United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
MIRAND UNITED STATES MAGISTRATE JUDGE
Jay Collier seeks judicial review of the denial of his claim
for Social Security 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 pursuant to 42 U.S.C. §
405(g), sentence four.
Issues on Appeal
raises two issues on appeal: (1) whether the Administrative
Law Judge (“ALJ”) properly considered the
evidence of record in assessing Plaintiff's residual
functional capacity (“RFC”); and (2) whether
substantial evidence supports the ALJ's determination
that Plaintiff's allegations of disabling limitations are
not fully credible.
Procedural History and Summary of the ALJ's
14, 2012, Plaintiff filed his applications for DIB and SSI.
Tr. 196-210. Plaintiff alleged disability beginning on April
16, 2012 due to a stroke, poor short-term memory and
headaches. Tr. 35, 70, 88, 222. The claims initially were
denied on August 10, 2012 and upon reconsideration on
September 10, 2012. Tr. 114-132, 135-146. Plaintiff requested
a hearing before an ALJ and received a hearing before ALJ
David J. Begley on January 28, 2015. Tr. 27-69. Plaintiff,
who was represented by an attorney, and Vocational Expert
(“VE”) Jane Beougher appeared and testified at
the hearing. See Tr. 27.
March 3, 2015, the ALJ issued a decision finding Plaintiff
not disabled from April 16, 2012 through March 3, 015, the
date of the decision. Tr. 12-21. The ALJ found that Plaintiff
met the insured status requirements of the Social Security
Act through March 31, 2014. Tr. 14. At step one, the ALJ
concluded that Plaintiff had not engaged in substantial
gainful activity since April 16, 2012, the alleged onset
date. Id. At step two, the ALJ found that Plaintiff
“has the following severe impairments: hypertension;
status post lacunar stroke; headaches; chronic pulmonary
disease; depression.” 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.”
Tr. 15. The ALJ then determined that Plaintiff has the RFC to
perform light work as defined in 20 C.F.R. §
404.1567(b),  except that:
[Plaintiff] would need to avoid climbing ladders, ramps, and
scaffolds. He is further limited to occasional climbing of
ramps and stairs, balancing, stooping, kneeling, crouching,
and crawling. In addition, he would need to avoid
concentrated exposure to extreme heat, humidity, excessive
noise, bright lights, and sunlight outside of normal office
lighting. He would also need to avoid concentrated exposure
to irritants such as fumes, odors, dust, gases, and poorly
ventilated areas. Additionally, he would need to avoid
slippery and uneven surfaces as well as hazardous machinery
and unprotected heights. Finally, he is limited to doing
simple routine repetitive tasks; involving only simple,
work-related decisions, with few, if any, work place changes.
Tr. 16. Next, the ALJ found that Plaintiff is unable to
perform any of his past relevant work as a carpenter,
carpenter's foreman or air conditioner technician helper.
Tr. 20. At step five, in considering Plaintiff's RFC,
age, education, and work experience, the ALJ found that jobs
exist in significant numbers in the national economy
Plaintiff could perform. Id. Thus, the ALJ concluded
that Plaintiff had not been disabled from the alleged onset
disability date of April 16, 2012 through the date of the
decision. Tr. 21.
the ALJ's decision, Plaintiff filed a request for review
by the Appeals Council, which was denied on June 13, 2016.
Tr. 1-3. Accordingly, the ALJ's March 3, 2015 decision is
the final decision of the Commissioner. Plaintiff filed an
appeal in this Court on June 30, 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. 18, 20.
Background and Relevant Medical History
alleges that on April 12, 2012, while operating a nail gun on
a construction site, he developed slurred speech, numbness in
his right arm, dizziness and loss of balance. Tr. 284, 423.
For the next two days, the symptoms persisted, and Plaintiff
visited a nearby pharmacy to check his blood pressure, which
he said was 195/122. Tr. 307. On April 16, 2012,
Plaintiff's symptoms worsened, prompting him, at his
brother's suggestion, to seek medical attention. Tr. 284.
April 16, 2012, Plaintiff presented to Michal Dunn, M.D., at
Lee Memorial Health complaining of stroke-like symptoms.
Id. Dr. Dunn detected no slurring of speech and
recorded Plaintiff's blood pressure at 132/97.
Id. Dr. Dunn concluded that Plaintiff had
“somewhat of an unusual affect which potentially could
be somewhat of an expressive deficit, which in this case
would be a lacunar stroke.” Id. Dr. Dunn
suggested Plaintiff be admitted to the hospital for further
evaluation. Tr. 285.
admission on April 17, 2012, Chris Marino, M.D., and
Sheng-Qian Wu, M.D., met with Plaintiff, who complained of
slurred speech, right-hand clumsiness, disequilibrium and
hypertension. Tr. 281, 307-08. His blood pressure was
elevated at 201/118, but soon thereafter fell to 152/88. Tr.
282-83. He claimed no nervousness, mood changes or
depression. Tr. 282. Although Dr. Marino described
Plaintiff's gait as “somewhat cautious, ”
neither an echocardiogram nor a computed tomography
(“CAT”) scan of his head revealed any
abnormalities. Tr. 283, 288-91. A magnetic resonance imaging
(“MRI”) scan, however, showed an acute lacunar
infarct-indicative of a stroke-around the left internal
capsule. Tr. 292. Plaintiff also underwent an ultrasound of
his neck, which showed “evidence of a 16-49% stenosis
[narrowing] of the proximal right internal carotid artery,
” and similar blockage on the left. Tr. 309. Within a
few days, he left the hospital prematurely against Dr.
Marino's advice because he had “gotten tired of all
that testing.” Tr. 443, 449.
25, 2012, Advance Registered Nurse Practitioner
(“ARNP”) Mary Dion evaluated Plaintiff. Tr.
329-31. She found that Plaintiff had speech difficulty and
slow thought process. Tr. 330. His skin was also of a
“[v]ery ruddy, grayish color, ” and Plaintiff had
ongoing hypertension, although he appeared in good health
otherwise. Tr. 329-31. ARNP Dion encouraged Plaintiff to quit
smoking. Tr. 331. At this point, Plaintiff was taking high
blood pressure and blood thinning medication. Id.
7, 2012, Plaintiff returned to ARNP Dion to evaluate his
blood pressure and blood test results. Tr. 325. Plaintiff
reported that he was “feeling well and denie[d] chest
pain, headaches and palpitations. He [was] not exercising and
[did] not restrict his sodium intake.” Id.
Although Plaintiff's blood pressure was “running
about 140/100, ” and he appeared weathered and had a
“ruddy” complexion, his physical exam was
unremarkable. Tr. 325-26. He appeared to be in good health,
despite feeling “slow” since his stroke. Tr. 326.
ARNP Dion acknowledged Plaintiff's ongoing hypertension
diagnosis and urged him to adopt healthy lifestyle habits.
22, 2012, Plaintiff followed up with ARNP Dion, who indicated
that Plaintiff was feeling weak from the stroke, yet
“he [was] feeling well and denie[d] chest pain, cough,
dizziness, headaches and palpitations. He [was] not
exercising and  restrict[ed] his sodium intake.” Tr.
321. At this time, he was still taking his high blood
pressure and blood thinning medication. Tr. 323. Plaintiff
continued to smoke, although he smoked less. Tr. 321.
Plaintiff was counseled to eliminate smoking and to begin
walking with the goal of exercising 30 minutes each day most
days of the week. Tr. 322. A subsequent evaluation with ARNP
Dion on July 26, 2012 led to substantially identical findings
and recommendations, except that Plaintiff had begun to take
small walks. Tr. 349.
August 7, 2012, Plaintiff was referred to Eshan M. Kibria,
D.O., for an independent medical examination for Social
Security disability purposes. Tr. 335. Dr. Kibria noted
Plaintiff had problems with dizziness and hypertension, as
well as “little tiny headaches and both hands go numb
at night.” Id. Plaintiff also experienced
shortness of breath after mild exertion and trouble with
writing, sleeping and exposure to sunlight. Id.
Plaintiff further reported that he had not worked since 2010.
Id. Nonetheless, Plaintiff possessed a normal speech
pattern without slurring and a normal fund of general
information. Tr. 335-36. Dr. Kibria's impression
diagnosis was that Plaintiff had speech problems around the
time of the stroke, which had since “cleared up.”
Tr. 336. Furthermore, Plaintiff had hypertension and
“[s]light slow processing requiring occasional
repeating. No visual field defect or any focal motor or
sensory problems. Positional dizziness when [he] stands up or
turns too quick [sic] on Metoprolol. Memory seems
August 28, 2012, Plaintiff presented again to ARNP Dion, who
noted that Plaintiff was feeling well and denied headaches,
numbness or palpitations. Tr. 344. Plaintiff complained that
“all the medications [were] making him dizzy.”
Id. Plaintiff reported that he was exercising,
walking one mile per day and restricting his sodium intake.
Id. He also said that he occasionally checked his
blood pressure at a local pharmacy, and it was “always
high.” Id. His skin appeared warm, dry and
ruddy, and he was diagnosed with malignant, uncontrolled
hypertension. Tr. 345. ARNP Dion switched one of his
medications, and encouraged him to stop smoking, increase
activity and comply with his medication regimen. Tr. 345-46.
September through December 2012, Plaintiff underwent a series
of almost-weekly Coumadin (warfarin) clinics to help regulate
the coagulative properties of his blood. Tr. 355-76. His
warfarin intake levels were frequently adjusted accordingly.
saw ARNP Dion on December 5 and 7, 2012 to follow up on his
hypertension levels, which remained high. Tr. 377-78, 381.
Plaintiff stated that exposure to the sun caused headaches,
and contradictory evidence in the record exists on these
dates regarding Plaintiff's sodium intake, exercise
habits and at-home blood pressure monitoring. Tr. 377,
Although Plaintiff's skin had a weathered, dusky
appearance, his physical exam was unremarkable. Tr. 378. ARNP
Dion counseled him to stop smoking and increased the dosage
of his Diltiazem. Id.
March 22, 2013, Plaintiff met with Dr. Marino for a
neurological evaluation. Tr. 443. Dr. Marino noted, among
other things, difficulty understanding speech, shortness of
breath, wheezing, chest pain and depression. Tr. 444.
Otherwise, Plaintiff appeared normal, including his gait,
speech, memory and attention. Id. Dr. Marino stated
that Plaintiff described “a level of functional
impairment that is well beyond what would be expected given
the small lacunar nature of his stroke. I have found no
neurological explanation for this. One thought would be that
he could be having general functional impairment on the basis
of a post stroke depression.” Tr. 445. Dr. Marino
suggested that psychological and psychiatric treatment may be
March 29, 2013, ARNP Dion saw Plaintiff again, who complained
of shortness of breath, depression and impaired memory. Tr.
535, 537. He appeared grayish and unkempt, but otherwise
looked normal. Tr. 537. ARNP Dion continued to encourage him
to stop smoking, and Plaintiff declined an antidepressant at
this time. Tr. 538.
April 29, 2013, May 29, 2013 and June 7, 2013, at the
referral of Florida Division of Vocational Rehabilitation
(“DVR”) counselor Lucas Halverson, Plaintiff
underwent a psychological assessment with Noble Harrison,
Ph.D. Tr. 448-68. At the conclusion of the June 28, 2013
evaluation, Dr. Harrison noted high levels of depression,
anxiety and frustration with his life as Plaintiff's most
predominant symptoms. Tr. 452. Plaintiff also expressed
concern that there seemed to be inadequate medical
documentation to support his condition. Tr. 451-52. Dr.
Harrison also talked to Plaintiff's mother, who
corroborated many of Plaintiff's physical symptoms, yet
said that he sometimes drives and fishes. Tr. 451.
of his assessment with Dr. Harrison, Plaintiff underwent a
Wechsler Adult Intelligence Scale-IV Edition. Tr. 452. Dr.
Harrison's diagnosed Plaintiff with mild vascular
neurocognitive disorder (mild memory and attention and
concentration deficits with depression, anxiety, and
affective liability accompanying and enhancing the
neurocognitive deficits) and somatic symptom disorder,
persistent, moderate. Tr. 457. Dr. Harrison opined,
“[i]t is my strong clinical opinion that . . .
[Plaintiff's] problems are significantly less than his
subjective expression of those symptoms, ” and that he
could certainly perform a variety of indoor jobs, if not
construction work. Id. Dr. Harrison's concern
was Plaintiff's “expressed belief” that he
has worked his whole life and now thinks he deserves to not
continue to work as hard and receive disability benefits.
Id. Dr. Harrison opined that Plaintiff's
returning to work “would be the best antidote to his
anxiety and stress related to his physical condition.”
Tr. 459. He recommended to Mr. Halverson, the vocational
counselor, that Plaintiff be referred for a work activity
assessment to determine his physical abilities to re-enter
the workforce. Id.
2, 2013, Plaintiff presented to ARNP Janet Loo for shortness
of breath. Tr. 527. ARNP Loo noted that Plaintiff did not
exercise, restrict his sodium intake or check his blood
pressure and continued to smoke. Tr. 527-28. Plaintiff
complained of “daily headaches since his stroke,
” but denied taking any medications for them. Tr. 528.
Plaintiff experienced possible chronic obstructive pulmonary
disease (“COPD”) and claimed he was depressed.
Id. Although Plaintiff's mood was dysphoric, he
“adamantly refuse[d] medication for treatment.”
Id. ARNP Loo counseled him that “the only way
to stop the progression of [COPD] is to stop smoking.”
August 21, 2013, at the referral of DVR counselor Mr.
Halverson, chiropractor Eric Gerken, D.C., performed a work
capacity evaluation on Plaintiff that included an extended
battery of physical tests. Tr. 413-41. During the visit,
Plaintiff noted the following impairments: weight gain,
memory loss, numbness/tingling, fainting/dizziness,
headaches, balance problems, high blood pressure, difficulty
sleeping, stress, depression, bronchitis/lung problems and
shortness of breath. Tr. 420. At the conclusion of the
evaluation, Dr. Gerken noted Plaintiff's stroke and
hypertension, as well as COPD, sarcopenia,  cognitive
disorder and possible peripheral neuropathy. Tr. 413. Dr.
Gerken opined that Plaintiff possessed “pervasive