Vargas v. Colvin (M.D. Fla. Jan. 27, 2016) (Magistrate Judge Karla Spaulding)

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Included: Parties’ Joint Memorandum and Decision

Issues Briefed:

  1. 1)  Whether the testimony about job numbers provided by the VE is sufficient to sustain the ALJ’s finding as to the numbers of jobs available that a person with the hypothetical limitations identified could perform.

  2. 2)  Whether substantial evidence supports the ALJ’s assessment of Ms. Vargas’s credibility and subjective complaints.

  3. 3)  Whether error was committed through the ALJ’s evaluation of the opinion evidence.

  4. 4)  Whether the ALJ sustainably evaluated Ms. Vargas’s migraine headaches and fibromyalgia.

In Vargas, the court agreed with plaintiff’s contention that the VE’s testimony about the number of jobs available in the national economy was not supported by substantial evidence “because the evidence does not establish that information about the number of jobs available that the VE obtained from the Job Browser Pro software is reliable.” Slip op. at ** As the court elaborated:

The VE testified that she had been trained in various methods of determining the number of jobs available, including labor market surveys, but she testified that she had not conducted surveys to determine the number of jobs she identified in her testimony that were available in the national economy. She testified that she initially looked at publications of the U.S. Department of Labor and the Connecticut Department of Labor, but she did not explain what information, if any, she obtained from these sources. She also testified that she knew the types of jobs she identified still existed in Connecticut, but she offered no testimony that she knew the number of such jobs available from her personal observation. Therefore, the administrative record shows that the ALJ obtained information about the number of jobs available regionally and nationally solely from the Job Browser Pro software.

It does not appear the courts in this circuit have addressed the question of the reliability of number of jobs obtained from Job Browser software. Courts in other jurisdictions have addressed this issue. The majority of these courts have concluded that exclusive reliance on the raw numbers of jobs produced by a software program, including Job Browser Pro software, is insufficient to provide substantial evidence at step five of the sequential evaluation unless the VE also provides evidence of the number of jobs available in the national economy based on her own knowledge and experience. See Dorman v. Comm’r of Soc. Sec., No. 12-40023-TSH, 2013 WL 4238315, at *8 (D. Mass. May 21, 2013) (discussing Clark v. Astrue, No. 09-390-P-H, 2010 WL 2924237 (D. Me. July 19, 2010); Poisson v. Astrue, No. 2:11-cv-245-NT, 2012 WL 1067661, at *8-10 n.4 (D. Me. Mar. 28, 2012), adopted by 2012 WL 1416669 (D. Me. Apr. 24, 2012); Woodard v. Astrue, No. 1:10-cv-327-DBH, 2011 WL 2580641, at *5 (D. Me. Jun. 28, 2011), adopted by 2011 WL 2890371 (D. Me. July 19, 2011)).

The court distinguished Lewis v. Comm’r of Soc. Sec., No. 3:12-cv-01720, 2013 WL 5563764 (ND. Ohio Sept. 30, 2013), which upheld reliance on the Job Browser Pro software, because in this case, unlike in Lewis, the “VE did not testify how she used the government publications she initially reviewed and she provided no testimony that the numbers derived from the software program appeared to be accurate based on her experience.” The court concluded that the record before the court was insufficient to support a finding that the “information the VE relied upon, including the raw data obtained from the Job Browser Pro software, is reliable . . . .”

The court further directed that, on remand, the ALJ should “follow the law in this circuit, including the Eleventh Circuit’s pain standard” and “should state with particularity the weight given to the medical opinions in the record.” The ALJ should also accord “substantial weight to the opinions of treating professionals or state good cause supported by substantial evidence for giving less weight to those opinions.”