United States District Court, M.D. Florida, Fort Myers Division
Patrick Pyjek seeks judicial review of the denial of his
claims for disability and disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) by the Commissioner of the Social
Security Administration (“Commissioner”). The
Court has reviewed the record, the briefs and the applicable
law. For the reasons discussed herein, the decision of the
Commissioner is REVERSED and this matter is
remanded to the Commissioner pursuant to 42 U.S.C. §
405(g), sentence four.
Issues on Appeal
raises three issues on appeal: (1) whether substantial
evidence supports the finding of the Administrative Law Judge
(“ALJ”) that Plaintiff does not meet a listing;
(2) whether the ALJ properly evaluated the opinions of
Plaintiff's treating and State agency physicians; and (3)
whether substantial evidence supports the ALJ's
determination of Plaintiff's residual functional capacity
(“RFC”) with respect to his mental impairment and
need for a hand-held assistive device. Plaintiff also
requests, on remand, that the Court direct the Commissioner
to assign the case to another ALJ.
Procedural History and Summary of the ALJ's
filed his applications for DIB and SSI on January 7, 2011 and
January 13, 2011, respectively. Tr. 120, 126. Plaintiff's
applications allege disability beginning on March 8, 2008 due
to his ankle surgeries and depression because of his
injuries. Tr. 122, 126, 166. The claims initially were denied
on May 5, 2011 and upon reconsideration on July 6, 2011. Tr.
72, 78, 88, 90. Plaintiff requested and received a hearing
before ALJ Larry Butler on February 22, 2013, during which he
was represented by an attorney. Tr. 30-58. As of the date of
the hearing, Plaintiff was twenty-two years of age and had a
high school education. Tr. 34. Plaintiff testified at the
hearing. Tr. 32. The ALJ issued an unfavorable decision on
September 10 2014. Tr. 12-22.
first discussed in detail Plaintiff's motion for recusal,
denied the motion and declined to withdraw. Tr. 12-14. Next,
the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31,
2013. Tr. 17. At step one, the ALJ concluded that Plaintiff
has not engaged in substantial gainful activity since March
8, 2008, the alleged onset date. Id. At step two,
the ALJ found that Plaintiff “has the following severe
impairments: problems with ankles. . . .” Id.
At step three, the ALJ concluded that Plaintiff “does
not have an impairment or combination of' impairments
that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.916).” Tr. 18. The ALJ stated he reviewed all
the applicable listings, including Listing 1.00, and found
that the “the medical evidence of record does not
establish that any of the claimant's severe impairments
meets or equals the requirements of any of the listing of
impairments herein.” Id. Taking into account
the effect of Plaintiff's impairments, the ALJ determined
that Plaintiff has the RFC to perform “the full range
of sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a).” Tr. 19. Next, the ALJ found that Plaintiff
is unable to perform his past relevant work as an aluminum
installer, which is a semi-skilled position and requires
medium strength. Tr. 20. The ALJ concluded that considering
Plaintiff age, education, work experience and RFC, there are
jobs that exist in significant numbers in the national
economy that Plaintiff can perform, and thus found that he
has not been disabled from March 8, 2008 through the date of
the decision. Tr. 21. On May 10, 2016, the Appeals Council
denied Plaintiff's request for review. Tr. 1-7.
Accordingly, the ALJ's September 10, 2014 decision is the
final decision of the Commissioner. Plaintiff filed an appeal
in this Court on July 6, 2016. Doc. 1. Both parties have
consented to the jurisdiction of the United States Magistrate
Judge, and this matter is now ripe for review. Docs. 10, 12.
Social Security Act Eligibility and Standard of
claimant is entitled to disability benefits when he is unable
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to either result in death or last for a
continuous period of not less than twelve months. 42 U.S.C.
§§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. §
404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability.
See 20 C.F.R. §416.920.
Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful
activity; (2) if not, whether the claimant has a severe
impairment or combination of impairments; (3) if so, whether
these impairments meet or equal an impairment listed in the
Listing of Impairments; (4) if not, whether the claimant has
the residual functional capacity (“RFC”) to
perform his past relevant work; and (5) if not, whether, in
light of his age, education, and work experience, the
claimant can perform other work that exists in
“significant numbers in the national economy.”
Atha v. Comm'r Soc. Sec. Admin., 616 F.
App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R.
§§ 416.920(a)(4), (c)-(g), 416.960(c)(2);
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011)). The claimant bears the burden of
persuasion through step four; and, at step five, the burden
shifts to the Commissioner. Id. at 933; Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this
Court's review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings
are supported by substantial evidence. McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
The Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is “more than a scintilla,
i.e., evidence that must do more than create a
suspicion of the existence of the fact to be established, and
such relevant evidence as a reasonable person would accept as
adequate to support the conclusion.” Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal
citations omitted); see also Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (finding that
“[s]ubstantial evidence is something more than a mere
scintilla, but less than a preponderance”) (internal
Eleventh Circuit has restated that “[i]n determining
whether substantial evidence supports a decision, we give
great deference to the ALJ's fact findings.”
Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d
818, 822 (11th Cir. 2015) (citing Black Diamond Coal Min.
Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)).
Where the Commissioner's decision is supported by
substantial evidence, the district court will affirm, even if
the reviewer would have reached a contrary result as finder
of fact, and even if the reviewer finds that the
preponderance of the evidence is against the
Commissioner's decision. Edwards v. Su
livan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Su livan, 932 F.2d
1356, 1358 (11th Cir. 1991). “The district court must
view the record as a whole, taking into account evidence
favorable as well as unfavorable to the decision.”
Foote, 67 F.3d at 1560; see also Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating
that the court must scrutinize the entire record to determine
the reasonableness of the factual findings). It is the
function of the Commissioner, and not the courts, to resolve
conflicts in the evidence and to assess the credibility of
the witnesses. Lacina v. Comm'r, Soc. Sec.
Admin., 606 F. App'x 520, 525 (11th Cir. 2015)
(citing Grant v. Richardson, 445 F.2d 656 (5th
Background and Relevant Medical History
is a thirty-three-year-old male, born on May 2, 1984. Tr.
122. Until March of 2008, he worked for about eight years as
an aluminum installer for a construction company. Tr. 36. On
March 8, 2008, Plaintiff was squatting on the balls of his
feet using a saw while working on a pool fence when he was
struck from behind by a falling palm tree. Tr. 52. The tree,
which was about eleven inches in diameter and twenty-five
feet tall, blew over and collided with the top of his back,
between his shoulder blades. Id. The force of the
blow pushed Plaintiff to the ground and pinned him underneath
the husk of the tree, causing injuries to his ankles. Tr. 52,
same day, Plaintiff presented to Gulf Coast Hospital, where
he was examined by Dr. Robert Follweiler, D.O., and Dr.
Thomas Schaar, M.D. Tr. 309, 311-12. At Gulf Coast, x-rays
and computed tomography (“CAT”) scans of
Plaintiff's right ankle showed that he had fractured his
talus bone and that “tiny bone fragments” had
splintered off around the inside of the upper right ankle.
Tr. 309, 316. Plaintiff's left ankle sustained several,
less serious, small fractures. Tr. 309, 311-12, 314. He also
had cuts on his lip and swelling in his ankles, but no
numbness or tingling. Tr. 309, 311. Dr. Stanley
Alexander, M.D., also of Gulf Coast Hospital, confirmed the
initial findings. Tr. 547-49. Dr. Alexander documented
swelling and numerous small fracture fragments in both ankles
as well as some possible joint separation. Tr. 550-51. Dr.
Alexander's prognosis was that these injuries may cause
Plaintiff joint instability. Id.
Dr. Follweiler's and Dr. Alexander's examinations,
Plaintiff was admitted to Gulf Coast Hospital for pain
control - more for his left ankle than his right - and fitted
with fracture braces. Tr. 310. While Plaintiff was in the
braces, Dr. Follweiler determined Plaintiff could fully
weight bear on his left side and partially weight bear on his
right, although Plaintiff had trouble with ambulation and was
in pain. Id.
days later, on March 10, 2008, Plaintiff was mobile enough
with a walker to be released from the hospital. Tr. 310. On
Plaintiff's discharge date, Dr. Follweiler deemed
Plaintiff neurovascularly intact and did not think any
surgeries were necessary; he instead suggested that Plaintiff
take aspirin and elevate and apply ice to his ankles. Tr.
310, 312. During his two-day hospital stay, Plaintiff was
kept on a blood-thinning medication, and Dr. Follweiler gave
Plaintiff a prescription for Vicodin upon discharge. Tr. 312.
He also noted that Plaintiff may be out of work for a while.
March 18, 2008, Plaintiff was referred to Dr. Jeremy
Schwartz, M.D., at Orthopedic Specialists of SW Florida
(“Orthopedic Specialists”). Tr. 768. Dr. Schwartz
confirmed Plaintiff's talus fracture in his right ankle
and a sprain and small tearing in his left foot. Id.
Dr. Schwartz's examination also revealed bilateral
swelling and a mild amount of bruising. Id. Dr.
Schwartz suggested that Plaintiff remain in a boot -
non-weight-bearing - and out of work for about eight weeks.
Tr. 769. Plaintiff used both a wheelchair and walker for the
next several weeks to accommodate his ankle injuries. Tr.
April 2, 2008, Plaintiff reported to Dr. Paul Fuchs, D.O., of
Orthopedic Specialists that he was experiencing pain in his
neck and back and discomfort near his right shoulder blade.
Tr. 560, 572. Although previous x-rays had shown no signs of
spinal abnormalities, Dr. Fuchs diagnosed Plaintiff with an
upper back sprain and recommended his spine be checked via
magnetic resonance imaging (“MRI”). Tr. 560, 566.
Throughout this period, Plaintiff continued to take both
Vicodin and Celebrex for pain. Tr. 570.
presented to Dr. Schwartz's office on April 21, 2008,
complaining of stiffness in his left toes. Tr. 766-67. Dr.
Schwartz recommended Plaintiff start physical therapy for the
right ankle's range of motion and begin bearing more
weight on the left foot. Tr. 767. Dr. Schwartz also stated
Plaintiff should not work for another month. Id.
later on April 28, 2008, Plaintiff underwent a pair of MRIs
at LMR Imaging-Riverwalk to examine his spine. Tr. 561-62.
The thoracic spine MRI came back negative, with no evidence
of disc protrusion, narrowing of the spinal canal or cord
compression. Tr. 562. The cervical spine MRI demonstrated
“minimal” bulging of the disc at ¶ 4-5 and
“tiny” central disc protrusion at the C3-4 disc
space. Tr. 561.
returned to Dr. Schwartz for another examination on May 20,
2008 after two sessions of physical therapy. Tr. 762. There
were insufficient changes in Plaintiff's condition for
Dr. Schwartz to suggest anything beyond what he had
recommended a month previously, except he encouraged a
gradual increase of weight bearing on Plaintiff's right
side as well. Id.
27, 2008, Dr. Fuchs examined the MRIs and determined that
Plaintiff had reached maximum medical improvement for his
spine. Tr. 559. Plaintiff's spinal pain had resolved
itself during the previous month, and Dr. Fuchs stated that
Plaintiff had, as far as his spine was concerned, “no
major limitations, ” and that his “permanent
impairment would be 2%.” Id.
7, 2008, following persistent pain in his right ankle, Dr.
Schwartz injected pain medications into the talus area of
Plaintiff's right ankle. Tr. 759. An x-ray conducted the
same day revealed there was also some hardening in the right
ankle. Id. Plaintiff's general ankle range of
motion was good, yet the range of motion for the subtalar
joint was somewhat abbreviated. Id. Dr. Schwartz
said that an ankle fusion surgery may be necessary in the
future. Tr. 760.
continued physical therapy, Plaintiff went back to Dr.
Schwartz on July 25, 2008; Plaintiff stated that the effects
of the injection had worn off, and the pain had returned to
his right ankle. Tr. 758. Plaintiff also complained of pain
on top of his left foot. Id. Dr. Schwartz suggested
an ankle/foot orthosis brace and ordered a CAT scan and MRI,
each of which took place in September 2008. Tr. 756, 758,
771. The CAT scan of Plaintiff's right ankle revealed
that his talus fracture was not healing properly. Tr. 756.
The MRI of his left foot revealed an abnormal fluid buildup
between the fourth and fifth tarstometatarsal
(“TMT”) joints. Tr. 757.
follow-up visit to Dr. Schwartz on September 17, 2008,
Plaintiff continued to complain of pain around his right
ankle. Tr. 756. At the time, Plaintiff was wearing an ankle
brace, which helped mobility but apparently did little to
ease the pain of walking on his right foot. Id. Dr.
Schwartz stated that Plaintiff's range of motion in his
right ankle was within five degrees of normal, yet he wrote
that if Plaintiff's pain persisted, then a fusion surgery
may be required. Tr. 756-57. Dr. Schwartz also suggested that
Plaintiff get a second opinion. Tr. 757.
October 29, 2008, Plaintiff had not received a second
opinion, but he was still experiencing pain in his right
ankle when standing or walking in his brace. Tr. 754. Dr.
Schwartz confirmed that Plaintiff's talus fracture had
not healed and that Plaintiff was starting to experience
osteoarthritis. Id. Dr. Schwartz stated he did not
think a subtalar fusion surgery would be necessary; he
instead suggested a hardware-less incision in the joint to
remove any bone fragments and clean up the area under
Plaintiff's right talus. Tr. 755.
underwent a surgical repair of the right talus on December 4,
2008. Tr. 741. On December 15, 2008 Dr. Schwartz wrote that
Plaintiff was improving nicely and that, with splints,
Plaintiff already was capable of non-weight bearing mobility;
he also prescribed Celebrex for joint pain. Tr. 753. Further
evaluation by Dr. Schwartz on January 14, 2009 stated that
Plaintiff “has done very well. He is still having some
pain and some instability-like symptoms. He is in a regular
shoe weightbearing.” Tr. 752.
January and February 2009, at the referral of Dr. Schwartz,
Plaintiff attended a series of rehab sessions - at least
seventeen of them - at Patrick Saidi Physical Therapy. Tr.
624-25. Therapist Patrick Saidi, M.P.T., treated Plaintiff
with therapeutic exercises, joint mobilization, ultrasound,
electrical stimulation and cold therapy. Tr. 624. As of
February 20, 2009, however, there had “not been any
increases in Subtalar joint motion despite aggressive joint
mobilization.” Id. Although Plaintiff's
pain had decreased from a six or seven out of ten to a four
out of ten during the course of the therapy, he
“continue[d] to complain of pain with ambulation
greater than 10 minutes.” Id.
March 2, 2009, Dr. Schwartz and Plaintiff met again. Tr. 750.
Plaintiff was experiencing pain from arthritis that had
developed around his right talus. Id. He also
complained of pain coming from the mostly healed fracture on
his left foot between his and fourth and fifth TMT joints.
Tr. 751. Dr. Schwartz considered Plaintiff's previous job
too demanding for him at this time and suggested a Functional
Capacity Exam (“FCE”) to determine
Plaintiff's physical capabilities and limitations.
Id. A subsequent check-up on March 18, 2009 revealed
little different from the one two weeks prior, yet on this
date, Dr. Schwartz injected pain medications into
Plaintiff's left TMT joints. Tr. 749.
April 1, 2009, Dr. Schwartz assessed Plaintiff's
condition as improving, although Plaintiff still had swelling
and limited subtalar range of motion on his right side, as
well as pain over the fourth and fifth TMTs on his left side.
Tr. 428. Plaintiff by this time had finished his formal
physical therapy on his right ankle but had received no
therapy on his left foot. Id. To help with
Plaintiff's left-foot TMT pain, Dr. Schwartz injected
pain medications into the top of Plaintiff's left foot.
Tr. 428. The next day, April 2, 2009, Dr. Schwartz prepared a
supplement to the previous day's assessment in which he
discussed Plaintiff's recently conducted FCE. Tr. 746.
The FCE placed Plaintiff at medium duty, with a 14 percent
permanent disability rating, due to right-ankle stiffness.
Id. Dr. Schwartz also placed Plaintiff on MMI with a
14% permanent disability rating because of both of his
returned to Dr. Schwartz on May 13, 2009 for a follow-up
evaluation. Tr. 741. Most of Plaintiff's pain was coming
from his left foot rather than his right ankle. Id.
Dr. Schwartz noted osteoarthritis in both the fourth and
fifth TMT joints of Plaintiff's left foot and around the
talus of his right ankle. Dr. Schwartz gave Plaintiff
Voltaren gel - a topical pain reliever - and suggested
physical therapy for the ...