United States District Court, S.D. Florida
ORDER ON MOTIONS FOR SUMMARY JUDGMENT [DES 22,
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court upon Plaintiff, Andrew Mateo de
Acosta's ("Plaintiff") Motion for Summary
Judgment [DE 22], and Defendant, Nancy A. Berryhill,
Commissioner of Social Security Administration's
("Defendant") Motion for Summary Judgment [DE 23].
Plaintiff filed a Reply Memorandum in Opposition to
Defendant's Motion for Summary Judgment and in Further
Support of Plaintiffs Motion for Summary Judgment [DE 25].
The parties have consented to magistrate judge jurisdiction.
[DE 16]. 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).
April 30, 2013, Plaintiff filed a Title II application for a
period of disability and disability insurance benefits and a
Title XVI application for supplemental security income,
asserting a disability on-set date of January 25, 2013. [R.
The claims were denied initially and upon reconsideration.
Id. Following a video hearing on March 16, 2015, the
ALJ issued a decision on May 15, 2015, denying Plaintiffs
request for benefits. [R. 13-25]. A request for review was
filed with the Appeals Council and denied on September 10,
2016. [R. 1-6].
held a video hearing on March 16, 2015. [R. 32]. Plaintiff
testified that he was born on March 27, 1966, so he was
almost 49 at the time of the hearing. [R. 36]. He is married
with a stepson who is no longer a minor. Id. At the
time of the hearing, Plaintiffs home was being foreclosed on.
Id. Plaintiff drives approximately three times a
week for short intervals to go to the store. [R. 38]. His
highest level of education is a GED. Id. Plaintiff
last worked on January 25, 2013. Id. At first,
Plaintiff stated that he stopped working because of his
physical and mental disabilities. [R. 39]. However, when
shown certain records by the ALJ, Plaintiff stated that he
was let go from his last job because he could not do his job
anymore. Id. Plaintiff testified that he is a
minister, but he does not really do any
"ministering." Id. In 15 years prior to
the hearing, he had only worked in construction and
explained that he cannot work because he cannot concentrate,
cannot sit for long lengths of time without having to get up,
and suffers from a high level of pain. [R. 40]. He takes
several pain medications, but they do not work and make it
difficult for him to sleep, so he is very tired during the
day. Id. Plaintiffs doctors have told him that the
Healthcare District will not cover alternative medications.
[R. 41]. Plaintiff brought a cane to the hearing, but he
acknowledged that, while a doctor recommended that he use a
cane, the doctor did not actually prescribe a cane.
Id. Plaintiff uses the cane when he has to travel a
long distance, when his lower back is "aggravated,
" or when his knee is hurting a lot. [R. 41-42].
explained that he was in pain at the hearing. [R. 42]. The
pain was located in his lower lumbar area, radiating down
into both knees and feet. [R. 43]. Plaintiff is in pain all
of the time, and only the degree of pain changes.
Id. Physical activity and any jarring of his lower
back increase the pain. Id. Plaintiff has been using
a lumbar support brace since 2006 or 2007 that was given to
him by Dr. Rogers for driving. Id. The brace works
"a little bit." [R. 44]. Plaintiff can usually only
sit for 10-15 minutes at a time and can only stand for 10-20
minutes at a time depending on his pain level. Id.
He can lift about 10 pounds. Id. Plaintiff s in-laws
help take care of his wife. [R. 44-45]. Plaintiff can
occasionally take his wife to the doctor, go to the store, or
get a medication for her. [R. 45]. Plaintiff cannot cook, do
dishes, vacuum, mop, do yard work, pay bills, or laundry. [R.
45-46]. He can clean a little bit, occasionally take the
trash out, and make small trips to the grocery store. [R.
examination by Plaintiffs counsel, Plaintiff explained that
he was let go from his last job because he was dealing with
his back pain, could not concentrate, and took too long to
complete one particular task. [R. 48]. Plaintiff was already
receiving pain management from Dr. Rogers at that time.
Id. At the time of the hearing, Plaintiff was no
longer receiving any kind of pain management because he had
no money and no health insurance. [R. 49].
testified that Dr. Stone recommended that Plaintiff get
psychological counseling and surgery for his carpal tunnel
syndrome. [R. 49-50]. He saw a Dr. Pedro two months prior to
the hearing and was trying to arrange a surgery for his
carpal tunnel syndrome. [R. 51 ]. Plaintiff suffers from head
and hand tremors trigged by stress and anxiety. [R. 50].
stated that he sought treatment at Jerome Golden when he went
through a deep depression over his wife's illnesses and
the deaths of family members. [R. 50]. Jerome Golden provides
Plaintiff with medication to help with his pain, depression,
anxiety, and nerve damage. [R. 54]. However, the medication
provides no relief. Id.
testified that he has to lie down for at least a few hours on
a typical day when his pain level is high. [R. 51 -52]. He
explained that he has his cane with him most of the time and
uses it when his pain level is high. [R. 52]. His inability
to work has caused him to lose his house and car, as well as
the ability to do a lot of things. Id. Plaintiff
cannot do a desk job because he has trouble sitting at the
computer, he cannot work at a keyboard because of his carpal
tunnel, and his lack of concentration would cause him to make
too many errors. [R. 53]. The Healthcare District does not
provide any kind of pain management, and Plaintiffs Tramadol
simply "keeps [him] out of the hospital." [R.
Lampley, the vocational expert, testified at the hearing. [R.
58]. The ALJ first posed a hypothetical in which an
individual of the same age, education, and work experience as
Plaintiff could work at the "light position level,
" but could only stand or walk for a total of four hours
and sit for a total of six hours in an eight-hour workday,
could only occasionally balance, stoop, kneel, crouch, crawl,
and climb ramps or stairs, could only occasionally handle and
finger bilaterally, could never climb ladders, ropes or
scaffolds, had to avoid concentrated exposure to vibration,
environmental irritants, and hazards such as unprotected
heights and dangerous machinery, and was only mentally
capable of performing simple, routine, and repetitive tasks
on a sustained basis. [R. 60]. The vocational expert
explained that such an individual could not perform any of
Plaintiffs past work. Id. He stated that such an
individual could, however, perform the jobs of information
clerk and usher. [R. 61]. With regard to the usher job,
however, the availability of that job in the national economy
would be eroded by 50% due to the individual's exertional
posed a second hypothetical in which an individual had the
same limitations stated before except the exertional level
was changed from light to sedentary. [R. 61]. The vocational
expert testified that such an individual, due to the
bilateral upper extremity restrictions, could not do any
competitive work. [R. 62].
counsel asked the vocational expert, in responding to the
ALJ's hypothetical, whether he had taken into
consideration the ability to maintain regular attendance and
be punctual within the customary tolerance, as well as the
ability to perform at a consistent pace. [R. 62]. The
vocational expert responded that he had not considered those
restrictions and offered to answer any hypothetical
Plaintiffs counsel wished to pose. Id. Plaintiffs
counsel also asked if the two jobs the vocational expert had
identified would be precluded if an individual was missing
three to four days of work per month. [R. 63]. The vocational
expert responded that the two jobs would be precluded.
counsel then posed a hypothetical in which an individual of
Plaintiffs age, educational background, and vocational
background could sit for no more than two hours and could
stand and walk for no more than two hours in a workday. [R.
63]. The vocational expert responded that such an individual
would not have any jobs available to him. Id.
vocational expert also stated that his testimony was in
accordance with the DOT and supplemented by his professional
experience working in placing people with similar
disabilities. [R. 63].
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.
April 3, 2006, Plaintiff had an MRI of the lumbar spine
without contrast performed. [R. 379]. It was determined that
Plaintiff had degenerative apophyseal joint changes and mild
hypertrophic ligamentous change at L2-3, mild central canal
stenosis due to hypertrophic facet and ligamentous changes at
L3-4, hypertrophic central canal stenosis with degenerative
apophyseal joint changes and mild broad disc bulging without
focal disc herniation at L4-5, and mild degenerative
apophyseal joint changes broad and predominantly central disc
protrusion without neural foraminal stenosis, focal disc
herniation or nerve root cut at L5-S1. Id. It was
noted that Plaintiff had no focal lateralizing disc
herniation or nerve root cut. Id.
16, 2006, Plaintiff went to the emergency room at Jupiter
Medical Center for his back pain. [R. 475]. Plaintiff
reported that he had previously been seen at Palm Beach Pain
Management, but he was in the process of changing insurance
and had not been able to see a new pain management specialist
yet. Id. Plaintiff was diagnosed with acute
exacerbation of chronic back pain and was given several
medications. [R. 476].
saw Dr. Irvine Mason of Neurology & Pain Management of
the Palm Beaches, P.A., on December 18, 2008, but the
doctor's notes are illegible. [R. 383-84]. On January 2,
2009, Dr. Mason prescribed Plaintiff a nasal CPAP full-face
interface mask for his obstructive sleep apnea. [R. 73]. Dr.
Mason recommended that Plaintiff lose weight and diagnosed
Plaintiff with severe obstructive sleep apnea syndrome,
abnormal sleep architecture with sleep fragmentation, and
severe hypoxemia. [R. 75, 77].
saw Dr. Reed Stone of Palm Beach Neurology three times
between February 11, 2010, and April 8, 2010, for his mild
bilateral carpal tunnel and mild benign essential tremor. [R.
391-396]. The doctor tried multiple different medications,
and Mysoline did ultimately improve Plaintiffs tremor with no
significant side effects. [R. 391].
28, 2012, Plaintiff went to the emergency room at Jupiter
Medical Center due to persistent pain in his left foot. [R.
399]. An x-ray showed no lucent displaced fracture, but
Plaintiff did have dorsal soft tissue swelling and a small
calcaneal spur. Id.
February 13, 2013, Plaintiff saw Dr. Anthony Rogers at Palm
Beach Pain Management for continued management of his
lumbago, lumbar radiculopathy, sacroiliac neuralgia,
myofascial pain, and joint pain. [R. 455]. He indicated that
his pain without medication was a 9 out of 10 and that his
pain with medication was a 5 to 8 out of 10. Id.
Plaintiff stated that the pain was in his back, radiated down
to his legs and feet, and was made worse by physical
activity. Id. Plaintiff explained he got "laid
off, but he was going to look for work. Id. He also
stated that he was under a lot of stress due to his
mother-in-law being ill. Id. Plaintiff told Dr.
Rogers that his medications were helping to control the pain
and that he was more functional in his daily living when
taking the medications. Id. Dr. Rogers prescribed
pain medications and recommended that Plaintiff get a sleep
study, sleep medication, and an EKG. [R. 455-56].
March 13, 2013, Plaintiff saw Dr. Rogers for a follow-up.
[R.424]. He indicated that his pain without medication was a
9 out of 10 and that his pain with medication was a 7 or 8
out of 10. Id. Plaintiff described pain in his back
that radiated to his buttocks, knees, and feet. Id.
He stated that physical activity made the pain worse.
Id. Dr. Rogers also noted that Plaintiff had
arthritis and sleep apnea. Id. Dr. Rogers prescribed
several pain medications and noted that Plaintiff might
benefit from injection therapy but cannot afford it. [R.
saw Dr. Rogers again on April 10, 2013, for continued pain
management. [R. 420]. He told the doctor that pain
medications help with his pain and that he was under a lot of
stress because his daughter had died. Id. Dr. Rogers
diagnosed Plaintiff with lumbago, lumbar radiculopathy,
chronic pain, myofascial pain syndrome, facet pain, OA,
depression, and anxiety. Id. Dr. Rogers prescribed
pain medication and noted that Plaintiff could not afford
injections, physical therapy, or massage since he was
uninsured. [R. 420-21 ].
22, 2013, Plaintiff saw Dr. Bruce Barniville and reported
that he was filing for disability due to his issues with
chronic pain and tremors. [R. 581]. He also complained of
bilateral shoulder pain. Id. The doctor refilled
Plaintiffs medications and referred him to an orthopedist and
a neurologist. [R. 581-82].
Disability Determination Explanation at the Initial Level
dated July 22, 2013, Heather J. Hernandez, Ph.D., found that
Plaintiff was only partially credible, as "the severity
of the reported memory loss is not in line with objective
medical findings." [R. 99]. She found that Plaintiffs
mental impairment was not severe. Id. The State
disability adjudicator/examiner, Vanessa Hurst, determined
that Plaintiff is not disabled. [R. 105].
presented to Dr. Rommel R. Francisco of Atlantic Orthopaedics
for the first time on August 21, 2013, for back and foot
pain. [R. 609]. Dr. Francisco performed a physical
examination and noted that Plaintiff had moderate and general
swelling in his back, spasm, and negative Babinski test and
straight leg test. [R. 610]. He also prescribed an MRI of the
lumbosacral spine and the left foot. Id.
August 22, 2013, Plaintiff presented to Dr. Stone, who he had
not seen in years, and reported a history of tremor, which
was only slightly resolved by taking Mysoline and had
worsened, progressive problems with short-term memory and
concentration, chronic low back pain, and mild hand numbness
that had improved. [R. 480]. Plaintiff also stated that he
lost his job, which had been stressful for him. Id.
Dr. Stone diagnosed Plaintiff with depressive disorder,
thoracic or lumbosacral neuritis or radiculitis
(unspecified), memory loss, and tremors essential. [R. 481].
He noted that Plaintiffs cognitive problems were probably
related to Plaintiffs anxiety and impaired attention span and
that Valium and Roxicet were contributing factors.
Id. Dr. Stone also noted that Plaintiff needed a
psychiatric evaluation. Id. Plaintiff had EMG nerve
conduction velocity testing performed on the bilateral lower
extremities. Id. Dr. Stone determined that all of
Plaintiffs muscle showed normal insertion activity with no
spontaneous activity at rest, motor recruitment was complete
with normal motor unit morphology, and Plaintiff has no
significant nerve root irritation in the lumbar region.
Id. Plaintiff also had an EEG performed. [R. 483].
Dr. Stone found that the EEG resulted in a normal awake and
drowsy recording with no focal lateralizing or paroxysymal
August 29, 2013, Plaintiff had an MRI of his brain completed.
[R. 489]. It was determined to be a normal MRI of the brain
with no white matter lesions to suggest demyelinating
process, infarct, or edema associated with neoplasm.
August 30, 2013, Plaintiff saw Julio D. Ochoa, PAC, of
Atlantis Orothopaedics for bilateral shoulder pain. [R. 611
]. Plaintiff reported that the pain caused difficulty
sleeping, loss of motion, loss of strength, loss of
coordination, difficulty dressing, and difficulty reaching
items. Id. A physical exam and x-rays were
completed. [R. 612]. PAC Ochoa noted that all of the test
results were negative, that Plaintiff had complete range of
movement and strength in both shoulders, and that the x-rays
showed no fractures or dislocations. Id. He
prescribed Plaintiff Zanaflex and referred him to physical
September 3, 2013, Plaintiff again saw Dr. Stone. [R. 485].
He reported continued anxiety. Id. Dr. Stone
determined that Plaintiff needed a psychiatric evaluation and
needed an MRI. [R.486].
September 5, 2013, Plaintiff saw Dr. Barniville for a
follow-up appointment for pain management. [R. 497]. The
doctor diagnosed Plaintiff with esophageal reflux, anxiety
state unspecified, essential/other forms of tremor, and
spinal stenosis lumbar without neurogenic claudication. [R.
497-98]. Dr. Barniville referred Plaintiff to a podiatrist
and an ophthalmologist. [R. 498].
October 28, 2013, Plaintiff presented to the Jerome Golden
Center for Behavioral Health ("Jerome Golden") for
outpatient therapy. [R. 560]. He reported losing his job due
to injury and mental health issues. Id. He also
reported suffering from severe depression and anxiety,
tremors that are not resolved with medication, panic attacks
when feeling overwhelmed, not being able to sleep, and having
a hard time dealing with mental and physical issues.
Id. Plaintiff explained that his wife was suffering
from a terminal illness. Id. He denied any suicidal
ideation or hallucinations. Id. Plaintiff stated
that his mental illness had started three or four years
previously and that this was his first time seeking
November 6, 2013, Plaintiff saw Dr. Francisco for a re-check
of his low back pain. [R. 613]. Plaintiff reported that his
symptoms were moderate and worsening. Id. Dr.
Francisco noted that Plaintiff had not improved since being
seen three months prior, so the doctor prescribed an MRI of
the lumbrosacral spine and Flexeril. [R. 614].
November 13, 2013, Plaintiff saw Dr. Barniville and was
provided with refills of his medications. [R. 585-86].
November 19, 2013, Plaintiff had an MRI examination of the
lumbar spine without contrast. [R. 516]. It was determined
that Plaintiff had disc bulge and posterior spondylosis at
L5-S1, disc bulge with associated annular tears at L4-5,
levoscoliosis, and straightening of the lumbar lordosis. [R.
November 21, 2013, Plaintiff presented to Jerome Golden. [R.
556]. He reported terrible memory loss, hopelessness, loss of
self-esteem, and some thoughts of death. Id. Dr.
Mary Groesbeck found that Plaintiff suffered from substance
abuse, severe depression, agitation/hyperactivity, and severe
anxiety. [R. 557]. She diagnosed Plaintiff with major
depressive order, recurrent, without psychotic features;
anxiety disorder; pain associated with psychological factors
and general medical condition; tremor; back pain; and a GAF
of 50. [R. 558].
November 27, 2013, Plaintiff saw Dr. Francisco for his back
pain. [R. 615]. Plaintiff reported that the pain was moderate
and unchanged despite taking his medications. Id.
Dr. Francisco noted that Plaintiffs recent MRI showed
multilevel degenerative disc ...