Opinion
CIVIL ACTION NO. 1:21-CV-01171-LTW
2022-09-06
BARRY C. S., Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
Joel Max Grist, Jr., Grist Law, LLC, Macon, GA, for Plaintiff. Mark Allen Weaver, Rylan Lawrence Smith, Office of the General Counsel Social Security Administration, Baltimore, MD, for Defendant.
Joel Max Grist, Jr., Grist Law, LLC, Macon, GA, for Plaintiff. Mark Allen Weaver, Rylan Lawrence Smith, Office of the General Counsel Social Security Administration, Baltimore, MD, for Defendant. FINAL ORDER LINDA T. WALKER, UNITED STATES MAGISTRATE JUDGE
The parties have consented to the exercise of jurisdiction by the undersigned pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. [See April 6, 2021 Docket Entry]. Therefore, this Order constitutes a Final Order of the Court.
Plaintiff seeks Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act ("the Act"). Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Acting Commissioner of the Social Security Administration ("the Commissioner") denying her claim. Plaintiff filed his application in March 2014, ultimately alleging that he became unable to work on June 1, 2005. See [Doc. 9 ("Tr.") 238-48]. After the application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on June 19, 2019. [Tr. 35-65]. On November 15, 2019, the ALJ issued an unfavorable decision on Plaintiff's claims. [Tr. 17-34].
Plaintiff initially alleged he became unable to work because of a disabling condition on April 7, 2003. [Tr. 240]. But because he performed substantial gainful activity after that date, Plaintiff later changed his alleged onset date. See [Tr. 253].
On January 29, 2021, the Appeals Council denied Plaintiff's Request for Review of the ALJ's decision, resulting in a final decision of the Commissioner. [Tr. 1-7]. Having exhausted all administrative remedies, Plaintiff timely filed this action. [Doc. 1]. It is now before the undersigned upon the administrative record, the pleadings, and the parties' briefs, and is ripe for review. For the reasons set forth below, the decision of the Commissioner is REVERSED and that this action will be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with the below discussion.
I. STANDARD FOR DETERMINING DISABILITY
An individual is disabled for purposes of disability benefits if he or she is unable 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). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically accepted clinical or laboratory diagnostic techniques and are of such severity that the claimant is not only unable to do his or her previous work, but cannot—considering age, education, and work experience—engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)-(3).
The burden of proof in a social security disability case is divided between the claimant and the Commissioner. The claimant bears the initial burden of establishing the existence of a "disability" by demonstrating that he or she is unable to perform his or her former type of work. Once the claimant has met this burden, the burden shifts to the Commissioner to show that, considering claimant's age, education, work experience and impairment, there are some other types of jobs that exist in the national economy that the claimant can perform. The overall burden, however, rests upon the claimant to prove that he or she is unable to engage in any substantial gainful activity that exists in the national economy. Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
As summarized below, a five-step sequential analysis must be used when evaluating a disability claim.
(1) The Commissioner must determine whether the applicant is currently working; if so, the claim is denied.See 20 C.F.R. §§ 404.1520-76.
(2) The Commissioner must determine whether the claimed impairment is severe; that is, whether the impairment or combination of impairments significantly limits the individual's physical or mental ability to do basic work activities; if not, the claim is denied.
(3) The Commissioner must determine whether the impairment equals or exceeds in severity certain impairments described in the impairment listings in the regulations; if it does, the claimant is automatically entitled to disability benefits.
(4) The Commissioner must determine whether the applicant has sufficient residual functional capacity to perform past work; if so, the claim is denied.
(5) The Commissioner must determine, on the basis of claimant's age, education, work experience, and residual functional capacity, whether the applicant can perform any other gainful and substantial work within the economy; if so, the claim is denied.
The residual functional capacity ("RFC") is "an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite his impairments . . . . Along with his age, education and work experience, the claimant's residual functional capacity is considered in determining whether the claimant can work." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. §§ 404.1545(a), 404.1520(f)). "RFC includes physical abilities, such as sitting, standing or walking, and mental abilities, such as the ability to understand, remember and carry out instructions or to respond appropriately to supervision, coworkers and work pressure." Dempsey v. Comm'r of Social Security, 454 F. App'x 729, 731 n.3 (11th Cir. 2011) (citation omitted). In determining the claimant's RFC, the ALJ is required to consider the limiting effects of all the claimant's impairments, even those that are not severe. See Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) ("[T]he ALJ must determine the claimant's RFC using all relevant medical and other evidence in the case."); 20 C.F.R. § 404.1545(e) ("[W]e will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity."); 20 C.F.R. § 416.945(e) (same).
II. SCOPE OF JUDICIAL REVIEW
Judicial review of the Commissioner's denial of social security benefits is limited to determining whether there is substantial evidence in the record to support the findings and decision of the Commissioner and whether proper legal standards were applied. The Commissioner's findings are conclusive if supported by substantial evidence and proper legal standards were applied. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987); Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
A court must "give substantial deference to the Commissioner's decision." Dyer v. Barnhart, 395 F.3d 1206, 1212 (11th Cir. 2005). "Judicial review of factual findings in disability cases is limited to determining whether the record contains substantial evidence to support the [Commissioner's] findings." Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). The court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. If the Commissioner applies the correct legal standards, the Court's role is limited to determining if the decision is supported by substantial evidence.
Substantial evidence is more than a scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court cannot uphold the Commissioner's decision by "referring only to those parts of the record which support the ALJ," but must instead "view the entire record and take account of evidence in the record which detracts from the evidence relied on by the ALJ." Tieniber, 720 F.2d at 1253.
The Eleventh Circuit has held that an ALJ "must state with particularity the weight given to different medical opinions and the reasons therefor." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)); accord 20 C.F.R. §§ 404.1527, 416.927. "In the absence of such a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the merits of the claim is rational and supported by substantial evidence." Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
III. BACKGROUND FACTS
The ALJ's decision states the relevant facts of this case, as modified herein, as follows:
Plaintiff testified he could not work during the relevant period, June 1, 2005, through December 31, 2007, because he suffers from HIV and had to take medications, suffers from anxiety and nervousness, has right arm pain/weakness/and numbness, which cause difficulty lifting and holding onto things. Due to his compromised immune system, he would get sick more often and have to miss work. Plaintiff also testified that he was suffering from headaches. Plaintiff left his last job prior to the alleged onset date because they were discriminating against him, and he had to be hospitalized for a month, after telling his therapist, he wanted to blow up his employer.
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that his statements are not entirely consistent with the medical evidence and other evidence in the record. Specifically, the ALJ decided Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms are inconsistent because the medical evidence does not support the severity alleged, or a finding that he could not work.
Plaintiff was diagnosed with HIV in March of 2003 and began treatment with numerous medications. His HIV was stable throughout the relevant period, and even into at least 2011. Plaintiff did not complain of headaches in 2005, but did complain of headaches in 2008, and underwent a brain MRI, which showed mild atrophy and periventricular white matter changes of leukomalacia, based on small vessel white matter ischemic disease. Plaintiff was diagnosed with prediabetes mellitus during the relevant period. After the date last insured, he was diagnosed with diabetes mellitus, treated with Metformin, and advised to follow a low sugar diabetic diet.
The ALJ noted that the MRI was after the date last insured, but decided it was possible Plaintiff was suffering headaches prior to the date last insured. Thus, the ALJ afford Plaintiff appropriate limitations for his headaches in her RFC assessment. The claimant was pre-diabetic during the relevant period, and there was no evidence that full-onset diabetes mellitus alone caused any functional limitations. But the ALJ decided that, combined with his headaches and HIV, the combination of impairments contributed to an overall decrease in functioning. Additionally, Plaintiff was advised to not lift heavy objects. The ALJ decided these physical impairments in combination warranted the physical limitations afforded in the RFC.
During Plaintiff's treatment at Pride Medical, during the relevant period, he did not report anxiety or depression, and all his psychiatric notes, taken during systems evaluation, were negative for anxiety or depression. Plaintiff was noted as depressed in 2003 and offered medication, but he refused. In 2009, after the date last insured, Plaintiff was diagnosed with depression and began treatment with medication and counseling. The ALJ therefore decided it was credible that Plaintiff was suffering from depression and anxiety during the relevant period, as he testified. As such, the ALJ afforded appropriate limitations in the RFC.
As for the opinion evidence, Dr. Patricia Schiff, the state agency consulting physician who reviewed the medical records available on August 30, 2014, found Plaintiff could perform light exertion level work. Dr. George Walker, the state agency consulting physician who reviewed the medical records available on May 13, 2015, found Plaintiff could perform medium exertion level work. The ALJ gave little weight to Dr. Schiff's opinion, finding that the evidence and Dr. Walker's opinion showed Plaintiff was able to work at a medium exertion level. Plaintiff's treating physicians only advised him to refrain from heavy lifting, which the ALJ interpreted as lifting over 50 pounds. The ALJ gave some weight to Dr. Walker's opinion, finding it consistent with Plaintiff's treatment record. The ALJ also provided additional limitations based on Plaintiff's testimony.
As mentioned above, Plaintiff's treatment providers advised him to avoid heavy lifting. The ALJ gave these opinions little weight, finding them too vague because they did not adequately define "heavy lifting." Nevertheless, the ALJ limited Plaintiff to medium exertion level work, which limited his lifting to 50 pounds occasionally. The ALJ decided this RFC prevented "heavy lifting." In sum, the ALJ concluded that the below RFC assessment is supported by the medical evidence.
IV. THE ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
(1) Plaintiff met the insured status requirements of the Act through December 31, 2007.
(2) Plaintiff did not engage in substantial gainful activity between the alleged onset date and his date last insured. (20 C.F.R. § 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe
impairments: HIV, headaches, diabetes mellitus, depression, and anxiety. (20 C.F.R. § 404.1520(c)).[Tr. 22-28].
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
(5) Plaintiff had the RFC to perform medium work as defined 20 C.F.R. § 404.1567(c) except as follows. Plaintiff can climb ladders, ropes, or scaffolds. He can only occasionally push and pull, and frequently handle and finger with his right arm. Plaintiff must avoid concentrated exposure to unprotected heights and hazardous machinery. Plaintiff is limited to performing simple, routine, repetitive tasks, in an environment absent of fast-paced work with simple decision making and few changes. He can have occasional contact with the public, coworkers, and supervisors. Plaintiff will be off task no more than 10% of the workday and will miss one day a month from work.
(6) Through the date last insured, Plaintiff was unable to perform any past relevant work. (20 C.F.R. § 404.1565).
(7) Plaintiff was 48 years old on the date last insured, which is defined as a younger individual. (20 C.F.R. § 416.963).
(8) Plaintiff has at least a high school education and is able to communicate in English. (20 C.F.R. § 416.964).
(9) Transferability of job skills was not material to the determination of disability because Plaintiff was not disabled, whether or not Plaintiff has transferable job skills. (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the Plaintiff could perform. (20 C.F.R. §§ 404.1569, 404.1569a).
(11) As such, Plaintiff was not under a disability, as defined in the Act, at any time from June 1, 2005, the alleged onset date, through December 31, 2007, the date last insured. (20 C.F.R. § 404.1520(g)).
V. CLAIMS OF ERROR
Plaintiff raises three arguments but the first is the most persuasive, albeit for slightly different reasons than those articulated by Plaintiff. There is an internal, unresolved conflict in the testimony of the vocational expert ("VE"). On the one hand, the VE testified someone with Plaintiff's RFC could perform three jobs with a General Education Development ("GED") reasoning level of either two or three. See [Tr. 56-58]. On the other hand, the VE testified that someone limited to "simple, routine, repetitive tasks, with no more than simple work-related decisions" would not be able "to carry out detailed manual instructions." [Tr. 59]. That creates a conflict because the Dictionary of Occupational Titles ("DOT") states that a GED reasoning level of two or higher requires the ability "to carry out detailed but uninvolved written or oral instructions." DOT Vocational App'x C, 1991 WL 688702.
To the extent Plaintiff argues "the VE's testimony conflicted with the contents of the DOT," that argument fails. [Doc. 11 at 6]. The "DOT simply does not contain any information as to whether the jobs at issue can be performed" by someone with Plaintiff's RFC. See Quinones v. Comm'r of Soc. Sec., No. 6:16-CV-1518-ORL-DCI, 2018 WL 829130, at *6 (M.D. Fla. Feb. 12, 2018). And there is no apparent conflict when a VE testifies that someone limited to "simple instructions" can perform jobs with a level 2 GED reasoning level. Buckwalter v. Acting Comm'r of Soc. Sec., 5 F.4th 1315, 1324 (11th Cir. 2021); see also Matos v. Comm'r of Soc. Sec., No. 21-11764, 2022 WL 97144, at *6 (11th Cir. Jan. 10, 2022) (holding that there "is no apparent conflict between a limitation to simple, routine, repetitive tasks and a requirement to carry out detailed but uninvolved instructions"); Peterson v. Comm'r of Soc. Sec., No. 21-10086, 2021 WL 3163662, at *3 (11th Cir. July 27, 2021) ("We conclude that there was no apparent conflict between an RFC limitation to simple, routine, repetitive tasks and the DOT's description of jobs requiring level two reasoning."); Valdez v. Comm'r of Soc. Sec., 808 F. App'x 1005, 1009 (11th Cir. 2020) (holding that "a limitation to simple, routine, and repetitive work" is not inconsistent with a job "which has a reasoning level of two"). As such, Social Security Ruling ("SSR") 00-4p is not applicable. See SSR 0-4p (providing that an ALJ must "ask about any possible conflict between that VE [testimony] and information provided in the DOT").
But as Plaintiff correctly notes in reply, that does not resolve the "real conflict in this case." See [Doc. 18 at 2]. The real conflict is between the VE's testimony that Plaintiff could perform reasoning level two jobs and the VE's later testimony that Plaintiff could not "carry out detailed instructions." [Id.]. That is a contradiction because reasoning level two requires the ability "to carry out detailed but uninvolved written or oral instructions." DOT Vocational App'x C, 1991 WL 688702. If Plaintiff cannot carry out detailed instructions, he cannot perform the reasoning level two jobs. As will be discussed below, the VE's "internally inconsistent" testimony "created a critical void in the record" because if Plaintiff cannot perform the jobs listed by the VE, the ALJ's Step Five analysis is not supported by substantial evidence. See Goode v. Comm'r of Soc. Sec., 966 F.3d 1277, 1282-83 (11th Cir. 2020)
In a footnote, the Commissioner notes "reasoning level 2 is 'detailed but uninvolved' not just detailed." [Doc. 15 at 9 n.3]. The point is immaterial. Detailed but uninvolved instructions are a subset of detailed instructions—i.e., all "detailed but uninvolved instructions" are "detailed instructions," but not all "detailed instructions" are "detailed but uninvolved." The VE testified someone limited to simple, routine tasks could not carry out "detailed . . . instructions." [Tr. 59].
First though, the Court notes that Plaintiff's counsel should have raised this issue at the hearing. If Plaintiff's counsel had done so, the ALJ and the VE could have easily resolved the contradiction. Since Plaintiff's counsel prompted the conflict in the VE's testimony with a leading question (see [Tr. 59]), it is quite strange that he did not raise the issue until after the hearing. See [Tr. 364-65]. But Plaintiff's counsel did at least raise the issue before the ALJ's decision was final, and thus did not waive it. The ALJ had an opportunity to address the problem and could have done so in several ways.
The ALJ could have held a second hearing or "served written interrogatories on the VE." See Field v. Comm'r of Soc. Sec., No. 618CV1190RL37KRS, 2018 WL 7568927, at *7 (M.D. Fla. Dec. 10, 2018), report and recommendation adopted, 2019 WL 912278 (M.D. Fla. Feb. 25, 2019). As discussed above, the ALJ was not required by SSR 00-4p to ask the VE additional questions because the conflict was an internal inconsistency, not a conflict between the VE's testimony and the DOT. See Webster v. Comm'r of Soc. Sec., 773 F. App'x 553, 556 (11th Cir. 2019) (holding that SSR 00-4p only applies "when there is a conflict between the VE's testimony and the DOT"). But the ALJ must still "resolve material conflicts in the testimony." Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986).
As the Commissioner argues, the ALJ could have resolved the conflict by crediting the VE's testimony that Plaintiff's RFC does not preclude jobs with a reasoning level of 2. See [Doc. 15 at 7-10]. But that is not what happened. The Court observes that this portion of the Commissioner's brief never cites to the ALJ's decision. [Id.]. The Court cannot rely on "appellate counsel's post hoc rationalizations for agency actions." Baker v. Comm'r of Soc. Sec., 384 F. App'x 893, 896 (11th Cir. 2010). In addressing Plaintiff's argument about "unresolved discrepancies" with the VE's testimony, the ALJ relied on the fact that "there are likely additional jobs at medium exertion level, and lower exertion levels, which the claimant can perform." [Tr. 28].
If the ALJ had listed jobs in the DOT with reasoning level one that otherwise complied with Plaintiff's RFC, that might have been an acceptable resolution. The ALJ can rely on the DOT in determining whether jobs exist in the national economy. 20 C.F.R. § 404.1566(d)(1). The ALJ "may use the services of a [VE]," but is not necessarily required to do so. See id. § 404.1566(e) ("We will decide whether to use a vocational expert or other specialist."); see also Dukes v. Saul, No. 8:18-CV-2553-T-SPF, 2020 WL 755393, at *3 (M.D. Fla. Feb. 14, 2020) (holding that an ALJ "is not required[ ] to rely on a VE's testimony"). But the ALJ did not point to other jobs listed in the DOT that Plaintiff can perform. Instead, the ALJ speculated that there are "likely" some other jobs Plaintiff can perform. [Tr. 28].
The ALJ does not need "a precise count of job numbers." Goode, 966 F.3d at 1284 (quoting Chavez v. Berryhill, 895 F.3d 962, 968 (7th Cir. 2018)). But speculation that a claimant can "likely" perform some unspecified number of "additional jobs" is not sufficient evidence to support a conclusion that "the claimant was capable of making a successful adjustment to other work that existed in significant numbers in the national economy." See [Tr. 28]. The VE's testimony "was internally inconsistent" about whether Plaintiff could handle detailed instructions, and that inconsistency "created a critical void in the record" because all the jobs the VE said Plaintiff could perform require level 2 reasoning. See Goode, 966 F.3d at 1282-83. The ALJ could have either resolved the inconsistency or otherwise demonstrated there were a sufficient number of other jobs in the national and regional economies that Plaintiff could perform. But the ALJ cannot resolve "internally inconsistent" VE testimony with an assessment "about available jobs [that] lack[s] a baseline of reliability." See Goode, 966 F.3d at 1285. When "internal conflict and ambiguity" in "the VE's testimony make[s] it unclear whether [a claimant] was employable or not," the ALJ should resolve that conflict. See Wallace v. Barnhart, 256 F. Supp. 2d 1360, 1374-75 (S.D. Fla. 2003). If the ALJ does not "erase the ambiguity contained in the VE's testimony," it may be necessary for the Court to "remand the case to further develop the record." See id. at 1377. That is the situation here.
Upon remand, the Commissioner must conduct a full reevaluation of the entirety of Plaintiff's combination of impairments, and the reevaluation could affect other findings by the ALJ. If another administrative hearing is conducted, the reevaluation could also affect any hypothetical questions posed to a vocational expert. Therefore, the undersigned finds it unnecessary to address Plaintiff's remaining arguments. See Demenech v. Sec'y of the Dep't of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (concluding that most of plaintiff's arguments did not need to be addressed because remand was warranted on a significant issue); Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam) (finding that it was unnecessary to address most of the issues raised by the plaintiff because they were likely to be reconsidered on remand). Additionally, on review of the record, the Court notes that all the evidence submitted during the administrative process, should be considered upon remand. See 20 C.F.R. §§ 404.900(b), 416.1400(b) (stating that with certain limitations, the Social Security Administration "will consider at each step of the review process any information you present as well as all the information in our records").
CONCLUSION
Based on the forgoing reasons and cited authority, the Court ORDERS that the decision of the Commissioner be REVERSED and that this action be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with the above discussion. The Clerk is DIRECTED to enter judgment in favor of Plaintiff. IT IS FURTHER ORDERED that, in the event past due benefits are awarded to Plaintiff upon remand, Plaintiff's attorney may file a motion for approval of attorney's fees under 42 U.S.C. §§ 406(b) and 1383(d)(2) no later than thirty days after the date of the Social Security letter sent to Plaintiff's counsel of record at the conclusion of the Agency's past-due benefit calculation stating the amount withheld for attorney's fees. Defendant's response, if any, shall be filed no later than thirty days after Plaintiff's attorney serves the motion on Defendant. Plaintiff shall file any reply within ten days of service of Defendant's response.
SO ORDERED, this 6th day of September, 2022.
ORDER on MOTION to ALTER or AMEND
On September 6, 2022, the Court entered a final order in this case reversing the decision of the Acting Commissioner of the Social Security Administration ("the Commissioner") and remanding pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. [Doc. 19]. On October 4, 2022, the Commissioner filed a Motion to Alter or Amend the Judgment pursuant to Fed. R. Civ. P. 59(e). [Doc. 21]. Plaintiff responded ([Doc. 22]), and the Commissioner chose not to file a reply.
The only grounds for a Rule 59(e) motion "are newly-discovered evidence or manifest errors of law or fact." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). The Commissioner does not argue that she can present any newly-discovered evidence or show any manifest errors of fact. [Doc. 21]. Thus, the Commissioner must show the Court's final order contains a "manifest errors of law." Arthur, 500 F.3d at 1343. To show a manifest error of law, the Commissioner must demonstrate "wholesale disregard, misapplication, or failure to recognize controlling precedent." In re Castleberry, 437 B.R. 705, 707 (Bankr. M.D. Ga. 2010) (quoting Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)). A Rule 59(e) motion is not to be used to simply "ask the district court to reexamine an unfavorable ruling." Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010). The remedy in that situation is to appeal. Id.
The Commissioner's argument fundamentally misunderstands the final order. The Commissioner discusses cases holding there is "no apparent conflict between Reasoning Level 2 jobs and a limitation to simple instructions." [Doc. 21 at 4-7]. The Court agrees. The Court already held "there is no apparent conflict when a [vocational expert ("VE")] testifies that someone limited to 'simple instructions' can perform jobs with a level 2 . . . reasoning level." [Doc. 19 at 12-13]. That is not the issue here. The issue is that there was "an internal, unresolved conflict in the [VE] testimony" itself. [Id. at 12]. The VE said someone with Plaintiff's limitations would not be able "to carry out detailed manual instructions." [Tr. 59]. But the VE also said Plaintiff could perform jobs requiring him "to carry out detailed but uninvolved written or oral instructions." Dictionary of Occupational Titles ("DOT") Vocational App'x C, 1991 WL 688702.
The Commissioner argues "detailed but uninvolved" instructions cannot "be[ ] detailed" because of "the qualifier of 'uninvolved.' " [Doc. 21 at 3]. That is not how language works. A "detailed but uninvolved" instruction is still "detailed," just like someone who is "wealthy but not a billionaire" is still "wealthy." Indeed, the Commissioner's own cases contradict the Commissioner's argument. The qualifier "uninvolved" means that the instructions are "simple," since "both connote instructions that 'are not complicated or intricate.' " Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019) (quoting Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010)). The word "uninvolved" does not contradict the word "detailed," as the Commissioner suggests. See [Doc. 21 at 3]. Instead, "detailed instructions are, in the main, less correlated with complexity than with length." Lawrence, 941 F.3d at 143. Instructions that "include many steps" are " 'detailed' because detail and length are highly correlated." Id. But if "each of [the steps] is straightforward," the instructions are still "uninvolved." Id. That is, instructions can be both "detailed" and "uninvolved." Otherwise, the phrase "detailed but uninvolved instructions" would be nonsense. Contrary to the Commissioner's argument, saying instructions are "uninvolved" does not "take[ ] those instructions out of the context of being detailed." See [Doc. 21 at 3].
The Commissioner incorrectly asserts the cases she cites "explain that detailed but uninvolved instructions are not a subset of detailed instructions." [Id. at 7]. N one of the cases discuss whether "detailed but uninvolved instructions" are "detailed instructions." See [Doc. 21 at 4-7]. Instead, the cases deal with whether there is a conflict between "detailed but uninvolved instructions" and a limitation to "simple" instructions. Again, that is not the issue here. The Court already agreed that there is no conflict between "detailed but uninvolved instructions" and a limitation to "simple" instructions. [Doc. 19 at 12-13]. The issue here is that the VE said someone with Plaintiff's limitations could not "carry out detailed manual instructions" but then said Plaintiff could perform jobs that require him to carry out detailed instructions. See [Tr. 59].
The Commissioner wants the Court to ignore the part of the VE's testimony where she said Plaintiff could not "carry out detailed . . . instructions" and to credit the other part of the VE's testimony where she said Plaintiff could perform jobs that require him to "carry out detailed . . . instructions." That is not the Court's role. When "internal conflict and ambiguity" in "the VE's testimony make[s] it unclear whether [a claimant] was employable or not," the ALJ should resolve that conflict. Wallace v. Barnhart, 256 F. Supp. 2d 1360, 1374-75 (S.D. Fla. 2003); see also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (holding that the ALJ must still "resolve material conflicts in the testimony").
As discussed above, the Commissioner has not shown a "wholesale disregard, misapplication, or failure to recognize controlling precedent." See In re Castleberry, 437 B.R. at 707. The only binding precedent the Commissioner cites in support of her argument is Buckwalter v. Acting Comm'r of Soc. Sec., 5 F.4th 1315, 1323 (11th Cir. 2021), a case that this Court relied on and agreed with. [Doc. 19 at 12-13]. But Buckwalter does not involve a situation where the VE said the claimant cannot "carry out detailed manual instructions." None of the cases the Commissioner relies on involve such an explicit contradiction in the VE's testimony. [Doc. 21 at 4-7]. For the foregoing reasons, the Commissioner's Motion to Alter or Amend the Judgment ([Doc. 21]) is DENIED.
SO ORDERED, this 17th day of February, 2023.