CANNINGTON, JR v. BERRYHILL

Filing 22

MEMORANDUM DECISION AND ORDER. The Commissioner's decision denying benefits is REVERSED. This case is REMANDED to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 9/29/2017. (sdw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
BRYANT F. CANNINGTON, JR.,
Plaintiff,
vs.

Case No.: 5:16cv208/EMT

NANCY A. BARNHILL,
Acting Commissioner of Social Security,
Defendant.
______________________________/

MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition
pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the
parties’ consent to magistrate judge jurisdiction (see ECF Nos. 11, 12). It is now
before the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”),
for review of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying Plaintiff’s application for supplemental
security income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.
Upon review of the record, it is the opinion of the undersigned that the findings
of fact and determinations of the Commissioner are not supported by substantial
evidence; therefore, the decision of the Commissioner should be reversed and
remanded.

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I.

PROCEDURAL HISTORY
On April 23, 2012, Plaintiff filed an application for SSI, alleging disability

beginning February 8, 2012 (Tr. 12).1 His application was denied initially and on
reconsideration, and thereafter he requested a hearing before an administrative law
judge (“ALJ”). A hearing was held on June 3, 2014, and on September 5, 2014, the
ALJ issued a decision in which she found Plaintiff “not disabled,” as defined under
the Act, at any time through the date of her decision (Tr. 12–23). The Appeals
Council subsequently denied Plaintiff’s request for review. Thus, the decision of the
ALJ stands as the final decision of the Commissioner, subject to review in this court.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).
Prior to the above proceedings, Plaintiff had filed an earlier application for
disability insurance benefits and for SSI, alleging disability beginning on July 1, 2005
(Tr. 68). After a hearing held on December 16, 2011, before a different ALJ, the ALJ
issued a decision finding that Plaintiff was limited to a sedentary level of exertion but
was not disabled at any time through February 7, 2012, the date of his decision (Tr.
68–78). Plaintiff filed the instant application shortly thereafter.

All references to “Tr.” refer to the transcript of Social Security Administration record filed
on November 14, 2016 (ECF No. 14). The page numbers refer to those found on the lower righthand corner of each page of the transcript, as opposed to those assigned by the court’s electronic
docketing system or any other page numbers that may appear.
1

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II.

FINDINGS OF THE ALJ
In denying Plaintiff’s claims, the ALJ made the following relevant findings (see

Tr. 12–23):
(a) Plaintiff had not engaged in substantial gainful activity since April 23,
2012, the application date;
(b) Plaintiff had the following severe impairments: degenerative disc disease;
hypertension; obesity; and hiatal hernia;
(c) Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1;
(d) Plaintiff had the residual functional capacity to perform light work as
defined in 20 C.F.R. § 416.967(b), except he could lift and carry up to 20 pounds
occasionally and 10 pounds frequently; he could stand, walk, and sit with normal
breaks for 6 hours in an 8-hour work day; and he had the ability for unlimited pushing
and pulling;
(e) Plaintiff was capable of performing his past relevant work as a security
guard. This work did not require the performance of work-related activities precluded
by Plaintiff’s residual functional capacity; and
(f)
Plaintiff had not been under a disability, as defined in the Act, since April
23, 2012, the date the application was filed.
III.

STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether

the decision is supported by substantial evidence from the record and was a result of
the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218
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(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only
when convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination
that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th
Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,
the Commissioner’s decision will not be disturbed if in light of the record as a whole
the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);
Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a
scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Lewis, 125
F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d

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1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates
against the Commissioner’s decision, the decision must be affirmed if supported by
substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The Act defines a disability as an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To qualify
as a disability the physical or mental impairment must be so severe that the claimant
is not only unable to do his previous work, “but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R.
§ 404.1520(a)–(g),2 the Commissioner analyzes a disability claim in five steps:
1.

If the claimant is performing substantial gainful activity, he is not

disabled.
2.

If the claimant is not performing substantial gainful activity, his

impairments must be severe before he can be found disabled.
In general, the legal standards applied are the same regardless of whether a claimant seeks
disability insurance benefits (“DIB”) or SSI, but separate, parallel statutes and regulations exist for
DIB and SSI claims (see 20 C.F.R. §§ 404, 416). Therefore, citations in this Order should be
considered to refer to the appropriate parallel provision. The same applies to citations of statutes
or regulations found in quoted court decisions.
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3.

If the claimant is not performing substantial gainful activity and he has

severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if his impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4.

If the claimant’s impairments do not prevent his from doing his past

relevant work, he is not disabled.
5.

Even if the claimant’s impairments prevent him from performing his past

relevant work, if other work exists in significant numbers in the national economy that
accommodates his residual functional capacity (“RFC”) and vocational factors, he is
not disabled.
The claimant bears the burden of establishing a severe impairment that keeps
him from performing his past work. 20 C.F.R. § 404.1512. If the claimant establishes
such an impairment, the burden shifts to the Commissioner at step five to show the
existence of other jobs in the national economy which, given the claimant’s
impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052
(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then
prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987).
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IV.

PLAINTIFF’S PERSONAL AND MEDICAL HISTORY3
A.

Personal History

At Plaintiff’s hearing, he testified that his last job was during the seven years
he worked as a security officer, which he quit in 2001 on the advice of his doctor (Tr.
37–38). Plaintiff testified that he now lives with his parents (Tr. 33), and during the
day he generally sits at home, watches TV, and talks with his parents (Tr. 35). He
stated that he does not cook, wash dishes, do the laundry, clean, do yard work, or shop
for groceries, and that he can take out the garbage only if it is a very small bag (Tr.
35–36). Plaintiff testified that he does the driving for his family, including going to
church and taking his parents to their doctor appointments, as well as for grocery
shopping, and he stated that he had driven to the hearing (Tr. 33).
Plaintiff testified that he has pain in his hands, arms, back, legs, feet, and chest,
for which he takes over-the-counter Tylenol (Tr. 34). He stated that the Tylenol was
not effective in relieving the pain but that he could not afford prescription medication
because of the cost and his lack of health insurance to cover the cost (Tr. 47–48). He
stated that on average he could sit for about 20 to 30 minutes before having to shift

Because the foundation of the court’s opinion lies with Plaintiff’s claim regarding the
assessment of his anxiety or panic attacks, the court primarily focuses its attention on those aspects
of the record that concern Plaintiff’s mental health.
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or lie down because of back spasms (Tr. 48). He testified to using a cane for balance
and for when he is experiencing pain (Tr. 49). He estimated that he could walk 50 to
60 feet and stand about 10 minutes without exacerbating his back or leg pain (Tr.
49–50). Plaintiff also testified to having difficulty reaching overhead and gripping
objects (Tr. 50–52). Plaintiff further described having pain and numbness in his
hands, which causes him difficulty in gripping objects and picking them up, and that
he cannot feel a pinprick to his fingers (Tr. 38–40).
Plaintiff additionally testified about his anxiety or panic disorder, stating that
he had panic attacks that occurred without notice, even when he is simply talking to
his parents (Tr. 51). He described his attacks as involving a racing heartbeat, profuse
sweating, pounding in his head, and nausea that force him to lie down (Tr. 50–51).
Plaintiff provided that the attacks could last between 20 and 30 minutes, and on
average they would occur one to seven times per week (Tr. 51). In one instance he
stated he had about 20 attacks in one day (id.).
B.

Relevant Medical History

In a Supplemental Anxiety Questionnaire submitted by Plaintiff on June 2,
2012, he described experiencing anxiety attacks for the past three and a half years,
having had approximately 70 to 75 attacks in the last three months and close to 150
attacks in the previous six months, and having had six attacks on the day he filled out
the form (Tr. 214–15). Plaintiff stated that his panic attacks would last from five to
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thirty minutes at a time and would cause symptoms such as a racing heart, sweating,
head throbbing, nausea, and pain in the shoulders, arms, and sometimes the chest (Tr.
215). He indicated that nothing he knows of brings on the attacks and that sometimes
he wakes up at night having an attack (id.). He stated that lying down and wiping a
cold washcloth on his face can help relieve symptoms (id.). In answer to a question
regarding how the attacks affect his ability to function, Plaintiff expressed fear that he
does not know when or where an attack may occur (Tr. 216). Plaintiff seemed to
express frustration that no doctor has been able to diagnose the cause of these attacks
(Tr. 215). Plaintiff’s mother filled out a similar form that corroborated Plaintiff’s
anxiety attacks and symptoms (Tr. 217–19).
On June 21, 2012, Cara Wheeler, Psy.D., conducted a clinical interview with
Plaintiff. During the interview Plaintiff reported that he was not currently taking any
psychotropic medication, nor had he any history of mental health treatment other than
being prescribed Paxil by his primary care physician (Tr. 306). Plaintiff stated that
he has had many “spells” that produce head pressure, dizziness, chest and shoulder
pain, and perspiration, and that they last from five to thirty minutes (id.). Plaintiff
denied having any difficulty breathing during these episodes or “feeling that he is
dying or going crazy” (id.). Plaintiff evidently described these spells as “mysterious,”

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as waking him at night sometimes, and as preventing him from leaving his home
because he is afraid of having an attack in public (id.).
Dr. Wheeler noted that Plaintiff’s (unidentified) cardiac tests came back normal
(Tr. 306). While Plaintiff was observed to be somewhat unkempt with body odor, he
was otherwise perceived as appearing normal and behaving appropriately and
cooperatively (Tr. 307). Dr. Wheeler found Plaintiff to be able to speak normally and
coherently and to be able to respond to questions appropriately (id.). She diagnosed
Plaintiff as having “Panic Disorder with Agoraphobia (provisional),” but while this
was in recognition of Plaintiff’s spells which “include[d] many symptoms commonly
associated with anxiety,” she also noted that Plaintiff denied feeling panicked during
his spells and that he would feel dizzy but not experience shortness of breath (Tr.
307–08). As Plaintiff had recently been prescribed a second prescription for his
uncontrolled high blood pressure, and because Plaintiff reported that it was during this
time that his spells increased, Dr. Wheeler opined that his spells could have a “medical
explanation” (Tr. 308). Consequently, Dr. Wheeler stated that she was unable to make
a clear diagnosis about Plaintiff’s psychological condition without a thorough cardiac
evaluation (id.).
On July 28, 2012, Plaintiff was examined at the request of Disability
Determination Services by Joseph C. Siano, D.O., who largely commented on
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Plaintiff’s physical ailments but did make the statement that Plaintiff’s “[a]llegation
of anxiety appears to pose no functional [limitation] at this time” (Tr. 312).
In completing an August 31, 2012, Disability Report, Plaintiff responded to a
question, which asked whether he had any new illnesses or conditions, that his spells
were getting worse; he also reiterated that he fears going out anywhere because he
might have another spell (Tr. 225, 228).
On November 6, 2012, Plaintiff was seen for a physical consultative
examination by Carla M. Holloman, D.O., who noted: “[Plaintiff] was diagnosed with
hypertension in the 1990’s. He complains, but, this only occurs with anxiety attacks.
He does not carry a formal diagnosis of anxiety nor has he been prescribed any
medications.” (Tr. 329).
On December 19, 2013, Plaintiff was seen by Quin E. Chadwick, ARNP, who
noted that Plaintiff had been admitted to the hospital the previous week because of
chest pain (Tr. 345). Plaintiff had a “cardiac workup,” was told he had anxiety, and
was released the next day (id.). Accordingly, ARNP Chadwick indicated that
Plaintiff’s anxiety could be related to his chest pain (Tr. 346). Plaintiff’s mood and
affect at the examination were observed to be normal, however (id.). ARNP
Chadwick prescribed visteral (hydroxyzine Hcl) for Plaintiff’s anxiety, to be used
when he felt an “attack coming on”; she also indicated that Plaintiff should take the
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medication when he “feel[s] chest pain starting,” evidently to rule out anxiety (see Tr.
347).
V.

DISCUSSION
As is relevant here, Plaintiff contends in his second claim that the ALJ erred in

her evaluation of Plaintiff’s anxiety as a mental impairment at Step Two and while
assessing his RFC at Step Four. In her Step Two analysis, the ALJ found Plaintiff’s
anxiety not to be a severe impairment. The ALJ determined 1) that the record did not
contain “any findings which would support any significant functional limitations” and
2) that Plaintiff’s condition had improved with conservative treatment (Tr. 14).
In determining Plaintiff’s anxiety to be non-severe, the ALJ gave some weight
to the opinion of Jill Rowan, Ph.D., a non-examining medical source who, on July 2,
2012, found Plaintiff to have only mild difficulties in maintaining social functioning,
no difficulties with maintaining concentration, persistence or pace, and no episodes
of decompensation of an extended duration (Tr. 21–22, 91).4
In the next paragraph, which is virtually identical to the paragraph describing
Dr. Rowan’s findings, the ALJ gave some weight to the findings of Patricia A. Clark,
In so providing, the ALJ recognized that, as a non-examining medical source, Dr. Rowan’s
opinion would not generally carry the same weight as an examining or treating physician (Tr. 21).
The ALJ also indicated, as she did with all of the examining sources she cited, that Dr. Rowan “did
not have the benefit of reviewing all the evidence received at the hearing level prior to making her
assessment” (Tr. 22).
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who, on September 18, 2012, had likewise determined that Plaintiff had mild
difficulties in maintaining social functioning but no difficulties with maintaining
concentration, persistence or pace, and no episodes of decompensation of an extended
duration (Tr. 22, 105).
Both Drs. Rowan and Clark provided in support of their opinions that Plaintiff
lacked a “mental health history”; that he was taking no medication for his anxiety; that
while he reported having spells he denied having panic as one of the symptoms; that
he engaged in certain daily activities5; and that when Dr. Wheeler provided her
diagnosis of Panic Disorder with Agoraphobia, she indicated it was a provisional
diagnosis because of the possible medical explanation for Plaintiff’s symptoms (Tr.
91–93, 105–07).
The ALJ also noted the fact that Plaintiff was able to testify before her at the
hearing without apparent difficulty, and she also generally noted that Plaintiff was
cooperative during his interview with Dr. Wheeler without any concentration deficits
5

The ALJ recounted these activities as follows:
[T]he claimant can complete the following cognitive activities
with occasional and/or no assistance: dial a telephone, shop in stores,
prepare simple meals, complete light household chores, go to doctors’
appointments, pick up medicine, visit family, visit friends, spend time
with others in person, spend time with others on the phone, watch
television, manage his own funds, go to church, go outside alone, and
go outside daily.

(Tr. 17).
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(Tr. 17, 20). Further, the ALJ cited the fact that Dr. Wheeler’s diagnosis was unclear
regarding the cause of Plaintiff’s symptoms (Tr. 20).
As is relevant to the issue at bar, the ALJ posed the following hypothetical
question to the Vocational Expert (“VE”) at the hearing:
Q:

E4F and E3F will be the next hypothetical. E4F is the
physical CE.6 Allegation . . . of back pain appears to pose
no functional limitation at this time. Allegation of high
blood pressure appears to pose no functional limitation at
this time. Allegation of numbness in the hands appear[s] to
pose no functional limitation at this time. Allegation of
high blood pressure appears to pose no functional limitation
at this time and allegation of anxiety appears to pose no
functional limitation at this time. And the E3F, it’s a
psychological CE by Dr. Wheeler and she diagnosed him
with a panic disorder. But in her conclusion and summary
she indicated that he has some spells that may be a result of
uncontrolled high blood pressure or might be psychological
in nature. And because there is no medical explanation, it
is unclear about what his psychological RFC should be. So
she says it is difficult to make any clear judgment about his
psychological health, so we don’t have anything as far as
the psychological. So that will be based on E4F only. So
could that individual do the Claimant’s past relevant work?

A:

I believe so, Your Honor.

(Tr. 53–54) (emphasis added).

E4F and E3F refer to exhibits that are the consultative examination reports of Dr. Siano
and Dr. Wheeler, respectively. It is surmised that “CE” means consultative examination.
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Thus, it is fairly evident from this hypothetical question that the ALJ directly
excluded Plaintiff’s anxiety, or at least his “spells,” regardless of their origin, from
consideration in the hypothetical questions posed to the VE.
Plaintiff contends that he does not take medication, or ostensibly seek other
treatment, for his anxiety because he is indigent and therefore unable to afford it. As
the Eleventh Circuit has held, noncompliance with a prescribed treatment regimen
does not prevent a social security claimant from receiving benefits when the reason
for his noncompliance is beyond his control, such as when he is unable to afford the
treatment. Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990) (citing Dawkins
v. Bowen, 848 F.2d 1211, 1213-14 (11th Cir. 1988)). Thus, “poverty excuses
noncompliance,” and “while a remediable or controllable medical condition is
generally not disabling, when a ‘claimant cannot afford the prescribed treatment and
can find no way to obtain it, the condition that is disabling in fact continues to be
disabling in law.’” Dawkins, 848 F.2d at 1213 (quoting Taylor v. Bowen, 782 F.2d
1294, 1298 (5th Cir. 1986) and collecting cases). These holdings are applicable in this
case where Plaintiff appeared to be near a diagnosis for his “spells,” be they
determined to be from anxiety, a cardiac condition, and/or a reaction to medication,
but a firm diagnosis is frustrated by Plaintiff’s alleged inability to afford follow-up
care.
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Plaintiff also makes the point that the failure to achieve or obtain a diagnosis
for his “spells” does not negate the fact that he may nevertheless have a severe or
debilitating impairment. Plaintiff thus attacks the ALJ’s seeming reliance on Dr.
Wheeler’s inconclusive diagnosis as support for her finding that Plaintiff was not
disabled (see Tr. 16, 17, 20). Indeed, it appears that Plaintiff’s anxiety was not
identified as a severe impairment simply because there was no certain diagnosis of his
problem.7
Equally, the issue of how Plaintiff’s spells and their symptoms might impose
functional limitations upon him does not appear to have been considered by the ALJ,
again apparently because of the lack of a firm or final diagnosis. As Defendant
recognizes, a diagnosis alone is insufficient to establish a limitation; a limitation is
measured by its effect on a person’s ability to work, “not simply in terms of deviation
from purely medical standards of bodily perfection or normality.” McCruter v.
Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986); see also Russell v. Astrue, 331 F.
App’x 678, 681 (11th Cir. 2009); Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th
Cir. 2005). “Medical diagnosis is seldom an exact science.” Landess v. Weinberger,

However, Defendant’s point is well taken that the exclusion of anxiety from the ALJ’s
listing of severe impairments was not by itself cause for error. See Jamison v. Bowen, 814 F.2d 585,
588 (11th Cir. 1987); Tuggerson-Brown v. Comm'r of Soc. Sec., 572 F. App’x 949, 951–52 (11th
Cir. 2014).
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490 F.2d 1187, 1189 (8th Cir. 1973). Diagnoses themselves are insufficient, and
where, as here, there are questions or shortcomings about the source or extent of a
claimant’s impairment, the ALJ “has a duty to fairly and fully develop the matters at
issue.” Id.; see also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). “This
special duty requires the ALJ to scrupulously and conscientiously probe into, inquire
of, and explore for all the relevant facts and to be especially diligent in ensuring that
favorable as well as unfavorable facts and circumstances are elicited.” Graham v.
Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997); see also Harrison v. Commissioner of
Social Sec., 569 F. App’x 874, 878–79 (11th Cir. 2014).8
Moreover, there is an important feature to Plaintiff’s “spells” that to this point
appears to have been overlooked: their episodic nature. In this regard, the court
models its finding on the Eleventh Circuit’s opinion in Mace v. Commissioner, Social
Sec. Admin., 605 F. App’x 837 (11th Cir. 2105). The core of that decision was the
court’s determination that the claimant, who suffered from bipolar disorder and was
responding erratically to treatment, would be expected to have “good days and bad
days,” and so the simple fact that the claimant might have symptom-free intervals
could not by itself provide a basis upon which to negate disability. Id. at 843–44.
The status of Plaintiff’s anxiety issue appears even more muddled and unresolved when
one considers the fact that nearly all of the medical examinations of Plaintiff took place in 2012 and
Plaintiff reported during his hearing before the ALJ in June of 2014 that his symptoms had worsened
and his attacks were occurring with great frequency (Tr. 50–51).
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As the Eleventh Circuit further explained:
Suppose that half the time [the claimant] is well enough that she could
work, and half the time she is not. Then she could not hold down a
full-time job. That is likely to be the situation of a person who has
bipolar disorder that responds erratically to treatment.
Id. at 843 (quoting Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008)).
While the instant case might differ from Mace in that Plaintiff’s attacks appear
to be more short-lived—but more frequent—the point made in Mace was that the ALJ
needs to consider the mercurial, unpredictable nature of an impairment such as this
and its possible effects on the claimant’s ability to work. Seen in this light, the fact
that Plaintiff may have appeared cogent and unaffected during his medical interviews,
for instance, carries less weight than normal. It is also clear that the ALJ made no
allowance for this issue in her RFC determination or in her hypothetical questioning
of the VE. In sum, the overall picture of the findings regarding Plaintiff’s mental
health appear to be based upon how he presented during times when he was not
subject to one of his attacks or “spells,” and if this is because the ALJ ruled out the
episodic occurrence of these attacks as a basis for a limitation on his functionality,
there is no evidentiary support for this in her opinion.
As a final note, the Eleventh Circuit also made the following point regarding
the ability to function in the workplace with a mental health impairment:

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[T]he ALJ failed to consider that persons with chronic psychotic
mental impairments like [the claimant] “may commonly have [their]
li[ves] structured in such a way as to minimize [their] stress and reduce
[their] symptoms and signs.” 20 C.F.R. § 404, Subpt. P., App. 1,
§ 12.00(E). For that reason, such individuals “may be much more
impaired for work than [their] symptoms and signs would indicate.” Id.;
see also 20 C.F.R. § 404, Subpt. P., App. 1, § 12.00(C)(3) (“We must
exercise great care in reaching conclusions about [a claimant’s] ability
or inability to complete tasks under the stresses of employment during
a normal workday or work week based on a time-limited mental status
examination or psychological testing by a clinician, or based on [a
claimant’s] ability to complete tasks in other settings that are less
demanding, highly structured, or more supportive.”); Hutsell v.
Massanari, 259 F.3d 707, 711 (8th Cir. 2001) (“With regard to mental
disorders, the Commissioner’s decision must take into account evidence
indicating that the claimant’s true functional ability may be substantially
less than the claimant asserts or wishes.” (citation and internal quotation
marks omitted)).
Because the ALJ did not account for the effect of the environment
on [the claimant], the ALJ . . . often emphasiz[ed] the importance of
evidence regarding [the claimant]’s signs and symptoms without
addressing how her mental impairments would translate to consistent
employment in a competitive work environment.
Id. at 842. In the instant case, the ALJ identified certain baseline activities of daily
living that Plaintiff could perform, but as the Eleventh Circuit discusses, certain work
environments or routines may prove to be inappropriate based upon their effects upon
his mental health.
As discussed earlier, the ALJ maintains a responsibility to ensure a
comprehensive record in order to fully develop the facts and issues. Ellison v.
Barnhart, 355 F.3d at 1276; Graham, 129 F.3d at 1423. On remand, the court directs
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the Social Security Administration to consider the stresses of a work environment, as
well as the fluctuating or episodic nature of Plaintiff’s alleged attacks—and to better
determine their medical source—when determining Plaintiff’s RFC and any additional
limitations on his functionality on account of these attacks.
In conclusion, for the reasons provided above, this case should follow the
general rule when errors occur, which is to reverse and remand for additional
proceedings. See, e.g., Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (referring
to general practice); Holt v. Sullivan, 921 F.2d 1221, 1223–24 (11th Cir.1991).
Accordingly, it is ORDERED:
1.

The Commissioner’s decision denying benefits is REVERSED.

2.

This case is REMANDED to the Commissioner of Social Security

pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent
with this opinion.

At Pensacola, Florida this 29th day of September 2017.

/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE

Case No.: 5:16cv208/EMT