Zinsmeister v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHN W. ZINSMEISTER,

Plaintiff,

v. Case No. 8:19-cv-45-T-AEP

ANDREW M. SAUL,

Commissioner of Social Security,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability,

disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). As the

Administrative Law Judge’s (“ALJ”) decision was not based on substantial evidence and failed

to employ proper legal standards, the Commissioner’s decision is reversed and remanded.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 201-08). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 65-92, 97-

114). Plaintiff then requested an administrative hearing (Tr. 115-16). Per Plaintiff’s request,

the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 22-50). Following the

hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly

denied Plaintiff’s claims for benefits (Tr. 9-21). Subsequently, Plaintiff requested review from

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Andrew M. Saul should be substituted for Acting

Commissioner Nancy A. Berryhill as the defendant in this matter. No further action needs to

be taken to continue this matter by reason of the last sentence of section 205(g) of the Social

the Appeals Council, which the Appeals Council denied (Tr. 1-6). Plaintiff then timely filed a

complaint with this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g),

1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1954, claimed disability beginning September 8, 2014 (Tr.

203). Plaintiff obtained less than a high school education (Tr. 26, 220). Plaintiff’s past relevant

work experience included work as a tractor-trailer truck driver (Tr. 47-48, 221). Plaintiff

alleged disability due to ruptured discs in his back, sciatica, left knee pain, chronic obstructive

pulmonary disease (“COPD”), acute bronchitis, and chest pain (Tr. 219).

In rendering the administrative decision, the ALJ concluded that Plaintiff met the

insured status requirements through March 31, 2017 and had not engaged in substantial gainful

activity since September 8, 2014, the alleged onset date (Tr. 14). After conducting a hearing

and reviewing the evidence of record, the ALJ determined Plaintiff had the following medical

determinable impairments: COPD, bronchitis, status-post cerebrovascular accident, peripheral

arterial disease, and low back pain (Tr. 14). Notwithstanding the noted impairments, the ALJ

determined Plaintiff did not have an impairment or combination of impairments that

significantly limited, or was expected to significantly limit, the ability to perform basic work-

related activities for 12 consecutive months (Tr. 14-15). Accordingly, the ALJ concluded that

Plaintiff did not have a severe impairment or combination of impairments and thus found

Plaintiff not disabled (Tr. 14-17).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she must be unable

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 twelve months. 42 U.S.C. §§

423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results

from anatomical, physiological, or psychological abnormalities, which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),

1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.

§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the

ALJ must determine, in sequence, the following: whether the claimant is currently engaged in

substantial gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P, Appendix 1;

and whether the claimant can perform his or her past relevant work. If the claimant cannot

perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ

to decide if the claimant can do other work in the national economy in view of his or her age,

education, and work experience. 20 C.F.R. §§ 404.1520(a), 416.920(a). A claimant is entitled

to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42

(1987); 20 C.F.R. §§ 404.1520(g), 416.920(g).

A determination by the Commissioner that a claimant is not disabled must be upheld if

it is supported by substantial evidence and comports with applicable legal standards. See 42

U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation

marks omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court reviews

the Commissioner’s decision with deference to the factual findings, no such deference is given

to the legal conclusions. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th

Cir. 1994) (citations omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence or

substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates

against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient

reasoning for determining that he or she has conducted the proper legal analysis, mandates

reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining whether

the findings of the Commissioner are supported by substantial evidence and whether the correct

legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002).

III.

Plaintiff argues that the ALJ erred by finding Plaintiff’s medically determinable

impairments non-severe and denying Plaintiff’s claim at step two of the sequential evaluation

process. Step two operates as a threshold inquiry, and the claimant’s burden at step two is mild.

McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); see Gray v. Comm’r of Soc. Sec.,

550 F. App’x 850, 853 (11th Cir. 2013) (per curiam). At step two of the sequential evaluation

process, a claimant must show that he or she suffers from an impairment or combination of

impairments that significantly limits his or her physical or mental ability to do basic work

activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1521, 416.920(a)(4)(ii), 416.921. A

claimant need show only that his or her impairment is not so slight, and its effect is not so

minimal, that it would clearly not be expected to interfere with his or her ability to work.

McDaniel, 800 F.2d at 1031; Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) (per curiam).

“[T]he ‘severity’ of a medically ascertained disability must be measured in terms of its effect

upon ability to work, and not simply in terms of deviation from purely medical standards of

bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). In

other words, an impairment or combination of impairments is not considered severe where it

does not significantly limit the claimant’s physical or mental ability to perform basic work

activities. Turner v. Comm’r of Soc. Sec., 182 F. App’x 946, 948 (11th Cir. 2006) (per curiam)

(citations omitted); 20 C.F.R. §§ 404.1521, 416.921.

In this instance, the ALJ concluded at step two of the sequential evaluation that Plaintiff

did not have any severe impairment and thus did not continue to the other steps in the sequential

evaluation process (Tr. 14-17). In pertinent part, the ALJ stated:

The 2016 evidence is equally compelling, only in that it says little. The claimant

again complained of various aches and pain, including chest wall and left

shoulder pain, though hospital workups were unrevealing. To be sure, by

August 2016 there was finally evidence of something. The claimant was

diagnosed as having had a cerebrovascular accident. Yet, what then is one to

make of the lack of anything prior thereto (a period that dates back nearly two

years). For that matter, evidence coming after the stroke is relatively

nonexistent. Again, the claimant has the burden to provide medical and other

evidence regarding his medical impairments. This record provides little.

The Administrative Law Judge has not ignored [] the primary care provider

records … though the undersigned notes these are handwritten treatment notes

that are mostly illegible. These records do not explain either why there were

significant periods with little to no evidence whatsoever.

The undersigned therefore finds then the claimant has medically determinable

impairments—chronic obstructive pulmonary disease/bronchitis, a history of

cerebrovascular accident, peripheral arterial disease, and low back pain.

However, the claimant has not met his burden to provide sufficient evidence to

show these impairments, either singularly or combined, are severe. Granted,

State agency consultant Thomas Renny, D.O., opined these were severe

impairments that limited the claimant to a reduced range of light work activities

… yet the evidence submitted since the request for hearing provides almost no

impairments the claimant might have had, these have not lasted for at least a 12-

month interval (otherwise, there would be a modicum of evidence at least

showing this … which, there is not). The undersigned therefore gives Dr.

Renny’s opinion little weight.

(Tr. 16-17) (emphasis in original) (internal citations omitted). As indicated, the ALJ focused

upon the lack of medical records as one of the main bases for finding Plaintiff not disabled.

Though circling back to the issue several times during the administrative hearing (Tr.

22-50), the ALJ’s decision does not indicate that the ALJ considered Plaintiff’s inability to

afford medical treatment. Cf. Dawkins v. Bowen, 848 F.2d 1211, 1213-1214 (11th Cir. 1988)

(indicating that poverty excuses noncompliance with prescribed medical treatment). As

Plaintiff stated during the administrative hearing, prior to moving into his current residence

within the past year, Plaintiff remained homeless for a period of two years, living outdoors,

finding shelter where he could, requiring food stamps, and using restrooms in public parks and

libraries (Tr. 29-30). Even after obtaining a residence, Plaintiff testified that, within the year

prior to the hearing, he had difficulty getting medical treatment due to his inability to find

transportation to and from his medical practitioners who accepted Medicaid and due to his

difficulty finding medical practitioners who accepted Medicaid and were located in closer

proximity to him (Tr. 33-35). The ALJ’s failure to consider Plaintiff’s inability to afford

medical treatment thus constitutes error and warrants remand.2

Furthermore, given the failure to consider Plaintiff’s inability to afford or obtain medical

treatment, the ALJ should reconsider the opinion of Dr. Thomas Renny (Tr. 16-17). Medical

opinions are statements from acceptable medical sources that reflect judgments about the nature

and severity of a claimant’s impairments, including symptoms, diagnosis and prognosis, what

2 To the extent that the record requires further development, the ALJ may order a consultative

examination. See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir.

2007) (citing Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)); see 20 C.F.R. §§

the claimant can still do despite the impairments, and physical or mental restrictions. 20 C.F.R.

§§ 404.1527(a)(1), 416.927(a)(1). When assessing the medical evidence, the ALJ must state

with particularity the weight afforded to different medical opinions and the reasons therefor.

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citation omitted).

Notably, state agency medical consultants are considered highly qualified experts in the Social

Security disability evaluation process. 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1).

Here, Dr. Renny, a state agency medical consultant, provided the only medical opinion

in the record and concluded that Plaintiff’s impairments of peripheral arterial disease, spine

disorders, and other unspecified arthropathies were severe as of April 15, 2016 (Tr. 69-88). In

considering Dr. Renny’s opinion, the ALJ focused upon the lack of evidence submitted since

the request for hearing providing almost no additional insight and suggesting that the medically

determinable impairments the claimant might have had would not have lasted for a 12-month

interval. Given Plaintiff’s statements regarding his inability or difficulties obtaining medical

treatment, including during a two-year period of homelessness, the ALJ should reconsider the

opinion of Dr. Renny upon remand.

Moreover, though the ALJ need not specifically refer to every piece of evidence in the

decision, see Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (citation omitted), the

ALJ should also address Plaintiff’s objective test results, including MRI and CT scan results,

on remand. The results include, among other things, diagnoses relating to emphysema and a

degenerative spine disease and identification of chronic changes in Plaintiff’s white matter (Tr.

32-33, 547, 583, 588-89). The failure to consider these objective test results, especially given

the ALJ’s focus upon the lack of evidence supporting Plaintiff’s claims, is, at the very least,

problematic.

In sum, the ALJ committed reversible error. Based upon Plaintiff's statements

regarding his extended homelessness and inability to obtain transportation to his medical

practitioner or to find a medical practitioner in close proximity who took Medicaid; the state

agency medical consultant’s opinion; and the lack of consideration of the objective test results,

and given the low threshold at step two of the sequential evaluation process, the ALJ’s finding

at step two was not supported by substantial evidence and did not comport with the correct legal

standards. Remand for reconsideration of the foregoing evidence and of the severity of

Plaintiff’s impairments therefore is warranted.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is REVERSED and the matter is REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative

proceedings consistent with this Order.

2. The Clerk is directed to enter final judgment in favor of Plaintiff and close the case.

DONE AND ORDERED in Tampa, Florida, on this 4th day of March, 2020.

Fe ce

LAS Ee

fe

ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record