United States District Court, S.D. Florida
ANGELA C. BRONSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT [DES 22.
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE.
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).
January 16, 2014, Plaintiff filed an application for
supplemental security income, alleging disability beginning
on March 9, 2013. [R. 42]. 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].
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.
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.
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.
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].
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.
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].
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].
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
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
Medical Record Evidence
reaching his decision to deny Plaintiffs benefits, the ALJ
reviewed the medical evidence of record, the relevant portion
of which is summarized chronologically below.
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].
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.
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].
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.
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.
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
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].
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].
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.
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.
March 4, 2014, Plaintiff saw Dr. Fischer, and Plaintiffs
psychiatric exam was normal. [R. 375].
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.
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].
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
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].
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
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.
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].
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.
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
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