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Sensat 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 the cross-motions for summary judgment filed by Plaintiff Luis Orlando Sensat ("Plaintiff") and by Defendant Nancy A. Berryhill[1], ("Defendant"), Acting Commissioner of Social Security Administration, ECF Nos. [24] [29]. The Plaintiff has also filed a Response in Opposition to Defendant's Motion for Summary Judgment, ECF No. [33]. 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. [21]. The summary judgment motions are now ripe for disposition.

         For the reasons stated below, the undersigned hereby GRANTS the Plaintiff's Motion, ECF No. [24], and DENIES the Defendant's Motion for Summary Judgment, ECF No. [29]. This case is REMANDED to the Commissioner in accordance with this Order.


         On 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).[2] 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). (R. 174).

         The 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. [26].


         The 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 testimony.
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 impairments.
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, Ph.D.
5. The ALJ refused to help fully develop the record and took an adversarial role in what is supposed to be a non-adversarial proceeding.
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. [245].


         A. Background

         The 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).

         B. Medical History

         1. Mental Health History

         As 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.[3] (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).

         On 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).

         2. Physical Health History

         While 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 Parties' Motions.

         On 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.[4] (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).

         On 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. (R. 379).

         On 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).

         On 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).

         On 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).

         On May 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).

         On 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).

         On 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).

         At his 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).

         On 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).

         On June 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).

         On 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).

         On 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).

         3. Hearing Testimony

         1. Plaintiff's Testimony

         An 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).

         The 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. 61).

         The 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).

         In 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).

         As 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. 56-57).

         The 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).

         2. Vocational Expert Testimony

         The VE, 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 ...

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