The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO. 24-20092-CIV-WILLIAMS/HUNT
MARIA CARBALLO,
Plaintiff,
v.
MARTIN O’MALLEY,
Commissioner for Social Security,1
Defendant.
_________________________________/
REPORT AND RECOMMENDATION
THIS CAUSE is before this Court on the Parties’ Cross Motions for Summary
Judgment. ECF Nos. 15, 19. The Honorable Kathleen M. Williams, United States District
Judge, referred this Matter to the undersigned United States Magistrate Judge for a
Report and Recommendation. ECF No. 14; see also 28 U.S.C.A. § 636(b); S.D. Fla. L.R.,
Mag. R. 1. Upon thorough review of the Motions and the Responses thereto, the entire
case file, the applicable law, and being otherwise fully advised in the premises, the
undersigned recommends Plaintiff’s Motion for Summary Judgment, ECF No. 15, be
DENIED and Defendant’s Motion for Summary Judgment, ECF No. 19, be GRANTED for
the reasons outlined below.
BACKGROUND
1 Although Kilolo Kijakazi was the Acting Commissioner of the Social Security
Administration at the time this case was filed, now Martin O’Malley is the Commissioner
of the Social Security Administration and is automatically substituted as Defendant
pursuant to Federal Rule of Civil Procedure 25(d).
Maria Carballo (“Plaintiff”) filed an application for Disability Insurance Benefits on
October 4, 2021, alleging a disability onset of September 22, 2020. ECF No. 15. The
Social Security Administration (“SSA”) denied her claim at the initial and reconsideration
levels. Id. A hearing on Plaintiff’s disability claim took place on April 10, 2023. Id. An
Administrative Law Judge (“ALJ”) issued an unfavorable decision denying Plaintiff’s claim
on April 27, 2023. Id. The Appeals Court affirmed the ALJ’s decision on November 22,
2023. Id. Plaintiff now seeks judicial review of the ALJ’s decision.
SOCIAL SECURITY FRAMEWORK
To determine whether a claimant is disabled, the Social Security Regulations
outline a five-step process:
(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 functioning capacity (“RFC”) 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).
Here, at step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since September 2020. ECF No. 11 at 15. At step two, the ALJ found Plaintiff
had the following combination of severe impairments: osteoarthrosis, depressive
disorders, generalized anxiety disorder, diabetes mellitus, hypertension, hyperlipidemia,
mitral insufficiency, cardiac murmur, chronic fatigue syndrome, morbid obesity, psoriasis,
status post covid-19, and osteoarthritis. Id. At step three, the ALJ found Plaintiff did not
have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. § 404. Id. at 16. At step four, the
ALJ found Plaintiff has the residual functional capacity (“RFC”) to perform light work as
defined in 20 CFR 404.1567(b) with several exceptions, including that Plaintiff could
“carry out simple instructions involving no more than three steps.” Id. at 18. After
consultation with a vocational expert (“VE”), the ALJ determined Plaintiff could not
perform past relevant work but could work as an office helper, garment sorter, and marker.
Id. at 22–23, jobs that exist in significant numbers in the national economy.
STANDARD OF REVIEW
Judicial review of the ALJ’s decision in a disability case is “limited to an inquiry into
whether there is substantial evidence to support the findings of the [ALJ], and whether
the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d, 1219, 1221 (11th
Cir. 2002) (citing 42 U.S.C. § 405(g)). Whether the ALJ applied the correct legal
standards is a question of law, which this Court reviews de novo. Graham v. Bowen, 790
F.2d 1572, 1575 (11th Cir. 1986). “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” 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)). In determining
whether substantial evidence exists, the court must scrutinize the record in its entirety,
“taking into account evidence favorable as well as unfavorable to the decision.” Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However, the court may not reweigh the
evidence or substitute its judgment for that of the ALJ. Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Even if the evidence preponderates against the ALJ’s decision,
the reviewing court must affirm if the decision applies the correct legal standard and is
supported by substantial evidence. See Crawford, 363 F.3d at 1158–59.
ANALYSIS
Plaintiff argues primarily that the ALJ failed to properly advise Plaintiff, who was
proceeding pro se, of her right to cross-examine the VE, depriving her of a meaningful
chance to question the expert. Plaintiff further argues the ALJ, in large part because of
the cross-examination error, failed to fully and fairly develop the record. This, according
to Plaintiff, prejudiced her, as there are apparent conflicts between the VE’s testimony
and the information contained in the Dictionary of Occupational Titles.
As for the primary argument, Plaintiff contends that the ALJ’s failure to properly
inform Carballo of her right to cross-examine the VE deprived Carballo the opportunity to
conduct any meaningful cross-examination. Noting that “[i]t is indisputable that the ability
to cross-examine witnesses is fundamental to due process,” Plaintiff argues it was a
fundamental error not to more fully inform Plaintiff of what such cross-examination might
entail. Marin v. Comm’r of Soc. Sec., 535 F. Supp. 2d 1263, 1265 (M.D. Fla. 2008). This
resulted in prejudice, Plaintiff argues, because the decision issued by the ALJ clearly
relied on the VE’s testimony, and the credibility of that testimony was untested.
Defendant responds the ALJ gave Plaintiff ample opportunity to cross-examine the
VE and further adequately informed her of her rights throughout the process. Defendant
cites to the transcript showing that the ALJ explained to Plaintiff about her rights to
representation, told her that an attorney or a non-attorney representative could help her
and may not charge a fee or receive a fee unless Social Security approved it, and asked
Plaintiff if she wanted to postpone the hearing so she could retain a representative.
Defendant also notes the ALJ asked Plaintiff in plain language whether the VE should be
allowed to testify, explained after Plaintiff interrupted the VE’s testimony that she would
have an opportunity to ask questions, and further asked whether Plaintiff had any
questions for the VE at the conclusion of the VE’s testimony.
It is true that an ALJ has a basic duty to develop a full and fair record, and this duty
is greater for an unrepresented claimant. Santos v. Soc. Sec. Admin. Comm'r, 731 F.
App'x 848, 854 (11th Cir. 2018). The undersigned finds the ALJ’s actions nonetheless
met that heightened duty as the ALJ adequately afforded Plaintiff a meaningful chance to
participate in her hearing and thus did not deprive Plaintiff of due process. A review of
the record demonstrates that, as cited by Defendant, the ALJ took care to include Plaintiff
in the process and properly prompted participation at the appropriate junctures.
Plaintiff cites to Marin v. Commissioner of Social Security to support her argument.
Marin, however, is not on all fours with Plaintiff’s situation. In Marin, the ALJ would not
allow the plaintiff’s attorney to ask direct questions when cross-examining an expert. 535
F. Supp. 2d at 1265. Here, Plaintiff certainly could have asked questions had she wanted.
The issue in this case is instead whether Plaintiff was given a meaningful opportunity to
do so. The undersigned finds that she was, and therefore Plaintiff’s Motion should be
denied on this point.
However, even were that not the case, remand would nonetheless not be required,
as a claimant must still show prejudice to warrant reversal. Id. Assuming, arguendo, that
the ALJ’s actions did deprive Plaintiff of her right to conduct a meaningful cross-
examination, “there must be a showing of prejudice before we will find that the claimant’s
right to due process has been violated to such a degree that the case must be remanded
. . . for further development of the record.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir.
1995). In the interest of fully addressing Plaintiff’s claims, the undersigned will address
whether Plaintiff suffered prejudiced due to insufficient development of the record.
Plaintiff argues there was such prejudice, as there is no indication that the jobs of
Office Helper, Garment Sorter, or Marker, which the VE testified could be performed by
Plaintiff, involved instructions of no more than three steps as dictated by the limitation in
the ALJ’s RFC finding. Plaintiff argues that without any testimony from the VE to explain
how these three jobs could be performed with instructions involving “no more than three
steps,” the VE’s testimony does not constitute substantial evidence upon which the ALJ
could rely because there is an apparent conflict between how the DOT defines how the
jobs are performed and the VE’s testimony that they could be performed. That this
apparent conflict was not resolved, Plaintiff argues, prejudiced Plaintiff.
Defendant responds the DOT’s narrative descriptions of these jobs do not indicate
or suggest they would involve instructions of more than three steps. The undersigned
agrees there is nothing on the face of the descriptions of the jobs cited by Plaintiff that
would indicate the jobs would require so many steps. Plaintiff cites no cases to the
contrary, while Defendant points to numerous cases that hold that that there is no conflict
between jobs requiring Reasoning Level 2, such as those at issue, and a one-to-three-
step instruction limitation. See, e.g., Surprise v. Saul, 968 F.3d 658, 662–63 (7th Cir.
2020); Alan R. v. Kijakazi, No. 2:20-CV-0382-JAG, 2022 WL 949819, at *4–5 (E.D. Wash.
Mar. 28, 2022); Padilla v. Saul, No. 3:18-CV-580-CHB, 2020 WL 1651227, at *10 (W.D.
Ky. Apr. 3, 2020).
It is true that an “ALJ has an affirmative duty to identify and resolve any apparent
VE-DOT conflict in a disability hearing.” Washington v. Comm’r of Soc. Sec., 906 F.3d
1353, 1365 (11th Cir. 2018). However, that conflict must be “reasonably ascertainable or
evident.” Christmas v. Comm’r or Soc. Sec., 791 Fed. Appx. 854, 857 (11th Cir. 2019).
“The ability to carry out instructions of three steps or less is not inconsistent with
Reasoning Level 2 jobs.” Bannister v. Colvin, No. C15-1741-RAJ, 2016 WL 5141722, at
*5 (W.D. Wash. Sept. 21, 2016). The VE was specifically asked whether a person with
Plaintiff’s instructions limitation could perform the jobs and testified that that the jobs could
be so performed. ECF No. 11 at *50. ALJs are not “require[d] . . . to draw inferences
about job requirements that are unsupported by the DOT’s text and then resolve conflicts
between the VE’s testimony and those unsupported inferences.” Christmas, 791 Fed.
Appx. at 857.
The undersigned finds Plaintiff has little more than speculation on which to ground
her claim of error. “[S]peculation that a conflict exists is insufficient to override the
testimony of the VE, who is an expert in the area, that there was no conflict.” Higgins v.
Comm’r of Soc. Sec., No. 6:11-CV-1221-ORL-KRS, 2012 WL 4327666, at *6 (M.D. Fla.
Sept. 20, 2012). Plaintiff was, therefore, not prejudiced by the ALJ’s lack of further inquiry
on the subject, and Plaintiff’s motion should likewise be denied on this point.
RECOMMENDATION
For the reasons set forth above, the undersigned hereby RECOMMENDS
Plaintiff’s Motion for Summary Judgment ECF No. 15, be DENIED, and Defendant’s
Motion for Summary Judgment, ECF No. 19, be GRANTED.
Within fourteen (14) days after being served with a copy of this Report and
Recommendation, any party may serve and file written objections to any of the above
findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.
§ 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely
object waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions contained in this Report and
Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).
DONE and SUBMITTED at Fort Lauderdale, Florida, this 13th day of January
2025.
Phe It
PATRICKM.HUNT □□□
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
The Hon Kathleen M. Williams
All Counsel of Record