# Long v. Commissioner of Social Security

> District Court, M.D. Florida · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10109775

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109775

## Opinion text

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
pquoleysatriotincaublaler ejtoiionlto gpya i(nE xahnibdi t p1a9rFes/2th).e sOian opfh ytshiec alh aenxdasm iannadt iofne,e ts hoef
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

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109775. Public record. Not legal advice.