DARRELL v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION (2026)

ORDER

This matter comes before the Court upon review of the parties' briefing regarding Plaintiff Darrel L's (“Plaintiff”) appeal of the final decision by the Commissioner of the Social Security Administration (“the Commissioner”) denying Plaintiff's application for Supplemental Security Income (Docs. 8; 9; 10), the Magistrate Judge's Final Report and Recommendation (“R&R”) recommending the Commissioner's decision be affirmed [Doc. 13], and the parties' supplemental briefs (Docs. 16; 17).

For the reasons that follow, the Court REJECTS the R&R, REVERSES the decision of the Commissioner and REMANDS this action to the agency for further proceedings consistent with this opinion.

I. Background

Plaintiff filed this Social Security disability appeal on March 13, 2025, seeking federal judicial review of the Commissioner's final decision denying Plaintiff's application for Supplemental Security Income (“SSI”). (Doc. 1). At the agency level below, the Commissioner denied SSI to Plaintiff based on the finding by the Administrative Law Judge (“ALJ”) that Plaintiff was not disabled because he was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (See Administrative Record (“AR”) 534, Doc. 6-8 at 18).¹ Once the ALJ's finding of non-disability became the final decision of the Commissioner on January 14, 2025, Plaintiff timely appealed the decision to this Court on March 13, 2025. (Doc. 1).

On July 20, 2026, the Magistrate Judge issued an R&R [Doc. 13], recommending the final decision of the Commissioner be affirmed. Although neither party filed objections to the R&R, the Court determined upon its own review of the record that a key question in this matter had not been sufficiently addressed by the R&R and ordered supplemental briefing by the parties on that question. (Doc. 15). As should be apparent by the amount of ink spilled on the issue in this case, that key question is complex and difficult to state succinctly. In short, though, it has to do with the appropriateness of the Court engaging in fact-finding in the context of a harmless error analysis.

To elaborate, the Magistrate Judge in this case assumed without deciding that the ALJ at the agency level below had committed error by including the occupation of “Mail Clerk” among the jobs that Plaintiff could perform at step five of the ALJ's disability determination. [Doc. 13 at 24]. Indeed, it cannot be disputed that this was error. As noted in the R&R, the Commissioner “apparently concedes” that the Mail Clerk occupation requires Level 3 reasoning. [Id.]. It makes sense that the Commissioner apparently concedes as much, because the listing for the Mail Clerk occupation in the Dictionary of Occupational Titles is clear that the position requires Level 3 reasoning. See MAIL CLERK, 1991 WL 671813, DICOT 209.687-026. Moreover, binding circuit precedent dictates that jobs requiring Level 3 reasoning are in apparent conflict with a Residual Functional Capacity (“RFC”) determination limiting a claimant to understanding, remembering, and carrying out simple instructions, like the Plaintiff's RFC in this case. Viverette v. Comm'r of Soc. Sec., 13 F.4th 1309, 1315–17 (11th Cir. 2021). (See also Doc. 6-8 at 12, AR 528 (the ALJ's RFC determination, in which he found Plaintiff limited to understanding, remembering, and carrying out simple instructions)). Yet, here, the ALJ failed to resolve the apparent conflict between the Plaintiff's RFC limitation to “simple instructions” and the Vocational Expert's (“VE's”) testimony during the agency hearing below that a person with such an RFC could perform the Mail Clerk occupation requiring Level 3 reasoning. This was error. Viverette, 13 F.4th at 1317 (“Level 3 reasoning [ ] requires more than the ability to carry out simple instructions.”). See also Keller v. Berryhill, 754 F. App'x 193, 197–98 (4th Cir. 2018) (“A limitation to short and simple instructions appears more consistent with Reasoning Development Level 1 or Level 2 than with Level 3.”). The Magistrate Judge thus appropriately assumed error on this point.

Nonetheless, the Magistrate Judge found any such error was harmless because, “even excluding the job of mail clerk (which the Commissioner apparently concedes requires Level 3 reasoning by the DOT), the ALJ's finding that Plaintiff could perform jobs that exist in significant numbers in the national economy was supported by substantial evidence in the record.” [Id.]. As discussed in the Court's Order requesting supplemental briefing (Doc. 15), the Magistrate Judge's harmless error analysis was cursory and did not address the implications of the Eleventh Circuit's 2021 published decision in Viverette on harmless error review under these circumstances, an issue which both parties briefed extensively.²

Much like in this case, the Eleventh Circuit in Viverette held that the ALJ had erred by including a job requiring Level 3 reasoning (specifically, the job of “document preparer”) in his analysis at step five of the disability determination. Viverette, 13 F.4th at 1315–17. After reaching that conclusion, the Viverette court proceeded to determine whether such error was harmless. A determination of harmless error would have required finding that the remaining occupations identified by the ALJ at step five (check weigher and final assembler, together totaling 21,000 jobs nationwide) still constituted work “existing in significant numbers in the national economy,” as needed to support a non-disability finding at step five. Id. at 1318.

Particularly relevant here, the Viverette court declined to affirm on a harmless error basis, emphasizing that “[w]hether there are a significant number of jobs a claimant is able to perform with his limitations is a question of fact” that should be decided by the ALJ at the agency level in the first instance. Id. at 1318. However, at the agency level, the ALJ “treated the three occupations” of document preparer, check weigher, and final assembler “cumulatively for purposes of the ‘significant numbers' determination” and made no finding about “whether the number of final assembler and check weigher jobs, either separately or cumulatively, constituted a significant number, absent the document preparer jobs.” Id. Under these circumstances, the Eleventh Circuit declared it was “hesitant to make any factual determinations ourselves” about whether the remaining positions existed in significant numbers in the national economy and explained that “[w]here additional (or more specific) agency fact-finding is needed, remand is the appropriate disposition.” Id.

Considering this guidance from the Eleventh Circuit's published decision in Viverette that federal courts must be careful not to invade the fact-finding role of the agency on harmless error review of a step-five finding tainted by an erroneously included job, the Court required the parties to submit supplemental briefs addressing the following narrow question:

• Are there any cases from within the Eleventh Circuit where a federal court found, on harmless error review, that fewer than 78,000 jobs could constitute jobs “existing in significant numbers in the national economy”? Put another way, are there cases in which the court definitively found the ALJ committed error at step five of the disability determination, but nonetheless found the error harmless after elimination of the error-tainted job(s) left fewer than 78,000 jobs remaining that the claimant could perform? The Court is especially interested in whether there are any such cases post-dating Viverette.

The parties each timely submitted supplemental briefs addressing this question. (Docs. 16, 17). This Order follows.

II. Legal Standards

A. Scope of Judicial Review of the Agency Decision

The Court's review of the findings of the ALJ, as adopted by the Commissioner, is limited in scope. Judicial review of the administrative decision addresses three questions: (1) whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296 (N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court may not decide the 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).

If substantial evidence supports the Commissioner's factual findings and the Commissioner applies the proper legal standards, the Commissioner's findings are conclusive and must be affirmed. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). “Substantial evidence” means “more than a scintilla, but less than a preponderance.” Bloodsworth, 703 F.2d at 1239. 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 (1971); Bloodsworth, 703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court] 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) (per curiam). Even where there is substantial evidence to the contrary of the ALJ's findings, the ALJ decision will not be overturned where “there is substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ's application of legal principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam).

B. Standard for Determining Disability

An individual is considered disabled for purposes of disability benefits if he 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), 1382c(a)(3)(A).

The burden of proof in a Social Security disability case is divided between the claimant and the Commissioner. The claimant bears the primary burden of establishing the existence of a disability. See 20 C.F.R. § 416.912(a).³ The Commissioner uses a five-step sequential process to determine whether the claimant has met the burden of proving disability. See 20 C.F.R. § 416.920(a); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

At step one of the disability determination, the claimant bears the burden of proving that he is not undertaking substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). At step two, the claimant must prove that he is suffering from a severe impairment or combination of impairments that significantly limits his ability to perform basic work-related activities. 20 C.F.R. § 416.920(a)(4)(ii). At step three, if the ALJ determines that any of the claimant's impairments meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of Impairments), the claimant will be considered disabled without consideration of age, education, and work experience. See 20 C.F.R. § 416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a listed impairment, he must prove that his impairment prevents performance of past relevant work. See 20 C.F.R. § 416.920(a)(4)(iv). At step five, if the claimant cannot perform past relevant work, the burden shifts to the Commissioner to show that the claimant can perform other work existing in significant numbers in the national economy, taking into account the claimant's residual functional capacity, age, education, and past work experience. See 20 C.F.R. § 416.920(a)(4)(v); Doughty, 245 F.3d at 1278 n.2.

If at any step in the sequence a claimant can be found disabled or not disabled, the sequential evaluation ceases and further inquiry ends. See 20 C.F.R. § 416.920(a)(4). Despite the shifting of burdens at step five, the overall burden rests on the claimant to prove that he is unable to engage in any substantial gainful activity that exists in the national economy. Doughty, 245 F.3d at 1278 n.2.

C. Standard of Review of the R&R

A district judge has broad discretion to accept, reject, or modify a magistrate judge's proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C). If no objections are made to an R&R, the Court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. See Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006) (collecting cases).

Initially, no party filed objections to the R&R. However, because the Court has ordered supplemental briefing, it will conduct a de novo review of the harmless error issue addressed in the supplemental briefs. The remainder of the R&R has been reviewed for clear error, and the Court finds none.

III. Discussion

At step one of the disability determination, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his application date of May 28, 2020. (AR 523). At step two, the ALJ found that Plaintiff had the following severe impairments: left femur fracture, left index finger and middle finger dislocation, bipolar disorder, generalized anxiety disorder, post-traumatic stress disorder, adjustment disorder, and unspecified neurocognitive disorder. (AR 524). Notwithstanding these severe impairments, the ALJ concluded that Plaintiff retained the RFC to perform “light work” as defined in 20 C.F.R. § 416.967(b), except that he had a number of exertional and non-exertional limitations.⁴ As pertinent here, one of the limitations in Plaintiff's RFC is that he “can understand, remember, and carry out simple instructions.” (AR 528).

At step four, the ALJ noted that Plaintiff has no past relevant work, so he proceeded to step five of the disability determination to evaluate whether there are “jobs that exist in significant numbers in the national economy that the claimant can perform” despite his limitations. (AR 533). At that step, relying on the testimony of the Vocational Expert, the ALJ concluded that there are such jobs, including the occupation of garment sorter (20,000 jobs in the national economy), assembler (13,000 jobs in the national economy), and mail clerk (45,000 jobs in the national economy). (AR 534). Accordingly, the ALJ concluded that Plaintiff was not disabled. (Id.).

To refresh, it is not in serious dispute that the ALJ erred by including the occupation of Mail Clerk in his step five finding, which is a job that requires Level 3 reasoning according to the Dictionary of Occupational Titles (“DOT”). See MAIL CLERK, 1991 WL 671813, DICOT 209.687-026. As such, there was an apparent conflict between the DOT and the VE's testimony that a person with Plaintiff's RFC (including a limitation to “simple instructions”) could perform the Mail Clerk position. See Viverette, 13 F.4th at 1317 (“Level 3 reasoning [ ] requires more than the ability to carry out simple instructions.”). The ALJ's failure to identify and resolve this apparent conflict between the VE testimony and the DOT constituted error. Washington v. Comm'r of Soc. Sec., 906 F.3d 1353, 1356 (11th Cir. 2018). See also SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000) (“When vocational evidence provided by a VE ․ is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE [ ] evidence” and must explain in the decision “how he or she resolved the conflict.”).

Nonetheless, the Magistrate Judge found that, even assuming the ALJ erred by including the job of Mail Clerk in his step five finding, any such error was harmless because Plaintiff could still perform the other occupations the ALJ identified at step five of his disability determination – i.e., the occupations of garment sorter and assembler, which require only Level 2 reasoning. [Doc. 13 at 25-26]. As the ALJ noted in his decision, the VE testified that there were 20,000 garment sorter jobs in the national economy and 13,000 assembler jobs in the national economy. (AR 534). Thus, after eliminating the erroneous Mail Clerk position from consideration, these remaining two positions together total 33,000 jobs in the national economy. In support of the recommendation to affirm the decision of the Commissioner based on the availability of these remaining two positions, the Magistrate Judge cited to an Eleventh Circuit case in which the court “held that a finding that a claimant could perform 23,800 jobs in the national economy was sufficient to show that the claimant could perform jobs that exist in ‘significant numbers’ in the national economy.” [Doc. 13 at 25] (citing Atha v. Comm'r, Soc. Sec. Admin., 616 F. App'x 931, 935 (11th Cir. 2015)). The Commissioner also relied on Atha in both his initial and supplemental briefs. (Doc. 9 at 7-8; Doc. 16 at 4).

The problem with relying on Atha, though, is that it did not involve harmless error review. Instead, the Atha court found that the ALJ did not err in the first instance because he was entitled to rely on the substantial evidence of the VE's testimony that three particular jobs (surveillance system monitor, inspector/sorter, and machine tender, together totaling 23,800 jobs nationally) constituted work existing in significant numbers in the national economy. Atha, 616 F. App'x at 935. Therefore, the Atha court rejected the plaintiff's claim of error that substantial evidence did not support the ALJ's conclusion.

As discussed above, when the Court reviews an ALJ's factual findings, a very deferential “substantial evidence” standard of review is applied. The Court must find this standard met so long as an ALJ's factual findings are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. A harmless error review is a different beast, however, implicating the division between the ALJ's fact-finding role and the more limited role of the federal court on review. This division was at the heart of the Eleventh Circuit's published opinion in Viverette, where the court explained that “[w]hether there are a significant number of jobs a claimant is able to perform with his limitations is a question of fact to be determined by a judicial officer [i.e., the ALJ].” Viverette, 13 F.4th at 1318 (quoting Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986)) (alteration in original). Again, in Viverette, much like in the present case, the ALJ erroneously found that the claimant could perform a job requiring Level 3 reasoning, despite his limitation to “simple, routine, and repetitive tasks” and “simple work-related decisions” in the RFC determination. Id. at 1313, 1315–17. Thus, finding the ALJ erred, the Viverette court proceeded to evaluate whether the error was harmless.

After eliminating the Level 3 reasoning job from the equation, the Eleventh Circuit in Viverette explained there were still two other jobs that the ALJ properly found the claimant could perform based on the VE's testimony: the job of final assembler, with 7,000 positions available nationally, and the job of check weigher, with 14,000 positions available nationally. Id. at 1318. Therefore, the question was whether these 21,000 remaining positions could still constitute work “existing in significant numbers in the national economy,” so as to render the ALJ's error harmless. Relying on the above-cited law that the “significant number of jobs” determination is best left to the ALJ as the fact-finder, the Eleventh Circuit concluded that it could not find the error harmless, explaining:

Given that over eighty percent of the jobs presented to the ALJ are affected by the apparent conflict and that we are reviewing the decision of the ALJ [ ] for substantial evidence, we are hesitant to make any factual determinations ourselves about whether the final assembler or check weigher positions exist in significant numbers in the national economy. Where additional (or more specific) agency fact-finding is needed, remand is the appropriate disposition.

Id. (emphasis added).

The Court thus finds the unpublished Atha holding – which did not involve harmless error review – unpersuasive in the face of the clear directive from the Eleventh Circuit in its more recent published opinion that remand is appropriate under similar circumstances to those at hand.

To be clear, the Magistrate Judge did rely on other cases involving harmless error review in his R&R. [Doc. 13 at 25–26] (citing Acosta v. Acting Comm'r of Soc. Sec., 2025 WL 1672408, at *2 (11th Cir. June 13, 2025) and Ralph S.L. v. Comm'r, Soc. Sec. Admin., 2025 WL 3314023, at *12 (N.D. Ga. Sept. 25, 2025)). The Commissioner also relies heavily on Acosta, which was issued after Viverette, in his supplemental brief. (Doc. 16). But both of those cases involved a much larger number of jobs remaining after the erroneously included mail clerk job was eliminated from the equation. In Acosta, similar to this case, the Eleventh Circuit found that the ALJ erred by failing to resolve an apparent conflict between the mail clerk job requiring Level 3 reasoning and an RFC limitation to only “simple, routine, and repetitive tasks.” Acosta, 2025 WL 1672408, at *2. Nonetheless, the court found the error was harmless because substantial evidence supported the ALJ's findings that the claimant could perform two other jobs, which together totaled 216,000 available positions in the national economy. Id.

Similarly, in Ralph S.L., another court in this district addressed the erroneous inclusion of the mail clerk job at step five when the claimant was limited to understanding, remembering, and carrying out only “simple instructions.” Ralph S.L., 2025 WL 3314023, at *6. After conducting a very thorough and careful harmless error review, including a detailed exploration into the post-Viverette legal landscape on this issue, the court ultimately held the error to be harmless. In reaching that conclusion, the Ralph S.L. court distinguished the facts from those in Viverette, explaining: “Unlike in Viverette, where eighty percent of the jobs were affected by the apparent conflict, here, only about twenty-one percent (45,000 of 211,000) [of] the jobs discussed by the VE were affected by the exclusion from consideration of the mail clerk position.” Id. at *12.

This case is closer to the facts in Viverette than the facts in either Acosta or Ralph S.L. In Acosta, after excluding the erroneous mail clerk position, there were still 216,000 jobs (or 83 percent) remaining out of the total jobs identified by the ALJ at step five below. In Ralph S.L., after excluding the erroneous mail clerk position, there were still 166,000 jobs (or 79 percent) remaining of the jobs identified by the ALJ at step five. Here, only 33,000 jobs of 78,000 (or 42 percent) remain in play after eliminating the 45,000 mail clerk positions from consideration. Not only is that a low percentage, but it is a very low total number of national jobs, and neither the Magistrate Judge nor the Commissioner in his initial brief identified any post-Viverette cases where a federal court found harmless error under similar circumstances.⁵

That said, the Commissioner does identify certain cases in his supplemental brief that nearly fit the bill. Specifically, the Commissioner points to two post-Viverette cases where sister district courts within this Circuit upheld the Commissioner's decision on harmless error review when as few as 7,000 jobs remained after eliminating an error-tainted position. See Fitzpatrick v. Comm'r of Soc. Sec., 2025 WL 3267998, at *7 (M.D. Fla. Nov. 24, 2025) (finding harmless error where only 7,000 jobs remained after removing the error-tainted job from consideration); Roberts v. Bisignano, 2025 WL 2772488, at *12 (N.D. Fla. Sept. 29, 2025) (finding harmless error where only 35,000 jobs remained after eliminating the error-tainted job from consideration). But there is a major distinguishing feature in both of these cases setting them apart from Viverette: in both cases, the ALJ below specifically found that the jobs identified at step five, both individually and in combination, existed in the national economy in significant numbers. And in both cases, the court relied on the ALJ's factual finding on this point to affirm. See Fitzpatrick, 2025 WL 3267998, at *7 (“The ALJ specifically found that the jobs of table worker, taper, and document preparer, ‘individually and in combination,’ exist in the national economy in significant numbers. Leaving no room for doubt, the ALJ further clarified that the significant numbers of jobs potentially available to Plaintiff exist when considering the three jobs ‘both singly and in combination.’ ”) (citations omitted); Roberts, 2025 WL 2772488, at *12 (explaining that the ALJ “specifically ruled that ‘[e]ach of the jobs, considered singularly or collectively, would be a substantial number within the national economy.’ [The ALJ] thus considered whether there would be sufficient positions in the national economy if less than all the proposed positions were available and concluded that there would be a significant number of jobs in the national economy even if only one of the positions remained.”).

Notably, in Roberts, the court explored the implications of Viverette on harmless error analysis in some depth, noting that even after Viverette, “some courts have concluded that remand is unnecessary when the number of non-conflicted jobs in the national economy is greater than 100,000, because any such error would be harmless.” Roberts, 2025 WL 2772488, at *11 (collecting cases) (emphasis added). But the Roberts court gave no indication that it would have upheld the Commissioner's decision based on its own judicial fact-finding that 35,000 jobs constituted significant jobs in the national economy. Rather, the Roberts court relied on the fact that the ALJ had already made such a finding below, by specifically ruling that each of the jobs identified at step five, “considered singularly or collectively, would be a substantial number within the national economy.” Id.

Therefore, both Fitzpatrick and Roberts are more akin to Atha than to Viverette. That is, these cases stand for the straightforward proposition that, where the ALJ has made a specific factual finding below – for example, that a single occupation, on its own, satisfies the step-five requirement of existing in “significant numbers in the national economy” – that factual finding will not be disturbed by a federal court on review if it is supported by substantial evidence. And again, the “substantial evidence” standard of review is a very low bar, which can be met simply by citing to VE testimony to support said finding. Viverette, on the other hand, stands for the proposition that federal courts should be careful not to usurp the ALJ's fact-finding role in determining whether the plaintiff can perform jobs “existing in significant numbers in the national economy” on harmless error review. See Viverette, 13 F.4th at 1318. “Judicial line-drawing in this context is inappropriate, because the issue of numerical significance entails many fact-specific considerations requiring individualized evaluation, and because the evaluation should ultimately be left to the ALJ's common sense in weighing the statutory language as applied to a particular claimant's factual situation.” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (cleaned up)).

Here, in contrast to Roberts and Fitzpatrick, the ALJ made no finding that the assembler and garment sorter jobs exist “in significant numbers in the national economy” both individually and in combination with the error-tainted mail clerk job. Instead, the ALJ relied on the availability of all three occupations at step five to support his finding that Plaintiff is “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (AR 534). This distinction is dispositive. As another court in this district has explained, post-Viverette, courts within the Eleventh Circuit have ordered remand “ ‘when an apparent conflict eliminates jobs the plaintiff can perform – even though the ALJ identified other jobs and their numbers,’ and have done [or] do so precisely ‘because the ALJ did not make a specific finding as to whether the remaining jobs are independently of a significant number.’ ” Anthony A. v. Kijakazi, 2023 WL 12148382, at *4–5 (N.D. Ga. Apr. 3, 2023) (quoting Dionne v. Comm'r of Soc. Sec., 2023 WL 1452201, at *10 (M.D. Fla. Jan. 13, 2023) (collecting cases)).

Had the ALJ below made a factual finding that the 33,000 assembler and garment sorter jobs nationwide are enough to meet the step five standard (or that either job individually is enough to meet it), this Court would be able to review and uphold it under a substantial evidence standard. As it stands, however, the Court faces the same circumstance as the one at issue in Viverette. And, like the Eleventh Circuit there, the Court is reticent to step into the ALJ's shoes as a fact-finder to determine on its own a question that was left wholly unanswered by the ALJ as to whether the garment sorter and assembler positions exist in “significant numbers in the national economy.” Moreover, while this Court is inclined to agree with the Roberts court as well as its colleague who issued the Ralph S.L. opinion that a harmless error finding could potentially be justified where some very significant number of jobs remains after elimination of the error-tainted position, there are simply too few jobs remaining here to justify such a finding.

Thus, because “additional (or more specific) agency fact-finding is needed, remand is the appropriate disposition.” Viverette, 13 F.4th at 1318. The Court will accordingly remand this action to the agency so that the ALJ may make a step-five finding as to whether a significant number of jobs exists with respect to each representative position.

IV. Conclusion

For the reasons explained above, the Court rejects the Magistrate Judge's recommendation in the R&R [Doc. 13] that the Commissioner's decision be affirmed, REVERSES the final decision of the Commissioner, and REMANDS this action to the agency for further proceedings consistent with this opinion.

Upon remand, the Clerk is DIRECTED to close this case.

IT IS SO ORDERED this 11th day of September, 2026.

FOOTNOTES

1.   As discussed in more detail below, step five of the disability determination at the agency level requires the ALJ to “ascertain whether the jobs that a claimant can perform exist in significant numbers in the national economy.” Biestek v. Berryhill, 587 U.S. 97, 100 (2019) (cleaned up); 20 C.F.R. § 416.960(c)(1). If so, the claimant is deemed not disabled.

2.   Indeed, the Magistrate Judge did not characterize his analysis as a harmless error analysis at all, instead applying the “very deferential” standard of review that requires the Court to affirm any factual findings made by the Commissioner so long as they are supported by “substantial evidence.” [See Doc. 13 at 25–26]. However, the Magistrate Judge's reasoning was unmistakably contingent on a harmless error finding as to the ALJ's erroneous inclusion of the Mail Clerk occupation at step five of his disability determination.

3.   Plaintiff seeks SSI under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. Accordingly, the Court cites herein to the regulations governing SSI claims, as set forth in 20 C.F.R. Part 416, rather than to the identical regulations governing claims for Disability Insurance Benefits set forth in Part 404.

4.   The ALJ's full RFC determination is as follows:[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant can lift and carry up to 20 pounds occasionally and up to 10 pounds frequently. The claimant can sit for up to six hours and stand and walk for up to four hours in an eight-hour workday. The claimant uses a cane when walking and is capable of pushing and pulling up to these same exertional limitations. The claimant can frequently climb ramps and stairs, balance, and kneel. He can occasionally climb ladders, ropes, and scaffolds and can occasionally stoop and crouch. The claimant is capable of frequent handling with the left hand. He can understand, remember, and carry out simple instructions; can concentrate and persist in two-hour segments; can occasionally interact with the public, crowds, co-workers, and supervisors; and can adapt to occasional changes in the routine work setting. The claimant cannot perform work requiring specific production rate assembly line work or work that has hourly production quotas.(AR 528).

5.   Notably, to support its harmless error finding, the Ralph S.L. court cited to two pre-Viverette Eleventh Circuit cases where the court had “held that as few as 80,000 jobs nationally constituted a sufficient number of jobs under the step-five analysis.” Id. (citing Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) and Valdez v. Comm'r of Soc. Sec., 808 F. App'x 1005, 1010 (11th Cir. 2020)). Although Allen was not a harmless-error review case, Valdez was. There, the court assumed without deciding that it was error for the ALJ to include a job requiring Level 3 reasoning in his step-five analysis after finding the claimant was limited to “simple, routine, and repetitive work[.]” Valdez, 808 F. App'x at 1009. However, the court found that even if the claimant was unable to perform the Level 3 reasoning job, “the ALJ still concluded that he could perform two other jobs”—namely, lens inserter and lens-block gauger, which together totaled 78,000 jobs in the national economy. Id. at 1009–10. Thus, the court concluded any error was harmless. Of all the cases reviewed by the Court, Valdez comes close to supporting a harmless error finding in this case. But 78,000 is more than double 33,000. Moreover, Valdez is an unpublished decision issued one year before the Eleventh Circuit's published decision in Viverette, which, as already explained, counsels a very different approach to harmless error review after slashing a large number (or large percentage) of jobs from the ALJ's step-five finding below.

Amy Totenberg United States District Judge