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Colon v. Commissioner of Social Security

United States District Court, M.D. Florida, Tampa Division

March 30, 2018

SONIA COLON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          STEVEN D.MERRYDAY, UNITED STATES DISTRICT JUDGE

         Sonia Colon's unsuccessful claims for Social Security disability benefits and Supplemental Security Income return to the district court for review after a remand and a second denial of benefits. The magistrate judge recommends (Doc. 15) reversing the Commissioner and granting benefits. Mindful that, as the magistrate judge states, “[t]he court may not reweigh the evidence or substitute its own judgment for that of the [administrative law judge] even if it finds the evidence preponderates against the ALJ's decision” (Doc. 15 at 4), I sustain the Commissioner's objection to the magistrate judge's recommendation and affirm the Commissioner's decision.

         BACKGROUND

         Born with spina bifida, Sonia Colon underwent surgery as a teenager to repair a “tethered” spinal cord. Also, Colon claims a neurogenic bladder, which reportedly requires Colon to use a catheter, and in 2014 a doctor diagnosed Colon with lupus. Additionally, Colon alleges that she suffers from migraines, asthma, and pulmonary stenosis. Although not continuously employed, for much of the time between 2001 and 2009 Colon worked as a cashier, a service clerk, a receptionist, or a day-care assistant. (Rec. at 179-190) Colon initially reported that she stopped working because her “position was eliminated” (Rec. at 167) but later claimed that she stopped working “because of [her] conditions.” (Rec. at 735)

         Represented by counsel, Colon applied in 2011 for Social Security disability benefits and alleged an onset day in 2009. At a February 3, 2011 hearing, Colon testified that her medication forces her to nap several times each day, that each nap typically takes two hours, that she suffers at least two or three migraines daily, that she cannot concentrate, that she cannot stand for more than ten or fifteen minutes without developing an ache or pain in her legs, that she cannot sit for more than ten or fifteen minutes without needing to change position, and that she cannot lift more than ten pounds without developing a muscle ache. (Rec. at 34-38) Also, Colon testified that on a “bad day” her legs, back, arms, and wrists hurt and that she suffers at least four “bad days” per week. (Rec. at 38-39)

         The administrative law judge, who found that Colon engages in no substantial activity, identified as severe several of Colon's impairments, including spina bifida, asthma, neurogenic bladder, migraines, and pulmonary stenosis. (Rec. at 12) After detailing Colon's medical record, the ALJ concluded that “there is very little evidence regarding the claimant's medically determinable, severe impairments within the record before or around the time of the alleged onset date in this case. Moreover, even the objective medical evidence that does support the claimant's medically determinable impairments does not support” a functional limitation that precludes substantial gainful activity. (Rec. at 17) The ALJ reviewed a consultative examination from Dr. Duchesneau, who observed that:

Claimant had normal lungs, normal cardiac, normal gait, could walk on heels and toes without difficulty, could do a full squat, had normal stance, required no assistive device, required no assistance changing for the examination or getting on and off the exam table, and was able to rise from her chair without difficulty. In addition, musculoskeletal examination revealed normal range of motion and full strength throughout, including all extremities.

(Rec. at 17)[1] Additionally, Dr. Ronald Kline, a medical consultant, reviewed Colon's medical records and concluded that Colon could occasionally lift twenty pounds, could frequently lift ten pounds, and could sit or stand for six hours in an eight-hour day. (Rec. at 383-90) The ALJ afforded “great weight” to Kline's and Duchesnaeu's assessments. (Rec. at 19)

         Conversely, a nurse practitioner, Marty Folsom, opined after a January 31, 2011 visit with Colon that Colon could occasionally lift ten pounds, could not lift twenty or more pounds, and could not sit or stand for more than ten minutes. (Rec. at 452-58) Folsom concluded the report: “Info obtained through observation and patient report. I am not a certified disability provider. Suggest evaluation by certified provider.” (Rec. at 458) The ALJ afforded Folsom's opinion no weight “because he is not a medically acceptable source.” (Rec. at 18)

         Based on the medical record and the consultations with Kline and Duchesnaeu, the ALJ concluded that Colon could occasionally lift twenty pounds, could frequently lift ten pounds, and could sit or stand for six hours daily. Because a person with that residual functional capacity could find substantial gainful employment as a cashier, receptionist, sales clerk, or nursery attendant, the ALJ found Colon not disabled and denied the applications for disability benefits and Supplemental Security Income. (Rec. at 18-19)

         After the Appeals Committee denied review, Colon sued in the district court. Case no. 8:12-cv-2011-JDW (Sept. 5, 2012). Adopting the magistrate judge's recommendation, the presiding judge in that action wrote that the ALJ failed to assign substantial or considerable weight to a purported opinion from Dr. Patel and offered an insufficient explanation for the failure to assign substantial or considerable weight to the opinion. Also, the presiding judge wrote that the ALJ improperly failed to consider Folsom's opinion. The presiding judge found that, although not a “medical” source, Folsom might constitute an “other” source. The district judge reversed and remanded to the Commissioner for further proceedings.

         On remand, the ALJ concluded that Colon could perform substantial gainful activity and consequently persisted in denying Colon's claims. (Rec. at 478-94) Charitably construed, Colon's memorandum (Doc. 13) asserts ten errors in the ALJ's second decision:

1. The ALJ failed to explain the weight he afforded the opinion of Dr. Spuza-Milord. (Doc. 13 at 3)
2. The ALJ failed to offer a “germane” reason for affording little weight to Dr. Patel's opinion. (Doc. 13 at 3)
3. The ALJ improperly rejected Nurse Folsom's opinion. (Doc. 13 at 4-5)
4. The ALJ “cherry-picked” or favored record items that suggested Colon's capability to work over reports that suggested Colon's inability to work. (Doc. 13 at 7-8)
5. The ALJ failed to recognize the severity of Colon's impairments. (Doc. 13 at 8-9)
6. The ALJ improperly determined that Colon's “residual functional capacity” permitted occasionally lifting twenty pounds, frequently lifting ten pounds, and sitting or standing for more than six hours daily. (Doc. 13 at 11-12)
7. The ALJ asked an incomplete “hypothet.” (Doc. 13 at 12-13)
8. The ALJ failed to apply the Eleventh Circuit's “pain standard.” 9. The ALJ “substituted his opinion for that of the ...

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