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De Acosta v. Berryhill

United States District Court, S.D. Florida

March 26, 2018

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



         THIS 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).

         I. FACTS

         On 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. 13].[1] 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].

         A. Hearing Testimony

         The ALJ 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 cabinetry. Id.

         Plaintiff 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].

         Plaintiff 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. 46].

         Upon 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].

         Plaintiff 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].

         Plaintiff 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.

         Plaintiff 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. 54-55].

         Matthew 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 level. Id.

         The ALJ 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].

         Plaintiffs 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. Id.

         Plaintiffs 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.

         The vocational expert also stated that his testimony was in accordance with the DOT[2] and supplemented by his professional experience working in placing people with similar disabilities. [R. 63].

         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 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.

         On May 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].

         Plaintiff 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].

         Plaintiff 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].

         On May 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.

         On 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].

         On 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. 424-25].

         Plaintiff 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 ].

         On July 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].

         In a 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].

         Plaintiff 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.

         On 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 activity. Id.

         On 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. Id.

         On 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 therapy. Id.

         On 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].

         On 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].

         On 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 treatment. Id.

         On 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].

         On November 13, 2013, Plaintiff saw Dr. Barniville and was provided with refills of his medications. [R. 585-86].

         On 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. 517].

         On 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].

         On 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 ...

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