holding “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.”
How later courts described this case
- holding “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.”
- holding that the reviewing court must not re-weigh evidence or substitute their discretion
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:19-CV-23803-JJO
JOHN WILLIAM HIGHFIELD, III,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of,
Social Security Administration,
Defendant.
______________________________________/
ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion for Summary
Judgment (DE# 23, 3/17/2020) and the Defendant’s Motion for Summary Judgment
(DE# 24, 4/16/2020). The plaintiff requests the final decision of the Commissioner of
Social Security be vacated and this matter be remanded for further administrative
proceedings, including a de novo hearing and decision. The complaint was filed
pursuant to the Social Security Act (“SSA”), 42 U.S.C. § 405(g), and is properly before
the Court for judicial review of a final decision of the Commissioner of the SSA. The
parties consented to Magistrate Judge jurisdiction, (DE #21, 1/24/2020), and this matter
was reassigned to the undersigned pursuant to Judge Ungaro’s Order dated January
27, 2020. (DE #22, 1/27/2020). Having carefully considered the filings and applicable
law, the undersigned enters the following Order.
PROCEDURAL HISTORY
On May 20, 2016, John William Highfield, III (“the Plaintiff”) filed a Title II
application for a period of disability and disability insurance benefits. (Tr. 16)1. The
plaintiff initially alleged an onset date of September 11, 2001, and claimed disability due
to a lung disorder, acid reflux, and cancer. (Tr. 57-58, 67-68). The plaintiff’s claim was
initially denied on October 13, 2016. (Tr. 56-65). Upon reconsideration, the application
was denied on May 11, 2017. (Tr. 67-76). On December 18, 2017, the plaintiff filed an
application for Supplemental Security Income benefits. (Tr. 16). The plaintiff filed a
request for a hearing on June 16, 2017. (Tr. 93-94). The plaintiff appeared and testified
before an Administrative Law Judge (“ALJ”) on September 7, 2018. (Tr. 29-53). At the
hearing, the plaintiff amended his alleged onset date to June 17, 2015. (Tr. 33). The
ALJ issued a finding of non-disability on October 3, 2018. (Tr. 13-15).
On October 29, 2018, the plaintiff filed a request for review of the ALJ’s decision.
(Tr. 147-149). The Appeals Council denied the request for review on July 11, 2019. (Tr.
1-3). The plaintiff has exhausted his administrative remedies and this case is ripe for
review under 42 U.S.C. §§ 405(g), 1383(c)(3). The plaintiff filed the Plaintiff’s Motion for
Summary Judgment (DE# 23, 03/17/2020) on March 17, 2020. The defendant filed
Defendant’s Motion for Summary Judgment on April 16, 2020. (DE# 24, 04/16/2020).
The defendant also filed the Defendant’s Statement of Material Facts and Response to
Plaintiff’s “Statement of the Case” on April 16, 2020. (DE #26 4/16/2020). The plaintiff
filed his reply on May 18, 2020. (DE# 27 5/18/2020).
1 All references to “Tr.” refer to the transcript of the Social Security Administration. (DE #19, 1/17/20). The page
numbers listed on this document refer to the bold numbers found in the lower right-hand corner of each page of
transcript, as opposed to those assigned by the Court’s electronic docking system or any other page numbers.
FACTS
I. The Plaintiff’s Background
The plaintiff was born in 1962 and was 56 years old at the time of the ALJ’s
decision. (Tr. 16-24). The plaintiff completed four or more years of college. (Tr. 200).
The plaintiff was a stock trader with a seat on the floor of the New York Stock
Exchange. (Tr. 40). According to the plaintiff, he was in the World Trade Center on
September 11, 2001, and “had to run for his life.” (Tr. 241). The plaintiff was able to
maintain his job with the New York Stock Exchange until 2008. (Tr. 40-41). Since then
all of the plaintiff’s jobs have been short lived. (Tr. 182). These jobs include working at
Lowe’s, Lyft, Uber, Sweetwater Pools, a Volvo dealership, and a pizza place. (Tr. 34-
42). Initially, the plaintiff filed an application for Disability Insurance Benefits (“DIB”)
alleging disability beginning on September 11, 2001, due to a lung disorder, acid reflux,
and cancer. (Tr. 57-58, 67-68). At the hearing, the plaintiff amended his onset date to
June 17, 2015. (Tr. 33). The plaintiff testified that post-traumatic stress disorder,
severe anxiety, and depression render him incapable of having a job. (Tr. 44).2
2 It appears that the plaintiff completed an application for Supplemental Security Income on April 16,
2016, with his application for Disability Insurance Benefits. (Tr. 158). This application was likely denied
due to resources (see Tr, 156), but no such denial can be found in the record. It is unclear when the
Supplemental Security Income application considered by the ALJ was actually filed, as it is not contained
in the record.
II. Medical Evidence
A. John R. Rowe, Jr., MD/East Cooper Family Practice/ Roper St. Francis
On June 4, 2015, the plaintiff visited Roper St. Francis Physician Partners and saw
physician assistant – certified (“PA-C”), Sarette Jenderny, for a hospital follow up. (Tr.
310). The plaintiff had a long history of alcohol abuse with intermittent periods of
sobriety in attempts at rehabilitation. (Id.). The plaintiff was admitted to the hospital on
May 30, 2015, and discharged on June 2, 2015. (Id.). On the day he was admitted the
plaintiff decided to stop drinking, and did not have any alcohol that morning. (Id.). The
plaintiff began experiencing spasms in his hands and severe shaking episodes while
riding in the car with his family. (Id.). The plaintiff’s family called the Emergency Medical
Services (EMS) and the plaintiff was transported to the emergency room (ER). (Id.). The
plaintiff was going through alcohol withdrawal, and the plaintiff was admitted to the
Intensive Care Unit (ICU). (Id.). The plaintiff was treated by starting on Serax TID3 with
prn Atvian4. (Id.). The plaintiff’s liver enzymes were elevated, consistent with alcohol
induced liver injury. (Id.).
The plaintiff addressed his concerns about anxiety and depression with the medical
professional and the plaintiff indicated that he believed anxiety and depression propel
his drinking behavior. (Tr. 311.) The medical professional further noted that the plaintiff
suffered from PTSD and had suppressed his symptoms for many years, but the
plaintiff’s depression/anxiety/drinking had become worse over the last decade. (Id.). The
3 WebMD, Serax Tablet, www.webmd.com, used to treat anxiety and also acute alcohol withdrawal,
https://www.webmd.com/drugs/2/drug-9495/serax-oral/details (last visited Jun. 30, 2020).
4 WebMD, Atvian, www.webmd.com, used to treat anxiety, https://www.webmd.com/drugs/2/drug-
6685/ativan-oral/details (last visited Jun. 30, 2020).
plaintiff was discharged on June 2, 2015, to a sober living house. (Tr. 310). At the June
4, 2015 visit, the plaintiff stated he felt better and stronger since being discharged and
had not experienced any more uncontrollable shaking and/or spasms. (Id.). The plaintiff
was attending AA, where he was to complete 90 meetings in 90 days and planned to
complete a 12-step program. (Id.). At the same visit, the plaintiff indicated he thought he
would benefit from maintenance medication for depression and anxiety. (Id.).
On June 17, 2015, the plaintiff had another 14-day hospital follow up and lab review.
(Tr. 307). The plaintiff was suffering from anxiety and insomnia. (Id.). The plaintiff’s
physical examination was normal, the plaintiff was prescribed Celexa5 for his anxiety,
and the plaintiff’s prescription for Trazodone6 was refilled for insomnia. (Tr. 307-08). The
plaintiff’s cognitive exam was grossly normal. (Tr. 307).
On July 14, 2015, the plaintiff visited his primary care physician, Dr. Rowe, for a rash
under both arms lasting one and one-half weeks and to address the plaintiff’s concerns
about his weight, which was 129 pounds. (Tr. 305). The plaintiff denied an alcohol
screen and indicated he had not had a drink containing alcohol in the year prior. (Tr.
306).
On February 28, 2017, the plaintiff saw Dr. Rowe after an emergency room visit the
prior day. (Tr. 426). The plaintiff was experiencing hypertensive urgency and severe
muscle spasms and was treated with Atvian. (Tr. 426). The plaintiff’s examination was
5 Celexa (citalopram) is an antidepressant in a group of drugs called selective serotonin reuptake
inhibitors (SSRIs). Celexa is used to treat depression. Celexa may also be used for purposes not listed in
this medication guide. https://www.drugs.com/celexa.html (last visited September 22, 2020).
6 Trazodone is used to treat depression. It may help to improve your mood, appetite, and energy level as well
as decrease anxiety and insomnia related to depression. Trazodone works by helping to restore the balance
of a certain natural chemical (serotonin) in the brain. https://www.webmd.com/drugs/2/drug-11188/trazodone-
oral/details (last visited September 22, 2020).
normal, and it was deemed the plaintiff was likely having withdrawal symptoms. (Id.).
The plaintiff’s cognitive exam was also grossly normal. (Id.). At the time, the plaintiff was
taking Prilosec for heart burn, Metroprolol for high blood pressure and chest pain, and
Lexapro for depression and generalized anxiety disorder. (Id.).
B. Lee Royall, MD – Charleston Gastro Specialists
The plaintiff began seeing Dr. Lee M. Royall, a gastroenterologist, on July 27,
2011. (Tr. 267). The notes indicate that the plaintiff had a history of alcohol abuse. (Id.).
The plaintiff had recently been admitted to the ICU in a hospital for 16 days with
apparent alcohol related cardiomyopathy. (Tr. 301). The plaintiff showed signs of
anorexia, weight loss, and dysphagia of solids. (Tr. 267). Dr. Royall’s notes mentioned
the plaintiff was very resistant to outpatient programs such as Alcoholics Anonymous.
(Tr. 301). The plaintiff denied any significant heartburn, reflux or chest pain. (Id.). Given
the plaintiff’s chronic alcohol use and in order to evaluate possible dysphagia, an
endoscopy was recommended. (Tr. 267).
C. Retreat Premiere Addiction Treatment Center
On March 7, 2015, the plaintiff was admitted to a Retreat Premiere Addiction
Center in Pennsylvania for the substance acute rehab program. (Tr. 239). The plaintiff
noted alcohol as his primary substance type during the psychosocial clinical
assessment and recorded an alcohol intake of over one pint daily. (Id.). The plaintiff
admitted to drinking alcohol during 24 of the prior 30 days. (Id.). The plaintiff had been
hospitalized previously that same week for drinking heavily and not eating properly. (Tr.
241). The plaintiff noted that he had high blood pressure and that his wife had given him
many opportunities to get help. (Id.). The plaintiff had three children, two in college and
a nine-year-old, and alcohol affected his relationship with his children. (Id.). The plaintiff
noted he was in the World Trade Center on September 11, 2001, and had to run for his
life. (Id.).
The plaintiff stated that he had been self-employed for seven years as a stock
trader, but that his work ethic suffers due to his alcohol use. (Tr. 244). The plaintiff
experienced blackouts, tremors, and shakes due to alcohol addiction, and there was no
evidence of a significant time in which the plaintiff was “clean.” (Id.). The plaintiff was
taking 25 mgs of Toprol7 and noted he had moderate anxiety. (Tr. 244-245). The plaintiff
presented evidence of chemical abuse or dependence and withdrawal like tremors,
restlessness, perspiration, anxiety, and insomnia. (Tr. 249).
The plaintiff was discharged on April 6, 2015. (Tr. 255). The plaintiff’s diagnosis
at discharge was severe alcohol use disorder, unspecified depressive disorder,
unspecified anxiety disorder, and narcissistic personality disorder. (Id.). Upon discharge,
the plaintiff found it difficult to see the positive in life, and had difficulty letting go of past
events. (Tr. 256). At the time of discharge, the plaintiff’s prognosis was poor, and it was
recommended the plaintiff go to 90 12-step meetings in 90 days and obtain a sponsor.
7 WebMD, Toprol XL, www.webmd.com, used to treat chest pain (angina), heart failure, and high blood
pressure, https://www.webmd.com/drugs/2/drug-9548/toprol-xl-oral/details (last visited Jun. 30, 2020).
(Tr. 256-257). The plaintiff’s medications at the time of discharge included BuSpar8,
Magnesium Oxide9, Metoprolol XL10, Prilosec11, and Remeron12. (Tr. 256).
D. Joseph Dispenza, Psy. D. – East Cooper Counseling and Psychological Services
On March 29, 2016, the plaintiff saw Dr. Joseph R. Dispenza, a psychologist,
after a referral by the World Trade Center Health Program. (Tr. 406-407). The plaintiff’s
main concern was getting help with his depression. (Tr. 407). The plaintiff noted having
passive ideations about suicide. (Tr. 408). The plaintiff’s wife left him 14 months prior
but there was no set divorce date. (Id.). When the plaintiff was not working, he “hung”
out alone. (Tr. 409). The last time the plaintiff was generally happy was 10-15 years
prior. (Id.). The plaintiff noted that more than half the time he had thoughts that he would
be better off dead or hurting himself in some way and that he had anxiety attacks in the
prior four (4) weeks. (Tr. 410).
The plaintiff noted that his personal issues made it extremely difficult for him to
do his work, take care of things at home, or get along with other people. (Id.). In a
patient health questionnaire, the plaintiff indicated that he was bothered a lot by: (1)
8 WebMD, Buspar Tablet, www.webmd.com, used to treat anxiety, https://www.webmd.com/drugs/2/drug-
9036/buspar-oral/details (last visited Jun. 30, 2020).
9 WebMD, Magnesium Oxide, www.webmd.com, used to treat symptoms of too much stomach acid such
as stomach upset, heartburn, and acid indigestion, https://www.webmd.com/drugs/2/drug-
3954/magnesium-oxide-oral/details (last visited Jun. 30, 2020).
10 WebMD, Metropolol Succinate, www.webmd.com, used to treat chest pain (angina), heart failure, and
high blood pressure, https://www.webmd.com/drugs/2/drug-8814/metoprolol-succinate-oral/details (last
visited Jun. 30, 2020).
11 WebMD, Prilosec, www.webmd.com, used to treat certain stomach and esophagus problems (such as
acid reflux, ulcers), https://www.webmd.com/drugs/2/drug-7957-1173/prilosec-oral/omeprazole-delayed-
release-suspension-oral/details (last visited Jun. 30, 2020).
12 WebMD, Remeron Tablet, www.webmd.com, used to treat depression,
https://www.webmd.com/drugs/2/drug-13707/remeron-oral/details (last visited Jun. 30, 2020).
stress at work outside of the home; and (2) financial problems or worries. (Tr. 411). The
plaintiff noted that more than half of the time he had trouble concentrating on things,
such as reading the newspaper or watching television. (Tr. 410). The plaintiff indicated
that his problems made it extremely difficult to do his work, take care of things at home,
or get along with other people. (Id.). The plaintiff further noted the most stressful thing in
his life at that moment was September 11th and the loss of everything. (Tr. 411).
The plaintiff admitted to experiencing serious depression and anxiety on a daily
basis. (Tr. 415). In his World Trade Center (“WTC”) Health Program exposure form, the
plaintiff noted he witnessed people being caught in the smoke during 9/11, the towers
collapsing, and people jumping from towers. (Tr. 418). Following the assessment, the
plaintiff was diagnosed with Chronic PTSD, Recurrent Major Depression Severe Type,
and Panic Disorder. (Tr. 415). The doctor noted that the assessment lasted only 10
minutes but that the plaintiff should be referred to therapy. (Tr. 408). A significant
portion of Dr. Dispenza’s handwritten notes are illegible. (Tr. 408-409).
III. State Agency Consultants
At both the initial and reconsideration level, the physicians employed by the State
Disability Determination Services found insufficient evidence to evaluate the claimant’s
impairments. (Tr. 22, 62, 72). They were unable to assess any restriction of activity of
daily living, difficulties in maintaining social functioning, difficulties in maintaining
concentration, persistence or pace, and repeated episodes of decompensation, each of
extended duration due to insufficient evidence. (Tr. 62, 72). There was no Residual
Functioning Capacity (“RFC”) assessment at either the initial or the reconsideration
level due to insufficient evidence. (Tr. 64, 74). There was no assessment of vocational
factors at either the initial or reconsideration level due to insufficient evidence. (Tr. 64,
74). Further, at both levels, the Psychiatric Review Technique (“PRT”) was not
sufficiently completed due to insufficient evidence. (Tr. 62-63, 72-73). Several attempts
to contact the plaintiff were unsuccessful. (Tr. 70, 72-73). State Agency consultants
found that no functional information was available to assess the severity of the plaintiff’s
allegations, therefore, there was insufficient evidence. (Tr. 73).
IV. Hearing Testimony
A hearing was held before an Administrative Law Judge (“ALJ”) on September 7,
2018. (Tr. 29). The plaintiff testified that he previously worked as a stock trader with a
seat on the floor of the New York Stock Exchange. (Tr. 40). The plaintiff maintained that
job until 2008. (Tr. 40). Since 2008 the plaintiff worked lower intensity jobs at Lowe’s,
Sweetwater pools, Volvo, and a pizza place. (Tr. 40-42). The plaintiff indicated that
anxiety and depression contribute to him being unable to maintain a job and that he is
unable to “hold it together.” (Tr. 35). The plaintiff also testified that since his alleged
disability onset date of June 17, 2015, he worked some jobs, but nothing of any real
substance. (Tr. 34). At the time of the hearing, the plaintiff had a driver’s license and
drove. (Tr. 34). The plaintiff was also still married but had been separated for four years.
(Tr. 34).
The plaintiff indicated that in a typical day he sits inside doing nothing or tries to
help out with his daughters. (Tr. 40). The plaintiff does not like to go outside due to his
depression and sometimes his depression and anxiety makes it too hard to pick up his
daughter from school. (Tr. 43). The plaintiff noted anxiety, depression, and chest pain
as physical limitations at the time of the hearing. (Tr. 36). The plaintiff testified that he
stopped drinking about two to three years prior to the hearing. (Tr. 37). The plaintiff
testified that he lived in a room he rented in a house and a couple other men lived there
also. (Tr. 39). The plaintiff mentioned that his treating physician recommended
counseling or mental health treatment, but he had not gone because he could not afford
it. (Id.). When asked by his attorney about his depression, anxiety, and panic attacks,
the plaintiff responded that he has the attacks both at home and when he is out. (Tr.
43). The plaintiff indicated that he has the attacks frequently at home but is unsure why.
(Tr. 44).
V. Vocational Expert Testimony
A vocational expert (“VE”), Tonetta Wattson-Coleman, testified at the ALJ
hearing. (Tr. 47-52). The VE classified the plaintiff’s past job as a stock trader as having
a Specific Vocational Preparation (“SVP”) of 6 and also as light per the Dictionary of
Occupational Titles (“DOT”). (Tr. 48). The ALJ noted during the VE’s testimony that
because the plaintiff’s other jobs were short-term, none were performed as substantial
gainful activity (“SGA”) for a long enough time to be considered relevant. (Id.). The ALJ
posed the following hypothetical to the VE:
Let’s assume that a person of the Claimant’s age, education,
and work experience does not have any external limitations.
Should have no exposure to work hazards; occasional
changes in work setting and procedure; and no production
pace-rate work, with the underlying theme essentially
avoiding work stress. Would I be correct, then that would
preclude stock trading?
(Id.).
In response to the ALJ’s hypothetical, the VE indicated that stock trading would
be precluded. (Id.). The ALJ then asked if there were any other jobs that would fit within
those limits. (Id.). The VE testified that the other occupations that the hypothetical
claimant could perform, include a laboratory equipment cleaner, merchandise deliverer,
usher, and dealer accounts investigator, all with an SVP of 2. (Tr. 48-49). The ALJ
added the following limitation to his hypothetical:
hypothetical worker could concentrate in two-hour increments
to perform simple, repetitive tasks, would all those same jobs
and same numbers apply because they were all SVP 2s?
(Tr. 49).
The VE responded in the affirmative. (Id.). The ALJ then further posed the
question, “if I assume a greater concentration deficit that my hypothetical worker is
going to be off task 20% of the day, are there jobs consistent with that degree of
inattention?” (Id.). The VE responded “No, Your Honor. That hypothetical worker would
not be able to retain or maintain employment.” (Id.).
Following the ALJ’s questioning, the plaintiff’s attorney posed the following
hypothetical to the VE:
if we were to assume this hypothetical individual would be
able to stay on-task when at work, but would miss three days
of work out of the month on a consistent basis, how would
that impact their ability to maintain employment with that
level of absenteeism?
(Tr. 50).
In response to that hypothetical, the VE indicated that his hypothetical claimant
would not be able to maintain employment. (Id.).
THE ALJ’S DECISION-MAKING PROCESS
“Disability” is defined as the “inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or has lasted or can last for a continuous period of not less
than twelve months.” 42 U.S.C §§ 416(I); 423(d)(1); 20 C.F.R. § 404.905. The
impairment(s) must be severe, making the plaintiff “unable to do his previous work . . .
or any other kind of substantial gainful work which exists in the national economy . . ..”
42 U.S.C § 423(d)(1); 20 C.F.R. §§ 404.905-404.911.
To determine whether the plaintiff is entitled to disability benefits, the ALJ must
apply a five-step analysis. 20 C.F.R. § 404.1520(a)-(f). The ALJ must first determine
whether the plaintiff is presently employed or engaging in substantial gainful activity
(SGA). 20 C.F.R. § 404.1520(a)(4)(i). If so, a finding of non-disability is made, and the
inquiry ends. Id.
Second, the ALJ must determine whether the plaintiff suffers from a severe
impairment or a combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If the
plaintiff does not, then a finding of non-disability is made, and the inquiry ends. Id.
Third, the ALJ compares the plaintiff’s severe impairments to those in the listings
of impairments located in Appendix I to Subpart 404 of the Code of Federal
Regulations. 20 C.F.R.§ 404.1520(d), Subpart P, Appendix I. 20 C.F.R. §
404.1520(a)(4)(iii). Certain impairments are so severe, whether considered alone or in
conjunction with other impairments, that if such impairments are established, the
regulation requires a finding of disability without further inquiry into the plaintiff’s ability
to perform other work. See Gibson v. Heckler, 762 F.2d 1516, 1518 n.1 (11th Cir. 1985).
If the impairment meets or equals a listed impairment, disability is presumed, and
benefits are awarded. 20 C.F.R. § 404.1520(d).
Fourth, the ALJ must determine whether the plaintiff has the “residual functional
capacity” (“RFC”) to perform his or her past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). RFC is defined as “what you can do despite your limitations. 20
C.F.R. § 404.1545(a)(1). This determination takes into account “all relevant evidence,”
including medical evidence, the claimant’s own testimony and the observations of
others. Id. If the plaintiff is unable to perform his or her past relevant work, then a prima
facie case of disability is established and the burden of proof shifts to the Commissioner
to show at step five that there is other work available in the national economy which the
plaintiff can perform. 20 C.F.R. § 404.1520(e); See Barnes v. Sullivan, 932 F.2d 1357,
1459 (11th Cir. 1991) (holding the claimant bears the initial burden of proving that he is
unable to perform pervious work).
Fifth, the ALJ must determine whether the plaintiff is able to do any other work.
The ALJ must consider the plaintiff’s RFC, age, education, and work experience and
determine if the plaintiff can make an adjustment to other work. 20 C.F.R. §
404.1520(a)(4)(v). If the claimant can make an adjustment to other work, the ALJ will
find them not disabled. Id. If the claimant cannot make an adjustment to other work, the
ALJ will find them disabled. Id.
THE ALJ’S FINDINGS
On October 3, 2018, the ALJ found that the plaintiff was not disabled under
sections 216(i) and 223(d) of the Social Security Act. (Tr. 24). In addition, the ALJ found
that the plaintiff was not disabled under section 1614(a)(3)(A) of the Social Security Act.
(Id.). At step one, the ALJ found that the plaintiff met the insured status requirements of
the Social Security Act through March 31, 2020, and the ALJ determined the plaintiff
had not engaged in substantial gainful activity since June 17, 2015, the amended
alleged onset date. (Tr. 18).
At step two, the ALJ found that the plaintiff had the following severe impairments:
substance abuse disorder and post-traumatic stress disorder (PTSD). (Id.). The ALJ
found that the plaintiff’s impairments significantly limited his ability to perform basic work
activities. (Tr. 19). The ALJ found no evidence in the record to support the alleged
disability due to lung disorder, cancer, and acid reflux. (Id.). The record did reveal the
claimant suffered from hypertension, hyperlipidemia, allergic rhinitis, glaucoma, and
asthma; however, treatment notes showed that symptoms were controlled with
medication. (Id.). Therefore, the ALJ found those impairments were “non severe.” (Id.).
Further, the ALJ noted that treatment records reflected a history of alcohol induced
cardiomyopathy. (Id.). However, it was treated before the amended alleged onset date.
(Id.).
At step three, the ALJ found that the plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 4041526, 416.920(d), 416.925 and 416.926). (Id.). The ALJ found that the
severity of the claimant’s mental impairments does not meet or medically equal the
criteria of listings 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and
obsessive-compulsive disorders, and 12.15 (trauma-and stressor-related disorders).
(Id.). In making the aforementioned finding the ALJ considered whether the “paragraph
B” criteria were satisfied. (Id.). In order to satisfy the “paragraph B” criteria, “the mental
impairment must result in at least one extreme or two marked limitations in a broad area
of functioning which are: understanding, remembering, or applying information;
interacting with others; concentrating, persisting or maintaining pace; or adapting or
managing themselves. (Id.).
A marked limitation means functioning in this area independently, appropriately,
effectively, and on a sustained basis is seriously limited. (Id.). An extreme limitation is
the inability to function independently, appropriately or effectively, and on a sustained
basis. (Id.). The ALJ found a moderate limitation in understanding, remembering, or
applying information, and with regard to concentrating, persisting, or maintaining pace.
(Id.). The ALJ also found a mild limitation in interaction with others. (Tr. 20). The ALJ
found that the plaintiff has a moderate limitation in adapting or managing himself. (Id.).
The ALJ found that, “because the claimant’s mental impairments do not cause at least
two ‘marked’ limitations or one ‘extreme’ limitation, the ‘paragraph B’ criteria are not
satisfied.” (Id.). The ALJ assessed whether the “paragraph C” criteria were satisfied and
noted that the evidence failed to establish the presence of “paragraph C” criteria. (Id.).
Before considering step four, the ALJ found that the plaintiff:
has the residual functional capacity to perform a full range of
work at all exertional levels but with the following
nonexertional limitations: the claimant should have no
exposure to work hazards, but can concentrate in two hour
increments to perform simple, routine, repetitive tasks with
only occasionally changes in work setting or procedure and
no production pace rate work requirements.
(Id.).
The ALJ found the plaintiff’s
medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms; however,
the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision.
As for the claimant’s statements about the intensity,
persistence, and limiting effects of his symptoms, they are
inconsistent with his reports to his treating physicians and with
his activities of daily living.
(Tr. 21).
The ALJ found that although the plaintiff testified that he had cancer removed
from his stomach, there was no evidence to support that in the record. (Id.). The plaintiff
had also testified to having stopped drinking about two or three years prior to the ALJ
hearing held in September 2018, and only drinking for a short period of time after his
wife left. (Id.). However, the ALJ noted that the medical evidence shows the plaintiff had
a history of alcohol abuse and was even admitted to the hospital in 2011 with alcohol
induced cardiomyopathy, and underwent a one month long rehabilitation admission in
March 2016. (Id.). Further, the plaintiff testified to having stopped drinking two to three
years before the hearing held on September 7, 2018, but was admitted to the
emergency room in March 2017 with hypertensive urgency and severe muscle spasms
that were deemed to be withdrawal symptoms. (Id.). The ALJ noted that the lack of
treatment for his mental impairments weakens his allegation of the severity of the
impairments like his PTSD. (Tr. 22). The ALJ did find that the medical evidence
supported a finding that the plaintiff’s substance abuse and PTSD are severe
impairments. (Id.). The ALJ noted that the plaintiff’s only recent treatment was for
hypertension and alcohol. (Id.). The ALJ further noted that the plaintiff alleged PTSD but
had no prior history of PTSD and no PTSD treatment at the time of the hearing. (Id.).
At step four, the ALJ found that the plaintiff does not have the RFC to perform the
requirements of past relevant work. (Id.).
At step five, the ALJ determined, after “considering the claimant’s age, education,
work experience, and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform.” (Tr. 24). In making that
determination, the ALJ relied on the testimony of the VE, which the ALJ found was
consistent with the information contained in the DOT. (Id.). The ALJ ultimately made “a
finding of ‘not disabled’ under the framework of section 204.00 in the Medical-Vocational
Guidelines.” (Id.).
STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, the Court must
determine whether it is appropriate to grant either party’s motion for summary judgment.
Judicial review of the factual findings in disability cases is limited to determining whether
the record contains substantial evidence to support the ALJ’s findings and whether the
correct legal standards were applied. 42 U.S.C. § 405(g); see Wolfe v. Chater, 86 F. 3d
1072,1076 (11th Cir. 1996) (holding that the reviewing court must not re-weigh evidence
or substitute their discretion). On judicial review, decisions made by the Commissioner
of Social Security are conclusive if supported by substantial evidence and if the correct
legal standard was applied. 42 U.S.C. § 405(g) (2006); See Kelley v. Apfel, 185 F. 3d
1211,1213 (11th Cir. 1999). “Substantial evidence” is more than a scintilla, but less than
a preponderance and is generally defined as such relevant evidence which a
reasonable mind would accept as adequate to support a conclusion. See Miles v.
Charter, 84 F.3d 1397, 1400 (11th Cir. 1996). In determining whether substantial
evidence exists, “the court must view the record as a whole, taking into account
evidence favorable as well as unfavorable to the decision.” Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995).
The restrictive standard of review, however, applies only to findings of fact, no
presumption of validity attaches to the Commissioner’s conclusions of law, including the
determination of the proper standard to be applied in reviewing claims. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-11456 (11th Cir. 1991) (holding “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.”);
accord, Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The reviewing court must be satisfied that the decision of the Commissioner is
grounded in the proper application of the appropriate legal standards. See Davis v.
Shalala, 985 F. 2d 528, 531 (11th Cir. 1993). The court may not, however, decide the
facts anew, reweigh evidence or substitute its judgment for that of the ALJ, and even if
the evidence weighs against the Commissioner’s decision, the reviewing court must
affirm if the decision is supported by substantial evidence. See Miles, 84 F.3d at 1400;
See also Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). Factual evidence is
presumed valid, but the legal standard applied is not. See Martin, 894 F.2d at 1529. The
Commissioner must apply the correct legal standard with sufficient reasoning to avoid
reversal. (Id.).
LEGAL ANALYSIS
The plaintiff asserts that the ALJ’s RFC determination that he can perform
simple, routine, repetitive tasks with no production pace rate, occasional changes, and
no exposure to hazards is not supported by substantial evidence. (Pl.’s Motion for
Summ. J. at 6). The plaintiff asserts the ALJ made an error when he found that the
plaintiff had a severe mental impairment and continued to assess limitations in the RFC.
Id. The plaintiff contends that the ALJ failed to fully develop the record because there is
no medical opinion regarding the plaintiff’s mental limitations in the record to support his
RFC determination. (Pl.’s Motion for Summ. J. at 6). The plaintiff seeks a remand and to
have the ALJ fully and fairly develop the record by obtaining a consultative examination
or re-contacting Dr. Rowe for further information. (Pl.’s Motion for Summ. J. at 7-8). The
undersigned finds that the ALJ’s findings are not supported by substantial evidence and
a remand is warranted.
The ALJ Failed to Fully and Fairly Develop the Record
It is well settled that even if plaintiff is represented by counsel, the ALJ has a
basic obligation to develop full and fair record. Cowart v. Schweiker, 622 F. 2d 731, 735
(11th Cir. 1981) (citing Thorne v. Califano, 607 F. 2d 218, 219 (8th Cir. 1979)).
Generally, where there is any conflict, inconsistency, ambiguity or insufficiency in the
evidence, the ALJ is required to order a consultative examination to fully and fairly
develop the record. See Cox v. Astrue, 933 F. 2d 169, 177 (N.D. N.Y. 2012). However,
the burden is on the claimant to prove he is disabled. See 20 C.F.R. § 404.1512(a).
An ALJ’s duty to develop the record includes making “every reasonable effort” to
recontact the treating source “if the evidence does not support a treating source’s
opinion on any issue reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case record.” SSR 96-5p, 1996 WL 374183,
at *6 (July 2, 1996). In evaluating the necessity to remand a claim for further
development of the record, one must show that “the record reveals evidentiary gaps
which result in unfairness or ‘clear prejudice.’” See Brown v. Shalala, 44 F. 3d 931, 935
(11th Cir. 1995).
The record contains objective medical evidence demonstrating the presence of
mental impairments. The plaintiff alleged disability based on lung disorder, acid reflux,
and cancer. (Tr. 19, 58, 68). The ALJ found that the plaintiff had not been assessed with
lung disorder and his lung exams were consistently normal. (Tr. 19). The ALJ noted the
plaintiff had not reported any symptoms of acid reflux since the amended alleged onset
date and there was no testimony to support this allegation. (Id.). Lastly, the ALJ noted
the record contained no evidence of a diagnosis of cancer and it was not a medically
determinable impairment. (Id.). However, at step two the ALJ found that the plaintiff’s
severe impairments included substance abuse disorder and post-traumatic stress
disorder, which “significantly limit the ability to perform basic work activities.” (Tr. 18-19);
20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ then found that the plaintiff could
perform a full range of work but had limitations based on his mental impairments. (Tr.
20). Specifically, the ALJ found that the plaintiff,
should have no exposure to work hazards, but can
concentrate in two hour increments to perform simple, routine,
repetitive tasks with only occasionally changes in work setting
or procedure and no production pace rate work requirements.
(Id.).
At step four, in order for the ALJ to determine if the plaintiff was able to perform
his past relevant work, the ALJ was required to assess the plaintiff’s RFC. (Tr. 17-18).
See 20 C.F.R. § 404.1520(a)(4)(iv). RFC is the most the claimant can do despite his/her
limitations. 20 C.F.R. § 416.945(a)(1). The RFC is based on an evaluation of the
relevant evidence in the record. See 20 C.F.R. §§ 416.945(a)(3), 404.1520(a)(3),
404.1520(e), 404.1545(a)(1), (a)(3). At the ALJ hearing level, the ALJ is responsible for
assessing the plaintiff’s RFC. 20 C.F.R. § 404.1546(c).
Despite the objective medical evidence substantiating the presence of a mental
impairment, the record does not contain (1) any medical opinion; (2) mental RFC
assessment or; (3) Psychiatric Review Technique (“PRT”) assessment relating to the
plaintiff’s mental impairments. The Commissioner of Social Security sought opinions
from state agency consultants at both the initial and reconsideration level, however,
those doctors indicated there was insufficient evidence to prepare a PRT or RFC
regarding the plaintiff’s vocational limitations. (Tr. 22, 62, 72). The ALJ did mention that
“as to claimant’s PSTD, and previously reported depression and anxiety, he indicates all
were related to his experience of the events of 9/11 when he was in the World Trade
Center.” (Tr. 21).
The ALJ found that the record did not contain any opinions from treating or
examining physicians indicating that the claimant is disabled or even had limitations
greater than those determined in this decision. (Tr. 22). However, without any medical
opinions to guide the ALJ’s RFC determination based on the plaintiff’s mental
impairments, the ALJ incorrectly crafted his own limitations. Specifically, that the plaintiff
was able to concentrate in two-hour increments with occasional changes in work setting
or procedure. (Tr. 20). See Williams v. Commissioner of Social Security, 366 F. 3d 411,
415 (2019). (holding the ALJ erred by failing to obtain any opinion evidence from an
acceptable medical source, and decided the RFC based on his own interpretation of the
medical record); See Spackman v. Colvin, 2:14-CV-04125-NKL, 2015 WL 518564, at *4
(W.D. Mo. February 9, 2015) (reversing and remanding in light of the inconclusive
medical evidence in the record, the ALJ could not accurately assess Spackman’s RFC
without acquiring additional medical opinions regarding Spackman’s functional
capacity).
In his decision, the ALJ noted at the end of step four that the plaintiff, “now
alleges PTSD, though he has no prior history of those complaints and no current
treatment.” (Tr. 22). The hearing took place on September 7, 2018. (Tr. 29). However,
when the plaintiff went to see Sarette Jenderny, PA-C for a hospital follow-up on June 4,
2015, she noted “Pt (patient) was in World Trade Center during 9/11 terrorist attack.
Suffers from PTSD. Suppressed a lot of his Sx (symptoms) for many years, but
depression/anxiety/drinking have worsened over the last decade.” (Tr. 311). There was
no mention of this allegation of PTSD in the ALJ’s decision. Also, when the plaintiff met
with Dr. Joseph Dispenza on March 29, 2016, the plaintiff was diagnosed with major
depressive disorder, anxiety disorder, and post-traumatic stress disorder. (Tr. 408). In
his Brief Patient Health Questionnaire, the plaintiff noted that more than half the days he
has trouble concentrating on things, such as reading the newspaper or watching
television. (Tr. 410). When asked how difficult his problems make it for him to do his
work, take care of things at home, or get along with other people, the plaintiff marked
the box “extremely difficult.” (Tr. 410).
Dr. Dispenza’s medical notes are marked as Exhibit 4F. Even in light of the
diagnosis by Dr. Joseph Dispenza, the ALJ referenced Exhibit 4F in only two sentences
of his entire decision. (Tr. 21-22). In consideration of the diagnosis, the ALJ should have
inquired further regarding the plaintiff’s work limitations in light of his mental health. See
Fern v. Comm’n of Soc. Sec., 1:18-CV-1297-TPK, 2019 WL, at *3-4 5853859 (W.D.N.Y.
Nov. 7, 2019) (remanding the ALJ’s decision because the record is devoid of any
medical report as to the plaintiff’s functional capacities, and therefore, the ALJ had no
basis for crafting an RFC). During the ALJ hearing, the plaintiff testified to having panic
attacks maybe once or twice a week. (Tr. 37). Also, the plaintiff mentioned that his
treating physician had recommended counseling or mental health treatment, but the
plaintiff had not gone because he could not afford it. (Tr. 37). This is supported by
Exhibit 7D, which shows a significant decrease in the plaintiff’s yearly earnings over
time. (Tr. 182). When asked by his attorney about his depression, anxiety, and panic
attacks, the plaintiff responded that he has these attacks both at home and when he is
out. (Tr. 43). The plaintiff indicated that the attacks occur frequently, but he is unsure as
to what triggers them. (Tr. 44).
The defendant relies on Castle v. Colvin, 577 F. App’x 849, 853-54 (11th Cir.
2014), and Green v. Soc. Sec. Admin, 233 F. App’x 915, 923-24 (11th Cir. 2007) in
support of his position that there is substantial evidence to support the ALJ’s RFC
determination. (Def.’s Motion for Summ. J. at 5). Further, the defendant argues that ALJ
did not need to obtain an opinion regarding the plaintiff’s functional limitations from a
consultative examiner, medical expert, or any other doctor. (Def.’s Motion for Summ. J.
at 7).
In Castle, the plaintiff had a doctor who completed a physical RFC assessment
and opined that Mr. Castle’s pain frequently interfered with this attention and
concentration and that even working a less stress job would be problematic. Castle, at
850-51. In addition, there was a function report completed by Mr. Castle himself where
he noted that he shopped, prepared meals, drove, mowed his law, attended church,
walked, and did laundry. Castle, at 851. The ALJ found that the plaintiff had severe
impairments of obesity and knee arthritis. Id. The ALJ went on to determine Mr. Castle’s
RFC was,
Less than a full range of medium work, and that Mr. Castle
could (1) frequently lift 25 pounds; (2) occasionally lift 50
pounds; (3) stand, walk, and sit for 6 hours; (4) frequently
push and pull with his lower extremities, as well as balance,
stoop, and crouch; and (5) occasionally climb, kneel, and
crawl.
Id.
In Castle, the court found that the district court erred in concluding that
“substantial evidence did not support the ALJ’s RFC finding, that the ALJ’s findings
should have been underpinned by a medical source opinion, and that the ALJ was not
qualified to interpret Mr. Castle’s straightforward medical record.” Castle, at 854. In this
matter, however, there was no RFC assessment prior to the ALJ’s, and no function
report completed by the plaintiff himself, that would have helped guide the ALJ’s RFC
determination. In addition, unlike in Castle, in the instant case, there is no medical
opinion assessing limitations on the plaintiff’s ability to work. Further, there was no RFC
assessment at the initial or reconsideration level completed by the state agencies in this
matter.
In Green, the plaintiff alleged disability due to chronic obstructive pulmonary
disease (“COPD”), tendonitis, back problems, anxiety, and depression. Green, at 918.
The plaintiff was diagnosed by her doctor with COPD, tendinitis in her forearms,
hypertension, and osteoarthritis at multiple sites, and the doctor instructed Green to
continue over-the-counter pain relief. Green, at 919. The doctor in Green completed a
Physical Capacities Evaluation, a Clinical Assessment of Pain, and a Clinical
Assessment of Fatigue/Weakness. Id. The Green doctor concluded that the plaintiff
Could lift five pounds or less occasionally, sit for two hours,
and walk or stand for two hours during each eight-hour
workday. He determined that she could not work around
hazardous machinery or dust, allergens, or fumes.
Id.
The ALJ in Green found that the medical evidence did not support the limitations
imposed by the doctor. Green, at 921. In Green the ALJ also found
‘that [Green] is limited to occasionally lifting and carrying
twenty pounds, frequently lifting and carrying ten pounds;’
‘in an eight-hour workday, she can stand and/or walk six hour
and sit six hours;’
‘[s]he experiences moderate fatigue with its moderate effect
on her ability to concentrate, and requires a temperature and
humidity controlled environment, free of dust, fumes, and
gasses.’
Id.
In Green, the ALJ afforded no weight to one of the doctor’s (Dr. Bryant’s) opinion
of the claimant’s limitations. Id. The only documentary evidence that remained in the
Green case was the office visit records from Dr. Bryant and Dr. Ross that indicated “she
was managing respiration problems well, that she had controlled her hypertension, and
that her pain could be treated with over-the-counter medication.” Green, at 923-24. In
this matter, there is no evidence that the plaintiff’s PTSD was being controlled by
medication. In addition, here, there is no information in the record as to how the
plaintiff’s PTSD would limit his ability to work on a daily basis.
The plaintiff relies on Sanchez v. Berryhill, 1:17-CV-163-GRJ, 2018 WL 7351685
(N.D. Fla. June 29, 2018), in support of his argument that the ALJ failed to fully and
fairly develop the record. In Sanchez, the plaintiff noted that even though the record
contained “objective medical evidence substantiating the presence of a mental
impairment, the record does not contain any medical opinion, mental residual capacity
assessment, or Psychiatric Review Technique (“PRT”) assessment relating to plaintiff’s
mental impairments.” Sanchez, at *9. In addition, similar to this matter, in Sanchez,
there was no opinion evidence by the state agency physicians or psychologists and
there was “insufficient evidence” in the file to prepare a PRT or determine Sanchez’s
functional limitations. Sanchez, at *5. Generally, “where there is any conflict… or
insufficiency in the evidence, the ALJ is required to order a consultative examination to
fully and fairly develop the record.” See Cox at 177; 20 C.F.R. §§ 404.1519a(b),
416.920b(b).
In Sanchez the Court decided that “in the absence of any mental status
assessment, the ALJ had a duty to order a consultative mental status examination to
assess the severity of Plaintiff’s depressive disorder.” Sanchez, at *5. The Court further
noted that,
instead- without the benefit of a medical opinion- the ALJ
improperly made his own independent psychiatric medical
findings regarding the limitations that Plaintiff’s mental
impairments had on his ability to perform work-related
activities.
Sanchez, at *10.
This is very similar to what the ALJ did in the instant case. There is evidence of
PTSD dating back to 2015. (Tr. 311). In June 2015, the plaintiff addressed concerns
about anxiety and depression with physician assistant Sarette Jenderny. There is
further evidence of this mental diagnosis in 2016 during the plaintiff’s visit with Dr.
Dispenza. (Tr. 408). The ALJ did not acknowledge these facts and indicated that the
plaintiff was alleging PTSD despite no prior history of PTSD. (Tr. 22). The record
reflects otherwise. Here, as in Sanchez, at both the initial and reconsideration level,
state agency physicians and psychiatrists were unable to complete an RFC or PRT due
to insufficient evidence. (Tr. 62-64, 72-74). The attempts made to get more information
from the plaintiff were unsuccessful. (Tr. 63, 70, 73). However, there is no evidence in
the record that attempts were made to contact the plaintiff’s doctors directly instead of
contacting the plaintiff. The ALJ should have gotten additional information from Dr.
Rowe regarding the plaintiff’s limitations due to his diagnosis of PTSD, and should have
ordered a consultative exam.
The undersigned finds that there is insufficient evidence to support the ALJ’s
finding that, while the plaintiff does have some limitations, the plaintiff is able to do a full
range of work. Further, this court finds that the lack of evidence to support the RFC
determination comes from insufficient evidence and therefore, creates a gap in the
evidence that ultimately prejudiced the plaintiff.
CONCLUSION AND RULING
The undersigned finds that the ALJ’s findings and ultimate decision were not
based on substantial evidence. In accordance with the foregoing, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment
(DE# 23, 3/17/2020) is GRANTED and the Defendant’s Motion for Summary Judgment
(DE# 24, 4/16/2020) is DENIED. The decision of the Commissioner denying benefits to
the plaintiff is REMANDED under sentence four of 42 U.S.C. § 405(g) to the
Commissioner so that the Administrative Law Judge can fully and fairly develop the
record or contact the plaintiff's treating physician.
DONE AND ORDERED, in Chambers, this 24” day of September, 2020.
IEF U.S. MAGISTRATE JUDGE
JOHN J. O’SULLIVAN
29