[Ross A.] v. Kijakazi, No. 8:22-CV-1393-CPT, 2023 WL 6307181 (M.D. Fla. Sept. 28, 2023)

[Ross A.] v. Kijakazi, No. 8:22-CV-1393-CPT, 2023 WL 6307181 (M.D. Fla. Sept. 28, 2023) (Decision by U.S. Magistrate Judge Christopher P. Tuite, by consent)

Briefs Included:

• Plaintiff’s Memorandum 

• Plaintiff’s Reply Brief 

Topics addressed:

• Specific impairments:  fibromyalgia
• Fibromyalgia – waxing and waning nature; longitudinal record must be
  considered
• RFC - post-DLI evidence
• Weight of evidence from a physical therapist  (old law)
• Testimony of lay witnesses
• Court remand orders  - duty to follow
• Law of the case
• Filing application before entitlement
• Onset date (old law)
• Remand for award of benefits - entitlement clear from the record 
• Post hoc rationalization 

Rulings addressed:

• Social Security Ruling 83-20 (old law)

• Social Security Ruling 06-03p (old law)

• Social Security Ruling 83-10

• Social Security Ruling 12-2p
  

Issues briefed:

1)  Whether the ALJ complied with this Court’s prior remand order in evaluating the severity of Plaintiff’s fibromyalgia and in failing to evaluate the lay evidence from his family members.

2) Whether the ALJ’s reasons for according “little weight” to the Functional Capacity Evaluation completed by physical therapist Doug Buethe are supported by substantial evidence.

3) Whether the ALJ’s RFC assessment is supported by substantial evidence.

4) Whether the ALJ properly evaluated the severity of Plaintiff’s subjective complaints.

Court decision:
The court held that the ALJ erred as he “did not evaluate the Plaintiff’s post-DLI records at all, notwithstanding the fact that they seemingly related to the Plaintiff’s medically determinable impairments at issue during the relevant period.” 2023 WL 6307181 at *4. As the court explained:

The ALJ’s apparent failure to even assess this evidence is especially notable since some of it was compiled in the time frame immediately after the Plaintiff’s DLI. Such an oversight requires reversal and remand given the particular circumstances presented.  Moliere v. Comm’r of Soc. Sec., 2021 WL 8939508, at *3 n.3, *3-4 (M.D. Fla. Nov. 30, 2021) (finding the ALJ committed “reversible error” by not affording any consideration to the opinion of a physician who examined the claimant on one occasion after the claimant’s DLI, despite the fact the physician stated that the claimant’s symptoms applied to the pertinent period) (citing Rosenburg v. Comm’r of Soc. Sec., 2008 WL 4186988, at *5 (M.D. Fla. Sept. 8, 2008)); Vanderhorst v. Comm’r of Soc. Sec., 2013 WL 6056445, at *3-4 (M.D. Fla. Nov. 14, 2013) (deeming remand to be warranted, in part, because the ALJ did not weigh or discuss “at all” a neurosurgeon’s report that was issued less than two months after the claimant’s DLI and that concerned the claimant’s impairments during the relevant time frame).

Id.

The court specifically rejected the Commissioner’s assertion that “[t]he post-DLI records do not indicate [the] Plaintiff was more limited prior to his DLI than the ALJ found” because the “ALJ did not cite it as a justification for declining to evaluate this evidence.” Id. at *5. Rather, “it appears from her decision that she simply rejected these materials out-of-hand merely because they post-dated the Plaintiff’s DLI.” Id. The court noted that it was “well-settled that the Court may only rely on what an ALJ sets forth in her decision, not on post-hoc rationalizations the Commissioner offers on appeal.” Id. (citing Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 872 (11th Cir. 2012) (per curiam) (“We cannot affirm based on a post hoc rationale that ‘might have supported the ALJ’s conclusion.’”) (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)); Dempsey v. Comm’r of Soc. Sec., 454 F. App’x 729, 733 (11th Cir. 2011) (per curiam) (same); Brown v. Comm’r of Soc. Sec., 2021 WL 2917562, at *4 (M.D. Fla. July 12, 2021) (rejecting the Commissioner’s assertion that the ALJ did not consider a physician’s assessment to be a medical opinion on the ground it was a post-hoc rationalization aimed at explaining away the ALJ’s failure to address the opinion).

Finally, the court did not find it necessary to address the remaining challenges, but directed that, on remand, the “ALJ must consider the entirety of the record evidence in accordance with the governing case law and the applicable regulatory provisions — including the post-DLI documentation — in assessing the Plaintiff’s impairments.” Id. (citing Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983)).