Shomlo v. Commissioner of Social Security
Filing
23
OPINION AND ORDER: The Commissioner's decision is REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and REMANDED to the ALJ for further proceedings. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 7/26/2018. (ADM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
AMNON ALEXANDER SHOMLO,
Plaintiff,
v.
CASE NO. 3:17-cv-1016-J-MCR
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying his application for Supplemental Security Income (“SSI”).
Following an administrative hearing held on August 8, 2016, the assigned
Administrative Law Judge (“ALJ”) issued a decision on November 1, 2016, finding
Plaintiff not disabled since November 18, 2013, the date the application was
filed.2 (Tr. 11-59.) Based on a review of the record, the briefs, and the applicable
law, the Commissioner’s decision is REVERSED and REMANDED.
1
The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 16.)
2
Since Plaintiff amended his alleged disability onset date to November 18, 2013
(see Tr. 40-41), he was not entitled to a period of disability and disability insurance
benefits (“DIB”), because he did not have a disability insured status on the onset date.
(Tr. 14.) Therefore, the ALJ dismissed Plaintiff’s request for a hearing to the extent it
pertained to the claim for a period of disability and DIB. (Id.)
I.
Standard
The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991). The district court must view the evidence 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); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.
Discussion
Plaintiff raises two issues on appeal. First, he argues that the ALJ erred by
failing to analyze the impact of his knee impairment on his ability to perform
medium work and by failing to analyze Exhibit 25F, which contained the
orthopedic records from Shands and the left knee MRI showing multiple tears and
degeneration.3 Second, Plaintiff argues that the Appeals Council improperly
denied review in light of Plaintiff’s submission of new and material evidence,
consisting of two years of primary care treatment notes, which created a
reasonable probability of a different outcome. The Court finds that a remand is
required as to the first issue and, therefore, does not address the second issue.
At step two of the five-step sequential evaluation process, the ALJ found
that Plaintiff had the following severe impairments: degenerative disc disease,
anxiety disorder, and affective disorder. (Tr. 16.) The ALJ also found that
Plaintiff had the following non-severe impairments: fibromyalgia, chronic
cardiovascular and pulmonary insufficiency, exercise-induced asthma, peripheral
neuropathy, irritable bowel syndrome, carpal tunnel syndrome, and
hypothyroidism. (Tr. 17.) The ALJ did not mention Plaintiff’s knee impairment at
step two.
Then, the ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform medium work,4 except he was unable to crawl or climb
3
Plaintiff submitted these medical records after the hearing, but prior to the
ALJ’s decision.
4
By definition, “[m]edium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do
medium work, we determine that he or she can also do sedentary and light work.” 20
C.F.R. § 416.967(c); see also SSR 83-10 (“The considerable lifting required for the full
range of medium work usually requires frequent bending-stooping. . . . Flexibility of the
knees as well as the torso is important for this activity.”).
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ladders, ropes, or scaffolds, he was unable to work around unprotected heights,
he could occasionally crouch, and he was limited to simple, unskilled, and
repetitive work. (Tr. 19.) At that time, the ALJ mentioned Plaintiff’s knee pain by
stating: “In a letter dated January 6, 2015, Dr. Talmor wrote he was treating the
claimant for difficulty of breathing, weakness, and pain in the knees.” (Tr. 24.)
There is no other reference to Plaintiff’s knee impairment or any of the
diagnostic tests pertaining to his knees in the ALJ’s decision, even though they
were mentioned during the August 8, 2016 hearing. (See Tr. 38 (“I know he had
some X-rays earlier this year of his knees.”), 50 (“I had some flare in my knees,
also, pain in the knees.”), 50-51 (“You talked about your knees. Tell me a little bit
about -- what kind of pain are you having in your knees? [Answer:] Well, it [sic]
was diagnosed with (inaudible) and inflammation, and it seems like the bone now
is exposed, also. . . . About a year ago, I started having pain. I couldn’t walk on it.
. . . [T]he acute pain . . . passed away after about a month. Been using a walker
on and off . . . when it seems that it’s coming back and I need to get the weight off
. . . the knee.”), 53 (stating that “since the knee problems,” Plaintiff could stand
“maybe 15 minutes, 30 minutes at most”), 54 (stating that if Plaintiff was carrying
two gallons of water, he would “be putting a lot of pressure on . . . the knees and
[his] body”).)
After the hearing, but before the ALJ’s November 1, 2016 decision,
Plaintiff’s representative sent a letter to the ALJ, dated October 4, 2016,
4
enclosing additional medical records from Shands Jacksonville, Department of
Orthopedics.5 (Tr. 603.) These records became a part of the record as Exhibit
25F. (Tr. 603-20.) The ALJ never mentioned Exhibit 25F in his decision.
Exhibit 25F includes, in relevant part, progress notes from Shands and
results of diagnostic tests pertaining to Plaintiff’s knees. These progress notes
demonstrate that Plaintiff was diagnosed with medial meniscus tear, left; internal
derangement of the left knee; and knee pain, unspecified laterally. (See, e.g., Tr.
606.) Plaintiff complained of “ongoing pain with the knees over the last few
months,” which he described as “moderate, severe pain,” improved by rest and
made worse by activity. (Id.) Associated symptoms included pain, swelling, and
difficulty ambulating. (Id.) The physical examination of Plaintiff’s left lower
extremity on February 19, 2016 indicated severe tenderness to palpation located
at the medial and lateral joint line and full range of motion, except for pain with
hyperextension and hyperflexion. (Tr. 610.) The X-rays of Plaintiff’s knees,
performed on February 19, 2016, demonstrated “[p]ossible small left knee joint
effusion.” (Tr. 615.) The MRI of Plaintiff’s left knee, performed the previous
month, revealed “[m]ultidirectional tears of the medial meniscus . . . , with medial
compartment osseous contusions versus reactive bone marrow due to
5
At the hearing, Plaintiff’s representative advised that she had requested records
from Shands, but they were “way behind in processing the request.” (Tr. 38.) The ALJ
agreed to hold the record open for 20 days, even though Plaintiff’s representative was
not sure that would be sufficient time to receive the records. (Tr. 39, 58.)
5
degenerative changes[,] [p]ossible subacute medial patellofemoral ligament and
medial patellar retinaculum tear [and] [i]ntrasubstance degeneration of the lateral
meniscal posterior horn.” (Tr. 611; see also Tr. 588.6)
The ALJ did not address Plaintiff’s knee impairment in his decision, even
though it was discussed at the hearing and throughout the record, not only in
Exhibit 25F, which the ALJ apparently missed.7 (See, e.g., Tr. 585, 588, 590-91.)
As such, the ALJ did not address any impact that Plaintiff’s knee impairment
might have on his ability to perform medium work, including the ability to
stand/walk and/or lift. Also, the evidence that the ALJ failed to discuss seems
inconsistent with the ALJ’s statement that “the medical records do not support a
worsening of the claimant’s conditions.” (Tr. 26.)
6
Although the ALJ mentioned Exhibit 23F, which also included the results of
Plaintiff’s left knee MRI, the ALJ did not discuss the MRI findings. (See Tr. 24.)
7
The Commissioner argues that Plaintiff has failed to demonstrate that his knee
impairment was causing disabling limitations for a continuous 12-month period
preceding the ALJ’s decision. However, Plaintiff testified at the August 8, 2016 hearing
that he started having knee pain about a year earlier (Tr. 51), or around August 2015,
which is well over a year before the ALJ’s November 1, 2016 decision. Under the
regulations, an impairment “must have lasted or must be expected to last for a
continuous period of at least 12 months.” 20 C.F.R. § 416.909 (emphasis added); see
also 20 C.F.R. § 416.905(a). Further, it appears that the Com missioner is trying to
justify the ALJ’s apparent failure to discuss Plaintiff’s knee impairment and any relevant
records by providing numerous post hoc rationalizations. (See Doc. 22 at 3-5.)
However, “[t]he ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s
decision, as adopted by the Appeals Council.” Newton v. Apfel, 209 F.3d 448, 455 (5th
Cir. 2000). Defendant’s post hoc rationalizations “regardless of whether they are
supported by substantial evidence, cannot bolster or replace the ALJ’s reasons or lack
thereof. It is not the duty of Defendant or the Court to supply reasons for the ALJ’s
finding; rather, that duty rests with the ALJ.” Weaver v. Colvin, Case No. 3:12-cv-513-JJRK, 2013 WL 4699278, *6 (M.D. Fla. Aug. 30, 2013).
6
The ALJ’s failure to discuss this evidence makes it impossible for the Court
to determine whether the ALJ even considered it. Although an ALJ is not
required to refer to every piece of evidence in his decision, the ALJ may not
ignore relevant evidence, particularly when it supports the claimant’s position.
See, e.g., Lord v. Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000); Meek v. Astrue,
2008 WL 4328227, *1 (M.D. Fla. Sept. 17, 2008) (“Although an ALJ need not
discuss all of the evidence in the record, he may not ignore evidence that does
not support his decision . . . . Rather, the judge must explain why significant
probative evidence has been rejected.”) (internal citations and quotation marks
omitted). The evidence at issue supports Plaintiff’s position because the MRI
findings could certainly explain Plaintiff’s complaints of knee pain and resulting
walking/standing and lifting limitations.8
Based on the foregoing, the Court cannot conclude that the ALJ’s decision
is supported by substantial evidence. See Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981) (“Unless the [ALJ] 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
8
The Court cannot conclude that the ALJ’s f ailure to address this evidence is a
harmless error. As Plaintiff points out, a limitation to light work for a person closely
approaching retirement age, without past relevant work, and with a limitation to simple,
unskilled, and repetitive work, would have resulted in a finding of disability under the
Medical Vocational Guidelines (“Grids”) under Grid Rule 202.04. 20 C.F.R. Subpart P,
App. 2 § 202.04 (2017).
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abdication of the court’s ‘duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.’”). Therefore, on remand, the ALJ
is directed to conduct the five-step sequential evaluation process in light of all the
evidence in the record, including the evidence pertaining to Plaintiff’s knee
impairment, and conduct any further proceedings deemed appropriate.9 In light
of this conclusion, the Court need not address Plaintiff’s second argument. See
Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam); Freese
v. Astrue, 2008 WL 1777722, at *3 (M.D. Fla. Apr. 18, 2008); see also Demenech
v. Sec’y of the Dep’t of Health & Human Servs., 913 F.2d 882, 884 (11th Cir.
1990) (per curiam).
Accordingly, it is ORDERED:
1.
The Commissioner’s decision is REVERSED pursuant to sentence
four of 42 U.S.C. § 405(g) and REMANDED to the ALJ for further proceedings
9
After the ALJ’s decision, on March 22, 2017, Plaintif f submitted two years of
primary care treatment notes from Shands Jacksonville Total Care Clinic and UF Health
– Elizabeth G. Means Center for the period January 2014 through September 2016.
(Tr. 60-178.) This evidence was received by Plaintiff’s representative after the ALJ’s
decision. (Tr. 60, 158.) On July 11, 2017, the Appeals Council found that there was no
reasonable probability that this evidence would change the outcome. (Tr. 2.) As this
evidence is now part of the record, it should be reconsidered along with the other
evidence on remand. Of note, this evidence includes progress notes regarding
Plaintiff’s knee impairment. (See, e.g., Tr. 79 (“Mr. Shomlo is [a] 62 y/o male
presenting with 3 weeks of left knee pain without any know[n] injury. He woke up with
pain, mild medial to medial-superior swelling and difficulty with ambulation. He is using
ice, epso[m] salt soaks, patella stabilizing soft knee brace, and crutches to help with
[t]he pain. He states that the pain is a 3-4/10 but increased to an 8 to 10/10 w ith
ambulation. The right knee is now getting sore because he is shifting most of his
weight on that knee.”).)
8
consistent with this Order.
2.
The Clerk of Court is directed to enter judgment consistent with this
Order, terminate any pending motions, and close the file.
3.
In the event that benefits are awarded on remand, any § 406(b) or §
1383(d)(2) fee application shall be filed within the parameters set forth by the
Order entered in In re: Procedures for Applying for Attorney’s Fees Under 42
U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 13,
2012). This Order does not extend the time limits for filing a motion for attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on July 26, 2018.
Copies to:
Counsel of Record
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