Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FT. MYERS DIVISION

PABLO NICOLAS

SOTOMAYOR NACIF,

Plaintiff,

v. Case No. 2:25-cv-197-JRK

FRANK BISIGNANO,

Commissioner of Social Security,1

Defendant.

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OPINION AND ORDER2

I. Status

Pablo Nicolas Sotomayor Nacif (“Plaintiff”) is appealing the

Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision

denying his claims for disability insurance benefits (“DIB”) and supplemental

security income (“SSI”). Plaintiff’s alleged inability to work is the result of

mental health issues including depression, post-traumatic stress disorder, body

1 Frank Bisignano is now the Commissioner of Social Security. Pursuant to Rule

25(d), Federal Rules of Civil Procedure, Mr. Bisignano should be substituted as Defendant in

this suit. No further action need be taken to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. See Order Regarding Consent to Magistrate Judge Jurisdiction in Social

Security Appeals (Doc. No. 117), Case No. 3:21-mc-1-TJC (outlining procedures for consent

and Defendant’s generalized consent to Magistrate Judge jurisdiction in social security

appeals cases); consent by Plaintiff indicated in docket language for Complaint (Doc. No. 1).

dysmorphic disorder, and anxiety. Transcript of Administrative Proceedings

(Doc. No. 11; “Tr.” or “administrative transcript”), filed May 9, 2025, at 61, 68,

75, 82, 170, 205.

On March 15, 2021, Plaintiff protectively filed applications for DIB and

SSI, alleging a disability onset date of January 1, 2018. Tr. at 179-82 (DIB),

169-77 (SSI).3 The applications were denied initially, Tr. at 60, 68-72, 97-100

(DIB); Tr. at 61-67, 73, 102-05 (SSI), and upon reconsideration, Tr. at 74, 75-80,

109-11 (DIB); Tr. at 81, 82-90, 113-15 (SSI). On February 1, 2024, an

Administrative Law Judge (“ALJ”) held a hearing, during which he heard from

Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Tr.

at 32-54.4 At the time of the hearing, Plaintiff was thirty-seven (37) years old.

Tr. at 37. Following the hearing, on February 5, 2024, Plaintiff submitted a

post-hearing memorandum with attached evidence including Department of

Labor statistics from an Occupational Employment Survey. Tr. at 352-84. On

March 11, 2024, the ALJ issued a Decision finding Plaintiff not disabled

through the date of the Decision. See Tr. at 10-25.

3 Both applications were actually signed April 29, 2021, Tr. at 182 (DIB), 177

(SSI), and the summaries are dated July 22, 2021, Tr. at 183 (DIB), 190 (SSI), but the

protective filing date is listed elsewhere in the administrative transcript as March 15, 2021,

Tr. at 68, 75 (DIB), 61, 82 (SSI).

4 The hearing was held via telephone with Plaintiff’s consent. Tr. at 34-36, 116,

137-38, 153, 166.

Thereafter, Plaintiff requested review of the Decision by the Appeals

Council and submitted a brief authored by his lawyer in support of the request.

Tr. at 4-5 (Appeals Council exhibit list and order), 385-89 (brief), 167-68

(request for review). On February 12, 2025, the Appeals Council denied

Plaintiff’s request for review, Tr. at 1-3, making the ALJ’s Decision the final

decision of the Commissioner. On March 10, 2025, Plaintiff commenced this

action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint

(Doc. No. 1), through counsel, seeking judicial review of the Commissioner’s

final decision.

Plaintiff on appeal raises four issues: 1) whether the VE’s testimony

containing “multiple inaudible portions” renders the Court unable to “make a

meaningful review of said testimony” such that “Plaintiff has been prejudiced”;

2) whether the ALJ erred in “failing to address the post-hearing

memorandum/objections and vocational evidence th[at] Plaintiff submitted”; 3)

whether the ALJ’s step-five findings regarding the number of jobs available in

the national economy are supported by substantial evidence; and 4) whether

the residual functional capacity (“RFC”) assessment is sufficient when it does

not include all of the limitations assigned by state-agency psychologist John

Thibodeau despite the ALJ finding Dr. Thibodeau’s opinion persuasive.

Plaintiff’s Memorandum of Law (Doc. No. 13; “Pl.’s Mem.”), filed June 6, 2025,

at 1; see id. at 8-10 (argument regarding issue one), 10-12 (argument regarding

issue two), 12-15 (argument regarding issue three), 15-20 (argument regarding

issue four). On August 6, 2025, Defendant filed a Memorandum in Support of

the Commissioner’s Decision (Doc. No. 17; “Def.’s Mem.”) addressing the issues.

After a thorough review of the entire record and consideration of the

parties’ respective arguments, the undersigned finds that the Commissioner’s

final decision is due to be reversed and remanded for reconsideration of the post-

hearing vocational evidence submitted by Plaintiff (Plaintiff’s issue two). On

remand, this reconsideration may impact the Administration’s consideration of

the remaining issues on appeal. For this reason, the Court need not address the

parties’ arguments on those issues. See Jackson v. Bowen, 801 F.2d 1291, 1294

n.2 (11th Cir. 1986) (per curiam) (declining to address certain issues because

they were likely to be reconsidered on remand); Demenech v. Sec’y of the Dep’t

of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam)

(concluding that certain arguments need not be addressed when the case would

be remanded on other issues).

II. The ALJ’s Decision

When determining whether an individual is disabled,5 an ALJ must

follow the five-step sequential inquiry set forth in the Regulations, determining

5 “Disability” is defined in the Social Security Act as the “inability to engage in

any substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected

(Continued…)

as appropriate whether the claimant (1) is currently employed or engaging in

substantial gainful activity; (2) has a severe impairment; (3) has an impairment

or combination of impairments that meets or medically equals one listed in the

Regulations; (4) can perform past relevant work; and (5) retains the ability to

perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see

also Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094, 1101-02 (11th Cir. 2021)

(citations omitted); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).

The claimant bears the burden of persuasion through step four, and at step five,

the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5

(1987).

Here, the ALJ followed the five-step inquiry. See Tr. at 14-25. At step one,

the ALJ determined that Plaintiff “has not engaged in substantial gainful

activity since January 1, 2018, the alleged onset date.” Tr. at 14. At step two,

the ALJ found that Plaintiff “has the following severe impairments: major

depressive disorder, social anxiety disorder, posttraumatic stress disorder

(PTSD), body dysmorphia disorder, and borderline intellectual functioning.” Tr.

at 14 (emphasis and citation omitted). At step three, the ALJ found that

Plaintiff “does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20

to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

[C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 15 (emphasis and citation

omitted).

The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform a full range of work at all exertion levels but

with the following non-exertion[al] limitations: [Plaintiff] is able to

understand, remember, and carry out simple, repetitive tasks;

make judgments on simple work-related decisions in such work

environment; interact appropriately with others in such work

environment; concentrate, attend, and persist on tasks for two-hour

periods and can adapt to occasional change in the workplace; and

no strict time or high quota demands[.]

Tr. at 18 (emphasis and citation omitted).

At step four, the ALJ relied on the VE’s hearing testimony and found that

Plaintiff “is unable to perform any past relevant work” as a “cashier II” and a

“stock clerk.” Tr. at 23 (some emphasis and citation omitted). The ALJ

proceeded to the fifth and final step of the sequential inquiry. Tr. at 23-25. After

considering Plaintiff’s age (“30 years old . . . on the alleged disability onset

date”), education (“at least a high school education”), work experience, and RFC,

the ALJ relied on the VE’s testimony and found “there are jobs that exist in

significant numbers in the national economy that [Plaintiff] can perform,” Tr.

at 23-24, such as “Kitchen helper,” “Counter supply worker,” and “Dining room

attendant.” Tr. at 24 (citations omitted). The ALJ concluded Plaintiff “has not

been under a disability . . . from January 1, 2018, through the date of th[e

D]ecision.” Tr. at 25 (emphasis and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given

to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported

by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.

2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 587 U.S. 97, 103 (2019); Samuels v. Acting Comm’r of Soc. Sec., 959

F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court to

reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

Plaintiff argues the ALJ erred in failing to address the post-hearing

memorandum he submitted that challenged the VE’s testimony about the

numbers of jobs available in the national economy. Pl.’s Mem. at 1, 10-12. As

noted previously, Plaintiff on February 5, 2024 submitted the post-hearing

memorandum. Tr. at 352. In support of his argument that the numbers

provided by the ALJ were inflated, Plaintiff provided certain statistics from the

Department of Labor Occupational Employment Survey. Tr. at 352-84.

According to Plaintiff, the ALJ “failed to address, discuss, or otherwise

acknowledge [his] objections or evidence.” Pl.’s Mem. at 11. Responding,

Defendant contends that Plaintiff is inaccurate in his portrayal of the ALJ not

acknowledging his post-hearing memorandum. Def.’s Mem. at 11. According to

Defendant, the ALJ exhibited the memorandum and “explicitly overrule[d]

Plaintiff’s objections directly in the [D]ecision.” Id. at 12.

To begin, Defendant is correct that the ALJ exhibited the post-hearing

memorandum and explicitly addressed it in the Decision:

The undersigned held the record open for submission of

a post-hearing brief. The undersigned denies

[Plaintiff’s] requests in the post-hearing brief (Ex. 30E).

While [Plaintiff] argues the job numbers are inflated,

[Plaintiff] does not provide testimony or evidence as to

how much the job numbers are inflated nor provide

testimony as to the job numbers so that the

undersigned may determine whether there is work that

exists in significant numbers in the national economy.

Thus, the undersigned relies on the testimony of the

vocational expert.

Tr. at 12. Although the ALJ acknowledged the submission of the post- hearing

memorandum, the ALJ refused to consider the job numbers relied upon by

Plaintiff in the memorandum, because he did not view them as “testimony or

evidence.” Tr. at 12. The real question, then, is whether the ALJ’s finding in

this regard can be upheld under the relevant legal standards (not whether the

ALJ failed to address the memorandum altogether).6

“It is well-established that the ALJ has a basic duty to develop a full and

fair record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20

C.F.R. § 416.912(d)); see Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267

(11th Cir. 2015) (citing Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (per

curiam)). This requires an ALJ to “scrupulously and conscientiously probe into,

inquire of, and explore for all relevant facts.” Henry, 802 F.3d at 1267 (quoting

Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). “Nevertheless, the

claimant bears the burden of proving that he is disabled, and, consequently, he

is responsible for producing evidence in support of his claim.” Ellison, 355 F.3d

6 Plaintiff cites authority in support of his argument that the ALJ’s finding about

“each DOT code, both individually and in combination, exist[ing] in significant numbers” was

erroneous because the finding “was based on reliance o[n] the V[E]’s erroneous testimony.”

Pl.’s Mem. at 11-12 (citations omitted). Defendant, resting solely on the contention that

Plaintiff was wrong factually in contending the ALJ did not consider the post-hearing

memorandum, does not address this argument in any way. See Def.’s Mem. at 12.

at 1276 (citing 20 C.F.R. § 416.912(a), (c)). To remand for failure to develop

evidence, the record must contain “evidentiary gaps which result in unfairness

or clear prejudice.” Henry, 802 F.3d at 1267 (quoting Brown, 44 F.3d at 935).

The ALJ erred in electing not to consider the statistics relied upon by

Plaintiff in the post-hearing memorandum, and clear prejudice resulted. Social

Securing Ruling (“SSR”) 96-9p provides, in part, that “[w]henever a VE is used,

the [claimant] has the right to review and respond to the VE evidence prior to

the issuance of a decision.” See SSR 96-9P, 1996 WL 374185, at *9 n.8 (July 2,

1996); see also Whitney v. Saul, No. CV 18-11095-JCB, 2019 WL 4072021, at *9

(D. Mass. Aug. 29, 2019) (unpublished) (recognizing that submitting rebuttal

vocational evidence is appropriate pursuant to SSR 96-9p). Courts have also

found rebuttal evidence, like that at issue here, satisfies § 416.1435(b)(3)

because a claimant cannot predict the VE’s testimony. See Whitney, 2019 WL

4072021, at *9 (holding that “an unavoidable circumstance beyond [the

plaintiff’s] control prevented him from submitting the [rebuttal evidence]

earlier ‘since the claimant has no clue to what the vocational expert will testify

until the end of the hearing’” (quoting Palombo v. Berryhill, No. 17-cv-284-LM,

2018 WL 3118286, at *5 (D.N.H. Jun. 25, 2018) (unpublished))); Patrick v. Saul,

No. 1:18-CV-289-DBH, 2019 WL 3814283, at *2-4 (D. Me. Aug. 14, 2019)

(unpublished) (finding the rebuttal evidence as an “unavoidable” circumstance

for purposes of the 5-Day Rule); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir.

2010) (explaining that the “submission and consideration of post-hearing

evidence are common in social security disability cases . . . since the claimant

has no clue to what the vocational expert will testify until the end of the

hearing”).

The ALJ relied solely on the lack of “testimony or evidence” to reject

Plaintiff’s contention that the VE had inflated the numbers of jobs available in

the national economy. Tr. at 12. But, Plaintiff did submit evidence in the form

of the statistics. The ALJ at least should have considered such evidence in

accordance with SSR 96-9p. “Although the ALJ is not required to afford

Plaintiff’s evidence substantial weight, [he or] she is required to consider it,

especially if, as here, that evidence conflicts with the VE’s testimony.” Chesal

v. Bisignano, No. 24-61087, 2025 WL 2884881, at *5 (S.D. Fla. Sept. 29, 2025)

(quotations and citations omitted) (finding error in an ALJ’s failure to

acknowledge a post-hearing memorandum containing statistics that called into

question a VE’s testimony about the number of jobs available in the national

economy). The ALJ’s election not to consider the evidence here resulted in an

evidentiary gap in the record and clear prejudice to Plaintiff.7

7 The undersigned notes that Defendant does defend the ALJ’s overall step five

findings, arguing that the statistics provided by Plaintiff, even if “support[ive] of an

alternative finding,” are not determinative here. Def.’s Mem. at 17 (quotation and citation

omitted). But, the main problem with the ALJ not substantively addressing these statistics is

the Court is left attempting to analyze and apply raw vocational data to VE testimony. This

job is better left for the ALJ in the first instance.

V. Conclusion

In light of the foregoing, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), as incorporated by § 18838(c)(3),

REVERSING the Commissioner’s final decision and REMANDING this

matter with the following instructions:

(A) Reconsider the vocational evidence submitted by Plaintiff in the

post-hearing memorandum;

(B) Ifnecessary, address Plaintiffs other arguments in this appeal; and

(C) Take such other action as may be necessary to resolve these claims

properly.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on February 18, 2026.

JAMES R. KLINDT

United States Magistrate Judge

kaw

Copies:

Counsel of Record

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