United States District Court, S.D. Florida
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
M. SIMONTON UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the cross-motions for summary
judgment filed by Plaintiff Luis Orlando Sensat
("Plaintiff") and by Defendant Nancy A.
Berryhill, ("Defendant"), Acting
Commissioner of Social Security Administration, ECF Nos. 
. The Plaintiff has also filed a Response in Opposition
to Defendant's Motion for Summary Judgment, ECF No. .
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. . The summary
judgment motions are now ripe for disposition.
reasons stated below, the undersigned hereby GRANTS the
Plaintiff's Motion, ECF No. , and DENIES the
Defendant's Motion for Summary Judgment, ECF No. .
This case is REMANDED to the Commissioner in accordance with
February 1, 2012, the Plaintiff filed an application for a
period of disability and disability insurance benefits under
Title II of the Social Security Act, alleging disability
beginning January 23, 2012. (R. 236). The Plaintiff also filed a
Title XVI application for supplemental security income on the
same date. (R. 230). The claim was denied initially on
February 24, 2012, and upon reconsideration on May 24, 2012.
(R. 102, 117). On January 30, 2014, a hearing was held in
front of an Administrative Law Judge (“ALJ”) in
Miami, Florida. (R. 34-96). At the hearing, the ALJ heard
telephonic testimony from an impartial vocational expert
(“VE”), Steve Bast, and the Plaintiff, who was
represented by counsel. (R. 34-96). On March 21, 2014, the
ALJ concluded that the Plaintiff was not disabled under
section 216(i) and 223(d) of the Social Security Act from
January 23, 2012, through the date of the ALJ's decision,
pursuant to 20 CFR §§ 404.1520(g) and 416.920(g).
Plaintiff requested review from the Social Security
Administration Appeals Council, which denied review. (R.1-3).
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). ECF No. .
LEGAL ISSUES PRESENTED
Plaintiff asserts that the ALJ committed the following
errors, in determining that he was not disabled.
1. The ALJ did not consider all of the Plaintiff's
impairments nor all of the relevant evidence, and the ALJ did
not correctly understand and evaluate the Plaintiff's
2. Substantial evidence of record does not support the
ALJ's finding that the Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
3. The ALJ's residual functional capacity determination
does not comply with Social Security Ruling 96-8P.
4. The ALJ did not state what weight, if any, he gave to the
psychoeducational evaluation report from Michael Quiroga,
5. The ALJ refused to help fully develop the record and took
an adversarial role in what is supposed to be a
6. The substantial evidence of record does not support the
ALJ's credibility determination regarding the Plaintiff.
7. The substantial evidence of record does not support the
ALJ's finding that there are jobs that exist in
significant numbers that the Plaintiff can perform.
ECF No. .
PLAINTIFF'S BACKGROUND AND MEDICAL HISTORY
Plaintiff was born on September 27, 1985 in Miami, Florida.
(R. 236). He weighs approximately 220 lbs and is 5'
8'' (R. 298). The Plaintiff graduated from Coral
Gables High School in 2005, having received a special diploma
due to his learning disabilities. (R. 40, 299). The Plaintiff
attended special education classes beginning in the sixth
grade, and he repeated twelfth grade. (R. 415).
Mental Health History
noted above, the Plaintiff attended special education classes
while in high school and received a “special diploma,
” indicating that the Plaintiff attended exceptional
student education classes, and had his F-CAT examination
requirement waived. (R. 415, 558). On July 23, 2007, the
Plaintiff underwent a psychoeducational evaluation. The
Plaintiff was referred for the evaluation in order to assess
the Plaintiff's levels of cognitive and academic function
to facilitate the formulation of a treatment plan. At the
evaluation, the Plaintiff described some difficulty with his
birth, in which he reported that the umbilical cord was
wrapped around him. (R. 558). The Plaintiff denied having
ever attended sessions with a psychiatrist or psychologist.
(R. 558). He expressed a history of depressive symptomology
and felt that his academic difficulties hindered him from
moving forward and achieving his goals. (R. 558). The
Plaintiff explained that in sixth grade he was placed in the
Exceptional Student Educational program, after being
diagnosed with learning disorders in the areas of reading and
writing, as well as a weakness in mathematics. (R. 558). The
Weschler Abbreviated Scale of Intelligence was administered
and the Plaintiff was found to have a full scale IQ of 69,
which placed him in the category of severely
impaired/mentally deficient. (R. 560). His performance IQ was
found to be 77. (R. 560). The neuropsychologist stated that
“the full scale IQ score is not considered to be an
accurate summary of his overall intellectual abilities.
Rather, the performance IQ score is considered to be a more
reliable estimate of his overall intellectual abilities at
this time.” (R. 560). The Plaintiff was found to read
at second grade level, write at a first to second grade
level, and his mathematics performance fell within the third
grade level. (R. 560). The Plaintiff was found to have
severely impaired range scores in the areas of mathematical
calculations and work rate. (R. 560). The Plaintiff was
diagnosed with a GAF score of 61. (R. 564). Drs. Castellanos
and Quiroga stated that while it was the Plaintiff's
intention to attend a technical school program to receive
training in automotive painting/bodywork, given the
Plaintiff's level of intellectual and academic
functioning, it was more appropriate for the Plaintiff to
seek work as an assistant in an automotive body shop. (R.
565). Ultimately, the Plaintiff was diagnosed with a reading
disorder, disorder of written expression, learning disorder
not otherwise specified, major depressive disorder, and a
cognitive disorder not otherwise specified. (R. 564).
November 6, 2013, the Plaintiff underwent a mental health
evaluation conducted by an Agency doctor. (R. 539-543). Dr.
Vivian d.J. Gonzalez-Diaz, Ph.D., M.S., Psy PHARM completed
an adult mental health information report. (R. 539-543). Dr.
Gonzalez-Diaz found that the Plaintiff could understand and
remember simple instructions and carry out simple
instructions. (R. 536). The Plaintiff was found to have mild
limitations in the ability to make judgments on simple
work-related decisions and moderate limitations in his
ability to understand and remember complex instructions,
carry out complex instructions, and make judgments on complex
work-related decisions. (R. 536). Dr. Gonzalez-Diaz found
that the Plaintiff could interact appropriately with the
public, supervisors, and co-workers. (R. 537). Dr.
Gonzalez-Diaz also found that the Plaintiff would have
moderate difficulty in responding appropriately to usual work
situations and to changes in a routine work setting. (R.
537). Dr. Gonzalez-Diaz performed a Weschler Adult
Intelligence Scale, and the Plaintiff obtained a full scale
IQ of 65 (placing him in the 1st percentile). (R.
541). This score placed the Plaintiff within the mildly
deficient range of intellectual functioning. (R. 541). The
Plaintiff obtained a Global Ability Index of 72 (borderline
range), and Dr. Gonzalez-Diaz stated that the Global Ability
Index was a better representation of the Plaintiff's
cognitive potential. (R. 541). The indicates mild symptoms.
Id. at 32-34. The use of a GAF score was
discontinued in the fifth edition of the DSM. Plaintiff was
assigned a GAF score of 63. (R. 543). Dr. Gonzalez-Diaz found
that the Plaintiff's prognosis and recommendation for
treatment were fair/guarded and his prognosis for work
integration was fair/guarded. (R. 543). Dr. Gonzalez-Diaz
found that based upon her evaluation, the Plaintiff would be
able to manage his own benefits with help. Dr. Gonzalez-Diaz
provided her diagnostic impression as psychotic disorder
(NOS), by history, prior history of learning disorder (NOS),
borderline intellectual functioning (provisional), problems
relating to academic underachievement, as well as physical
impairments. (R. 542).
Physical Health History
the Plaintiff has asserted a history of hypertension, kidney
stones, migraines and asthma, in his Motion, the Plaintiff
concentrates his argument on the Plaintiff's hand
injuries. Therefore, the undersigned does not find it
necessary to address all of the Plaintiff's medical
records, but only those relevant to the issues raised in the
January 23, 2012, the Plaintiff reported to Jackson Memorial
Hospital following an assault. (R. 364). The Plaintiff
reported that he had been hit by a bat multiple times and
complained of bilateral hand pain. (R. 364). The Plaintiff was
admitted and diagnosed with bilateral hand fractures (a right
Rolando fracture and a left scaphoid fracture). (R. 366,
388). On January 27, 2012, the Plaintiff underwent a closed
reduction and percutaneous pinning of the Rolando fracture
and an open reduction and internal fixation of the scaphoid
fracture. (733). While in the hospital, the Plaintiff had an
adverse reaction to Percocet and was subsequently prescribed
Dilaudid for his pain. (R. 383, 596). The Plaintiff was
discharged from the hospital on January 29, 2012. (R. 586).
The discharge notes indicate that the Plaintiff was sent out
on pain medications. (R. 586). The Plaintiff's health
records indicate that the Plaintiff is allergic to codeine,
oxycodone and Percocet. (R. 669).
February 6, 2012, the Plaintiff had a follow up visit at
Jackson. (R. 378). A physical examination found that the
Plaintiff's sensation was intact in the ulnar, median,
and radical distributions. (R .378). Motor function was noted
as being intact, and mild tenderness around the incision and
fracture site was found. (R. 378). An x-ray of the
Plaintiff's left scaphoid fracture showed the screw in
good position with signs of bone healing with some callus
formation. (R. 378). An x-ray of the right Rolando fracture
showed good alignment of the bone with the pins intact. (R.
378). The Plaintiff was told that he would have his K-wire
removed in about six weeks for the Rolando fracture on the
right hand and in about eight to ten weeks on the left hand.
March 12, 2012, the Plaintiff's casts were removed, and
the x-rays showed an unchanged left scaphoid fracture of the
left hand. (R. 800). The pins were removed from the
Plaintiffs' right thumb, and no further immobilization
was required. (R. 800). The Plaintiff's left hand was
placed in a short-arm thumb spica cast. (R. 800). On March
26, 2012, the doctor noted a cannulated screw reducing the
scaphoid fracture. (R.798). There was no evidence of
avascular necrosis. (R. 798). The Plaintiff rated his pain at
7 out of 10. (R. 799).
April 2, 2012, the Plaintiff was seen again at Jackson Health
Systems. The hard cast on his left hand was still present and
he complained of minimal pain that did not require
medication. (R. 792).
April 30, 2012, the doctor noted that the Plaintiff was using
the bone stimulator as instructed. (R. 786). The radiographs
of the left wrist showed that the screw through the scaphoid
bone was in place. (R. 786). The doctor observed some
reabsorption of the bone and slight prominence of the screw
and noted that the fracture line appeared to be healing
possibly through one of the cortex. (R. 786). The Plaintiff
was placed back into a left thumb spica cast. (R. 787).
21, 2012, the Plaintiff's cast was removed again for a
physical examination. The Plaintiff's motor and sensory
exams were found to be intact. (R. 781). The Plaintiff denied
any functional limitations on his right side. (R. 781). There
appeared to be a bridging bone in the left wrist and a CT
scan was recommended. (R. 781). On May 22, 2012, the
Plaintiff had a CT scan of his left wrist which demonstrated
no evidence of scaphoid healing and a loosening of the
scaphoid screw along with avascular necrosis of the proximal
scaphoid fracture fragment. (R. 778-779).
October 15, 2012, imaging studies revealed a persistent
scaphoid fracture and continued nonunion in the left wrist.
(R. 733). The Plaintiff's cast was replaced during the
visit. (R. 734).
January 29, 2013, the Plaintiff underwent a second open
reduction surgery and an internal fixation using a wedge
graft from the left iliac crest as well as a cancellous bone
graft from the left iliac crest. (R. 815). The
Plaintiff's left wrist was placed in a splint and it was
recommended that the splint remain for 10-14 days before
being switched to a cast for a total of 8-10 weeks. (R. 928).
follow-up visit on February 7, 2013, the Plaintiff reported
mild pain. (R. 905). The Plaintiff's wrist was found to
be stiff and the incision was found to be nicely healed. (R.
905). On March 11, 2013, generalized osteopenia was found
along with chronic ossific fragments along the radial styloid
process. (R. 901). The doctor found a chronic fracture of the
ulnar styloid process and soft tissue swelling. (R. 901).
April 15, 2013, the Plaintiff was examined again and x-rays
were obtained. (R. 894). During the exam, positive tenderness
and restricted range of motion of the left wrist were noted.
(R. 894). The generalized osteopenia remained unchanged from
the previous visit and the Plaintiff continued to have ulnar
styloid fracture nonunion. (R. 895).
3, 2013, the Plaintiff's cast use was discontinued and he
was instructed to wear a removable wrist splint at all times.
(R. 889). The Plaintiff denied pain, numbness or tingling.
(R. 889). The notes state that “if he has significant
pain, he will likely need a proximal row carpectomy, but if
he has no pain or minimal pain he should likely live with
this and be able to start work back at his regular
job.” (R. 890).
November 4, 2013, the doctor found that the orthopedic
hardware was unchanged. (R. 886). Osteopenia was noted along
with diffuse loss of the intercarpal joint spaces especially
between the capitate and lunate. (R. 886). The last treatment
note from Jackson is dated December 16, 2013. (R. 877). A
physical exam revealed sensation intact to light touch in the
median, radial, and ulnar nerve distribution. (R. 877). The
incision was found to be well healed, and the Plaintiff was
able to make a thumbs-up sign, cross fingers, as well as make
an okay sign. (R. 877). No pain was noted with stretch of the
digits. (R. 877). X-rays revealed an unchanged ulnar styloid
process fracture with mild degenerative changes in the
radiocarpal and first carpometacarpal joints. (R. 879).
November 14, 2013, the Plaintiff was seen by consultative
physician Dr. Ubaldo S. Rodriguez. (R. 545-555). Dr.
Rodriguez stated that the Plaintiff had a lot of difficulty
using his left wrist and hand and had stopped working at the
Pizza restaurant where he was employed because of his injury.
(R. 545). The Plaintiff reported that he did not take pain
killers because of “multiple allergies.” (R.
545). The physical examination revealed that the Plaintiff
had a lot of difficulty opening a door knob with his left
hand and had some difficulty picking up coins with his left
hand. (R. 545). X-rays taken at the exam revealed a
non-healed fracture of the styloid process ulna. (R. 546).
Dr. Rodriguez completed a medical source statement and found
that Plaintiff's left hand would never be able to lift or
carry a box up to ten pounds. (R. 550). Additionally, Dr.
Rodriguez found that the Plaintiff would never perform the
following activities with his left hand: reaching (overhead),
reaching (all other), handling, fingering, feeling, and
push/pulling. (R. 552). Dr. Rodriguez also noted that the
Plaintiff would never be able to climb a ladder or scaffold
or crawl. (R. 555).
administrative hearing was conducted on January 30, 2014, in
Miami, Florida, and was attended by Plaintiff and his
counsel. (R. 34-96). Steve Bast, an impartial vocational
expert, also testified by telephone at the hearing. The
Plaintiff testified that he graduated from high school with a
special diploma after repeating the twelfth grade. (R. 40).
The Plaintiff stated that he was not able to read or write.
(R. 40). Regarding his assault, the Plaintiff testified that
when he was coming home from work, two men attacked him with
a two-by-four and his hands were broken in pieces. (R. 40).
The Plaintiff explained that he was fired from his job when
he returned to work with both hands in casts. (R. 41).
Plaintiff testified that his learning disability was caused
by being born with the umbilical cord around his neck which
resulted in a loss of oxygen to his brain. (R. 41). He stated
that there had been two surgeries performed on his left hand
and one on his right hand. (R. 41). The Plaintiff reported
that he was not taking any codeine medication because of an
allergy, but still reported pain in his hands. (R. 41-42).
The Plaintiff testified that he had asthma, and migraines
that lasted twelve hours a day. (R. 43). The Plaintiff also
reported having problems with his back, feet and kidneys. (R.
43-44). The Plaintiff testified he could lift eight to ten
pounds with his right hand for about a minute to two minutes.
(R. 46). The Plaintiff also asserted that he was not able to
place his right hand in certain positions (R. 46). The
Plaintiff also testified that he took Advil for pain. (R.
Plaintiff testified regarding his work history including a
job at the Youth Fair at the beginning of 2013. (R. 47). He
testified that he got the job through a family member, and
the job consisted of blowing a whistle when a
“train” that conveyed people was departing. (R.
49). Prior to his assault, the Plaintiff testified that he
worked at a Pizza restaurant at the airport where he put
pizzas in the oven and cleaned, mopped, and handled tanks of
sauce. (R. 49). The Plaintiff testified that he also
previously worked for Host International at the airport where
he would stock the store and make sure the store was
organized and clean. (R. 50). He testified that he lost the
job because he “gave the wrong change.” (R. 50).
The Plaintiff also worked previously as a valet parking cars,
and as an assistant pool cleaner. (R. 51-52).
terms of the Plaintiff's daily life, the Plaintiff
testified that he lives with his mother and stays at home
while she goes to work. (R. 52). He reported that he does not
do any cooking or cleaning. (R. 53). The Plaintiff also
testified that he had trouble sleeping due to pain. (R. 55).
related to his literacy, the Plaintiff testified that when he
applied for jobs, he wouldn't write out the applications
but would bring in a paper that his school had given him that
included his information. (R. 55). He testified that he could
read a little bit but on the job he always received verbal
instructions and could only work in physical labor. (R.
Plaintiff testified that he is able to drive using one hand.
(R. 60). The Plaintiff stated that he was able to dress and
bathe himself, open zippers and buttons using one hand, and
was not able to grab objects. (R. 62).
Vocational Expert Testimony
Mr. Bast, testified by phone at the hearing. The ALJ
presented the following hypothetical
This is hypo number one. In the hypo, please consider that
the claimant's main dominant hand is the right hand,
okay. So in this first hypo assume that the claimant is able
to lift and carry twenty pounds occasionally, ten pounds
frequently with the right hand; standing and walking he will
be able to stand and/or walk for six hours total in an
eight-hour workday; pushing and pulling will be the same
amount of weight as in lifting and carrying; occasionally he
will be able to climb ramps or stairs-just give me a
moment-pushing and pulling will be the same amount of weight
with lifting and carrying like I said before, if I failed to
mention it, please consider that, only with the right hand.
He will not ...