United States District Court, S.D. Florida
J. O'SULLIVAN, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Plaintiff's Motion for
Summary Judgment and Memorandum in Support Thereof (DE #21,
06/24/2017), and the Defendant's Motion for Summary
Judgment and Opposition to Plaintiff's Motion fo Summary
Judgment (DE #22, 07/24/2017). The plaintiff requests the
final decision of the Commissioner of Social Security be
reversed and Disability Benefits (“DB”) be
granted under Title XVI of the Social Security Act
(“SSA”). In the alternative, the plaintiff
requests the final decision of the Commissioner of Social
Security be remanded under Sentence Four of 42 U.S.C. §
405(a) for further administrative proceedings. The Complaint
was filed pursuant to the SSA, 42 U.S.C. § 405(g), and
is properly before the Court for judicial review of a final
decision of the Commissioner of the SSA. The parties
consented to Magistrate Judge jurisdiction, (DE #17,
04/19/2017), and this matter was reassigned to the
undersigned pursuant to Judge Altonaga's Order dated
April 19, 2017 (DE #19, 04/19/2017). Having carefully
considered the filings and applicable law, the undersigned
enters the following Order.
October 16, 2013, Esther Crespo Aleman (“the
plaintiff”) filed an application for Supplemental
Security Income (“SSI”). (Tr.
203-12). The plaintiff's SSI application was
initially denied on November 1, 2013, (Tr. 104-106), and was
denied again on reconsideration on December 18, 2013. (Tr.
107-111). The plaintiff requested a hearing before an
administrative law judge (“ALJ”), which was held
on July 13, 2015. (Tr. 47-87). On September 2, 2015, the ALJ
denied the plaintiff's SSI application. (Tr. 26-46). The
plaintiff filed an appeal to the Appeals Council requesting
review of the ALJ's decision. (Tr. 301-09). The Appeals
Council denied the plaintiff's request for review on
November 7, 2016. (Tr. 1-5). The plaintiff has exhausted her
administrative remedies and this case is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The
plaintiff filed a Motion for Summary Judgment on June 24,
2017 (DE #21, 06/24/2017), the defendant filed a response and
Cross-Motion for Summary Judgment on July 24, 2017 (DE #22,
07/24/2017), and the plaintiff filed a response to the
defendant's Motion for Summary Judgment and reply to the
defendant's response on August 28, 2017 (DE #26,
Plaintiff's Background and Plaintiff's Hearing
plaintiff was born in Cuba on January 25, 1967, (Tr. 196,
203), and has completed school through ninth grade. (Tr.
216). The plaintiff has a limited work history and has only
minimal earnings from previously cleaning houses,
babysitting, and packing salads at farm markets. (Tr. 54- 55,
200-202, 299). The plaintiff earned less than $5, 000 in the
years 2004 and 2009. (Tr. 202). The plaintiff earned less
than $9, 000 in the year 2005. (Id.). The plaintiff
has not earned any income since 2009. (Id.). Due to
thyroid cancer and hypocalcemia,  the plaintiff alleges that
she has been unable to work since undergoing total
thyroidectomy surgery, paratracheal dissection, and
paratracheal node dissection in the left neck on September
26, 2013. (Tr. 55-56, 235, 342).
plaintiff believes she is unable to work because she
experiences numbness on her left side from below her left ear
all the way down the left side of her shoulder, her vocal
cords are compromised and it takes a great deal of effort to
speak, she has numbness in both fingers and hands making it
difficult to carry things, she has a bacterial problem in her
right eye that causes her to always drop tears, her
medication causes adverse side effects, such as having
difficulty walking, palpitations, dizziness, and sleepiness,
she suffers from depression, and she forgets things. (Tr.
55-57, 67, 69). The plaintiff completed an Application for
Supplemental Security Income under Title XVI of the Social
Security Act on October 11, 2013. (Tr. 203-13). The plaintiff
also completed an Adult Disability Report, Form SSA-3368-BK,
on October 11, 2013. (Tr. 214-25).
13, 2015, the plaintiff testified that she lives only with
her husband. (Tr. 53). The plaintiff further testified that
she is sometimes able to help with housework, such as cooking
with the help of her husband and performing household chores,
but how much she is able to help depends on how her
depression is on a given day and what level of numbness she
experiences. (Tr. 67- 68). The plaintiff further testified
that her husband needs to help her dress, but that depending
on how she feels, she will make an effort to dress herself so
as not to bother her husband. (Tr. 67). The plaintiff stated
that she doesn't go shopping, but later admitted that if
her husband goes, she will go with him, but does not like to
be outside and requests to go back home. (Id.). The
plaintiff further testified that although she is unable to
lift anything, if her fingers aren't too numb she can
lift a dish to wash it or lift a small bottle of milk, but if
she is experiencing numbness, she is unable to lift either
the dish or the milk. (Tr. 75-76).
plaintiff indicated that she has psychological impairments
and sees a doctor once a month for treatment, which includes
prescription medication. (Tr. 69-70). The plaintiff testified
that her husband wakes her up in the morning to give her the
medication, and once her husband leaves, the plaintiff either
sits or lies down and will occasionally nap. (Tr. 66-67). The
plaintiff has no hobbies or activities that she likes to do
because she doesn't feel like doing anything or going
anywhere. (Tr. 68). Other than her husband, the plaintiff
testified that she only sees some family, including her
mother-in-law, sister-in-law, and sometimes her daughter.
(Tr. 70-71). Except for occasionally seeing family, the
plaintiff indicates that she sees people if she goes out to
the supermarket with her husband. (Tr. 71).
plaintiff testified that she experiences painful headaches
every day, which can last one to two hours, and if she does
take medicine, the headaches get better, but ultimately come
back. (Tr. 73). Besides significant head pain, the plaintiff
testified that she experiences a sharp pinching, needle-like
pain throughout her entire body every day and will take
medication that helps for four to six hours before the pain
comes back. (Tr. 74-75). The plaintiff claims that she has
more bad days than good days, is unsure of the amount of time
she can spend standing in an eight-hour day, is unsure of the
amount of time she can spend sitting, but estimates that she
can sit for twenty minutes to one hour during the course of
an eight-hour day. The plaintiff indicated that she
hasn't driven since before her surgery on September 26,
2013, and was unable to indicate what portion of her day she
spends lying down. (Tr. 76-79).
Medical Treatment History
Jackson Memorial Hospital
2011, the plaintiff developed a mass in the left side of her
neck. (Tr. 339). Dr. Ronen Nazarian was the plaintiff's
physician on August 29, 2013, when the plaintiff had a fine
needle aspiration (“FNA”) performed on the left
neck which suggested papillary carcinoma of the thyroid. (Tr.
402). On September 26, 2013, the plaintiff underwent a total
thyroidectomy with neck dissection of lymph nodes on the left
side of her neck at Jackson Memorial Hospital (“the
surgery”). (Tr. 339, 402). The notes regarding the
plaintiff's surgery that were prepared by the
plaintiff's attending physician indicate that a nerve
traveling down to the trapezius muscle was found entwined
with the large neck mass and was severely displaced. (Tr.
367). Because of the nerve's entwinement with the muscle,
the nerve was incised. (Id.). Following the surgery,
the plaintiff remained in the hospital until October 3, 2013
when she was discharged. (Tr. 337).
plaintiff had a follow-up visit with Dr. Nicholas Craig
Purdy, her ear, nose, and throat (“ENT”)
physician, on October 25, 2013, at which time she was
prescribed Calcitriol and Levothyroxine. (Tr. 327). The plaintiff was
examined by Dr. Keith Richardson, another ENT physician, on
November 8, 2013, and Dr. Richardson noted that the plaintiff
was doing well at home and that since the plaintiff's
last visit, where the plaintiff's left vocal cord was
paralyzed, the left vocal cord had begun to move. (Tr. 322).
On November 22, 2013, Dr. Richardson saw the plaintiff again
and noted that only one of her vocal cords was mobile and
that the plaintiff was experiencing general pains in her left
shoulder, which Dr. Richardson attributed to cranial nerve 11
weakness. (Tr. 316). Dr. Richardson noted on February 21,
2014, that the plaintiff continued to experience vague
general pains in her left shoulder, which, again, was
attributed to cranial nerve 11 weakness. (Tr. 474).
plaintiff had her annual well-woman exam on March 6, 2014,
and it was documented that the plaintiff had denied
headaches, shortness of breath, dizziness, or pain anywhere
in her body. (Tr. 534). However, on May 14, 2014, it was
reported in a follow-up clinic note that the plaintiff was
experiencing a lot of pain, primarily in her neck. (Tr. 539).
In yet another follow-up clinical note, written on August 21,
2014, the plaintiff reported that she no longer had facial
pain, but did continue to have neck pain and hot flashes.
(Tr. 548). As of December 4, 2014, the facial pain had
started again. (Tr. 566).
April 18, 2014, the plaintiff saw Dr. A. Manzano, an
endocrine fellow, and Dr. A. Kargi, the attending physician.
(Tr. 473). The plaintiff was told that she would be
undergoing RAI therapy,  that she should take Ibuprofen for
pain, and continue taking the Levothyroxine. (Id.).
One year later, on April 9, 2015, the plaintiff visited the
endocrinology clinic and reported that she experienced hot
flashes, her voice had changed since the surgery, she had
palpitations two to three days per week, and had pain in the
left side of her neck at the site of radial neck dissection.
plaintiff met with Dr. Fernando Mendez-Villamil for an
initial psychiatric evaluation on February 8, 2014, and was
seen for fifty minutes. (Tr. 595). The plaintiff stated that
her reason for going to Dr. Mendez-Villamil was that she was
“very depressed.” (Id.). During the
plaintiff's initial psychiatric evaluation, Dr.
Mendez-Villamil noted that the plaintiff explained that she
was in a depressed mood, suffered from insomnia, had poor
motivation and concentration, had poor energy, and felt
hopeless and helpless. (Id.) Dr. Mendez-Villamil
observed that the plaintiff was anxious and recorded a Global
Assessment of Functioning (GAF) score of 40,  as well as
prescribing fluoxetineand hydroxyzine for anxiety and depression.
(Tr. 596). After this initial visit, the plaintiff visited
with Dr. Mendez-Villamil every one to five months. (Tr.
583-96). GAF scores were assigned to the plaintiff upon each
meeting with Dr. Mendez-Villamil and the scores ranged from
35-48. (Id.). Other than the initial visit, all of
the plaintiff's visits with Dr. Mendez-Villamil lasted
fifteen minutes, and more than 50% of that time was spent
providing counseling and/or coordination of care.
(Id.). Dr. Mendez-Villamil consistently indicated
that the plaintiff is unable to care for herself. (Tr.
15, 2015, Dr. Mendez-Villamil completed a medical source
statement. (Tr. 598-608). Dr. Mendez-Villamil noted that the
plaintiff had a “mood disorder (multiple medical
problems), ” had impairments that lasted, or are
expected to last, for a continuous period not less than
twelve months, was estimated to miss work more than four days
a month due to having “good days” and “bad
days, ” was expected to be off task more than 50% of an
8-hour work day, and that “due to her poor energy and
poor concentration, [the plaintiff was] unable to work at
all.” (Tr. 598-99). Dr. Mendez-Villamil also noted that
the plaintiff would have difficulty in making occupational
adjustments, making performance adjustments, and making
personal-social adjustments. (Tr. 600-01). Additionally, Dr.
Mendez-Villamil opined that the plaintiff had marked
restriction of activities of daily living, marked
difficulties in maintaining social functioning, marked
difficulties in maintaining concentration, persistence, or
pace, and repeated episodes of decompensation, each with an
extended duration, as well as a residual disease process that
has resulted in a marginal adjustment such that even a
minimal increase in mental demands or change in the
environment likely would cause the plaintiff to further
decompensate. (Tr. 605).
Disability Determination Services
October 25, 2013, a single decision maker for the Disability
Determination Services (“DDS”), Marcia Mandel,
noted that after the plaintiff was discharged following the
surgery, “she was doing well . . . with good pain
management.” (Tr. 90). Ms. Mandel determined that the
plaintiff was not disabled pursuant to the Social Security
Act. (Tr. 88-93). The plaintiff filed for reconsideration of
her disability by the DDS on November 25, 2013, alleging that
her voice had gotten worse, and balls had developed in her
breasts. On December 18, 2013, Dr. Edmund Molis, MD, a DDS
medical consultant, opined that “the [medically
determinable impairment(s)] is not, or will not be, or was
not, of such severity so as to prevent, or to have prevented,
the individual from engaging in [substantial gainful
activity] within twelve months after onset.” (Tr.
Vocational Expert's Testimony
hearing, the vocational expert (“VE”), Ronald
Malik, testified before the ALJ. (Tr.80-83). The VE testified
that there was work in the region for the plaintiff based on
the following hypothetical question posed by the ALJ:
“hypothetical individual in the age range of [the
plaintiff, ] educated at a seventh grade level, no past work.
Limited to light exertion, unskilled work, and only
occasional contact with the general public.” (Tr.
81-82). The jobs that the plaintiff can perform, according to
the VE, include a polisher, a kitchen helper, and an
offbearer. (Id.). Thereafter, the VE was asked
multiple questions about the unskilled job market in Florida.
(Tr. 82-83). The questions pertaining to the unskilled job
market were in regard to employers' tolerance of
unscheduled leave and the percentage of a workday that an
unskilled worker would need to be on task. (Tr. 82-83). The
VE testified that for the types of jobs he listed as answers
to the ALJ's hypothetical, employers won't tolerate
more than thirteen unscheduled call-ins per year and that the
individual would need to be on task eighty-five percent of
the day or better. (Tr. 82).
was then examined by the plaintiff's attorney. (Tr.
83-86). Taking the hypothetical posed by the ALJ, the
attorney added on restrictions pertaining to the use of
hands. (Tr. 85-86). The VE testified that his answer would
remain the same as his answer to the original hypothetical
posed by the ALJ. (Tr. 86).
DECISION MAKING PROCESS
is defined as the “inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result
in death, or has lasted or can last for a continuous period
of not less than twelve months . . . .” 42 U.S.C.
§§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505
(2017). The impairment(s) must be severe, making
the plaintiff “unable to do his previous work . . . or
any kind of substantial gainful work which exists in the
national economy . . . .” 42 U.S.C. § 423(d)(2);
20 C.F.R. §§ 404.1505-404.1511.
determine whether the plaintiff is entitled to disability
benefits, the ALJ must apply a five-step analysis. 20 C.F.R.
§ 404.1520(a)-(f). The ALJ must first determine whether
the plaintiff is presently employed or engaging in
substantial gainful activity. 20 C.F.R §
404.1520(a)(4)(I). If so, a finding of non-disability is made
and the inquiry ends. Id..
the ALJ must determine whether the plaintiff suffers from a
severe impairment or a combination of impairments. 20 C.F.R.
§ 404.1520(a)(4)(ii). If the plaintiff does not, then a
finding of non-disability is made and the inquiry ends.
the ALJ compares the plaintiff's severe impairments to
those in the listings of impairments located in Appendix 1 to
Subpart 404 of the Code of Federal Regulations. 20 C.F.R.
404.1520(a)(4)(iii); 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Certain impairments are so severe, whether considered alone
or in conjunction with other impairments, that if such
impairments are established, the regulation requires a
finding of disability without further inquiry into the
plaintiff's ability to perform other work. See Gibson
v. Heckler, 762 F.2d 1517, 1518 n.2 (11th Cir. 1985). If
the impairment meets or equals a listed impairment,
disability is presumed, and benefits are awarded. 20 C.F.R.
the ALJ must determine whether the plaintiff has the
“residual functional capacity” to perform his or
her past relevant work. “Residual Functional
Capacity” (“RFC”) is defined as “the
most you can still do despite your limitations.” 20
C.F.R. § 404.1545(a)(1). This determination takes into
account “all relevant evidence, ” including
medical evidence, the claimant's own testimony, and the
observations of others. 20 C.F.R. § 404.1545(a)(3). If
the plaintiff is unable to perform his or her past relevant
work, then a prima facie case of disability is established
and the burden of proof shifts to the Commissioner to show at
the fifth step where there is other work available in the
national economy which the plaintiff can ...