Foster v. Commissioner of Social Security

Filing 22

ORDER reversing the Commissioner of Social Security's decision, remanding the case to the Commissioner, and directing the clerk to enter judgment for Tyrone Foster and against the Commissioner and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 9/25/2024. (KG)

United States District Court
Middle District of Florida
Tampa Division
TYRONE FOSTER,
Plaintiff,
NO. 8:23-cv-1396-PDB

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order
Tyrone Foster challenges a final decision by the Commissioner of Social
Security denying his applications for disability insurance benefits (DIB or
SSD) and supplemental security income (SSI). Doc. 1. The Commissioner has
filed an 811-page transcript, Docs. 11, 11-1−11-7; Foster has filed a brief, Docs.
13, 13-1−13-3; the Commissioner has filed a response brief, Doc. 16; Foster has
filed a reply brief, Doc. 17; and the parties presented oral argument, Doc. 21.
The procedural history and standard of review are in the parties’ briefs, Doc.
13 at 2−4; Doc. 16 at 2−4, and not repeated here.
Foster argues the ALJ erred by failing to address his amended alleged
disability onset date. Doc. 13 at 4−9; Doc. 17 at 1−4. The Commissioner
disagrees. Doc. 16 at 4−7.
Foster filed previous applications on November 6, 2017, alleging
September 18, 2017, as the alleged onset date. Tr. 69, 308. The agency denied
the applications on April 9, 2018. Tr. 69. Foster filed the current applications

approximately two years later, on May 20, 2020, alleging May 1, 2020, as the
alleged onset date. Tr. 284−302.
In a pre-hearing memorandum to the ALJ, Foster acknowledged the
alleged onset date for the current applications is May 1, 2020, but “request[ed]
that the prior claim be reopened as he has new and material evidence and he
is within the four year time period to reopen it.” Tr. 409. He ended the
memorandum, “[Foster] is … disabled from the onset of his November 6, 2017
application.” Tr. 417. At the hearing, Foster’s counsel stated, “I would …
request at this time to reopen the prior SSD claim. The SSI claim is outside
the two-year limit, but the SSD is within the four years.” Tr. 47.
The ALJ never revisited the re-opening request. In the decision, the ALJ
stated, “On May 20, 2020, [Foster] protectively filed a Title II application for a
period of disability and [DIB]. [Foster] also protectively filed a Title XVI
application for [SSI] on May 20, 2020. In both applications, [Foster] alleged
disability beginning May 1, 2020.” Tr. 21. The ALJ described “May 1, 2020, [as]
the alleged onset date.” Tr. 24. The ALJ found that Foster’s date last insured
is June 30, 2022. Tr. 24. Considering the period beginning May 1, 2020, Tr.
21−36, the ALJ ruled, “[Foster] has not been under a disability, as defined in
the Social Security Act, from May 1, 2020, through the date of this decision[.]”
Tr. 22, 35.
The ALJ described Foster’s testimony:
[Foster] testified that his [inflammatory bowel disease] or Crohn’s
disease results in full-body spasms and extreme nausea each time he
eats, and that he must use the bathroom immediately. He also described
this spasming as a full-body Charlie Horse or muscle cramping. He also
testified that he was involved in three motor vehicle accidents and
suffers daily back pain. In addition, he testified that he is unable to lift

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his left shoulder, can lift no more than 10 pounds, cannot grip anything,
and can stand for no more than 30 minutes at a time. Furthermore, he
testified that he uses a cane, but someone stole it.

Tr. 29. The ALJ found that Foster’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms but his “statements
concerning the intensity, persistence and limiting effects of these symptoms
are not entirely consistent with the medical evidence and other evidence in the
record[.]” Tr. 29. The ALJ reasoned in part:
The record confirms a longstanding history of IBD that has been
variably diagnosed as sigmoid diverticulitis, Crohn’s disease, and IBD
(Exhibits 3F, 8F). In addition, emergency room records from well before
the period at issue show a hospitalization secondary to abdominal pain
in September 2017. A computerized tomography (CT) scan confirmed
perforated sigmoid diverticulitis and abscesses, which were surgically
drained. [Foster] was then treated with medication and “significantly
improved” before being discharged after five days (Exhibit 8F).
[Foster] returned to the hospital the following month for renewed
abdominal pain, but admitted that he had not been taking his
medications. A CT scan at this time showed “internal improvement” of
the abscesses and diverticulitis. It was also noted that [Foster] had
failed to follow up with outpatient care (Exhibit 8F).
While these emergency room episodes help establish [Foster]’s medical
history of abdominal issue, they also show that those issues and
symptoms were present well before the alleged onset date. In that
regard, [Foster] sought treatment prior to the alleged onset date for the
same medical conditions that allegedly prevent him from working. As
[Foster] did not allege an onset of disability until May 1, 2020, he
inherently acknowledged the ability to work prior to that time.
His pursuit of treatment prior to the alleged onset date for
symptoms and limitations similar to those alleged as medically
disabling casts some doubt as to whether those symptoms truly
prevent him from working.

Tr. 29–30 (emphasis added).

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An ALJ must state the grounds for his decision with enough clarity to
enable a court to conduct a meaningful review. Owens v. Heckler, 748 F.2d
1511, 1514–15 (11th Cir. 1984). Moreover, an ALJ must clearly articulate
explicit and adequate reasons for rejecting a claimant’s testimony about
symptoms. Foote v. Chater, 67 F.3d 1553, 1561–62 (11th Cir. 1995); see also 20
C.F.R. § 404.1529(c)(3) (“How we evaluate symptoms, including pain.”); 20
C.F.R. § 416.929(c)(3) (same).
In this case, the ALJ failed to clearly articulate adequate reasons for
rejecting Foster’s testimony about his symptoms by failing to address his
amended position that he has been disabled since September 18, 2017, Tr. 417,
308, and by using only his pre-amended position that he has been disabled
since May 1, 2020, to reject his testimony about his symptoms. Remand is
warranted.
The Commissioner argues the Court has no jurisdiction to review the
ALJ’s denial of Foster’s request to re-open his previous DIB application. Doc.
16 at 4−7. This argument reads Foster’s brief too narrowly. As Foster replies,
“The question of whether the ALJ reopened that application and whether the
court has subject matter jurisdiction over that question is not dispositive to the
issue raised by” him. Doc. 17 at 2. The Court does not consider the ALJ’s denial
or—as it appears—complete failure to consider the re-opening request.
Foster raises other arguments: the ALJ erred by failing to include in the
residual functional capacity (RFC) mental limitations and failing to consider a
doctor’s report properly, Doc. 13 at 9−16; the ALJ erred by including in the
RFC that he could frequently reach with the upper left extremity and could lift
up to twenty pounds, id. at 16−18; the ALJ’s finding that he can perform jobs
existing in substantial numbers in the national economy is not supported by
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substantial evidence, id. at 18−23; and the ALJ erred in finding he can perform
jobs with a Specific Vocational Preparation rating of two, id. at 23−24. Because
remand is warranted regardless of the outcome of these arguments and
because the re-evaluation of Foster’s testimony about his symptoms might
affect the ALJ’s findings underlying these arguments, the Court declines to
address these arguments.
The decision is reversed and the case is remanded to the
Commissioner for the ALJ to address Foster’s amended position that he has
been disabled since September 18, 2017, Tr. 417, 308, to re-evaluate Foster’s
testimony about his symptoms, and to take any other necessary action. The
clerk must enter judgment for Tyrone Foster and against the Commissioner
and close the file.
Entered in Jacksonville, Florida, on September 25, 2024.

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