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Bronson v. Berryhill

United States District Court, S.D. Florida

February 26, 2018

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



         THIS CAUSE is before the Court upon Plaintiff, Angela C. Branson's ("Plaintiff) Motion for Summary Judgment [DE 22], and Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security Administration's ("Defendant") Motion for Summary Judgment [DE 23]. The parties have consented to magistrate judge jurisdiction. [DEs 16, 17]. Plaintiff has filed a Reply [DE 25], and the matter is now ripe for review. The issue before the Court is whether the record contains substantial evidence to support the denial of benefits to the Plaintiff and whether the correct legal standards have been applied. Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988).

         I. FACTS

         On January 16, 2014, Plaintiff filed an application for supplemental security income, alleging disability beginning on March 9, 2013. [R. 42].[1] The claim was denied initially and upon reconsideration. Id. Following a hearing on September 3, 2015 the ALJ issued a decision on December 3, 2015, denying Plaintiffs request for benefits. [R. 42-79]. A request for review was filed with the Appeals Council and denied on November 21, 2016. [R. 1-6].

         A. Hearinfi Testimony

         The ALJ held a hearing on September 3, 2015. [R. 86]. Plaintiff testified that she was born on May 25, 1970, and was 45 years old at the time of the hearing. [R. 92]. She has a driver's license, but does very little driving because it is hard for her to turn her neck. Plaintiff graduated from high school and took one adult education class. Id. She most recently worked as a merchandiser on March 9, 2013, right before her accident. [R. 93]. The accident occurred while she was placing the labels on a shelf, and a supervisor, who was above her on a ladder, dropped the shelving and all of the equipment onto her. Id. Plaintiff did not work from 2000 to 2011 because her children were young. Id.

         Plaintiff testified that she is unable to work because she has difficulty using her hands because they are numb and tingle, she has pinched nerves in her neck, she cannot hold her head up for very long before she needs to rest it, she has weakness in her right hand that prevents her from lifting things, typing, or writing, she has nerve damage in both arms and her neck, she needs surgery on ripped tendons and tissue in her right arm, and she has carpal tunnel. [R. 93-94]. Plaintiff also stated that she cannot lift her hands over her head or behind her and cannot bend forward with the weight of her head. [R. 105]. She wears a brace on her right wrist and hand to keep her elbow and thumb supported. [R. 94]. Plaintiff is supposed to wear a brace on her right elbow if it starts to swell or bother her too much. Id. She also wears a neck brace to keep the pressure off her nerves. Id. All three braces were prescribed by doctors. Id.

         Plaintiff explained that she cannot stand for long periods of time, and that, while she can walk, she gets tired easily because her head feels heavy. [R. 94]. She has a hard time even lifting a glass of water and cannot lift a gallon of milk. Id. At the time of the hearing, Plaintiff was taking several medications that helped with her pain but made her tired, confused, and forgetful, and also slurred her speech. [R. 95-96]. On a typical day, Plaintiff mostly sleeps. [R. 96]. When she tries to do things, she becomes anxious and takes an anxiety pill. Id. Plaintiff also spends some of the day looking for misplaced items and walking around the house or outside. [R. 100]. She sets alarms to help her remember activities and tasks. Id. Plaintiff s pain prevents her from sleeping through the night. Id.

         Plaintiff lives with her three children. [R. 96]. One daughter had to be home-schooled so that she could help Plaintiff and drive her places. Id. Plaintiffs husband filed for legal separation, and Plaintiff and her children move from house to house. Id. Plaintiff cannot do household chores because she cannot push anything. Id. Her children cook and clean. Id. Plaintiff used to be very active, but her physical impairments have caused her to go into a deep depression and become suicidal because she can no longer have the same involvement in her children's lives. [R. 96-97]. Plaintiff cannot do her hair or take a shower without her daughter's help. [R. 105].

         Plaintiff testified that her anxiety can make her feel like she cannot breathe and is having a heart attack. [R. 97]. She gets irritable with her children, and this leads to episodes of depression where she goes to her bed, cries, and thinks bad thoughts. Id. Plaintiff began having suicidal thoughts a little over a year before the hearing when she became unable to babysit her niece. [R. 98]. Plaintiff testified that she had been seeing a psychiatrist, Dr. Shiada, once a month for two years and that Dr. Bukstel wanted her to see a psychologist as well. Id. However, Plaintiff testified that she was not currently seeing a therapist or counselor. Id.

         Plaintiff stated that, before the work accident, she was completely healthy and had no problems with her neck or hands. [R. 99]. She tried physical therapy but had to discontinue it when it caused bad migraines. Id. Plaintiff also tried cortisone shots and epidurals in her neck, but they did not work. Id. She had surgery in her right arm, which helped with the swelling and fluid, but the nerve damage still affects her thumb. Id. Plaintiffs doctor will not do surgery on her neck. Id. Plaintiff testified that her medications for depression and anxiety help with her mental issues. [R. 99].

         Theresa Wolford, the vocational expert, testified at the hearing. [R. 101]. The ALJ first posed a hypothetical in which an individual of the same age, education, and past work experience as Plaintiff could work at the light exertional level, but could never climb ladders or scaffolds, could frequently (but not constantly) reach in all directions with both upper extremities, could frequently (but not constantly) perform fingering and handling with both upper extremities, needed to avoid concentrated exposure to hazards such as unprotected heights and moving mechanical parts, was limited to understanding, remembering, and carry out simple instructions, was limited to occasional interaction with supervisors, coworkers, and the public, could only make simple work-related decisions, and could only tolerate occasional changes in work locations. [R. 102-3]. The vocational expert explained that such an individual could perform the tasks of cleaner/housekeeping, routing clerk, and mail clerk. [R. 103].

         For the second hypothetical, the ALJ stated that the individual had all of the same limitations from the first hypothetical, but would also need to take one or two unscheduled breaks per workday of around 15 minutes per break, in addition to the two regularly scheduled breaks. [R. 103]. The vocational expert explained that the DOT does not address breaks, so she had to form an opinion based on her experience. Id. She opined that, if the individual would have to take the unscheduled breaks on a long-term and daily basis, that individual would not be able to maintain competitive level employment. Id.

         Plaintiffs counsel posed a third hypothetical to the vocational expert in which an individual was limited to occasional use of the bilateral hands for fine manipulation, could frequently use the bilateral hands for gross manipulation, was limited to occasional raising of the bilateral arms over shoulder height, was limited to occasional lifting and carrying of up to ten pounds, and could not lift or carry anything over ten pounds. [R. 104]. The vocational expert opined that there would not be any competitive level employment for such an individual. Id.

         B. Medical Record Evidence

         In reaching his decision to deny Plaintiffs benefits, the ALJ reviewed the medical evidence of record, the relevant portion of which is summarized chronologically below.

         On January 18, 2013, Plaintiff saw Dr. Diana Fischer regarding her depression. [R. 373]. Plaintiff reported that she was doing better, but still suffering from depression. Id. Dr. Fischer increased Plaintiffs medication. Id. The psychiatric exam was normal. Id. Dr. Fischer noted that Plaintiff suffered from panic disorder and obsessive-compulsive disorder, had economic and other psychosocial and environmental problems, and had a GAF of 51 -60. [R. 374].

         On March 21, 2013, Plaintiff presented to Dr. Railton L. Green after she suffered her injury at work on March 8, 2013. [R. 345]. Plaintiff reported that, since the accident she had been suffering from constant headaches and neck pain that radiated to both arms. Id. Pain medication was not helping her, and she had not been back to work. Id. Upon examination, Dr. Green noted that everything appeared normal except that Plaintiffs cervical range of motion was decreased to all planes with pain mildly, and palpation of the cervical spine was positive for minimal tenderness in the bilateral trapezius. [R. 346]. Dr. Green diagnosed Plaintiff with cervical strain and a face/scalp contusion. [R. 347]. He noted that Plaintiffs subjective complaints did not correspond to the objective clinical findings. Id. Dr. Green told Plaintiff that she should respond to conservative treatment and prescribed physical therapy. Id. Dr. Green determined that Plaintiffs activity should be modified, and she should not lift over five pounds or push or pull over 20 pounds. Id.

         Plaintiff saw David Kronzek, Dr. Green's physician's assistant, on April 12, 2013, for a re-check of the injury. [R. 342]. Plaintiff reported that, when she flexed her head forward, it caused dizziness and sharp pain in her head. Id. PA Kronzek's examination showed no change from the March 21, 2013 examination. Id. He found that Plaintiffs activity should be modified since she could lift no more than 10 pounds. [R. 344].

         Plaintiff presented to David Kronzek, Dr. Green's physician's assistant, again on May 13, 2013, and reported that she was not working because there was no light duty available. [R. 341]. She also stated that physical therapy was making her sick and giving her blurred vision. Id. Plaintiff reported numbness and tingling in her left hand, as well as a pain level of 5 out of 10. Id. The physical examination did not show any new issues. Id. PA Kronzek noted that Plaintiff had gotten a CT scan of the brain, which was negative, and an electromyogram test and nerve conduction study of her left hand, which were both negative. [R. 342]. PA Kronzek advised Plaintiff that they were running out of treatment options and that she could get another opinion. Id. He noted that Plaintiffs subjective complaints outweighed the objective exam. Id.

         On May 24, 2013, Plaintiff presented to MedExpress Royal Palm Beach and was seen by Jeanine Darquea, PA-C. [R. 350]. Plaintiff reported headaches and pain in her neck and shoulder due to her March 8l work accident. Id. She explained that medication and six sessions of physical therapy had not relieved her pain. Id. The physical examination was normal except that Plaintiff had painful full range of motion during flexion and extension of the neck bilaterally, painful full range of motion during rotation in the right neck, limited rotation in left neck due to pain, paraspinous tenderness and lateral tenderness in the neck, abnormal range of motion in the shoulder, pain noted on palpation of the posterior shoulder, and tenderness and stiffness in the left side of the neck. Id. Plaintiff was diagnosed with radiculopathy of the arm, a sprained or strained neck, headaches, and an unspecified head injury. [R. 352]. She was prescribed medication. Id.

         On June 3, 2013, Plaintiff had an MRI of the cervical spine without contrast performed. [R. 360]. She was found to have a herniated disc with bony ridging at the C3-4, C4-5, and C5-6 levels, a bulging disc at the C6-7 level, and straightened alignment suggesting muscle spasm. Id. The radiologist also noted that the "agent of injury is chronic." Id.

         On June 5, 2013, Plaintiff returned to MedExpress and was seen by Dr. Sophia Salmon-Trajan. [R. 353]. Plaintiff reported that she still had pain on the left side of her neck and in her left thumb and that the pain had become more constant. Id. The physical examination was normal except for lateral tenderness noted on the left side of Plaintiffs neck. [R. 354]. Dr. Salmon-Trajan completed a Florida Workers' Compensation Uniform Medical Treatment/Status Reporting Form [R. 356-59] at the June 5th visit. The doctor opined that Plaintiff could perform "desk work only." [R. 357, 359].

         On June 18, 2013, Plaintiff saw Dr. Gary Ackerman for her neck pain, numb hands, neck spasms, and headaches. [R. 364]. He examined Plaintiff and noted that Plaintiff had normal gait, inspection, and palpation, pain and decreased range of movement of the cervical spine, full range of movement in the thoracic spine and lumbar spine, and an otherwise normal examination. Id. Dr. Ackerman recommended NSAID pain medication and possibly an epidural. Id. Plaintiff saw Dr. Ackerman against on July 15, 2013, and he recommended a cervical epidural. [R. 363].

         On January 7, 2014, Plaintiff saw Dr. Fischer, who conducted a psychiatric examination. [R. 377]. The examination was normal. Id. Plaintiff reported that she planned to return to counseling. Id.

         On February 19, 2014, Plaintiff presented to Dr. David Simpson complaining of neck pain. [R. 368]. Plaintiff explained that physical therapy, medications, and epidural injections had all failed to provide significant relief of her neck pain radiating into the left arm with numbness and tingling in the hand. Id. Dr. Simpson examined Plaintiff. Id. The only abnormality was tenderness in the left trapezius. Id. Dr. Simpson reviewed Plaintiffs June 3, 2013 MRI and noted that she had multilevel disc herniations with osteophyte formation causing central and foraminal narrowing. [R. 369]. Because conservative treatment had not worked for Plaintiff, he referred her for a neurosurgical evaluation. Id.

         On March 4, 2014, Plaintiff saw Dr. Fischer, and Plaintiffs psychiatric exam was normal. [R. 375].

         On March 11, 2014, Plaintiff presented to Dr. Pedro Nam for increased tiredness and fatigue that was not improving. [R. 382]. She also complained of diffuse joint tenderness and muscle pain. [R. 383]. Dr. Nam advised Plaintiff to continue taking her muscle relaxant and anti-inflammatory for her neck pain. Id. He also advised her to continue taking her present medication for her atypical depressive disorder as she was stable on the medication. Id. Dr. Nam noted that Plaintiff was doing well and scored less than a 4 on her depression screening. Id.

         On March 28, 2014, a Disability Determination Explanation at the initial level was issued. [R. 127-37]. Rodolfo Buigas, Ph.D., P.A., concluded that Plaintiffs claim was partially credible and that the medical evidence of record corroborated Plaintiffs anxiety, but not her alleged PTSD and depression. [R. 131 ]. He also noted that the evidence showed improvement with treatment, that functioning was overall intact, and that Plaintiff had mild limitations in acts of daily living and social functioning. Id. In the Disability Determination Explanation, Charlotte Townes, SDM, concluded that Plaintiff is not disabled. [R. 137].

         Plaintiff saw Dr. Nam again on April 11, 2014. [R. 380]. Dr. Nam noted that Plaintiff was again complaining of diffuse joint tenderness, muscle pain, fatigue and weakness. Id. He also noted that Plaintiff had diffuse trigger point tenderness. Id. He referred Plaintiff to a rheumatologist. Id.

         On May 5, 2014, Plaintiff presented to Dr. Stephen Gervin complaining of neck pain that she said was a 6 out of 10 on the pain scale. [R. 395]. She reported excessive fatigue, night sweats, headaches, loss of sleep, depressive disorder, forgetfulness, nausea and vomiting, arm or leg weakness, joint pain, memory impairment, difficulty in speech, an issue with coordination in her arm, an inability to concentrate, diplopia, weakness of the face muscles, anxiety, depression, obsessive-compulsive disorder, panic attacks, increased appetite, and persistent swollen glands or lymph nodes. [R. 395-96]. Plaintiff told Dr. Gervin that she had quit her job and that the only doctor she was currently seeing was a therapist. [R. 396-97]. Plaintiff also stated that she had no "depressive problems" prior to her accident. [R. 397]. Dr. Gervin examined Plaintiff and noted that she tended to cradle her left arm in her lap. Id. He also noted that she had normal gait and coordination. Id. The examination was generally normal. [R. 397-98]. Dr. Gervin also reviewed Plaintiffs diagnostic studies. [R. 398]. He diagnosed Plaintiff with brachial neuritis or radiculitis NOS, brachial neuritis, cervicalgia, and neck pain. [R. 399]. Dr. Gervin noted that Plaintiffs spine was mechanically intact except for extension was 15 degrees. Id. He also noted that her muscles were very tense, but that her motor, sensory, and reflexes were intact, and her toe signs were down. Id. Dr. Gervin ordered additional studies. [R. 399-400].

         Plaintiff had an MRI and an x-ray of the cervical spine performed on May 6, 2014. [R. 405-6]. They showed small disc protrusions most significant at ¶ 4-C5 where a small left paramedian disc protrusion was in contact with the cord and mild degenerative disc interspace narrowing at ¶ 4-C5 and C5-C6. Id.

         On May 12, 2014, Plaintiff saw Dr. Gervin for a follow-up. [R. 109]. Dr. Gervin examined Plaintiff and noted that she still tended to cradle her left arm in her lap. [R. 110]. He also noted that she had normal gait and coordination. Id. Dr. Gervin determined that Plaintiffs spine was intact mechanically except that extension was 15 degrees, her muscles were very tense, her motor, sensory and reflexes were intact, and her toe signs were down. [R. 111]. The doctor reviewed Plaintiffs x-rays and MRI's from May 6, 2014. Id. Dr. Gervin concluded that Plaintiff had very mild spondylitic intrusion into the canal to the left of center at 4-5 and 5-6 and that it did not appear to be neuro-compressive. Id. He diagnosed her with anterolateral disc herniation to the left at ¶ 4-5 and discussed treatment options. [R. 112]. Dr. Gervin ordered a cervical sensory nerve conduction study and a cervical brace. Id.

         On June 4, 2014, a Disability Determination Explanation at the reconsideration level was issued. [R. 140-54]. Thomas Conger, Ph.D., explained that, while Plaintiff alleged that her condition had worsened since the prior denial, the updated functional evidence did not support her allegation and, instead, confirmed that she was capable of performing a wide range of activities of daily living within her physical restrictions. [R. 147]. Dr. Conger also determined that Plaintiffs functional input is only partially credible, and that a review of the evidence confirmed that she was primarily limited by her physical condition and there was no indication of a mental impairment that would meet or equal any listing. Id. Thomas Bixler, M.D., also found that Plaintiff was only partially credible and that the RFC was reduced for pain and radiculopathy. [R. 151]. Lysle McCown concluded that Plaintiff is not disabled. [R. 154].

         Plaintiff saw Dr. Gervin on June 16, 2014, for a re-check. [R. 423]. She reported that she was disappointed that her insurance had turned down several treatments-a nerve test, a brace, and a nuclear magnetic resonance. Id. She also stated that she was still suffering from neck pain into her left shoulder with radicular symptoms down her left arm and tingling fingers on her left hand. Id. Plaintiff told the doctor that her employer released her since she could not lift anything heavy and that three cervical epidurals had not helped her. Id. Upon physical examination of Plaintiff, Dr. Gervin found that Plaintiff had a fluid gait, no signs of spasticity, an intact mechanical spine except for extension of 15 degrees, and very tense muscles. [R. 424]. He cautioned Plaintiff not to cradle or favor a particular arm and discussed the option of the non-covered service for cervical neuromuscular re-education to the spine program directed at ¶ 5-6. Id.

         On July 16, 2014, Plaintiff had electromyography and nerve conduction velocity tests performed. [R. 427]. She was found to have right median sensory neuropathy, right ulnar motor and sensory neuropathy, evidence of acute left C5-6 and C6-7 radiculopathy, and evidence of chronic right C5-6 and C6-7 radiculopathy. Id.

         On September 8, 2014, Plaintiff presented to Dr. Evlyn Brown for an annual physical and reported pain in her back and elbow radiating into both of her legs. [R. 492]. Dr. Brown conducted a depression screening and gave Plaintiff a score of 7, which meant that Plaintiff suffered from minor depression. Id. Dr. Brown noted that Plaintiffs ...

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