Opinion
3:24-cv-214-WWB-SJH
09-12-2024
JAMES HIGDON, Plaintiff, v. MARTIN J. O'MALLEY, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Samuel J. Horovitz United States Magistrate Judge
THIS CAUSE is before me on referral for a report and recommendation on Plaintiff's appeal of an administrative decision denying his application under the Social Security Act (“Act”) for Disability Insurance Benefits (“DIB”). In a decision dated November 1, 2023, the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a disability from April 9, 2021, the alleged disability onset date, through the date of decision. Tr. 14-34. For the reasons herein, I recommend that the Commissioner's decision be affirmed.
I. Issue on Appeal
Plaintiff argues a single issue on appeal: “[t]he ALJ should have included the need for a service dog in the [residual functional capacity (“RFC”)] assessment or explained why this was not necessary.” Doc 16. at 1 (emphasis removed). I recommend the argument lacks merit.
II. Standard of Review
Plaintiff appeals the denial of his applications for DIB under Title II of the Act, 42 U.S.C. § 401 et seq. Under 42 U.S.C. § 405(g), judicial review “is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, and whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
The regulations under Title II are located at 20 CFR pt. 404.
The agency's factual findings are “conclusive” if “substantial evidence” supports them. Biestek v. Berryhill, 587 U.S. 97, 99 (2019). Substantial evidence “means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. at 103 (citation omitted). Though requiring “‘more than a mere scintilla'” of evidence, the threshold for this standard “is not high[,]” id., and does not require a preponderance of the evidence, Flowers v. Comm'r, Soc. Sec. Admin., 97 F.4th 1300, 1309 (11th Cir. 2024); see also Parks ex rel. D.P. v. Comm'r, Soc. Sec. Admin., 783 F.3d 847, 850 (11th Cir. 2015). So long as “the ALJ's decision clears the low evidentiary bar[,]” a reviewing court must affirm even if it “would have reached a different result and even if a preponderance of the evidence weighs against the Commissioner's decision[.]” Flowers, 97 F.4th at 1309. Nor may a reviewing court “‘decide the facts anew, make credibility determinations, or re-weigh evidence.'” Id. at 1306 (citation omitted); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The same deference does not attach to conclusions of law. See Flowers, 97 F.4th at 1304, 1306; Martin, 894 F.2d at 1529. A “failure to apply the correct legal standards or to provide the reviewing court with sufficient basis for a determination that proper legal principles have been followed mandates reversal.” Martin, 894 F.2d at 1529; see also Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).
III. The ALJ's Decision
Under the Act's general statutory definition, a person is considered disabled if unable to engage in substantial gainful activity by reason of a medically determinable impairment that can be expected to result in death and that has lasted or can be expected to last for a continuous period of at least 12 months. See 42 U.S.C. § 423(d)(1)(A). In making a disability determination, the Social Security Administration generally uses a five-step sequential process. 20 C.F.R. § 404.1520(a)(4). The ALJ applied this five-step sequential process. Tr. at 18-20. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since April 9, 2021, the alleged disability onset date. Tr. at 20. The ALJ found at step two that Plaintiff has the following severe impairments: posttraumatic stress disorder, anxiety, lumbar spine disorder, diabetes, hypertension, insomnia, obstructive sleep apnea, obesity, neuropathy, osteoarthritis knees, gout, non-obstructive coronary artery disease and cardiomegaly. Id. At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or equals a listed impairment. Id. at 21. The ALJ found that Plaintiff has the following RFC:
Because the definitions of disability under Title II and Title XVI of the Act are the same, cases under one statute are generally persuasive as to the other. See Jones v. Astrue, No. 3:10-cv-914-J-JBT, 2011 WL 13173806, at *2 n.2 (M.D. Fla. Oct. 17, 2011).
At step one, the person must show the person is not engaged in substantial gainful activity. At step two, the person must show the person has a severe impairment or combination of impairments. At step three, the person may show the impairment or combination of impairments meets or equals the severity of one of the listings in the appendix of the applicable regulations. Absent such a showing, at step four, the person must show the person cannot perform the person's past relevant work given the person's RFC. Step five, at which the burden temporarily shifts to the Commissioner, asks whether there are a significant number of jobs in the national economy the person can perform given the person's RFC, age, education, and work experience. If it is determined at any step the person is or is not disabled, the analysis ends without proceeding further. See 20 C.F.R. § 404.1520(a)(4); Flowers, 97 F.4th at 1308; Jacob v. Comm'r of Soc. Sec., No. 8:22-cv-2435-CEH-TGW, 2024 WL 3548902, at *3-4 (M.D. Fla. July 26, 2024).
Title II of the Act “‘provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need.'” Smith v. Berryhill, 587 U.S. 471, 475 (2019) (citation omitted). The ALJ found Plaintiff meets the insured status requirements through December 31, 2026. Id. at 20.
to perform light work as defined in 20 CFR 404.1567(b) except lift, carry, push and pull 20 pounds occasionally and lift and carry push and pull 10 pounds frequently, sit 6 hours in a workday, stand and/or walk 6 hours in a workday, frequently stoop, crouch, kneel, crawl, constantly hearing seeing or speaking, frequently climb stairs and ramps, occasionally climb ladders, ropes and scaffolds, can constantly reach bilaterally in all directions including overhead, can constantly finger, feel and handle, can
tolerate exposure to irritating inhalants and areas of poor ventilation, can tolerate exposure to vibrations, constant use of hands/arms and frequently use the feet/legs for the operation of controls, can tolerate exposure to heat and cold as well as wetness and humidity, can work at heights and near bodies of water when protected from falls, and can work with handheld tools and equipment, can work in an environment with sound levels up to and including 70db and the claimant can understand, remember and carry out job instructions regarding detailed job duties, and can perform detailed work tasks, can tolerate occasional interaction with supervisors, occasional interact with co-workers and occasionally interact with the general public, when performing detailed work tasks the claimant can maintain attention concentration and pace, can be punctual and work within a set schedule, can use judgement to make work decisions, frequently adjust to changes in a work setting and job duties.Id. at 22-23 (emphasis removed). The ALJ found at step four that Plaintiff is unable to perform any past relevant work but at step five that jobs exist in significant numbers in the national economy that he can perform such that he is not under a disability. Id. at 32-33.
IV. Analysis
Plaintiff argues on appeal that “[t]he ALJ should have included the need for a service dog in the RFC assessment or explained why this was not necessary.” Doc 16. at 1 (emphasis removed). The RFC is “the most [a person] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). It is assessed “based on all the relevant evidence in [the] case record.” Id.
In this case, Plaintiff briefly testified that he has a service dog that helps him manage his panic attacks by comforting and calming him down. Tr. at 55, 59, 87-88. He testified he received the service dog through the VA in February 2022. Id. at 88. Further details about how or why he obtained the dog are not of record; for example, Plaintiff does not cite any medical prescription or recommendation for the dog. See Doc. 16 at 5-7. Plaintiff mentioned the dog's assistance when giving his personal history to his consultative examiner. Tr. at 2188. There is some evidence of the dog accompanying him to certain medical appointments, including at the VA. See Doc. 16 at 2 & n.12 (citing Tr. at 2532, 2539, 2557, 2631); see also id. at 6 & n.37. Notably, however, as Plaintiff concedes, his “treating psychiatrist did not discuss whether he needed a service dog[.]” Id. at 6 & n. 38. That treating psychiatrist, Dr. Kristina Hotz with the VA, provided a mental capacity assessment of Plaintiff on December 20, 2022, which did not mention any service dog at all. Tr. at 2520-23. Indeed, his consultation with Dr. Hotz was not one of the visits for which Plaintiff brought his dog, and there is no mention of the dog at all in the notes from his December 20, 2022, appointment with Dr. Hotz. Id. at 2638-42. Nor was the dog listed among the medication, including supplies, prescribed for Plaintiff, Id. at 2639-40, or as part of his treatment plan, Id. at 2641-42. Ultimately, the ALJ acknowledged Plaintiff's testimony concerning use of a service dog but did not make any finding that such use was necessary or provide for such use in the RFC. Tr. at 22-26, 28.
Half the descriptions in the records cited by Plaintiff merely discuss that he was “ambulatory without any assistance with his dog.” Tr. at 2539, 2557. The others were in connection with consultations concerning diabetes mellitus that merely recounted his personal patient history of having the dog for a history of PTSD without mention of any corresponding medical prescription, recommendation, or impression. Tr. at 2532, 2631.
Though there appears to be no binding precedent, multiple courts in this district (and throughout the country) “have found that ‘the use of a service dog must be medically necessary to be considered in an RFC assessment.'” Cruz v. Comm'r of Soc. Sec. Admin., 406 F.Supp.3d 1337, 1346 (M.D. Fla. 2019) (collecting cases); see also Odom v. Comm'r of Soc. Sec., No. 5:21-cv-199-PRL, 2022 WL 11865998, at *2 (M.D. Fla. Aug. 25, 2022); Hewitt v. Saul, No. 8:19-cv-83-T-SPF, 2020 WL 1181953, at *3 (M.D. Fla. Mar. 12, 2020). “Whether a service dog is medically necessary depends, in turn, on whether ‘the evidence shows that the service dog was medically prescribed or recommended.'” Hewitt, 2020 WL 1181953, at *3; see also Odom, 2022 WL 11865998, at *2.
For example, in Hewitt, this Court found no error where the ALJ failed to consider the need for a service dog in his RFC assessment and in his hypothetical to the vocational expert (“VE”) because the plaintiff pointed to no evidence showing that her service dog was medically prescribed or recommended. See Hewitt, 2020 WL 1181953, at *3. By comparison, in Odom this Court reversed where the plaintiff's “treating neurologist filled out a medical source statement which noted that Plaintiff required the use of a service animal[,]” but the ALJ “did not address [the doctor's] opinion that Plaintiff required a service animal.” Odom, 2022 WL 11865998, at *3. Similarly, in Cruz, this Court reversed where the plaintiff's treatment provider “prescribed an emotional support animal as part of Plaintiff's treatment[,]” and “determined that the service dog was medically necessary and specifically stated that without his support dog, Plaintiff ‘would struggle with many aspects of daily life and could ... relapse in his mental health condition.'” Cruz, 406 F.Supp.3d at 1347. Because the plaintiff “was prescribed a service animal as part of his treatment program, which the ALJ acknowledged,” and the record evidence indicated that the plaintiff's “use of a service dog [was] medically necessary and is part of his treatment plan[,]” this Court held “that the ALJ's failure to explain why she rejected such probative evidence in assessing Plaintiff's RFC constitute[d] a reversible error.” Id.
Here, there is no evidence of medical necessity. Plaintiff points to sporadic records in which he brought his dog to certain medical appointments, but none of those records contained any findings of medical necessity or recommendation. None even focus on his mental health; to the contrary, as discussed, they merely recount his own personal history in connection with diabetes consultations or state that he was ambulatory without assistance from the dog. See supra n.5. With respect to his treating psychiatrist: (i) the December 20, 2022, mental capacity assessment of Plaintiff makes no mention of any service dog; (ii) Plaintiff did not bring the dog to the appointment preceding that assessment, at which the dog was not mentioned; and (iii) the dog is not included in the prescriptions or treatment plans identified from that appointment. Tr. at 2520-23, 2638-42. At bottom, as Plaintiff concedes, his “treating psychiatrist did not discuss whether he needed a service dog[.]” Doc. 16 at 6. This case is thus like Hewitt, and unlike Odom and Cruz, and due to be affirmed accordingly. See Hewitt, 2020 WL 1181953, at *3; see also Benjamin C. v. Comm'r of Soc. Sec., No. 5:21-CV-872 (ATB), 2022 WL 16571699, at *11 (N.D.N.Y. Nov. 1, 2022) (finding ALJ's omitting “any discussion of the service animal” was “harmless because plaintiff did not meet his burden to show that the service animal was medically necessary” as (i) there was “no evidence that any treatment provider prescribed or formally recommended the use of a service dog”; (ii) “Plaintiff's counsel states that the VA provided plaintiff with the service animal, but there is no prescription or formal recommendation in the record”; (iii) although one doctor “referenced plaintiff's use of a service dog, no medical opinion in the record suggested that the animal's presence was necessary for plaintiff to function in the workplace” and; (iv) “although multiple treatment notes make general reference to the service dog and occasionally include plaintiff's description of the benefits he derives from caring for and interacting with the animal, there is no evidence in the record that the dog was ever made part of a formal treatment plan”).
Plaintiff's arguments to the contrary are unavailing. Plaintiff makes no effort to distinguish Hewitt on medical necessity, instead arguing that Hewitt does not apply because in that case the service dog was irrelevant as used only after the relevant timeperiod. Doc. 19 at 2. But the cited irrelevancy discussion from Hewitt was an alternate holding, see Hewitt, 2020 WL 1181953, at *4, made only after the Court had primarily determined affirmance warranted for lack of medical necessity of the service dog at issue, see id. at *3. Indeed, Plaintiff himself relies almost exclusively on Odom. See Doc. 16 at 4-5 & nn. 22-32. And Odom is not only consistent with Hewitt, it applies the exact same test, which it adopts from Hewitt. See Odom, 2022 WL 11865998, at *2-3 (repeatedly citing Hewitt, 2020 WL 1181953, at *3). Plaintiff proposes no alternative test and makes no argument that his service dog was medically necessary. See Docs. 16, 19.
Of course, none of the district court cases cited herein are binding, but they are persuasive (and, as discussed, all apply the same test). I note however, that Hewitt's primary holding appears to be the lack of medical necessity, with irrelevancy only a lesser-discussed and later alternative holding. In any event, in “‘this circuit additional or alternative holdings are not dicta,'” but rather the same as solitary holdings. See Spencer v. Benison, 5 F.4th 1222, 1230 n.11 (11th Cir. 2021) (quoting Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008)).
For example, Odom cites or quotes Hewitt with approval for the points (i) “that ‘the use of a service dog must be medically necessary to be considered in an RFC assessment'”; (ii) that “[w]hether a service dog is medically necessary depends on whether ‘the evidence shows that the service dog was medically prescribed or recommended'”; and (iii) that there was “no error when there was no evidence in the record that a service dog was medically prescribed or recommended by a medical source[.]” See Odom, 2022 WL 11865998, at *2-3.
Even if medical necessity were not the appropriate test, the decision of the Commissioner would still be due to be affirmed. Beyond not showing medical necessity, Plaintiff has not offered probative evidence of any functional limitations caused by any need for a service animal or how any service animal affects his ability to work or RFC assessment. For this additional reason, Plaintiff's argument does not warrant remand. See Cook v. Comm'r of Soc. Sec., No. 8:16-cv-819-T-JSS, 2017 WL 2544875, at *6, 11 (M.D. Fla. June 13, 2017) (holding affirmance warranted where Plaintiff failed to “demonstrate how the need for a service dog affects his RFC assessment”); see also Shue v. O'Malley, No. 23-1795, 2024 WL 2827936, at *3-4 (4th Cir. June 4, 2024) (“[W]e need not resolve whether the medical necessity test is, in fact, the appropriate test. Appellant's claim fails in any event because she failed to present sufficient evidence -- medical or nonmedical -- of her need for the service dog in the workplace. She did not provide evidence that the service dog was medically necessary, nor did she provide evidence or argue that the service dog would be a limitation rather than an accommodation in the workplace. Indeed, she made no argument before the ALJ at all about the service dog limiting her ability to perform a job.... [U]nder any standard, we conclude that the ALJ was not required to consider the service animal in this case.”). Indeed, even if a service animal were medically recommended-and there is no evidence here that it was-any error would be harmless absent some showing, which Plaintiff has not made, of how such need would impact Plaintiff's ability to work or change the RFC assessment. See, e.g., Payano v. Colvin, No. 2:15-cv-00294-RFB-GWF, 2017 WL 4778593, at *4 (D. Nev. Oct. 23, 2017) (“[Plaintiff] cites [a] letter from a VA psychiatrist . that states that she is being treated for PTSD, and ‘it is highly recommended that her dog be designated a service animal to accompany her when out in public to provide support and stress relief' and that the designation would ‘be appropriate due to the severe nature of her Mental Disorder.' This alone does not support an assessment that the dog is necessary for Plaintiff to work, nor describe how she would need any dog in a work setting. Any failure to inform the vocational expert of the mere fact of having a properly-designated service dog was harmless error.”).
Plaintiff argues Shue is distinguishable solely because in that case the plaintiff had been returned to work without restrictions. Doc. 19 at 1 n.1. That argument is meritless and highlights that Plaintiff cannot meaningfully distinguish the case in a way that supports his claim. In Shue, the plaintiff had sought benefits from the onset date of March 18, 2013, through March 13, 2019, and was not cleared to work without restriction until early 2019. See Shue, 2024 WL 2827936, at *1. Thus, that the plaintiff was eventually cleared to return to work had nothing to do with most (if not all) of the period for which benefits were sought and denied, with such denial affirmed by the district court and the Fourth Circuit Court of Appeals.
Finally, though not cited by either party in the briefs, in caution before making a recommendation I invited supplemental briefing on the Eleventh Circuit's recent unpublished opinion in Lowery v. Acting Commisioner, Soc. Sec. Admin., No. 22-13913, 2024 WL 890133 (11th Cir. Mar. 1, 2024). See Doc. 20. The parties' supplemental briefs, Docs. 21 and 22, confirm that Lowery does not change the foregoing analysis. Preliminary, Lowery is unpublished and non-binding. See 11th Cir. R. 36-2; see also Noble v. Comm'r of Soc. Sec., 963 F.3d 1317, 1330 (11th Cir. 2020); S.-Owners Ins. Co. v. Easdon Rhodes & Assocs. LLC, 872 F.3d 1161, 1165 n.4 (11th Cir. 2017). The persuasive value of an unpublished opinion can depend in part in the fit of the facts. See Noble, 963 F.3d at 1330-31. In Lowery, the Eleventh Circuit agreed that an ALJ had “improperly omitted” the plaintiff's emotional support dog from her RFC finding. See Lowery, 2024 WL 890133, at *1. But the basis for such determination in that case was that the ALJ “failed to account for an additional mental restriction that she found qualified [the plaintiff's] RFC: his need for [his] emotional support dog[.]” Id. at *3 (emphasis in Lowery); see also id. (“One of the reasons provided by the ALJ for the RFC assigned to Mr. Lowery was that Beano was performing his intended function: Mr. Lowery ‘was getting beneficial support from his emotional support dog' and it helped mitigate his PTSD symptoms.”). In other words, because “she found” the dog was an additional mental restriction that qualified the plaintiff's RFC, the ALJ's failure to account for the service dog in her hypothetical to VE was error. See id.; see also id. (“We have held that where a hypothetical question posed to a VE does not comprehensively account for impairments found by the ALJ, the VE's answer does not qualify as substantial evidence to support the ALJ's decision.”).
After all, no matter what they say, even published opinions cannot make law beyond the facts presented. See United States v. Young, 108 F.4th 1307, 1322 (11th Cir. 2024) (“[W]e have pointed out many times that regardless of what a court says in its opinion, the decision can hold nothing beyond the facts of that case.”) (citation omitted); Beasley v. O'Reilly Auto Parts, 69 F.4th 744, 757 (11th Cir. 2023) (“Those statements ... are necessarily tethered to the facts of those cases. That is important because ‘whatever their opinions say, judicial decisions cannot make law beyond the facts of the cases in which those decisions are announced.'”) (citation omitted).
As Defendant correctly notes in its supplemental memorandum, this substantially distinguishes Lowery from this case, where the ALJ made no such impairment finding (nor was presented a basis for doing so). See Doc. 21 at 1-2, 4-5. For his part, Plaintiff does not appear to put much stock in Lowery and primarily argues not that the medical necessity test does not apply or was satisfied but rather that this Court should reject Defendant's argument as a mere post hoc rationalization insofar as the ALJ never stated he was excluding the service dog for lack of medical necessity. Doc. 22 at 4. But that argument presumes the ALJ was required on these facts to better explain consideration of the service dog. For the reasons stated, that was not required here.
I note that Lowery was decided March 1, 2024, before any of the substantive briefs in this case were filed. At least one of the attorneys on Plaintiff's briefs here was also counsel of record for the plaintiff in Lowery. Yet Plaintiff made no mention of Lowery in his opening or reply briefs. He did file a supplemental brief addressing the case when invited to do so, but he mostly summarizes the case without forceful argument for its application here.
Finally, the ALJ stated that he had considered the entire record when making all his findings of fact and conclusions of law and in specifically stating the RFC. Tr. at 20, 22. And “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ's decision, as was not the case here, is not a broad rejection which is” insufficient to enable a reviewing court to conclude that the ALJ considered the plaintiff's “‘medical condition as a whole.'” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (citation omitted); see also Cooper v. Comm'r of Soc. Sec., 521 Fed.Appx. 803, 808 (11th Cir. 2013); Green v. Acting Comm'r of Soc. Sec., No. 3:22-cv-875-PDB, 2023 WL 6307175, at *9, 12 (M.D. Fla. Sept. 28, 2023). On these facts, Plaintiff's service dog was not probative evidence requiring greater discussion or explanation than was provided.
V. Conclusion
Accordingly, I respectfully recommend the Court enter an Order:
1. Affirming the Commissioner's decision; and
2. Directing the Clerk of Court to enter judgment accordingly and close the file.
NOTICE TO PARTIES
“Within 14 days after being served with a copy of [a] recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). “A party may respond to another party's objections within 14 days after being served with a copy.” Id. A party's failure to serve and file specific objections to the proposed findings and recommendations impacts the scope of review by a district judge and by an appellate court. See Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); 11th Cir. R. 3-1. “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). “A party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation ... waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions[.]” 11th Cir. R. 3-1.