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Pyjek v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

June 22, 2017




         Plaintiff 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.

         I. Issues on Appeal[1]

         Plaintiff 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.

         II. Procedural History and Summary of the ALJ's Decision

         Plaintiff 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.

         The ALJ 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[2] 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.

         III. Social Security Act Eligibility and Standard of Review

         A 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.

         The 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 citation omitted).

         The 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 Cir.1971)).

         IV. Background and Relevant Medical History

         Plaintiff 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.[3] 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, 310.

         The 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.

         Following 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.

         Two 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. Id.

         On 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. 560.

         On 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.

         Plaintiff 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.

         A week 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.

         Plaintiff 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.

         On May 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.

         On July 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.

         After 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.

         On a 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.

         By 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.

         Plaintiff 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.

         During 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.

         On 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.

         On 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 ankles. Id.

         Plaintiff 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 ...

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