United States District Court, S.D. Florida
J. O'SULLIVAN, JUDGE UNITED STATES MAGISTRATE.
MATTER is before the Court on the Plaintiff's Motion for
Summary Judgment (DE# 24, 04/23/2017) and the Defendant's
Motion for Summary Judgment (DE# 25, 05/23/2017). The
plaintiff seeks reversal of the Social Security
Administration's denial of Supplemental Security Income
(“SSI”) Benefits. In the alternative, the
plaintiff requests a remand for further administrative
proceedings. The complaint was filed pursuant to the Social
Security Act, 42 U.S.C. §405(g) (“Act”) and
is properly before the Court for judicial review of a final
decision of the Commissioner of the Social Security
Administration (“SSA”). On January 31, 2017, the
parties consented to Magistrate Jurisdiction (DE# 18,
01/31/2017), and this matter was referred to the undersigned
for entry of judgment by Judge Altonaga on February 1, 2017
(DE #20, 2/1/17). Having carefully considered the filings and
applicable law, the undersigned enters the following Order.
March 15, 2012, the plaintiff, Joan Hospedales, filed an
application for a period of disability and disability
insurance benefits under Title II of the Social Security Act
and a concurrent application for supplemental security income
under Title XVI of the Act. (Tr. 74, 247-56). In these two
applications, the plaintiff indicated that her disability
began on June 9, 2011. (Id.). The applications
underwent the initial level of administrative review on
August 17, 2012, and they were denied. (Tr. 118-42). The
applications were reviewed and considered again after the
plaintiff filed a request. The claims were again denied on
November 14, 2012. The plaintiff then filed a timely written
request for hearing on January 15, 2013. 20 C.F.R.
§§404.929 et seq. and 416.1429 et
seq; (Tr. 150-54).
Administrative Law Judge (“ALJ”) held a video
hearing on April 1, 2015. 20 C.F.R. §§404.936(c)
and 416.1436(c); (Tr. 38-73). An attorney represented the
plaintiff in connection with her applications during the
hearing and presented evidence on her behalf. (Id.).
Pursuant to 20 C.F.R. §§404.1560(b)(2),
404.1566(e), 416.960(b)(2), and 416.966(e), the Commissioner
engaged a vocational expert (VE). (Tr. 68-72). The VE
appeared at the hearing and provided testimony.
(Id.). The VE “testified that a person with
plaintiff's RFC and vocational profile would be capable
of performing plaintiff's past relevant work as a nursing
aide as that job is generally performed in the national
economy.” Def.'s Mem. at 3; see Tr. 70,
72, 334. The Dictionary of Occupational Titles
(“DOT”) designates the job of nursing aide, as
the job is generally performed in the national economy, as
performed at a medium-exertion level. (Tr. 70, 72, 343). The
VE also testified that in her opinion, if the DOT were to
reevaluate the exertional level of the job of a nurse's
aid, the job would be classified as heavy. (Tr. 72).
the hearing, the plaintiff amended her alleged onset date of
disability to January 1, 2012. (Tr. 12, 343-44). After the
hearing, the ALJ left the record open at the plaintiff's
request to allow the plaintiff to submit additional
evidentiary records. (Tr. 58). On April 2, 2015, the
plaintiff provided additional records from Damian Lue, O.D.,
and from Taylor/Caplin Breast Health Center. (Tr. 1415-16).
found that the plaintiff was disabled from January 1, 2012,
through March 19, 2013. Following the ALJ's findings, the
plaintiff timely appealed. (Tr. 5). The Appeals Council
denied the plaintiff's request for review. (Tr. 1-3). The
plaintiff thereafter filed this action for review of the
Commissioner's decision. This case is ripe for judicial
review under both 42 U.S.C. §§ 405(g) and
time of the hearing on April 1, 2015, the plaintiff was
sixty-two years (62) old, single, and living with her
disabled daughter. (Tr. 45). The plaintiff completed primary
school and vocational school. (Tr. 45, 47). In vocational
school, the plaintiff learned “typing, bookkeeping, and
shorthand.” (Id.). The plaintiff was a
childcare provider until 2002. (Tr. 49). She worked as a
child monitor. (Tr. 49). The plaintiff is a Certified Nursing
Assistant (“CNA”). (Tr. 49). From 2003-2011, the
plaintiff worked at Triad Senior Living (“Triad”)
as a CNA. (Tr. 48). The plaintiff alleged that she stopped
working as a CNA at Triad because she was experiencing
problems related to prolapse. (Tr. 50).
Summary of Medical Evidence
plaintiff originally alleged that her disability started in
June of 2011. (Tr. 46). Following the hearing on April 1,
2015, the plaintiff amended that date to January 1, 2012.
(Tr. 57, 343-44). The plaintiff testified that her symptoms
from prolapse forced her to stop working by the end of June
2011. (Tr. 48). The plaintiff indicated that in 2011, walking
was a problem due to the prolapse because it gave a sensation
of the womb and she had urinary leakage. (Tr. 55). At the ALJ
hearing, in explaining the lack of early documentation
regarding the plaintiff's prolapse, the plaintiff's
attorney noted that “once the cancer showed up the
prolapse almost non-as if it didn't exist.” (Tr.
January of 2012, the plaintiff was diagnosed with cancer in
the left breast. (Tr. 1135). On February 15, 2012, the
plaintiff was admitted to the Adult Surgical Ward of Eric
Williams Medical Sciences Complex-X-Ray Radiology Department.
(Tr. 346) The admitting diagnosis was an “OT:
mastectomy and axillary clearance.” (Id.). The
operation was performed, and the plaintiff was discharged on
February 17, 2012. (Id.). On February 20, 2012, the
plaintiff “underwent left modified radical mastectomy,
” and on February 28, 2012, surgery was performed to
remove the cancer from her left breast. (Tr. 58, 1135).
Beginning June 8, 2012, the plaintiff underwent two cycles of
chemotherapy. (Tr. 1135). In September 2012, the plaintiff
received endocrine therapy with Femara, and the therapy
continued through June 1, 2014. (Tr. 1147, 1213). Clinic
notes dated September 7, 2012, show that the plaintiff
experienced no acute distress, and had a point score of zero,
an affect that was appropriate, and a gait and coordination
that were within normal limits. (Tr. 1248).
notes dated September 26, 2012, indicate that the plaintiff
reported that she was feeling well overall and that she
denied any other complaints. (Tr. 1237). The same clinic
notes also indicate that the plaintiff was not under any
acute distress, was negative for gastrointestinal issues, and
was negative for neurologic issues. (Tr. 1238). From November
26, 2012, through January 11, 2013, the plaintiff completed
radiation treatment. (Tr. 1147, 1213). Clinic notes dated
March 20, 2013, indicate that since completing radiation, the
plaintiff was doing well and felt better. (Tr. 1213).
notes dated June 7, 2013, represent that there was not acute
distress in the plaintiff's general appearance. (Tr.
1206). In this same evaluation, the plaintiff's pain
score was zero. (Id.). The notes also indicated that
the plaintiff's neurologic evaluation represented that
the plaintiff's affect was appropriate, and that her gait
and coordination were within normal limits. (Id.).
The same observations about the plaintiff's appearance
and gait were made on both June 29, 2012, and July 20, 2012.
(Tr. 1284, 1292). On May 8, 2012, the plaintiff had a
consultation with Doctor Judith Hurley at Jackson Health
System. (Tr. 1318). The notes indicate that the plaintiff
tested negative for dysuria, urinary frequency or hesitancy,
and hematuria. (Id.). The plaintiff was also
negative for pain, stiffness, swelling, and joint limitation.
(Id.). The plaintiff also did not have
“palpable cervical, supraclavicular, axillar, or
inguinal lymph nodes.” (Id.). The plaintiff
did not show any signs of distress and had a pain score of
zero. (Id.). The plaintiff had an affect that was
appropriate, and her gait and coordination were both normal.
(Tr. 1319). On March 20, 2013, the plaintiff had
“clinically improved from acute radiation
dermatitis” and there was “no evidence of . . .
other side effects.” (Tr. 1214). Twenty-one months
later, on December 30, 2014, Jackson Health System clinic
notes indicated that the plaintiff had done well after
multimodality of treatment, did not have any breast
complaints, and her breast exam was stable. (Tr. 1138).
October 4, 2013, a gynecological ultrasound showed a prolapse
of the plaintiff's uterus. (Tr. 1188). On October 22,
2013, the plaintiff was diagnosed with uterovaginal prolapse.
(Tr. 1184). On January 27, 2014, the plaintiff indicated that
the prolapse caused her to have the “feeling [of]
something hanging out of her vagina, ” and a
“pressure like sensation [that was] bothersome in
clothing.” (Tr. 1179). In December 2014 the plaintiff
underwent a vaginal hysterectomy. (Tr. 1101). The surgery was
successful. (Tr. 1098-1133).
notes dated June 1, 2014, for which Judith Hurley was listed
as the attending provider, noted that the plaintiff was
“on continued surveillance with no evidence of
disease.” (Tr. 1147). The same clinic notes indicated
that the plaintiff had a “followup appointment with
Urology due to complaints of uterine prolapse.” (Tr.
1148). On March 20, 2014, a gynecological ultrasound was
performed, and “showed retroverted uterus with
endometrium.” (Id.). The right ovary was
normal, and the left ovary contained a “clear
cyst.” (Id.). On June 9, 2014, the plaintiff
had a urine culture performed, and gall stones were found in
the plaintiff's bladder. (Tr. 1141).
March 24, 2015, the Breast Cancer Institute at Jackson
Memorial Hospital notified the plaintiff that the results of
her March 23, 2015, mammogram required that she return to
Jackson Memorial Hospital for a “full workup.”
(Tr. 42, 1417).
August 13, 2012, Walter Harris, M.D., in a Disability
Determination Explanation, opined that the plaintiff had
exertional limitations. Specifically, the plaintiff was able
to: (1) occasionally lift and/or carry 50 pounds; (2)
frequently lift and/or carry 25 pounds; (3) stand or walk
about 6 hours in an 8-hour day; (4) sit about 6 hours in an
8-hour day; and (5) push and/or pull an unlimited amount.
(Tr. 79). On October 11, 2012, Gloria Hankins, M.D., in a
Disability Determination Explanation, opined that the
plaintiff's exertional limitations were the same as
outlined by Dr. Harris in August 2012. (Tr. 100).
The Administrative Hearing
time of the ALJ hearing, the plaintiff was sixty-two years
old. (Tr. 45). The plaintiff was single and living with her
daughter, which is the only person the plaintiff takes care
of or supports. (Tr. 45, 47). The daughter does not work
because she has epilepsy. (Tr. 45-46). The plaintiff mainly
supervises her daughter when the daughter showers, in case
the daughter has a seizure while showering. (Tr. 46, 65). The
plaintiff indicated that her height and weight at the time of
the hearing was about 5'7" and about 178 pounds.
(Tr. 47). The plaintiff noted that she completed primary
school and vocational school for typing, bookkeeping, and
shorthand, and that she does not have a high school
equivalency diploma. (Id.).The plaintiff testified
that she receives financial help from two churches that she
attends. (Tr. 47-48). The plaintiff stated that she had not
done any odd jobs for cash in the four years prior to the
hearing date and that she was not working at the time of the
hearing. (Tr. 48). The plaintiff indicated that her last date
of work was in June of 2011. (Id.) At that time, the
plaintiff was working as a CNA at Triad. (Id.). The
plaintiff stated that she worked at Triad from 2003-2011until
symptoms of prolapse caused her to move too slowly and end her
employment. (Id.). As noted by the plaintiff's
attorney at the ALJ hearing, once the plaintiff was diagnosed
with cancer, the prolapse became secondary. (Tr. 57). The
plaintiff indicated that some of her self-employment income
came from being a CNA. (Id.). The plaintiff also
alleged to have worked as a CNA at a “very heavy
level.” (Tr. 49).
plaintiff testified that she is able to take care of her own
grooming and personal hygiene, with the exception that she
cannot lift her left hand too high to comb her hair. (Tr.
51). The plaintiff is right-handed and can comb her hair
using her right hand. (Id.). The plaintiff indicated
that she must use both hands to stretch and grab something,
such as coffee creamer. (Tr. 66). The plaintiff stated that
it is very strenuous for her to unscrew things such as water
bottles, and that she is only able to do so with her right
hand. (Tr. 67). The plaintiff further stated that she could
only lift a gallon of milk with her right hand, not her left.
plaintiff indicated that she does light housework, including
vacuuming, but not sweeping or mopping. (Tr. 52). The
plaintiff also indicated that she does laundry and washes
dishes and that sometimes her daughter's friends come
over and offer help with housework. (Id.). For
socializing, the plaintiff attends church and has breakfast
with her church friends. (Id.). The plaintiff has
never had a driver's license. (Tr. 52-53). For
transportation, the plaintiff uses a company called SDS,
which is provided for by the county. A friend also drives the
plaintiff to and from the store about once a month.
plaintiff alleged that she is unable to work because of
strain and that sometimes she has a lot of weakness and
falls. (Tr. 54). The plaintiff indicated that she is unaware
of why she falls, but sometimes she falls on the street and
that she does not feel safe anymore as a result.
(Id.). The last time the plaintiff fell prior to the
hearing was on February 17, 2015, and prior to that she fell
in December 2014. (Id.). The plaintiff claimed that
she did not require medical care after either of the falls.
(Id.). The plaintiff explained that sometimes she
feels as if she can barely walk and that sometimes she has to
rock in order to rise from a chair. (Id.). The
plaintiff said she is able to lift five pounds using her left
hand and ten pounds using her right hand. (Tr. 55). The
plaintiff claimed that she has limitations regarding the
duration she can stand or walk. (Id.). The plaintiff
indicated that doctors encourage her to build her strength
and that sometimes she walks a mile and must stop.
(Id.). The plaintiff indicated that in 2011 the
prolapse affected her ability to walk because it gave her a
“sensation to the womb” and would cause her to
leak urine, requiring her to wear a pad. (Id.). The
plaintiff stated that she wore protective undergarments on a
daily basis. (Tr. 56).
plaintiff noted that when she was diagnosed with cancer, she
did not attend to her prolapse issues in order to attend to
her cancer. (Id.). In May of 2014, the plaintiff was
cleared for surgery for the prolapse, which was first
reported to Dr. Jorge Garcia on January 27, 2014. (Tr. 61,
1179). The plaintiff stated that while she healed from
chemotherapy treatment until the beginning of 2014, she was
not able to work due to bloodwork, bone testing, and heart
testing, but these work interruptions were resolved after the
plaintiff's prolapse surgery in December of 2014. (Tr.
61-62). The plaintiff did not go back to work after that
because of regular checkups in Trinidad, one of which was on
August 4, 2014, to check on some continuing bleeding issues.
plaintiff testified that she tried to go back to work for
about one month in January of 2014 and that she was unable to
do so. (Tr. 62-63). The plaintiff testified that she was
working for a private person and was being paid cash.
(Id.). The plaintiff indicated that a friend
referred her to the job, and the plaintiff thought the job
was going to be “light.” (Id.). The
plaintiff further indicated that she stopped the job because
she did not feel well. (Id.).
plaintiff stated that she experienced urine leakage. (Tr.
63-64). The plaintiff explained that when her bladder was
tested the results showed that there was a little leakage,
requiring her to wear pads during the day and night. (Tr.
64). The plaintiff noted that the leakage was greater before
the prolapse surgery. (Tr. 66). The plaintiff indicated that
before she had the surgery she had to wear large maternity
pants because she urinated when she walked and also when she
stood up to begin walking. (Id.). The plaintiff
indicated that at the time of the hearing she still had
leakage issues requiring her to wear pads. (Id.) At
the time of the hearing, the ...