Owens, II v. Commissioner of

Filing 33

OPINION AND ORDER reversing and remanding the Commissioner's final decision; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 9/26/2024. (KAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION
PETER OWENS, II,
Plaintiff,
v.

Case No. 2:23-cv-258-JRK

MARTIN J. O’MALLEY,
1
Commissioner of Social Security,
Defendant.
OPINION AND ORDER 2
I. Status
Peter Owens, II (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying his claims for
disability insurance benefits (“DIB”) and supplemental security income
(“SSI”). Plaintiff’s alleged inability to work is the result of chronic pain from a
“multi level disc problem” in his back,” depression, anxiety, and concentration
1

Mr. O’Malley was sworn in as Commissioner of the Social Security
Administration on December 20, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil
Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit.
No further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. ' 405(g).
2
The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate
Judge (Doc. No. 12), filed June 27, 2023; Endorsed Order (Doc. No. 13), entered June 28,
2023.

issues. Transcript of Administrative Proceedings (Doc. No. 9; “Tr.” or
“administrative transcript”), filed June 8, 2023, at 140, 160-61.

3

On November 16, 2006, Plaintiff protectively filed the DIB and SSI
applications, alleging a disability onset date of June 17, 2005 in the DIB
application and January 1, 2002 in the SSI application. Tr. at 89-93 (DIB), 94100 (SSI). The applications were denied initially, Tr. at 51, 56-58, 59 (DIB),
52, 55, 60-62 (SSI), and upon reconsideration, Tr. at 53, 66-67, 68 (DIB), 54,
65, 69-70 (SSI).
On December 15, 2009, an Administrative Law Judge (“ALJ”) (Spurlin 4)
held a hearing, during which the ALJ heard from Plaintiff, who was
represented by counsel. See Tr. at 30-49. The ALJ issued a decision on
January 4, 2010 finding Plaintiff not disabled through the date of the decision.
Tr. at 15-25. Plaintiff sought review of the decision by the Appeals Council
and submitted a brief and additional medical evidence in support of the
request. Tr. at 4-5 (Appeals Council exhibit list and order), 267-69 (evidence),
10 (request for review via letter), 167-70 (brief). On September 22, 2010, the

3

Some of the cited documents are duplicated in the administrative transcript.
Citations are to the first time a document appears.
4
Because there have been multiple ALJs in this matter, the undersigned notes
the last name of the ALJ each time a new ALJ was assigned.

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Appeals Council denied Plaintiff’s request for review, Tr. at 1-3, making the
ALJ’s decision the final decision of the Commissioner.
Plaintiff appealed the final decision to this Court on October 15, 2010.
See Complaint (Doc. No. 1), Case No. 2:10-cv-632-DNF. On March 15, 2012,
the Court entered an Opinion and Order affirming the Commissioner’s final
decision. Tr. at 489-506; see Tr. at 487 (Judgment). Plaintiff then appealed
this Court’s determination to the United States Court of Appeals for the
Eleventh Circuit. See Tr. at 508. On January 28, 2013, the Eleventh Circuit
issued a per curiam opinion vacating and remanding this Court’s Opinion and
Order. Tr. at 508-14.
On remand to the Administration, the Appeals Council on March 12,
2013 entered an Order vacating the final decision and remanding the matter
to an ALJ. Tr. at 518. In so doing, the Council recognized that Plaintiff had on
March 23, 2010 filed a subsequent claim for SSI, and had been found to be
disabled as of March 1, 2010. Tr. at 518. The Council wrote that its action in
remanding the matter “does not affect that determination and it remains in
effect.” Tr. at 518.
On October 28, 2013, another ALJ (Butler) held a hearing, during which
he heard from Plaintiff, who was represented by counsel. Tr. at 390-422. The
ALJ recognized that Plaintiff had been awarded benefits as of March 1, 2010
so the relevant time period for consideration on remand was the alleged onset
-3-

date of June 17, 2005 through March 1, 2010 when Plaintiff was found to be
disabled in relation to another claim. Tr. at 392. On November 7, 2014, the
ALJ issued a decision finding Plaintiff was not disabled during the period of
June 17, 2005 through March 1, 2010. Tr. at 523-36. Plaintiff sought review of
the decision by the Appeals Council. Tr. at 602-08. On August 26, 2015, the
Appeals Council assumed jurisdiction and again remanded the matter to an
ALJ for resolution of outstanding issues relating mainly to Plaintiff’s mental
impairments. Tr. at 544-46.
The ALJ held a hearing on November 18, 2016, taking testimony from
Plaintiff (still represented by counsel and by this time, forty-seven (47) years
old) and a vocational expert (“VE”). Tr. at 423-61, 427. Although unclear why,
on July 14, 2017, another ALJ (Allen) held a hearing, 5 during which he heard
from Plaintiff, who was represented by counsel, and a vocational expert
(“VE”). Tr. at 352-89. At the time, Plaintiff was forty-eight (48) years old. Tr.
at 360. On September 6, 2017, the ALJ issued a decision finding Plaintiff not
disabled from June 17, 2005 through February 28, 2010. Tr. at 280-91.
Plaintiff requested review of the decision by the Appeals Council and
submitted a brief in support of the request. Tr. at 274-75 (exhibit list and
order), 641-47 (brief). On August 15, 2019, the Appeals Council declined to
5

This hearing was held via videoconference. Tr. at 354.

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assume jurisdiction, Tr. at 270-73, making the ALJ’s decision the final
decision of the Commissioner.
Plaintiff appealed the final decision to this Court. See Complaint (Doc.
No. 1), Case No. 2:19-cv-723-MRM. On January 21, 2021, this Court entered
an Order reversing and remanding the Commissioner’s final decision with
instructions to “fully evaluate Dr. Visser’s medical opinion and state with
particularity the weight given.” Tr. at 1173, 1159-73; see also Tr. at 1175
(Judgment).
On August 27, 2021, the Appeals Council entered an Order remanding
the matter to an ALJ consistent with the Court’s instructions. Tr. at 1127. The
Appeals Council noted that Plaintiff had been receiving SSI “based on an
application filed on March 23, 2010” and so the Council’s action “d[id] not
affect that determination and it remain[ed] in effect.” Tr. at 1127.
On February 1, 2022, Plaintiff’s counsel sent the ALJ correspondence
stating that Plaintiff was “withdraw[ing] his claim for Title XVI benefits
through February 28, 2010, but [was] not waiving his entitlement awarded
from March 1, 2010 forward.” Tr. at 1415. Another ALJ (Northington) held a

-5-

6

hearing on February 2, 2022, during which she heard from Plaintiff (who
remained represented by counsel) and a VE. Tr. at 1078-1124. On April 20,
2022, the ALJ issued a decision finding with respect to Plaintiff’s DIB
application that Plaintiff was not disabled from June 17, 2005 through the
date last insured of December 2007, and finding with respect to the SSI
application that Plaintiff was not disabled through February 28, 2010, the
month prior to the date Plaintiff was approved for SSI. 7 Tr. at 1212, 11801213.
Plaintiff sought review by the Appeals Council. Tr. at 1299-1307. On
August 4, 2022, the Appeals Council assumed jurisdiction and again
remanded the case to an ALJ for further proceedings, particularly regarding
Dr. Visser’s opinion. Tr. at 1223-25. The ALJ held a hearing on January 30,
2023, during which she heard from Plaintiff (who remained represented by
counsel) and a VE. Tr. at 1057-77. Plaintiff at some point amended his alleged
disability onset date to November 1, 2002. See Tr. at 1013.
Because Plaintiff had withdrawn his claim for Title XVI (SSI) benefits
through February 28, 2010, the ALJ determined that the relevant period
6

This hearing was held via telephone, with Plaintiff’s consent, because of
extraordinary circumstances presented by the earlier stages of the COVID-19 pandemic. Tr.
at 1080, 1263-64.
7

The ALJ recognized Plaintiff had waived his SSI claim but made findings
relating to it “in an abundance of caution.” Tr. at 1181.

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under consideration was November 1, 2002 through the date last insured of
December 31, 2007. Tr. at 1014. The ALJ issued a Decision on February 28,
2023 finding Plaintiff was not disabled from November 1, 2002 through the
8

date of the Decision. Tr. at 1011-48. On April 17, 2023, Plaintiff commenced
this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a
Complaint (Doc. No. 1) seeking judicial review of the Commissioner’s final
decision.
On appeal, Plaintiff first challenges the ALJ’s handling of the opinions
of Kenneth A. Visser, Ph.D., a consultative psychologist whose opinions have
been the subject of remand proceedings. See Plaintiff’s Memorandum (Doc.
No. 21; “Pl.’s Mem.”), filed August 11, 2023, at 13-26. According to Plaintiff,
the ALJ “again failed to properly evaluate the opinions of Dr. Visser . . . whose
opinions are consistent with the evidence from [Plaintiff’s] treating providers.
Id. at 13 (emphasis and capitalization omitted). Second, Plaintiff argues the
ALJ erred in evaluating the “mental health evidence of record” because it
“does not ‘strongly support’ the ALJ’s mental RFC assessment as repeatedly
claimed.” Id. at 26; see id. at 26-29. Plaintiff contends the Court should
8

It is unclear why the ALJ found Plaintiff as not disabled through the date of
the Decision, rather than through the date last insured of December 31, 2007. Regardless,
the ALJ’s Decision makes clear she was aware of the relevant timeframe under
consideration and did not intend to disturb Plaintiff’s March 2010 award of SSI benefits. See
Tr. at 1011-48.

-7-

remand for an award of benefits given the tortured procedural history of the
matter and the 16 years that have passed while the claim at issue was being
adjudicated. Id. at 2. On October 17, 2023, Defendant filed a Memorandum in
Support of the Commissioner’s Decision (Doc. No. 26; “Def.’s Mem.”),
responding to Plaintiff’s arguments. Then, on December 5, 2023, Plaintiff’s
Reply Brief (Doc. No. 32; “Reply”) was filed. After a thorough review of the
entire record and consideration of the parties’ respective arguments, the
undersigned finds that the Commissioner’s final decision is due to be reversed
and remanded for further proceedings.
II. The ALJ’s Decision
When determining whether an individual is disabled, 9 an ALJ must
follow the five-step sequential inquiry set forth in the Code of Federal
Regulations (“Regulations”), determining as appropriate whether the claimant
(1) is currently employed or engaging in substantial gainful activity; (2) has a
severe impairment; (3) has an impairment or combination of impairments that
meets or medically equals one listed in the Regulations; (4) can perform past
relevant work; and (5) retains the ability to perform any work in the national
9

“Disability” is defined in the Social Security Act as the “inability 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).

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economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7
F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,
357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of
persuasion through step four, and at step five, the burden shifts to the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 101847. At step one, the ALJ determined Plaintiff “has not engaged in substantial
gainful activity since November 1, 2002, the amended alleged onset date.” Tr.
at 1018 (emphasis and citation omitted). At step two, the ALJ found that
Plaintiff “has the following severe impairments: cervical, thoracic, and lumbar
degenerative disc disease, anxiety with social phobia, and depression.” Tr. at
1018 (emphasis and citation omitted). At step three, the ALJ ascertained that
Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
[C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 1021 (emphasis and citation
omitted).
The ALJ determined that Plaintiff has the following residual functional
capacity (“RFC”):
[F]rom November 1, 2002, through December 31, 2007, [Plaintiff
was] limited to Light work that includes the ability to occasionally
lift and/or carry up to 20 pounds as defined in the regulations, as
well as, lift and/or carry 10 pounds frequently. This includes
sedentary work as defined in the regulations. [Plaintiff] has no
limits for sitting in an eight-hour workday. He is capable of
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standing and/or walking for six hours in an eight-hour workday.
In the course of work, [Plaintiff] should be allowed the ability to
optionally alternate between sitting and standing about every 30
to 60 minutes, but such would not cause [Plaintiff] to be off-task or
cause [Plaintiff] to leave work-station. [Plaintiff] is able to perform
all postural functions except no crawling and no climbing of
ladders, ropes, and scaffolds. He is limited to occasional kneeling.
[Plaintiff] is to perform no work that would involve hazardous
situations such as work at unprotected heights or work around
dangerous machinery that could cause harm to self or others. No
work with vibratory tools or equipment. Secondary to potential
COPD and despite the tobacco dependence, [Plaintiff] is to avoid
concentrated exposure to respiratory irritants such as fumes,
odors, smoke, gases, and poor ventilation. [Plaintiff] is to avoid
concentrated exposure to extremes of heat, humidity, or cold
temperatures. Secondary to mental impairments, [Plaintiff]
retains the capacity to understand, remember, and carry-out
simple instructions and perform simple, routine tasks as
consistent with unskilled work. [Plaintiff] can still make
judgments regarding simple work-related decisions. [Plaintiff] can
respond appropriately to routine, usual work situations and deal
with routine changes in a routine work setting. In the course of
work, [Plaintiff] is to have no in-person contact with the public
with the exception that incidental contact and telephonic contact
is not precluded. [Plaintiff] is to have only occasional contact with
coworkers and supervisors, occasional being defined as occasional
interaction and coordination, but not necessarily proximity to the
same.
Tr. at 1025-26 (emphasis omitted).
At step four, the ALJ found that Plaintiff “is unable to perform any past
relevant work” as an “Asphalt Paving Machine Operator,” and a “Roofer
Helper, classified as Construction Worker II.” Tr. at 1045-46 (some emphasis
and citation omitted). At the fifth and final step of the sequential inquiry,
after considering Plaintiff’s age (“36 years old . . . on the alleged disability
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onset date”), education (“at least a high school education”), work experience,
and RFC, the ALJ found that “there are jobs that exist in significant numbers
in the national economy that [Plaintiff] can perform,” Tr. at 1046 (some
emphasis omitted), such as “Office Helper,” “Routing Clerk,” “Cuff Folder,”
“Document Preparer,” and “Sack Repairer,” Tr. at 1047. The ALJ concluded
Plaintiff “has not been under a disability . . . from November 1, 2002, through
the date of th[e D]ecision.” Tr. at 1047 (emphasis and citation omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given
to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported
by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)).
“Substantial evidence is something ‘more than a mere scintilla, but less than a
preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The
substantial evidence standard is met when there is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Falge,
150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971));
see also Biestek v. Berryhill, 587 U.S. 97, 103 (2019); Samuels v. Acting
Comm’r of Soc. Sec., 959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It
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is not for this Court to reweigh the evidence; rather, the entire record is
reviewed to determine whether “the decision reached is reasonable and
supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991) (citation omitted). The decision reached by the Commissioner
must be affirmed if it is supported by substantial evidence—even if the
evidence preponderates against the Commissioner’s findings. Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
Plaintiff first argues the ALJ “again” failed to properly evaluate the
opinions of Dr. Visser, a consultative psychologist. Pl.’s Mem. at 13. Second,
Plaintiff contends that, contrary to the ALJ’s finding, the assigned RFC is not
“strongly support[ed]” by the mental health evidence. Id. at 26. Plaintiff
particularly asserts that limitations in attention, concentration, and
persistence were not accounted for by the ALJ. Id. at 27. Moreover, according
to Plaintiff, the ALJ did not account sufficiently for the difficulties in
interacting with others. Id. at 28. Responding, Defendant argues the ALJ
adequately determined that Dr. Visser’s opinions were only due partial
weight. Def.’s Mem. at 7-14; see Tr. at 1043. As for the mental RFC finding,
Defendant contends that it adequately accounted for Plaintiff’s general level of
functioning. Def.’s Mem. at 14-15.

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The undersigned, considering Plaintiff’s second argument, finds that the
ALJ’s assigned mental RFC does not adequately account for the objective
evidence on the matter. As for Dr. Visser’s opinions, the ALJ purportedly
rejected aspects of them by assigning them only partial weight. In the RFC
findings, however, the ALJ indicated she had taken into account all of Dr.
Visser’s objective examination findings (discussed in detail below). Because
the ALJ did not actually take into account all of these findings in the RFC
determination, the undersigned need not determine whether the ALJ’s
reasons for assigning partial weight to Dr Visser’s opinions are supported
(Plaintiff’s first issue). The matter is due to be remanded for additional
consideration—on remand, the Administration should reevaluate Dr. Visser’s
opinions as appropriate.
The RFC assessment “is the most [a claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to
determine whether a claimant can return to his or her past relevant work, and
if necessary, it is also used at step five to determine whether the claimant can
perform any other work that exists in significant numbers in the national
economy. 20 C.F.R. § 404.1545(a)(5). In assessing a claimant’s RFC, the ALJ
“must consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at
*5; see also Pupo v. Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir.
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2021) (citing Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir.
2019)); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating that
“the ALJ must consider a claimant’s impairments in combination”) (citing 20
C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984)).
Here, the mental health evidence includes notes from Gerald M.
Abraham, M.D., who treated Plaintiff for psychiatric issues from August 5,
2006 through March 3, 2007. Tr. at 178-83, 253-66. Dr. Abraham’s notes often
document agitation, irritability, frustration, mood swings, distrust, easy
confusion, and Plaintiff repeating himself. Tr. at 178-83, 253-66.
Dr. Visser on February 28, 2007 conducted a clinical evaluation of
Plaintiff. Tr. at 184-88. Dr. Visser noted Plaintiff is “angry, at times very
despairing.” Tr. at 184. As part of the evaluation summary, Dr. Visser
specifically noted Plaintiff had “problems with concentration” on simple
mathematical testing. Tr. at 187; see Tr. at 188. Dr. Visser wrote that
Plaintiff’s “ability to interact socially[] is limited because of his high degree of
frustration, which causes agitation.” Tr. at 188.
On December 3, 2007, Dr. Visser again evaluated Plaintiff. Tr. at 21822. Dr. Visser noted that after the February evaluation, Plaintiff’s “contact
with the Workers Compensation doctor has been severed, and he has been
unable to get his medications.” Tr. at 218. According to Dr. Visser, the lack of
medication “has created additional physical and emotional difficulties for
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him.” Tr. at 218. Dr. Visser described Plaintiff’s mood as “definitely angry
with a sense of hopelessness, and a fear of the future.” Tr. at 220. Dr. Visser
found that “[a]t this point, [Plaintiff’s] behavior is described as becoming
unmanageable.” Tr. at 220. Dr. Visser expanded: “His anger and frustration
have interfered with his ability to relate, pleasantly, to those around him.” Tr.
at 220. As for concentration, Dr. Visser noted “[s]ome concentration problems
were evident.” Tr. at 222. Moreover, found Dr. Visser, Plaintiff’s “ability to
socialize and to interact socially is definitely affected by his agitation” and
“could cause others to become defensive quickly.” Tr. at 222.
This Court, in its January 21, 2021 Order reversing and remanding a
previous final decision of the Commissioner, gave instructions to “fully
evaluate Dr. Visser’s medical opinion and state with particularity the weight
given.” Tr. at 1173, 1159-74. During the remand proceedings that ultimately
led to the ALJ’s instant Decision, the Appeals Council made various findings
that are relevant here:
Dr. Visser's findings in the February 2007 evaluation
noted that [Plaintiff’s] ability to interact socially was
limited because of his high degree of frustration,
which causes agitation and his judgement and insight
(his perception that he is a victim of an insensitive
society) definitely affects his way of relating to others.
Additionally, Dr. Visser noted in his December 2007
evaluation that [Plaintiff’s] behavior was described as
becoming unmanageable because his anger and
frustration have interfered with his ability to relate,
pleasantly, to those around him. Dr. Visser further
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found [Plaintiff’s] ability to socialize and interact
socially and to interact socially is definitely affected by
his agitation and that would cause others to become
defensive quickly. [A prior ALJ’s d]ecision did not
address these social findings and other findings
related to the paragraph B domains where Dr. Visser
noted limitations in attention, concentration,
judgement, insight, persistence, and adaptability. The
decision specifically indicated that Dr. Visser's
opinions were inconsistent with treatment records
from [Plaintiff’s] treating source Dr. Gerald Abraham,
M.D., but treatment notes from Dr. Abraham showed
consistent evidence of [Plaintiff’s] mental status
observed as depressed, angry, irritable, anxious, and
pressured with mood swings. Further consideration
should be given to this opinion evidence.
Tr. at 1223-24 (citations omitted).
The ALJ, on remand, assessed a mental RFC as follows:
Secondary to mental impairments, [Plaintiff] retains
the capacity to understand, remember, and carry-out
simple instructions and perform simple, routine tasks
as consistent with unskilled work. [Plaintiff] can still
make judgments regarding simple work-related
decisions. [Plaintiff] can respond appropriately to
routine, usual work situations and deal with routine
changes in a routine work setting. In the course of
work, [Plaintiff] is to have no in-person contact with
the public with the exception that incidental contact
and telephonic contact is not precluded. [Plaintiff] is
to have only occasional contact with coworkers and
supervisors, occasional being defined as occasional
interaction and coordination, but not necessarily
proximity to the same.
Tr. at 1026.
The ALJ went on to find that the mental RFC “fully accounts for all of
the reasonably related mental limitations as demonstrated by the objective
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evidence of record even when extrapolated during the periods of no psychiatric
treatment.” Tr. at 1039. The ALJ indicated she “also considered the waxing
and waning of [Plaintiff’s] symptoms during the relevant period and [found]
that [Plaintiff] generally had the ability to perform work as defined in the
[RFC] finding even when his symptoms were at their maximum as
documented by Dr. Abraham and Dr. Visser.” Tr. at 1039 (emphasis added).
The ALJ’s RFC findings on Plaintiff’s mental limitations are not
supported by substantial evidence for two reasons. First, the ALJ determined
in the RFC that Plaintiff could have “incidental contact and telephonic
contact” with the public and “occasional contact with coworkers and
supervisors.” Tr. at 1026. But, such contact is inconsistent with the degree of
social limitation assigned by Dr. Visser and documented by Dr. Abraham. This
contact that the ALJ permitted specifically belies: 1) the Appeals Council
specifically pointing out Dr. Visser’s finding that Plaintiff’s “ability to socialize
and to interact socially is definitely affected by his agitation and that would
cause others to become defensive quickly,” Tr. at 1224; 2) Dr. Visser finding in
December

2007

that

Plaintiff’s

“behavior

is

described

as

becoming

unmanageable,” Tr. at 220; and 3) Dr. Abraham documenting multiple times
that Plaintiff was “constantly angry” and fighting with multiple landlords, Tr.
at 181, 258. Second, the ALJ in the RFC indicated Plaintiff is capable of
“understand[ing,] remember[ing], and carry[ing] out simple instructions,” Tr.
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at 1026, but Dr. Visser found Plaintiff had problems concentrating during
simple tasks, Tr. at 188, and in one instance could not even remember one of
three words after a few minutes, Tr. at 220. Accordingly, on key points in the
mental RFC, the ALJ’s finding that the RFC is consistent with the evidence—
including objective findings of Dr. Visser and Dr. Abraham—is not supported.
Reversal is required.
Plaintiff seeks an award of benefits given the tortured procedural
history of this matter. Although generally cases are remanded to the
Commissioner for further proceedings, it may be appropriate to remand only
for an award of disability benefits when the Commissioner “has already
considered the essential evidence and it is clear that the cumulative effect of
the evidence establishes disability without any doubt.” Davis v. Shalala, 985
F.2d 528, 534 (11th Cir. 1993) (citing Bowen v. Heckler, 748 F.2d 629, 635-36
(11th Cir. 1984)). In other words, “where there is no need for the ALJ to take
additional evidence, to complete the sequential evaluation, and where
substantial evidence exists in the record to support a finding of disability, the
Court may properly reverse and remand for an award of benefits.” Richardson
v. Apfel, 44 F. Supp. 2d 1264, 1268 (M.D. Fla. 1998) (citing Andler v. Chater,
100 F.3d 1389, 1394 (8th Cir. 1996)) (footnotes omitted).
Here,

resolving

the

errors

requires

further

consideration

and

explanation by the ALJ. Although it is not likely that additional evidence is
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needed in this closed period case, the evidence before the Court tends to
demonstrate a worsening of Plaintiff’s mental state during the relevant period
under consideration. The Court hesitates to find, factually, whether and when
Plaintiff became disabled prior to December 31, 2007. Those factual
determinations are for the Administration in the first instance. Directing a
total disability finding based on the record would be inappropriate. Remand is
needed for additional administrative proceedings.
V. Conclusion
After due consideration, it is
ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3), REVERSING the
Commissioner’s final decision and REMANDING this matter with the
following instructions:
(A)

Reconsider Plaintiff’s mental RFC and the evidence of Plaintiff’s

mental limitations, including from Dr. Abraham and Dr. Visser;
(B)

If appropriate, address Plaintiff’s other argument in this appeal;

and
(C)

Take such other action as may be necessary to resolve this claim

properly.

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2.

The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on September 26,
2024.

kaw
Copies to:
Counsel of Record

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