Mayer v. Commissioner of Social Security

Filing 40

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
TAMPA DIVISION
ELIZABETH MAYER,
Plaintiff,
v.

Case No. 8:23-cv-1079-JRK

MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER 1
I.

Status

Elizabeth Mayer (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying her claim for
supplemental security income (“SSI”). Plaintiff’s alleged inability to work is the
result of spina bifida, back problems, bronchitis, asthma, insulin-dependent
diabetes, skin and autoimmune disorders, a “flesh eating disease from [an]
abscess and boil condition,” cardiomyopathy, congestive heart failure, irritable
bowel syndrome, and hearing loss in left ear. Transcript of Administrative
Proceedings (Doc. No. 12; “Tr.” or “administrative transcript”), filed July 14,

1

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. 15), filed July 14, 2023; Reference Order (Doc. No. 17), entered July 24, 2023.

2

2023, at 103-04, 121, 257. Plaintiff protectively filed an application for SSI on
3

November 14, 2017, alleging a disability onset date of June 1, 2017. Tr. at 23540. The application was denied initially, Tr. at 103-17, 118, 119, 146-48, and
upon reconsideration, Tr. at 120-39, 140, 141, 152-57.
On November 6, 2019, an Administrative Law Judge (“ALJ”) held a
hearing, during which Plaintiff (represented by counsel) and a vocational expert
(“VE”) testified. Tr. at 39-75. On December 16, 2019, the ALJ issued a Decision
finding Plaintiff not disabled since the date the SSI application was filed. See
Tr. at 15-31. 4
Thereafter, Plaintiff sought review of the Decision by the Appeals
Council. See Tr. at 4-5 (Appeals Council exhibit list and order), 227-29 (request
for review). On August 28, 2020, the Appeals Council denied Plaintiff’s request
for review, Tr. at 1-3, thereby making the ALJ’s Decision the final decision of
the Commissioner.

2

Some of the documents in the administrative transcript are duplicated.
Citations are to the first time a document appears.
3
Although actually filed on January 24, 2018, see Tr. at 235, the protective filing
date of the application is listed elsewhere in the administrative transcript as November 14,
2017, see Tr. at 103, 121.
4
The administrative transcript also contains an ALJ decision dated January 16,
2014 that adjudicated earlier-filed claims for SSI and disability insurance benefits (DIB). Tr.
at 79-93; see also Tr. at 99-101 (Appeals Council denial of review). That decision is not at issue
in this appeal.
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Plaintiff appealed the Commissioner’s final decision to this Court. See
Complaint (Doc. No. 1), filed October 13, 2020, Case No. 8:20-cv-2397-SPF. On
March 9, 2022, the Court entered an Order granting Defendant’s unopposed
motion to reverse and remand the matter and directing that the matter be
reversed and remanded for further proceedings to include evaluation of the
medical opinion evidence and prior administrative findings, consideration of
Plaintiff’s residual functional capacity (“RFC”), and provision of an opportunity
for a new hearing. Tr. at 2625-26; see Tr. at 2627 (Judgment).
On remand, the Appeals Council on June 27, 2022 entered an Order
5
remanding the matter to an ALJ. Tr. at 2631-32. The ALJ held a hearing on

February 1, 2023, taking testimony from Plaintiff (who was represented by
counsel) and a VE. Tr. at 2572-92. On February 17, 2023, the ALJ issued a
Decision finding Plaintiff not disabled since the date the SSI application was
filed. Tr. at 2542-63. The Appeals Council declined to assume jurisdiction,
making the ALJ’s Decision the final decision of the Commissioner. On May 15,
2023, Plaintiff commenced this action under 42 U.S.C. § 405(g), as incorporated
by § 1383(c)(3), by timely filing a Complaint (Doc. No. 1), seeking judicial review
of the Commissioner’s final decision.

5

50, 2707-08.

This hearing was held via telephone with Plaintiff’s consent. Tr. at 2574, 2635-3-

On appeal, Plaintiff argues the ALJ erred in 1) assessing Plaintiff’s RFC,
including failing to account for absences and failing to consider the combination
of her impairments; 2) failing to consider whether Plaintiff was disabled for any
twelve-month period; and 3) failing to consider medical opinions of record
regarding

Plaintiff’s

hearing.

Memorandum

in

Opposition

to

the

Commissioner’s Decision (Doc. No. 29; “Pl.’s Mem.”), filed December 11, 2023,
at 3-4, 18, 20, 24, 27. 6 On March 25, 2024, Defendant responded to Plaintiff’s
arguments by filing a Memorandum in Support of the Commissioner’s Decision
(Doc. No. 38; “Def.’s Mem.”).
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 reconsideration of whether
Plaintiff was or has been disabled for any consecutive twelve-month period. On
remand, reevaluation of the evidence on this issue may impact the
Administration’s consideration of the remaining issues on appeal. For this
reason, the Court need not address the parties’ arguments on those issues. See
Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam)
(declining to address certain issues because they were likely to be reconsidered
on remand); Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913 F.2d

6

Plaintiff frames five issues instead of three. See Pl.’s Mem. at 3-4. Three of them
relate to the ALJ’s RFC finding, so the undersigned has combined them all into one issue.
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882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need
not be addressed when the case would be remanded on other issues).
II.

The ALJ’s Decision

When determining whether an individual is disabled, 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 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 254463. At step one, the ALJ determined Plaintiff “has not engaged in substantial
gainful activity since November 14, 2017, the application date.” Tr. at 2544
(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has
the following severe impairments: skin ulcers, obesity, hearing loss, tinnitus,
hypertension, diabetes, necrotizing fasciitis, asthma, bronchitis, spina bifida,
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hypercholesterolemia, polycystic ovarian disorder, colitis, cardiomyopathy,
depression, bipolar disorder, anxiety, and obsessive-compulsive disorder
(OCD).” Tr. at 2544 (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 2545
(emphasis and citation omitted).
The ALJ determined that Plaintiff has the following RFC:
[Plaintiff can] perform sedentary work as defined in 20 CFR [§]
416.967(a) except that [Plaintiff] can lift up to 10 pounds; can stand
and/or walk for two hours in an eight-hour workday; can sit for six
hours in an eight-hour workday; can never climb ladders, ropes, or
scaffolds; can occasionally climb ramps and stairs; can occasionally
balance, stoop, kneel, crouch, and crawl; can frequently reach,
handle, finger, and feel; must avoid loud noise, vibration,
temperature extremes, pulmonary irritants, hazardous machinery,
and heights; can understand, remember, and carry out only routine
and repetitive instructions and tasks; can manage or deal with
occasional changes in routine work settings or duties; cannot
perform work requiring a specific production rate or pace, such as
assembly lines; can have occasional interaction with coworkers,
supervisors, and the public; and can maintain attention and
concentration for two hours at a time, but does require the standard
morning, lunch, and afternoon breaks.
Tr. at 2547 (emphasis omitted).
At step four, the ALJ found that Plaintiff “has no past relevant work.” Tr.
at 2561 (some emphasis and citation omitted). At the fifth and final step of the
sequential inquiry, after considering Plaintiff’s age (“30 years old . . . on the
date the application was filed”), education (“at least a high school education”),
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lack of relevant work experience, and RFC, the ALJ relied on the VE’s testimony
and found that “there are jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform,” Tr. at 2561 (emphasis and citation
omitted), such as “Table Worker,” “Addresser,” and “Stuffer,” Tr. at 2562
(citations omitted). The ALJ concluded Plaintiff “has not been under a
disability . . . since November 14, 2017, the date the application was filed.” Tr.
at 2563 (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 is not for this Court to
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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

“Disability,” as defined in the Social Security Act and relevant here, is the
“inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . 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). “A claimant may request benefits for a
‘closed period’ of disability, even if he is later able to work.” 7 Rodriguez v.
Comm’r, 737 F. App’x 514, 516 (11th Cir. 2018) (quoting Pickett v. Bowen, 833
F.2d 288, 289 n.1 (11th Cir. 1987)). “In such cases, if the decision maker
determines that an applicant was disabled for a finite period that started and
stopped prior to the date of the decision, the claimant is entitled to a lump sum.”

7

Here, Defendant does not contend that Plaintiff was ineligible for a “closed
period” consideration. See Def.’s Mem. at 17-19. Rather, Defendant argues the ALJ was right
to find Plaintiff was not disabled for twelve consecutive months. See id.
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Id. (citing Pickett, 833 F.2d at 289 n.1). If an ALJ in that situation fails to
explicitly consider whether a claimant is or was disabled for any continuous
twelve-month period, reversal with remand is appropriate. See id. at 515-17
(reversing and remanding when an ALJ did not explicitly consider evidence predating a corrective eye surgery).
The undersigned agrees with Plaintiff that the ALJ erred by failing to
consider whether she was disabled for any consecutive twelve-month period.
Most notably, from Plaintiff’s SSI filing date of November 14, 2017 through
September 2019, 8 the hospitalizations, emergency room (ER) visits, and
procedures for abscesses and lesions from the pyoderma gangrenosum condition
alone are numerous. See Tr. at 691-96 (January 22, 2018 ER visit), 678-88
(return to ER two days later, January 24, 2018, with worsening pain and need
for admission to hospital), 701-13 (admission to St. Petersburg General Hospital
from January 24, 2018 to February 1, 2018 for wound care and excision with
plan to discharge to an extended care facility), 714-27, 736-38 (return to St.
Petersburg General Hospital ER on February 6, 2018 because extended care
facility was unable to care for her), 739-804 (admission to Gracewood
Rehabilitation from February 6, 2018 through February 28, 2018), 861-67

8

This is when Plaintiff argues the ALJ should have seriously considered ending
a closed period if ultimately determining Plaintiff was not disabled thereafter. Pl.’s Mem. at
7-12, 18-19.
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(March 2, 2018 return to ER due to foul odor coming from home wound dressing
change), 851-60 (March 14, 2018 return to ER and admission to hospital
because wound was not properly healing), 820-25 (hospital records showing
GBS, e. coli, and corynebacterium culture and discharge to home health care on
March 18, 2018), 893-94 (April 30, 2018 debridement procedure in office by
Ernest Rehnke, M.D.), 1166-1200 (admission to AdventHealth North Pinellas
from June 1, 2019 to June 5, 2019 for nonhealing wounds), 1939-45 (admission
to AdventHealth North Pinellas from September 16, 2019 to September 17,
2019 for breast abscess), 2054-66 (admission to AdventHealth North Pinellas
from September 18, 2019 to September 20, 2019 for continued abscess and
cellulitis).
The ALJ did discuss some of these records, but not all of them. See Tr. at
2549-55. The ALJ also discussed that Plaintiff was regularly followed by
physicians for the wound care. See Tr. at 2549-55. However, the ALJ failed to
address at all whether severity of the pyoderma gangrenosum and its
complications, particularly from the SSI protective filing date through
November 2019, warranted a closed period of disability. Moreover, when
summarizing Plaintiff’s physical impairments toward the end of the Decision
and explaining the RFC, the ALJ did not even mention this condition or the
many lesions and abscesses that resulted. See Tr. at 2555. Perhaps this is
because the condition was better controlled after November 2019 (as Plaintiff
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recognizes, see Pl.’s Mem. at 13). But again, before then, the record
demonstrates significant treatment modalities and hospitalizations due to
uncontrolled and nonhealing wounds.
Defendant argues that the number of absences due to appointments and
hospitalizations is not an appropriate consideration in determining an
individual’s RFC. See Def.’s Mem. at 18-19 (citing, e.g., Blackmon v. Comm’r of
Soc. Sec., No. 6:22-cv-1283-RBD-DCI, 2023 WL 5310929, at *2-4 (M.D. Fla. May
25, 2023)). The opinion from this Court upon which Defendant relies was
appealed to the United States Court of Appeals for the Eleventh Circuit and
affirmed (after the filing of Defendant’s Memorandum). See Blackmon, 2024
WL 3495022, at *7 (11th Cir. 2024) (unpublished). Interestingly, though, the
Eleventh Circuit in affirming on the absenteeism issue performed a calculation
of how often the claimant actually had medical events—“an average of just over
1 time per 30 days”—and found it was “hardly having multiple medical events
in a month on a ‘regular and ongoing basis.’” Id. “Moreover,” found the Court,
“nothing in the record shows that [the claimant] could not schedule future
appointments outside of work hours, schedule more than one appointment per
day, or schedule appointments on her off days, which would minimize the need
to miss work.” Id. In other words, the Eleventh Circuit in Blackmon did not
reject the notion that absenteeism from hospitalizations can be factored into an
RFC; the Court merely found on the facts before it that the ALJ did not err
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given the actual number of days the claimant was absent and the lack of record
evidence on whether future absences could be avoided.
Here, however, the number of days of hospitalizations alone account for
more than double the number of total absences (including doctor’s
appointments) during the relevant period in Blackmon. See id. As well,
absenteeism from hospitalizations is only one piece of the puzzle. The hospital
records themselves demonstrate, among other things, the severity of the
wounds and lesions, efforts to care for them that largely were unsuccessful for
periods of time, medications prescribed, and various objective findings.
Judicial review is frustrated because the Court is unable to determine
from the ALJ’s discussion of the evidence if adequate consideration was given
to whether Plaintiff was disabled for any continuous twelve-month period,
particularly in light of the evidence discussed herein, and whether the ALJ
adequately considered the effects of Plaintiff’s pyoderma gangrenosum. The
matter must be reversed and remanded for reconsideration.
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), as incorporated by § 1383(c)(3),
REVERSING the Commissioner’s final decision and REMANDING this
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matter with the following instructions:
(A)

Reconsider whether Plaintiff was disabled for any continuous 12-

month period, giving particular consideration to the effects of Plaintiff’s
pyoderma gangrenosum;
(B)

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

and
(C)

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

properly.
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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