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Aleman v. Berryhill

United States District Court, S.D. Florida

December 29, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.



         THIS 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.


         On October 16, 2013, Esther Crespo Aleman (“the plaintiff”) filed an application for Supplemental Security Income (“SSI”). (Tr. 203-12).[1] 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, 08/28/2017).


         I. Plaintiff's Background and Plaintiff's Hearing Testimony

         The 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, [2] 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).

         The 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).

         On July 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).

         The 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).

         The 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).

         II. Medical Treatment History

         A. Jackson Memorial Hospital

         In 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).

         The 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[3] and Levothyroxine.[4] (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).

         The 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).

         On 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, [5] 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. (Tr. 513).

         B. Psychiatric Treatment

         The 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, [6] as well as prescribing fluoxetine[7]and hydroxyzine[8] 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. 583-94).

         On July 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).

         III. Disability Determination Services

         On 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. 95-101).

         IV. Vocational Expert's Testimony

         At the 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).

         The VE 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).


         “Disability” 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).[9] 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.

         To 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..

         Second, 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. Id..

         Third, 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. § 404.1520(d).

         Fourth, 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 ...

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