GOGINSKY

v.

COMMISSIONER OF SOCIAL SECURITY

OPINION AND ORDER1

I. Status

Raymond Goginsky (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision denying his claim for disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the result of congestive heart failure and trochanteric bursitis in both hips. Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed September⁸, 2022, at 54, 68, 175. Plaintiff protectively filed an application for DIB on April⁴, 2016, alleging a disability onset date of March

66, 82-84, and upon reconsideration, Tr. at 67-79, 80, 81, 88-92. On September 18, 2018, an Administrative Law Judge (“ALJ”) held a hearing, during which the ALJ heard testimony from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). See Tr. at 28-53, 892-

917 (duplicate). On December 12, 2018, the ALJ issued a Decision finding Plaintiff not disabled through the date of the Decision. See Tr. at 10-17, 839-46 (duplicate). Thereafter, Plaintiff sought review of the Decision by the Appeals

Council. See Tr. at 4-5 (Appeals Council exhibit list and order), 855-56 (duplicate), 153-55 (request for review). On October 10, 2019, the Appeals Council denied Plaintiff’s request for review, Tr. at 1-3, 852-54 (duplicate), thereby making the ALJ’s Decision the final decision of the Commissioner. Plaintiff initiated a case in this Court by filing a Complaint on December⁹, 2019 seeking review of the Commissioner’s final decision. Complaint (Doc. No. 1), Case No. 8:19-cv-3021-CPT (M.D. Fla.). On March 30, 2021, this Court entered an Order reversing the matter and remanding it to the Commissioner for further proceedings. Tr. at 858-76; see also Tr. at 877 (Judgment). On

The ALJ held a hearing on January 31, 2022, during which he heard from Plaintiff, who was represented by counsel, and a VE.³ Tr. at 812-35. The ALJ issued a Decision on March 17, 2022 finding that Plaintiff was not disabled through the date of the Decision. Tr. at 794-804. The Appeals Council declined to assume jurisdiction, making the ALJ’s Decision the final Decision of the Commissioner. On June 14, 2022, Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s final decision. On appeal, Plaintiff raises as the issues:¹) “whether the ALJ properly considered the opinion of [Aarti] Patel, [M.D., Plaintiff’s] treating cardiologist”;²) “whether the ALJ properly considered a closed period of disability or erred by failing to call on a medical expert to establish duration of disability”; and³) “whether the ALJ properly considered [Plaintiff’s] credibility and subjective complaints.” Memorandum in Opposition to the Commissioner’s Decision (Doc. No. 24; “Pl.’s Mem.”), filed February⁶, 2023, at 4, 15, 19 (emphasis and capitalization omitted). On March 10, 2023, Defendant filed a Memorandum in

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 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,⁴ an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal

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 inquiry. See Tr. at 797-804. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since March 18, 2016, the alleged onset date.” Tr. at 797 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: congestive heart failure s/p implantable cardioverter defibrillator (ICD) and degenerative joint disease of the bilateral hip.” Tr. at 797 (emphasis and citation omitted). At step three, the ALJ found 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 798 (emphasis and citation omitted). The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”): [Plaintiff can] perform light work as defined in 20 CFR [§] 404.1567(b) except he can stand and walk for up to³ hours in an 8- hour workday. He can occasionally crouch, kneel, and climb ramps and stairs, but can never climb ladders, ropes, or scaffolds. He cannot work around extremes of heat, extremes of cold, humidity, respiratory irritants, or hazards such as open moving machinery or unprotected heights. Tr. at 799 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work” as a “composite job of lubrication servicer.” Tr. at 803 (some emphasis, capitalization, and citation omitted). At the fifth and final step of the sequential inquiry, after considering Plaintiff’s age (“26 years old . . . on the alleged disability onset date”), education (“at least a high school education”), 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 803 (emphasis and citations omitted), such as “marker,” “mailroom clerk,” and “rental clerk-

furniture,” Tr. at 804. The ALJ concluded Plaintiff “has not been under a disability . . . from March 18, 2016, through the date of th[e D]ecision.” Tr. at 804 (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). 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, 139 S.Ct. 1148, 1154 (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 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 argues the ALJ erred by not considering whether he was disabled for any twelve-month period, and/or by failing to call on a medical expert to establish a duration of disability. Pl.’s Mem. at 15-19. In support, Plaintiff observes that the ALJ relied heavily in the Decision on his cardiac improvement by 2018 and 2019 to find that Plaintiff was not disabled, to the exclusion of considering whether Plaintiff was disabled at any point from his alleged onset disability date of March 18, 2016 to 2019.5 Id. Moreover, Plaintiff argues the ALJ had a duty to recontact Dr. Patel, his treating cardiologist, who opined in March 2017 as to Plaintiff’s work-related limitations, “to determine what work-related physical limitations or endurance limitations [Plaintiff] would have [had] leading up to his improved [condition].” Id. at 17. Responding, Defendant contends the ALJ properly found Plaintiff was not disabled at any point through the date of the Decision. Def.’s Mem. at 7-8. Further, Defendant argues the ALJ was not obligated to recontact Dr. Patel because there was enough evidence upon which to base a decision. Id. “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

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 pre-

dating a corrective eye surgery).⁷ The undersigned agrees with Plaintiff that the ALJ erred by failing to consider whether he was disabled for any consecutive twelve-month period. The ALJ recognized in the Decision that Plaintiff alleged a disability onset date of

March 18, 2016. See, e.g., Tr. at 794. This coincided with Plaintiff’s diagnosis of congestive heart failure. See Tr. at 801 (ALJ stating, “Hospital treatment notes in March of 2016 indicated diagnosis of congestive heart failure”). The ALJ also

December 2016, months after placement of the ICD. Tr. at 802; see Tr. at 656-

58.

Beyond that, the ALJ’s discussion of the cardiac evidence jumps to May

2018 when an “echocardiogram . . . revealed an improved ejection fraction of 35%.” Tr. at 801. Also, in evaluating both the non-examining opinion of Debra Troiano, M.D., and the opinion of treating cardiologist, Dr. Patel, that were both rendered in 2017, the ALJ relied heavily on an “echocardiogram in December of

2019 post ICD placement” that “indicated an improved ejection fraction of 35% to 40%.” Tr. at 799; see also Tr. at 800. In sum, the ALJ’s discussion of the cardiac evidence relies almost exclusively on improvement in 2018 and 2019.9 Yet, Plaintiff alleged disability beginning in March 2016, when he was diagnosed with congestive heart failure. Judicial review is frustrated because the Court is unable to determine from the

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), REVERSING the Commissioner’s final decision and REMANDING this matter with the following instructions:

(A) Reconsider whether Plaintiff was disabled for any continuous 12- month period;
(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 28, 2023.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge kaw Copies to: Counsel of Record