Sostre v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSE A. SOSTRE,

Plaintiff,

v. Case No. 8:22-cv-332-MAP

COMMISSIONER OF SOCIAL SECURITY

Defendant.

/

ORDER

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

of disability and disability insurance benefits (DIB).1 Plaintiff argues that the

Administrative Law Judge (ALJ) committed reversible error by failing to issue a

proper comparison point decision (CPD) and failing to develop the record fully and

fairly. As the ALJ’s decision was not based on substantial evidence and failed to

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

remanded.

I. Background

Plaintiff, who was born in 1978, claimed disability beginning October 28, 2011

(Tr. 224). Given his alleged disability, Plaintiff filed an application for a period of

disability and DIB in August 2012 (Tr. 224-25). Upon consideration of Plaintiff’s

1 The parties have consented to my jurisdiction. See 28 U.S.C. § 636(c).

application, the Commissioner issued an administrative decision on April 23, 2015,

finding Plaintiff disabled as of January 17, 2013 (Tr. 83-100). Subsequently, on April

10, 2019, the Commissioner determined that Plaintiff was no longer disabled (Tr. 118,

120-26). Plaintiff appealed that decision and proceeded through the administrative

process, during which the decision to cease benefits was upheld (Tr. 119, 130-54).

Plaintiff then requested an administrative hearing (Tr. 155). Per Plaintiff’s request, the

ALJ held a telephonic hearing at which Plaintiff appeared and testified (Tr. 44-58).

Following the hearing, the ALJ issued an unfavorable decision finding that Plaintiff

had achieved medical improvement and could perform a significant number of jobs

available in the national economy, such that Plaintiff’s disability ended on April 10,

2019 (Tr. 18-42). Accordingly, the ALJ denied Plaintiff’s claim for continuing benefits

(Tr. 37).

In rendering the administrative decision, the ALJ noted that, at the time of the

CPD, Plaintiff had the following medically determinable impairments: lumbago,

multilevel disc herniation, and major depressive disorder (Tr. 26). Those impairments

were found to result in a residual functional capacity (RFC) to perform sedentary work

with the following exceptions: lifting and carrying 20 pounds occasionally and 10

pounds frequently; sitting for five hours in an eight-hour workday; standing and/or

walking five hours in an eight-hour workday; frequently climbing stairs and ramps;

occasionally climbing ladders, ropes, or scaffolds; frequently balancing; occasionally

stooping, kneeling, crouching, and crawling; and limited to simple and repetitive tasks

(Tr. 26).

The ALJ then concluded that, through the date of the decision, Plaintiff had not

engaged in substantial gainful activity (SGA) nor developed any additional

impairments after the CPD through the date of the decision, meaning Plaintiff

continued to have the same impairments that he had at the time of the CPD (Tr. 26).

Next, the ALJ found that, since April 10, 2019, Plaintiff had not had an impairments

or combination of impairments which met or medically equaled the severity of an

impairment listed in 20 C.F.R. Par 404, Subpart P, Appendix 1 (Tr. 27). Notably, the

ALJ determined that medical improvement occurred on April 10, 2019 (Tr. 29). Based

on such medical improvement, the ALJ found that, since April 10, 2019, Plaintiff

retained the RFC to perform light work, except that he could lift and carry up to 20

pounds occasionally and 10 pounds frequently; could stand or walk for approximately

six hours in an eight-hour workday and sit for approximately six hours in an eight-

hour workday with normal and customary breaks; could occasionally climb ladders,

ropes, and scaffolds; and could frequently climb ramps and stairs, balance, stoop,

crouch, kneel, and crawl (Tr. 30).

According to the ALJ, Plaintiff’s medical improvement was related to the ability

to work because it resulted in an increase in Plaintiff’s RFC (Tr. 35). The ALJ then

determined that Plaintiff continued to have a severe impairment or combination of

impairments since April 10, 2019; had no past relevant work; was a younger individual

on April 10, 2019, at 40 years old; had a limited education, as Plaintiff attended school

through the eighth grade in Puerto Rico but did not obtain a high school diploma; and

had no transferable job skills (Tr. 35-36, 51). Given Plaintiff’s background and RFC,

a vocational expert (VE) testified that Plaintiff could perform jobs existing in

significant numbers in the national economy, such as a small parts assembler, a

laundry folder, and an inspector and hand packager (Tr. 36-37, 56-57). Accordingly,

based on Plaintiff’s age, education, work experience, RFC, and the testimony of the

VE, the ALJ concluded that Plaintiff’s disability ended on April 10, 2019, and that

Plaintiff had not become disabled again since that date (Tr. 37). Given the ALJ’s

finding, Plaintiff requested review from the Appeals Council, which the Appeals

Council denied (Tr. 5-14, 218-20). 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).

II. Standard of Review

The Social Security Administration (SSA), 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. The regulations also establish a sequential evaluation process

to determine whether a claimant’s disability continues or ends. 20 C.F.R. §

404.1594(f). Under this process, the Commissioner must determine, in sequence, the

following:

(1) Whether the claimant is engaging in SGA.2 If the claimant is

engaging in SGA, the Commissioner will find disability to have ended;

(2) If the claimant is not engaging in SGA, whether the claimant has an

impairment or combination of impairments which meets or equals the

2 SGA means work that (1) involves doing significant and productive physical or mental

duties; and (2) is done (or intended) for pay or profit. 20 C.F.R. § 404.1510.

severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. If the claimant has such impairment, the claimant’s

disability will be found to continue;

(3) If the claimant does not have such impairment or combination of

impairments, whether there has been medical improvement,3 as shown

by a decrease in medical severity. If there has been medical

improvement, the analysis proceeds to step four. If there has been no

decrease in medical severity, no medical improvement has occurred, and

the analysis proceeds to step five;

(4) If the claimant experienced medical improvement, whether such

medical improvement is related to the claimant’s ability to perform work,

i.e., whether or not there has been an increase in the RFC based on the

impairment(s) that was present at the time of the most recent favorable

medical determination. If medical improvement is not related to the

claimant’s ability to work, the analysis proceeds to step five, but, if

medical improvement is related to the ability to work, the analysis

proceeds to step six;

(5) If the Commissioner found at step three that no medical improvement

occurred or if the Commissioner found at step four that medical

improvement is not related to the claimant’s ability to work, whether any

of the exceptions in 20 C.F.R. § 404.1594(d) and (e) apply. If none apply,

the disability will be found to continue. If one of the first group of

exceptions to medical improvement applies, the analysis proceeds to step

six. If an exception from the second group of exceptions to medical

improvement applies, the claimant’s disability will be found to have

ended. The second group of exceptions to medical improvement may be

considered at any point in the process;

(6) If medical improvement is shown to be related to the claimant’s

ability to do work or if one of the first group of exceptions to medical

improvement applies, the Commissioner will determine whether all the

claimant’s current impairments in combination are severe. The

Commissioner will consider all the claimant’s current impairments and

the impact of the combination of those impairments on the claimant’s

ability to function. If the RFC in step four shows significant limitation

of the claimant’s ability to perform basic work activities, the analysis

3 Medical improvement means any decrease in the medical severity of the claimant’s

impairment(s) which was present at the time of the most recent favorable medical decision

that the claimant was disabled or continued to be disabled. 20 C.F.R. § 404.1594(b)(1).

proceeds to step seven. When the evidence shows that all of the

claimant’s current impairments in combination do not significantly limit

his or her physical or mental abilities to perform basic work activities, the

impairments will not be considered severe in nature, and, if so, the

claimant will no longer be considered to be disabled;

(7) If a severe impairment exists, whether the claimant can perform

SGA. At this step, the Commissioner assesses the RFC based on all of

the claimant’s current impairments and considers whether the claimant

can still do work he or she performed in the past. If he or she can perform

such work, disability will be found to have ended; and

(8) If unable to perform past relevant work, whether the claimant can

perform other work given the RFC and the claimant’s age, education,

and past work experience.4 If the claimant can perform other work, the

Commissioner will find that disability has ended. If the claimant cannot

perform other work, the Commissioner will find that disability continues.

20 C.F.R. § 404.1594(f)(1)-(8).

Essentially, “[a]n ALJ may terminate a claimant’s benefits if there is substantial

evidence that there has been medical improvement in the claimant’s impairments

related to his ability to work, and the claimant is now able to engage in substantial

gainful activity.” Klaes v. Comm’r, Soc. Sec. Admin., 499 F. App’x 895, 896 (11th Cir.

2012) (per curiam) (citations omitted);5 42 U.S.C. § 423(f)(1); see 20 C.F.R. §

4 An exception exists where the evidence in the claimant’s file about his or her past relevant

work is insufficient for the Commissioner to make a finding at step seven about whether the

claimant can perform past relevant work. 20 C.F.R. § 404.1594(f)(9). If the Commissioner

finds that the claimant can adjust to other work based solely on his or her age, education, and

RFC, the Commissioner will find that the claimant is no longer disabled, and the

Commissioner will not make a finding about whether the claimant can perform past relevant

work. 20 C.F.R. § 404.1594(f)(9). If the Commissioner finds that the claimant may be

unable to adjust to other work or that 20 C.F.R. § 404.1562 may apply, the Commissioner

will assess the claim under step seven and make a finding about whether the claimant can

perform past relevant work. 20 C.F.R. § 404.1594(f)(9).

5 Unpublished opinions are not considered binding precedent but may be cited as persuasive

authority. 11th Cir. R. 36-2.

404.1594(a). As noted above, medical improvement means any decrease in the

medical severity of the claimant’s impairment(s) which was present at the time of the

most recent favorable medical decision that the claimant was disabled or continued to

be disabled. 20 C.F.R. § 404.1594(b)(1). The conclusion that a decrease in medical

severity exists must be based upon improvements in a claimant’s symptoms, signs, or

laboratory findings associated with the claimant’s impairment(s). 20 C.F.R. §

404.1594(b)(1). To determine medical improvement, therefore, a comparison of prior

and current medical evidence must indicate that improvements occurred in the

symptoms, signs, or laboratory findings associated with the claimant’s impairment(s).

20 C.F.R. § 404.1594(c)(1). Indeed, “a comparison of the original medical evidence

and the new medical evidence is necessary to make a finding of improvement.”

Freeman v. Heckler, 739 F.2d 565, 566 (11th Cir. 1984) (per curiam) (citing Vaughn v.

Heckler, 727 F.2d 1040, 1043 (11th Cir. 1984)). Without such comparison, no adequate

finding of medical improvement can occur. Vaughn, 727 F.2d at 1043. The failure to

make such comparison requires reversal and remand for application of the proper legal

standard. See Klaes, 499 F. App’x at 896 (citing Vaughn and noting that, if the ALJ

fails to evaluate the prior medical evidence and make the comparison to the new

medical evidence, courts must reverse and remand for application of the proper legal

standard); see also Freeman, 739 F.2d at 566.

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). “Substantial evidence is more than a scintilla and

is such relevant evidence as a reasonable person would accept as adequate to support

a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)

(citation and internal quotation marks omitted). While the court reviews the

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

given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th

Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh 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. Mitchell v. Comm’r of Soc. Sec., 771

F.3d 780, 782 (11th Cir. 2014); Winschel, 631 F.3d at 1178 (citations omitted);

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.

Ingram, 496 F.3d at 1260 (citation omitted). 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) (per curiam) (citations omitted).

III. Discussion

A. CPD

Plaintiff first argues that the ALJ erred in determining that Plaintiff achieved

medical improvement as of the comparison point date because the ALJ did not

independently review the medical records upon which the prior ALJ relied, as the ALJ

relied solely on an analysis of such records performed by other individuals (Doc. 15,

at 7-8). Plaintiff contends that the prior ALJ cited to medical records from several

sources (Tr. 95-97), but the prior ALJ failed to append an exhibit list to the CPD, and

such records are not contained in the claim file. According to Plaintiff, the ALJ must

know what evidence existed in the claim file at the time of the prior decision and

cannot simply reweigh the same evidence upon which the prior ALJ relied. Given the

void in the record regarding what evidence the prior ALJ considered and the lack of

independent review of such records by the ALJ, Plaintiff posits that the ALJ did not

properly determine whether Plaintiff achieved medical improvement. In response, the

Commissioner concedes that the record “does not contain treatment evidence from

the [CPD]” but argues that “the ALJ’s determination that Plaintiff experienced

medical improvement is supported by the recent objective evidence of record” (Doc.

20, at 7).

To reiterate, under the regulations, medical improvement involves “any

decrease in the medical severity of impairment(s) present at the time of the most recent

favorable medical decision that [the claimant was] disabled or continued to be disabled

and is determined by a comparison of prior and current medical evidence which must

show that there have been changes (improvement) in the symptoms, signs or

laboratory findings associated with that impairment(s).” 20 C.F.R. § 404.1594(c)(1).

In determining whether medical improvement occurred, therefore, the Commissioner

must compare the medical evidence supporting the most recent final decision finding

the claimant disabled with new medical evidence. Gombash v. Comm’r of Soc. Sec.

Admin., 566 F. App’x 857, 859 (11th Cir. 2014) (citing McAulay v. Heckler, 749 F.2d

1500 (11th Cir. 1985) and 20 C.F.R. § 404.1594(c)(1)). To terminate benefits, the

Commissioner may not rely solely upon new evidence concerning disability but must

also evaluate the evidence upon which the claimant was originally found to be

disabled, with the failure to compare the old and new evidence precluding an adequate

finding of medical improvement. Gombash, 566 F. App’x at 859 (citing Vaughn, 727

F.2d at 1043); Klaes, 499 F. App’x at 896 (“The ALJ must actually compare the

previous and current medical evidence to show that an improvement occurred.”

(internal quotation marks and citation omitted)); McAulay, 749 F.2d at 1500 (stating

that “a comparison of the original medical evidence and the new medical evidence is

necessary to make a finding of improvement”). Indeed, the failure to evaluate the

prior evidence and make such comparison warrants reversal and remand for

application of the proper legal standard. Klaes, 499 F. App’x at 896 (citing Vaughn,

727 F.2d at 1043).

Here, in finding medical improvement, the ALJ referenced three documents

pertaining to the prior medical evidence upon which the CPD was based – (1) the

ALJ’s prior decision; (2) a disability hearing officer’s decision summarizing the prior

evidence; and (3) a continuing disability review (CDR) analysis form prepared by an

agency representative summarizing and comparing the signs, symptoms, and

laboratory findings from the CPD and the current review (Tr. 29-30, 83-100, 138-45,

468-69). Nothing in the record indicates that the ALJ independently endeavored to

review and compare the evidence underlying the CPD with the new medical evidence

to establish that Plaintiff experienced medical improvement. In fact, as the

Commissioner concedes, none of the medical or other evidence underlying the CPD

appear in this record, thus calling into question whether the ALJ could even properly

make the necessary comparison. See Lewis v. Saul, Case No. 8:19-cv-1742-T-TGW,

2020 WL 2989389, at *3 (M.D. Fla. June 3, 2020) (“The law judge’s decision is devoid

of any comparison between the old evidence and the new evidence. As the plaintiff

points out, there were no records exhibited prior to the comparison point decision.

Consequently, it does not appear that the law judge was even in a position to make the

necessary comparison.” (internal quotation marks and internal citation omitted)).

Rather, the ALJ simply relied upon summaries of the evidence underlying the CPD

from the prior ALJ and administrative personnel without any actual review of such

evidence and, notably, omitting reference to much of the evidence relied upon by the

prior ALJ in rendering the CPD. A mere reference to certain evidence underlying the

CPD, without a true comparison of that evidence with the new evidence, does not

establish that Plaintiff achieved medical improvement, however. See, e.g., Lewis v.

Comm’r of Soc. Sec., Case No. 8:21-cv-1763-SPF, 2022 WL 3754905, at *4-5 (M.D. Fla.

Aug. 30, 2022) (“But the ALJ did not compare the pre-CPD evidence to the new

evidence. The ALJ’s reference to the CPD itself and to one item of pre-CPD evidence

(the July 2007 function report) does not add up to a rigorous comparison of the original

medical evidence and the new evidence required to support a finding of medical

improvement.”); Turner v. Saul, Cas No. 8:20-cv-87-CPT, 2021 WL 9098221, at *4

(M.D. Fla. Mar. 31, 2021) (“The ALJ’s mere reference to certain evidence underlying

the CPD in the above passage (or elsewhere in his decision), without a true

comparison, does not establish that the Plaintiff has experienced medical

improvement” (citations omitted)); Lewis, 2020 WL 2989389, at *3 (“The

Commissioner suggests that a sentence in the law judge’s decision is sufficient to

provide a comparison of the prior evidence … That brief summary of information from

the comparison point decision is not sufficiently detailed to permit the rigorous

comparison of the old and new evidence that is required by the Eleventh Circuit.”).

Given the ALJ’s failure to provide a proper comparison of the evidence underlying the

CPD with the new evidence, remand is warranted.

B. Development of the Record

Next, Plaintiff argues that the ALJ failed to develop the record fully and fairly.

Plaintiff points to several factors that he believes created a “heightened duty” on behalf

of the ALJ to ensure that the record was fully and fairly developed and that Plaintiff

received a fair decision (Doc. 15, at 10). Primarily, Plaintiff contends that his age,

limited education, inability to speak English, statements regarding additional records,

and the lack of records or consultative examinations recent to the ALJ’s decision all

support a finding that the ALJ should have employed greater effort in ensuring the

record was fully and fairly developed. Plaintiff additionally asserts that the ALJ’s

reliance upon an opinion from an obstetrician, whose specialization had nothing to do

with Plaintiff’s impairments and who Plaintiff did not have a treating relationship

with, was in error and that the ALJ should have instead ordered an updated

consultative examination to address Plaintiff’s impairments and limitations.

Even though Social Security proceedings are inquisitorial rather than

adversarial in nature, claimants must establish their eligibility for benefits. Ingram,

496 F.3d at 1269; see 20 C.F.R. § 404.1512(a). During the administrative process,

therefore, a claimant must inform the Social Security Administration about or submit

all evidence known to the claimant relating to whether the claimant is blind or

disabled. 20 C.F.R. § 404.1512(a). Though the claimant bears the burden of providing

medical evidence showing she is disabled, the ALJ is charged with developing a full

and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam).

The ALJ maintains this basic obligation to develop a full and fair record without regard

for whether the claimant is represented by counsel. Brown v. Shalala, 44 F.3d 931, 934

(11th Cir. 1995) (citation omitted). When the plaintiff demonstrates that the record

reveals evidentiary gaps which result in unfairness or clear prejudice, remand is

warranted. Id. at 935; see Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir.

2015) (“Remand for further factual development of the record before the ALJ is

appropriate where the record reveals evidentiary gaps which result in unfairness or

clear prejudice” (quotation and citation omitted)); Graham v. Apfel, 129 F.3d 1420,

1423 (11th Cir. 1997) (“However, there must be a showing of prejudice before it is

found that the claimant’s right to due process has been violated to such a degree that

the case must be remanded to the [Commissioner] for further development of the

record” (citation omitted)).

Given my ruling set forth above regarding remand on the first issue, I need not

address Plaintiff’s second argument. In this instance, however, several factors,

including Plaintiff's inability to communicate in English, limited education, and

difficulty obtaining legal counsel due to his age, support Plaintiff's contention that the

ALJ should ensure that the record is developed fully and fairly (see Tr. 46-52).

Accordingly, on remand, the ALJ should implement measures within his or her

authority to ensure that he or she fully and fairly develops the record to the extent

necessary to render a decision supported by substantial evidence.

IV. — Conclusion

For the foregoing reasons, the ALJ failed to apply the correct legal standards,

and the ALJ’s decision is not supported by substantial evidence. 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 27th day of December,

2022.

MARK A. PIZZO

UNITED STATES MAGISTRATE JUDGE

cc: Counsel of Record

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