Larese v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JAMES LARESE,

Plaintiff,

v. Case No.: 2:22-cv-483-KCD

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

ORDER

Plaintiff James Larese sues under 42 U.S.C. § 405(g) to challenge the

Commissioner of Social Security’s decision denying his request for child

insurance benefits. (See Doc. 1.) For the reasons below, the Commissioner’s

decision is reversed and remanded for further administrative proceedings.

I. Background

Larese was born in 1981. As an adult, he applied for and was awarded

supplemental security income (SSI). (Tr. 49.) For those benefits, his onset date

was in 2009, and the Social Security Administration (SSA) determined in 2016

that the benefits would continue. (Tr. 49, 50, 53, 263.) Then, in 2020, Larese

applied for child disability benefits alleging an onset date of June 29, 1999 (just

after he turned 18-years old). (Tr. 62, 165.) Larese claims he could not work

because of depression, anxiety, bipolar disorder, post-traumatic stress

disorder, head trauma, and asthma. (Tr. 186.) Larese alleged difficulty

performing most daily activities. (Tr. 18.)

Child’s insurance benefits are for those whose parents have worked and

earned enough social-security credits and are entitled to benefits. 20 C.F.R. §

404.350. The Social Security Regulations (SSR) provide for the payment of

disabled child’s insurance benefits if the claimant is 18 years old or older and

has a disability that began before attaining age 22. Id. § 404.350(a)(5). Thus,

the relevant period here is June 29, 1999 (alleged onset date) to June 28, 2003

(age 22).

Following a hearing, the ALJ concluded at step two1 that before Larese

turned 22, “there were no medical signs or laboratory findings to substantiate

the existence of a medically determinable impairment.” (Tr. 18.) The ALJ

further found there “is generally no evidence to establish that the claimant has

a medically determinable impairment of a sufficient duration to qualify as

severe under the regulations during the relevant period.” (Tr. 18.) Thus, the

1 An individual claiming disability benefits must prove that he is disabled. Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005). “The Social Security Regulations outline a five-step,

sequential evaluation process used to determine whether a claimant is disabled: (1) whether

the claimant is currently engaged in substantial gainful activity; (2) whether the claimant

has a severe impairment or combination of impairments; (3) whether the impairment meets

or equals the severity of the specified impairments in the Listing of Impairments; (4) based

on a residual functional capacity assessment, whether the claimant can perform any of his

or her past relevant work despite the impairment; and (5) whether there are significant

numbers of jobs in the national economy that the claimant can perform given the claimant’s

RFC, age, education, and work experience.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,

1178 (11th Cir. 2011).

ALJ did not go beyond step two and found that Larese was not disabled. (Tr.

21.) The Commissioner denied further review, and this lawsuit followed.

II. Standard of Review

Review of the Commissioner’s (and, by extension, the ALJ’s) decision

denying benefits is limited to whether substantial evidence supports the

factual findings and whether the correct legal standards were applied. 42

U.S.C. § 405(g); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002). Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,

139 S. Ct. 1148, 1154 (2019). It is more than a mere scintilla but less than a

preponderance. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The

Supreme Court recently explained, “whatever the meaning of substantial in

other contexts, the threshold for such evidentiary sufficiency is not high.”

Biestek, 139 S. Ct. at 1154.

When determining whether the ALJ’s decision is supported by

substantial evidence, the court must view the record as a whole, considering

evidence favorable and unfavorable to the Commissioner. Foote v. Chater, 67

F.3d 1553, 1560 (11th Cir. 1995). But the court may not reweigh the evidence

or substitute its judgment for that of the Commissioner. And even if the

evidence preponderates against the Commissioner’s decision, the reviewing

court must affirm if the decision is supported by substantial evidence.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Finally, “[u]nder

a substantial evidence standard of review, [the claimant] must do more than

point to evidence in the record that supports his position; he must show the

absence of substantial evidence supporting the ALJ’s conclusion.” Sims v.

Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017).

III. Discussion

Larese presents three issues on appeal. First, he claims the ALJ ignored

his arithmetic disorder. (Doc. 14 at 1.) Second, he alleges the ALJ failed to

develop a full and fair record by failing to obtain records from Western Wayne

Physicians. (Id.) And third, he claims the ALJ failed to consider a consultant’s

opinion that he met a listed impairment. (Id. at 2.) Larese’s third argument is

a winner, and thus the Court proceeds directly there.

The ALJ found there were no medical signs or laboratory findings to

support the existence of a medically determinable impairment before Larese

turning 22 and that “there is generally no evidence to establish that the

claimant has a medically determinable impairment of a sufficient duration to

qualify as severe under the regulations during the relevant period.” (Tr. 18,

21.) Larese claims this finding directly contradicts an opinion by Thomas T.L.

Tsai, M.D., in a form completed during the 2016 continuing disability review

(“2016 form”). (Tr. 50, 53.) Dr. Tsai signed the form as a “physician or medical

specialist.” (Tr. 50.) One of Dr. Tsai’s findings was that Larese is “incapable”

of working based on Listing 12.05A. (Tr. 50.) Dr. Tsai also noted on the 2016

form: “See PRT1 (MIRS) in DDE dated 2016-06-16.” (Tr. 50.) The acronym

“PRT” stands for “psychiatric review technique” used “to evaluate mental

disorders for persons under age 18 when using Part A of the Listing of

Impairments.” POMS DI 28084.005.2 The 2016 form was not mentioned by the

ALJ in his decision, but the document is listed as an exhibit. (Tr. 22.) There is

also no discussion of the PRT completed for the 2016 review.

Meeting the requirements of Listing 12.05A requires an intellectual

disorder with three conditions that must be satisfied:

1. Significantly subaverage general intellectual functioning evident in

your cognitive inability to function at a level required to participate in

standardized testing of intellectual functioning; and

2. Significant deficits in adaptive functioning currently manifested by

your dependence upon others for personal needs (for example, toileting,

eating, dressing, or bathing); and

3. The evidence about your current intellectual and adaptive functioning

and about the history of your disorder demonstrates or supports the

conclusion that the disorder began prior to your attainment of age 22.

20 C.F.R. Part 404, Subpt. P, App. 1, §12.05A. Larese focuses on the third

requirement, arguing that the ALJ’s conclusion that he did not suffer from any

medically determinable impairment before age 22 contradicts Dr. Tsai’s

2 See https://secure.ssa.gov/poms.nsf/lnx/0424583005. The SSA’s Program Operations

Manual System (POMS) contains “publicly available operating instructions for processing

Social Security claims.” Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Est. of

Keffeler, 537 U.S. 371, 385 (2003). The POMS may be considered persuasive even though it

does not have the force of law. Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003).

finding. (Tr. 18.) Larese further asserts that given Dr. Tsai’s finding, the ALJ

had a duty to develop the record to obtain the evidence from the 2016

continuous disability review which led to Dr. Tsai’s opinion. (Doc. 14 at 16-17.)

The Government responds that an opinion on an issue that is dispositive

of a case—such as whether a claimant meets the severity of any impairment

in the regulatory listings, 20 C.F.R. Part 404, Subpart P, Appendix 1—is not a

medical opinion because it is an opinion on an issue reserved to the

Commissioner. 20 C.F.R. § 404.1527(d)(2). The SSA “will not give any special

significance to the source of an opinion on issues reserved to the

Commissioner.” Id. § 404.1527(d)(3). The Government also argues that the ALJ

was not required to obtain evidence from the 2016 continuing disability review.

(Doc. 17 at 12.) In the Government’s view, the 2016 form is not evidence in this

case and does not affect the ALJ’s decision here. (Doc. 17 at 12.)

The problem with the Government’s argument is that the 2016 form was

exhibited as evidence to the ALJ’s decision and included in the record before

the Court here. (Tr. 22.) Thus, the Government’s argument that it is not

evidence in this case isn’t accurate.

It isn’t clear why the 2016 form is in the record, because, according to the

Government, it is unnecessary to the ALJ’s decision. And no one explains why

the form was included, nor convincingly explains why the Court should turn a

blind eye to its contents. The Government cites Hunter v. Soc. Sec. Admin.,

Comm'r, 808 F.3d 818 (11th Cir. 2015) when arguing that the 2016 claim file

is not evidence in this case. (Doc. 17 at 12.) But in Hunter, the plaintiff argued

that a favorable administrative decision was new and material evidence that

the ALJ should have considered when issuing an earlier unfavorable decision.

Id. at 821-22. The court found that the later favorable decision was not

evidence for purposes of § 405(g) and that the mere existence of a later

favorable decision by one ALJ does not undermine the validity of another ALJ’s

earlier conclusion. Id. at 822. With that explanation, it is easy to see that

Hunter is simply based on a different set of circumstances than those presented

here.

Medical opinions and prior administrative findings are two categories of

evidence the Commissioner considers in making disability determinations. See

20 C.F.R. § 404.1513(a). The regulations define “medical opinion” as “a

statement from a medical source about what [a claimant] can still do despite

[his or her] impairment(s) and whether [he or she] ha[s] one or more

impairment-related limitations or restrictions” in several areas. 20 C.F.R. §

404.1513(a)(2). “A prior administrative medical finding is a finding, other than

the ultimate determination about whether [a claimant is] disabled, about a

medical issue made by [the SSA’s] Federal and State agency medical and

psychological consultants at a prior level of review … in [the claimant’s]

current claim based on their review of the evidence in [the] case record … such

as: … (iii) [s]tatements about whether your impairment(s) meets or medically

equals any listing[.]” Id. § 404.1513(a)(5). Based on these definitions, Dr. Tsai’s

opinion qualifies as a prior administrative medical finding.

The Commissioner “will not defer or give any specific evidentiary weight,

including controlling weight, to any medical opinion(s) or prior administrative

medical finding(s), including those from [the claimant’s] medical sources.” 20

C.F.R. § 404.1520c(a). Yet the Commissioner “will articulate in his

determination or decision how persuasive he find[s] all of the medical opinions

and all of the prior administrative medical findings in [a claimant’s] case

record.” Id. § 404.1520c(b). “When a medical source provides one or more

medical opinions or prior administrative medical findings, [the Commissioner]

will consider those medical opinions or prior administrative medical findings

from that medical source together using [the following] factors[:]

supportability, consistency, relationship with the claimant, specialization, and

other factors.” Id. § 404.1520c(a)-(c).

Here, the ALJ did not consider the prior administrative medical findings

of Dr. Tsai in accordance with § 404.1520c. And though there is “no rigid

requirement” that an ALJ “specifically refer to every piece of evidence in his

decision,” a reviewing court must still be able to conclude that he “considered

[the claimant’s] medical condition as a whole.” Dyer, 395 F.3d at 1211. Nothing

in the ALJ’s decision convinces the Court that the ALJ considered (and

rejected) the determination that Larese’s condition met Listing 12.05A as Dr.

Tsai found.

Granted, as the Government argues, a statement on a form stating that

Larese meets Listing 12.05A doesn’t require remand because whether a

claimant meets or equals a listing is an issue reserved to the Commissioner.

(Doc. 17 at 13.) But Larese has a compelling response to that—he argues that

the ALJ had a duty to develop the record and obtain the evidence from the 2009

SSI application and the 2016 continuous disability review which led to Dr.

Tsai’s opinion. (Doc. 14 at 16-17.) The Court agrees.

The ALJ has a duty to develop a full and fair record, even if the claimant

is represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.

1981). If an ALJ fails to fulfill his duty to fully develop the record and “the

record reveals evidentiary gaps which result in unfairness or clear prejudice,”

remand is warranted. Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995).

Demonstrating prejudice “at least requires a showing that the ALJ did not

have all of the relevant evidence before him in the record . . . or that the ALJ

did not consider all of the evidence in the record in reaching his decision.”

Coven v. Comm’r of Soc. Sec., 384 F. App’x 949, 951 (11th Cir. 2010).

There’s a lot to be desired after review of the 2016 form, as it’s clear there

are medical records reviewed by the consultant to conclude that Larese

satisfied Listing 12.05A. Thus, there is an evidentiary gap in the record, and

Larese has shown prejudice. Those records could help Larese’s case,

particularly since they are directly relevant to the period here and because the

ALJ denied disability because “there is generally no evidence to establish that

the claimant has a medically determinable impairment of a sufficient duration

to qualify as severe under the regulations during the relevant period.” (Tr. 18.)

Thus, the Court cannot find, considering the record as a whole, that substantial

evidence supports the ALJ’s decision and will remand this case for further

administrative proceedings.

Larese’s remaining arguments focus on his arithmetic disorder and

failure to obtain medical records. These issues need not be addressed because

the case is being remanded to the Commissioner for further consideration. See,

e.g., Demenech v. Sec'y of the Dep't of Health & Hum. Servs., 913 F.2d 882, 884

(11th Cir. 1990); Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986)

(stating that it is unnecessary to review other issues raised on appeal where

remand is required and such issues will likely be reconsidered in the later

proceedings); Bekiempis v. Colvin, No. 8:16-cv-192-T-27TGW, 2017 WL

459198, at *5 (M.D. Fla. Jan. 17, 2017) (finding it appropriate to omit

discussion of two other contentions raised by claimant in light of a remand,

which would generate a new decision).

Accordingly, it is now ORDERED:

1. The decision of the Commissioner is REVERSED and

REMANDED under sentence four of 42 U.S.C. § 405(g) for the Commissioner

to address the issue outlined above and take any other action deemed

necessary.

2. The Clerk is directed to enter judgment for Larese and against the

Commissioner and close the file.

ORDERED in Fort Myers, Florida this July 7, 2023.

Ghia

Ke eC. Dudek

United States Magistrate Judge

Copies: All Parties of Record

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