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Oropesa v. Berryhill

United States District Court, S.D. Florida

March 31, 2017

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



         This matter is before the Court on cross-motions for summary judgment filed by Plaintiff Gisela Oropesa (“Plaintiff”) and by Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“Defendant”)[1]. ECF Nos. [21] [25]. Based upon the consent of the parties, the Honorable Kathleen M. Williams, United States District Judge has referred the matter to the undersigned to take all necessary and proper action as required by law, through and including trial by jury and entry of final judgment, ECF No. [9]. The summary judgment motions are now ripe for disposition.

         For the reasons stated below, the undersigned GRANTS the Plaintiff's Motion for Summary Judgment, ECF No. [21], and DENIES the Defendant's Motion for Summary Judgment, ECF No. [25]. The case is REMANDED to the Commissioner with instructions for the Administrative Law Judge (“ALJ”) to assign a weight to the opinion of Dr. Lorello; assign a weight to the opinion of Dr. Feldman; re-evaluate the opinion of Dr. Levine; more fully develop the record as related to the Plaintiff's failure to seek mental health treatment because of her economic situation; re-evaluate the opinion of Dr. Dergan; more fully explain the weight accorded to Dr. Feria; and present a new hypothetical to the vocational expert, if needed, in accordance with this Order.


         The Plaintiff filed applications for Social Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) benefits, claiming she was disabled as a result of a slip and fall on November 6, 2006. (R. 288-307, 353-71)[2]. After her claims were denied at the initial and reconsideration levels of review, Plaintiff requested a hearing before an ALJ. (R. 177-178). On June 3, 2010, the first hearing was held, and a partially favorable decision for Plaintiff was rendered on June 14, 2010.[3] (R. 62-83). A second partially favorable decision, identical to the first with the only difference being an attached exhibit list, was filed on July 1, 2010. (R. 100-25).[4] On July 30, 2010, the Appeals Council of the Social Security Administration (“AC”) granted the Plaintiff's request to review the decision of the ALJ, and remanded the case with instructions for the ALJ to more fully consider the opinion evidence of record and further evaluate the severity of both the Plaintiff's alleged mental impairments and her obesity. (R. 127-129). The ALJ held a second hearing on May 3, 2013, with all parties present including an impartial vocational expert (“VE”), Jennifer DeBury, who appeared telephonically. (R. 17-41).[5]

         The ALJ rendered the third partially favorable decision on June 24, 2013, which found that: (1) the date the Claimant was last insured for purposes of disability insurance benefits under Title II was December 31, 2010; (2) Claimant was disabled from November 6, 2006 through May 18, 2008 based on the SSDI application filed on January 23, 2007; (3) Claimant was disabled from November 6, 2006 to May 18, 2008 based upon her application for SSI filed on May 11, 2009; and (4) Claimant's disability ended May 19, 2008 due to improvement in her condition. (R. 142-159). The Appeals Council denied review on October 24, 2014. (R. 1-8). Having exhausted all administrative remedies, Plaintiff timely filed the pending Complaint seeking judicial review of the administrative proceedings pursuant to 42 U.S.C 405(g).


         The Plaintiff filed a Motion for Summary Judgment with Supporting Memorandum of Law, alleging that the ALJ erred as a matter of law when he: (1) wrongfully held that the Plaintiff's physical and mental impairment had improved with no supporting medical evidence, and (2) did not present an accurate and sufficient hypothetical question to the vocational expert. ECF No. [21].

         The Defendant filed a Response and Cross-Motion for Summary Judgment addressing the arguments raised in Plaintiff's Motion. ECF No. [25]. The Defendant asserts that there is substantial evidence supporting the ALJ's evaluation of the medical opinion evidence and the ALJ's finding that the Plaintiff improved after May 18, 2008. The Defendant further asserts that substantial evidence supports the ALJ's conclusion that the Plaintiff's mental impairments caused only mild or moderate limitations. ECF No. [25] at 5-9. Finally, the Defendant argues that none of the examining physicians on whom Plaintiff relies made findings that would undermine the ALJ's decision.


         A. Plaintiff's Background

         The Plaintiff, a native of Cuba, was born on April 4, 1964, and came to the United States in 2000. (R. 20). The Plaintiff received a twelfth grade Cuban education, but has not received any schooling in the United States. The Plaintiff does not speak English and resides in Miami Dade County. (R. 20). The Plaintiff has two brothers and a sister, and is the mother of an adult son. (R. 794). The Plaintiff was employed primarily as cashier and counter clerk, and claimed that she stopped working because she became disabled as a result of a slip and fall that occurred at her condominium on November 6, 2006. (R. 21, 560).

         B. Plaintiff's Brief Medical History

         The Plaintiff is five foot one and weighed 220 pounds at the time of the June 3, 2010 hearing. (R. 49). The Plaintiff claimed to have been in relatively good health prior to her alleged disability onset date but following a slip and fall she underwent open reduction internal fixation on her right hip on November 7, 2006. (R. 554). The surgery was successful and she was transferred to HealthSouth Rehabilitation. (R. 573). During rehabilitation, the Plaintiff complained of pain in the left hip region. (R 573).

         The Plaintiff was admitted to South Miami Hospital on November 21, 2006, where she was found to have a stress fracture of the left femoral neck. (R. 593-595). On November 24, 2006, the Plaintiff underwent a percutaneous screw fixation of the left hip. (R. 596). Following the surgery, the Plaintiff was referred to HealthSouth Rehabilitation Hospital for rehabilitative care, but left against medical advice on December 6, 2006. (R. 598-9).

         The Plaintiff continued to experience pain in her right hip despite orthopedic follow-up, physical therapy, and a home health aide. On March 7, 2007, the Plaintiff was admitted for preoperative evaluation for operative intervention for her right femoral neck fracture with conversion to a total hip arthroplasty. (R. 623). Dr. Jeffery Rich performed a right total hip arthroplasty that had some complications with penetration of the acetabulum in the medial wall, but was subsequently repaired by using autograft, which allowed the Plaintiff to have a stable fixation. (R. 642). The Plaintiff was discharged from South Miami Hospital on March 27, 2007. (R. 658).

         On June 14, 2007, the Plaintiff returned to South Miami Hospital and underwent a left total hip replacement by Dr. Rich. (R. 688). The Plaintiff tolerated the procedure very well, remained medically stable, and was transferred for inpatient rehabilitation. (R. 691-92). The Plaintiff was discharged with First Care home care on June 29, 2007, and was to have physical therapy at home followed by outpatient therapy. (R. 703). In his follow up treatment notes dated October 8, 2007, Dr. Rich stated that the Plaintiff was doing well and without pain at that time. (R. 718). The incisions were reported to be well healed and the Plaintiff experienced no tenderness to palpation. (R. 719). However, Dr. Rich further noted that there was mild bilateral degenerative change of the hips. (R. 729).

         On August 6, 2007, Dr. Roselind Horstman Bardisa at Kendall Medical Center completed a physical evaluation. (R. 741). Dr. Bardisa reported that the Plaintiff could not walk without a walker and was experiencing bilateral hip pain that limited her range of motion. (R. 742). Dr. Bardisa also completed a Physical Residual Functional Capacity Assessment in August 2007. (R. 766). The report stated that the Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, stand and/or walk with normal breaks for about six hours in an eight-hour workday, sit less than about six hours in an eight-hour workday, and push and/or pull, including operation of hand and/or foot controls unlimitedly. (R. 767). Dr. Bardisa also noted that Plaintiff's morbid obesity compounded her hip pains. (R. 776). [6]

         On July 23, 2011, the Plaintiff went to the emergency room at Baptist Hospital after she started to develop numbness in the left side of her face, neck, and left upper arm. (R. 909). The Plaintiff does not have a history of vascular problems, and denied any recent seizures, trauma, inability to produce words, visual loss, etc. (R. 919). The Plaintiff was discharged after staying overnight because her symptoms were improving. (R. 910). Dr. Roberto Sanchez stated in the consultation report that Plaintiff was most likely “having a complex migraine.” (R. 921).

         In addition to her physical impairments, the Plaintiff has asserted that her mental impairments precluded her from working as of May 19, 2008. The Plaintiff medical records as related to her mental health are outlined below.

         IV. Hearing Testimony

         A. Plaintiff's Testimony

         The first administrative hearing was conducted on June 3, 2010, in Miami, Florida, attended by the Plaintiff, her counsel, and an interpreter. (R. 42). The Plaintiff, when asked by the ALJ why she stopped working, testified that she could no longer work because of a fall that she had in the condominium where she lived and the subsequent surgeries. (R. 47). She testified that she underwent four surgeries on her hips on November 6, 2006, November 21, 2006, March 14, 2007, and June 14, 2007. (R. 47). When asked how many pounds she can lift, the Plaintiff responded that she could lift no more than five pounds, and the most she had ever lifted while working for was up to twenty pounds. (R. 49).

         When examined by her attorney at the hearing, the Plaintiff testified that she continues to experience a pounding-like pain in her hips that goes down into her legs, and has affected her blood circulation. (R. 49). The Plaintiff testified that she takes Tylenol and Ibuprofen to deal with the pain. (R. 50). The Plaintiff also testified that she sometimes uses a cane when she has to walk long distances, but she avoids long walks because she is unable to do so. (R. 50). In addition, she uses the cart to support herself when she goes to the grocery store, and she stated that she cannot kneel or bend to the floor at all. (R. 50-51). The Plaintiff further testified that she has to lie down four times a day on average for about fifteen to twenty minutes and sleeps on a recliner because she is unable to sleep on a bed due to pain. (R. 52). The Plaintiff started to cry at the hearing because of her current economic situation and her inability to return to work. (R. 53). The Plaintiff testified that she tried to return to work in October of 2007, but was unable to continue because of her physical condition. (R. 54). The Plaintiff stated that the only place she feels better is at home. (R. 54). When asked if she was dealing with depression, the Plaintiff stated that she had “no desire of anything, ” but she is not seeing any mental health professionals regarding her depression because she did not have any insurance or money and did not have a doctor. (R. 55-56). She testified that she would see someone for her depression if she was able to obtain Medicare or Medicaid assistance. (R. 56).

         The second administrative hearing was held on May 3, 2013, in Miami, Florida attended by the Plaintiff, her counsel, an interpreter, and a VE, Jennifer DeBury, who appeared telephonically. (R. 17). The Plaintiff, when asked by the ALJ what keeps her from working, testified that she cannot work because of the four surgeries she had as a result of a slip and fall. (R. 22). The Plaintiff testified that the last time she had seen a doctor was in July, 2011 for ischemia, and that she did not see an orthopedic surgeon in 2011 or 2012. (R. 22). The Plaintiff testified that her condition worsened after her right and left hips were replaced. (R. 26). She stated that she has difficulty walking because her right side is shorter than her left side and she experiences a pinching like pain. (R. 26). The Plaintiff stated that she cannot do anything with her left hand, and that she has been suffering from paralysis in her left side since July 2011. (R. 27-28). The Plaintiff reported living with her sister and other family members. (R. 30). The Plaintiff testified that she is entirely reliant upon her family members, particularly her son, and she suffers from anxiety and depression because of said reliance. (R. 30). When asked by her attorney whether her emotional state had gotten better or worse two years her surgery, the Plaintiff replied that it was “worse.” (R. 31). The Plaintiff testified that she takes Ambien for sleep, and tramadol and Tylenol for pain. (R. 23, 29).

         B. The Vocational Expert's Testimony

         The ALJ posed the following hypothetical to the VE.

[T]he Claimant is 49 years of age, and she has a twelfth grade education, but does not speak English. She has a history of right hip total replacement. Also, by the date last insured, she has a history of non-severe depressive disorder. Two views of the hips on July the 17th, 2009 showed the position is satisfactory, satisfactory position and no fractures for these locations where noted. Although, when she was examined in July the 26th, of 2011, the study showed that the bones and all components were within normal limits. No fractures or dislocations were noted. The physician, who examined, noted muscle strength of 5 over 5 on the right, and 4 over 5 on the left. Also, he noted that intact grip (phonetic) on the right, and slightly decrease[d] on the left. Also, she went on to the hospital on November 11, 2011, and specifically at page 7, I think it shows no evidence of acute cardiovascular disease, and at page 18, no evidence of acute intercranial bleed, well, brain CT. Around a physical standpoint, the Claimant can do light work, lifting ten pounds frequently, and twenty occasionally. She can walk, stand, or sit six hours each position, avoiding, of course, climbing ladders and scaffolds. From a mental standpoint, and prior by the time last insured, she had mild ASR, mild social functioning, and mild attention concentration and pace. During the year 2011, she only saw doctors a couple of times, as she testified, and the record establishes. During the year 2012, and '13, she as seen no doctors. And now would you please identify work from the light and sedentary level, function and capacity for light work activity, avoiding climbing ladders and scaffolds, on the -- with a mild condition, can she do her past work?

(R. 33-34).

         The VE responded, “Yes, the counter clerk and the store cashier.” (R. 35). The VE, after being asked for the work the Plaintiff could perform from the light and sedentary level, testified that the Plaintiff could do light work as a laundry folder or garment sorter. (R. 35-36). In regards to sedentary work, the VE testified that the Plaintiff could perform the duties of a toy sports stuffer, a cuff folder, or a table worker. (R. 36-38). The ALJ went on to pose the question again as to what the jobs the Plaintiff could perform with the assumption that the claimant could do light work, but from a mental standpoint, had a mild limitation in activities of daily living, and “moderate limitations concerning socially and in attention and concentration.” (R. 38). The VE testified that the jobs Plaintiff could perform would not change. (R. 38).

         The Plaintiff's counsel then asked the VE whether or not the fact that Plaintiff could only sit for two hours out of an eight-hour workday, she cannot stand or walk at all in that workday, and she could not lift anything, would preclude her from performing any of her past relevant work or any other jobs. (R. 39). In response to the question, the VE stated “yes, it would.” (R. 39). The Plaintiff's counsel then cited to the findings of Dr. Randy Levine and presented a hypothetical which included many more severe restrictions than the hypothetical posed by the ALJ. The VE found that if Dr. Levine's limitations were found to be present, the Plaintiff would not be capable of performing her past relevant work or any other work.

         V. STAND ...

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