PROXMIRE

v.

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

Plaintiff seeks judicial review of the denial of her claim for Supplemental Security Income (“SSI”). As the Administrative Law Judge’s (“ALJ”) decision was not based on substantial evidence and failed to employ proper legal standards, the Commissioner’s decision is reversed and remanded.

I.

A. Procedural Background

Plaintiff filed an application for SSI (Tr. 1561-70). The Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 1423-52, 1498-1502). Plaintiff then requested an administrative hearing (Tr. 1506-20). Per Plaintiff’s request, the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 1375-1417). Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s claim for benefits (Tr. 1346-60). Subsequently, Plaintiff requested review from the Appeals Council (Tr. 1559-60), which the Appeals Council denied (Tr. 1-7). Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is now ripe for review under 42 B. Factual Background and the ALJ’s Decision Plaintiff, who was born in 1964, claimed disability beginning March 15, 2014 (Tr. 1561). Plaintiff completed three years of college (Tr. 1585). Plaintiff’s past relevant work experience included work as a telephone interviewer/survey worker, cook, bartender, and server (Tr. 1406-07, 1585). Plaintiff alleged disability due to broken tibia and fibula in the left leg, ambulatory limitations, right leg full of metal, arthritis, torn ACL, kneecap refractured, chronic obstructive pulmonary disease (“COPD”), and asthma (Tr. 1584). In rendering the administrative decision, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since March 15, 2014, the alleged onset date (Tr. 1352). After conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff had the following severe impairments: long history of COPD, recurrent, in a daily smoker; history of prior left ankle and fibular fracture with displacement; history of prior right ankle and femur fracture with screw placement; hypertension; and obesity (Tr. 1352). Notwithstanding the noted impairments, the ALJ determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix¹ (Tr. 1352). The ALJ then concluded that Plaintiff retained a residual functional capacity (“RFC”) to perform light work, except that Plaintiff could occasionally climb stairs and ramps; occasionally balance on uneven surfaces; frequently stoop; occasionally kneel, crouch, and crawl; could never climb ladders, scaffolds, ropes, or at open, unprotected heights; was limited in sitting, standing, and walking to two hours at a time during an eight-hour workday; required a break of ten to 15 minutes after such twohour periods; must avoid extreme vibrations, extreme cold temperatures, and extreme humidity; and must avoid concentrated exposure to extreme smoke, dust, fumes, gases, and work in poorly ventilated areas (Tr. 1352-53). In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints and determined that, although the evidence established the presence of underlying impairments that reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence (Tr. 1353). Considering

Plaintiff’s noted impairments and the assessment of a vocational expert (“VE”), the ALJ determined Plaintiff could perform her past relevant work as a survey worker, both as actually performed by Plaintiff and as generally performed in the national economy (Tr. 1355-56). Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 1356).

II.

To be entitled to benefits, a claimant must be disabled, meaning the claimant must be unable 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 twelve months. 42 U.S.C. §1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 1382c(a)(3)(D). The Social Security Administration, in order to regularize the adjudicative process, promulgated the detailed regulations currently in effect. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. § 416.920(a). Under this process, the ALJ must determine,

in sequence, the following: whether the claimant is currently engaged in substantial gainful activity; whether the claimant has a severe impairment, i.e., one that significantly limits the ability to perform work-related functions; whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404, Subpart P, Appendix¹; and whether the claimant can perform his or her past relevant work. 20 C.F.R. § 416.920(a)(4). If the claimant cannot perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ to decide if the claimant can do other work in the national economy in view of his or her age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(v). A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 416.920(g)(1). A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F. 3d 1397, 1400 (11th Cir. 1996). While the court reviews the Commissioner’s decision with deference to the factual findings, no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F. 3d 1253, 1260 (11th Cir. 2007) (citations omitted). In reviewing the Commissioner’s decision, the court may not reweigh the evidence or substitute its own judgment for that of the ALJ, even if it finds that the evidence preponderates against the ALJ’s decision. Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158-59 (11th Cir. 2004) (citation omitted). The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient reasoning for determining that he or she has conducted the proper legal analysis, mandates reversal. Ingram, 496 F. 3d at 1260 (citation omitted). The scope of review is thus limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations omitted).

III.

Plaintiff argues that the ALJ failed to address and evaluate her subjective complaints of inability to talk for prolonged periods of time and urinary frequency (Doc. 19 at 7-8). She contends that because she has medical conditions which could reasonably cause those symptoms, i.e., COPD and stress incontinence, the ALJ was required to address them and explain why they were discounted (id. at 8). For the reasons stated below, the Court finds that Plaintiff’s claim regarding urinary frequency has merit and requires remand. To establish a disability based on testimony of pain and other symptoms, the claimant must show evidence of an underlying medical condition and either (1) objective medical evidence confirming the severity of the alleged symptoms or (2) that the objectively determined medical condition can reasonably be expected to give rise to the alleged symptoms. Wilson, 284 F. 3d at 1225 (citing Holt v. Sullivan, 921 F. 2d 1221, 1223 (11th Cir. 1991)); see 20 C.F.R. § 416.929. When the ALJ determines that the claimant’s medical condition could reasonably be expected to produce the claimant’s pain or other symptoms, the ALJ must then evaluate the intensity and persistence of the claimant’s symptoms, including pain, to determine their effect on the claimant’s capacity to work.¹ 20 C.F.R. § 416.929(c)(1).

A. Stress Incontinence and Urinary Frequency

At the outset, the Court notes that the ALJ did not mention or discuss Plaintiff’s allegation that she suffers from stress incontinence. While Plaintiff did not list stress incontinence as one of her disabling impairments in her application for SSI benefits, Plaintiff and her counsel both raised the issue before the ALJ. Plaintiff’s counsel flagged the issue in his prehearing memorandum to the ALJ (Tr. 1636-37). Counsel stated therein that Plaintiff suffers from, among other things, stress incontinence; she takes medication to help but it is only partially effective; and the impairment results in work-related limitations, i.e., the need for unscheduled restroom breaks (id.). Thereafter, Plaintiff testified at the administrative hearing that she suffered from stress incontinence; she is prescribed oxybutynin chloride to help alleviate its symptoms;² she needs to use the restroom once an hour on a good day and twice an hour on a bad day; and she is prescribed HCTZ (hydrochlorothiazide), a diuretic (Tr. 1402- 1404). And, on questioning by counsel, the VE testified that no work would be available if, in

Cir. 2012) (“We cannot affirm based on a post hoc rationale that ‘might have supported the ALJ’s conclusion.’”) (citing Owens v. Heckler, 748 F. 2d 1511, 1516 (11th Cir. 1984)). And as indicated above, here the ALJ said nothing. Consequently, the Court is constrained to conclude that the ALJ erred by failing to consider Plaintiff’s allegations of stress incontinence and complaints of urinary frequency, and remand on this basis is required. See Walker v. Bowen, 826 F. 2d 996, 1001-02 (11th Cir. 1987) (holding that the ALJ’s failure to consider all impairments alleged requires remand because the ALJ is required to consider the combined effect of the claimant’s impairments, including any resulting symptoms, in determining whether she is disabled); Gibson v. Heckler, 779 F. 2d 619, 623 (11th Cir. 1986) (holding that the ALJ’s failure to consider all impairments alleged mandates reversal); cf. Sullivan v. Comm’r of Soc.

Sec., 694 F. App’x 670, 671 (11th Cir. 2017) (holding that a represented claimant could not meet her burden to prove she was disabled on the basis of an impairment that she did not raise in her application for benefits or offer at the hearing as a basis for disability); Robinson v. Astrue, 365 F. App’x 993, 995 (11th Cir. 2010) (holding that the ALJ did not have a duty to

(2) a 2017 hospitalization for abdominal pain in which it was noted that Plaintiff’s COPD was not in acute exacerbation and she often had regular respiratory rate and unlabored breathing with oxygen saturation in the reference range of normal; and (3) a pulmonary functioning test in February 2016 that was interpreted as “normal spirometry” (id.). The ALJ’s stated reasons and consideration of the above evidence provide ample support for the ALJ’s rejection of Plaintiff’s subjective complaints of breathing difficulties. Further, on the Court’s review of the

IV.

Accordingly, after consideration, it is hereby ORDERED: 1. The decision of the Commissioner is reversed, and the matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative proceedings to apply the proper legal standards consistent with the above findings. 2. The Clerk is directed to enter final judgment in favor of the Plaintiff and close the case. DONE AND ORDERED in Tampa, Florida, on this 29th day of September 2020.

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Th 47.) ~ / i } ff ij j or / / “/ ANTHONY E. bORCELLI United Sfates Magistrate Judge cc: Counsel of Record