Zarnoch v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SUSAN ZARNOCH,

Plaintiff,

v. Case No.: 8:20-cv-623-MRM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

OPINION AND ORDER

Plaintiff Susan Zarnoch filed a Complaint on March 17, 2020. (Doc. 1).

Plaintiff seeks judicial review of the final decision of the Commissioner of the Social

Security Administration (“SSA”) denying her claim for a period of disability and

disability insurance benefits. The Commissioner filed the transcript of the

administrative proceedings (hereinafter referred to as “Tr.” followed by the

appropriate page number), and the parties filed a joint memorandum detailing their

respective positions. (Doc. 25). For the reasons set forth herein, the decision of the

Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the

Social Security Act, 42 U.S.C. § 405(g).

I. Social Security Act Eligibility

The law defines disability as the inability to do any substantial gainful activity

by reason of any medically determinable physical or mental impairment that can be

expected to result in death or that has lasted or can be expected to last for a

continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe,

making the claimant unable to do her previous work or any other substantial gainful

activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20

C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of

persuasion through step four, while the burden shifts to the Commissioner at step

five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

II. Procedural History

Plaintiff filed a claim for a period of disability and disability insurance benefits

on February 12, 2016. (Tr. at 21).1 Plaintiff alleged a disability onset date of August

1, 2015. (Id.). Plaintiff’s claim was denied at the initial level on May 13, 2016, and

upon reconsideration on August 15, 2016. (Id.). Plaintiff requested an

administrative hearing, which was held on February 26, 2019, before Administrative

Law Judge (“ALJ”) Richard P. Gartner. (Id. at 38-76). The ALJ issued an

unfavorable decision on April 2, 2019. (Id. at 18-37). On January 24, 2020, the

Appeals Council denied Plaintiff’s request for review. (Id. at 1-8). Plaintiff then filed

her Complaint with this Court on March 17, 2020, (Doc. 1), and the parties

1 The SSA revised the rules regarding the evaluation of medical evidence and

symptoms for claims filed on or after March 27, 2017. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (Jan. 18,

2017). The new regulations do not apply in Plaintiff’s case because Plaintiff filed her

claim before March 27, 2017.

consented to proceed before a United States Magistrate Judge for all purposes,

(Docs. 15, 18). The matter is, therefore, ripe.

III. Summary of the Administrative Law Judge’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a

claimant has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x

890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)).

An ALJ must determine whether the claimant: (1) is performing substantial gainful

activity; (2) has a severe impairment; (3) has a severe impairment that meets or

equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix

1; (4) can perform her past relevant work; and (5) can perform other work of the sort

found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th

Cir. 2004). The claimant has the burden of proof through step four and then the

burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511

F. App’x 913, 915 n.2 (11th Cir. 2013).

The ALJ found that Plaintiff “meets the insured status requirements of the

Social Security Act through September 30, 2020.” (Tr. at 23). At step one, the ALJ

found that Plaintiff “has not engaged in substantial gainful activity since August 1,

2015, the alleged onset date (20 [C.F.R. §] 404.1571 et seq.).” (Id.). At step two, the

ALJ found that Plaintiff has the following severe impairments: “spinal disorder;

Crohn’s disease; asthma; obesity (20 [C.F.R. §] 404.1520(c)).” (Id.). At step three,

the ALJ determined 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 (20 [C.F.R. §§]

404.1520(d), 404.1525 and 404.1526).” (Id. at 25).

At step four, the ALJ found that Plaintiff has the residual functional capacity

(“RFC”):

to perform light work as defined in 20 [C.F.R. §]

404.1567(b) except the claimant can occasionally balance,

stoop, kneel, crouch, crawl, and climb ramps and stairs, but

must avoid climbing ladders, ropes, or scaffolds. In

addition, the claimant must avoid concentrated exposure to

fumes, odors, dusts, gases, and environments with poor

ventilation. The claimant is also limited to occupations that

allow brief access to a restroom every two to two and a half

hours during the workday.

(Id.). The ALJ then determined that Plaintiff “is capable of performing past relevant

work as a Cashier.” (Id. at 31). For these reasons, the ALJ held that Plaintiff “has

not been under a disability, as defined in the Social Security Act, from August 1,

2015, through the date of this decision (20 [C.F.R. §] 404.1520(f)).” (Id.).

IV. Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ

applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.

1988), and whether the findings are supported by substantial evidence, Richardson v.

Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are

conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial

evidence is more than a scintilla—i.e., the evidence must do more than merely create

a suspicion of the existence of a fact, and must include such relevant evidence as a

reasonable person would accept as adequate to support the conclusion. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,

838 (11th Cir. 1982); Richardson, 402 U.S. at 401).

Where the Commissioner’s decision is supported by substantial evidence, the

district court will affirm, even if the reviewer would have reached a contrary result as

finder of fact, and even if the reviewer finds that “the evidence preponderates

against” the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3

(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district

court must view the evidence as a whole, taking into account evidence favorable as

well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan,

979 F.2d 835, 837 (11th Cir. 1992) (a court must scrutinize the entire record to

determine reasonableness of factual findings).

V. Analysis

On appeal, Plaintiff raises two issues. As stated by the parties, the issues are:

1. Whether the [ALJ] erred in finding that Ms. Zarnoch could return

to past relevant work as Cashier II, DOT[#] 211.462-010; and

2. Whether the ALJ’s [RFC] determination and hypothetical to the

Vocational Expert were supported by subsantial [sic] evidence.

(Doc. 25 at 19, 30). The Court starts with the second issue because it necessitates

remand.

A. Whether the ALJ’s RFC Determination and Hypothetical to the

Vocational Expert Were Supported by Substantial Evidence.

Plaintiff argues that “[t]he ALJ found [Plaintiff’s] Chron’s [sic] disease to be a

severe impairment but failed to adequately account for it in his hypothetical to the

VE and RFC determination.” (Doc. 25 at 31). Additionally, Plaintiff asserts that the

ALJ did not account for Plaintiff’s “Terminal Ileitis, [irritable bowel syndrome

(“IBS”),] and Colitis.” (Id.). Specifically, Plaintiff contends that the RFC limitation

allowing Plaintiff “brief access to a restroom every two to two and a half hours

during the workday” does not account for the severity of her Crohn’s disease and

other gastrointestinal (“GI”) problems or how often she needs to use the restroom.

(Id. (quoting Tr. at 25)). Plaintiff asserts that allowing her to use the restroom every

two to two and a half hours is “tantamount to no limitation at all” when you

consider an employee’s normal breaks and lunch. (Id.). Furthermore, Plaintiff

contends that her breaks cannot be scheduled because she does not know when a

flair up will occur and that she requires more frequent breaks, especially on bad days.

(Id.). In support, Plaintiff cites her medical records and highlights that the VE

testified that using the restroom every thirty minutes would be work preclusive. (Id.

at 31-32 (citations omitted)).

Additionally, Plaintiff asserts that the ALJ minimized Plaintiff’s GI

impairments by making mistakes of fact in the decision. (Id. at 32). Plaintiff asserts

that the ALJ erroneously (1) stated that Plaintiff did not see a gastroenterologist until

September 2016 and (2) implied that Plaintiff was non-compliant with medications

or did not need medications. (Id. at 33-34 (citations omitted)).

Moreover, Plaintiff argues that the ALJ erred in finding Plaintiff’s mental

impairments of adjustment disorder, anxiety, and PTSD are non-severe and failed to

consider them in combination with her other impairments when assessing her RFC.

(Id. at 33-34). Additionally, Plaintiff contends that the ALJ failed to consider Dr.

Cohen’s, the consultative examining psychologist, diagnosis of Somatic Complaint

Disorder. (Id. at 34 (citing Tr. at 462-65)). Plaintiff maintains that had the ALJ

properly considered the medical records relating to Plaintiff’s mental health

impairments, the ALJ would have included mental limitations in the RFC and the

hypothetical to the VE, which would have precluded all work. (Id.). In support,

Plaintiff highlights her hearing testimony during which she addressed the effects of

her mental impairments on her ability to work. (Id. at 34-35 (citing Tr. at 47, 65-66)).

Plaintiff argues that because the ALJ did not properly assess and account for

Plaintiff’s mental impairments, the RFC is not supported by substantial evidence.

(Id. at 35 (citations omitted)).

In sum, Plaintiff essentially asserts that because the ALJ did not include

Plaintiff’s mental impairments or her symptoms of IBS in the hypothetical, the VE’s

testimony cannot constitute substantial evidence to support the ALJ’s decision. (See

id. at 35-36 (citations omitted)).

In response, Defendant argues that substantial evidence supports the ALJ’s

RFC assessment and that the ALJ properly considered Plaintiff’s subjective

statements, “including her allegations of disabling symptoms due to her Chron’s [sic]

disease, IBS and Terminal Ileitis.” (Id. at 36). In support, Defendant maintains that

the ALJ’s discussion of the record constitutes substantial evidence to support his

RFC assessment and that Plaintiff failed to prove she had additional work-related

limitations. (Id. at 37). Defendant notes that the mere fact that Plaintiff has a severe

impairment “does not establish that th[e] impairment[] caused additional

limitations.” (Id. at 38 (citations omitted)). Rather, Defendant contends that a

finding of severe impairment simply allows the ALJ to continue the sequential

evaluation, where Plaintiff must prove she is disabled due to her impairments. (Id.

(citation omitted)).

Additionally, Defendant argues that “substantial evidence supports the ALJ’s

finding that Plaintiff’s statements concerning the intensity, persistence, and

functionally limiting effects of her alleged symptoms were not entirely consistent

with the medical evidence and other evidence,” highlighting the ALJ’s record

citations and the medical evidence of record. (Id. at 38-39 (citing Tr. at 29, 42-45,

442-44, 528, 965-75, 985-1075)). Defendant contends, therefore, that “the objective

medical findings support the ALJ’s evaluation of Plaintiff’s subjective statements and

his assessment of her RFC.” (Id. at 39).

In sum, Defendant argues that (1) Plaintiff failed to meet her burden to show

that she is disabled; (2) the ALJ properly considered the evidence and performed his

duty as trier of fact; (3) substantial evidence supports the ALJ’s RFC assessment and

evaluation of Plaintiff’s subjective complaints; (4) Plaintiff failed to prove she could

not preform her past relevant work; and (5) substantial evidence supports the ALJ’s

finding that Plaintiff is not disabled as defined by the Act. (Id.).

“The [RFC] is an assessment, based upon all of the relevant evidence, of a

claimant’s remaining ability to do work despite his impairments.” Lewis v. Callahan,

125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)). An

individual’s RFC is her ability to do physical and mental work activities on a

sustained basis despite limitations secondary to her established impairments. Delker

v. Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla. 2009). In determining a

claimant’s RFC, the ALJ must consider all of the relevant evidence of record. Barrio

v. Comm’r of Soc. Sec., 394 F. App’x 635, 637 (11th Cir. 2010). Thus, the ALJ must

consider all the claimant’s medically determinable impairments, even those not

designated as severe. 20 C.F.R. § 404.1545(a)(2).

However, the Eleventh Circuit has consistently held that “the claimant bears

the burden of proving that [s]he is disabled, and, consequently, [s]he is responsible

for producing evidence in support of [her] claim.” Ellison v. Barnhart, 355 F.3d 1272,

1276 (11th Cir. 2003). Ultimately, when the Commissioner’s decision is supported

by substantial evidence, the Court will affirm, even if the Court would have reached

a contrary result as the ALJ and even if the Court finds that “the evidence

preponderates against” the Commissioner’s decision. See Edwards v. Sullivan, 937

F.2d 580, 584 n.3 (11th Cir. 1991).

In considering Plaintiff’s arguments, the Court first considers whether the ALJ

properly assessed Plaintiff’s physical impairments.

As to Plaintiff’s Terminal Ileitis, IBS, and Colitis, the Court finds that the ALJ

did not provide enough discussion to permit meaningful judicial review into whether

the ALJ properly considered the impairments. Specifically, while the ALJ began his

step four analysis by noting that he “considered all symptoms and the extent to

which these symptoms can reasonably be accepted as consistent with the objective

medical evidence and other evidence, based on the requirements of 20 [C.F.R. §]

404.1529 and SSR 16-3p,” (id. at 24), a closer read of the portion of the decision in

which the ALJ supports his RFC finding shows that the ALJ failed to address

Plaintiff’s Terminal Ileitis, IBS, and Colitis, (see id. at 25-31).

In his decision, the ALJ discussed Plaintiff’s Crohn’s disease in detail and

ultimately concluded that the limitation to “brief access to a restroom every two to

two and a half hours during the workday” adequately accounted for the impairment.

(See id. at 26-27, 29; see also id. at 25). In so finding, the ALJ relied on the lack of a

Crohn’s disease flair up and an improvement such that Plaintiff could forgo the

medication. (See id. at 29). Yet, the ALJ failed to address Plaintiff’s other GI

impairments, including her Terminal Ileitis, Colitis, and IBS,2 making meaningful

2 The Court notes that the ALJ acknowledged Plaintiff’s diagnosis of Colitis and

Ileitis briefly when addressing her Crohn’s disease: “[Plaintiff] had a colonoscopy in

April 2016 that revealed small internal hemorrhoids, normal colonic mucosa, and

mild inflammation and ulceration in the terminal ileum. Biopsies of the terminal

ileum revealed moderate chronic active ileitis. The colon biopsies were consistent

with Y acid chronic colitis. ([Tr. at 534, 537, 553]).” (Tr. at 27). However, the

Eleventh Circuit has found that a brief mention of an impairment in a biographical

manner or as part of a summary of the medical examination related to the other

limitations is insufficient constitute a consideration of the impairment. See Schink v.

Comm’r of Soc. Sec., 935 F.3d 1269 (11th Cir. 2019). Because the ALJ otherwise

judicial review impossible. See Speagle v. Astrue, No. 3:08-cv-1046-J-JRK, 2010 WL

750341, at *6 (M.D. Fla. Mar. 4, 2010) (noting that an ALJ’s failure to address an

impairment makes “meaningful judicial review of this aspect of the decision

impossible” even when there is evidence to suggest that the impairment may be

under control). If at all, the ALJ broadly addressed the impairments, without

enumerating them, and rejected them in a conclusory fashion:

The claimant also alleged several other impairments and the

record includes diagnoses of several additional

impairments. However, the record demonstrates that those

conditions do not cause more than a minimal limitation in

the ability to perform basic work activities for 12 months or

more or are resolved or under control with treatment.

Therefore, they are nonsevere. ([Tr. at 466-80, 504-23, 985-

1075]), (20 [C.F.R. §§] 404.1509, 404.1522, 404.1523).

Nevertheless, the residual functional capacity addresses the

limitations that may be caused by those conditions that are

documented in the record evidence for the period relevant

to this decision.

(Tr. at 30).

It is well established that while there is no rigid requirement that the ALJ

specifically refer to every piece of evidence in his decision, the decision cannot

broadly reject evidence in a way that prevents meaningful judicial review. See Dyer v.

Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). The broad rejection here, however,

clearly forecloses judicial review, preventing the Court from determining whether

failed to discuss the impairments in any manner sufficient to allow for meaningful

judicial review, the Court finds that it cannot determine whether the ALJ considered

Plaintiff’s Colitis and Terminal ileitis. See id. Nevertheless, even if this notation

constituted a consideration of Plaintiff’s Colitis and Terminal Ileitis, the ALJ still

failed to show that he considered Plaintiff’s IBS.

substantial evidence supports the ALJ’s decision to discount Plaintiff’s “other

impairments.” (See Tr. at 30).3 To that end, the Court cannot even decipher which

impairments the ALJ refers to; indeed, each of the records cited reflect several

impairments, many of which were not separately addressed by the ALJ. (See id. at

466-80, 504-23, 985-1075). Similarly, the Court cannot determine which

impairments the ALJ determined had been resolved or were under control. (See id. at

30). Finally, the statement provides no insight into to which RFC limitations relate

to it. (See id.).

As noted above, the ALJ must consider all the claimant’s medically

determinable impairments, even those not designated as severe. 20 C.F.R. §

404.1545(a)(2). Because the Court cannot decipher which impairments the ALJ

rejected in his broad statement, the Court cannot determine whether the ALJ

considered all non-severe GI impairments. This is particularly problematic when

considering the ALJ’s decision to only impose a limitation granting Plaintiff access

to the restroom every two to two and a half hours, (see Tr. at 25), despite her

subjective allegations that she uses the restroom ten or more times a day on a good

day, (see id. at 53-54).

In assessing Plaintiff’s subjective complaints, the ALJ found that Plaintiff’s

“determinable impairments could reasonably be expected to cause the alleged

3 The Court notes that the ALJ also failed to address any physical impairments at

step two, which may have given insight into the basis for the ALJ’s findings. (See Tr.

at 23-25).

symptoms; however, the claimant’s statements concerning the intensity, persistence

and limiting effects of these symptoms are not entirely consistent with the objective

evidence in the record.” (Id. at 29). Notably, although the ALJ did not explicitly

note Plaintiff’s allegations regarding her need to use the restroom, (see id. at 26), the

ALJ nonetheless addressed Plaintiff’s Crohn’s disease and imposed a restroom-

related limitation, (see id. at 25, 26-27, 29). Thus, the Court finds that the ALJ

implicitly rejected Plaintiff’s allegations. (See id.).

To establish disability based on testimony of pain and other symptoms, a

plaintiff must satisfy two prongs of the following three-part test: “(1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain; or (b) that the objectively determined

medical condition can reasonably be expected to give rise to the claimed pain.”

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921

F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s

complaints of pain, the ALJ may reject them, and that determination will be

reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F.

App’x 23, 28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.

1992)). If an ALJ discredits the subjective testimony of a plaintiff, then he must

“articulate explicit and adequate reasons for doing so. Failure to articulate the

reasons for discrediting subjective testimony requires, as a matter of law, that the

testimony be accepted as true.” Wilson, 284 F.3d at 1225 (internal citations omitted).

Nevertheless, the Eleventh Circuit has stated that “[t]he question is not . . . whether

[the] ALJ could have reasonably credited [the claimant’s] testimony, but whether the

ALJ was clearly wrong to discredit it.” Werner v. Comm’r of Soc. Sec., 421 F. App’x

935, 939 (11th Cir. 2011).

The factors an ALJ considers in evaluating a plaintiff’s subjective symptoms

include:

1. The individual’s daily activities;

2. The location, duration, frequency, and intensity of pain

or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any

medication an individual takes or has taken to alleviate

pain or other symptoms;

5. Treatment, other than medication, an individual

receives or has received for relief of pain or other

symptoms;

6. Any measures other than treatment an individual uses

or has used to relieve pain or other symptoms (e.g., lying

flat on his or her back, standing for 15 to 20 minutes

every hour, or sleeping on a board); and

7. Any other factors concerning an individual’s functional

limitations and restrictions due to pain or other

symptoms.

SSR 96-7p, 1996 WL 374186, at *3 (1996); see also SSR 16-3p, 2016 WL 1119029, at

*7 (2016) (factors nearly identical to SSR 96-7p); Moreno, 366 F. App’x at 28 (citing

20 C.F.R. § 404.1529(c)(3)). “A clearly articulated credibility finding with

substantial supporting evidence in the record will not be disturbed by a reviewing

court.” Foote, 67 F.3d at 1562.

As noted above, in limiting Plaintiff’s RFC to access to the restroom every two

to two and a half hours, the ALJ impliedly rejected Plaintiff’s subjective allegations

that on a good day she needs to use the restroom at least ten times a day. (See Tr. at

53-54). In support, the ALJ noted inter alia that: (1) Plaintiff had reduced her

medication during the period in which she was treated by a gastroenterologist; (2) by

November 2018 she was not taking any medication for her Crohn’s disease; and (3) a

month later she had reported no flare-ups. (Id. at 29).4 However, the medical

records show that during the period in which she was treated by a gastroenterologist

she continued taking 10 mg Bentyl and Omeprazole for her GI impairments. (Id. at

525-26, 528, 531). Additionally, records show that Plaintiff continued taking these

mediations as late as December 17, 2018. (Id. at 996). Moreover, even as recently as

at the hearing Plaintiff testified that she was continuing to take prescription

Omeprazole for her Crohn’s disease. (See id. at 52, 53).5

In light of the ALJ’s reasoning for discounting Plaintiff’s allegations related to

her need to use the restroom – i.e., that she has stopped taking medication for her

Crohn’s disease – it is unclear whether the ALJ would have imposed additional

limitations on Plaintiff had he properly considered all of Plaintiff’s GI impairments.

4 The Court need not determine whether the ALJ’s decision to discredit Plaintiff’s

subjective allegations has “substantial supporting evidence.” See Foote, 67 F.3d at

1562. Rather, the Court finds that remand is warranted given the ALJ’s failure to

adequately consider Plaintiff’s other non-severe GI impairments.

5 The ALJ did not address Plaintiff’s other GI impairments at the hearing. (See Tr.

at 41-75).

The ALJ’s reasoning is – at least in part – undermined by and inconsistent with

Plaintiff’s continued need for medication for her other GI impairments. Thus, had

the ALJ adequately considered both Plaintiff’s severe Crohn’s disease and other non-

severe GI impairments, the possibility remains that the ALJ would have imposed

additional limitations on her RFC. For this reason, the error cannot be deemed

harmless. Cf. Denomme v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 877 (11th Cir.

2013) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).

This finding is bolstered by the ALJ’s statement regarding the limitation itself.

(See Tr. at 29). Specifically, the ALJ highlighted that notwithstanding the above

reasons for discounting Plaintiff’s subjective allegations, the RFC allowed “for

additional breaks to use the restroom” to address “the claimant’s symptoms due to

Crohn’s disease.” (Id. (emphasis added)). Thus, the restroom related limitation is

expressly limited to account only for Plaintiff’s Crohn’s disease. (See id.). The Court,

therefore, finds that the limitation does not account for Plaintiff’s other GI

impairments.

Ultimately, without the ability to meaningfully review the reasons the ALJ

found that Plaintiff’s other GI impairments to be non-severe – or an ability to

determine whether the ALJ considered them at all – the Court cannot determine

whether the ALJ complied with his duty to consider all Plaintiff’s impairments,

including those found to be non-severe. Accordingly, remand is appropriate. See

Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1269 (11th Cir. 2019) (citing Keeton v.

Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) for the

proposition that “the ALJ’s ‘failure . . . to provide the reviewing court with sufficient

reasoning for determining that the proper legal analysis has been conducted

mandates reversal’ in its own right”).

B. Plaintiff’s Remaining Arguments.

Plaintiff’s remaining arguments – including those presented in both her first

and second arguments – focus on a number of issues that cannot be resolved until it

is clear to the Court that the ALJ properly considered the entire medical evidence of

record, including a proper consideration of the effect of Plaintiff’s GI impairments,

when assessing Plaintiff’s RFC. Indeed, a re-evaluation of these impairments may

lead the ALJ to determine that Plaintiff cannot perform her past relevant work6 or to

impose additional limitations in the hypothetical posed to the VE. Moreover, a

consideration of these impairments may also affect other elements of the ALJ’s

decision. As a result, the Court finds that any ruling on Plaintiff’s remaining

arguments is premature at this time. Upon remand, the ALJ must reevaluate the

entire medical evidence of record in evaluating Plaintiff’s case.

6 The Court makes no determination as to whether the ALJ properly identified

Plaintiff’s past relevant work. Rather, the Court need not resolve the issue because

the re-evaluation may affect the ALJ’s determination as to whether Plaintiff could

perform any past relevant work.

VI. Conclusion

Upon consideration of the parties’ submissions and the administrative record,

the Court finds that remand is appropriate in light of the ALJ’s apparent failure to

consider Plaintiff’s GI impairments in assessing Plaintiff’s RFC. Accordingly, the

Court ORDERS that:

1. The decision of the Commissioner is REVERSED AND REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g).

2. On remand, the Commissioner must:

(1) review the entire medical evidence of record and (2)

consider Plaintiff’s medically determinable GI impairments

when assessing Plaintiff’s RFC.

3. The Court suspends application of Local Rule 7.01 in this action. A

motion for fees and costs must be filed as a single motion requesting a

determination of both entitlement and amount. If Plaintiff prevails on

remand, Plaintiff must comply with the November 14, 2012 Order

(Doc. 1) in Case Number 6:12-mc-124-Orl-22.

4. The Clerk of Court is directed to enter judgment accordingly, to

terminate any pending motions and deadlines, and to close the case.

DONE AND ORDERED 1n Fort Myers, Florida on September 16, 2021.

Mac R. MA

United States Magistrate Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties