Long v. Commissioner of Social Security

United States District Court

Middle District of Florida

Tampa Division

JAMES LONG ON BEHALF OF

ROBERT LONG (DECEASED),

Plaintiff,

v. NO. 8:20-cv-1949-PDB

ACTING COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Order

The plaintiff, on behalf of his late spouse Robert Long, brings this action

under 42 U.S.C. §§ 405(g) and 1383(c) to challenge the Acting Commissioner of

Social Security’s final decision denying Long’s applications for disability

insurance benefits and supplemental security income. Docs. 1, 1-1. The

procedural history and medical evidence are summarized in the briefs and not

fully repeated here. See Docs. 30, 37.

I. Administrative Record

In his applications, Long alleged he had become unable to work on May

21, 2015, because of anemia, cellulitis, dyspnea, headaches, hemochromatosis,

lupus, sinusitis, angina pectoris, chronic diarrhea, chronic fatigue, rheumatoid

arthritis, autoimmune deficiency syndrome, congestive heart failure, irritable

bowel syndrome, methicillin-resistant staphylococcus aureus, pain in his

extremities, decreased vision in his left eye, and eye burning and pain. Tr. 124,

140, 346, 420, 457.

Following denial of his applications at the initial level, Long proceeded

to the reconsideration level. Tr. 219–39. There, his primary impairment was

described as “HIV” and found “severe,” and the listing for human

immunodeficiency virus (14.08) was considered. Tr. 193, 205, 207. “Claimant-

supplied [i]nformation” was summarized as “[t]hrobbing pain in upper & lower

extremities, cellulitis, sinusitis, irritable bowel syndrome, chronic diarrhea,

eyes burn and hurt constantly.” Tr. 185, 199. Based on evidence predating

February 2016, state agency consultant Edmund Molis, M.D., opined Long

could perform light work and stand, walk, or sit with normal breaks for a total

of about six hours in an eight-hour workday. Tr. 194, 208.

In a subsequent letter dated August 10, 2017, Sage Naran, M.D., stated,

“Please excuse Mr. Long from jury duty due [to] his medical conditions. He is

on medications that do not allow him to sit for extended periods of time without

having to use the restroom.” Tr. 1010. Asked whether the “hardship” is

“permanent” or “temporary,” Dr. Naran marked permanent. Tr. 1010.

In a letter dated November 13, 2017, the plaintiff explained he had been

with Long since 2010 and had watched Long’s quality of life slowly deteriorate

over the last three years. Tr. 1490. The plaintiff described Long’s symptoms,

including struggling to eat full meals “without having to spend a great deal of

time in the restroom.” Tr. 1490. He added, “Travel is out of the question due to

the numbness issues he has, let alone trying to make sure that a restroom is

available if needed.” Tr. 1490.

Following denial of his applications at the reconsideration level, Long

proceeded to a hearing before an administrative law judge (ALJ), conducted on

January 5, 2018. Tr. 122–55, 230, 235. At the hearing, a representative for

Long explained “the main diagnosis … is hemochromatosis” and the “majority

of the symptoms in his treatment [stem] from this condition, including”

cirrhosis of the liver, chronic fatigue, and rheumatoid arthritis. Tr. 128–29.

The representative stated, “It’s our understanding that the hemochromatosis

is [an] extremely rare condition.” Tr. 130. The representative explained,

“[Long] is having problems with gastrointestinal issues. He has seen four

gastroenterologists to get to the point where he is today, with a possible liver

transplant.” Tr. 128. The representative stated Long is seeing a new

gastroenterologist and has been referred to a transplant team at Tampa

General Hospital for a possible liver transplant. Tr. 126.

Long testified as follows. He is married, lives with family, and has no

minor children. Tr. 136. In 2014, he began “getting shortness of breath” and

exhaustion sometimes to the point of not even wanting to shower. Tr. 139. He

visited a doctor and underwent “a lot of testing,” and the doctor put him on a

diet to reduce iron intake and instructed him to cease using a cast-iron skillet.

Tr. 139. Afterward, he felt no better and in fact felt worse, so he visited a

cardiologist, who informed him he had excess fluid near his heart and put him

on Lasix. Tr. 139. He took Lasix until he saw another doctor, who instructed

him to cease taking Lasix because of jaundice. Tr. 129, 139–40. Following a

change in his insurance, he visited another doctor, and the doctor asked why

he had not visited “a hematolog[ist] in oncology.” Tr. 140.

As Long was recounting his medical history, the ALJ stopped him and

asked him to provide “a list of his symptoms,” adding, “This is a case that I’m

gonna be referring to a medical specialist,” and, “This is not … the kind of

decision that lawyers can decide. There’s just too much going on here.” Tr. 140.

Long additionally testified as follows. His “major” symptom is chronic

fatigue. Tr. 140. He has shortness of breath when walking up stairs and even

when taking a shower. Tr. 140, 143. He has joint pain all over, and arthritis

limits his ability to type and write. Tr. 129, 143. He has difficulty picking up a

gallon of milk because he uses his right hand and his right thumb is constantly

in pain. Tr. 145. He takes lactulose three times daily, Tr. 134, which causes

gastrointestinal issues, Tr. 140. He elaborated, “When I dose three times a day,

I’m in the bathroom sometimes up to two hours and I have to take the

medication three times a day. So, I spend [an] incredible amount of time in the

bathroom.” Tr. 141. The gastrointestinal issues cause no pain; “It’s just going

to the restroom. I can’t keep any fluid in my body.” Tr. 141–42. Still, he has

severe abdominal pain and is allergic to medication, which causes nausea. Tr.

143. He is “very bloated” and “very swollen” in his abdomen area. Tr. 143.

Long testified that as far as daily activities, he takes a shower if he has

the strength, which is most days, and sometimes needs help getting dressed.

Tr. 145–46. He testified he has a driver’s license but cannot drive because, as

a result of lingering left-sided weakness, he can neither hold the steering wheel

with both hands nor use his left foot to brake. Tr. 136–37.

At the end of the hearing, the ALJ stated, “This is a case that’s gonna be

decided on the medical evidence and so we’re going to leave the record open.”

Tr. 153. The ALJ suggested getting updated records from particular doctors,

adding, “[B]ut I’m … probably going to refer this to a specialist for review of

the file once everything’s in.” Tr. 154. The ALJ asked Long’s representative

what specialty is involved, and the representative responded, “I was just going

to ask you.” Tr. 154. When the representative suggested having Long ask his

physician, the ALJ responded, “I don’t want to mislead you. I’m not interested

in, in your physicians trying to tell me what your residual functional capacity

[(RFC)] is. I’m interested in additional [treatment] records … and then I’ll

let … an independent ME [(medical expert)] decide where we are.” Tr. 154.

Seven months later, on August 24, 2018, the ALJ entered the decision

under review. Tr. 82–96. In the decision, the ALJ explained he was admitting

evidence Long provided after the hearing. Tr. 82, 126–27. The ALJ neither

used an ME nor explained why he ultimately decided against using an ME.

The ALJ found Long had severe impairments of hemochromatosis,

obesity, cirrhosis of the liver, and rheumatoid arthritis with joint pain. Tr. 85.

The ALJ found Long had non-severe impairments of “hyperlipidemia,

headaches, cholecystitis status post cholecystectomy … , and history of

malignant neoplasm of the thyroid” finding the “conditions appear to be well

controlled[.]” Tr. 85. The ALJ also found Long had non-severe impairments of

depression and anxiety, finding the conditions caused no more than a minimal

limitation in his ability to perform basic mental work activities. Tr. 86. The

ALJ found Long failed to adequately support his allegations that he had

autoimmune deficiency syndrome, lupus, and congestive heart failure, finding

no medical records substantiated their existence. Tr. 85–86. The ALJ found

Long had no condition or combination of conditions that met or medically

equaled the severity of a listed impairment in 20 C.F.R. part 404, subpart P,

appendix 1. Tr. 87. The ALJ explicitly considered listing 5.05 (chronic liver

disease), listing 14.09 (inflammatory arthritis), and Long’s obesity. Tr. 87–90.

The ALJ found Long had the RFC to perform light work with additional

limitations:

[T]he claimant can stand and walk for up to 6 hours; sit for up to six

hours in an eight hour workday with normal breaks, but any continuous

standing and walking should be limited to 20 minutes with an option to

sit for five minutes; no more than occasional operation of foot controls;

avoid climbing ladders, ropes, and scaffolds; occasional navigation of

ramps and a set of stairs; occasional balancing, stooping, kneeling, and

crouching; should avoid crawling; frequent reaching bilaterally,

including overhead, but should avoid constant or repetitive lifting,

carrying, or handling; should avoid concentrated exposure to extreme

cold, extreme heat, and excessive vibration; should avoid all industrial

hazards; and no more than occasional fingering with the dominant left

hand.

Tr. 90.

The ALJ summarized Long’s testimony and other statements:

As a result of his symptoms, [Long] testified that he experiences

shortness of breath with over-exertion, climbing stairs, and even at

times when taking a shower. He testified that he has left side weakness

and that, at times, he has difficulty walking on a flat surface. He

testified that he has difficulty writing and typing because of arthritis in

his hands. [Long] testified that he has difficulty picking up a gallon of

milk. With respect to his daily activities, [Long] testified that he tries to

shower every day, but that sometimes he needs assistance with

showering due to pain and left-side weakness.

I have read and considered [Long]’s statements in the record regarding

his pain, limitations, and activities of daily living (Exhibits 1E; 14E;

18E). [Long]’s statements are of the same general nature as the

subjective complaints from [Long]’s testimony. He explains that because

of his impairments he has difficulty lifting, carrying, standing, and

walking (Exhibit 1E). [Long] further reported that he experiences

confusion, memory loss, and difficulty sleeping (Exhibits 1E; 14E). He

reported that he is unable to do housecleaning, yard work, home

maintenance, drive a car, shop alone, or engage in social activities (Id.).

He reported that he has difficulty cooking meals and independently

caring for his personal needs (Exhibit 1E/2).

Tr. 91.

The ALJ then stated, “In contrast, the objective medical evidence of

record fails to provide support for [Long]’s allegations of disabling symptoms

and limitations. More specifically, the medical findings do not support the

existence of limitations greater than those in the [RFC.]” Tr. 91. The ALJ

continued:

Despite [Long]’s allegations of disabling chest pain, joint pain, severe

fatigue, shortness of breath, abdominal pain, and chronic diarrhea,

diagnostic testing of record has revealed relatively mild to moderate

findings. For example, an echocardiogram performed on August 3, 2015

revealed trace mitral regurgitation, mild tricuspid regurgitation,

decreased compliance of the left ventricle, and an ejection fraction of 64

percent (Exhibit 4F/7). Imaging of [Long]’s chest revealed normal results

(Exhibit 4F/10). In April 2016 Dr. Carolyn Connelly, M.D. reported that

r[Lhoenugm] atteosidte adr tphorsitiitsiv oer ofothr errh ienuflmamatmoiadt ofrayc taorrt,h r“i[tbius tc]u rnroe netvlyid (eEnxchei boitf

19F/2).” Imaging of [Long]’s bilateral knees, hips, and left hand from

March 2016 was unremarkable (Exhibit 19F/6-9).

Lab results from August 2015 show [Long] with markedly elevated

ferritin level of 4821 (Exhibit 19F/3). CT imaging of [Long]’s abdomen

and pelvis from August 2017 revealed “heterogeneous appearance of the

liver, can’t exclude underlying lesions in this non-enhanced study...”;

uncomplicated cholelithiasis; and “[f]at stranding noted in the

mesenteric root and also in the periportal region, of unknown

significance (Exhibits 18F/12; 25F/6). DNA mutation analysis from April

2014 revealed that [Long] tested positive for one copy of H63D mutation

in the H7E gene, indicating hereditary hemochromatosis (Exhibit

25F/7). Magnetic resonance imaging of [Long]’s abdomen from April

2018 revealed diffuse nodular contour of the liver, findings suggestive of

fatty infiltration of the liver, and findings suggestive of a small amount

of perihepatic and perisplenic fluid (Exhibit 26F/2).” Dr. Ashok Kumar

Dhaduvai, M.D., reported that these findings are suggestive of liver

cirrhosis with hepatic steatosis (Id.).

[Long] was diagnosed with cholecystitis and underwent a

cholecystectomy in August 2017 (Exhibit l 8F). On discharge, [Long] was

instructed not to lift over 20 pounds for four weeks (Id./4). Though this

limitation was for a short period, I have considered this opinion in the

[RFC.]

Treatment notes document that [Long] has been prescribed clonazepam,

lactulose, levothyroxine, and Xifaxan (Exhibit 15F/3). [Long] testified to

having diarrhea as a side effect of the lactulose, which requires him to

be in close vicinity to a bathroom. In a statement dated August 10, 2017,

[Long]’s primary care provider, Dr. Sage Naran, M.D., opined that

[Long] should be excused from jury duty due to his medical conditions,

indicating that his medications do not allow him to sit for extended

periods of time without having to use the restroom (Exhibit 16F). I have

considered Dr. Naran’s statement and find [Long] limited to standing,

walking, and sitting for up to 6 hours each in an eight hour workday

with normal breaks.

Furthermore, the objective signs and findings on physical examination

were not particularly adverse. For example, on August 14, 2015, Dr.

Robert Betzu, M.D., documented that [Long] reported feeling weak,

physical examination findings showed no muscle weakness, no back

pain, and no arthralgias (Exhibit 4F/9). Pulmonary examination showed

coughing sputum and wheezing, although his chest x-ray was normal

(Id./10). In April 2016, Dr. Connelly documented that [Long] had

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indicated that [Long] had a positive Tinel’s sign on the right, normal

grip strength, medial joint tenderness, and no active synovitis of

peripheral joints (Exhibit 19F/2). [Long] had difficulty getting on and off

the exam table, but was able to do so without assistance. His lower

extremity motor strength was normal, though he had pain with passive

motion of legs (Id./3). However, [Long] reported improvement with

taking four Aleve tablets a day and that he was “[]able to drive now

(Id.).” Notably, records indicate that [Long] has a remote history of

thyroid cancer with residual thyroid dysfunction. Dr. Connelly

documented [Long]’s report that his primary care physician indicated

that paresthesia of his hands and numbness of his feet are related to his

thyroid dysfunction (Id.). In April 2017, treatment notes document

[Long]’s report of continued left-sided weakness. However, [Long]

reported that his strength was improving. He denied having facial

weakness, visual symptoms, or slurred speech (Exhibit 21F/3). On

physical examination, Shelby Devinney, P.A. documented [Long]’s left

side muscle weakness, with left lower extremity strength of 3/5 and left

upper extremity strength of 3/5. However, [Long] had normal tone,

normal movement of all extremities, no tenderness, and no edema. She

further reported that [Long]’s gait and stance was normal and his

sensation was grossly intact (Exhibit 21F/4).

In December 2017, Dr. Mazen Kattih, M.D., examined [Long] and

documented that [Long] denied backaches, myalgia, joint stiffness, joint

swelling, and muscle weakness (Exhibit 24F/3). On physical

examination, Dr. Kattih documented that [Long]’s respirations were

unlabored. He had equal air entry bilaterally with no wheezes or

rhonchi, and his lungs were clear to auscultation and percussion (Id.).

He had full range of motion in all extremities with no clubbing, cyanosis,

or edema (Id./4). [Long] had no tenderness to his abdomen, typical signs

of chronic liver disease, ascites, or shifting dullness (Id.).

Complicating [Long]’s impairments is his history of obesity. The medical

evidence of record documents [Long]’s weight as ranging from 201 to 210

pounds on a 5’7” frame, which calculates to a body mass index (BMI)

range of 31.5 to 32.9 (Exhibits 4F/3; 23F/4). … I have considered the

potential impact of obesity in causing or contributing to co-existing

impairments … . Even though [Long] has not alleged that his obesity

affects his ability to ambulate, I have considered his obesity a severe

impairment, and included it within the limitations of [Long]’s [RFC.]

Tr. 91–93 (alterations in quotations in ALJ’s decision) (footnote omitted).

The ALJ stated:

dAeftteerr mcainreafbulle c oimnspiadierrmateinotns ocf otuhled e vreidaesnoncea,b Il yfi nbde tehxapte [cLtoend gt]o’s cmaeudsiec atlhlye

alleged symptoms; however, [Long]’s 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 for the reasons explained in this decision.

Tr. 93.

The ALJ gave “significant weight” Dr. Molis’s February 2016 opinion

that Long could perform a full range of light work. Tr. 93. The ALJ found the

opinion consistent with the medical evidence, “including physical examination

findings showing generally mild symptoms.” Tr. 93. The ALJ found the post-

hearing evidence showed no evidence of symptoms and limitations inconsistent

with the opinion but gave “some weight” to Long’s testimony and therefore

found him “additionally limited” as reflected in the RFC. Tr. 93.

The ALJ gave “partial weight” to the plaintiff’s November 2017 letter.

Tr. 94. The ALJ explained, “[T]his third-party statement appears to be no more

than a repeat of the subjective complaints already testified to and reported by

[Long]. Therefore, I afford partial weight to this statement for the same

reasons [Long]’s allegations are afforded partial weight.” Tr. 94.

The ALJ found Long could not perform his past relevant work but could

perform jobs existing in significant numbers in the national economy;

specifically, the jobs of central supply clerk, unit clerk, and mail clerk. Tr. 94–

96. Thus, the ALJ found Long not disabled. Tr. 96.

II. Standard of Review

A court’s review of a decision by the Acting Commissioner is limited to

whether substantial evidence supports the factual findings and whether the

correct legal standards were applied. 42 U.S.C. § 405(g); see also 42 U.S.C.

§ 1383(c)(3) (incorporating § 405(g)); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002). Substantial evidence means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoted authority omitted). The

“threshold for such evidentiary sufficiency is not high.” Id. Under this standard

of review, a court may not reweigh the evidence or substitute its judgment for

that of the Acting Commissioner. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

Cir. 2005).

A court “will not affirm simply because some rationale might have

supported the ALJ’s conclusion.” Buckwalter v. Acting Comm’r of Soc. Sec., 5

F.4th 1315, 1320 (11th Cir. 2021) (quoted authority and internal quotation

marks omitted). Unless the ALJ “has analyzed all evidence and has sufficiently

explained the weight he has given to obviously probative exhibits, to say that

his decision is supported by substantial evidence approaches an abdication of

the court’s duty to scrutinize the record as a whole to determine whether the

conclusions reached are rational.” Cowart v. Schweiker, 662 F.2d 731, 735

(11th Cir. 1981) (quoted authority and internal quotation marks omitted).

III. Arguments, Law, and Analysis

The plaintiff presents three arguments.

First, the plaintiff argues the ALJ erred by failing to properly develop

the record. Doc. 30 at 15–18. Specifically, the plaintiff argues the ALJ erred by

failing to obtain an opinion from an ME considering “the complicated nature of

Long’s medical conditions, the rare diagnosis of hemochromatosis, and the

progressive nature of liver cirrhosis resulting in [Long’s] death less than one

year from” the ALJ’s decision. Doc. 30 at 16. The plaintiff emphasizes the ALJ’s

plan to let “an independent ME decide where we are.” Doc. 30 at 18 (quoting

Tr. 154); see also Tr. 147. The Acting Commissioner argues Long presented the

ALJ with detailed medical records sufficient to decide the claims. Doc. 37 at 6.

A claimant has the burden of proving disability and the duty of

submitting evidence known to the claimant relating to whether he is disabled.

20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1). The evidence must show how his

impairments affect his functioning during the time he says he is disabled, and

upon request, he must provide any other information the Social Security

Administration (SSA) needs to decide his claim. 20 C.F.R. §§ 404.1512(a)(1),

416.912(a)(1). If a claimant fails to provide the “medical and other evidence”

the SSA needs, the SSA will “make a decision based on information

available[.]” 20 C.F.R. §§ 404.1516, 416.916.

Still, “[b]ecause a hearing before an ALJ is not an adversary proceeding,

the ALJ has a basic obligation to develop a full and fair record.” Cowart, 662

F.2d at 735. “To determine whether remand is necessary, [a court] must decide

‘whether the record reveals evidentiary gaps which result in unfairness or clear

prejudice.’” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (internal

quotation marks omitted).

To develop the record, an ALJ “may ask for and consider the opinion of”

an ME on whether a claimant’s impairments could reasonably be expected to

produce the alleged symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b). “MEs are

physicians … and other medical professionals who provide impartial expert

opinion at the hearing level[.]” Soc. Sec. Admin., Hearings, Appeals, and

Litigation Law Manual (HALLEX) I-2-5-32, 1994 WL 637369 (2020). “MEs

provide opinions by either testifying at a hearing or responding to written

interrogatories.” Id. An ALJ “may use an ME before, during, or after a

hearing.” Id.

“The need for ME opinion evidence is generally left to the ALJ’s

discretion[.]” Id. “The primary reason an ALJ will request an ME opinion is to

help the ALJ evaluate the medical evidence in a case.” Id. An ALJ may use an

ME, for example, if the ALJ “[b]elieves an ME may be able to assist the ALJ

by explaining and assessing the significance of clinical or laboratory findings

in the record that are not clear” or to “ask the ME to offer an opinion about the

claimant’s functional limitations and abilities as established by the medical

evidence of record.” Id. I-2-5-34, 1994 WL 637370 (2020). “When needed, use of

an ME will result in a more complete record to support the ALJ’s conclusion on

the ultimate issue of disability.” Id. I-2-5-32, 1994 WL 637369. An ME is

unnecessary if the record contains sufficient evidence for the ALJ to make an

informed decision. See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,

1269 (11th Cir. 2007) (addressing an argument that the ALJ erred in failing to

order a consultative examination).

Second, the plaintiff argues the ALJ’s RFC finding is not supported by

substantial evidence. Doc. 30 at 18–21. Specifically, the plaintiff complains the

ALJ failed to consider the common and actual side effects of the lactulose that

Long had been taking three times daily to treat his liver: nausea, abdominal

pain, and diarrhea requiring frequent trips to the restroom sometimes lasting

two hours. Doc. 30 at 19. The plaintiff observes the ALJ acknowledged Dr.

Naran’s letter concerning jury duty but failed to explain how the RFC

accounted for Long’s need to be near a bathroom or why he rejected Dr. Naran’s

opinion and Long’s testimony. Doc. 30 at 19–20. The Acting Commissioner

responds that Long “failed to prove that his diarrhea caused greater

limitations than that found by the ALJ.” Doc. 37 at 15. The Acting

Commissioner acknowledges Long complained about chronic diarrhea to his

medical providers but emphasizes “he also admitted to driving,” and contends

this admission “suggests the frequency of his diarrhea is not as great as he

alleged.” Doc. 37 at 15 (citing Tr. 1063). The Acting Commissioner

acknowledges Long “complained of frequent, dark watery or loose stools

throughout the day,” but contends “he did not discuss those symptoms with a

gastroenterologist he saw, which also suggests the severity of his diarrhea is

not as great as alleged.” Doc. 37 at 15 (citing Tr. 1065). The Acting

Commissioner summarily adds that Long “reported to Dr. Kattih that he had

some diarrhea based on eating.” Doc. 37 at 15 (citing Tr. 1922).

A claimant’s RFC is the most he can still do despite his limitations. 20

C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The SSA uses the RFC at step four to

decide if the claimant can perform any past relevant work and, if not, at step

five with other factors to decide if other jobs he can perform exist in significant

numbers in the national economy. 20 C.F.R. §§ 404.1545(a)(5), 416.945(a)(5).

Third, the plaintiff argues the ALJ erred by failing to properly consider

Long’s subjective complaints. Doc. 30 at 21–25. According to the plaintiff:

The ALJ does not consider Mr. Long’s allegations and diagnosis of

chronic diarrhea. This symptom alone, had Mr. Long’s allegations been

credited, as they should have been, would have been determinative of

disability. On March 31, 2016 Mr. Long told Dr. Connelly he was having

frequent dark watery stools throughout the day for the past five to six

months (Tr. 1065). At his next appointment Dr. Connelly reminded Mr.

Long to tell Dr. Cardonna, a gastroenterologist he was going to see for

another opinion, about his chronic diarrhea (Tr. 1063). Of particular

importance was the time period around January 2017 when Mr. Long

was jaundiced and complaining of chronic diarrhea, nausea and

vomiting. The ALJ fails to consider that Mr. Long’s liver cirrhosis was

apparently so severe that Dr. Kattih and a gastroenterologist from Bay

Area Gastroenterology opined that he needed to contact Tampa General

to get on the liver transplant list (Tr. 1922).

Doc. 30 at 24–25. The Acting Commissioner disagrees, contending, “To grant

the remedy Plaintiff seeks, the Court would have to credit his evidence despite

contrary evidence in the record that undermined his claim.” Doc. 37 at 15.

To determine disability, the SSA considers all symptoms and the extent

to which the symptoms “can reasonably be accepted as consistent with the

objective medical evidence and other evidence.” 20 C.F.R. §§ 404.1529(a),

416.929(a). Statements about symptoms alone cannot establish disability. Id.

§§ 404.1529(a), 416.929(a). Objective medical evidence from an acceptable

medical source must show a medical impairment that “could reasonably be

expected to produce the” symptoms and, when considered with the other

evidence, would lead to a finding of disability. Id. §§ 404.1529(a), (b);

416.929(a), (b).

The finding that an impairment could reasonably be expected to produce

the symptoms does not involve a finding on the intensity, persistence, or

functionally limiting effects of the symptoms. Id. §§ 404.1529(b), 416.929(b).

For that finding, the SSA considers all available evidence, including medical

history, medical signs, laboratory findings, and statements about how the

symptoms affect the claimant. Id. §§ 404.1529(a), (c); 416.929(a), (c). The SSA

then determines the extent to which the “alleged functional limitations and

restrictions due to symptoms … can reasonably be accepted as consistent with

the medical signs and laboratory findings and other evidence to decide how”

the symptoms affect the ability to work. Id. §§ 404.1529(a), 416.929(a).

Factors relevant to symptoms include daily activities; the location,

duration, frequency, and intensity of the pain; precipitating and aggravating

factors; the type, dosage, effectiveness, and side effects of any medication to

alleviate the pain; treatment for the pain other than medication; and measures

used to relieve the pain. Id. §§ 404.1529(c)(3), 416.929(c)(3). To determine the

extent to which symptoms affect a claimant’s capacity to perform basic work

activities, the SSA considers statements about the intensity, persistence, and

limiting effects of the symptoms; the statements in relation to the objective

medical and other evidence; any inconsistencies in the evidence; and any

conflicts between the statements and other evidence, including history, signs,

laboratory findings, and statements by others. Id. §§ 404.1529(c)(4),

416.929(c)(4).

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). A court will not disturb a clearly articulated

finding supported by substantial evidence. Mitchell v. Comm’r, Soc. Sec.

Admin., 771 F.3d 780, 782 (11th Cir. 2014).

In McDevitt v. Commissioner of Social Security, a case on which the

plaintiff relies, Doc. 30 at 20, the ALJ stated the claimant had mentioned no

concentration or memory difficulties when in fact the claimant had testified a

medication caused an extreme lack of concentration, another medication

caused sleepiness, and he was unsure if he could perform telemarketing duties

because they require concentration. 241 F. App’x 615, 616–19 (11th Cir. 2007).

The ALJ found the claimant’s testimony was “somewhat exaggerated” but

made no finding about his statements regarding the medication side effects.

Id. at 619. The court observed, “We have stated that an ALJ has a duty to

investigate the possible side effects of medications taken by a claimant.” Id.

(citing Cowart, 662 F.2d at 737). The court continued, “We have also stated

that ‘[i]t is conceivable that the side effects of medication could render a

claimant disabled or at least contribute to a disability.’” Id. (alteration in

original) (quoting Cowart, 662 F.2d at 737). The court held the ALJ had failed

to develop the record by failing to consider the claimant’s testimony about the

medication side effects and whether they prevented him from working as a

telemarketer. Id.

Considering the administrative record, the arguments, and the law,

reversal and remand are warranted. The ALJ himself found the record was

inadequate for proper evaluation of the evidence. Although the ALJ

equivocated on that point, he ultimately found an ME would be necessary once

additional medical records were provided. At the same time, despite an

evolving medical landscape, he expressly discouraged Long from obtaining

opinions from his own doctors. The result was a record with opinions only of

Dr. Molis based on evidence predating February 2016 and of Dr. Naran

addressing only an inability to serve as a juror. Moreover, the ALJ appeared

to accept Long’s statements about diarrhea and need to frequently use the

restroom caused by thrice daily doses of lactulose as well as Dr. Naran’s related

opinion, but the ALJ confusingly found the RFC addressed the need to

frequently use the restroom merely by including a sitting, standing, and

walking limitation. Whether because the ALJ failed to adequately develop the

record resulting in an unfair evidentiary gap, or because the RFC is not

supported by substantial evidence, or because the ALJ failed to properly

consider Long’s statements, reversal is warranted. The Acting Commissioner’s

arguments to the contrary, including post hoc rationale, are unpersuasive.

IV. Conclusion

The Court reverses the Acting Commissioner’s decision under sentence

four of 42 U.S.C. §§ 405(g) and 1383(c) (incorporating § 405(g)) and remands

the case to the Acting Commissioner to adequately develop the record;

reevaluate the RFC, including by reevaluating statements concerning the side

effects of thrice daily dosages of lactulose; and to take any other appropriate

action.

The Court directs the Clerk of Court to enter judgment for the plaintiff,

James Long, and against the defendant, the Acting Commissioner of Social

Security, and close the file.

Ordered in Jacksonville, Florida, on March 30, 2022.

PATRICIA D. BARKSDALE

United States Magistrate Judge

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