Pelak

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARGARET PELAK,

Plaintiff,

v. Case No. 8:24-cv-2996-JRK

FRANK BISIGNANO,

Commissioner of Social Security,1

Defendant.

OPINION AND ORDER2

I. Status

Margaret Pelak (“Plaintiff”) is appealing the Commissioner of the Social

Security Administration’s (“SSA(’s)”) final decision denying her claim for

disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the

result of mental conditions including depression and anxiety, and physical

conditions including hypertension, back pain, and migraines. Transcript of

Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”),

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).

filed February 27, 2025, at 70, 75, 248. Plaintiff protectively filed an application

for DIB on May 9, 2022, alleging a disability onset date of May 15, 2019.3 Tr.

at 193-94. The application was denied initially, Tr. at 69, 70-74, 87-90, and upon

reconsideration, Tr. at 75-79, 80, 98-100.4

On May 1, 2024, an Administrative Law Judge (“ALJ”) held a hearing,5

during which she heard testimony from Plaintiff, who was represented by

counsel, and a vocational expert (“VE”). See Tr. at 46-68. On June 18, 2024, the

ALJ issued a Decision finding Plaintiff not disabled through September 30,

2022, the date Plaintiff was last insured for DIB (the “DLI”). See Tr. at 10-19.

Thereafter, Plaintiff sought review of the Decision by the Appeals Council

and submitted a brief authored by her lawyer. See Tr. at 4-5 (Appeals Council

exhibit list and order), 31-32 (request for review), 394-95 (brief and cover letter).

On November 6, 2024, the Appeals Council denied Plaintiff’s request for review,

Tr. at 1-3, thereby making the ALJ’s Decision the final decision of the

Commissioner. On December 30, 2024, Plaintiff commenced this action under

3 Although actually completed on May 19, 2022, see Tr. at 193, the protective

filing date for the DIB application is listed elsewhere in the administrative transcript as May

9, 2022, see, e.g., Tr. at 70, 75.

4 Some of these documents are duplicated in the administrative transcript.

Citations are to the first time a document appears.

5 The hearing was held via telephone with Plaintiff’s consent. Tr. at 48, 150-52,

178.

42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial

review of the Commissioner’s final decision.

On appeal, Plaintiff argues: 1) the residual functional capacity (“RFC”)

assigned by the ALJ “failed to appropriately account for Plaintiff’s moderate

limitations in concentration, persistence, and maintaining pace”; and 2) the

RFC “lacked the support of expert opinion evidence, thereby compromising the

credibility of the limitations the ALJ determined Plaintiff was capable of

performing.” Plaintiff’s Memorandum of Law (Doc. No. 17; “Pl.’s Mem.”), filed

May 30, 2025, at 7, 12 (emphasis omitted). On June 16, 2025, Defendant filed a

Memorandum in Support of the Commissioner’s Decision (Doc. No. 19; “Def.’s

Mem.”) addressing Plaintiff’s arguments. Then, on July 25, 2025, Plaintiff’s

Reply to Defendant’s Memorandum in Support of the Commissioner’s Decision

(Doc. No. 22; “Reply”) was filed.

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 further development of

the record as it relates to opinion evidence. On remand, this development of

opinion evidence may impact the Administration’s consideration of the

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

parties’ arguments on those issue. 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,6 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal

Regulations (“Regulations”), determining 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; 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).

6 “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

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

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

Here, the ALJ followed the five-step inquiry. See Tr. at 12-19. At step one,

the ALJ determined that Plaintiff “did not engage in substantial gainful activity

during the period from her alleged onset date of May 15, 2019 through her [DLI]

of September 30, 2022.” Tr. at 12 (emphasis and citation omitted). At step two,

the ALJ found that Plaintiff through the DLI “had the following severe

impairments: adjustment disorder with anxiety.” Tr. at 13 (emphasis and

citation omitted). At step three, the ALJ found that Plaintiff through the DLI

“did not have an impairment or combination of impairments that met or

medically equaled the severity of one of the listed impairments in 20 [C.F.R.]

Part 404, Subpart P, Appendix 1.” Tr. at 13 (emphasis and citation omitted).

The ALJ determined that Plaintiff had the following RFC through the

DLI:

[Plaintiff could] perform a full range of work at all exertional levels

but with the following nonexertional limitations: [Plaintiff] can

concentrate, persist, and maintain pace performing simple and

detailed job tasks.

Tr. at 15 (emphasis omitted).

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

Plaintiff through the DLI “was unable to perform any past relevant work” as a

“Nurse assistant,” a “Distribution manager,” and an “Adjustment clerk.” Tr. at

17 (emphasis omitted). The ALJ then proceeded to the fifth and final step of the

sequential inquiry. Tr. at 18-19. After considering Plaintiff’s age (“61 years

old . . . on the [DLI]”), education (“at least a high school education”), work

experience, and RFC, the ALJ relied on the VE’s testimony and found Plaintiff

through the DLI could have performed “jobs that existed in significant numbers

in the national economy,” Tr. at 18 (emphasis and citations omitted), such as

“Dish washer,” “Motor vehicle assembler,” and “Floor waxer,” Tr. at 19. The ALJ

concluded Plaintiff “was not under a disability . . . from May 15, 2019, the

alleged onset date, through September 30, 2022, the [DLI].” Tr. at 19 (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 contends that the RFC assigned by the ALJ “lacked the support

of expert opinion evidence” and therefore cannot stand. Pl.’s Mem. at 12-14.

Defendant, responding, concedes that “the record included no opinion evidence”

but argues that the RFC was “based on the record as a whole” and should be

upheld. Def.’s Mem. at 9-10.

“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

at 1276 (citing 20 C.F.R. § 416.912(a), (c)).

While “[t]he [ALJ] has a duty to develop the record where appropriate[,]”

the ALJ “is not required to order a consultative examination as long as the

record contains sufficient evidence for the [ALJ] to make an informed decision.”

Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (citing

Doughty, 245 F.3d at 1281). 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 RFC assessment “is the most [a claimant] can still do despite [his or

her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). It is used at step

four to determine whether a claimant can return to his or her past relevant

work, and if necessary, it is also used at step five to determine whether the

claimant can perform any other work that exists in significant numbers in the

national economy. 20 C.F.R. §§ 404.1545(a)(5), 416.945(a)(1). In assessing a

claimant’s RFC, the ALJ “must consider limitations and restrictions imposed

by all of an individual’s impairments, even those that are not ‘severe.’” SSR 96-

8P, 1996 WL 374184 at *5; see also Pupo v. Comm’r, Soc. Sec. Admin., 17 F.4th

1054, 1064 (11th Cir. 2021) (citing Schink v. Comm’r of Soc. Sec., 935 F.3d 1245,

1268 (11th Cir. 2019)); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990)

(stating that “the ALJ must consider a claimant’s impairments in combination”)

(citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.

1984)).

Here, it is undisputed that the record does not contain any medical

opinion regarding Plaintiff’s functioning. The ALJ wrote: “There are no opinions

that require evaluation for persuasiveness because the State agency

psychological and medical consultants at the initial and reconsideration levels

all reported that the evidence was insufficient to support an opinion regarding

any limitations caused by [Plaintiff’s] impairments.” Tr. at 17 (citing Exs. 2A

and 3A, located at Tr. at 70-74, 75-79).

The physical medical consultant at the initial level, Christine Booth M.D.,

wrote specifically that she “Need[ed] a recent detailed physical exam covering

quantified ROM, quantified strength, gait, station, sensory, SLRs, [and] DTRs,

to evaluate.” Tr. at 72. Dr. Booth further wrote “CE ordered,” Tr. at 72, which

appears to denote that a consultative examination had been ordered. The

mental consultant, George Grubbs, Psy.D., wrote simply: “Claim insufficient d/t

FTC.” Tr. at 73. These findings were all repeated at the reconsideration levels,

with the reconsideration physical consultant, Prianka Gerrish M.D., noting that

Plaintiff “broke exam” and was not responding “to attempts to contact” and was

failing “to communicate/cooperate.” Tr. at 77. The mental consultant on

reconsideration, Yamir Laboy, Psy.D., upheld the insufficient evidence finding

and further noted that there was “no MH evidence for 12 months prior to [DLI].”

Tr. at 77-78.

The administrative transcript contains notations indicating that

unspecified “notices” sent to Plaintiff from the SSA via the United States Post

Office had been “returned/forwarding expired.” Tr. at 183.7 Correspondence

sent to the SSA by Plaintiff’s representative indicates that at some point in the

administrative process, Plaintiff moved and obtained a new address. Tr. at 153.

At the hearing, the ALJ told Plaintiff’s counsel that she “really need[ed]

a medical source statement as of September 30, 2022” and asked if counsel was

“expecting to get one of those or not?” Tr. at 50. In response, counsel stated, “No,

I think [Plaintiff] asked them, and they refused to give one.” Tr. at 50. Counsel

clarified Plaintiff had asked “[t]he doctors at Evara,” Tr. at 50, which evidently

is Plaintiff’s primary care provider, see Tr. at 770-883 (records).

The undersigned finds the ALJ erred by not fully developing the record,

and Plaintiff was clearly prejudiced as a result. It is quite apparent that the

reviewing consultants and the ALJ determined that further evidence was

needed to properly evaluate the claim. Although Dr. Gerrish at the

reconsideration level found that Plaintiff had “broke exam,” which the

undersigned believes to mean that Plaintiff had not appeared for a scheduled

7 Plaintiff did return a phone call by an SSA representative regarding a hearing.

Tr. at 184.

exam, the ALJ did not make this finding. Moreover, given that some SSA

correspondence was being returned as undeliverable, and in the absence of any

other factual findings by the ALJ that would shed light on the issue of whether

Plaintiff failed to appear, the undersigned cannot determine why the

examination did not occur as ordered. Judicial review is frustrated in this

regard.

The ALJ did ask about Plaintiff’s treating providers providing an opinion

as to Plaintiff’s functioning, but evidently they refused to do so. See Tr. at 50.

This refusal is all the more reason why the originally-ordered physical

consultative examination should have been revisited (if appropriate in light of

whatever history had transpired in relation to it). Moreover, the ALJ ultimately

found Plaintiff only has a severe mental impairment—not a physical one—but

it does not appear that a consultative mental evaluation was ordered by the

state-agency evaluators. And, obviously, one was never accomplished. The

matter must be reversed and remanded for further development of opinion

evidence as to Plaintiff’s functioning. See Etty v. Comm’r of Soc. Sec., No. 6:23-

cv-2335-CEM-EJK, 2024 WL 5315337, at *3-4 (M.D. Fla. Dec. 18, 2024) (report

and recommendation to reverse and remand when there was no “medical

opinion evidence from the relevant time period, and the ALJ did not take any

steps to fill this evidentiary gap, such as by ordering a consultative

examination”), adopted, 2025 WL 57617, at *1 (M.D. Fla. Jan. 9, 2025).°

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), REVERSING the Commissioner’s final

decision and REMANDING this matter with the following instructions:

(A) Develop the record as appropriate with opinion evidence regarding

Plaintiffs functioning during the relevant period;

(B) I£fnecessary, address Plaintiff's other argument in this appeal; and

(C) Take such other action as may be necessary to resolve this claim

properly.

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

DONE AND ORDERED in Jacksonville, Florida on March 30, 2026.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge

8 The claimant in Etty “never responded to [the state agency medical

consultants’] attempts to make contact” and so they were “unable to complete [the claimant’s]|

medical assessment.” Etty, 2024 WL 5315337, at *4 (citation omitted). Nevertheless, the Etty

Court still determined, much the same way as the undersigned does here on this record, that

“the ALJ has the basic duty to develop a full and fair record before making an RFC

determination, and that was not done in this case.” Id. (citation omitted).

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kaw

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