Health & Hum. Servs., 941 F.2d 1529, 1533 (11th Cir. 1991).

Brock claims “[t]he ALJ’s failure to consider impairments in combination

requires a remand.” (Doc. 19 at 11.) But the ALJ explicitly stated he considered

the impairments in combination. (Tr. 15 (“However, the undersigned finds that

the medical evidence does not support a finding that these impairments meet

or, individually or in combination, medically equal the criteria of such listings

or any other listed physical impairment.”); see also Tr. 21 (“Based on the entire

record, including the testimony of the claimant, the undersigned concludes

that the evidence fails to support the claimant’s assertions of total

disability.”).) As explained above, these statements are enough.

In response, Brock asserts that such a “boilerplate” disclaimer is not

enough to show proper consideration “if the ALJ’s decision demonstrates that

he did not.” (Doc. 23 at 5-6 (citing Pupo v. Comm’r, Soc. Sec. Admin., 17 F.4th

1054, 1059-60, 1064 (11th Cir. 2021).) But here too, Brock’s argument fails.

She claims that although “the ALJ considered atrial fibrillation and mental

impairments individually, the ALJ failed to assess how stress, to which the

Plaintiff is already susceptible, interacts with the Plaintiff’s atrial fibrillation.”

(Doc. 19 at 11.) Yet the ALJ recognized that Brock’s atrial fibrillation was

“usually brought on by stress.” (Tr. 18.) And he then determined that atrial

fibrillation was not enough to find her totally disabled. (Tr. 21.) Thus, by

evaluating atrial fibrillation, the ALJ necessarily considered stress as its cause

or, in other words, he considered the impairments in combination.

Finally, the ALJ noted the effects of stress on Brock’s mental health: “the

claimant stated in a function report that she does not handle stress or changes

in routine well.” (Tr. 15.) But he then contrasted this with her relatively high

level of functioning:

she also noted that she finishes what she starts, has never

been fired or laid off from a job due to problems getting

along with others, follows written and spoken instructions

fairly well, and gets along fairly well with authority

figures. Additionally, the claimant had a normal mood, a

normal affect, intact insight, normal speech, intact

judgment, and intact associations on several mental status

examinations during the relevant time frame.

(Tr. 15.) Although the ALJ made these comments at step 2 of the sequential

process, he stated his reasoning was also used to build the RFC in step 4. (Tr.

15.) Here too, he pointed out the same contradiction: “the claimant has

described daily activities that are inconsistent with her allegations of disabling

symptoms and limitations.” (Tr. 17.) Ultimately, the ALJ found Brock was not

as limited by her subjective impairments as she alleged. (Tr. 17-18, 21.) These

findings are supported by substantial evidence, and thus he did not err in this

portion of his analysis.

C. Past Relevant Work

Last, Brock claims the ALJ did not properly evaluate her past work when

he found she could perform the jobs of real estate agent, audit clerk, real estate

clerk, and the composite job of a real estate agent/property manager. (Doc. 19

at 14-15.) These findings were based largely on the testimony of a vocational

expert (“VE”), who considered Brock’s limitations under the RFC stated above.

(Tr. 22.)

1. Real Estate Agent

Brock claims the real estate agent job required her to climb, contrary to

the RFC. She also asserts the VE misclassified her work as a real estate agent

when it was more properly described as a real estate broker. This is significant,

she argues, because a real estate broker shows property which requires

occasional climbing according to the Dictionary of Occupational Titles (“DOT”).

(Doc. 19 at 16.)

There are several issues with this line of argument. First, Brock did not

challenge the VE’s alleged misclassification of her past work as a real estate

agent. This effectively waived her argument. See Vickery v. Comm'r of Soc.

Sec., No. 5:21-CV-122-PRL, 2022 WL 16555990, at *3 (M.D. Fla. Sept. 23,

2022); see also New v. Comm’r of Soc. Sec., No. 5:12-CV-211-OC-18PRL, 2013

WL 3804846, at *3 (M.D. Fla. July 8, 2013) (“As an initial matter, the

Commissioner correctly notes that the Plaintiff did not raise this issue to the

ALJ, nor did her attorney object to the VE’s testimony identifying Plaintiff's

prior work as a housekeeper as past relevant work. Unfortunately for Plaintiff,

because she failed to raise this issue to the ALJ or even object to the VE’s

testimony, the ALJ was not obligated to specifically address the concerns—or

rather, arguments—that Plaintiff now raises.”); Whittemore v. Comm'r of Soc.

Sec., No. 3:09-CV-1242-J-MCR, 2011 WL 722966, at *5 (M.D. Fla. Feb. 23,

2011) (finding that where the plaintiff did not raise the issue to the ALJ as to

whether her prior job as a real estate agent qualified as substantial gainful

activity and did not object to the VE’s “past relevant work summary,” which

included the job of real estate agent, that the ALJ was not required to

specifically discuss his reasons for concluding that the plaintiff’s past work as

a real estate agent qualified as substantial gainful activity). Thus, without an

objection or other reason to doubt his credibility, the VE’s expertise provides

substantial evidence to support reliance on his testimony. Curcio v. Comm’r of

Soc. Sec., 386 F. App’x 924, 926 (11th Cir. 2010).

Next, Brock claims the job as she performed it “required climbing, and

the ALJ stated in the RFC assessment that the Plaintiff should never climb

ladders or scaffolds.” (Doc. 19 at 15.) Yet she stops short of claiming her job

required her to climb ladders or scaffolds in particular, rather than ramps or

stairs which the RFC said she could do occasionally. In fact, Brock admits that

the record does not show what kind of climbing she did. (Id.) Brock says it was

the ALJ’s duty to resolve this conflict, essentially making a “failure to develop

the record” argument—but she is wrong. See Jackson v. Bowen, 801 F.2d 1291,

1293 (11th Cir. 1986). Although the ALJ has a basic duty to develop a full and

fair record, that does not relieve the claimant of her burden. “[T]he claimant

bears the burden of proving that [s]he is disabled, and consequently, [she] is

responsible for producing evidence in support of [her] claim.” Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The claimant’s duty carries

the day unless the record does not contain sufficient evidence for the ALJ to

make an informed decision. Mishoe v. Astrue, No. 5:08-CV-371-OC-GRJ, 2009

WL 2499073, at *7 (M.D. Fla. Aug. 14, 2009). (“The [ALJ’s] duty is triggered,

for example, when there is an ambiguity in the record or when the record is

inadequate to allow for proper evaluation of the evidence.”). Here, there was

nothing to suggest the ALJ could not rely on the VE’s testimony about the job’s

requirements. Thus, if Brock wanted to present additional evidence, the

burden was her own.

In any event, Brock’s arguments focus on her alleged inability to perform

the specific job she held in the past. But that is not enough. She must prove

her “inability to return to the previous type of work [s]he was engaged in.”

Jackson, 801 F.2d at 1293-94. She argues this point “from the lay perspective”

(Doc. 19 at 16), but that hardly refutes the substantial evidence supplied by

the VE. To say otherwise would require the Court to impermissibly reweigh

the evidence.

2. Audit Clerk and Real Estate Clerk

Brock’s arguments as to these jobs are similar and twofold. First, she

claims that each job required her to sit or work for longer than the RFC

allowed. (Doc. 19 at 17-18.) Thus, she says, the ALJ erred in finding this is past

work she could perform. But once again, even accepting Brock’s position, she

failed to prove that she could not complete that type of work as it is performed

in the general economy. Jackson, 801 F.2d at 1293 (“The regulations require

that the claimant not be able to perform his past kind of work, not that he

merely be unable to perform a specific job he held in the past.”). Thus, the Court

sees no error.

Second, Brock seems to argue that she performed these two jobs during

a two-year term of employment. Yet this would contravene the vocational and

preparation requirements of these jobs which, combined, total more than two

years. (Doc. 19 at 13-19.) Thus, she argues, she did not have enough time on

the jobs to learn them, a requirement for a job to be considered “past relevant

work.” See 20 C.F.R. § 404.1560(b)(1). The VE suggested otherwise, a

conclusion Brock’s attorney seemed to accept. (Tr. 55-56.)

Brock’s argument fails for several reasons. First, she consistently uses

the terms “may have” and “very likely,” indicating that she herself is unsure

whether she worked at her jobs for long enough. (See Doc. 19 at 17-18.) Brock

even admits the record is unclear on this point. (Id.) That is hardly enough to

say substantial evidence does not support the ALJ’s reliance on the VE’s

testimony. Second, a claimant may acquire sufficient familiarity with the job

through means other than “on-the-job” training. POMS DI 25001.001 (A)(77).3

For example, she can gain “essential experience in other jobs” and “education

3 Taken from the Social Security Administration’s Program Operation’s Manual System,

which the ALJ must consider. See 20 C.F.R. §§ 404.1601-1603.

figures heavily” into the calculation. Id. In Brock’s case, she earned experience

in her four-year degree and in years of real-estate work before she even began

her jobs as an audit clerk and real estate clerk. (Tr. 208.) Thus, substantial

evidence supports the VE’s conclusion (and the ALJ’s subsequent reliance) that

Brock gained enough experience to consider these jobs “past relevant work.”

And finally, Brock fails to show how the ALJ’s alleged error on this part

would not be harmless. Even if the ALJ wrongly concluded Brock could return

to these past jobs, the ALJ provided other jobs available to her, such as real

estate agent. Thus, any error about the audit clerk and real estate clerk jobs

would seem irrelevant. See Denomme v. Comm’r, Soc. Sec. Admin., 518 F.

App’x 875 (11th Cir. 2013) (“When, however, an incorrect application of the

regulations results in harmless error because the correct application would not

contradict the ALJ’s ultimate findings, the ALJ's decision will stand.”).

3. Composite Job of Real Estate Agent and Property Manager

Finally, Brock argues the ALJ was wrong that she could return to this

composite job as it was actually and generally performed. (Doc. 19 at 19.)

Specifically, she claims she could not do the job as it was actually performed

because it would require more sitting than the RFC allowed. (Id.) And she

claims (without citation to legal authority) that the ALJ may not rely on

general performance for composite jobs. (Id. at 19-20.)

These arguments have similar defects to those above. First, Brock did

not challenge the VE’s reasoning that she could perform this past job. Thus, as

noted, her argument is waived. Second, she does not say how such an error

would be prejudicial. And last, the Court need not consider conclusory and

unsupported arguments. See Ctr. v. Sec'y, Dep't of Homeland Sec., Customs &

Border Prot. Agency, 895 F.3d 1295, 1299 (11th Cir. 2018) (“[W]e have

repeatedly explained that arguments briefed in the most cursory fashion are

waived.”); Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir.

2011) (“With a typically heavy caseload and always limited resources, a district

court cannot be expected to do a petitioner’s work for him.”). For these reasons,

the Court finds no error as to the composite job.

IV. Conclusion

Considering the record as a whole, substantial evidence supports the

ALJ’s findings. Accordingly, the Court AFFIRMS the Commissioner’s decision

and directs the Clerk to enter judgment for the Commissioner and against

Suzanne Brock and close the file.

ENTERED in Fort Myers, Florida this June 5, 2023.

Of lO □□□

4 lol Audlel”

“ Kile C. Dudek

United States Magistrate Judge

Copies: All Parties of Record

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