Brown v. Commissioner of Social Security

Filing 19

MEMORANDUM DECISION and ORDER re 16 Plaintiff's Social Security Brief. Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner's final decision is REVERSED and REMANDED for further proceedings consistent with the Court's findings. The Clerk is directed to enter judgment accordingly and close this case. Signed by Magistrate Judge Robert M. Norway on 3/6/2025. (Norway, Robert)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CHRISTOPHER ALLEN BROWN,
Plaintiff,
v.

Case No. 5:23-cv-698-RMN

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM DECISION AND ORDER1
Plaintiff,

Christopher

Allen

Brown,

seeks

review

of

the

Commissioner of Social Security’s final decision denying his application
for disability insurance and supplemental security income. Dkt. 1. 2
Because the Commissioner’s final decision is not supported by substantial
evidence, pursuant to sentence four of 42 U.S.C. § 405(g), this case is
REVERSED and REMANDED.

1 With the parties’ consent, this matter was referred to me to conduct all

proceedings and order the entry of a final judgment in accordance with 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Dkts. 11, 12.

2 In this decision, citations to the administrative record are denoted as “R.

___.” The citations reference the Bates number annotated on the bottom
of each page. See Dkt. 9.

I. BACKGROUND
A.

Agency Proceedings
Brown applied for disability benefits and supplemental security

income on April 9, 2021, alleging a disability onset date of November 28,
2020. R. 17, 223–24. The agency denied his claim initially and upon
reconsideration. R. 112–121, 127–140. Brown then requested a hearing
before an Administrative Law Judge (“ALJ”), which was held on March
30, 2023. R. 148, 731–758. On May 3, 2023, the ALJ issued a written
decision denying the application. R. 14–61. Brown sought review of that
decision by the agency, but his request for review was denied. R. 1–6. The
ALJ’s decision is the Commissioner’s final decision. R. 1.
B.

The ALJ’s Decision
Brown was 38 years old on the alleged disability onset date. R. 27.

Brown has a high school education, completed two years of college, and
took a leave of absence from school after being hospitalized for COVID-19
in December 2020. R. 384–406, 822. He has past relevant work as an
electrician apprentice, store laborer, electrician technician, and security
guard. R. 27, 55, 241. He alleged disability arising from post-traumatic
stress disorder (“PTSD”), COVID-19, back injury, lung condition, and
sleep apnea. R. 240.
The ALJ evaluated Brown’s application using the five-step
sequential evaluation process. R. 18–29. The ALJ first found that Brown
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met the insured status requirement of the Social Security Act through
December 31, 2025. R. 20. At step one, the ALJ found that Brown had not
engaged in substantial gainful activity since his alleged onset date. R. 20.
At step two, the ALJ found Brown had severe impairments, including
back disorder (lumbago and cervicalgia), tinnitus, diabetes mellitus
type 2, hypertension, hypothyroidism, hyperlipidemia, sleep apnea,
obesity, depressive disorder, PTSD, anxiety, and Asperger’s syndrome.
R. 20. The ALJ then determined at step three that Brown did not have an
impairment or combination of impairments that met or equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. R. 20–21.
Moving to the next part of the evaluation process, the ALJ found
that Brown had the residual functional capacity (“RFC”) to perform a
modified range of light work with the following additional limitations:
[H]e can lift, carry, push and/or pull twenty (20) pounds
occasionally and ten (10) pounds frequently. He can
stand and walk for six (6) hours and can sit for six (6)
hours in an 8-hour workday with normal breaks. He
could occasionally climb stairs, balance, stoop, kneel,
crouch and crawl, but should never climb ladders or
scaffolds. He must avoid exposure to vibration,
unprotected heights and hazardous machinery. This
individual can handle exposure to a noise level intensity
not above the “moderate” level as defined in the Selected
Characteristics of Occupations (SCO). . . . During the
eight-hour workday, he must avoid concentrated
exposure to extreme heat, cold, wetness, humidity, and
irritants such as fumes, odors, dust, and gases. This
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individual can follow only simple instructions. This
person should have no interaction with the general
public unless it is merely superficial, and only occasional
interaction with co-workers. . . . This person is limited to
jobs requiring only occasional decision-making and
changes in the work setting.
R. 21–27. Based on this determination, at step four, the ALJ concluded
that Brown could not perform his past relevant work. R. 27.
At the last step, the ALJ considered Brown’s age, education, work
experience, residual functional capacity, and the testimony of a vocational
expert (“VE”). R. 28, 56–57. Because the ALJ determined other jobs exist
in significant numbers in the national economy that Brown can perform—
such as marker, garment sorter, and office—the ALJ concluded that he
was not disabled. R. 27–28.
II. STANDARD OF REVIEW
A court’s only task in reviewing a denial of disability benefits is to
determine whether the Commissioner’s decision is “supported by
substantial evidence and based on proper legal standards.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Substantial
evidence “is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Id.
Courts reviewing a decision denying disability benefits may not
“decide the facts anew, make credibility determinations, or re-weigh the
evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
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(cleaned up). Rather, courts must affirm the decision if the denial is
supported by substantial evidence, even if the preponderance of the
evidence weighs against the Commissioner’s findings. Henry v. Comm’r of
Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015). Courts review the
Commissioner’s legal conclusions de novo. Lewis v. Barnhart, 285 F.3d
1329, 1330 (11th Cir. 2002).
III. ANALYSIS
Brown argues that the ALJ’s decision is not supported by
substantial evidence and that the ALJ erred in not discussing whether
Brown’s COVID-19 was a medically determinable impairment, likening
the purported error to those made in prior decisions in which a claimant
suffered from fibromyalgia. Dkt. 16 at 3–11. The Commissioner argues
that substantial evidence supports the limitations assessed by the ALJ,
and that the RFC includes the necessary limitations related to Brown’s
COVID-19 diagnosis. Dkt. 17 at 12–13.
The ALJ is tasked with assessing a claimant’s RFC and ability to
perform past relevant work. See 20 C.F.R. § 404.1546(c); 20 C.F.R.
§ 404.1527(d)(2) (the assessment of a claimant’s RFC is an issue reserved
for the Commissioner); see also Robinson v. Astrue, 365 F. App’x 993, 999
(11th Cir. 2010) (“[T]he task of determining a claimant’s [RFC] and ability

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to work is within the province of the ALJ, not of doctors.”). 3 The RFC “is
an assessment, based upon all of the relevant evidence, of a claimant’s
remaining ability to do work despite [her] impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). In determining a
claimant’s RFC, the ALJ must consider all relevant evidence, including
the opinions of medical and non-medical sources. See 20 C.F.R.
§ 404.1545(a)(3).
A.

Medical Evidence Summary
In rendering the RFC finding, the ALJ discussed objective medical

evidence as follows. Brown presented in the emergency department with
a fever and vomiting two days after having a surgical procedure on his left
foot. R. 23, 369. His physical examination was normal, except for a
bandage to his left lower extremity. R. 23, 369, 371. An x-ray showed right
perihilar opacities, which could be secondary to pneumonia. R. 23, 374.
Brown was hospitalized for COVID-19 on December 22, 2020.
R. 384–406, 822. He developed severe hypoxia and was placed on highflow oxygen. R. 389. He was diagnosed with pneumonia secondary to
COVID-19 infection and was placed in ICU for seven days. R. 23, 389, 409,

3 “Unpublished opinions are not controlling authority and are persuasive

only insofar as their legal analysis warrants.” Bonilla v. Baker Concrete
Const., Inc., 487 F.3d 1340, 1345 (11th Cir. 2007).
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581. The ALJ noted Brown’s admission records detail past medical history
of hypertension, type II diabetes, and hypothyroidism. R. 23, 392.
On January 8, 2021, one week after Brown’s discharge, he returned
to the emergency department complaining of shortness of breath and mild
cough. R. 23, 552. He tested positive for COVID. R. 556. Upon
examination, his lungs were clear to auscultation, he had equal breath
sounds and regular respirations, his range of motion of the back and
musculoskeletal system were normal, he had regular heart rate and
rhythm, and was cooperative, alert, and oriented, with normal mood and
affect. R. 23, 552–54. Brown was assessed with dyspnea (shortness of
breath). R. 554. After several hours he left the emergency department
against medical advice because he was upset that his wife could not be
with him in the hospital, and he refused the recommended EKG, chest
X-ray, and CT chest. R. 556. He was discharged in “improved condition.”
R. 23, 556. It was noted he appeared dyspneic. R. 554.
In his decision, the ALJ explained that January 11, 2021 pulmonary
treatment records reveal “normal physical examination findings,
including normal respiratory examination, normal cardiovascular
examination, no edema, and normal visual overview of all extremities.”
R. 23, 584, 588. The ALJ again noted that Brown was assessed with
history of COVID-19, shortness of breath, and sleep apnea. R. 23, 584,
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588–89. The ALJ noted that treatment records from December 2020
through March 2021 showed complaints of exercise intolerance,
diaphoresis, pallor, shortness of breath, decreased cognitive functioning,
stuttering, and anxiety. R. 23, 598, 603, 608, 62–13, 617. The ALJ also
recognized Brown’s history of musculoskeletal impairments, including
left-sided moderate spurring in the cervical spine, and multilevel
degeneration in the lumbar spine without the necessity of surgical
intervention. R. 23, 630. These symptoms were treated with muscle
relaxants, anti-inflammatories, and physical therapy. R. 23, 630.
As the ALJ explained, January and February 2021 physical
examinations showed that Brown had limited ambulation, ambulation
with a cane, dyspneic on exertion, and irregular gait, but were otherwise
normal. R. 23, 603–04, 608–09, 613. On March 11, 2021, Brown had a
telehealth primary care office visit, complaining of shortness of breath,
decreased cognitive functioning, stuttering, and anxiety. R. 598. He was
described as being “confused” with an “abnormal affect.” R. 598. He had
normal motor strength and movement of all extremities and was assessed
as having COVID-19 with a slow recovery; treatment notes stated this
condition was “somewhat improved” but “not improved enough to return
to work” and he suffered from acute respiratory distress syndrome that
was improving. R. 23, 599–600, 604. There was a concern for post-COVID
-8-

cerebral vascular accident (stroke). R. 599. He was referred to neurology
due to his cognitive changes after COVID and to cardiology due to his
tachycardia post-COVID. R. 599–600.
The ALJ recognized that Brown had been diagnosed with essential
hypertension, obstructive sleep apnea (treated with CPAP, noted noncompliance), and type II diabetes (uncontrolled) during the relevant
period. R. 24, 634–35, 1838. As the ALJ observed, Brown’s brain CT and
EKG were normal. R. 24, 692–93, 1830.
Treatment records from Brown’s neurologist from June 2021
revealed that Brown had normal gait, normal sensation, and normal
cardiovascular and respiratory examinations. R. 24, 745–46. Brown
complained of shortness of breath, back pain, muscle weakness, anxiety,
depression, and memory loss. R. 744. The physical examination showed
the following: BP 157/106, BMI 42.17, neck weakness, right sided
weakness 4/5 but 5/5 otherwise, normal hearing, normal sensation,
bilateral

upper

extremity

rales/rhonchi/wheezes,

intention

regular

heart

tremor,

normal

gait,

no

rate

and

rhythm,

no

murmur/rub/gallop, and intact cranial nerves. R. 24, 745–46.
On May 27, 2021, Brown was seen by the neurologist with
complaints of impaired cognition, reporting “[h]e often forgets what he is
doing and it is difficult for him to complete tasks.” R. 748. The medical
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neurological team member stated, “[w]e will consider [n]europsychological
evaluation” but “[w]e should holdoff on formal evaluation since the patient
is still recovering from Covid-19.” R. 748. Brown was reported as having
back pain, muscle weakness, anxiety, depression, memory loss, and a
history of cognitive changes after COVID. R. 749. Psychiatric progress
notes from June 10, 2021, note his chief complaint of anxiety, and he
explained that after COVID diagnosis from January “he has been feeling
fatigue, gets short of breath with exertion” and feels anxious with two or
three anxiety attacks per day. R. 810. His mood was depressed and
anxious, but his concentration and memory were normal. R. 813. He was
diagnosed with major depressive disorder, social anxiety disorder,
Asperger’s Syndrome, sleep apnea, and diabetes. R. 813.
The ALJ discussed that Brown’s June 21, 2021 VA records show
non-antalgic gait that was steady and independent, “good and clear” lungs
bilaterally, blood pressure within normal limitations, no edema, and no
acute distress. R. 24, 808. He asked for a referral to psychiatry because he
had been unable to attend previous appointments because of COVID-19
illness, reporting his “recovery was slow” but he “[f]eels a whole lot better,”
except for occasional dyspnea helped by his prescribed inhaler. R. 807. As
of that date his prescriptions included albuterol inhaler for shortness of
breath, benzonatate as needed for cough, budesonide inhaler, medications
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for anxiety and diabetes, and guaifenesin as needed to thin mucous.
R. 807–08. His lungs were good and clear. R. 808.
Brown was assessed by his primary care team on September 29,
2021, complaining of shortness of breath but no cough, wheezing, or
coughing up blood, as well as anxiety. R. 1759. On exam he was noted as
having dyspneic (mild on exertion) with good air movement, and showed
good judgment, alert and anxious on mental stats exam, with recent
memory abnormal. R. 1759. It was noted he had chronic bronchitis, with
suspected relation to post-COVID lung disease. R. 1760.
The ALJ noted that Brown had independent mobility and ability to
perform self-care without assistance with tenderness of the lumbar spine
and SI joint and decreased range of motion of the lumbar spine. R. 24,
1332–33. Brown’s October 2021 pulmonary function test showed normal
findings indicating the absence of any significant degree of obstructive
pulmonary impairment or restrictive ventilatory defect. R. 24, 1280.
Treatment records from December 2021 also showed normal respiratory
findings, normal gait and station, no dyspnea, normal movement of all
extremities, and tenderness of the lumbar spine. R. 24, 1752. His anxiety
and major depressive disorder were noted, as were posterior rhinorrhea
with chronic cough. R. 1752. The ALJ also considered Brown’s history of
chronic tinnitus in making the RFC finding, noting that Plaintiff used
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binaural hearing aids for tinnitus management, but that he could hear
and understand normal conversational speech with bilateral hearing aids
during evaluation. R. 24, 1846, 1868.
As the ALJ noted, consultative examination notes, dated October 6,
2022, continued to reveal that Brown had normal gait, no pain or
discomfort, regular heart rate and rhythm, no murmurs, “mildly
decreased bilateral breath sounds,” mild difficulty getting in/out of a chair
and examination table, no cyanosis/clubbing/edema, no spinal tenderness,
intact sensation, 2+ reflexes, negative straight leg raise testing, mild
difficulty with tandem/heel/toe walk, moderate difficulty squatting, full
grip strength, full strength in the upper extremities, 4/5 strength in the
lower extremities, and normal hearing with the use of hearing aids. R. 25,
1872–73. The ALJ reported that Brown was assessed with hypertension,
history of COVID infection, history of dyspnea on exertion, history of
chronic low back pain, history of chronic tinnitus, use of bilateral hearing
aids with fair results, generalized anxiety disorder, and PTSD. R. 25,
1874. Brown’s blood pressure readings showed improvement. R. 25, 1911.
The ALJ also noted Brown’s obesity, with his body mass index of 39,
coupled with his hyperlipidemia, weight loss recommendations, and
dietary restrictions. R. 25, 1853.

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As for Brown’s mental health impairments, records indicate Brown
suffered from mixed anxiety and depressive disorder with an onset date
of December 3, 2018. R. 596. The ALJ explained that Brown had normal
psychiatric findings on physical examination from 2020 and 2021. R. 25,
371, 390, 519, 554, 584, 745. The ALJ recognized that Brown suffered from
anxiety and depression with associated symptoms of worrying,
restlessness, deficits in sleep, deficits in concentration/focus, and financial
stress. R. 25, 797–98, 827. Mental health treatment records from 2022
revealed some abnormal findings, including anxious/dysthymic mood and
restricted/tearful affect, but Brown was cooperative and adequately
groomed, with normal attention and concentration, normal memory, fair
insight and judgment, coherent/logical/goal-directed thought process,
realistic thought content, self-awareness, and he understood the likely
outcome of behavior. R. 26, 1768, 1786–87, 1789, 1803–04, 1806, 1809,
1952.
As the ALJ noted, Brown’s October 2022 mental status examination
revealed that he was alert with appropriate dress, and he was cooperative
with normal speech, irritable mood, restricted affect, normal attention
and concentration, normal memory, normal thought processes, no
auditory or visual hallucinations, no delusional thoughts, fair judgment
and insight, and full orientation. R. 26, 1856. The ALJ further recognized
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that Plaintiff’s mental health impairments were treated conservatively
throughout the relevant period, with medication and therapy. R. 26.
B.

Plaintiff’s Claims
As previously noted, the ALJ found that Brown could perform a less

than light exertional work with environmental limitations, occasional
postural limitations, limitations in interacting with others, as well as
limitations in concentration, persistence, and maintenance of pace. R. 26–
27. Brown challenges the ALJ’s consideration of the residual effects from
his COVID-19 hospitalization and his subjective complaints related to
these residuals, when he failed to discuss whether COVID-19 was a
medically determinable impairment (“MDI”).
Citing to Marcus v. Commissioner of Social Security, No. 6:21-cv1745, 2023 WL 1860638, at *3 (M.D. Fla. Feb. 9, 2023), and Nowaczyk v.
Kijakazi, No. 5:21-cv-63, 2022 WL 3031230, at *5 (N.D. Fla. July 12,
2022), report and recommendation adopted, No. 5:21-cv-63, 2022 WL
3030546 (N.D. Fla. Aug. 1, 2022), Brown argues that the ALJ similarly
erred because in those cases, the ALJ discussed medical records showing
that the claimants had been diagnosed with fibromyalgia but did not
consider fibromyalgia a medically determinable impairment. 4 Dkt. 18 at
The Social Security Administration issued SSR 12-2p to provide
guidance on how to determine whether a person has a medically
determinable impairment of fibromyalgia and how it will evaluate this
impairment in a disability claim. See SSR 12-2p, 2012 WL 3104869 (July
4

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1. In Marcus, the Court found error because the Eleventh Circuit had
loosened the need for objective evidence to establish disability from
fibromyalgia since a “hallmark” of that disease was the lack of objective
evidence, referring to the Circuit’s finding that “a claimant’s subjective
complaints may be the only means of determining the severity of [her]
condition and the functional limitations she experiences.” Horowitz v.
Comm’r of Soc. Sec., 688 F. App’x 855, 863 (11th Cir. 2017).
Brown argues that COVID has a similar hallmark due to lack
objective evidence. Dkt. 18 at 2. He relies on the Centers for Disease
Control and Prevention’s Long COVID or Post COVID Conditions paper,
which “states that people with Long-COVID may have symptoms that are
hard to explain and manage and that clinical evaluations and objective
testing and imaging are often normal.” 5 Dkt. 18 at 4. He also relies on the
25, 2012); Francis v. Saul, No. 8:18-cv-2492, 2020 WL 1227589, *3 (M.D.
Fla. Mar. 13, 2020). The ruling informs ALJs in how to consider
fibromyalgia in the five-step process. SSR 12-2p, 2012 WL 3104869 (July
25, 2012). “Although SSRs do not have the same force and effect as
statutes or regulations, they are binding on all components of the Social
Security Administration.” 20 C.F.R. 402.35(b)(1). Soc. Sec. Ruling, SSR
12-2p; Titles II & XVI: Evaluation of Fibromyalgia, SSR 12-2P (S.S.A. July
25, 2012).
See Centers for Disease Control and Prevention, COVID-19, Long
COVID, Symptoms that are hard to explain and manage (“CDC Long
COVID Paper”), https://www.cdc.gov/coronavirus/2019-ncov/long-termeffects/index.html.
Brown’s reference to Long COVID requires some background to
understand. When someone is infected with a virus called SARS-CoV-2,
5

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Social Security Administration’s Emergency Message (“EM”) regarding
evaluation of COVID-10 cases. 6 The EM provides policy guidance for

they may suffer an acute medical condition called COVID-19. See
Coronaviridae Study Grp. of the Int’l Comm. on Taxonomy of Viruses, The
species Severe acute respiratory syndrome-related coronavirus: classifying
2019-nCoV and naming it SARS-CoV-2, 5 Nat. Microbiol. 536, 539 (Mar.
2020). The infected person becomes ill and may be hospitalized, but the
person’s innate and adaptive immune responses usually clear the virus
within a short time and resolve the symptoms caused by infection. See,
e.g., Acute, Dorland’s Illustrated Medical Dictionary 24 (33rd ed. 2020).
For the unlucky, however, SARS-CoV-2 infection can cause a different,
chronic medical condition called post-acute sequelae of COVID-19 or,
more simply, Long COVID.
6 The guidance further states:

Coronavirus Disease 2019 (COVID-19) is a relatively
new disease caused by the virus SARS-CoV-2. COVID-19
is highly variable in presentation, ranging from
asymptomatic infection to severe illness. While COVID19 presents primarily as a respiratory disease, it may
also lead to cardiovascular, renal, dermatological,
neurological, psychiatric, or other complications. The
medical community is still learning about the severity of
the illness, its long-term effects, and emerging variants
of the virus.
Studies have found that about one in five people who
recover from the acute or initial phase COVID-19 illness
report long-term health effects they had not experienced
before contracting the virus. These lingering or chronic
health problems following the acute phase of illness is
clinically described as Post-acute Sequelae of SARS-CoV2 infection (PASC) – more commonly known as Long
COVID.
https://secure.ssa.gov/apps10/reference.nsf/links/03282024111904AM
(last visited October 16, 2024) (“EM Message”). This EM was initially
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evaluating disability cases that include an allegation or diagnosis of
COVID-19. It states:
Studies have found generally poorer long-term health
outcomes among older individuals; people with preexisting comorbidities (such as hypertension, diabetes,
asthma, and obesity); and those with a history of
cigarette smoking or substance abuse. People who were
hospitalized during the acute phase of COVID-19 tend to
experience more severe and persistent Long COVID
symptoms. Sometimes, COVID-19 causes no post-acute
effects. When there are such post-acute effects, their
severity can range from mild to extreme. Therefore, we
must evaluate Long COVID symptoms on an individual
basis.
* * *
We must consider whether COVID-19, Long COVID, a
new MDI(s) caused by COVID-19, or any MDI(s) that has
worsened because of COVID-19 meets or medically
equals a listing (DI 22001.001D.3 and DI 28005.015A.2).
COVID-19, on its own, cannot meet a listing, but it may
equal a listing as an unlisted impairment or as part of a
combination of impairments (DI 24508.010). The same is
true for Long COVID. COVID-19 and Long COVID may
affect respiratory, cardiovascular, renal, neurological, or
other body systems. In most cases, the listing relevant to
a new MDI(s) caused by COVID-19, or any MDI(s) that
has worsened because of COVID-19 will be the
appropriate listing to consider.
EM Message.
Disability evaluators are to consider whether any COVID-related
impairment was “of ‘listing level’ severity,” and, if not, to “assess [the
claimant’s] residual functional capacity (RFC) to determine whether they
issued on August 9, 2022, before the date of the ALJ’s decision, and was
revised effective March 28, 2024. Id.
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have any functional limitations caused by symptoms of COVID-19 or any
resulting MDI(s).” Anthony Edward G. v. O’Malley, No. 23-cv-1611, 2024
WL 3442415, at *5 (S.D. Cal. July 17, 2024), report and recommendation
adopted, No. 23-CV-1611, 2024 WL 3799439 (S.D. Cal. Aug. 12, 2024).
According to Brown, the ALJ erred when, although discussing the
symptoms Brown alleged, he used largely unremarkable objective
evidence to dismiss these symptoms. Dkt. 18 at 3.
The Commissioner argues that Brown has shown no error because
the ALJ discussed Plaintiff’s COVID-19 diagnosis, hospitalization, and
treatment throughout the decision, including noting that he had a slow
recovery from COVID-19 and discussing his respiratory, cardiovascular,
musculoskeletal, and mental health treatment records. Dkt. 17 at 12. The
Commissioner also argues that Brown essentially asks the Court to reweigh the medical evidence of record, and he suggests that any errors by
the ALJ are harmless because the RFC assessment accounts for any
limitations supported by the record. Dkt. 17 at 12.
I disagree with the Commissioner. Another federal court recently
remanded a similar case, finding the ALJ’s failure to appropriately
consider the evidence related to the residual impact of the claimant’s
COVID-19 was not harmless:
Most significantly, although the ALJ acknowledged that
Plaintiff was hospitalized and placed on a ventilator due
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to COVID-19 and that she continued to experience
dyspnea on exertion and shortness of breath following
her discharge and while at home with oxygen, the ALJ
failed to acknowledge that shortness of breath on
exertion remained a persistent and limiting problem
throughout the medical record, extending beyond the
twelve-month durational requirement. As the medical
summary following her hospitalization demonstrates,
the record is replete with references to Plaintiff's
shortness of breath and/or fatigue with exertion,
including when walking or climbing stairs.
A.H. v. O’Malley, No. cv-22-4942, 2024 WL 4190865, at *7 (E.D. Pa. Sept.
13, 2024). So too here.
Remand is required because the ALJ erred in evaluating evidence
of Plaintiff's COVID-19 residuals, particularly as to persistent dyspnea on
exertion and increased anxiety and difficulty in concentration. Brown
testified that after being diagnosed with COVID, he suffered from labored
breathing, problems with exertion, and shortness of breath on a daily
basis. R. 48. On March 11, 2021, Brown complained of shortness of breath,
decreased cognitive functioning, stuttering, and anxiety. R. 598. On May
27, 2021, Brown was reported as having back pain, muscle weakness,
anxiety, depression, memory loss, and a history of cognitive changes after
COVID. R. 749. On September 29, 2021, he again complained of shortness
of breath as well as anxiety. R. 1759. On exam he was noted as dyspneic,
alert and anxious on mental stats exam, with recent memory abnormal,
suffering from chronic bronchitis, with suspected relation to post-COVID
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lung disease. R. 1759–60. The ALJ failed to acknowledge that shortness
of breath on exertion remained a persistent and limiting problem
throughout the medical record, possibly extending beyond the twelvemonth durational requirement.
As to Brown’s mental impairments, the ALJ found Plaintiff's
depressive disorder, PTSD, anxiety, and Asperger’s syndrome to be
severe, but after considering whether the “paragraph B” criteria are
satisfied, found that Brown does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the
listed impairments. 7 R. 20–21. But the ALJ did not consider whether and
to what extent depression, anxiety, or any of his other mental or physical
health problems were attributable to COVID-19. Nor did he consider if
any of these conditions satisfied the severity of duration requirements, as
required by the Commissioner’s policy guidance.
In his decision denying benefits, the ALJ acknowledged Brown’s
reports of decreased concentration and mental status reports evidencing
anxiety and depression, R. 25, but he did not address whether Brown’s
The ALJ considered whether the severity of Brown’s physical
impairments met Listing 1.15, (disorders of the skeletal spine resulting in
compromise of a nerve root) and Listing 1.16 (lumbar spinal stenosis
resulting in compromise of the cauda equina) and whether his mental
impairments met Listing 12.04 (depressive, bipolar, and related
disorders), Listing 12.06 (anxiety and obsessive-compulsive disorder) and
Listing 12.15 (trauma and stressor related disorders). R. 20.

7

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mental health issues could be attributable to COVID-19 residuals,
although he did include mental health limitations in his RFC assessment.
On remand, the ALJ shall reconsider all the evidence in light of
Social Security guidance regarding the impact of COVID-19, and obtain
an updated expert medical opinion, if deemed necessary. The ALJ shall
also consider the evidence of Long COVID and evaluate whether the
evidence shows that Long COVID was a medically determinable
impairment of sufficient duration. 8

8 A careful review of the record demonstrates the ALJ did not comply with

the Commissioner’s guidance. For instance, to determine if a claimant has
an MDI for COVID-19, the ALJ was instructed to look for objective
medical evidence of a positive viral test, diagnostic tests with findings
consistent with COVID-19, or a diagnosis of COVID-19 with signs
consistent with COVID-19.
The record contains objective medical evidence that falls within all
three categories. It contains a positive viral test. R. 425–26. It contains
multiple reports of diagnostic tests with findings consistent with COVID19. Compare R. 392–93, 401, 404–11 (noting diagnostic test findings
consistent with COVID-19) with R. 362 (pre-operative hospital admission
noting finding of clear lungs on chest x-rays). And it contains records
documenting Brown’s hospitalization based on a diagnosis of COVID-19
with signs consistent with COVID-19. See, e.g., R. 392–93 (admission
summary documenting fever and shortness of breath), 395 (consult
confirming COVID-19 diagnosis), 437 (noting “multifocal pneumonia
secondary to COVID-19” was “present on admission”).
On remand, the ALJ shall evaluate all the record evidence, make
the determinations required by the Commissioner’s guidance, and provide
a written explanation on each determination.
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IV. CONCLUSION
Accordingly, it is ORDERED:
1.

Pursuant to sentence four of 42 U.S.C. § 405(g), the

Commissioner’s final decision is REVERSED and REMANDED for
further proceedings consistent with the findings of this Order; and
2.

The Clerk is DIRECTED to enter a judgment accordingly

and thereafter close the file.
DONE and ORDERED in Orlando, Florida, on March 6, 2025.

Copies furnished to:
Counsel of Record

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