PREAST v. SAUL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DAVID SCOTT PREAST,

Plaintiff,

v. Case No. 3:18cv319-HTC

NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

Defendant.

______________________________/

MEMORANDUM ORDER

This matter is before the Court pursuant to 42 U.S.C. § 405(g) for review of a

final determination of the Commissioner of Social Security (“Commissioner”)

denying David Scott Preast’s (“Preast”) application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34. The

parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

636(c) and Federal Rule of Civil Procedure 73 for all proceedings in the case,

including entry of final judgment. Upon review of the record, the Court finds that

the decision of the Commissioner should be reversed, and this matter remanded to

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

I. Statement of the Issues

Preast raises three issues before this Court: (1) the ALJ erred in not fully

developing the record; (2) the Appeals Council’s reasons for according “no weight”

to the disability determination of the Florida Department of Retirement Services is

not supported by substantial evidence; (3) the Appeals Council’s failure to consider

additional evidence from Preast’s treating physicians is not supported by substantial

evidence.

II. Procedural History

On September 15, 2014, Preast filed a Title II application for disability

insurance benefits, alleging disability beginning March 24, 2014. Tr. 238-66.1 A

hearing before the ALJ was held June 3, 2016, at which a vocational expert testified

and at which Preast appeared without representation. Tr. 112-52. The ALJ issued

an opinion on November 2, 2016, finding that Preast was not disabled. ECF Doc 8-

2 at 16. The Appeals Council accepted review of the decision, and allowed Preast,

then represented by counsel, to submit the following additional evidence:2

 Treatment notes of Dr. Zielinski dated 11/18/2014 to 6/24/2016

(Tr. 58-85);

 Treatment notes of Dr. Zielinski dated 1/3/2017 to 7/18/2017 (Tr.

45-57);

1 The administrative record filed by the Commissioner consists of 12 volumes (ECF Docs. 8-2

through 8-12) and has 626 consecutively-numbered pages. References to the record will be by

“T.,” for transcript, followed by the page number.

2 Counsel for Preast also submitted documentation relating to student loan forgiveness, Tr. 4, but

that evidence is not germane to this case.

 Treatment notes of Dr. Le dated 2/5/2015 to 10/28/2016 (Tr. 89-

111)

 Treatment notes of Dr. Le dated 2/3/2017 (Tr. 86-88)

Tr. 4-5.3

The Appeals Council issued a decision denying benefits on January 9, 2018.

Tr. 4-8. The Appeals Council’s decision is the final decision of the Secretary. See

Keeton v. Department of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir.

1994).

Preast filed the instant action seeking judicial review under 42

U.S.C. § 405(g) on February 28, 2018. ECF Doc. 1. The Commissioner filed an

answer with the transcript and administrative record. ECF Doc. 8. Preast filed a

memorandum in support of his complaint, ECF Doc. 18, and the Commissioner filed

a memorandum in support of the Commissioner’s decision. ECF Doc. 19. Preast

also filed a reply to the Commissioner’s memorandum. ECF Doc. 22. The matter

is thus ripe for review.

III. Factual Background

A. The hearing testimony

At the beginning of the hearing the ALJ advised Preast he had “the right to be

represented by an attorney or non-attorney representative who can obtain and submit

3 Preast also submitted a letter from Florida Department of Management Services, dated 12/23/15

(which was duplicative of evidence submitted to the ALJ).

medical records, explain medical terms, make requests, protect rights or just help

you to present the evidence in a light most favorable to your case.” Tr. 115. The

ALJ also advised that he would grant one continuance to allow Preast to obtain

counsel if he desired. Preast understood this right but wanted to “go ahead and

proceed.” Id.

Preast testified he was 56 years old and his past relevant work was as a school

principal and teacher. Tr. 125-26. He has a bachelor’s and a master’s degree and

was a principal for four years and an assistant principal for five years. Id. at 16. He

has also worked as a teacher of biology, marine science and environmental science.

Id. Preast, who was 5’9” and weighed 178 pounds on December 1, 2015, Tr. 114,

had recently lost 125 pounds through bariatric surgery. Tr. 126. He explained he

had the surgery to keep working and to help or eliminate disc problems in his back,

asthma, blood pressure/diabetes, and pain from a benign tumor in his femur. Tr.

126-27.

Preast discussed his asthma, stating that although he was successfully treated

for it in the 1990s, he is on the same levels of steroids, inhalers and compressor

nebulizers but they are “not working like they used to” and he is still getting all the

side effects. Tr. 127. He testified that he suffers shortness of breath and “it’s just

the asthma comes forward too far” to cut back on his medications to alleviate the

side effects. Id.

Preast testified he could only sit or stand for about 15 to 20 minutes due to

pain radiating down his right leg. Tr. 128. He complained that “it’s the nerve, that

burn that goes down just past your knee.” Walking around “slackens it to a certain

point and then that’s when I need to ... lay down.” Tr. 129. Preast stated he could

stand for 20 to 25 minutes before experiencing “burning pain” and numbness and

would have to sit down. Id.

Preast also complained of headaches, which testimony took up the bulk of the

hearing. Tr. 130-22. He testified he had headaches that felt like “broken glass” and

which caused him to not be able to see out of his right eye. He stated his doctors

told him his headaches are tied to his blood pressure and that when he has a

headache, his systolic pressure was “usually up around 190” and had gotten above

200. Preast complained that “I can actually see my heartbeat in my eye” when he is

having one of these headaches. Tr. at 130. He testified they happen “every other

day or it could be two days in a row.” Tr. 131. He deals with the headaches by

moving into a dark room, “laying down at an angle”, and letting the medications

take effect. Id. When asked about his daily activities, Preast complained that “a lot

of times I just go lay down if the headache starts, just I cannot function with these

headaches because I can’t see and, honestly, it’s just extremely painful.” Tr. at 134.

Preast testified that he sees Dr. Le “at least every three months” but can also

communicate his blood pressure to Dr. Le by email between those visits. Tr. 133.

He testified he also sees Dr. Zielinski and that Dr. Le had to make sure the

medications prescribed by the two of them did not conflict. Id.

Preast also testified about his daily activities and limitations. Preast stated he

used to help with meals, vacuuming and laundry but stated, “I do very, very little of

that now.” Tr. 135. He testified he occasionally drove to the store or went with his

wife but that he sometimes simply stayed in the car because the walking was too

difficult for him. Tr. 135-36. Preast stated the heaviest thing he could lift was a

seven-pound bag of dog food or a gallon jug of liquid. Tr. 136-37. Preast’s wife

testified at the hearing as well, but her testimony simply reiterated Preast’s testimony

and added that he also suffered from acid reflux. Tr. 146-47.

The ALJ also solicited testimony from a vocational expert regarding two

hypotheticals. The first was as follows:

[A]ssume an individual who is the same age, with the same education

and the same past work experience as the claimant who is limited to the

light exertional level. He can do no climbing of ladders, ropes or

scaffolding and he can occasionally climb stairs. He can occasionally

stoop or crouch. He would need to avoid concentrated exposure to

extreme heat or to extreme cold, avoid concentrated exposure to high

humidity. He would need to avoid concentrated exposure to dust,

fumes and gases and also avoid concentrated exposure hazards in the

workplace. With those limitations, would the individual be able to

perform his past work?

Tr. 149-50. The vocational expert stated such an individual could perform his past

relevant work as a principal and teacher. The ALJ then added the following

restrictions to the hypothetical:

Now if the individual, though, was limited to basically the sedentary

lifting level, but could sit for two hours a day and stand and walk for

two hours a day; he would – he may need to lie down for some periods

of the day after those four hours, would there be any work that the

individual could perform?

Tr. 150. The vocational expert answered in the negative. Id.

B. The Treating Physicians

The ALJ attached eighteen (18) exhibits containing medical records to the

hearing decision. These records include treatment and progress notes as well as

medical source statements or opinions. Additionally, the records are from January

2009 to November 2014. Only those records which are relevant to the issues on

appeal are discussed below.

1. Dr. Le:

Preast began receiving treatment from Dr. Le, a cardiologist, at Sacred Heart

Medical Group in January 2013 primarily for high blood pressure and resulting

headaches. Tr. 386-422, 595-615, 621, 622-26. In January 2013, Preast reported

headaches usually frontal, right side, with occasional pounding and nausea, over last

3 months progressively getting worse over last six weeks. Tr. 420. He had a CT

scan of the brain due to “chronic intermittent headaches” that showed “no infections,

no masses, aneurysms, etc.” Tr. 418. He continued to report headaches so severe in

March 2013 that he could feel and see his heartbeat. Tr. 398. In May 2013, his

headaches were occurring daily. Tr. 396. In January 2014, he reported to Dr. Le

that his headaches are “still present but have improved since last medication

change.” Tr. 395. Dr. Le also treated him for high blood pressure and in August

2013, he reported that his blood pressure had been as high as 170/100s, with

palpitations. Tr. 392.

In January and February 2014, Dr. Lee opined that Preast was a candidate for

bariatric surgery due to his obesity. Tr. 388-91, 413. In June 2014, following his

Laparoscopic Vertical Sleeve Gastrectomy surgery, Preast’s diagnoses included

obesity, hypertensive disorder, sleep apnea, kidney stone, hypercholesterolemia,

gastroesophageal reflux disease, asthma, body mass index 40+ severely obese. Tr.

512, 515-16, 535, 542, 562. As of two months after his surgery, on August 14, 2014,

Preast had lost 70 pounds and resolved his morbid obesity. Tr. 594. As of November

18, 2014, Preast had lost 100 pounds since his surgery, but was experiencing

increased fatigue. Tr. 598.

On April of 2015, Dr. Le checked “Yes” on a form that asked if Preast had a:

physical or mental impairment that (a) prevents [him] from engaging in

any substantial gainful activity, in any field of work, and (b) can be

expected to result in death, or has lasted for a continuous period of not

less than 60 months, or can be expected to last for a continuous period

of not less than 60 months.

Tr. 614. The form was for Preast’s disability retirement application to the Florida

Department of Retirement Services (“FDRS”). Dr. Le handwrote in section 3 of that

form that Preast was limited in sitting, standing, walking, or lifting because he “has

headaches, visual disturbances, nausea and has to lie down frequently.” Id. He also

had “limitations with continuous work.” Id. In a letter dated December 3, 2015, Dr.

Le wrote that Preast was under his care on June 30, 2014 and “[h]is condition at that

time and today demonstrate ‘[s]evere limitations of functional capacity; permanently

and totally disabled from gainful employment.’” Tr. 616, 621.

Dr. Le also completed a form for the FDRS dated November 24, 2015,

indicating that he first treated Preast in 2013 and his most recent visit was October

9, 2015; his primary condition was severe hypertension and his secondary conditions

were “severe headaches [and] nausea from severe [hypertension] causing visual

disturbance.” Tr. 619. Dr. Le further opined that the restrictions placed on Preast’s

activities included a need to “lie down frequently.” Id.

In a physical capacities assessment dated May 20, 2016, Dr. Le opined that

Preast could sit for two hours in a 8-hour workday on a sustained basis; stand and/or

walk for two hours in a 8-hour workday; never lift any weight on a sustained basis;

could not use his feet for repetitive movements or pushing and pulling of leg controls

on a sustained basis; required complete freedom to rest frequently without

restrictions; and it was necessary for him to lie down for substantial periods of time

during the day. Tr. 622-23.

In a questionnaire, Dr. Le further opined that Preast’s impairments were

hypertension, palpitations, and headaches. Tr. 624. He cited significant objective

and clinical findings of “[b]lood pressure still not well controlled despite maximum

medical therapy,” with the systolic still in the 160's to 170's and the diastolic in the

90-100's, requiring medication changes. Id. According to Dr. Le, Preast’s most

frequent side effects were GI upset and hypotension as well as hypo/hyperkesemia

from spirolactone and HZTZ. Id.

Dr. Le also opined that Preast’s pain was “severe,” and that his complaints of

headache, nausea, and visual disturbance were consistent with his findings of

uncontrolled hypertension and were credible. Tr. 624-25. He also opined that Preast

was not able to perform sedentary or light work on a sustained basis. Tr. 625- 26.

Dr. Le listed June 30, 2014, as the date Preast’s impairments were at the level

indicated. Tr. 626. Finally, Dr. Le reported that Preast had “uncontrolled

[hypertension] despite maximum medical therapy and no secondary cause has been

found.” Id.

2. Dr. Zielinski:

Dr. Zielinski has treated Preast since 2010. Tr. 620. He has seen Preast for

asthma, hypertension and headaches. Id. The only progress note from Dr. Zielinski

contained in the record before the ALJ, however, was dated November 18, 2014. Tr.

598-603. The reason for Preast’s visit was “increased fatigue” and hypertension,

post gastric bypass surgery. Tr. 598. The note indicates Preast was also being seen

for “routine clinical follow-up of headaches”. Id. At that time, Preast’s blood

pressure was 140/86 and his “[b]lood pressure control has been good.” Tr. 598, 600.

His active problem list included acute bronchitis, alopecia, arteriosclerotic heart

disease, asthma, essential hypertension generalized anxiety disorder, obesity, sleep

apnea, asthma. Tr. 598-99. The assessment was asthma, arteriosclerotic heart

disease, fatigue, headache, and essential hypertension and Dr. Zielinski changed his

medication from Butalbutal to Floricet and increased the dosage of alopecia. Tr.

601.

Dr. Zielinski also completed a form for the FDRS, indicating that he first

treated Preast in 2000 and his most recent visit was December 1, 2015; his primary

conditions were chronic asthma, acute hypertension and debilitating headaches. Tr.

620. He further opined that Preast had a “severe limitation of functional capacity,”

was “permanently incapable of any kind of work” and was “totally and permanently

disabled from gainful employment.” Id. On December 11, 2015, Dr. Zielinski

responded to a question from the FDRS stating that the disabling conditions which

prevent Preast from being employed included chronic asthma, generalized anxiety

disorder, primary hypertension, and severe headaches. Tr. 617.

IV. Underlying Decisions Subject to Review

1. The ALJ’s Findings

In his decision, the ALJ found that Preast had the following severe

impairments: “degenerative disc disease of the lumbar spine, mild degenerative joint

disease of the hips, hypertension, coronary artery disease, and asthma.” Tr. 17. In

addition, the ALJ found that Preast had the following non-severe impairments:

obesity, headaches, sleep apnea, hyperlipidemia, and anxiety, as “these conditions

have either been successfully treated, controlled, stabilized, or otherwise do not more

than minimally affect the claimant’s ability to perform basic work activity.” Tr. 18.

The ALJ concluded that Preast retains the residual functional capacity (“RFC”) to

perform light work and can:

occasionally climb stairs but never climb ladders, ropes or scaffolds, he

can occasionally stoop and crouch, and he must avoid concentrated

exposure to extreme heat and cold, high humidity, workplace hazards,

and dust, fumes, and gasses.

Tr. 20.

The ALJ found, however, that Preast’s allegations of severe functional

limitations relating to his impairments, specifically his “shortness of breath,” his

testimony regarding the length of time he could sit, stand and walk, and his testimony

that his “hypertension medication causes dizziness and headaches,” are “not entirely

consistent with the medical evidence.” Tr. 22. The basis of the ALJ’s credibility

assessment was that Preast’s assertions “are not consistent with medical records

showing no indication that he has been treated for any of his alleged impairments

since November 2014, at which time he was noted as having a normal gait and

station as well as stable hypertension.” Id.

The ALJ also discounted the opinions of Preast’s treating physicians, Drs.

Zielinski and Le. He compared those opinions – dated November and December

2015 and May 2016 -- to the physicians’ progress notes and found that “Dr. Zielinksi

contradicted his own findings” and “Dr. Le’s opinion is not supported by any

medical evidence.” Tr. 22. Thus, the ALJ assigned “little weight” to both treating

physicians’ opinions.

In contrast, the ALJ gave great weight to the opinions of non-examining state

agency consultants. Jessica Anderton, Psy.D., reviewed the evidence of record on

November 10, 2014, and opined that Mr. Preast’s anxiety disorder was not severe as

it resulted in no restriction of daily activities or social functioning; mild difficulties

in maintaining concentration, persistence or pace; and no episodes of

decompensation. Tr. 158-59. Jill Rowan, Ph.D., affirmed these findings on

reconsideration on January 23, 2015. Tr. 171-72. Debra Troiano, M.D., opined on

reconsideration on February 4, 2015, that Preast had severe impairments of essential

hypertension, ischemic heart disease, obesity, and asthma. Tr. 171. She opined that

Mr. Preast could occasionally lift 20 pounds and frequently lift 10 pounds;

stand/walk for 6 hours in an 8-hour workday and sit for 6 hours in an 8-hour

workday; could occasionally climb ramps/stairs and never climb ladders/ropes,

scaffolds; could occasionally crouch; and should avoid concentrated exposure to: (1)

extreme cold; (2) extreme heat, (3) humidity; (4) fumes, odors, dusts, gases, poor

ventilation, etc; and (5) hazards. Tr. 173-75.

The ALJ therefore found that Preast’s residual functional capacity is as

described in the first hypothetical given to the vocational expert during the hearing.

The ALJ then relied upon the answer of the vocational expert to that question and

found that Preast is able to perform his past relevant work as a teacher and is

therefore not disabled. Tr. 22-23.

2. The Appeals Council’s Decisions

The Appeals Council granted Preast’s request to review the ALJ’s decision.

Tr. 228. In its Notice of Action, the Appeals Council specifically stated that an

“error of law” had occurred. Id. The Appeals Council further stated in its decision

that “[t]he purpose of this corrective unfavorable decision is primarily to

acknowledge and consider the decision of the Florida Department of Retirement

Services, dated December 23, 2015, approving the claimant for ‘regular disability

retirement benefits.’” Tr. 5. The Appeals Council specifically considered the FDRS

decision but gave it no weight because of “its lack of reference to any medical

evidence and lack of any indicated author or attribution.” Tr. 7.

The Appeals Council also acknowledged that Preast had submitted additional

medical evidence consisting of two groups: treatment notes from visits before the

hearing decision date, and treatment notes from after the hearing decision date. The

Appeals counsel, however, did not consider and exhibit the additional medical

evidence for the period before the date of the ALJ’s written decision, November 2,

2016, because “this additional evidence does not show a reasonable probability that

it would change the outcome of the decision.” Tr. 4. Also, the Appeals Council did

not consider and exhibit the additional medical evidence dated after the date of the

ALJ’s written decision because “it does not affect the decision about whether the

claimant was disabled beginning on or before November 2, 2016.” Tr. 5.

The Appeals Council adopted the ALJ’s “findings and conclusions regarding

whether the claimant is disabled, and to find him not disabled.” Id. Specifically, the

Appeals Council adopted “the conclusions of the hearing decision about the

consistency of the claimant’s statements and other subjective evidence with the

medical and other evidence in the record.” Tr. 6. The Appeals council also adopted

the “little weight” given to the treating physicians’ opinions. Tr. 7. The Appeals

Council concluded its decision by writing separately on why Preast’s anxiety is not

a severe limitation because “our rules have changed recently about how we analyze

the severity of mental impairment and how we explain our analysis.” Tr. 6.

V. Analysis

A. Standards of Review

First, federal courts “review the [Commissioner's] decision with deference to

the factual findings and close scrutiny of the legal conclusions.” Cornelius v.

Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991); accord Martin v. Sullivan, 894 F.2d

1520, 1529 (11th Cir. 1990); Graham v. Bowen, 790 F.2d 1572, 1574–75 (11th Cir.

1986). The Commissioner's factual findings are conclusive if supported by

“substantial evidence,” 42 U.S.C. § 405(g), which is “relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). “Even if the evidence

preponderates against the [Commissioner]'s factual findings, [the Court] must affirm

if the decision reached is supported by substantial evidence.” Martin, 894 F.2d at

1529. Second, federal courts review de novo the Commissioner's conclusions of

law. Id. “The [Commissioner]'s failure to apply the correct law or to provide the

reviewing court with sufficient reasoning for determining that the proper legal

analysis has been conducted mandates reversal.” Ingram v. Comm'r of Soc. Sec.

Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Cornelius, 936 F.2d at 1145–

46.).

B. Application to the Instant Case

As noted above, the decision of the Appeals Council is the final decision of

the Commissioner in this case. For ease of analysis, the Court begins by considering

Preast’s third issue, whether the Appeals Council committed legal error by refusing

to consider and exhibit the additional medical evidence.

1. Refusal of the Appeals Council to Consider and Exhibit the

Additional Medical Evidence

As set forth above, Preast submitted additional treatment notes from Drs.

Zielinski and Le to the Appeals Council. Those notes included treatments

subsequent to November 2014, but prior to the ALJ’s decision, as well as after the

decision. None of the additional evidence was considered by the Appeals Council.

The Appeals Council’s basis for rejecting the treatment notes predating the decision

– that the additional evidence “does not show a reasonable probability that it would

change the outcome of the decision” - is not supported by substantial evidence.

“With a few exceptions, the claimant is allowed to present new evidence at

each stage of this administrative process,” including before the Appeals Council.

Ingram v. Comm'r of Soc., Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007). The

Appeals Council “must consider new, material, and chronologically relevant

evidence” that the claimant submits. Ingram, 496 F.3d at 1261; see also 20 C.F.R.

§§ 404.970(b). “We agree that when the Appeals Council erroneously refuses to

consider evidence, it commits legal error and remand is appropriate.” Washington

v. Soc. Sec. Admin., Com'r, 806 F.3d 1317, 1320–21 (11th Cir. 2015) (citing Farrell

v. Astrue, 692 F.3d 767, 771–72 (7th Cir. 2012); Threet v. Barnhart, 353 F.3d 1185,

1191–92 (10th Cir. 2003); Bergmann v. Apfel, 207 F.3d 1065, 1071 (8th Cir. 2000)).

20 C.F.R. § 404.970 provides the circumstances under which the Appeals

Council will consider and exhibit evidence submitted by a claimant. Under

paragraphs 404.970(a)(5) and (b), the Appeals Council will consider and exhibit

“additional evidence that is new, material, and relates to the period on or before the

date of the hearing decision, and there is a reasonable probability that the additional

evidence would change the outcome of the decision.” Id.

Additionally, where the Appeals Council declines to consider and exhibit

additional evidence after granting review, it must articulate a basis for its decision.

As the Eleventh Circuit explained in Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d

780, 782–84 (11th Cir. 2014), whether an explanation of the decision to decline to

consider an exhibit is required depends on whether the Appeals Council accepted or

denied review of the case. In cases like Mann v. Gardner, 380 F.2d 182 (5th Cir.

1967), Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980), and the instant case, where

review of the case was accepted by the Appeals Council, an explanation is required.

Here, the Appeals Council’s statement that the additional evidence submitted

by Preast does not show "a reasonable probability that it would change the outcome

of the decision,” is not a sufficient explanation. Indeed, a similar basis was provided

by the Appeals Council in Epps and was found to be insufficient. In Epps, the

Appeals Council affirmed the ALJ’s decision and “merely noted that it had

considered the additional evidence submitted by Epps and found the ALJ’s decision

to be ‘correct.’” Epps, 624 F.2d at 1272-73. The Eleventh Circuit held that,

“[a]lthough the Appeals Council acknowledged that Epps had submitted new

evidence, it did not adequately evaluate it. Rather, it perfunctorily adhered to the

decision of the hearing examiner. This failure alone makes us unable to hold that

the Secretary's findings are supported by substantial evidence and requires us to

remand this case for a determination of Epps' disability eligibility reached on the

total record.” Id. at 1273.

Additionally, in Epps, the ALJ’s denial of benefits was based on the lack of

radical treatment being required for claimant’s back problems. Id. Similarly, in the

instant case, the ALJ cited a lack of treatment after November of 2014 as a reason

for rejecting Preast’s subjective claims of headaches and hypertension and denying

his claim for benefits. Tr. 22. Also, like in Epps, Preast submitted additional

medical evidence to the Appeals Council showing he did, in fact, seek and receive

treatment after November of 2014 for his hypertension and headaches.

The additional medical evidence submitted dated after November 2014

included the following, showing that Preast’s hypertension and headaches had not

been “successfully treated, controlled [or] stabilized,” as determined by the ALJ.

On December 1, 2015, Preast saw Dr. Zielinski for renewal of his medications.

At that time, Preast reported he (1) was “currently experiencing symptoms” of a

headache, Tr. 58; (2) had a pain at level “8” in his head with blurriness in his right

eye, Tr. 60, and (3) was prescribed Floricet for his headaches and various

medications for his hypertension. Tr. 62. Although the doctor stated that “the patient

is doing well with his blood pressure goals” and that the “patient states he has been

stable with his blood pressure control since last visit”, his blood pressure was

170/100, and, on that particular day, he was “having a hard time controlling bp” and

was being “work[ed] up by cardiology.” Tr. 58, 60. Preast also received

prescriptions for his headaches and hypertension on May 16, 2016 and June 24, 2016

from Dr. Zielinski. Tr. 81, 84.

On February 5, 2015, Preast saw Dr. Le and reported that “his blood pressure

is out of control. . . . that he has frequent headaches and pounding in his head.” Tr.

107. Dr. Le opined that “[t]he patient has uncontrolled hypertension,” and Preast’s

blood pressure was 162/102. Id.

Dr. Le saw Preast again on April 7, 2015 for “severe hypertension,” and his

blood pressure was 162/92. Tr. 106. Preast also reported he “continues to have

intermittent headaches which can be quite debilitating.” Id. Dr. Le stated he

remained “mildly hypertensive” and added Isordil and hydralazine to his regimen.

Id.

On July 15, 2015, Preast again saw Dr. Le, complaining that he was “[s]till

having [a] headache,” on the right side and his chest has been “pounding” on and off

for 3 weeks. Tr. 101. In the “Patient History” section, Dr. Le wrote that “bp still

not with ideal control. It runs 160’s at times.” Id. Preast’s blood pressure was

160/88. Id. Dr. Le noted, “If headache persists may need an MRI.” Tr. 102.

On October 9, 2015, Preast visited Dr. Le for “bp monitor.” Tr. 99. Dr. Le

stated that “he is still high today; he has had head pounding.” Id. Dr. Le advised

Preast, “we need MRI of his head.” Id.

On January 6, 2016, Preast visited Dr. Le for a follow-up for “elevated bp”.

Tr. 95. His blood pressure was 162/100, and heartrate was 82. Tr. 96. The treatment

notes state that Preast “still gets frequent headaches.” Tr. 95.

On April 13, 2016, Preast visited Dr. Le and brought his “bp diary.” Tr. 92.

Dr. Le noted Preast “still has significant HTN with sbp 160-170’s.” Id. His blood

pressure the day of the exam was 172/90. Tr. 93. Dr. Le’s assessment was “essential

hypertension with goal blood pressure less than 130/80.” Id.

Dr. Le’s notes for September 20, 2016, indicate Preast suffers from “severe

HTN” and “frequent headaches.” Tr. 89. His blood pressure was 212/102, and Dr.

Le assessed Preast as having “malignant HTN with heart disease” and “headache.”

Tr. 90. Dr. Le also noted that Preast is unable to tolerate many of the medications

prescribed. Id.

On October 18, 2016, Preast was given a “CT scan of the head with and

without contrast.” Tr. 108. Although the scan was normal, the scan was ordered

because of headaches. Id.

Finally, on February 3, 2017, Dr. Le examined Preast for hypertension and

noted, “[h]e still has headaches.” Tr. 86. Preast’s blood pressure was 180/102 on

February 3, 2017. Tr. 87.

These treatment notes from Dr. Zielinski and Dr. Le contradict the ALJ’s

determination that Preast’s statements of his severe functional limitations relating

to, among other things, hypertension and associated headaches, were not credible

because the records showed “no indication that he has been treated for any of his

alleged impairments since November 2014.” Tr. 22. In his memorandum, the

Commissioner cherry-picked various statements and clinical findings in claiming

that Preast’s “hypertension was generally asymptomatic” and that his headaches

were routine and not disabling. ECF Doc. 19. To the contrary, the additional

medical evidence shows that Preast’s hypertension was considered by his doctors to

be “uncontrolled”, “not in ideal control”, “severe”, and “malignant” at various times

during the visits set out in the additional medical evidence. In fact, the American

Heart Association instructs that blood pressure above 180 on the systolic or 120 on

the diastolic is a “hypertension crisis” which requires immediate medical attention.4

Preast’s systolic blood pressure was above 180 on at least two doctor visits.

4 American Heart Association, Hypertensive Crisis: When You Should Call 9-1-1 for High Blood

Pressure, (Nov. 30, 2017), https://www.heart.org/en/health-topics/high-blood-

pressure/understanding-blood-pressure-readings/hypertensive-crisis-when-you-should-call-911-

for-high-blood-pressure

Additionally, his systolic blood pressure was routinely above 160, well above the

cut-off for Stage II hypertension, which is 140. Id. Also, during this time, Preast’s

treating physicians characterized his headaches as “debilitating”, “throbbing”,

“frequent” and “persisting.”

Thus, the Appeals Council’s determination that there is no “reasonable

probability” that such evidence “would change the outcome of the decision,” is not

supported by substantial evidence. 20 C.F.R. § 404.970(a)(5); see also, Epps, 624

F.2d at 1273 (“The ALJ predicated his finding that Epps' back problem did not result

in disabling pain or other incapacitating restrictions in significant part on his

understanding that Epps had not required radical treatment. Yet the Appeals Council

adopted the hearing examiner's decision without addressing post-hearing evidence

of disability submitted by Dr. Kerr that expressly stated that conservative treatment

had failed and that Epps had recently been referred for consideration of the radical

intervention believed by the ALJ to be an important indicator of disability.”).

Accordingly, a remand is appropriate. See Ingram, 496 F.3d at 1268 (explaining

that a sentence four, as opposed to sentence six, remand is appropriate when the

evidence was properly before the Appeals Council, but “the Appeals Council did not

adequately consider the additional evidence” (quotation marks omitted)).

Having determined that remand is appropriate, the Court need not address the

other grounds of error but will nonetheless do so.

2. The ALJ’s Failure to Develop the Record.

The latest treatment records for Preast from Drs. Zielinksi and Le considered

by the ALJ were from 2014. This was so despite the fact that there was other

evidence in the record indicating Preast had seen these doctors for treatment in late

2015. The ALJ’s failure to fully develop the record was prejudicial error.

“Because a hearing before an ALJ is not an adversary proceeding, the ALJ

has a basic obligation to develop a full and fair record.” Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir. 1981); 20 C.F.R. § 416.912(d) (stating that “[b]efore we

make a determination that you are not disabled, we will develop your complete

medical history for at least the 12 months preceding the month in which you file

your application”); Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). This duty

is heightened as to an unrepresented claimant. Clark v. Schweiker, 652 F.2d at 404

(quoting Barker v. Harris, 486 F.Supp. 846, 849 (N.D.Ga.1980)) (the “basic

obligation to develop a full and fair record rises to a special duty when an

unrepresented claimant unfamiliar with hearing procedures appears before him”).

This duty requires the ALJ to “scrupulously and conscientiously probe into, inquire

of, and explore for all the relevant facts.” Cowart, 662 F.2d at 735 (quoting Cox v.

Califano, 587 F.2d 988, 991 (9th Cir. 1978)). The ALJ must be “especially diligent

in ensuring that favorable as well as unfavorable facts and circumstances are

elicited.” Cox v. Califano, 587 F.2d at 991 (quoting Rosa v. Weinberger, 381

F.Supp. 377, 381 (E.D.N.Y.1974)).

The ALJ has a duty to develop the record such that it “contains sufficient

evidence for the administrative law judge to make an informed decision.”  Ingram v.

Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). This is so

because “[u]nless the Secretary has analyzed all evidence and has sufficiently

explained the weight he has given to obviously probative exhibits, to say that his

decision is supported by substantial evidence approaches an abdication of the court's

duty to scrutinize the record as a whole to determine whether the conclusions reached

are rational.” Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 596 F.2d 1209,

1213 (4th Cir. 1979)). On the other hand, 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 Secretary for further

development of the record. Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997)

(citing Brown, 44 F.3d at 934–35). The court should be guided by whether the record

reveals evidentiary gaps which result in unfairness or “clear prejudice.” Id.

The Court finds that the ALJ has failed to fulfill his duty to properly develop

the record in this case. First, the mere length of the record is not dispositive. The

ability of an ALJ to make an informed decision does not depend upon the number of

pages in the record.

Second, it was clear from the records before the ALJ that later treatment notes

existed. In paperwork submitted in connection with his claim, Preast reported that

he saw Dr. Le on February 5, 2015. Tr. 308. Dr. Le reported in a questionnaire

dated November 24, 2015 that he last examined Preast on October 9, 2015 and stated

on a May 2016 questionnaire that he first examined Preast on February 5, 2013 and

last examined him on April 13, 2016. Tr. 619, 624. Dr. Zielinski reported on a

questionnaire available to the ALJ that he last examined Preast on December 1, 2015.

Tr. 620. Preast also submitted questionnaires and statements signed by Drs.

Zielinski and Le dated November 20, 2015, November 24, 2015, December 3, 2015,

December 11, 2015, and May 20, 2016, all of which were based on their treatment

at the time the forms were completed. Tr. 617, 619, 620, 621, 622-23, 624-26.

Despite these repeated references to more recent progress notes and treatment

extending into 2016, the most recent progress note contained in the record was dated

November 16, 2014. Tr. 598-603.

Third, the ALJ’s failure to fully develop the record was prejudicial because

the ALJ discredited Preast’s testimony based on lack of treatment after November

2014. Tr. 22. Additionally, the ALJ accorded “little weight” to both treating

providers’ opinions, finding that they were inconsistent with their treatment notes,

but only compared their opinions with records through November 2014. Indeed, the

very basis of each of these decisions by the ALJ are the gaps in the record evidence

that the ALJ had a duty to take some effort to fill.

Additionally, since the Appeals Council did not consider the additional

evidence, but perfunctorily accepted the ALJ’s determinations, the prejudice was not

cured or rendered harmless by the submission of the additional evidence to the

Appeals Council.

3. The Appeals Council’s Decision to Accord No Weight to the

Determination of the Florida Department of Retirement Services.

The Appeals Council specifically considered the FDRS decision but gave it

no weight because of “its lack of reference to any medical evidence and lack of any

indicated author or attribution.” Tr. 7.

A finding of disability by another agency is not binding on the Commissioner,

although the Eleventh Circuit have held that it should be given great weight.

Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (11th Cir.1983); see also 20 C.F.R. §§

404.1504, 416.904 (stating that a determination of disability by another agency is

not binding on the Social Security Administration). “Even when an agency’s

definition of disability differs from that of social security law, if the agency’s

disability definition is construed in a similar manner as the definition of disability

under social security law, it is error for the ALJ to not to give that agency’s finding

of disability great weight.” Hughes v. Comm’r of Soc. Sec. Admin., 486 F. App’x

11, 16 (11th Cir. 2012). However, “if the other agency's standard for determining

disability deviates substantially from the Commissioner's standard, is it error for the

ALJ to give the agency's finding less than substantial weight.” Hacia v. Comm'r of

Soc. Sec., 601 F. App'x 783, 786 (11th Cir. 2015).

The Commissioner relies on Hughes as supporting the Appeals Council’s

decision. However, the facts here are distinguishable from Hughes. In Hughes, the

claimant submitted a single page disability determination from the State of Florida

approving her for regular disability retirement, that provided no explanation of the

basis for that determination and “offered no specific or additional evidence in

conjunction with the State’s determination that would lead to a different conclusion

than that reached in the ALJ’s decision.” Id. at 16. In this case, in conjunction with

the FDRS letter approving him for disability retirement benefits, Preast also

submitted (1) a letter from the Florida Bureau of Benefit Payments addressed to Dr.

Zielinski dated December 1, 2015 and signed by Hope Simmons, Disability

Determinations (T. 617); (2) a Florida Retirement System Physician’s Report (Form

FR-13B) from Dr. Le, dated November 24, 2015 (t. 619); (3) a December 3, 2015,

letter from Dr. Le (T. 616), and (4) a Florida Department of Retirement System

Physician’s Report (Form FR-13B) from Dr. Zielinski, dated November 20, 2015

(T. 620).

Thus, the Appeals Council’s assignment of “no weight” to the FDRS decision

based on lack of medical evidence is not supported by substantial evidence.5 See

Carty v. Colvin, 2014 WL 2961128, *13 (M.D. Fla. July 1, 2014) (remanding matter

to ALJ to “explain weight given to the Workers Compensation temporary disability

determination or explain why ‘great weight’ was not given”).

Accordingly, it is ORDERED:

1. The decision of the Commissioner is REVERSED under sentence four

of 42 U.S.C. § 405(g), and this matter is REMANDED to the Commissioner to

consider the additional medical evidence submitted by Preast to the Appeals Council

and to reconsider the weight given to the determination of disability by the FDRS.

2. The clerk is directed to enter judgment in favor of the Plaintiff and close

the file.

DONE AND ORDERED this 26th day of September, 2019.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

5 This case is also distinguishable from Hacia v. Comm’r of Soc. Sec., 2014 WL 12618103, *6

(M.D. Fla. May 14, 2014) because in that case Plaintiff’s evidence was limited to an application

for an identification card and a statement by Plaintiff’s father that Plaintiff was approved for

medical care based on a physician statement that he had a physical incapacity and disability.