United States District Court, S.D. Florida
ORDER ON MOTIONS FOR SUMMARY JUDGMENT [DES 20');">20,
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court upon Plaintiff, Tina Marie
Oglesby's ("Plaintiff) Motion for Summary Judgment
[DE 20');">20], and Defendant, Carolyn W. Colvin, Commissioner of
Social Security Administration's ("Defendant")
Motion for Summary Judgment [DE 21');">21]. The parties have
consented to magistrate judge jurisdiction. [DE 16]. The
issue before the Court is whether the record contains
substantial evidence to support the denial of benefits to the
Plaintiff and whether the correct legal standards have been
applied. Lamb v. Bowen, 847 F.2d 698, 701 (11thCir.
3, 20');">2013, Plaintiff filed an application for supplemental
security income, asserting a disability on-set date of
January 1, 20');">2003. [R. 21');">21]. She later amended the on-set date to
July 3, 20');">2013. [R. 38]. The claim was denied initially and
upon reconsideration. [R. 21');">21]. Following a video hearing on
April 21');">21, 20');">2014, the ALJ issued a decision on October 21');">21,
20');">2014, denying Plaintiffs request for benefits. [R. 18-30]. A
request for review was filed with the Appeals Council and
denied on March 9, 20');">2016. [R. 1-6].
was born on December 20');">20, 1968, and was 44 years old on the
date that the ALJ issued her decision. [R. 28]. Plaintiffs
highest level of education is a GED with a CNA certification
and attendance at a cosmetology school for one year. [R. 42].
held a video hearing on April 21');">21, 20');">2014. [R. 37]. Plaintiff
testified that she lives in a house with her teenage daughter
and that her older daughter comes twice a day to help out
with daily tasks she cannot complete. [R. 40]. Plaintiffs
older daughter has been helping her since Plaintiff had her
neck fusion surgery approximately three years prior. [R.
40-41]. Plaintiff is divorced and is a CNA. [R. 42]. She also
went to school for a year to learn how to do hair and nails.
Id. Plaintiffs weight has been increasing because
she is no longer as active as she used to be. Id.
explained that she has not worked at all since July 20');">2013. [R.
42]. She most recently worked as an assistant manager at
Wal-Mart for a few years up until 20');">2003. Id. Prior to
her job at Wal-Mart, Plaintiff was a nail tech for
approximately five years. [R. 43]. She also co-owned an auto
detailing business on and off for eight years to make
part-time income. Id. Plaintiff cleaned the inside
of the cars and handled no paperwork. [R. 44]. She ultimately
stopped working after she was involved in a bad car accident
in 20');">2003. Id. Plaintiff received a total of $100, 000
as a settlement for the accident, but only ended up with $30,
000 in her pocket. Id.
average day, Plaintiff gets up, does chores, goes to the
grocery store, gets herself ready, spends some time with her
teenage daughter, and prepares meals, but she has to lie back
down every 15-20');">20 minutes due to her neck damage and nerve
damage going down her legs and hands. [R. 45]. She lets her
dogs out back because she cannot walk them anymore.
Id. Plaintiff spends about 75% of the day from 9
a.m. to 5 p.m. lying down because her neck burns, and the
burning sensation goes up to her ears and hits her head. [R.
46]. Plaintiff used to be very active with her daughters, but
now her daughters have to do a lot of the housekeeping. [R.
testified that her 20');">2010 surgery made her totally disabled
because the doctor, Dr. Heldo Gomez, broke two discs going
down her spine. [R. 47, 50]. The ALJ noted that there were no
surgical reports, doctor's notes, or other records
regarding the 20');">2010 surgery in the record. [R. 48-49].
Plaintiffs attorney promised to obtain and submit the
documents. Id. Plaintiff testified that Dr. Robert
Simon had been her treating physician at the time of the
surgery, and the ALJ stated that she needed Dr. Simon's
records as well. [R. 50]. According to Plaintiff, Dr. Simon
performed surgeries on her too. Id.
stated that she currently has pain in her neck that goes up
to her ears and that she has nerve damage going down her legs
and in her hands and arms. [R. 51]. Lying down and using ice
packs, heating pads, and "those patches that you put on
you" help reduce the pain. [R. 52]. Plaintiff takes
Dilaudid, MS Cotin, Flexeril, and Soma for the pain.
Id. The Soma makes her dizzy, so she has reduced the
dosage. Id. Plaintiff has been on and off narcotic
pain medications for eight years. Id. Plaintiff had
shoulder surgery years ago, and her shoulder is still
"messed up." [R. 53].
explained that she can only wear certain styles of clothing
and shoes due to her physical pain. [R. 53]. For example, she
has trouble with buttons, zippers, and shoe laces.
Id. Plaintiff also has trouble sleeping at night and
generally only gets approximately three hours of sleep a
night. Id. Plaintiff uses a travel pillow to keep
her neck straight and reduce the burning pain by half. [R.
54]. She can only sit or stand for about 15-20');">20 minutes before
nerve pain starts shooting down her legs, her neck begins
burning, and she gets earaches and headaches. Id.
Plaintiff can only walk for a couple of minutes because the
back of her legs begin to hurt. [R. 55]. She can lift about
30 pounds. Id. Plaintiff used to participate in
social activities and hobbies, such as traveling and swimming
at the beach, but she cannot anymore. [R. 55-56]. She
experiences pain if she drives for too long. [R. 56].
testified that she has had problems with her hands for the
last couple of years. [R. 59]. Her hands go numb and radiate
pain that shoots down both her left and right arms.
Id. Plaintiffs fingertips are always numb.
Id. Plaintiff also has trouble with her balance for
about 50% of each day. [R. 60].
questioned Plaintiff about why there was a gap in her
treatment from Dr. Berman between 20');">2010 and 20');">2011. [R. 60].
Plaintiff explained that she had only been seeing Dr. Berman
for pain management for about a year and a half, and that Dr.
Hoffman had been her pain management doctor before that. [R.
61]. Dr. Berman was the only doctor she saw for the two years
prior to the hearing. [R. 63]. Plaintiff did not continuously
see Dr. Gomez because he just did surgeries and post-op
visits. Id. Plaintiff stated that she does drive,
but only to the market and only approximately twice a week.
[R. 63]. Otherwise, her daughter or her daughter's father
drives her around. Id. In 20');">2012, Plaintiff had an
online business, which was more of a hobby, with her older
daughter buying and reselling hand bags online. [R. 64].
Coon, the vocational expert, testified at the hearing. [R.
65]. The ALJ first posed a hypothetical in which an
individual of the same age, education, and work experience as
Plaintiff had the following limitations: work at the light
level only; occasional stooping, kneeling, crawling,
crouching and climbing; climbing ramps and stairs, but not
ladders, ropes or scaffolds; avoiding hazards such as
heights; and occasional overhead reaching. [R. 66].
The vocational expert explained that such an individual would
be able to perform work as both a retail supervisor and a
nail technician as both jobs are generally performed.
Id. He stated that such an individual could also
perform light, unskilled work as, for example, a production
assembler, a cleaner, or a fast food worker. [R. 67]. The
vocational expert testified that the general employer
off-task tolerance for a typical workday would be about 20');">20%.
Id. He also testified that two or greater absences
per month would impact the ability to maintain work. [R. 68].
posed a second hypothetical in which an individual had the
same limitations stated before but was also limited to
frequent handling and frequent fingering (rather than
constant handling or fingering). [R. 68]. The vocational
expert testified that such an individual would still be able
to perform the retail supervisor job, but would not be able
to perform the nail technician job. Id. Such an
individual would also be able to perform the cleaner and the
assembler jobs, but not the fast food worker job.
counsel asked the vocational expert whether, if the handling
and fingering were reduced down to occasional, the individual
would be able to perform any of the jobs. [R. 69]. The
vocational expert stated that such an individual would not be
able to perform the retail supervisor, nail technician job,
assembler, cleaner, or fast food worker jobs. Id.
Upon questioning by Plaintiffs counsel, the vocational expert
also testified that an individual who needed a 15-minute
break every hour would not be able to maintain work as it is
generally performed in the national economy. Id.
Medical Record Evidence
reaching her decision to deny Plaintiffs benefits, the ALJ
reviewed the medical evidence of record, the relevant portion
of which is summarized chronologically below.
was involved in a motor vehicle accident in 20');">2003 in which she
injured her cervical spine. [R. 261]. She was involved in a
second motor vehicle accident on October 4, 20');">2006. [R. 262].
Plaintiff was involved in a third motor vehicle accident on
December 7, 20');">2007. [R. 261]. She developed neck pain and lower
back pain and was treated with physical therapy, chiropractic
treatment, medications, and cervical and lumbar epidural
16, 20');">2009, Plaintiff had MRIs of the cervical spine and lumbar
spine conducted. [R. 354]. MRIs of the cervical spine
revealed extruded disc herniation at the C5-6 level, mild
disc space narrowing with residual hydration in the disc, a
posterior subligamentous extrusion/herniation of the disc
seen centrally with the disc extending into the collar
direction by approximately 6 mm from the disc space, patent
neural foramina, and a bulging disc at C4-5. Id. The
MRI of the lumbar spine revealed a bulging disc at L 5-S1
with mild disc dehydration at L 5-S1, mild neural impingement
to the left existing nerve root, and a posterior bulge seen
at L 5-S1 centrally with mild encroachment on the left
exiting S1 nerve root. [R. 355].
presented to Dr. Heldo Gomez, Jr., a neurological surgeon, on
August 27, 20');">2009, complaining of cervical pain and back pain.
[R. 353]. She reported a visual analogue scale score of
6-7/10 for cervical pain for that specific day and a score of
8-9 for her worst days. Id. Dr. Gomez noted that
Plaintiff had a normal gait. [R. 354]. Upon an examination of
Plaintiffs cervical spine, Dr. Gomez found that the cranial
nerves were intact without deficit, the range of motion was
full with discomfort, the axial loading was mildly positive
with light compression less than one pound, the Spurling and
Hoffmann signs were negative, the muscle strength testing was
5/5, sensation was equal and intact without deficit in the
upper extremities, there was tenderness palpated in the right
trapezius, scalene, and levator scapula, and the deep tendon
reflexes were 2 at the biceps, triceps, and brachioradialis
bilaterally. Id. Upon examination of Plaintiff s
lumbar spine, Dr. Gomez found that the range of motion was
full with discomfort at the extremes, straight leg raising
was positive past 70 degrees eliciting pain in the erector
spinae bilaterally, heel-toe was positive for eliciting pain,
muscle strength testing was 5/5, sensation was equal and
intact without deficit to the lower extremities, there was
tenderness palpated across the erector spinae at L 4-5 and
L5-S1, and there was tenderness at the beltline with very
light touching and palpation. Id. Dr. Gomez noted
that he would try to obtain some of Plaintiff s other medical
records and would have Plaintiff return in two to three
weeks. [R. 350].
November 2, 20');">2009, Plaintiff returned to Dr. Gomez for a
follow-up. [R. 346]. She continued to complain of neck pain
radiating into the upper extremities, particularly on the
left side, and numbness in the left hand. [R. 346]. Dr. Gomez
noted that Plaintiff was describing symptoms in the left C6
distribution and that Plaintiffs MRI showed evidence of disc
displacement at C 4-5, C5-6. Id. He recommended that
Plaintiff undergo an anterior C4-5, C5-6 decompression,
fusion, and anterior instrumentation. Id.
January 26, 20');">2010, Plaintiff underwent surgery-an anterior
C4-5, C5-6 decompression, fusion, and anterior
instrumentation. [R. 343-45]. On February 16, 20');">2010, Plaintiff
had a postoperative lateral cervical spine film completed.
[R. 342]. It was determined that Plaintiffs anterior plate
was intact from C4 through C6, that there had been no
displacement of the plate from the anterior surface of the
vertebral bodies, that the PEEK spacers were in good position
at C 4-5, and that there had been a slight subsidence at C
February 16, 20');">2010, Plaintiff saw Dr. Thomas Rousch for a
follow-up post-surgery. [R. 341]. She reported mild
discomfort in the neck area. Id. Plaintiff also
reported that she had been improving with stiffness in the
cervical area and had no radicular symptoms, numbness, or
tingling. Id. Dr. Rousch noted that the incision was
healing, muscle strength and grip strengths were normal, and
sensation was equal and intact in the upper extremities.
March 17, 20');">2010, Plaintiff saw Dr. Gomez for a follow-up. [R.
338]. She complained of an ache-like sensation over the C7-T1
spinous process, a sensation of swelling overlying this
region and just to the right of the midline, and occasional
sensory dysesthesias in the left biceps, left antecubital
region. Id. After a physical examination, Dr. Gomez
noted that Plaintiffs scar was well healed, her range of
motion of the cervical spine was slowly improving, her
strength was 5/5 bilaterally, her gait was normal, and she
had tenderness overlying the spinous process of C7-T1.
25, 20');">2011, Plaintiff presented to Dr. Joshua Levy for pain
management of her neck and low back pain. [R. 335]. Dr. Levy
explained that, after Plaintiffs 20');">2007 car accident, she
received chiropractic treatment, pain management procedures,
and left knee and shoulder surgeries. Id. Dr. Levy
noted that Plaintiff had no obvious pain with her gait, a
steady stance, palpation, tenderness, and positive spasms of
the cervical and lumbar spines, limited range of motion of
the cervical and lumbar spines guarded by pain, a negative
bilateral straight leg raise test, sensation paresthesias in
both arms, full range of motion in her upper extremities,
5 strength test for her upper extremities, and normal
range of motion and normal strength and tone to her lower
extremities. [R. 336]. Dr. Levy diagnosed Plaintiff with
cervicalgia, displacement of cervical intervertebral disc
without myelopathy, lumbago, displacement of lumbar
intervertebral disc without myelopathy, other internal
derangement of the knee, and a rotator cuff tear.
Id. He changed Plaintiffs medications. Id.
August 8, 20');">2011, Plaintiff had an MRI of the cervical spine
performed. [R. 264]. The radiologist determined that there
was evidence of previous anterior and interbody fusion at
C4-C5 and C5-C6; the C3-C4 and C4-C5 disc space levels
demonstrated previous anterior and interbody fusion; there
was no herniated disc, spinal stenosis, or abnormal neural
foramina at the C3-C4 or C4-C5 disc space levels; the T3-T4
disc space level demonstrated a central herniated disc
protrusion measuring 2 mm x 2 mm in size that did not indent
the cord; there was no spinal stenosis or abnormal foramina
at the T3-T4 or T4-T5 disc space levels; and the T4-T5 disc
space level demonstrated a bilobular herniated disc
protrusion with right paracentral and left paracentral
components measuring 2 mm x 3 mm in size that did not indent
the cord. [R. 264-65].
September 8, 20');">2011, Plaintiff presented to Dr. Gomez. [R.
261]. Plaintiff complained of pain over the left clavicle and
left pectoral region, as well as posterior neck pain.
Id. Plaintiff also described symptoms of discomfort
over the right supraclavicular region. Id. She
stated that her Visual Analogue Scale pain had been a 5/10
six months ago, but that it was currently a 7/10.
Id. Dr. Gomez noted that Plaintiff had been under
the care of a pain management specialist, Dr. Hoffman. [R.
Gomez performed a physical examination on Plaintiff. [R.
262]. He noted palpable increased tone and tenderness in the
paraspinal muscles in the posterior cervical region,
increased tone and tenderness over the medial trapezius and
supraclavicular region, tenderness over the left upper
pectoral region and pectoral-deltoid groove, diminished range
of motion with abduction on the left shoulder, and an
inability to fully abduct her left shoulder. Id. Dr.
Gomez also noted that Plaintiffs gait was normal, her scar
was well-healed, her biceps, triceps, and interosseous
strength was 5/5 bilaterally, and her motor testing was 5/5
in both lower extremities. Id. Dr. Gomez determined
that Plaintiff had reached maximal medical improvement.
Id. He explained that the most recent MRI showed a
satisfactory fusion of C4 through C6, there was no residual
spinal cord compression from C4 through C6, and the adjacent
segments of C3-4 and C6-7 showed no evidence of
adjacent-segment degeneration. [R. 263].
February 29, 20');">2012, Plaintiff had a lateral cervical spine
x-ray performed. [R. 329]. She was determined to have no
compression fracture deformities, no lytic or blastic bone
lesions, mild anterior ...