United States District Court, S.D. Florida
J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE
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.
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). 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).
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.
Medical Evidence - Physical Impairments
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).
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.
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).
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).
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.
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.
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).
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.
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,
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).
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.).
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
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).
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.).
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.).
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.
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). 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,
Medical Evidence - Psychological Impairments
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).
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.) ...