Bronson v. Commissioner of Social Security

Filing 26

OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/20/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SUSAN BRONSON,
Plaintiff,
v.

Case No: 8:16-cv-2209-T-DNF

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.1
_____________________________
OPINION AND ORDER
Plaintiff, Susan Bronson, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying her claim for Supplemental Security
Income (“SSI”). The Commissioner filed the Transcript of the proceedings (hereinafter referred
to as “Tr.” followed by the appropriate page number), and the parties filed memoranda setting
forth their respective positions. For the reasons set out herein, the decision of the Commissioner is
REVERSED AND REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §
405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in

1

Nancy A. Berryhill became the Acting Commissioner of the Social Security on January 23, 2017.
Pursuant to Fed. R. Civ. P. 25(d)(1), Nancy A. Berryhill is substituted as the defendant in this case.

death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).

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The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If

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the claimant is capable of performing other work, she will be found not disabled. Id.

In

determining whether the Commissioner has met this burden, the ALJ must develop a full and fair
record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d
1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff protectively filed an application for SSI on October 22, 2012, alleging a disability
onset date of July 1, 1999. (Tr. 156-61). Plaintiff’s application was denied initially and on
reconsideration.

(Tr.

47, 62).

Plaintiff requested a hearing and one was held before

Administrative Law Judge Richard E. Guida (“the ALJ”) on July 8, 2014. (Tr. 10-32). On October
14, 2014, the ALJ entered a decision finding that Plaintiff was not disabled. (Tr. 67-74). Plaintiff
requested review of this decision and the Appeals Council denied Plaintiff’s request on June 6,
2016. (Tr. 1-6). Plaintiff initiated the instant action by Complaint (Doc. 1) on August 1, 2016.
The parties having filed memoranda setting forth their respective positions, this case is ripe for
review.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since October 22, 2012, the application date. (Tr. 69). At step two, the
ALJ found that Plaintiff had the following severe impairments: chronic obstructive pulmonary

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disease and obesity. (Tr. 69). At step three, the ALJ found that Plaintiff did not have an impairment
or combination of impairments that meets or medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 71).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to “perform light work as defined in 20 CFR 416.967(b) with the following
limitations. The claimant must avoid even moderate exposure to fumes, odors, dusts, gases, and
poor ventilation.” (Tr. 71). At step four, the ALJ found that Plaintiff had no past relevant work.
(Tr. 73).
At step five, the ALJ found that considering Plaintiff’s age, education, work experience and
RFC, there are jobs that exist in significant numbers in the national economy Plaintiff can perform.
(Tr. 73-74). Relying on the testimony of a vocational expert, the ALJ found that could perform
the jobs of sorter, bagger, and garment sorter. (Tr. 74). The ALJ concluded that Plaintiff was not
under a disability since October 22, 2012, the date the application was filed. (Tr. 74).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ’s finding that Plaintiff suffered

from no work limitations due to her mental impairments is supported by substantial evidence; (2)
whether the ALJ erred by according little weight to the opinion of consultative psychologist Dr.
Marone; and (3) whether the ALJ erred by finding that Plaintiff’s breathing problems did not meet
or equal a listing for respiratory disorders. The Court will begin with Plaintiff’s third raised
argument.
Plaintiff argues that the ALJ erred in determining whether Plaintiff met a listing under
Listing 3.00, specifically by improperly rejecting the validity of the spirometric pulmonary
function tests. (Doc. 19 p. 14). Defendant responds that the ALJ properly found that Plaintiff’s

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pulmonary function tests were invalid based on the opinion of state agency medical consultant
David Guttman, M.D. (Doc. 24 p. 11).
Listing 3.00 provides that
[s]pirometry, which measures how well you move air into and out of your
lungs, involves at least three forced expiratory maneuvers during the same
test session A forced expiratory maneuver is a maximum inhalation
followed by a forced maximum exhalation, and measures exhaled volumes
of air over time. The volume of air you exhale in the first second of the
forced expiratory maneuver is the FEV1. The total volume of air you
exhale during the entire forced expiratory maneuver is the FVC. We use
your highest FEV1 value to evaluate your respiratory disorder under
3.02A, 3.03A, and 3.04A, and your highest FVC value to evaluate your
respiratory disorders under 3.02B, regardless of whether the values are
from the same or different forced expiratory maneuvers.
20 C.F.R. Pt. 404, Subpt. P., App. I, § 3.00E.
The record shows that the SSA sent Plaintiff for pulmonary function testing on March 13,
2013. (Tr. 335). The test indicated that Plaintiff understood the directions, was cooperative, and
expended maximal effort. Her results indicated FEV1 readings of .75, .73 and .77 on three trials
pre medication. Her FEV1 readings after medication were .90, .98, and .97. (Tr. 335). The
technician indicated that she gave good effort and the results were acceptable and reproducible.
(Tr. 336). Dr. Stone was the supervising physician. (Tr. 336).
On April 10, 2013, SSA sent Plaintiff for a second round of pulmonary function tests. (Tr.
352). Again, it was noted that she understood the directions, was cooperative and expended
maximal effort. Her FEV1 results pre-medication were .74, .78 and .85. Her FEV1 scores after
medication were 1.02, 1.01, and 1.06. (Tr. 352). Again, the technician noted that Plaintiff gave
good effort, and the results were acceptable and reproducible. (Tr. 353).
State agency medical evaluator David Guttman, M.D., reviewed these tests on May 8,
2013, and noting that “4/10/13 PFT and 3/13/13 PFT results seem to meet listing 3.02. However,

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these tests are invalid as the peak flow was not achieved early in expiration, and the spirograms do
not have a smooth contour with gradually decreasing flow throughout the expiration.” (Tr. 59).
In his decision, the ALJ explained his finding that Plaintiff did not meet a listing as follows:
The undersigned has considered the requirements of Section 3.02 (chronic
pulmonary insufficiency) of the Listing of Impairments contained in 20
CFR Part 404, Appendix 1 to Subpart P. However, the objective medical
evidence does not support a conclusion that impairments rise to listinglevel severity. Pulmonary function tests in March and April 2013 showed
FEV1 results of less than 1.00 (Exs. 7F and 9F). Although these results
could be considered listing level, the state agency medical consultant
opined that these tests were invalid because the peak flow was not
achieved early in expiration and the spirograms did not have a smooth
contour with gradually decreasing flow throughout expiration (Ex. 4A at
11). The undersigned agrees with the state agency medical consultant that
the claimant’s impairment does not meet the requirements of Listing 3.02.
(Tr. 71).
The ALJ always has a basic duty to develop a full and fair record. Brown v. Shalala, 44
F.3d 931, 934 (11th Cir. 1995). Here, the Court finds that the ALJ erred by failing to fully and
fairly develop the record as to whether Plaintiff met a listing. The record contains two pulmonary
function tests that, by the ALJ’s own statement, establish that Plaintiff met a listing. These tests
indicate that Plaintiff gave good effort and that the results were acceptable and reproducible. (Tr.
336, 353). There is no indication that Plaintiff attempted to “cheat” these tests in any way or that
she did not follow the directions of the technician and supervising physician who administered the
test. Assuming arguendo that substantial evidence supports the ALJ’s decision to disregard these
test results as invalid based on Dr. Guttman’s opinion, the fact remains that there are no valid
pulmonary function tests in the record. Rather than deny Plaintiff’s claim, the Court finds that the
appropriate action would have been to have Plaintiff re-tested. The ALJ’s failure to do so
constitutes reversible error.

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As the Court finds that the ALJ erred at step three by failing to fully develop the record,
the Court defers at this time from addressing Plaintiff’s arguments concerning the ALJ’s RFC
findings.
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED pursuant to
sentence four of Section 405(g). The Clerk of the Court is directed to enter judgment consistent
with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on September 20, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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