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Albra v. Berryhill

United States District Court, S.D. Florida

May 22, 2018

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



         THIS MATTER is before the Court on the Plaintiff's Motion for Summary Judgment (DE# 43, 9/20/2017) and the Defendant's Motion for Summary Judgment (DE# 41, 09/14/2017). The plaintiff requests the final decision of the Commissioner of Social Security be reversed and Disability Insurance Benefits (“DIB”) be granted under Title II of the Social Security Act (“SSA”). The complaint was filed pursuant to the Social Security Act (“SSA”), 42 U.S.C. §405(g), and is properly before the Court for judicial review of a final decision of the Commissioner of the SSA. The parties consented to Magistrate Judge jurisdiction, (DE# 28, 07/12/2017), and this matter was reassigned to the undersigned pursuant to Judge Altonaga's Order dated July 13, 2017. (DE# 30, 07/13/2017). Having carefully considered the filings and applicable law, the undersigned enters the following Order.


         In May 2014, Adem Albra (“the plaintiff”) filed an application for Disability Insurance Benefits (hereinafter “DIB”) alleging a disability onset date of February 10, 2012. (Tr. 140-43, 153).[1] The plaintiff's application was denied initially and upon reconsideration. (Tr. 73, 86). The plaintiff requested a hearing before an administrative law judge (“ALJ”) which was held on June 13, 2016. (Tr. 26-61). On October 21, 2016, the ALJ denied the plaintiff's application. (Tr. 13-21). The plaintiff filed an appeal to the Appeals Council requesting review of the ALJ's decision. The Appeals Council denied the plaintiff's request for review on February 24, 2017. (Tr. 1-6). The plaintiff has exhausted his administrative remedies and this case is ripe for review under 42 U.S.C.§ 1383(c)(3). The defendant filed the Defendant's Motion for Summary Judgment (DE# 41, 09/14/2017) on September 14, 2017, the plaintiff filed a response on September 25, 2017 (DE # 44, 9/25/17), and the defendant filed a reply on October 20, 2017 (DE # 46, 10/20/17). The plaintiff filed the Plaintiff's Motion for Summary Judgment (DE# 43, 9/20/2017) on September 20, 2017, the defendant filed a response on October 20, 2017 (DE # 46, 10/20/17), and the plaintiff filed a reply on October 25, 2017 (DE # 47, 10/25/17).


         I. Plaintiff's Background

         The plaintiff was born in 1971, and was 45 years old at the time of the ALJ's decision (Tr. 153). The plaintiff attended community college, but did not obtain a degree. (Tr. 31). According to the plaintiff, he was “kicked out from a public college”. (Tr. 47). The plaintiff has past work experience as a sales representative, sales manager, and administrative assistant. (Tr. 20, 65, 157). The plaintiff alleged disability based on human immunodeficiency virus (HIV) and acquired immune deficiency system (AIDS), secondary polycythemia, hypothyroidism, HIV related cognitive problems/wasting, chronic fatigue, gastric reflux, gum disease, severe depression, and general anxiety disorder. (Tr. 156).

         II. Medical Evidence - Physical Impairments

         On June 14, 2013, the plaintiff was evaluated by Esther Schumann, M.D. at Northpoint clinic. (Tr. 335-41). No significant symptoms were noted at that time. (Tr. 337). Dr. Schumann's findings were mostly normal, with the exception of some skin issues. (Tr. 338). Dr. Schumann diagnosed the plaintiff with AIDS, hypothyroidism, gastroesophageal reflux disease (GERD), and depression. (Tr. 338). Dr. Schumann prescribed a number of medications. (Tr. 339). The plaintiff saw Dr. Schumann on June 28, 2013, for a follow up visit. The physical exam findings on June 28, 2013, were normal and the therapies in place for the plaintiff were continued. (Tr. 331-32). The plaintiff saw Dr. Schumann again on September 28, 2013, for his quarterly HIV visit. At that time, the plaintiff complained of cold-like symptoms, pain in his left ear, and the smell of fungus for two (2) weeks. (Tr. 312). With the exception of plethoric skin and redness of the tympanic membrane in the plaintiff's left ear, Dr. Schumann's physical exam findings were relatively normal. (Tr. 316). The plaintiff's treatment remained basically the same, but a prescription was made for Diflucan to treat the plaintiff's athlete's foot. (Tr. 317).

         The plaintiff went to the emergency room on September 28, 2013, complaining that it was difficult for him to breathe. (Tr. 375). Scott Meyer, M.D., the emergency room doctor, noted exam findings as normal and diagnosed the plaintiff with bronchitis and otitis media. (Tr. 376-77). A chest x-ray was taken, and there was no finding of acute cardiopulmonary disease. (Tr. 378). At that time, the plaintiff was prescribed medications to treat his bronchial issues (Tr. 377).

         The plaintiff visited Northpoint clinic in October 2013, for a follow-up visit regarding his HIV. (Tr. 307). Normal exam findings were made by Robert Heglar, M.D.. The plaintiff was continued on virtually the same therapies, but a prescription was added for anxiety. (Tr. 309-10).

         The plaintiff returned to Northpoint clinic on January 16, 2014, complaining of pink eye. (Tr. 292). The plaintiff reported no change in his vision at that time. (Tr. 294). Nancy Garcia, M.D. examined the plaintiff, and found that the plaintiff's upper eyelid was swollen and the plaintiff had red conjunctiva. (Tr. 295). The plaintiff was diagnosed with acute conjunctivitis in the right eye, and prescribed medications to treat the conjunctivitis. The plaintiff went to the emergency department due to discomfort and redness in his right eye, on January 18, 2014. (Tr. 368). The plaintiff did not report any vision loss at that time. (Id.). John Marini, a physician's assistant examined the plaintiff and found a corneal abrasion. Mr. Marini also noted that the plaintiff's visual acuity, with correction, was 20/20. (Tr. 370). The plaintiff was prescribed an ophthalmic solution for the corneal abrasion. (Tr. 371).

         The plaintiff went to Northpoint clinic complaining about an abscessed tooth in February 2014. (Tr. 287). The plaintiff denied any symptoms related to his eyes at that time. (Tr. 288). The findings of Arlene Spertus, M.D. were normal (Tr. 289), and the plaintiff's therapies were continued. (Tr. 290). In March 2014, the plaintiff saw Dr. Garcia two times, and denied any issues on those visits. The physical exam findings of Dr. Garcia were relatively normal at that time, and the plaintiff's therapies were continued. (Tr. 262-68, 282-86).

         The plaintiff went to the emergency department in May 2014, for contact dermatitis. (Tr. 246-51). Eye issues were negative. (Tr. 361). Except for a rash on the plaintiff's back and arms, the doctor's physical exam findings were normal. (Tr. 363). The plaintiff was given medication for his rash. (Tr. 364).

         The plaintiff went to Northpoint clinic on June 16, 2014, for an acute upper respiratory infection. (Tr. 246). The plaintiff did not indicate any eye issues at that time. (Tr. 248). Physical exam findings by James Dwyer, D.O. were normal. (Tr. 249). The plaintiff's therapies remained unchanged, except he was prescribed medications for his respiratory infection. (Tr. 250). The plaintiff visited Dr. Dwyer again on June 27, 2014, for a follow-up visit. (Tr. 431-37). Dr. Dwyer's physical exam findings were normal and the plaintiff denied any issues related to his eyes. (Tr. 433-34). The plaintiff's AIDS symptoms were assessed as asymptomatic by Dr. Dwyer. (Tr. 435).

         The plaintiff went to the emergency room and to see Dr. Dwyer in August 2014, with respect to a rash and an abscess on his back. (Tr. 354-56, 424-30). The plaintiff's condition improved when the abscess was drained. (Tr. 355-56). The plaintiff's AIDS was again assessed as asymptomatic. (Tr. 427).

         The plaintiff saw Dr. Dwyer for follow-up treatment regarding his AIDS in October 2014, February 2015, and May 2015. (Tr. 404-23). The plaintiff denied any eye issues at each of the visits. (Tr. 405, 412, 419). The plaintiff's AIDS was assessed as asymptomatic by Dr. Dwyer, and Dr. Dwyer made normal physical exam findings. (Tr. 407-08, 414-15, 421-22). The plaintiff's therapies were continued. (Tr. 410, 415, 422).

         Dr. Dwyer diagnosed the plaintiff with herpes based on the plaintiff's hospitalization, but admitted to not reviewing the plaintiff's hospital records. (Tr. 397). Dr. Dwyer explained the diagnosis by stating that he “can think of few infections that would result in corneal scarring outside of HSV.” (Tr. 401).

         The plaintiff went to the emergency room on May 17, 2015, complaining of pain in his left eye. The plaintiff indicated that the pain was a result of pepper sauce accidently entering his eye while he was at a Mexican restaurant. (Tr. 515). The plaintiff was found to have 20/25 vision in both eyes with correction, and the plaintiff indicated that his vision had not changed. (Tr. 515, 517). The plaintiff was examined by a physician's assistant named Charles Delaney, who did not find any corneal abrasions on the plaintiff's eyes, but diagnosed the plaintiff with conjunctivitis in both eyes. (Tr. 518). The plaintiff received medication for his eyes. (Id.).

         The plaintiff was admitted to the hospital on May 19, 2015, for pain in the right eye, and indicated that in 2007, he had experienced a similar “eyelid cellulitis”. (Tr. 501). The plaintiff also reported blurred vision. (Id.). Michael Estep, M.D., the emergency room physician, diagnosed the plaintiff with visual impairment and orbital cellulitis. (Tr. 504). A CT scan of the plaintiff's right eye was performed by Michael B. Gordan, M.D., a radiologist, and Dr. Gordan noted that there was soft tissue swelling around the plaintiff's right eye and no other acute process. (Tr. 505). Dr. Gordan indicated that the swelling could be cellulitic process and advised for correlation. (Id.).

         Internist Nesreen Kurtom, D.O. examined the plaintiff on May 20, 2015. (Tr. 495). Dr. Kurtom found: that the plaintiff's pupils were equal and reactive to light; that his extraocular muscles were intact with periorbital tenderness, erythema, and redness in the right eye; and that his visual acuity was impaired. (Id.). Dr. Kurtom made the following diagnoses: visual impairment; orbital cellulitis in the right eye; a history of HIV, a history of staph infection in the right eye; and hypothyroidism and prescribed medications. (Id.). Ranya Habash, M.D., an ophthalmologist, diagnosed the plaintiff with a corneal ulcer and periorbital cellulitis, after examination. (Tr. 500). The plaintiff was examined by infectious disease specialist Yared Aklilu, M.D. on May 21, 2015, who indicated that the plaintiff had a history of staph infection in his right eye from 2007. (Tr. 496). Dr. Aklilu doubted that the conditions from which the plaintiff suffered were herpes simplex conjunctivitis or a corneal ulcer, and suggested treating the plaintiff for staph and strep infections. (Tr. 498). On May 22, 2015, the plaintiff was discharged from the hospital. (Tr. 493).

         The plaintiff saw Dr. Dwyer on May 29, 2015, for a follow up appointment regarding his eye. (Tr. 397-403). Dr. Dwyer indicated that he had not reviewed the records from the plaintiff's hospital stay, and noted the plaintiff's condition as herpes simplex with other ophthalmic complications. (Tr. 397). Dr. Dwyer thought the plaintiff's condition had somewhat remitted, but suggest he visit an ophthalmologist. (Id.). The findings of Dr. Dwyer were basically normal. (Tr. 400). The specific findings regarding the plaintiff's eyes were “PERRL/EOM intact, conjunctiva and sclera clear with out nystagmus.” (Id.). The plaintiff's AIDS symptoms were assessed as asymptomatic by Dr. Dwyer. (Tr. 401). Dr. Dwyer's impressions and recommendations regarding the plaintiff noted “herpes simplex with other ophthalmic complications” and Dr. Dwyer explained that he “can think of few infections that would result in corneal scarring outside of HSV”. (Id.). The plaintiff received a prescription. (Id.).

         In August 2015, October 2015, February 2016, and March 2016, the plaintiff saw Dr. Dwyer. (Tr. 389-96, 691-712). On each visit, the plaintiff denied any eye issues, (Tr. 390, 692-699, 707), the doctor made normal examination findings, (Tr. 393-94, 694-95, 701-02, 709-10), and the doctor noted the plaintiff's AIDS symptoms to be asymptomatic. (Tr. 393, 695, 702, 710). Antiretroviral therapies were continued on the plaintiff. (Id.).

         On a form entitled Medical Report on Adult with Allegation of Human Immunodeficiency Virus (HIV) Infection dated October 12, 2015, Dr. Dwyer checked off the box indicating that the plaintiff's HIV infection was diagnosed via laboratory testing confirming HIV infection. (Tr. 485). Dr. Dwyer also checked the box indicating the herpes simplex virus causing “mucocutaneous infection (e.g. oral, genital, perianal) lasting for 1 month or longer, or infection at a site other than the skin or mucous membranes (e.g. bronchitis, pneumonitis, esophagitis, or encephalitis), or disseminated infection” was applicable to the plaintiff. (Id.). There were no other remarks on the form. (Tr. 485-87).

         While the plaintiff treated at Northpoint clinic, he was tested for HIV viral load and CD4 count. (Tr. 271-72, 300, 302, 320-21, 326, 342, 349, 440, 442, 449, 454-55, 458, 462, 467, 471, 475, 728-29, 735, 737). The plaintiff's viral load ranged from less than twenty (i.e. undetectable) to 510, with an average viral load of 78. (Tr. 271, 300, 320, 326, 349, 440, 454-55, 467, 471, 728, 735).[2] The plaintiff's CD4 counts ranged from 825 to 1218, and the average was 997. (Tr. 272, 308, 321, 342, 442, 449, 458, 462, 475, 729, 737).[3]

         III. Medical Evidence - Psychological Impairments

         The plaintiff began treating with psychiatrist Amy Kosches, M.D. in March 2012, for a depressed mood, issues related to sleep, and increased anxiety. (Tr. 386). The plaintiff indicated that he was prescribed 10 mg of Lexapro by his primary care physician and had been taking the medication for 8 years. (Id.). Upon examination, Dr. Kosches found the plaintiff had a depressed and anxious mood, and a constricted affect. (Tr. 387). Dr. Kosches increased the plaintiff's Lexapro dosage to 20 mg. (Tr. 388).

         The plaintiff saw Branislav Stojanovic, M.D., a psychiatrist, in November 2013, for complaints of depression, and denied any past psychiatric history. (Tr. 241). The mental status exam findings by Dr. Stojanovic were normal, except for a flat affect and a depressed mood. (Tr. 243). On the mental status evaluation, Dr. Stojanovic noted in the Liabilities and Special Needs section that the plaintiff had poor coping skills. (Id.). Dr. Stojanovic diagnosed the plaintiff with major depressive disorder and assigned the Global Assessment of Functioning (GAF) of 75 (Tr. 242), indicative of no significant mental symptoms. See, American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 32-34 (4th ed. 2000, Text Rev.) ...

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