FORLIZZO

v.

COMMISSIONER OF SOCIAL SECURITY

Plaintiff Katie Forlizzo seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying her claim for a period of disability and disability insurance benefits. The Commissioner filed the Transcript of the proceedings (“Tr.” followed by the appropriate page number), and the parties filed legal memoranda setting forth their positions. Plaintiff also filed a reply brief. As explained below, the decision of the Commissioner is REVERSED and REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). I. Social Security Act Eligibility, Standard of Review, Procedural History, and the ALJ’s Decision

A. Social Security Eligibility

The law defines disability as the inability to do 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 twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.

B. Standard of Review

The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Even if the evidence preponderated against the Commissioner’s findings, we must affirm if the decision reached is supported by substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158 (11th

Cir. 2004). In conducting this review, this Court may not reweigh the evidence or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178 (11th Cir. 2011) (citation omitted); Foote v. Chater, 67 F. 3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,

894 F. 2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s conclusions of law are not presumed valid and are reviewed under a de novo standard. Keeton v. Dep’t of Health & Human Servs., 21 F. 3d 1064, 1066 (11th Cir. 1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2 (11th Cir. July 8, 2021); Martin, 894 F. 2d at 1529. “The [Commissioner’s] failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F. 3d at 1066. The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant is currently engaged in substantial gainful employment. 20 C.F.R. § 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must determine whether the impairment or combination of impairments from which the claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R. § 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s severe impairments meet or medically equal a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the claimant’s severe impairments do not meet or medically equal a listed impairment, then the ALJ must determine whether the claimant has the residual functional capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),

(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f). If the claimant cannot perform past relevant work, the ALJ must determine at step five whether the claimant’s RFC permits her to perform other work that exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may establish whether the claimant is capable of performing other work available in the national economy. The first is by applying the Medical Vocational Guidelines, and the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F. 3d 1232, 1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015). The claimant bears the burden of proof through step four. Atha, 616 F. App’x at 933. If the claimant meets this burden, then the burden temporarily shifts to the Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work that exists in significant numbers in the national economy that the claimant is able to perform, only then does the burden shift back to the claimant to prove she is unable to perform these jobs. Atha, 616 F. App’x at 993.

C. Procedural History

Plaintiff applied for a period of disability and disability insurance benefits on

July 16, 2020, alleging disability beginning on August 13, 2019. (Tr. 112, 218-21). The applications were denied initially and on reconsideration. (Tr. 112, 124). Plaintiff requested a hearing, and on March 14, 2022, a hearing was held before

Administrative Law Judge Anne V. Sprague (“ALJ”). (Tr. 43-60). On March 25, 2022, the ALJ entered a decision finding Plaintiff not under a disability from August 13, 2019, through the date of the decision. (Tr. 27-38). Plaintiff requested review of the decision, but the Appeals Council denied

Plaintiff’s request on October 28, 2022. (Tr. 1-6). Plaintiff filed a Complaint (Doc. 1) on December 30, 2022, and the case is ripe for review. The parties consented to proceed before a United States Magistrate Judge for all proceedings. (Doc. 13).

D. Summary of ALJ’s Decision In this matter, the ALJ found Plaintiff meets the insured status requirements of the Social Security Act through June 30, 2025. (Tr. 29). At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 13, 2019, the alleged onset date. (Tr. 29). At step two, the ALJ found that Plaintiff had the following severe impairments: “possible seizures; post-traumatic stress disorder (PTSD); panic disorder; obsessive compulsive disorder (OCD); major depressive disorder.” (Tr. 29). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix¹ (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). (Tr. 30). Before proceeding to step four, the ALJ found that Plaintiff had the following

RFC: After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant must never climb ladders, ropes, or scaffolds. She is limited to frequent exposure to unprotected height and dangerous equipment. The claimant can understand, remember, and carry out simple instructions. She can concentrate, persist, and maintain pace to perform simple tasks. She must have no interaction with the public and only occasional social interaction with coworkers and supervisors. The claimant must have only occasional changes in a work setting. (Tr. 31). At step four, the ALJ determined that Plaintiff was unable to perform her past relevant work as a pharmacy technician. (Tr. 36). At step five, the ALJ found that considering Plaintiff’s age (31 years old on the alleged disability onset date), education (at least high school), work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 37-38). Specifically, the vocational expert testified that a person with Plaintiff’s limitations could perform such occupations as: (1) kitchen helper, DOT 318.687-010, medium, SVP 21 (2) floor waxer, DOT 381.687-034, medium, SVP²

(3) cook helper, DOT 317.687-010, medium, SVP² (4) marker, DOT 209.587-034, light, SVP² (5) eye glass polisher, DOT 713.687-038, sedentary, SVP² (Tr. 37-38, 59). The ALJ concluded that Plaintiff had not been under a disability from August 13, 2019, through the date of the decision. (Tr. 38).

II. Analysis

Plaintiff submitted additional evidence to the Appeals Council of chiropractic treatment notes dated December 12, 2021, through March 7, 2022, and two MRIs taken on December 30, 2021 of the lumbar and cervical spine. (Tr. 61-95). On appeal, Plaintiff challenges whether the Appeals Council applied the correct legal standard to this additional evidence. (Doc. 14, p. 4). Plaintiff asserts that she was involved in a car accident on December 10, 2021, which occurred before both the hearing and the ALJ’s March 2022 decision. (Doc. 14, p. 8). Plaintiff argues that the ALJ based the RFC assessment on records prior to the car accident. (Doc. 14, p. 8).

Plaintiff contends that the Appeals Council erroneously determined that the additional evidence submitted to it – which was dated after the car accident – did not show a reasonable probability that it would change the outcome of the decision.

“‘With a few exceptions, the claimant is allowed to present new evidence at each stage of this administrative process,’ including before the Appeals Council.” Washington v. Soc. Sec. Admin., Comm’r, 806 F. 3d 1317, 1320 (11th Cir. 2015) (quoting Ingram v. Comm’r of Soc., Sec. Admin., 496 F. 3d 1253, 1261 (11th

Cir.2007)). Under new regulations effective in 2017,2 the Appeals Council will review a case when it “receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5); 20 C.F.R. § 416.1470(a)(5). New evidence is chronologically relevant if it relates to the period on or before the date of the ALJ’s decision. Hargress v. Soc. Sec. Admin., Comm’r, 883 F. 3d 1302, 1309 (11th Cir. 2018). “Evidence is material if ‘there is a reasonable possibility that the new evidence would change the administrative outcome.’” Atha, 616 F. App’x at 936.

Here, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. (Tr. 1). As to the additional evidence submitted, the Appeals Council determined:

You submitted additional evidence from Langheier Healthcare dated December 17, 2021 through March 7, 2022 (31pages); Spring Hill MRI, dated December 30, 2021 (4 pages and 3 pages); and Rushad Juyla, DO dated May 2, 2022 (6 pages).3 We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.

1. Posterior left paracentral disc extrusion at C5-6 impinging upon the thecal sac and impressing upon the ventral surface of the spinal cord to the left of midline resulting in mild deformity of the ventral cord contour. There is also secondary spinal canal stenosis that is mild in severity to the left of midline as well as foraminal stenosis on the left as described. Some mild downward extrusion of disc material is seen to the left of midline. The size of this disc herniation appears to increase slightly during cervical extension. 2. Shallow, very focal posterior disc protrusion at C4-5 indenting the thecal sac in the midline. The central canal and foraminal dimensions are satisfactory at this level. 3. Slight reversal of the cervical lordotic curvature resulting in a mild kyphotic angulation apexing at C5-6. (Tr. 92).

III. Conclusion

For the reasons discussed above, the decision of the Commissioner is REVERSED and REMANDED such that this action is remanded under sentence four of 42 U.S.C. § 405(g) for the Commissioner to reconsider the additional evidence submitted to the Appeals Council along with all the medical and other

aor ILAS N. RATER

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties