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Preast v. Berryhill

United States District Court, N.D. Florida, Pensacola Division

September 26, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This matter is before the Court pursuant to 42 U.S.C. § 405(g) for review of a final determination of the Commissioner of Social Security (“Commissioner”) denying David Scott Preast’s (“Preast”) application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34. The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 for all proceedings in the case, including entry of final judgment. Upon review of the record, the Court finds that the decision of the Commissioner should be reversed, and this matter remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g).

         I. Statement of the Issues

         Preast raises three issues before this Court: (1) the ALJ erred in not fully developing the record; (2) the Appeals Council’s reasons for according “no weight” to the disability determination of the Florida Department of Retirement Services is not supported by substantial evidence; (3) the Appeals Council’s failure to consider additional evidence from Preast’s treating physicians is not supported by substantial evidence.

         II. Procedural History

         On September 15, 2014, Preast filed a Title II application for disability insurance benefits, alleging disability beginning March 24, 2014. Tr. 238-66.[1] A hearing before the ALJ was held June 3, 2016, at which a vocational expert testified and at which Preast appeared without representation. Tr. 112-52. The ALJ issued an opinion on November 2, 2016, finding that Preast was not disabled. ECF Doc 8-2 at 16. The Appeals Council accepted review of the decision, and allowed Preast, then represented by counsel, to submit the following additional evidence:[2]

. Treatment notes of Dr. Zielinski dated 11/18/2014 to 6/24/2016 (Tr. 58-85);
. Treatment notes of Dr. Zielinski dated 1/3/2017 to 7/18/2017 (Tr. 45-57);
. Treatment notes of Dr. Le dated 2/5/2015 to 10/28/2016 (Tr. 89- 111)
. Treatment notes of Dr. Le dated 2/3/2017 (Tr. 86-88)

Tr. 4-5.[3]

         The Appeals Council issued a decision denying benefits on January 9, 2018. Tr. 4-8. The Appeals Council’s decision is the final decision of the Secretary. See Keeton v. Department of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

         Preast filed the instant action seeking judicial review under 42 U.S.C. § 405(g) on February 28, 2018. ECF Doc. 1. The Commissioner filed an answer with the transcript and administrative record. ECF Doc. 8. Preast filed a memorandum in support of his complaint, ECF Doc. 18, and the Commissioner filed a memorandum in support of the Commissioner’s decision. ECF Doc. 19. Preast also filed a reply to the Commissioner’s memorandum. ECF Doc. 22. The matter is thus ripe for review.

         III. Factual Background

         A. The hearing testimony

         At the beginning of the hearing the ALJ advised Preast he had “the right to be represented by an attorney or non-attorney representative who can obtain and submit medical records, explain medical terms, make requests, protect rights or just help you to present the evidence in a light most favorable to your case.” Tr. 115. The ALJ also advised that he would grant one continuance to allow Preast to obtain counsel if he desired. Preast understood this right but wanted to “go ahead and proceed.” Id.

         Preast testified he was 56 years old and his past relevant work was as a school principal and teacher. Tr. 125-26. He has a bachelor’s and a master’s degree and was a principal for four years and an assistant principal for five years. Id. at 16. He has also worked as a teacher of biology, marine science and environmental science. Id. Preast, who was 5’9” and weighed 178 pounds on December 1, 2015, Tr. 114, had recently lost 125 pounds through bariatric surgery. Tr. 126. He explained he had the surgery to keep working and to help or eliminate disc problems in his back, asthma, blood pressure/diabetes, and pain from a benign tumor in his femur. Tr. 126-27.

         Preast discussed his asthma, stating that although he was successfully treated for it in the 1990s, he is on the same levels of steroids, inhalers and compressor nebulizers but they are “not working like they used to” and he is still getting all the side effects. Tr. 127. He testified that he suffers shortness of breath and “it’s just the asthma comes forward too far” to cut back on his medications to alleviate the side effects. Id.

         Preast testified he could only sit or stand for about 15 to 20 minutes due to pain radiating down his right leg. Tr. 128. He complained that “it’s the nerve, that burn that goes down just past your knee.” Walking around “slackens it to a certain point and then that’s when I need to ... lay down.” Tr. 129. Preast stated he could stand for 20 to 25 minutes before experiencing “burning pain” and numbness and would have to sit down. Id.

         Preast also complained of headaches, which testimony took up the bulk of the hearing. Tr. 130-22. He testified he had headaches that felt like “broken glass” and which caused him to not be able to see out of his right eye. He stated his doctors told him his headaches are tied to his blood pressure and that when he has a headache, his systolic pressure was “usually up around 190” and had gotten above 200. Preast complained that “I can actually see my heartbeat in my eye” when he is having one of these headaches. Tr. at 130. He testified they happen “every other day or it could be two days in a row.” Tr. 131. He deals with the headaches by moving into a dark room, “laying down at an angle”, and letting the medications take effect. Id. When asked about his daily activities, Preast complained that “a lot of times I just go lay down if the headache starts, just I cannot function with these headaches because I can’t see and, honestly, it’s just extremely painful.” Tr. at 134.

         Preast testified that he sees Dr. Le “at least every three months” but can also communicate his blood pressure to Dr. Le by email between those visits. Tr. 133. He testified he also sees Dr. Zielinski and that Dr. Le had to make sure the medications prescribed by the two of them did not conflict. Id.

         Preast also testified about his daily activities and limitations. Preast stated he used to help with meals, vacuuming and laundry but stated, “I do very, very little of that now.” Tr. 135. He testified he occasionally drove to the store or went with his wife but that he sometimes simply stayed in the car because the walking was too difficult for him. Tr. 135-36. Preast stated the heaviest thing he could lift was a seven-pound bag of dog food or a gallon jug of liquid. Tr. 136-37. Preast’s wife testified at the hearing as well, but her testimony simply reiterated Preast’s testimony and added that he also suffered from acid reflux. Tr. 146-47.

         The ALJ also solicited testimony from a vocational expert regarding two hypotheticals. The first was as follows:

[A]ssume an individual who is the same age, with the same education and the same past work experience as the claimant who is limited to the light exertional level. He can do no climbing of ladders, ropes or scaffolding and he can occasionally climb stairs. He can occasionally stoop or crouch. He would need to avoid concentrated exposure to extreme heat or to extreme cold, avoid concentrated exposure to high humidity. He would need to avoid concentrated exposure to dust, fumes and gases and also avoid concentrated exposure hazards in the workplace. With those limitations, would the individual be able to perform his past work?

Tr. 149-50. The vocational expert stated such an individual could perform his past relevant work as a principal and teacher. The ALJ then added the following restrictions to the hypothetical:

Now if the individual, though, was limited to basically the sedentary lifting level, but could sit for two hours a day and stand and walk for two hours a day; he would – he may need to lie down for some periods of the day after those four hours, would there be any work that the individual could perform?

Tr. 150. The vocational expert answered in the negative. Id.

         B. The Treating Physicians

         The ALJ attached eighteen (18) exhibits containing medical records to the hearing decision. These records include treatment and progress notes as well as medical source statements or opinions. Additionally, the records are from January 2009 to November 2014. Only those records which are relevant to the issues on appeal are discussed below.

         1. Dr. Le:

         Preast began receiving treatment from Dr. Le, a cardiologist, at Sacred Heart Medical Group in January 2013 primarily for high blood pressure and resulting headaches. Tr. 386-422, 595-615, 621, 622-26. In January 2013, Preast reported headaches usually frontal, right side, with occasional pounding and nausea, over last 3 months progressively getting worse over last six weeks. Tr. 420. He had a CT scan of the brain due to “chronic intermittent headaches” that showed “no infections, no masses, aneurysms, etc.” Tr. 418. He continued to report headaches so severe in March 2013 that he could feel and see his heartbeat. Tr. 398. In May 2013, his headaches were occurring daily. Tr. 396. In January 2014, he reported to Dr. Le that his headaches are “still present but have ...

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