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Hospedales v. Berryhill

United States District Court, S.D. Florida

December 7, 2017

JOAN HOSPEDALES Plaintiff,
v.
NANCY A. BERRYHILL[1] Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          JOHN J. O'SULLIVAN, JUDGE UNITED STATES MAGISTRATE.

         THIS 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.

         PROCEDURAL HISTORY[2]

         On 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).

         The 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.”[3] 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).

         Following 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).

         The ALJ 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 1383(c)(3).

         FACTS

         I. Plaintiff's Background

         At the 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).

         II. Summary of Medical Evidence

         The 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. 57).

         In 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).

         Clinic 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).

         Clinic 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[4], urinary frequency or hesitancy, and hematuria.[5] (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).

         On 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).

         Clinic 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).

         On 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).

         On 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).

         III. The Administrative Hearing

         A. Plaintiff's Testimony

         At the 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[6] 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).

         The 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. (Id.).

         The 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. (Id.).

         The 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).

         The 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. (Id.).

         The 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.).

         The 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 ...


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