Gonzalez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EVORA MARIA GONZALEZ,

Plaintiff, .

v. CASE NO. 8:19-cv-913-T-TGW

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

ORDER

The plaintiff seeks judicial review of the denial of her claim for

Social Security disability benefits! Because the decision of the

Commissioner of Social Security fails to evaluate the credibility of the

plaintiffs testimony regarding a potentially disabling side effect of

medication, the decision will be reversed and the matter remanded for further

consideration.

I.

The plaintiff, who was sixty-one years old at the time of the

administrative hearing and who has a college degree, has worked as a special

1The parties consented to the exercise of jurisdiction by a United States Magistrate

Judge (Doc. 11).

education teacher (Tr. 44, 64). She filed a claim for Social Security disability

benefits, alleging that she became disabled due to depression; anxiety;

bipolar disorder; diabetes, type 2; obesity; stroke/CVA; high cholesterol and

hypertension (Tr. 64). The plaintiffs claim was denied initially and upon

reconsideration.

The plaintiff, at her request, then received a de novo hearing

before an administrative law judge. The law judge found that the plaintiff

had severe impairments of diabetes mellitus; polyneuropathy; osteoarthritis;

hypertension; obesity; post-traumatic stress disorder (PTSD); major

depressive disorder and bipolar disorder (Tr. 20). The law judge determined,

with those impairments, the plaintiff had the following residual functional

capacity (Tr. 22):

[She could] perform medium work as defined in

20 CFR 404.1567(c) except she remains able to

perform only unskilled, specific vocational

preparation (SVP) 1 or 2 work involving just

simple, routine, repetitive tasks, no more than

occasional interaction with co-workers, and no

more than occasional changes in work setting.

The law judge concluded that, with this residual functional

capacity, the plaintiff was unable to perform her past relevant work (Tr. 24).

However, based on the testimony of a vocational expert, the law judge

determined that the plaintiff could do other jobs that exist in significant

numbers in the national economy, such as laundry worker, hand packager

and floor worker (Tr. 24-25). Consequently, the law judge found that the

plaintiff was not disabled (Tr. 25). The Appeals Council let the decision of

the law judge stand as the final decision of the Commissioner of Social

Security.

I.

In order to be entitled to Social Security disability benefits, a

claimant must be unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment 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). A “physical or mental

impairment,” under the terms of the Social Security Act, is one “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).

A determination by the Commissioner that a claimant is not

disabled must be upheld if it is supported by substantial evidence. 42 U.S.C.

405(g). 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 Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). Under the substantial evidence test, “findings of fact

made by administrative agencies ... may be reversed ... only when the record

compels a reversal; the mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11" Cir. 2004) (en banc).

It is, moreover, the function of the Commissioner, and not the

courts, to resolve conflicts in the evidence and to assess the credibility of the

witnesses. Grant v. Richardson, 445 F.2d 656 (5" Cir. 1971). Similarly, it

is the responsibility of the Commissioner to draw inferences from the

evidence, and those inferences are not to be overturned if they are supported

by substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990 (5" Cir.

1963).

Therefore, in determining whether the Commissioner’s

decision is supported by substantial evidence, the court is not to reweigh the

evidence, but is limited to determining whether the record as a whole

contains sufficient evidence to permit a reasonable mind to conclude that the

claimant is not disabled. However, the court, in its review, must satisfy itself

that the proper legal standards were applied and legal requirements were met.

Lamb v. Bowen, 847 F.2d 698, 701 □□□ Cir. 1988).

Il.

The plaintiff asserts two challenges to the law judge’s decision

(Doc. 19). The first contention requires reversal because the law judge failed

to evaluate the plaintiff's complaint of side effects caused by diabetes □

medication (id., pp. 5-6).

The plaintiff takes several medications (see, e.g., Tr. 604). She

has uncontrolled diabetes mellitus, for which she injects insulin and also

takes Glipizide, an oral diabetes medication (see id.; Tr. 53). In response to

her attorney’s question whether the plaintiff had side effects from her

medications, they had the following exchange (Tr. 53-54):

A: Yes. I have to take [G]lipizide for the sugar....

Q: Just tell us what side effects you have.

A: And I'll get diarrhea, and then I get

[INDISCERNABLE] you say I’m going to go to

the bathroom and you make it to the bathroom. I

could be sitting here and have diarrhea. So if I

went on the job, it happens to me in front of

everybody.

Q: So you have accidents?

A: Yes. So that’s why I don’t go out in public.

Q: How often do you have accidents?

A: All the time because it’s [INDISCERNABLE]

take the medicine, I have the diarrhea.

Q: Do you have to wear protective garments?

A: Sometimes I wear old-people underwear...

Notably, the plaintiff complained to her doctor that two other oral diabetes

medications (Metformin and Glucovance) caused diarrhea (see Tr. 603, 604,

612, 613, 619). Her physician had most recently prescribed Glipizide in

place of the Glucovance (see Tr. 33, 603-04).

The law judge did not mention the plaintiff's complaint of this

medication side effect, much less evaluate it. The Eleventh Circuit, citing

Cowart v. Schweiker, 662 F.2d 731, 737 (11 Cir. 1981), stated that the law

judge has a duty to investigate the possible side effects of medications taken

by a claimant. McDevitt v. Commissioner of Social Security, 241 Fed.

Appx. 615, 619 (11" Cir. 2007). Thus, the court has recognized that “[i]t is

conceivable that the side effects of medication could render a claimant

disabled or at least contribute to a disability.” Cowart v. Schweiker, supra,

662 F.2d at 737. Moreover, the Social Security regulations direct the law

judge to consider the side effects of medication. 20 C.F.R.

404.1529(c)(3)(iv). Consequently, the failure to conduct an evaluation of

possible side effects of medication was determined to be reversible error in

McDevitt v. Commissioner of Social Security, supra.

The same error is present here because the law judge failed to

evaluate the plaintiff's testimony that she has fecal incontinence as a side

effect of her diabetes medication. Notably, I have found reversible error in

several cases due to the failure to evaluate allegations of side effects of

medications. See Faircloth v. Astrue, No. 8:12-cv-107-T-TGW, 2013 WL

461799 at **2-3; Lowman v. Astrue, No. 8:08-cv-1214-T-TGW, 2009 WL

2134920 at *3 (citing cases). Significantly, the law judge did not even

mention the plaintiff's testimony regarding diarrhea in his summary of the

plaintiff's alleged symptoms and impairments (see Tr. 23). In all events, no

reason was given for discounting the plaintiff's testimony about this

medication side effect.

The Commissioner does not dispute that the law judge failed to

address the alleged medication side effect. Rather, he argues that the law

judge gave an adequate explanation for discounting the plaintiffs subjective

complaints and that he “is not required to discuss every piece of evidence in

his decision” (Doc. 21, p. 11, citing Dyer v. Barnhart, 395 F.3d 1206, 1211

(11" Cir. 2005)).

This contention might have some force if the law judge had

acknowledged the plaintiff's complaint of a medication side effect, but he

did not. Further, there is nothing in the credibility determination, or

anywhere else in the decision, which indicates the law judge considered that

complaint (see Tr. 23). See Brown v. Commissioner of Social Security, 442

Fed. Appx. 507, 513 (11" Cir. 2011) (“the implication [must be] obvious to

the reviewing court”). Thus, the law judge reasoned in his credibility

determination that the plaintiff's allegations of disabling impairments were

inconsistent with her normal physical examination findings, conservative

treatment, non-compliance with medication, and activities such as caring for

her mother and making videos (Tr. 21-23). None of these reasons apply to

the plaintiff's allegation of medication side effects. To the contrary, non-

compliance with medication arguably supports the plaintiff's allegation

because she reported at times that she did not take her diabetes medication

due to side effects. Consequently, from all that appears, the law judge simply

overlooked the plaintiffs allegation of this medication side effect.

Furthermore, although “[a]n ALJ is not required to refer

specifically to each piece of evidence in the record ... [he] must sufficiently

explain the weight given to “obviously probative exhibits.” Cooper v.

Commissioner of Social Security, 521 Fed. Appx. 803, 808 (11" Cir. 2013),

quoting Cowart v. Schweiker, supra, 662 F.2d at 735. As discussed, there is

no indication in the decision that the law judge considered the plaintiff's

medication side effect testimony, and this deficiency was critical because, if

her testimony were accepted that her medication causes fecal incontinence,

it could affect the plaintiff's ability to work. The law judge therefore had a

duty to make an express credibility determination regarding that testimony.

See Holt v. Sullivan, 921 F.2d 1221, 1223 (11" Cir. 1991) (law judge must

state explicit and adequate reasons for discounting subjective symptoms).

Accordingly, remand of this matter is warranted.

This result is unsatisfying. The plaintiff’s contention is in the

nature of a “gotcha” argument; there was no convincing showing of a

disabling condition. Nevertheless, well-settled principles of the Eleventh

Circuit require the law judge to evaluate side-effects of medication. For

whatever reason, the law judge did not demonstrate that he did that here.

The plaintiff's second argument is that the law judge’s decision

“did not consider work activities and environments the claimant should

avoid because of her medical conditions and the medications she was taking”

(see Doc. 19, p. 6). However, in light of the remand, this issue is

appropriately pretermitted, particularly because, as the plaintiff concedes

(id.), she did not develop that position at the administrative hearing.

It is, therefore, upon consideration

ORDERED:

That the Commissioner’s decision is hereby REVERSED and

the matter remanded for further proceedings. The Clerk shall enter judgment

in accordance with this Order and CLOSE this case.

DONE and ORDERED at Tampa, Florida, this / s® day of

May, 2020.

THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE

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