Garcia v. Kijakazi

1

ODALYS DE LA CARIDAD GARCIA, Plaintiff, v. KILOLO KIJAKAZI, Commissioner of Social Security, Defendant.

No. 21-CV-23990 MORE/GOODMAN

United States District Court, S.D. Florida, Miami Division

March 6, 2023

The Honorable Federico A. Moreno All counsel of record

REPORT AND RECOMMENDATIONS ON SUMMARY JUDGMENT MOTIONS

JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE

This case challenges a denial of social security benefits. Plaintiff Odalys Garcia and Defendant Kilolo Kijakazi, Acting Commissioner of the Social Security Administration (“Commissioner”), filed cross-motions for summary judgment. [ECF Nos. 15; 18]. The Commissioner's summary judgment motion also served as her opposition response to Garcia's motion. [ECF No. 19]. Garcia filed a reply to the Commissioner's response. [ECF No. 20]. According to the Clerk's directive in these types of administrative appeals, all dispositive matters have been referred to the Undersigned for a Report and Recommendations. [ECF No. 2].

As explained below, the Undersigned respectfully recommends that the District Court deny Garcia's summary judgment motion grant the Commissioner's summary judgment motion, and enter a final judgment in favor of the Commissioner.

I. Procedural Background

On June 13, 2019, Garcia applied for supplemental security income, alleging a disability with an onset date of January 1, 1986^[1]. (R. 207-08).^[2] Garcia alleges disability due to severe depression and anxiety, fibromyalgia, endometriosis, “apendigitis [sic] epiploic,” and nephrotic syndrome. (R. 229). The Commissioner denied the application initially and on reconsideration. (R. 118; 126). After a hearing on March 17, 2021 (R. 19), Administrative Law Judge Lornette Reynolds (the “ALJ”) concluded that Garcia was not disabled. (R. 30). The Appeals Council denied review of the ALJ's decision. (R. 1-3). The Commissioner's final decision is now subject to review.

II. Factual Background

Garcia was 40 years old on the date of the ALJ's decision. (R. 207). Garcia has a GED and no past relevant work. (R. 229-30). At the time of the hearing, Garcia lived with her mother in her mother's home. (R. 44; 208). Garcia is able to drive to her medical appointments, to obtain medication, and to attend religious services, as well as venture into the community to “preach the word.” (R. 45-47).

III. Applicable Legal Standards

A. Standard of Review

In evaluating a claim for disability benefits, an ALJ must follow the five steps outlined in 20 C.F.R. §§ 416.920(a) and 404.1520, which the Undersigned summarizes as follows:

1. Step one. Is the claimant performing substantial gainful activity? If not, then an ALJ next determines:

2. Step two. Does the claimant have one or more severe impairments? If the claimant does, then an ALJ next considers:

3. Step three. Does the claimant have a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled; if not, then an ALJ must determine the claimant's residual functional capacity (“RFC”); and then determine:

4. Step four. Based on the RFC, can the claimant perform his or her past relevant work? If so, then the claimant is not disabled. If the claimant cannot perform his or her past relevant work, then an ALJ must finally determine:

5. Step five. Based on the claimant's age, education, and work experience, and the RFC, can he or she perform other work? If so, then the claimant is not disabled. If not, then the claimant is disabled and entitled to benefits.

See Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).

The claimant bears the burden of proving that he is disabled within the meaning of the Social Security Act. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). In reviewing the decision, the Court must consider the record as a whole and determine whether the ALJ applied the correct legal standard and whether substantial evidence in the record supports her findings of fact. Powers v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984).

“Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Phillips, 357 F.3d at 1240 n.8 (internal citation omitted). The Court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (internal citation omitted). And “[i]f the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Id. (internal citation omitted).

The Court is authorized to enter a judgment affirming, modifying, or reversing the decision of an ALJ, with or without remand. 42 U.S.C. § 405(g); Crawford & Co. v. Apfel, 235 F.3d 1298, 1302 n.13 (11th Cir. 2000).

IV. The ALJ's Findings

In denying Garcia's claim for benefits, the ALJ followed the sequential five-step evaluation process for social-security claims. (R. 19-30). At step one, the ALJ concluded that Garcia had not engaged in substantial gainful activity since January 28, 2019, the application date. (R. 21).

At step two, the ALJ concluded that Garcia had the following severe impairments: Congenital canal stenosis and degenerative joint disease of L4-L5; Osteopenia; Endometriosis, Status post hysterectomy; Major depressive disorder; and Anxiety disorder. (R. 21).

At step three, the ALJ concluded that Garcia did not have an impairment or combination of impairments classifiable as a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 22-23). Next, the ALJ determined that Garcia has the RFC to

perform light work as defined in 20 CFR 416.967(b) except the claimant can occasionally climb ladders, ropes, or scaffolds. She can frequently climb ramps or stairs. The claimant can frequently balance, stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to extreme cold, vibration, and hazards, such as unprotected heights and dangerous machinery. She can apply commonsense understanding to carry out simple tasks and instructions. The claimant can deal with standardized situations with occasional or no variables in or from these situations encountered on the job, consistent with reasoning level [ ] 1. She can have occasional interaction with the public on routine matters, but must not perform greeter-type positions.

(R. 23).

At step four, the ALJ concluded that Garcia has no past relevant work experience.

(R. 28).

Lastly, at step five, the ALJ found that there are jobs existing in significant numbers in the national economy that Garcia can perform, including Cleaner, Housekeeping;

Bottling Line Attendant; and Bagger. (R. 28-29). Accordingly, the ALJ found that Garcia has not been under a disability from January 28, 2019, through the date of the ALJ's decision (April 21, 2021). (R. 30).

V. Analysis

Garcia alleges two errors in the ALJ's decision: (1) the VE substantially overstated the number of available jobs, which means the ALJ's step five finding is not based on substantial evidence; and (2) the ALJ's RFC does not properly account for all of Garcia's physical limitations. [ECF No. 18]. Garcia bases her first argument on her post-hearing research into the number of available jobs using Job Browser Pro and O*Net. As support for her second argument, Garcia cites at length specific medical records detailing her ailments and injuries.

The Commissioner says that Garcia's first argument is foreclosed by Eleventh Circuit law and notes that Garcia did not challenge the VE's testimony during the hearing. Further, in the Commissioner's view, Garcia's second argument fails because these medical records contain no information revealing the impact of Garcia's medical conditions on her ability to work.

For the reasons discussed below, the Undersigned agrees with the Commissioner.

A. The VE's Testimony Constituted Substantial Evidence Upon Which the ALJ Could Rely

VEs are used by ALJs to determine if sufficient jobs exist in the national economy that the claimant can adjust to and perform. Phillips, 357 F.3d at 1240.

A vocational expert is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments. When the ALJ uses a vocational expert, the ALJ will pose hypothetical question(s) to the vocational expert to establish whether someone with the limitations that the ALJ has previously determined that the claimant has will be able to secure employment in the national economy.

Id. An ALJ may rely solely on the testimony of a VE to make a step five determination that a claimant has the ability to find work in the national economy. Mabrey v. Acting Comm'r of Soc. Sec. Admin., 724 Fed.Appx. 726, 730 (11th Cir. 2018).

Garcia claims the data presented by the VE regarding the availability of positions for each of the three identified jobs is substantially overstated. In support of this, Garcia details her post-hearing research -- using Job Browser Pro^[3] and O*Net -- into the job data discussed by the VE. She continues by positing her own theories, suggestions, and possible interpretations, and ultimately concludes that the VE, using unverified methodology, substantially overstated the number of bottling line attendant, bagger, and housekeeping cleaner jobs in the national economy.

Garcia's analysis of the VE's purported error when testifying as to the number of available bottling line attendant and bagger jobs is simple. The VE testified that there were 11,000 jobs available for each of these professions, for a total of 22,000 jobs. Garcia says that she looked on Job Browser Pro -- which she claims is “frequently relied upon by VEs as a...