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Brown v. Berryhill

United States District Court, M.D. Florida, Jacksonville Division

November 28, 2017

SHARMANE MONIQUE BROWN, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION [2]

          JAMES R. KLINDT, UNITED STATES MAGISTRATE JUDGE.

         I. Status

         Sharmane Monique Brown (“Plaintiff”), who originally was found to be disabled by the Social Security Administration (“Administration”), is appealing the Administration's final decision finding that as of January 1, 2013, she is no longer disabled and therefore ineligible for continued supplemental security income (“SSI”). Plaintiff suffers from a “disc problem in [her] low back, nerve damage, depression, and asthma.” Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed December 27, 2016, at 125. The original finding of disability was made in July 2004 and was based upon symptoms resulting from “severe spinal disorder and schizoaffective disorder.” Tr. at 125; see Tr. at 104-08, 137.

         The Administration conducted a review of Plaintiff's disability status, see 20 C.F.R. § 404.1594(a), and made an initial determination on January 15, 2013 that Plaintiff is no longer disabled as of January 2013, Tr. at 120-24, 125. Plaintiff sought reconsideration of that determination. Tr. at 127. The matter was referred to a State Agency Disability Hearing Officer (“hearing officer”), who held a hearing on May 20, 2013 and then issued a decision on June 20, 2013 upholding the original determination. Tr. at 135-44, 145-49.

         Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). Tr. at 150. Plaintiff, who was unrepresented at the time, failed to appear at a hearing set for March 20, 2014. Tr. at 115, 175. On that same date, the ALJ issued a Notice to Show Cause for Failure to Appear. See Tr. at 176-77. On April 8, 2014, after Plaintiff failed to respond to the Notice, the ALJ dismissed Plaintiff's request for a hearing. Tr. at 116. On November 7, 2014, the Appeals Council found that “[Plaintiff] had a good reason for not appearing at the hearing” because the Notice of Hearing and the Order to Show Cause had been sent to the incorrect address. Tr. at 118. The Appeals Council vacated the ALJ's order of dismissal and remanded the case for further proceedings. Tr. at 118.

         On October 23, 2015, an ALJ presided over a hearing at which Plaintiff appeared and was represented by counsel. Tr. at 41-98. During the hearing, the ALJ heard from Plaintiff, Tr. at 53-89, and from a vocational expert (“VE”), Tr. at 91-96. Following the hearing, on February 2, 2016, the ALJ issued a Decision finding that Plaintiff's disability ended as of January 1, 2013. Tr. at 15-29. Plaintiff then requested review by the Appeals Council. Tr. at 11. On August 22, 2016, the Appeals Council denied Plaintiff's request for review, Tr. at 1-3, making the ALJ's Decision the final decision of the Commissioner. On October 25, 2016, Plaintiff commenced this action through counsel under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1) seeking judicial review of the Commissioner's final decision.

         Plaintiff makes two arguments on appeal. See Plaintiff's Brief (Doc. No. 14; “Pl.'s Br.”), filed February 27, 2017, at 2, 14-17 (first argument), 17-22 (second argument). First, Plaintiff claims that “[t]he ALJ's finding that medical improvement occurred as of January 1, 2013, is not based on the correct legal standards or supported by substantial evidence.” Pl.'s Br. at 14 (emphasis omitted). Plaintiff argues that “the ALJ did not actually compare [Plaintiff's] original medical evidence and the current medical evidence.” Id. at 16. Second, Plaintiff contends that “[t]he ALJ failed to apply the correct legal standards to the medical opinions of record, ” id. at 17 (emphasis omitted), specifically the opinions of Dr. Odinachi Oguh and Dr. Robert Schnipper, id. at 17-22. Defendant responded on April 27, 2017 by filing a Memorandum in Support of the Commissioner's Decision (Doc. No. 15; “Def.'s Mem.”).

         After a thorough review of the entire record and the parties' respective memoranda, the undersigned recommends that the Commissioner's final decision be reversed and remanded for further administrative proceedings. As to Plaintiff's first argument, the undersigned finds that the ALJ erred in determining medical improvement occurred because the ALJ did not make the required comparison between the evidence upon which the original disability determination was based and the evidence post-dating that decision.

         On remand, a proper comparison of the medical evidence may impact the ALJ's findings with respect to the various medical opinions of record (Plaintiff's second argument on appeal). For this reason, 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) (declining to address certain issues because they were likely to be reconsidered on remand); Demenech v. Sec'y of the Dep't of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need not be addressed when the case would be remanded on other issues).

         II. The ALJ's Decision

         An ALJ typically follows a five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”) when deciding whether an individual is disabled, [3] determining as appropriate whether the claimant (1) is currently employed or engaging in substantial gainful activity; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the Regulations; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step four, and at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         When an ALJ is determining whether a disability has ended, however, the Regulations mandate following a different sequential inquiry. See 20 C.F.R. §§ 404.1594(f), 416.994(b). This sequential inquiry asks, in substance, whether a claimant (1) has an impairment or combination of impairments that meets or medically equals one listed in the Regulations; (2) has experienced medical improvement; (3) has experienced medical improvement that is related to the ability to work; (4) has experienced medical improvement, but an exception to the medical improvement applies; (5) has current impairments that when considered in combination are severe; (6) can perform past relevant work; and (7) can perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1594(f), 416.994(b).[4] “When considering a case for termination or cessation of benefits, . . . the burden is on the Commissioner to prove that the claimant is no longer disabled as of the cessation date because the Plaintiff had experienced ‘medical improvement.'” Townsend v. Comm'r of Soc. Sec., No. 6:13-cv-1783-Orl-DAB, 2015 WL 777630, at *3 (M.D. Fla. Feb. 24, 2015) (unpublished) (emphasis omitted) (citing Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982)), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991); Hie v. Bowen, 788 F.2d 698 (11th Cir. 1986); Carbonyl v. Comm'r of Soc. Sec., No. 6:11-cv-400-Or-22DAB, 2012 WL 1946070, at *3-4 (M.D. Fla. M a y 11, 2012) (unpublished report and recommendation), adopted, 2012 WL 1946072, at *1 (unpublished order).

         Here, prior to engaging in the seven-step sequential inquiry, the ALJ found as follows:

1. The most recent favorable medical decision finding that [Plaintiff] was disabled is the decision dated July 28, 2004. This is known as the “comparison point decision” or CPD.
2. At the time of the CPD, [Plaintiff] had the following medically determinable impairments: a spinal disorder and a schizoaffective disorder. These impairments were found to result in the following residual functional capacity [(“RFC”)]: no lifting or carrying more than [five] pounds on occasion, no standing/walking for more than [two] hours in a workday, no sitting for even [six] hours ...

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