Petition for Writ of Certiorari — Rachel Goode, Petitioner v. Frank Bisignano, Commissioner of Social Security

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APPENDIX A

[DO NOT PUBLISH]

In the

United States Court of Appeals

Hor the Eleventh Circuit

No. 24-11221

Non-Argument Calendar

RACHEL GOODE,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cv-02107-JRK

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2 Opinion of the Court 24-1122]

Before ROSENBAUM, BRASHER, anid TJOEFLAT, Circuit Judges.

PER CURIAM:

Rachel Goode appeals from a magistrate judge’s order affirming an administrative law judge’s (“ALJ”) denial of her application for Disability Insurance Benefits (“DIB”) and Supplemental Security income (“SSI").! She argues that the ALJ violated the mandate rule and the law-of-the-case doctrine by making a new finding

regard:ng her residual functional capacity (“RFC”) instead of adopting the RFC findings from prior, vacated ALJ decisions. After careful rev'ew, we affirm.

I.

‘Soode filed her initial DIB and SSI applications in 2011, alleging a disability onset date of January 30, 2011, in both applications. She claimed disability due to injuries from a motorcycle accident, lupus, depression, dizziness, and attention deficit disorder.

The A‘J, after a hearing in which Goode and a vocational expert

testified, issued a decision in 2013 finding that Goode was not disabled. As part of his assessment, the ALJ found that Goode had an

RFC to perform light work and occasionally reach in all directions,

including overhead with her right shoulder. The Appeals Council

denied Goode’s request for review.

Goode then sought review in the District Court. The Court

reversed and remanded the matter to the Appeals Council for

1 The parties consented to the Magistrate Judge’s exercise of jurisdiction.

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24-1127 1 Opinion of the Court 3

further proceedings. And the Appeals Council in 2016 entered an

order vacating the ALJ’s decision and remanding the matter. The

Appeals Council directed the ALJ to consolidate Goode’s claims

with her newly filed DIB and SSI claims, create a single electronic

record, and issue a new decision.

The ALJ issued his second decision in 2016. He again found

that Goode was not disabled. And he again found that Goode had

an RFC to perform light work. But his second decision differed

slightly because he determined that Goode should avoid more than

occasicnal overhead reaching with her right arm. The Appeals

Council declined to assume jurisdiction over Goode’s request for

review.

-z00de again sought review in the District Court. When the

District Court affirmed, Goode appealed to this Court. We determined that the ALJ erroneously relied on flawed testimony of the

vocaticnal expert. Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1280-

84 (11th Cir. 2020). We therefore reversed the District Court’s order and remanded with instructions that the matter be returned to

the AL for further proceedings. Id. at 1285. The Appeals Council

in 202} then entered an order vacating the ALJ’s second decision

and remanding the matter to a new ALJ. The ALJ was instructed

to assess whether Goode was disabled between the disability onset

date alieged in her 2011 applications and September 1, 2016.2

* Goode filed subsequent DIB and SSI claims in 2017, claiming an onset date

of September 1, 2016. The ALJ assessing these subsequent applications found

that Goode was disabled as of this date. All that remained to adjudicate was

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4 Opinion of the Court 24-11221

In 2021, the new ALJ issued a third decision. The AL] determined tor a third time that Goode was not disabled. The ALJ again

found that Goode had an RFC to perform light work, except that

Goode <ould not frequently reach overhead to the right. When the

Appeals Council declined jurisdiction over Goode’s request for review, C:oode filed another action in the District Court. The Court

affirme 1.

(soode timely appeals.

Il.

On appeal, Goode contends that the ALJs’ second and third

decisions exceeded the mandate of the District Court’s first order

and violated the law-of-the-case doctrine. The first ALJ’s decision

found that Goode was limited to occasional reaching in all directions, tut the second and third decisions differed in their assessments of Goode’s reaching capacity. Because the reversals of the

first two decisions did not pertain to the initial RFC assessment,

Goode claims that the changed RFC findings are reversible error.

‘Whether an ALJ has obeyed the remand order of an appellate court or complied with a mandate is a question of law that we

review de novo. Weidner v. Comm’r of Soc. Sec., 81 F.4th 1341, 1344

(11th Cir, 2023), We also “review([] the application of the law-ofthe-case doctrine de novo.” Id.

whether Goode was disabled as of her initial alleged disabilicy onset date of

January 30, 2011.

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24-11221 Opinion of the Court 5

Our decision in Weidner compels us to affirm the District

Court's order, In Weidner, the ALJ initially found that the DIB and

SSI appiicant had an RFC to perform sedentary work. Id. at 1343.

The applicant sought review in the District Court, which remandec to the Appeals Council for further consideration. Id. The

Appeals Council vacated the ALJ’s initial decision, and the subsequent /.L)] found that the applicant had an RFC to perform light

work with limitations. Id, at 1344. On appeal, we determined that

the AL} was not required to abide by the first RFC determination

because the ALJ’s earlier decision was vacated and without legal

effect. sd. at 1345.

Goode presents nearly identical circumstances in her appeal.

The District Court issued an order remanding to the Appeals

Councii, which then vacated the ALJ's first decision. “[A]s a result

of the vacatur, that decision lost its binding effect.” Id. (citing

United “tates v. Sigma Int'l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002)

(per cuxiam)). The same holds true for the ALJ’s second decision,

which the Appeals Council vacated after this Court reversed and

remanced with instructions that the matter be returned to the ALJ

for further proceedings. “The sum result of these steps is that the

ALJ was not required to abide by the prior RFC finding on remand.” Id.

Goode acknowledges the force of Weidner but argues that in

Weidner we “reached the wrong result for the wrong reasons.”

Nevertneless, we are bound by our prior-panel-precedent rule to

follow our holding in Weidner. See Scott v. United States, 8390 F.3d

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6 Opinion of the Court 24-11221

1239, 1257 (11th Cir. 2018). Our decision there “bind[s] all subsequent panels unless and until the first panel’s holding is overruled

by the Court sitting en banc or by the Supreme Court.” Peterson v.

Comm’r, 827 F.3d 968, 987 n.30 (11th Cir. 2016).

Because the first two decisions concerning Goode’s DIB and

SSI app ications were vacated, they were void and without legal

effect. :iccordingly, the ALJ in the third decision was not bound to

follow tae RFC assessments in those vacated decisions. We therefore afficm.

AFFIRMED.

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APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RACHEL GOODE,

Plaintiff,

Vv. Case No. 8:22-cv-2107-JRK

MARTIN J. OMALLEY,

Commissioner of Social Security, :

Defendant.

OPINION AND ORDER’

I. Status

Rachel Goode (“Plaintiff’) is appealing the Commissioner of the Social

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

disability insurance benefits (“DIB”) and supplemental security income (“SSI”).

Plaintiffs alleged inability to work is the result of a motorcycle accident causing

“broken bones” and a “lung problem,” spondylolisthesis of the L-5 vertebra from

: Mr. O'Malley was sworn in as Commissioner of the Social Security

Administration on December 20, 2023. Pursuant to Rule 25(d}(1), Federal Rules of Civil

Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi 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).

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

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 8), filed December 8, 2022; Endorsed Order (Doc. No. 11), entered December 14,

2022,

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a back injury, a gunshot wound with permanent pellets in the right lung, partial

systemic lupus erythematosus, right lung damage, fractured ribs and scapula,

a shattered clavicle with permanent implant repair, broken left radius with

implant repair, repaired crushed bone and detachment of the left thumb,

hypertrophic laceration/scar tissue to left index finger, depression and dizziness

bouts, and attention deficit disorder. Transcript of Administrative Proceedings

(Doc. No. 9; “Tr.” or “administrative transcript”), filed December 8, 2022, at

219."

On April 26, 2011, Plaintiff protectively filed the DIB and SSI

applications, alleging a disability onset date of January 30, 2011 in both

applications. Tr. at 191-97 (DIB), 198-204 (SSI). The applications were denied

initially, Tr. at 140, 145-49 (DIB), 141, 151-56 (SSI), and upon reconsideration,

Tr. at 142, 158 , 159-63 (DIB), 148, 164, 165-69 (SSI).

On November 16, 2012, an Administrative Law Judge (“ALJ”) held a

hearing, during which the ALJ heard from Plaintiff, who was represented by

counsel, and a vocational expert (“VE”). See Tr. at 97-139. At the time, Plaintiff

was fifty (560) years old. Tr. at 102. The ALJ issued a decision on January 18,

2018 finding Plaintiff not disabled through the date of the decision. Tr. at 76-

84. Plaintiff sought review of the decision by the Appeals Council and submitted

3 Some of the cited documents are duplicated in the administrative transcript.

Citations are to the first time a document appears.

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a brief and additional medical evidence in support of the request. Tr. at 6-7

(Appeals Council exhibit list and order), 9-18, 22-25, 29-34, 36-42, 45-52, 58-66

(evidence), 70-71 (request for review and cover letter), 72 (brief). On September

22, 2014, the Appeals Council denied Plaintiff's request for review, Tr. at 1-4,

making the ALJ’s decision the final decision of the Commissioner.

Plaintiff appealed the final decision to this Court on October 28, 2014. Ty.

at 709-11. On February 11, 2016, the Court entered an Order reversing and

remanding the matter for further administrative proceedings. Tr. at 716-27; see

Tr. at 714 (Judgment). On remand, the Appeals Council on March 3, 2016

entered an Order vacating the final decision and remanding the matter to an

ALJ consistent with the Court’s Order. Tr. at 730-31. In so doing, the Council

recognized that Plaintiff had on October 27, 2014 filed subsequent claims for

DIB and SSI, so the Council directed the ALJ on remand to consolidate the

claim files, created a single electronic record, and issue a new decision on the

consolidated claims. Tr. at 730.

On May 11, 2016, the ALJ held a hearing, during which he heard from

Plaintiff, who was represented by counsel, and a VE. Tr. at 658-83. On July 7,

2016, the ALJ issued a decision finding Plaintiff not disabled through the date

of the decision. Tr. at 587-99. Plaintiff requested review of the decision by the

Appeals Council and submitted a brief and additional medical evidence in

support of the request. Tr. at 579-81 (exhibit list and order), 610-16 (evidence),

3.

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840-41 (request for review and cover letter), 842-51 (brief and attachments). On

February 6, 2017, the Appeals Council declined to assume jurisdiction, Tr. at

574-78, making the ALd’s decision the final decision of the Commissioner.

Plaintiff again appealed the final decision to this Court, see Compl. (Doc.

No. 1), No. 8:17-cv-743-JSS (M.D. Fla. Mar. 29, 2017), but she also on April 10,

2017 filed new claims for DIB and SSI, Tr. at 1823. Adjudicating those new

claims, an ALJ found Plaintiff disabled as of September 1, 2016. Ty. at 1328.

This Court on September 21, 2018 affirmed the final decision on the 2011

and 2014 claims. Tr. at 1480-39; see Tr. at 1440 (Judgment). Plaintiff then

appealed to the United States Court of Appeals for the Eleventh Circuit. On

July 28, 2020, the Eleventh Circuit issued a published opinion reversing and

remanding “with instructions that the matter be returned to the ALJ for further

proceedings consistent with [the] opinion.” Tr. at 1405-21. This Court on April

8, 2021 entered an Order remanding the matter to the Administration

consistent with the opinion of the Eleventh Circuit. Tr. at 1403-04; see Tr. at

1422 (Judgment).

On remand, the Appeals Council on June 11, 2021 entered an Order

remanding the case to an ALJ. Tr. at 1424-27. In so doing, the Appeals Council

noted that Plaintiff had filed the 2017 claims, and she had been found to be

disabled as of September 1, 2016. Tr. at 1426. The Appeals Council found that

determination to be “supported by substantial evidence” and affirmed it. Tr. at

_4.

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1426. Accordingly, the Council left for “further adjudication” in this matter only

the period prior to September 1, 2016. Tr. at 1426.

Another ALJ held a hearing on October 21, 2021, during which she heard

from Plaintiff, who remained represented by counsel, and from a VE." Ty. at

1343-70. The ALd issued a Decision on November 3, 2021 finding Plaintiff not

disabled from January 30, 2011 through August 30, 2016 (specifically

recognizing that Plaintiff had been found disabled by another ALJ as of

September 1, 2016). Tr. at 1823-33. Plaintiff requested review of the ALs’s

Decision and submitted a brief in support. Tr. at 1811-12 (exhibit list and order),

1588-89 (request for review and cover letter), 1590 (brief). On August 11, 2022,

the Appeals Council declined to assume jurisdiction, Tr. at 1306-10, making the

ALJ’s Decision the final decision of the Commissioner. On September 12, 2022,

Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1888(c)(8) by

timely filing a Complaint (Doc. No. 1) seeking judicial review of the

Commissioner’s final decision.

On appeal, Plaintiff argues the ALJ “exceeded the mandate of the federal

court remanding a prior decision and violated the law of the case doctrine.”

Memorandum in Opposition to the Commissioner’s Decision (Doc. No. 15; “Pl.’s

: The hearing was held via telephone, with Plaintiffs consent, because of

extraordinary circumstances presented by the earlier stages of the COVID-19 pandemic. Tr.

at 1345-47, 1536-51.

oT

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Mem.”) filed March 9, 20238, at 4 (emphasis and capitalization omitted); see id.

at 4-8. On April 6, 2028, Defendant filed a Memorandum in Support of the

Commissioner's Decision (Doc. No. 16; “Def.’s Mem.”), responding to Plaintiffs

argument. 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 affirmed.

Il, The ALJ's Decision

When determining whether an individual is disabled,” 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.8d 1282, 1237 (llth Cir. 2004). The claimant bears the burden of

5 “Disability” is defined in the Social Security Act as the “inability te 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).

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persuasion through step four, and at step five, the burden shifts to the

Commissioner. Bowen v. Yuckert, 482 U.S. 187, 146 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 1326-

32. At step one, the ALJ determined Plaintiff “has not engaged in substantial

gainful activity since January 30, 2011, the alleged onset date.” Tr. at 1326

(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has

the following severe impairments: traumatic L-5 spondylolisthesis, with

fractured ribs, scapula, clavicle, radius, thumb, and finger, status post-surgical

procedures; depression and attention deficit hyperactivity disorder (ADHD);

carpal tunnel syndrome (CTS); lupus erythematosus; gunshot trauma to right

lung, status post-surgical procedures.” Tr. at 1826 (emphasis and citation

omitted). At step three, the ALJ ascertained that Plaintiff “does not have an

impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,

Appendix 1.” Tr. at 13826 (emphasis and citation omitted).

The ALJ determined that Plaintiff has the following residual functional

capacity (“RFC”):

[Plaintiff can] perform light work as defined in 20 CFR [§§]

404.1567(b) and 416.967(b) except frequently reaching overhead to

the right. She can handle items frequently with the left hand and

can handle items frequently with the right hand. She can climb

ramps and stairs occasionally, never climb ladders, ropes, or

scaffolds, balance occasionally, stoop occasionally, kneel

occasionally, crouch occasionally, crawl occasionally. She can

understand, remember, and carry out instructions as follows —

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simple, routine tasks, SVP 1-2, reasoning no greater than 2. She

can maintain attention, concentration, persistence and pace in 2

hour increments throughout an 8 hour work day with normal work

breaks.

Tr. at 1827 (emphasis omitted).

At step four, the ALJ found that Plaintiff “is unable to perform any past

relevant work” as a “registered nurse.” Tr. at 1831 (some emphasis and citation

omitted). At the fifth and final step of the sequential inquiry, after considering

Plaintiffs age (“49 years old... on the alleged disability onset date”), education

(“at least a high school education”), work experience, and RFC, the ALJ found

that “there are jobs that exist in significant numbers in the national economy

that [Plaintiff] can perform,” Tr. at 1331 (some emphasis omitted), such as

“ticket taker,” “marker,” and “order caller,” Ty. at 1332. The ALJ concluded

Plaintiff “has not been under a disability... from January 30, 2011, through

August 30, 2016.” Tr. at 1832 (emphasis and citation omitted).

Ill. 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)(8). Although no deference is given

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

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

2001) (citing Falge v. Apfel, 150 F.8d 1320, 1322 (11th Cir. 1998)). “Substantial

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

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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 1822

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

Berryhill, 189 S.Ct. 1148, 1154 (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 1148, 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).

[V. Discussion

Plaintiff contends the Administration erred during the various remand

proceedings by continuously evolving her RFC with respect to reaching. PI1.’s

Mem. at 4. According to Plaintiff, this violated the law of the case doctrine and

the mandate rule. See id. at 4-8. Responding, Defendant asserts that Plaintiff's

argument runs contrary to agency policy and Eleventh Circuit precedent. Def.’s

Mem. at 6-13.

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The first ALJ decision found Plaintiff able to occasionally reach in all

directions. Tr. at 80. Plaintiff recognizes that when she appealed that decision,

this Court focused solely on Plaintiffs mental condition in remanding the

matter for further proceedings. Pl.’s Mem. at 4; see Tr. at 716-27. After the

matter was remanded, the second ALJ decision found Plaintiff could

occasionally reach overhead with the right upper extremity. Tr. at 1380-81.

Plaintiff raised as an issue in this Court whether this finding violated the law

of the case and the mandate rule, and this Court found it did not need to decide

the issue because there was no “material[] change from the first to the second

RFC.” Tr. at 1435-36. The Eleventh Circuit then reversed on other grounds. Tr.

at 1405-21. On remand, and at issue here, the third ALJ Decision found Plaintiff

could “frequently reach] overhead to the right.” Tr. at 1327.

Plaintiff contends the latest finding violated the law of the case doctrine

and the mandate rule, but she recognizes there are at least two unrelated,

unpublished Eleventh Circuit opinions that are contrary to her argument. See

Pl’s Mem. at 5, 7 (citing Zuniga v. Comm’r, 772 F. App’x 870, 871 (11th Cir.

2019); Alicea v. Comm’r, 855 F. App’x 494, 494-95 (11th Cir. 2021)).

“Generally, under the law of the case doctrine, an appellate court’s

findings of fact and conclusions of law are binding in all subsequent proceedings

in the same case.” Zuniga, 772 F. App’x at 871 (citing This That & the Other

Gift & Tobacco, Inc. v. Cobb Cty., 4389 F.3d 1275, 1288 (11th Cir. 2006)). Further,

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“[t]he mandate rule requires compliance on remand with the appellate court’s

instructions and forecloses relitigation of any issue that the appellate court

expressly or impliedly decided.” Id. (citing Johnson v, KeyBank Nat'l Assn (In

re Checking Account Overdraft Litig.), 754 F.3d 1290, 1296 (11th Cir. 2014)).

“But a vacated opinion or order is ‘officially gone,’ and therefore cannot provide

a basis” for the law of the case doctrine or the mandate rule to apply. Id.

Here, Plaintiff admits the Hlevent!

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or conclusions of law on the RFC issue. So, by its terms, the law of the case

doctrine cannot apply. See Zuniga, 772 F. App’x at 871. Nor can the mandate

rule, because the Eleventh Circuit’s opinion and subsequent mandate did not

address the RFC issue. See, e.g., id.; Alicea, 855 F. App’x at 496-97; Maxwell v.

Comm’r of Soc. Sec., 778 F. App’x 800, 802-03 (11th Cir. 2019), Moreover, the

prior ALJ decisions were officially vacated, stripping them of any binding effect.

See Zuniga, 772 F. App’x at 871. For these reasons, Plaintiffs argument fails.

V.. Conclusion

The ALJ’s Decision does not violate the mandate rule or the law of the

case doctrine. Further, it is supported by substantial evidence. In light of the

foregoing, it is

ORDERED:

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

sentence four of 42 U.S.C. § 405(g) and § 18838(c)(3), AFFIRMING the

Commissioner’s final decision.

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

DONE AND ORDERED in Jacksonville, Florida on March 4, 2024.

0 a |

\\ cena Ke K Xcadt

(} JAMES R. KLINDT

United States Magistrate Judge

kaw

Copies to:

Counsel of Record

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gh SEQCLASE 8:22-CV-02107-VMC-CPT Document 9-14 Filed 12/08/22 Page 2 of 66 PagelD 1343

g - ; ee,

LEN: SOCIAL SECORITY ADMINISTRATION

>,

2 lll & Refer to: Rachel Ann Goode 19a Office of Appellate Operations

ISTR APPENDIX C 5107 Leesburg Pike

Falls Church, VA 22041-3255

Telephone: (877) 670-2722

Date: August 11, 2022

Michael Steinberg

Attorney at Law

Fountain Sq. [1 # 195

4925 Independence Pkwy

Tampa, FL 33634

Dear Representative Steinberg:

Re: Rachel Ann Goode v. Commissioner of Social! Security

U.S.D.C. for the Middle District of Florida

Civil Action Number 8:17-CV-00743

On August 8, 2022, we told you that we considered your exceptions but found no reason under

our rules to assume jurisdiction of the November 3, 2021 hearing decision. We are now setting

aside our earlier action as the notice did not include an Exhibit List.

We have considered the reasons you disagree with the Administrative Law Judge's decision dated

November 3, 2021 and all of the issues in the case. We found no reason under our rules to

assume jurisdiction.

Why We Are Taking This Action

This case was remanded by the | [th Circuit Court of Appeals for the Administrative Law

Judge to give further consideration at step 5 of the sequential evaluation and obtain additional

testimony from the vocational expert to reconsider the job of bakery worker that the

vocational expert previously testified that the claimant could perform. The Administrative

Law Judge has complied with these instructions. In providing three new jobs at steps, the

Administrative Law Judge relied on the testimony of the vocational expert who testified at

length regarding the way the jobs are classified and the resources used to estimate job

numbers, which included Job Browser Pro, the SOC, 0*Net and crosswalk as well as his own

professional experience (October 21,2021 Hearing Testimony at 01:20:23 through 01:32:53),

In the current decision, the Administrative Law Judge found that the claimant had severe

impairments of traumatic L-5 spondylolisthesis, with fractured ribs, scapula, clavicle, radius,

Suspect Social Security Fraud?

Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotline

at 1-800-269-0271 (TTY 1-866-501-2101),

See Next Page 1306

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Rachel Ann Goode 20a Page 2 of 5

thumb, and finger, status post-surgical procedures; depression and attention deficit

hyperactivity disorder (ADHD); carpal tunnel syndrome (CTS); lupus erythematosus;

gunshot trauma to right lung, status post-surgical procedures (Finding 3). The

Administrative Law Judge found that considering the claimant's age, education, work

experience, and residual functional capacity for a reduced range of light work and relying

upon the expanded testimony of the vocational expert, there were jobs that existed in

significant numbers in the national economy that she could perform prior to the date the

claimant was previously found disabled, September 1, 2016 (Finding 11).

You submitted written exceptions on November 28, 2021. We considered the exceptions and

exhibited them as Exhibit 35B on the enclosed order, In the exceptions, you note that the

prior hearing decision dated July 7, 2016 found the claimant had the residual functional

capacity fo perform a range of light work except, in relevant part, the claimant was limited to

occasional overhead reaching with the right upper extremity. However, in the present

decision dated November 3, 2016, the Administrative Law Judge found the claimant capabie

of frequent overhead reaching with the right upper extremity. You argue that the

Administrative Law Judge should not have disturbed the first residual functional capacity

under the "principle of the rule of mandate/law of the case." We do not find this contention

persuasive,

Both the i 1th Circuit Court of Appeals and the Appeals Council vacated the final decision of

the Commissioner dated July 7, 2016 (Exhibit 17A, page 2 and 19A). On remand from

federal court, the Administrative Law Judge holds a de novo hearing and is not bound to the

findings of the prior hearing decision (HALLEX I-2-8-18A). A de novo review is one in

which the evidence of record is objectively read and scrutinized, without consideration of

prior determinations (POMS GN 04440.003). Therefore, the Administrative Law Judge in

the decision dated November 3, 2021 was not bound by the findings of the vacated hearing

decision dated July 7, 2016. Moreover, the Administrative Law Judge's finding that the

claimant is limited to frequent overhead reaching with the right upper extremity is supported

by substantial evidence, and the Administrative Law Judge provided support for this

limitation in the hearing decision as required by Social Security Ruling 98-6p. In support of

these limitations, the Administrative Law Judge cited EMG testing in June 2014 showing

mild carpal tunnel syndrome on the right (Decision, page 7, citing Exhibit 26F), The

Administrative Law Judge also pointed to examinations showing tenderness but norma!

range of motion in the hands and wrists and improvement with injections (Decision, page 7,

citing Exhibits 29F and 31F). Finally, the Administrative Law Judge relied upon the

claimant's wide range of activities of daily living (Decision, page 8). Thus, the

Administrative Law Judge's rationale provides a reasonable basis for the overhead reaching

limitations. |

Our review of the record provides additional support for the frequent overhead reaching

limitation. We note that the claimant injured her shoulder in a motorcycle accident in

January 2011 (Exhibit 10F, page 5). By April 2011 and after several months of physical

therapy, however, the claimant reported that she felt like she could return to her regular duty

tasks (Exhibit 6F, Decision, page 6). At a consultative examination performed in June 2011,

the examiner found discomfort in the clavicular area that limited motion, but the rest of the

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Rachel Ann Goode Page 3 of 5

claimant's arm was within normal limitations, and her shoulder was nontender (Exhibit 10F,

page 9). In September 2011, the claimant sought additional physical therapy to increase the

range of motion in her hand but did not complain of deficits in overhead reaching or shoulder

range of motion at that time (Exhibit 15F, page 8).

By September 2011, the State agency reviewed the record up to that point and opined that the

claimant had no reaching limitations at all (Exhibit |6F, page 4). We note that the

Administrative Law Judge’ restrictions are more limiting than those provided by the State

agency medical consultants despite the fact that there is no indication the claimant's carpal

tunnel syndrome has worsened since that time. Finally, while the claimant was referred for

carpal tunnel surgery shortly before the date she was found to be disabled, the detailed

findings included in the July 2016 office visit notes (Exhibit 48F, pages 8-12) are similar to

those noted by the State agency medical consultants (Exhibits 11F, 16F, 10A, 11A, 12A, and

13A). Therefore, the residual functional capacity is consistent with those of the State agency

medicai consuitants. The Administrative Law Judge properly evaluated the residual

functional capacity in accordance with Social Security Ruling 98-6p, including the limitation

to frequent overhead reaching with the right upper extremity, and this limitation is supported

by the substantial evidence of record. The representative's contention on this point does not

provide a basis for changing the Administrative Law Judge's decision dated November 3,

2021.

Accordingly, we do not find that the written exceptions provide a basis for changing the

Administrative Law Judge's decision dated November 3, 2021. In addition, we find that the

Administrative Law Judge's decision complies with the orders of the 1 [th Circuit Court of

Appeais, the U.S. District Court, and the Appeals Council. Furthermore, the decision is

consistent with our applicable laws, regulations, and Social Security Rulings.

What This Action Means

The Administrative Law Judge's decision is the final decision of the Commissioner of Social

Security after remand by the court.

If You Disagree With the Administrative Law Judge's Decision

The court order that sent this case back to the Commissioner ended the court's review of the

earlier decision. If you want a Federal district court to review the Commissioner's final

decision after remand by the court, you must file a new civil action.

If you do not ask for court review, the Commissioner's decision will be a final decision that

can be changed only under special rules.

How To File A Civil Action

You may file a civil action (ask for court review) by filing a complaint in the United States

District Court for the judicial district in which you live. The complaint should name the

Commissioner of Social Security as the defendant and should include the Social Security

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Rachel Ann Goode 22a Page 4 of 5

number(s) shown at the top of this letter.

You or your representative must deliver copies of your complaint and of the summons issued

by the court to the U.S. Attorney for the judicial district where you file your complaint, as

provided in rule 4(i) of the Federal Rules of Civil Procedure.

You or your representative must also send copies of the complaint and summons, by certified

or registered mail, to the Social Security Administration's Office of the General Counsel that

is responsible for the processing and handling of litigation in the particular judicial district in

which the complaint is filed. The names, addresses, and jurisdictional responsibilities of these

offices are published in the Federal Register (70 FR 73320, December 9, 2005), and are

available on-line at the Social Security Administration's Internet site,

htto://oclicy.ssa.gov/noms.nsf/links/0203 106020.

You or your representative musi aiso send copies of the compiaint and summons, by certified

or registered mail, to the Attorney General of the United States, Washington, DC 20530.

Time To File A Civil Action

« You have 60 days to file a civil action (ask for court review).

¢ The 60 days start the day after you receive this letter. We assume you received this letter

5 days after the date on it unless you show us that you did not receive it within the 5-day

period.

¢ Ifyou cannot file for court review within 60 days, you may ask the Appeals Council to

extend your time to file. You must have a good reason for waiting more than 60 days to

ask for court review. You must make the request in writing and give your reason(s) in the

request.

You must mail your request for more time to the Appeals Council at the address shown at the

top of this notice. Please put the Social Security number(s) also shown at the top of this

notice on your request. We will send you a letter telling you whether your request for more

time has been granted.

About the Law

The right to court review for claims under Title IT (Social Security) is provided for in Section

205(g) of the Social Security Act. This section is also Section 405(g) of Title 42 of the

United States Code.

The right to court review for claims under Title XVI (Supplemental Security Income) is

provided for in Section 1631(c)(3) of the Social Security Act. This section is also Section

1383(c) of Title 42 of the United States Code.

The rules on filing civil actions are Rules 4(c) and (i) in the Federal Rules of Civil Procedure.

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Need More Help?

1. Visit www.ssa.gov for fast, simple, and secure online service.

2. Callus at 1-800-772-1213, weekdays from 8:00 am to 7:00 pm. If you are deaf or

hard of hearing, call TTY 1-800-325-0778. Please mention this notice when you call,

3, You may also call your local office at (855)433-5873.

Social Security

Suite 100

4010 Gunn Highway

Tampa, FL 33618-8744

is) Keinbow Ps ay

Rainbow F Lloyd

Administrative Appeals Judge

cc:

Rachel Ann Goode

3610 W Beach St

Unit |

Tampa, FL 33607

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24a

Rachel Ann Goode

Claimant

Wage Earner

AC EXHIBITS LIST

COURT

NO.OF TRANSCRIPT

EXHIBIT NO. DESCRIPTION PAGES PAGE NO,

Exhivit 35B Exceptions to final decision dated November 30,

2021 (4 pages)

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25a

Social Security Administration

OFFICE OF APPELLATE OPERATIONS

ORDER OF APPEALS COUNCIL

IN THE CASE OF CLAIM FOR

Period of Disability

Disability Insurance Benefits

Rachel Ann Goode Supplemental Security Income

(Claimant)

(Wage Earner)

The Appeals Council has received additional evidence, which it is making part of the record.

That evidence consists of the following exhibit:

Exhibit 35B Exceptions to final decision dated November 30,

2021 (4 pages)

Date: August 11, 2022

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om *BCe,

ofe~en~s SOCIAL SECURITY ADMINISTRATION

2 ‘) : 26a | ,

rll 8 Office of Hearings Operations

APPENDIX D fountain Square II

4925 Independence Pkwy

Suite 200

Tampa, FL 33634-9947

Date: November 03, 2021

Rachel Ann Goode

3610 W Beach St

Unit 1

Tampa, FL 33607

Notice of Decision — Unfavorable

I carefully reviewed the facts of your case and made the enclosed decision. Please read this

notice and my decision.

If You Disagree With My Decision

If you disagree with my decision, you or your representative may submit written exceptions to

the Appeals Council. “Written exceptions” are your statements explaining why you disagree

with my decision. Please write the Social Security number associated with this case on any

written exceptions you send.

Please send your written exceptions to:

Appeals Council

5107 Leesburg Pike

Falls Church, VA 22041-3255

Or Fax: (833) 763-0406

If you need help, you may file in person at any Social Security or hearing office.

Time Limit To File Written Exceptions (30 Days)

You must file your written exceptions with the Appeals Council within 30 days of the date you

get this notice. The Appeals Council assumes that you got this notice within 5 days after the date

of the notice unless you show that you did not get it within the 5-day period.

If you need more time to file your written exceptions, you must file a written request with the

Appeals Council. You must file the request for an extension within 30 days of the date you get

Form HA-L76-OP2 (03-2010)

Suspect Social Security Fraud?

Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotline

at 1-800-269-0271 (TTY 1-866-501-2101).

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Rachel Ann Goode (BNC#: 21Q0047K 12635) Page 2 of 3

this notice. If you request more than 30 days, you must explain why you need the extra time.

The Appeals Council will decide whether to grant your request for more than a 30-day extension.

How Written Exceptions Work

The Appeals Council will consider your entire case. It will consider all of my decision, even the

parts with which you agree. The Appeals Council’s action may be more or less favorable or

unfavorable to you. The rules the Appeals Council uses are in the Code of Federal Regulations,

Title 20, Chapter IH, Part 404 (Subpart J) and Part 416 (Subpart N).

The Appeals Council may:

¢ Find that there is no reason to change my decision,

¢ Dismiss your case,

¢ Return your case to me or another administrative law judge for a new decision, or

* Issue its own decision.

The Appeals Council will send you a notice telling you what it decides to do. If the Appeals

Council does not change my decision, my decision will become the final decision after remand.

Any future claim you file will not change a final decision on this claim if the facts and issues are

the same.

The Appeals Council May Review My Decision On Its Own

The Appeals Council may review my decision even if you do not file written exceptions. The

Appeals Council! will notify you within 60 days of the date of this notice if it decides to review

your case,

Filing An Action In Federal District Court

If you do not file written exceptions and the Appeals Council does not review my decision on its

own, my decision will become final on the 61% day following the date of this notice. After my

decision becomes final, you will have 60 days to file a new civil action in Federal district court.

You will lose the right to a court review if you do not file a civil action during the 60-day period

starting with the day my decision becomes final. However, you can ask the Appeals Council to

give you more time to file a civil action. The Appeals Council will grant your request for more

time only if you can show a good reason for needing more time. We will not send you any more

notices about your right to file in Federal district court.

New Application

You have the right to file a new application at any time, but filing a new application is not the

same as filing exceptions to my decision or filing a civil action in Federal court. Hf you disagree

with my decision and you file a new application instead of filing written exceptions or appealing

to Federal court, you might lose some benefits or not qualify for benefits at all. My decision

could also be used to deny a new application for benefits if the facts and issues are the same. If

Form HA-L76-OP2 (03-2010)

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Rachel Ann Goode (BNC#: 21Q0047K 12635) Page 3 of 3

you think my decision is wrong, you should file your exceptions within 30 days or file a new

civil action between the 61% and 1215 days after the date of this notice.

If You Have Any Questions

We invite you to visit our website located at www.socialsecurity.gov to find answers to general

questions about social security. You may also call (800) 772-1213 with questions. If you are

deaf or hard of hearing, please use our TTY number (800) 325-0778.

If you have any other questions, please call, write, or visit any Social Security office. Please

have this notice and decision with you. The telephone number of the local office that serves your

area is (855) 433-5873. Its address is:

Social Security

Suite 100

4010 Gunn Highway

Tampa, FL 33618-8744

Amber Downs

Administrative Law Judge

Enclosures:

Decision Rationale

cc: Michael Steinberg

Fountain Sq. II # 195

4925 Independence Pkwy

Tampa, FL 33634

Form HA-L76-OP2 (03-2010)

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SOCIAL SECURITY ADMINISTRATION

Office of Hearings Operations

DECISION

IN THE CASE OF CLAIM FOR

Period of Disability, Disability Insurance

Rachel Ann Goode Benefits, and Supplemental Security Income

(Claimant)

386-78-4286

(Wage Earner) (Social Security Number)

JURISDICTION AND PROCEDURAL HISTORY

This case is before the undersigned Administrative Law Judge on remand from the Appeals

Council pursuant to a remand from the United States District Court for the Middle District of

Florida. On October 21, 2021, the undersigned held a telephone hearing due to the extraordinary

circumstance presented by the Coronavirus Disease 2019 (COVID-19) Pandemic. All

participants attended the hearing by telephone. The claimant agreed to appear by telephone

before the hearing, and confirmed such agreement at the start of the hearing. The claimant is

represented by Michael Steinberg, an attorney. Also appearing and testifying was Jeff Barrett,

an impartial vocational expert.

Pursuant to the District Court remand order, Appeals Council has directed the undersigned to

obtain additional testimony from a vocational expert and reconsider the job of bakery worker that

the vocational expert testified the claimant could perform.

The claimant is alleging disability since January 30, 2011. While this claim was pending appeal,

the claimant filed a subsequent claim for Title I] and Title XVI disability benefits on April 10,

2017. An ALJ found the claimant disabled as of September 1, 2016. The Appeals Council

reviewed the decision and finds it is supported by substantial evidence. Therefore, the Appeals

Council affirms the decision. This decision will consider the period prior to September 1, 2016.

The claimant submitted or informed the Administrative Law Judge about all written evidence at

least five business days before the date of the claimant’s scheduled hearing (20 CFR 404.935(a)

and 416.1435(a)).

ISSUES

The issue is whether the claimant is disabled under sections 216(i), 223(d) and 1614(a)(3)(A) of

the Social Security Act. Disability is defined as the inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment or combination

of impairments that can be expected to result in death or that has lasted or can be expected to last

for a continuous period of not less than 12 months,

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Rachel Ann Goode (BNC#: 21Q0047K 12635) Page 2 of [1

With respect to the claim for a period of disability and disability insurance benefits, there is an

additional issue whether the insured status requirements of sections 216(i) and 223 of the Social

Security Act are met. The claimant’s earnings record shows that the claimant has acquired

sufficient quarters of coverage to remain insured through September 30, 2016. Thus, the

claimant must establish disability on or before that date in order to be entitled to a period of

disability and disability insurance benefits.

After careful consideration of all the evidence, the undersigned concludes the claimant has not

been under a disability within the meaning of the Social Security Act from January 30, 2011,

through the date of this decision.

APPLICABLE LAW

Under the authority of the Sociai Security Act, the Social Security Administration has

established a five-step sequential evaluation process for determining whether an individual is

disabled 20 CFR 404.1520(a) and 416.920(a)). The steps are followed in order. If it is

determined that the claimant is or is not disabled at a step of the evaluation process, the

evaluation will not go on to the next step.

At step one, the undersigned must determine whether the claimant is engaging in substantial

gainful activity 20 CFR 404.1520(b) and 416.920(b)). Substantial gainful activity (SGA) is

defined as work activity that is both substantial and gainful. “Substantial work activity” is work

activity that involves doing significant physical or mental activities (20 CFR 404.1572(a) and

416.972(a)). “Gainful work activity” is work that is usually done for pay or profit, whether or

not a profit is realized (20 CFR 404,1572(b) and 416.972(b)). Generally, if an individual has

earnings from employment or self-employment above a specific level set out in the regulations, it

is presumed that she has demonstrated the ability to engage in SGA (20 CFR 404.1574,

404.1575, 416.974, and 416.975). If an individual engages in SGA, she is not disabled

regardless of how severe her physical or mental impairments are and regardless of her age,

education, and work experience. If the individual is not engaging in SGA, the analysis proceeds

to the second step.

At step two, the undersigned must determine whether the claimant has a medically determinable

impairment that is “severe” or a combination of impairments that is “severe” (20 CFR

404.1520(c) and 416.920(c)), An impairment or combination of impairments is “severe” within

the meaning of the regulations if it significantly limits an individual’s ability to perform basic

work activities. An impairment or combination of impairments is “not severe” when medical

and other evidence establish only a slight abnormality or a combination of slight abnormalities

that would have no more than a minimal effect on an individual’s ability to work (20 CFR

404.1522 and 416.922, Social Security Rulings (SSRs) 85-28 and 16-3p). Ifthe claimant does

not have a severe medically determinable impairment or combination of impairments, she is not

disabled. If the claimant has a severe impairment or combination of impairments, the analysis

proceeds to the third step.

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