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Kidwell v. Acting Commissioner of Social Security

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

March 30, 2018



          ROY B. DALTON JR. United States District Judge.

         This cause is before the Court on the following matters: (1) Transcript of Administrative Proceedings (Doc. 10);[1] (2) Joint Memorandum (Doc. 14); (2) U.S. Magistrate Judge Gregory J. Kelly's Report and Recommendation (Doc. 18); (3) Commissioner's Objections to Report and Recommendation (Doc. 19); (4) Plaintiff's Partial Objections to the Magistrate Judge's Report and Recommendation (Doc. 20); and (5) Plaintiff's Response to Defendant's Objections to the Magistrate Judge's Report and Recommendation (Doc. 21).


         On August 12, 2010 ("Application Date"), Plaintiff Kyle Taylor Kidwell ("Kidwell") filed an application with the Social Security Administration ("SSA"), claiming entitlement to Supplemental Security Income ("SSI") benefits based on disability ("Disability Claim").[2] On the Application Date, Kidwell was twenty years old and had graduated from high school after receiving special educational services throughout his academic career. In childhood, Kidwell was diagnosed with several mental and physical ailments, including: attention deficit hyperactivity disorder ("ADHD"), bipolar disorder, learning disability, and anxiety ("Mental Ailments"); and obstructive sleep apnea ("OSA"), obesity, and asthma ("Physical Ailments"). He was prescribed many medications, including: Ability, Topamax, Focalin, Seroquel, Maxair, and Topamax.

         On the Application Date, Kidwell had no driver's license, no income, and no employment experience of any kind. He resided with his mother Cathy Kidwell ("C.K."), his father, and his siblings. Kidwell's father helped him with shopping, certain household chores, and assisting his grandmother. C.K. cooked many of Kidwell's meals, helped him remember his medications, and regularly accompanied him to obtain assessment and care from numerous physicians and mental health care providers-including long-time family physician Joan Kidd, M.D. ("Dr. Kidd").

         With her colleagues at Physician Associates of Honda ("PAF Practice"), Dr. Kidd provided health care to Kidwell, managed many of his medications, and referred him to specialists who often then provided Dr. Kidd with documents concerning their diagnosis and attempts to treat Kidwell for his Mental and Physical Ailments and newer problems, including: psychogenic non-epileptic seizures ("Seizure Disorder"), migraines, heart palpitations, syncope, dizziness and fainting, sleep disturbance, gastrointestinal problems ("GI"), and a broken wrist ("Wrist Injury").[3]

         Although three hearings have been conducted before two different Administrative Law Judges ("ALJ"), and multiple decisions have issued from the Commissioner of Social Security ("Commissioner") and the Florida Department of Health ("State Agency"), KidwelTs Disability Claim remains unresolved. Unfortunately, this uncertainty concerning entitlement to SSI benefits must continue because-as explained below -in issuing his most recent unfavorable decision on the Disability Claim ("2015 Decision")- ALJ Robert Marcinkowski ("ALJ Marcinkowski") committed reversible error by failing to provide the structured and detailed analysis required when treating physician opinion evidence is devalued and discredited, and by departing from uniform rules and procedures established for the adjudication of all SSI claims.[4]

         The Social Security Act

         The SSI program-which is established under the Social Security Act ("Act") and is administered by the Administration-exists to "assure a minimum level of income for people who are . . . disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level." See 20 C.F.R. §§ 416.105, 416.110; see also 42 U.S.C. § 1383(a)(1). To obtain such income ("SSI Benefits"), a person who meets "all the requirements for eligibility" and believes they are disabled ("Claimant"), may claim SSI benefits by filing an application with the Commissioner ("Claim"). See 20 C.F.R. § 416.305. Claims must then be resolved in accordance with uniform legal standards, including procedures and rules established in federal regulations promulgated by the Commissioner.[5] See 42 U.S.C. § 421 (k) (directing the Commissioner to establish "uniform standards" for disability determination, review, and adjudication); 20 C.F.R. § 416.901 (summarizing controlling procedural requirements).

         The Claimant is required-at all levels of the review process-to prove his disability by a preponderance of the evidence. See Bowen v. Yuckert, 482 U.S. 137, 146 n5 (1987) (discussing burden of proof). On behalf of the Commissioner, the ALJ is required to: (1) develop a full and fair record;[6] (2) consider all of the record evidence; (3) decide whether the Claimant is disabled in accordance with a five-step sequential analysis ("Sequential Analysis"); and (4) provide explicit reasoning in its decision-by stating with " sufficient clarity the legal rules being applied and the weight accorded the evidence considered" ("Explicit Reasoning Requirement"). See Ryan v. Heckler, 762F.2d939 (11th Cir. 1985); see also Winschel v. Comm'r of Soc. Sec, 631 F.3d 1176, 1178 (11th Cir. 2011); Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986) (stating that the ALJ "must state specifically the weight accorded each item of evidence and the reasons for his decision"). In addition, ALJs must reach a decision on remand "in strict compliance" with the remand order issued by the Appeals Council of the SSA's Office of Hearings and Appeals ("Council"). See Apone v. Comm'r of Soc. Sec, 435 Fed.Appx. 864, 865 (11th Cir. 2011) (addressing claim that ALJ's decision did not comply with remand order).

         Initial Administrative Decisions

         In response to the Disability Claim, the State Agency issued unfavorable decisions on November 23, 2010, January 3, 2011, January 4, 2011, and April 18, 2011 ("State Decisions"). (See Doc. 10-4, pp. 184-202; Doc. 10-9, pp. 540-52.) In accord with the State Decisions, the Administration denied the Disability Claim initially and on reconsideration (2011 Decisions"). (See Doc 10-5, pp. 266-71, 275.) Contending that he is unable to work due to "multiple health conditions, including heart abnormalities, intestinal problems, mood disorders, and blackouts/seizures, " Kidwell then requested a hearing before an ALJ. (Id. at 276.)

         On September 28, 2012, ALJ Robert D. Tutera ("ALJ Tutera") conducted the first hearing on Kidwell's Disability Claim ("2012 Hearing"). (Doc. 10-3, pp. 166-82.) With legal representation, Kidwell appeared at the 2012 Hearing via video teleconference. (See Id. at 166; see also Doc. 10-5, p. 279.) Kidwell-who was morbidly obese-testified that he suffered from bipolar disorder, anxiety, anger, depression, seizures, extreme migraines, colon issues, low potassium and testosterone levels, leg cramps, pain in his left wrist, and asthma. (See Doc. 10-3, pp. 171-81.) Kidwell further testified that he was receiving medical treatment for these problems from Dr. Kidd, neurologist Ahmed H. Sadek, M.D. ("Dr. Sedak"), and gastroenterologist Steven Feiner, DO ("Dr. Feiner"). (See id.)

         In decision dated January 11, 2013, ALJ Tutera concluded that Kidwell "has not been under a disability ... since August 12, 2010" ("2013 Decision"). Granting Kidwell's request for review of the 2013 Decision, on May 30, 2014, the Council issued an Order ("2014 Order") that criticized the 2013 Decision as "unclear" and incomplete. (See Doc. 10-4, pp. 226-28.) The 2014 Order directed the ALJ to remedy his errors on remand by: (1) offering Kidwell an "opportunity for a hearing" and further developing the record; (2) considering nonmedical evidence provided by C.K. and Kidwell's aunt Angelina Majewski (Doc. 10-9, pp. 522-29, 563-70); (3) obtaining any necessary "evidence from a vocational expert" ("VE"); and (4) issuing a new decision setting out the ALJ's rationale with "specific references to evidence of record." (Doc. 10-4, pp. 227-28.)

         On remand, ALJ Marcinkowski conducted a hearing on October 2, 2014 ("2014 Hearing"). (See Doc. 10-3, pp. 127-62.) With new legal representation, Kidwell appeared in person at the 2014 Hearing, and-in accord with Dr. Sadek's statements concerning the onset of Kidwell's Seizure Disorder[7]-Kidwell amended his disability onset date to October 16, 2009 ("2009 Onset Date").[8] (See Doc. 10-3, pp. 131, 133, 162; Doc. 10-6, pp. 400-01.)

         As documented throughout the Record, Kidwell sought medical treatment for a "major" seizure on the 2009 Onset Date, which caused him to experience dizziness, vision loss, and prolonged unconsciousness, followed by several days of memory loss, left-sided numbness, cramping, and weakness. (See Doc. 10-3, p. 133.) For about four years after the 2009 Onset Date ("Initial Seizure Period"), Kidwell testified that he sporadically experienced similar major seizures and regularly experienced less severe seizures about four times each month. (See Id. at 134-35, 137.) The Initial Seizure Period ended on December 6, 2013, when Kidwell underwent surgery to implant a pacemaker in his chest ("PM Surgery").[9] (See Id. at 137-41; Doc. 10-20, pp. 1350-65 (providing records from Florida Hospital East concerning the PM Surgery).) Kidwell's major seizures ceased after the PM Surgery, but he continued to complain of having about two minor seizures each month-mainly while sleeping. (See Doc. 10-3, pp. 135, 140-41.)

         In addition to seizures, Kidwell testified that each month he experiences four or five migraines that last about five hours each and cause him "agonizing pain." (See Doc. 10-3, pp. 136-137, 142.) Kidwell testified that the migraines leave him dizzy, confused, tired, weak, emotional, and aggressive, and his "migraine hangovers" last for two days after he suffers a migraine. (See Id. at 137.) In response to questions about his OSA diagnosis and use of a CPAP machine, [10] Kidwell testified that he could not use the CPAP because it made him "choke." (See Id. at 145.) Instead, Kidwell uses an oral appliance ("Mouth Guard"), which opens his jaw so he "can breathe." (See id.) Nonetheless, he sleeps poorly and take naps during the day. (See Id. at 145-46.)

         In response to his attorney's questions concerning Mental Ailments-particularly Kidwell's "low" IQ and learning disorder-Kidwell testified that: (1) he has problems with memory and understanding; (2) he "had a lot of trouble" in school; (3) he must be shown a new task "multiple times;" and (4) he forgets things unless he has written them down, repeated them out loud seven times, and then reviewed his notes every couple weeks.[11] (See Id. at 142-43.) With respect to his bipolar condition and ADHD, Kidwell testified that: (1) has never been good with authority; (2) he is easily aggravated, frustrated, and angered; (3) he is troubled by "too much noise;" (4) he frequently experiences episodes of stress that he "can't handle, " so he walks away or yells; and (5) the isolates himself in his room "[a] lot." (See Id. at 143-45, 149.)

         With respect to the Wrist Injury, Kidwell-who is left-handed-testified that he broke his left wrist in a car accident in 2010. (See Id. at 146-48.) The break required surgical fixation of the bones with a metal plate and screws ("Wrist Plate"). Since the surgery, Kidwell has complained of discomfort, pain, cramping, and decreased his ability to type, In response to his attorney's questions concerning write, play video games, pick things up, and lift or hold items that weigh more than eight pounds ("Wrist Problems"). (See Id. at 147-49.)

         After asking Kidwell a handful of questions concerning his daily activities, ALJ Marcinkowski called VE Lee Pike ("VE Pike"), and elicited testimony concerning jobs that were available in the national economy under four hypothetical scenarios. (See Id. at 150-57.) Under the most restrictive hypothetical, VEPike identified several available jobs, including title order clerk and pari-mutuel ticket checker ("2014 Jobs"). (See Id. at 155-56.) Responding to questions from KidwelTs counsel, VE Pike further testified that (1) Kidwell could not meet the "competitive standards" of the 2014 Jobs if he consistently committed two or three errors each week or was absent more than three times a month; and (2) competitive work settings would not tolerate "disruptive behavior" or provide the ongoing supervision and extensive instructions that Kidwell testified he needs to remember information and learn new skills. (See Id. at 157-62.)

         In an unfavorable decision dated December 30, 2014 ("2014 Decision"), ALJ Marcinkowski concluded that Kidwell had "not been under a disability . . . since August 12, 2010." (Doc. 10-4, pp. 233, 247.) This conclusion was based on findings that (1) Kidwell's obesity, Seizure Disorder, and mood disorder are severe-but not debilitating-impairments ("2014 Impairments"); and (2) Kidwell could do the 2014 Jobs, which-subject to certain limitations-require the residual functional capacity ("RFC") to perform sedentary work and simple routine tasks ("2014 RFC").[12] (See Id. at 245-47.)

         On June 4, 2015, the Council granted Kidwell's request for review of the 2014 Decision ("Remand Order"). (See Id. at 261-64; Doc. 10-6, pp. 403-04.) The Council determined that the 2014 Decision lacked clarity "regarding the nature and severity" of Kidwell's "seizures vs. syncope episodes" and provided inadequate analysis of: (1) the "third party report" submitted by Kidwell's dentist Murad K. Thakur, BDS ("Dr. Thakur"); (2) the substantial evidence that contradicted ALJ Marcinkowski's finding that Kidwell's migraines were not severe impairments; (3) the cardiac and non-convulsive epilepsy Listings; and (4) the issue of whether Kidwell's colitis is a severe or non-severe impairment given Dr. Feiner's Medical Source Statement from August 2014 ("Feiner Statement"). (See Doc. 10-4, pp. 261-63.)

         The Remand Order directed that the Claim "be assigned to another" ALJ on remand, [13] who must, among other things: (1) obtain "evidence from a medical expert to clarify the nature and severity" of Kidwell's impairments-particularly his headaches, seizures/ sync ope episodes, and colitis; (2) reconsider the Disability Claim in accordance Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R.§ 416.967(a). with specific regulations and rules; and (3) issue a "new decision" that includes "specific references to evidence of record" in support of the ALJ's evaluation of "treating source opinion" evidence and his rationale for "assessed limitations." (See Id. at 263-264 (emphasis added).)

         Remand Proceedings

         On September 29, 2015, ALJ Marcinkowski held another hearing ("2015 Hearing"), which was attended by Kidwell, his attorney, VE Jane Bouker ("VEBouker"), and "hearing monitor" Billy Brown. (See Id. at 90-91.) Initially, Kidwell's attorney elicited testimony from Kidwell that his GI caused him "sharp" pain on his lower right side, bleeding in his stool, diarrhea, and-depending on his diet- eight to ten lengthy trips to the bathroom each day. (See Id. at 94-96, 115.) Kidwell testified that if he is not careful with his diet, he will experience colitis "attacks" that mimic the stomach flu. (See ...

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