Acosta v. Acting Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-21426-BLOOM/Damian

DORYS L ACOSTA,

Plaintiff,

v.

MARTIN J. O’MALLEY,

Commissioner of Social Security,

Defendant.

__________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

THIS CAUSE is before the Court upon two motions: Claimant Dorys L. Acosta’s Motion

for Summary Judgment, ECF No. [11] (“Claimant’s Motion”), and Defendant Martin J.

O’Malley,1 Commissioner of the Social Security Administration’s (“Commissioner”) Motion for

Summary Judgment, ECF No. [13] (“Commissioner’s Motion”). The Commissioner filed a

Response in Opposition to Claimant’s Motion, ECF No. [14]. Claimant did not file a Response in

Opposition to the Commissioner’s Motion.

The Court referred both Motions to then-Magistrate Judge Melissa Damian on August 25,

2023.2 See ECF No. [15]. On February 2, 2024, Judge Damian issued her Report and

Recommendation (“R&R”), ECF No. [17], recommending that Claimant’s Motion for Summary

Judgment be denied, the Commissioner’s Motion for Summary Judgment be granted, and the

1 Martin J. O’Malley was appointed Commissioner of the Social Security Administration on

December 20, 2023. Accordingly, Martin J. O’Malley is automatically substituted as the Defendant in this

case. See Fed. R. Civ. P. 25(d).

2 The United States Senate confirmed Judge Damian’s appointment to serve as a United States

District Judge for the Southern District of Florida on February 28, 2024.

Commissioner’s decision be affirmed. Claimant filed Objections, ECF No. [18], to which the

Commissioner filed a Response, ECF No. [22]. The Court has conducted a de novo review of the

R&R and the Objections in accordance with 28 U.S.C. § 636(b)(1)(C). See Williams v. McNeil,

557 F.3d 1287, 1291 (11th Cir. 2009). The Court has considered the Motions, the R&R, the

Objections, the Response, the record in this case, the applicable law, and is otherwise fully advised.

For the reasons set forth below, the Court overrules Claimant’s Objections and adopts the R&R in

full.

I. BACKGROUND

A. Procedural History

The Court assumes the parties’ familiarity with the facts of this case and adopts the

procedural history contained in the R&R. Relevant here, this case was voluntarily remanded by

the Commissioner to permit the Administrative Law Judge (“ALJ”) to conduct further

proceedings. ECF No. [17] at 3 (citing R. 1099).3 The ALJ conducted a hearing upon remand on

July 5, 2022 (the “Remand Hearing”). Id. at 3 (citing R. 1099). Stephanie Barnes, an impartial

vocational expert (“VE”), testified at the Remand Hearing. The VE testified “a person with Ms.

Acosta’s same age, education, work experience, and residual functional capacity (‘RFC’) was

unable to perform any of her past work as a fast-food worker, hand packager, ticketer/tagger, metal

products fabricator, or warehouse worker.” Id. at 5 (citing R. 1130).

When asked “whether other jobs exist in significant numbers in the national economy for

a person with Ms. Acosta’s age, education, work experience,” the VE testified three representative

occupations exist that such a person could perform: (1) photocopy machine operator, (2) produce

sorter, and (3) private industry mail sorter. Id. at 5-6 (citing R. 1130-31). The VE testified 107,000,

3 The Court adopts the R&R’s convention of citing record entries in the underlying Social

Security Administration (“SSA”) proceeding as “R. 1”.

109,000, and 142,000 of these jobs exist in the national economy, respectively, totaling 358,000

other jobs. Id. at 6. The ALJ relied on this testimony to conclude Claimant has not been disabled

under Sections 216(i) and 223(d) of the Social Security Act from January 17, 2016, through

December 31, 2020. Id. at 10-11 (citing 1089-90). As the R&R observes, “[c]ounsel for Ms. Acosta

did not object to any part of the VE’s testimony, including testimony about job numbers, nor did

he challenge or question the foundation for the VE’s testimony.” Id. at 6 (citing R. 204-07).

B. Motions

Claimant’s Motion contends the ALJ’s decision is not supported by substantial evidence.

Claimant argues this is the case because (1) the VE grossly overstated the number of full-time

photocopy machine operator, produce sorter, and private industry mail sorter jobs in the national

economy, and (2) the ALJ failed to reconcile an apparent conflict between the RFC’s reasoning

level and the reasoning level required to perform a full-time private industry mail sorter job. The

Commissioner’s Motion and Response in Opposition argue the VE’s testimony constitutes

substantial evidence upon which the ALJ properly relied in concluding Claimant was not disabled.

The Commissioner observes Claimant failed to challenge the VE’s testimony and contends the

Court should not consider new arguments or evidence that were not raised at the Remand Hearing.

Regarding the apparent conflict between Claimant’s RFC and the private industry mail sorter job,

the Commissioner argues even if there is an apparent conflict, that error was harmless because

significant numbers of photocopy machine operator and produce sorter jobs exist in the national

economy.

C. R&R

The R&R’s analysis begins by applying the relevant legal standard governing eligibility

for disability insurance benefits (“DIB”) under the Social Security Act:

Eligibility for DIB requires that the claimant be disabled. 42 U.S.C. §§

423(a)(1)(E), 1328c(a)(1)-(2). A claimant is disabled if she is unable to engage in

substantial gainful activity by reason of a medically determinable impairment that

can be expected to result in death, or which has lasted or can be expected to last for

a continuous period of at least 12 months. 42 U.S.C §§ 423(d)(1)(A),

1382c(a)(3)(A); Bacon v. Comm’r of Soc. Sec., 861 F. App’x 315, 317 (11th Cir.

2021). A plaintiff bears the burden of proving she is disabled within the meaning

of the Social Security Act. 20 C.F.R. §§ 404.1512(a), (c), 416.912(a), (c).

Id. at 11-12. As Judge Damian observes, the ALJ correctly applied “the five-step process that must

be applied to determine whether a claimant is disabled[]” under Sections 216(i) and 223(d) of the

Social Security Act. Id. at 12 (citing 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1); Frame v.

Comm’r, Soc. Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015)).

Step one requires the ALJ to determine “whether the claimant is unable to engage in

substantial gainful activity (“SGA”).” Id. (citing 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1);

Frame v. Comm’r, Soc. Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015)). Step two requires

the ALJ to determine “whether the claimant has a severe medically determinable mental or

physical impairment (“MDI”) or combination of impairments.” Id. (citing 20 C.F.R. §§

404.1520(c), 416.920(c)). Step three requires the ALJ to determine “whether the claimant’s

impairment or combination of impairments is of a severity that meets or medically equals the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.” Id. (citing 20 C.F.R.

§§ 404.1520(d), 404.1525-26; §§ 416.920(d), 416.925-26). If the claimant’s impairment or

combination of impairments meets these criteria, the claimant is disabled. If it does not, the

analysis proceeds to step four.

“Before considering step four, however, the ALJ must first determine the claimant’s

RFC[,]” which is defined as a claimant’s “ability to do physical and mental work activities on a

sustained basis despite limitations from her impairments.” Id. at 13 (citing 20 C.F.R. §§

404.1520(e), 416.920(e); 20 C.F.R. §§ 404.1545, 416.945). Step four then requires the ALJ to

“determine whether the claimant can perform her past relevant work, in light of her RFC.” Id.

(citing 20 C.F.R. §§ 404.1520(f), 416.920(f)). Doing so requires establishing work “performed

(either in the manner claimant actually performed it or as it is generally performed in the national

economy) within 15 years prior to the date claimant’s disability[.]” Id. (citing 20 C.F.R. §§

404.1560, 416.960). “If the claimant has the RFC to do her past relevant work, she is not disabled.”

Id. (citing 20 C.F.R. §§ 404.1520(f), 416.920(f)). If the claimant cannot perform any past relevant

work, the analysis proceeds to step five.

Step five temporarily shifts the burden to the Commissioner “to show the existence of other

jobs in the national economy that exist in significant numbers that the claimant can perform, given

her impairments.” Id. (citing 20 C.F.R. §§ 404.1512, 404.1560(c), 416.912, and 416.960(c)). “The

ALJ makes this determination by considering both the Dictionary of Occupational Titles (“DOT”)

and testimony from an impartial vocational expert.” Id. (citing Buckwalter v. Acting Comm’r of

Soc. Sec., 5 F.4th 1315, 1321 (11th Cir. 2021)).

As noted in the R&R, the ALJ made the following findings with respect to steps one

through three:

(1) Ms. Acosta did not engage in SGA from January 17, 2016, though December

31, 2020, her date last insured; (2) during the period she was not gainfully

employed, her “status post stab wound to the chest (costochondritis); asthma; type

II diabetes mellitus without complications, hypertension, major depressive

disorder, [and] posttraumatic stress disorder (PTSD)” were severe impairments;

and (3) her combination of impairments did not meet or medically equal the severity

of one of the listed impairments in 20 C.F.R. Part 404. (R. 1078–79).

Id. at 14.

Regarding Claimant’s RFC, the ALJ found Claimant had the RFC to perform “light work”

under 20 C.F.R Section 404.1567(b), with some exceptions.4 Id. “As such, according to the ALJ,

4 As detailed in the R&R, the ALJ specifically found Plaintiff can perform light work, “except that

she can lift, carry, push, and pull 15 pounds occasionally and less than 10 pounds frequently; she can sit,

(4) Ms. Acosta was unable to perform her past relevant work, but (5) she can perform other jobs

that exist in significant numbers in the national economy.” Id. at 15 (citing R. 1089-1090). The

ALJ accordingly concluded Claimant was not disabled under Sections 216(i) and 223(d) of the

Social Security Act. Id.

Judge Damian begins her analysis of the ALJ’s decision by correctly identifying the

applicable legal standard:

The Court’s review of the ALJ’s Decision is limited to determining whether

the Decision is supported by substantial evidence and whether the correct legal

standards were applied. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158

(11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)).

Substantial evidence is more than a scintilla but less than a preponderance. Id.

(citations omitted); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It is

such relevant evidence that a reasonable person would accept as adequate to support

a conclusion. Buckwalter, 5 F.4th at 1320. A court must defer to the ALJ’s decision

if it is supported by substantial evidence, even if the preponderance of the evidence

weighs against it. Id. A court may not redecide facts, reweigh the evidence, or

substitute its judgment for that of the ALJ. Id. Although factual findings enjoy such

deference, the ALJ’s legal analysis and conclusions are reviewed de novo. Ingram

v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).

Id. at 16.

i. VE’s Testimony

Judge Damian first addresses Claimant’s argument that the ALJ’s decision is not supported

by substantial evidence because the VE grossly overstated the number of photocopy machine

operator, produce sorter, and private industry mail sorter jobs in the national economy. For support,

Claimant provides labor market data from the Department of Labor’s Occupational Employment

and Wage Statistics (“OEWS”), which reports considerably lower numbers of each job in the

stand, and/or walk with normal breaks for 6 hours in an 8-hour workday; she can occasionally reach

overhead with the right dominant upper extremity and has no limitations with her left upper extremity; she

should not work climbing ladders, ropes or scaffolds, she should not work at unprotected heights or operate

dangerous machinery, she should avoid concentrated exposure to dust, odors, and gases, she should not

work around heavy vibration or loud noise; she should avoid concentrated exposure to extreme cold; and

she is unable to work in large settings, such as a retail mall.” Id. at 14 (citing R. 1082).

national economy.5 Claimant further supported her position by offering “an alternative method of

calculating the number of jobs based on OEWS data (the ‘Equal Distribution Method’): dividing

the total number of jobs in the SOC group by the number of individual DOT occupations in the

SOC group.” ECF No. [17] at 18. As both the R&R and the Commissioner point out, “the record

reflects that counsel for Ms. Acosta did not object to the VE’s testimony or job number estimates

during the Remand Hearing[,]” nor did she present this job data to the ALJ. Id. at 17-18. The

Commissioner argues Claimant is thus “foreclosed from now challenging the VE’s testimony

regarding the numbers of photocopy machine operator, produce sorter, and private industry mail

sorter jobs in the national economy before this Court because she did not object to or challenge

the VE’s testimony regarding this data during the hearing.” Id. at 19.

The R&R agrees with the Commissioner. Judge Damian accurately observes “[t]he

Eleventh Circuit has consistently held that it will not consider data on appeal from an ALJ’s

decision where the claimant did not object to the VE’s testimony during the hearing.” Id. at 20

(citing Wooten v. Comm’r of Soc. Sec., 787 F. App’x 671, 675 (11th Cir. 2019); Valdez v. Comm’r

of Soc. Sec., 808 F. App’x 1005, 1009 (11th Cir. 2020); Bacon v. Comm’r of Soc. Sec., 861 F.

App’x 315, 320 (11th Cir. 2021)); see also Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998)

(holding courts only consider evidence actually presented to the ALJ when determining whether

the ALJ’s decision is supported by substantial evidence on appeal). The R&R thus concludes the

OEWS and Equal Distribution Method data should not be considered on appeal, as Claimant did

not present that evidence to the ALJ or object to the ALJ’s reliance on the VE’s testimony.

5 See ECF No. [17] at 18 (“For example, according to Ms. Acosta, the OEWS data shows that there

are only 32,920 full-time and part-time jobs for the position of photocopy machine operator for the entire

Standard Occupational Classification (“SOC”) group.”).

The R&R also rejects Claimant’s related argument that the ALJ was required to

independently investigate the labor market data discrepancy between the VE’s testimony and the

OEWS data. Claimant relies on Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309, 1319 (11th Cir.

2021) and Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1285-86 (11th Cir. 2020) for support. In

both cases, the Eleventh Circuit found remand was proper because the record indicated the VE’s

testimony regarding the number of available jobs was inconsistent or overstated, but the ALJ failed

to investigate the discrepancy. Viverette, 13 F.4th at 1319; Goode, 966 F.3d at 1285-86. Claimant

“also cites SSR 00-4p for the proposition that the ALJ had a duty to resolve the disparity between

the VE’s job number estimates and those presented by Ms. Acosta.” ECF No. [17] at 19 (citing

ECF No. [11] at 15-16).

As Judge Damian explains, Viverette and Goode are plainly distinguishable. The Eleventh

Circuit found remand was warranted in Viverette based on the ALJ’s failure to investigate job data

discrepancies, but unlike here, “the claimant objected to the VE’s testimony and raised challenges

to the VE’s methodology and data on cross-examination.” Id. at 20-21 (citing Viverette, 13 F.4th

at 1319). Further, in Goode, the Eleventh Circuit explicitly observed remand was appropriate to

address the ALJ’s failure to investigate inconsistencies with the VE’s testimony because it was

“not a case in which the claimant failed to challenge or question the [VE’s] methodology or job

numbers.” 966 F.3d at 1284 n.3 (emphasis added). Unlike here, the claimant in Goode made

several attempts stop challenge the VE’s flawed testimony but was cut short by the ALJ. Id. Judge

Damian accordingly found Claimant’s reliance on these authorities is misplaced, as she “failed to

object or raise any challenge to the VE’s testimony in this case[.]” ECF No. [17] at 21.

The R&R is also unpersuaded by Claimant’s reliance on the SSR 00-4p. “Pursuant to SSR

00-4p, the ALJ has an affirmative duty to identify and resolve apparent conflicts between the DOT,

which includes information about jobs classified by their exertional and skill requirements that

exist in the national economy, and a VE’s testimony.” ECF No. [17] at 21 (citing SSR 00-4p, 2000

WL 1898704 (Dec. 4, 2000); Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1362 (11th Cir.

2018)). Critically, however, “this affirmative duty to resolve conflicts does not extend to other

sources outside the DOT.” Id. As Judge Damian points out, this affirmative duty “does not require

the ALJ to inquire sua sponte into the foundation for the VE’s testimony concerning the number

of relevant jobs in the national economy[,]” nor “does Ms. Acosta point to any case, regulation, or

statute suggesting that the ALJ must sua sponte take administrative notice of economic data when

the claimant did not raise an issue with job numbers during the hearing.” Id.

Moreover, the Eleventh Circuit has explicitly held an ALJ is only required to verify a VE’s

testimony “when there is a conflict between the VE’s testimony and the DOT.” Webster v. Comm’r

of Soc. Sec., 773 F. App’x 553, 555 (11th Cir. 2019). Like the claimant in Webster, Claimant for

the first time argues the “conflict [here] is between the number of available jobs the VE reported

and the number of available jobs shown in the figures provided by the Bureau of Labor Statistics

through its publication of the [OEWS].” Id. at 556. As the Eleventh Circuit explains, “[u]nlike the

situation in which the VE’s testimony conflicts with the DOT, this Court has not placed an

affirmative duty on the ALJ to independently investigate a conflict between the VE’s testimony

and job availability figures provided by the Bureau of Labor Statistics in the [OEWS].”6 Id. The

R&R accordingly relies on Webster to conclude the ALJ had no duty to independently investigate

and resolve conflicts between the VE’s testimony and the OEWS data.

Judge Damian also concludes the ALJ’s decision that significant numbers of jobs Claimant

could perform exist in the national economy is supported by substantial evidence. As discussed,

6 The Eleventh Circuit also observed “the figures in the [OEWS] are not part of the SSA’s

regulatory scheme.” Webster, 773 F. App’x at 556 (citing 20 C.F.R. § 404.1566(d)(1), (5)).

“the VE testified that there were approximately 107,000 full-time photocopy machine operator

jobs, 109,000 full-time produce sorter jobs, and 142,000 private industry mail sorter jobs in the

national economy, and the ALJ relied on and adopted these estimates in her Decision.” ECF No.

[17] at 23 (citing R. 1131-32). The R&R also finds “the ALJ properly relied on the VE’s testimony

in determining the jobs identified exist in significant numbers[]” because the ALJ was entitled to

rely on the VE’s testimony in making this determination, and because Claimant failed to challenge

this determination. Id. Judge Damian notes the Eleventh Circuit similarly found “the ALJ was

entitled to rely on a VE’s testimony about the number of jobs available in the national economy

because the claimant did not object to the VE’s testimony, did not question the VE’s qualifications,

and did not present other occupational employment statistics to the ALJ” in Valdez v. Comm’r of

Soc. Sec., 808 F. App’x 1005 (11th Cir. 2020).7 Id. (citing Valdez, 808 F. App’x at 1010).

Consistent with Valdez, Judge Damian finds “the ALJ was entitled to rely on the VE’s testimony

about the number of jobs available in the national economy given that Ms. Acosta presented no

other evidence for the ALJ to consider and offered no reason for the ALJ to question the VE’s

evidence.”8 ECF No. [17] at 24 (citing Biestek v. Berryhill, 139 S. Ct. 1148, 1155 (2019)

(observing that if a claimant does not demand the underlying evidence supporting a VE’s

testimony, the VE’s “testimony may count as substantial evidence even when unaccompanied by

supporting data”) (additional citations omitted)).

7 As the R&R accurately observes, Valdez also found the claimant’s failure to object foreclosed

consideration of OEWS data on appeal. 808 F. App’x at 1010.

8 Judge Damian also suggests that “under Eleventh Circuit precedent, even the numbers produced

by the OEWS and Ms. Acosta’s Equal Distribution Method would likely satisfy the Commissioner’s burden

of identifying a significant number of jobs in the national economy.” (citing Brooks v. Barnhart, 133 F.

App’x 669, 671 (11th Cir. 2005); Allen v. Bowen, 816 F.2d 600, 602 (11th 1987); Atha v. Comm’r of Soc.

Sec., 616 F. App’x 931, 935 (11th Cir. 2015)).

The R&R accordingly finds the ALJ properly relied on the VE’s testimony, and the VE’s

testimony regarding whether significant jobs that Claimant can perform exist in the national

economy constitutes substantial evidence supporting the ALJ’s decision. ECF No. [17] at 25.

ii. Apparent Conflict

Judge Damian then considers Claimant’s argument that the ALJ’s decision is not supported

by substantial evidence because the ALJ failed to reconcile an apparent conflict between

Claimant’s RFC and the private industry mail sorter job. Claimant contends the reasoning level

required for this job exceeds the reasoning level in her RFC, a conflict that the ALJ failed to

identify, let alone reconcile. The Commissioner argues the ALJ’s decision should be affirmed

because even if the 142,000 private industry mail sorter jobs are discounted due to an apparent

conflict, “216,000 of the 358,000 identified jobs remain, which, in any event, constitutes

substantial evidence upon which the ALJ properly relied.” ECF No. [17] at 25. In short, the

Commissioner contends any such error was harmless.

Judge Damian agrees that even if the ALJ failed to recognize this apparent conflict, this

error was harmless. The R&R accurately observes “[a]n ALJ’s errors may be harmless if they do

not prejudice the claimant.” Id. at 26 (citing Jones v. Comm’r of Soc. Sec., 492 F. App’x 70, 73

(11th Cir. 2012)). The R&R found Valdez and Wooten v. Comm’r of Soc. Sec., 787 F. App’x 671

(11th Cir. 2019) support finding that any failure to resolve this apparent conflict was harmless. In

Valdez, the Eleventh Circuit affirmed the ALJ’s decision where the claimant argued his RFC’s

reasoning level conflicted with one occupation, but not with the remaining identified occupations.

808 F. App’x at 1009. The Eleventh Circuit concluded “any error pertaining to the ALJ’s

conclusion that [the claimant] could work as an order clerk is harmless because there are other jobs

he is qualified to do even in light of his [RFC], age, education, and work experience.” Id. Wooten

similarly found that even if an ALJ erred by failing to identify a conflict between the claimant’s

RFC reasoning level and the reasoning level required for an occupation, that error was harmless.

787 F. App’x at 674. Consistent with Valdez, the Eleventh Circuit concluded the claimant could

perform another identified occupation, which the claimant did not allege was inconsistent with her

RFC. Id.

Consistent with Valdez and Wooten, the R&R concludes any failure to reconcile apparent

conflict between the reasoning level in Claimant’s RFC and required reasoning level for the private

industry mail sorter job constitutes harmless error. The R&R notes Claimant does not challenge

her ability to perform the other two jobs. Further, Judge Damian’s conclusion that the Court is

foreclosed from considering Claimant’s job data establishes 216,000 identified jobs remain even

if the private industry mail sorter jobs are discounted. It therefore “follows that the ALJ’s Decision

is supported by substantial evidence even if the private mail sorter job is removed as a basis for

the Decision.” ECF No. [17] at 27. Judge Damian accordingly concluded “any error pertaining to

the ALJ’s conclusion that Ms. Acosta can work as a private industry mail sorter is harmless

because there are other jobs she is qualified to do that exist in significant numbers in the national

economy.” Id. (citing Valdez, 808 F. App’x at 1009; Wooten, 787 F. App’x at 674).

Judge Damian therefore concludes the VE’s testimony constitutes substantial evidence.9

The R&R accordingly recommends the Court deny Claimant’s Motion, grant the Commissioner’s

Motion, and affirm the Commissioner’s decision.

D. Objections

Claimant objects the R&R errs by finding (1) the ALJ’s decision is supported by substantial

evidence because the ALJ properly relied on the VE’s testimony; and (2) any failure by the ALJ

to reconcile an apparent conflict between Claimant’s RFC and the private industry mail sorter job

9 The R&R also finds the ALJ complied with the court’s remand instructions. See ECF No. [17]

at 27-28.

was harmless. Regarding job data, Claimant contends the R&R errs in concluding the Court is

foreclosed from considering Claimant’s OEWS data on appeal. Claimant argues the OEWS data

is part of the record in this case, the ALJ had an independent duty to evaluate this data, and that

this job data demonstrates the ALJ’s decision was not supported by substantial evidence.

Regarding the ALJ’s failure to reconcile an apparent conflict, Claimant contends the ALJ did err,

and that this error establishes the ALJ’s decision should either be reversed or remanded for further

proceedings. The Commissioner responds by observing Claimant “is essentially restating her

arguments about the VE’s job numbers from her primary brief[.]” ECF No. [22] at 2. On the merits,

the Commissioner argues the R&R accurately concludes the Court is foreclosed from considering

Claimant’s job data on appeal, the ALJ’s properly relied on the VE’s testimony, and any error

based on the ALJ’s failure to reconcile an apparent conflict was harmless.

II. LEGAL STANDARD

“In order to challenge the findings and recommendations of the magistrate judge, a party

must file written objections which shall specifically identify the portions of the proposed findings

and recommendation to which objection is made and the specific basis for objection.” Macort v.

Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822

(11th Cir. 1989)) (alterations omitted). The objections must also present “supporting legal

authority.” S.D. Fla. L. Mag. J.R. 4(b). The portions of the report and recommendation to which

an objection is made are reviewed de novo only if those objections “pinpoint the specific findings

that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see

also Fed. R. Civ. P. 72(b)(3). If a party fails to object to any portion of the magistrate judge’s

report, those portions are reviewed for clear error. Macort, 208 F. App’x at 784 (quoting Johnson

v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)); see also Liberty Am. Ins. Grp., Inc. v.

WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001).

Furthermore, “[i]t is improper for an objecting party to ... submit [ ] papers to a district

court which are nothing more than a rehashing of the same arguments and positions taken in the

original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second

bite at the apple’ when they file objections to an R & R.” Marlite, Inc. v. Eckenrod, No. 10-23641-

CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors

Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)). A district court may

accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1).

III. DISCUSSION

Claimant does not argue the ALJ applied the incorrect legal standard. As discussed,

Claimant objects the R&R errs by concluding the ALJ’s decision is supported by substantial

evidence because (1) Claimant’s OEWS job data establishes the ALJ improperly relied on the

VE’s testimony; and (2) the ALJ failed to recognize an apparent conflict between Claimant’s RFC

reasoning level and the reasoning required for private industry mail sorter jobs. The Court notes at

the outset that both objections amount to little more “a rehashing of the same arguments and

positions taken in the original papers submitted to the Magistrate Judge.” Eckenrod, No. 10-23641-

CIV, 2012 WL 3614212, at *2. The Court nonetheless addresses both objections below.

i. VE’s Testimony

Claimant contends the R&R errs in concluding the ALJ’s decision is supported by

substantial evidence because (1) Claimant is not “precluded” from raising the issue of the VE’s

testimony because she failed to object to the VE’s testimony at the Remand Hearing; (2) the OEWS

data is part of the record in this case; and (3) the ALJ had a duty to independently verify the VE’s

testimony and failed to do so.

As a threshold matter, Claimant is incorrect that Judge Damian found Claimant is

precluded from raising the issue of the VE’s testimony. The R&R instead accurately observes

“[t]he Eleventh Circuit has consistently held that it will not consider data on appeal from an ALJ’s

decision where the claimant did not object to the VE’s testimony during the hearing.” Id. at 20

(citing Wooten, 787 F. App’x 671, 675 (11th Cir. 2019); Valdez, 808 F. App’x 1005, 1009 (11th

Cir. 2020); Bacon, 861 F. App’x at 320). Consistent with this guidance, Judge Damian found the

Court is foreclosed from considering the OEWS data because Claimant failed to object to the VE’s

testimony at the Remand Hearing. But this conclusion does not mean Claimant is precluded from

raising the issue, or that Claimant failed to preserve the issue. The Court is accordingly

unpersuaded by Claimant’s reliance on the Supreme Court’s holding in Sims v. Apfel that

“[c]laimants who exhaust administrative remedies need not also exhaust issues in a request for

review by the Appeals Council in order to preserve judicial review of those issues.” 530 U.S. 103,

112. Although Claimant is free to raise the issue of the VE’s testimony, she cannot establish that

testimony is unreliable by presenting new job data after failing to object to the testimony at the

Remand Hearing. Claimant’s reliance on Sims is thus misplaced.

Moreover, the Court agrees with Judge Damian’s conclusion that Claimant is foreclosed

from presenting OEWS data, including data derived from the Equal Distribution Method. As noted

above, this conclusion is consistent with controlling Eleventh Circuit precedent. Claimant observes

the R&R “does not specifically address Acosta’s assertion that the ALJ had complete access to

public data from the Department of Labor, as well as additional information and tools through

SSA’s own Digital Library[.]” ECF No. [18] at 3. However, the R&R explains Claimant fails to

“point to any case, regulation, or statute suggesting that the ALJ must sua sponte take

administrative notice of economic data when the claimant did not raise an issue with job numbers

during the hearing.” ECF No. [17] at 21. Judge Damian thus had no need to address additional

sources of job data the ALJ had no duty to evaluate or take notice.

Claimant contends this conclusion is erroneous because SSA regulations require the ALJ

to take administrative notice of the OEWS data. See 20 C.F.R. § 404.1566(d) (“When we determine

that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant

numbers either in the region where you live or in several regions of the country), we will take

administrative notice of reliable job information available from various governmental and other

publications.”) (emphasis added). Claimant reiterates the ALJ had access to the OEWS data

through the SSAs Digital Library. See generally Emergency Message EM-21065,

https://secure.ssa.gov/apps10/reference.nsf/links/10292021113305AM (last visited May 15,

2023). Taken together, Claimant argues these sources demonstrate the ALJ “not only had ready

access to the OEWS information, but that she was also required to administrative notice of it.”

ECF No. [18] at 4. Claimant also argues Judge Damian’s reliance on Falge v. Apfel, 150 F.3d

1320, 1323 (11th Cir. 1998) is misplaced, as “the data contained in the OEWS is not new evidence

being presented to this court for the first time.” Id. The Commissioner responds “the ALJ’s ability

to access information does not make it part of the record in her case[,]” and observes Claimant

lacks authority supporting this position. ECF No. [22] at 3.

The Court is unpersuaded by Claimant’s reliance on § 404.1566(d) and the SSA Digital

Library. As the Commissioner observes, Claimant lacks support for her position that the OEWS

data is properly considered part of the record because the ALJ had access to it through the SSA

Digital Library. Claimant observes § 404.1566(d) provides ALJs “will take administrative notice

of reliable job information available from various governmental and other publications.” As the

R&R observes, however, this regulation fails to establish the ALJ must sua sponte take notice of

any reliable job data where, as here, the claimant fails to challenge the job data during the hearing.

As discussed, the ALJ concluded occupations Claimant could perform existed in

significant numbers in the national economy “by relying solely on the VE’s testimony that there

were 107,000, 109,000, and 142,000 jobs in the national economy for the three identified

occupations.” ECF No. [17] at 11 (citing R. 1089-90). The ALJ therefore did not take judicial

notice of any other job information. Concluding the OEWS data is part of the record in this case

is thus particularly inappropriate, as the ALJ did not take judicial notice of this or any other job

data. Moreover, concluding § 404.1566(d) demonstrates the OEWS data is part of the record is

inconsistent with the Eleventh Circuit’s observation that “this [c]ourt has not placed an affirmative

duty on the ALJ to independently investigate a conflict between the VE’s testimony and job

availability figures provided by the Bureau of Labor Statistics in the [OEWS].”10 Webster, 773 F.

App’x at 556. The Court is accordingly unpersuaded by Claimant’s reliance § 404.1566(d) and the

SSA Digital Library. Neither demonstrates the OEWS data is part of the record on appeal, and the

ALJ had no duty to sua sponte investigate conflicts between the VE’s testimony and the OEWS

data.

The Court is accordingly unpersuaded that the R&R erred by concluding that the ALJ

properly relied on the VE’s testimony.

10 Claimant argues the Court should disregard Webster because “the Webster court made a critical

oversight when it stated that “the figures in the [OEWS] are not part of the SSA’s regulatory scheme.” ECF

No. [18] at 5 (quoting Webster, 773 F. App’x at 556). For support, Plaintiff notes § 404.1566(d) provides a

non-exhaustive list of reliable sources of job information and reiterates this provision explains ALJs “will

take administrative notice of reliable job information[.]” The Court is unpersuaded Webster erred on this

point. The fact that this list is non-exhaustive fails to show the OEWS data is properly considered part of

the SSA’s regulatory scheme. Even assuming the OEWS is part of the SSA’s regulatory scheme, this

conclusion does not disturb the Eleventh Circuit’s holding that an ALJ is only “required to independently

verify a VE’s testimony ... when there is a conflict between the VE’s testimony and the DOT.” Webster,

773 F. App’x at 555 (quoting Washington v. Comm’r Soc. Sec., 906 F.3d 1353, 1365 (11th Cir. 2018). Nor

does it undermine the Eleventh Circuit’s decision not to “place[] an affirmative duty on the ALJ to

independently investigate a conflict between the VE’s testimony and job availability figures provided by

the [OEWS].” Id. at 556. Claimant’s objection that the ALJ had a duty to independently verify the OEWS

data is accordingly foreclosed by Webster.

ii. Apparent Conflict

Claimant also objects to the R&R’s conclusion that even if the ALJ erred by failing to

resolve an apparent conflict between the reasoning level in Claimant’s RFC and the reasoning

ability required to perform a private industry mail sorter job, any such error was harmless.

Claimant contends the R&R “does not address Acosta’s argument that the Reasoning Level

requirements of the Mail Clerk job exceed Acosta’s RFC[.]” ECF No. [18] at 6. Judge Damian did

address this argument, however. As discussed, the R&R concluded “any error pertaining to the

ALJ’s conclusion that Ms. Acosta can work as a private industry mail sorter is harmless because

there are other jobs she is qualified to do that exist in significant numbers in the national economy.”

ECF No. [17] at 27 (citing Valdez, 808 F. App’x at 1009; Wooten, 787 F. App’x at 674). The R&R

accordingly did not err by failing to determine whether the ALJ in fact erred by failing to reconcile

any such conflict.

Furthermore, the Court agrees with the R&R’s conclusion that even if the ALJ failed to

reconcile an apparent discrepancy between Claimant’s RFC and the private industry mail sorter

job, any such error was harmless. Judge Damian observed that even if the 142,000 private industry

mail sorter jobs are discounted, the VE nonetheless identified a total of 216,000 photocopy

machine operator jobs and produce sorter jobs. Id. The R&R also observes Claimant does not argue

any apparent conflict exists with respect to those jobs. Consistent with Valdez and Wooten, Judge

Damian accordingly concluded the record establishes the 216,000 remaining jobs constitute

substantial evidence supporting the ALJ’s decision. Claimant does not address these authorities.

Instead, Claimant cites Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309 (11th Cir. 2021)

for the proposition that “[w]here additional (or more specific) agency fact-finding is needed,

remand is the appropriate disposition.” Id. at 1318 (citing Allen v. Barnhart, 357 F.3d 1140, 1144

(10th Cir. 2004)). As discussed above, the Eleventh Circuit found remand was warranted in

Viverette based on the ALJ’s failure to investigate job data discrepancies. 13 F.4th at 1319. While

doing so, the court noted it was persuaded by the Tenth Circuit’s observation that “[i]t is not for

this court to decide, in the first instance, whether a relatively low number qualifies as a ‘significant

number’ of jobs.’” Id. (quoting Kimes v. Comm’r of Soc. Sec., 817 F. App’x 654, 659 (10th Cir.

2020) (emphasis added)). Viverette fails to support remand in this context, however. Unlike in

Viverette, the Court need not decide whether a relatively low number of jobs constitutes a

significant number of jobs. The ALJ in Viverette testified there were 125,000 other jobs in the

national economy. Id. However, the ALJ failed to consider “an apparent conflict that affected

104,000 of those jobs.” Id. The Eleventh Circuit therefore found remand was appropriate “[g]iven

that over eighty percent of the jobs presented to the ALJ are affected by the apparent conflict[.]”

Id. Here, 216,000 other jobs remain even if the 142,000 private industry mail sorter jobs are

discounted. Remand is therefore unwarranted, as the record demonstrates the ALJ’s decision is

supported by substantial evidence even if those jobs are discounted.11

The Court is accordingly unpersuaded by Claimant’s Objection. As Judge Damian

accurately observes, the Eleventh Circuit has found far less than 216,000 available jobs satisfy the

Commissioner’s burden to identify a significant number of jobs in the national economy. See, e.g.,

Atha v. Comm’r of Soc. Sec., 616 F. App’x 931, 935 (11th Cir. 2015) (finding 23,800 jobs

nationally significant); Brooks v. Barnhart, 133 F. App’x 669, 671 (11th Cir. 2005) (affirming

“ALJ’s finding that 840 polisher, document preparer, and bonder jobs constituted a significant

11 Claimant also takes issue with Judge Damian’s suggestion that “the numbers produced by the

OEWS and Ms. Acosta’s Equal Distribution Method would likely satisfy the Commissioner’s burden of

identifying a significant number of jobs in the national economy.” ECF No. [17] at 25 n.6 (citations

omitted). As the Commissioner observes, however, this argument is irrelevant in light of the R&R’s

conclusion that the ALJ properly relied on the job data provided by the VE’s testimony. As discussed, the

Court agrees with and adopts this conclusion. Claimant’s objection therefore fails to show the R&R erred.

Case No. 23-cv-21426-BLOOM/Damian

number in the national economy”). The Court therefore agrees that any such error was harmless

and adopts this finding in full.

IV. CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows:

1. The R&R, ECF No. [17], is ADOPTED.

2. Claimant’s Motion for Summary Judgment, ECF No. [11], is DENIED.

3. The Commissioner’s Motion for Summary Judgment, ECF No. [13], is

GRANTED.

4. Claimant’s Objections, ECF No. [18], ace OVERRULED.

5. The Commissioner’s decision is AFFIRMED.

6. The Clerk of Court shall CLOSE the case.

DONE AND ORDERED in Chambers at Miami, Florida, on June 10, 2024.

BETHBLOOM i ists

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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