United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
R. HOFFMAN UNITED STATES MAGISTRATE JUDGE.
THE UNITED STATES DISTRICT COURT:
Lugo (“Claimant”) appeals the final decision of
the Commissioner of Social Security (“the
Commissioner”) denying his application for disability
benefits. Doc. 1. Claimant raises two arguments challenging
the Commissioner's final decision and, based on those
arguments, requests that the matter be remanded for further
administrative proceedings. Doc. No. 20, at 10, 18, 22. The
Commissioner asserts that the decision of the Administrative
Law Judge (“the ALJ”) is supported by substantial
evidence and should be affirmed. Id. at 16, 21, 22.
The undersigned RESPECTFULLY RECOMMENDS that
the Court AFFIRM the final decision of the
August 8, 2014, Claimant filed an application for disability
insurance benefits. He alleged that he became disabled on
April 1, 2014. R. 184-85. His claim was denied initially and
on reconsideration, and he requested a hearing before an
Administrative Law Judge (“ALJ”). R. 101, 108,
109, 114. A hearing was held before the ALJ on May 18, 2017,
at which Claimant was represented by an attorney. R. 46-68.
Claimant and a vocational expert (“VE”) testified
at the hearing. Id.
the hearing, the ALJ issued an unfavorable decision finding
that Claimant was not disabled. R. 28-39. Claimant sought
review of the ALJ's decision by the Appeals Council. R.
181. On May 11, 2018, the Appeals Council denied the request
for review. R. 1-9. Claimant now seeks review of the final
decision of the Commissioner by this Court. Doc. No. 1.
Claimant's Medical Conditions.
has documented medical issues with his lumbar and cervical
spine. See, e.g., R. 361-63, 431, 436, 465, 592,
595-98, 627, 642, 691. He also has neck pain, as well as
upper and lower extremity numbness and pain. See,
e.g., R. 361, 372, 595, 642, 670-71, 727-28, 739. He was
prescribed medication for these conditions, and he was
advised to engage in moderate exercise of at least 150
minutes per week. See, e.g., R. 16, 691, 728, 759.
Claimant also has a history of depression and other mental
health concerns, such as excessive worrying and concentration
issues. See e.g., R. 643-44, 727, 739, 750. He was
diagnosed with major depressive disorder in 2014 and was
responsive to Zoloft. R. 743.
2015, after filing his claim for disability benefits,
Claimant was also diagnosed with fibromyalgia. R.
On May 6, 2015, Claimant sought treatment from Dr. Javaid S.
Sheikh, M.D., a rheumatologist. R. 645-49 (Exhibit
16F). The reason for the appointment was
arthritis, unspecified. R. 645. A musculoskeletal examination
ruled out synovitis, tendinitis, bursitis, joint effusion,
deformities, crepitus, enthesopathy, or nodules. R. 648.
Claimant also denied suffering from carpal tunnel, gout,
joint stiffness, leg cramps, muscle aches, shoulder pain,
swollen joints, and/or weakness. R. 646. However, Claimant
admitted suffering from arthritis, back problems, and painful
joints. Id. Dr. Sheikh diagnosed Claimant with
arthritis unspecified, cervical spondylolysis, lumbago,
carpal tunnel syndrome, fibromyalgia/myositis, and
osteoporosis. R. 648. Dr. Sheikh prescribed oral medication
for the fibromyalgia. Id.
November 11, 2015, Claimant presented again to Dr. Sheikh
with the chief complaint of fibromyalgia. R. 650 (Exhibit
17F). According to Dr. Sheikh's progress notes, Claimant
continued to complain of diffuse arthralgias/myalgias, along
with prolonged morning stiffness, disturbed sleep, and
fatigue. Id. Dr. Sheikh noted that Claimant was
previously under the care of a pain clinic specialist and
received cervical epidural injections. Id. During
the appointment, Claimant at times both complained of and
denied suffering from fatigue and disturbed sleep.
Id. Claimant denied suffering from headaches, weight
loss, back pain/problems, carpal tunnel, gout, leg cramps,
muscle aches, shoulder pain, swollen joints, weakness, and/or
dizziness. Id.He also denied suffering from any
ophthalmologic issues, glandular issues, respiratory or
cardiovascular issues, dermatologic issues, and/or any
problems with swallowing or dry mouth. Id. However,
Claimant admitted to experiencing neck pain, arthritis, joint
stiffness, painful joints, and tingling/numbness.
Id. On examination, Dr. Sheikh noted joint
tenderness all over and multiple trigger points, but no
synovitis, crepitus, bursitis, or tendinitis, and normal
range of motion. R. 651. Dr. Sheikh assessed that Claimant
has fibromyalgia associated with diffuse arthralgias and
myalgias, fatigue, muscle weakness, and other somatic
complaints. Id. Dr. Sheikh prescribed Claimant oral
medication for his fibromyalgia and explained to Claimant the
importance of an exercise program. R. 652.
August 11, 2016, Claimant returned to Dr. Sheikh. R. 703
(Exhibit 23F). Dr. Sheikh advised Claimant to start an active
physical therapy program, which should include fast walking,
swimming, and weightbearing exercises. Id. Claimant
was also advised to start a neck strengthening exercise
program. Id. A physical examination revealed no
cyanosis, clubbing, or edema in his extremities. R. 705.
However, Claimant had joint tenderness all over and multiple
trigger points, but normal range of motion. Id. Dr.
Sheikh again noted that Claimant has fibromyalgia associated
with diffuse arthralgias and myalgias, fatigue, disturbed
sleep, muscle weakness, and multiple other somatic
complaints. Id. In addition to advising Claimant
about physical therapy, Dr. Sheikh prescribed oral medication
for the fibromyalgia. Id.
primary care provider, Floridalia Cruz, M.D., also diagnosed
him with fibromyalgia. E.g., R. 748. On February 23,
2017, Claimant returned to Dr. Cruz for a follow up
appointment regarding his fibromyalgia. Id. He
reported that he still suffers from joint pains, but that one
of the medicines prescribed for the joint pain helps as
needed. Id. Claimant further stated that he has good
days and bad days regarding his chronic pain, but that his
chronic pain worsens his depression. Id.
Hearing Before the ALJ.
time of the hearing, Claimant was sixty years old. R. 51.
Since the alleged disability onset date (April 1, 2014),
Claimant testified that he performed some types of work,
which included driving for Uber in 2015. R. 54. He testified that
he could not drive for Uber full time because he was not able
to sit for that long; it was too painful to keep his foot on
the gas pedal. R. 62. Prior to the alleged disability onset
date, Claimant worked filling vending machines from January
2007 through March 2014. R. 54-55. From 1995 to 2006, he
assembled cables for ambulances, a job he described as
“cable maker.” R. 56, 61.
hearing, Claimant testified that he has three hernias in his
neck and two in his back; fibromyalgia; and depression and
anxiety. R. 56. He testified that the pain in his neck is
constant and that the pain from the fibromyalgia was akin to
being stuck with needles in his arms and legs. R. 57. His
prescribed medication sometimes helped with the pain. R. 58.
Claimant estimated that he could sit for approximately 20
minutes before he had to stand up. Id. However, he
can only stand for approximately 20 minutes because it begins
to feel like he is walking on broken glass. Id.
Claimant estimated that the heaviest amount of weight he
could pick up and carry for a distance was similar to a
gallon of milk because his fingers are normally numb. R. 59.
He stated that his hands and fingers were always numb, it
hurt to bend over, he had problems climbing up stairs and
steps, and cold weather affects his level of pain. R. 59, 63.
hearing, the VE testified that Claimant's work history
over the prior fifteen-year period was equivalent to coin
collector and wire harness assembler, as defined in the
Dictionary of Occupational Titles (“DOT”). R. 65.
The ALJ asked the VE to assume a hypothetical individual of
Claimant's age, education, and work experience, who could
perform no greater than light work, who could not climb
ladders, ropes, or scaffolds; who was limited to performing
all other postural activities on an occasional basis; and who
could frequently reach and push/pull overhead with bilateral
upper extremities. Id. Based on these limitations,
the ALJ asked the VE whether such person could perform either
of the two prior relevant jobs: coin collector or wire
harness assembler. Id. The VE testified that the job
of wire harness assembler would fit that description, as
generally performed but not as performed. Id.
Counsel for Claimant posed an additional limitation to this
hypothetical, that the person would not be able to complete a
40-hour workweek. R. 66-67. With this limitation, the VE
testified that there would be no work that the person could
perform. R. 67.
The ALJ's Decision.
considering the hearing testimony and the evidence of record,
the ALJ found that Claimant met the insured status
requirements of the Social Security Act through December 31,
2020. R. 30. The ALJ concluded that Claimant had not engaged
in substantial gainful activity since the alleged disability
onset date. R. 30-31. The ALJ found that Claimant had
the following severe impairments: degenerative disc disease
of the cervical and lumbar spine; and fibromyalgia. R. 31.
These impairments did not meet or equal a listed impairment
in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 33-34. The
ALJ concluded that Claimant's mental impairments were
non-severe. R. 32-33.
on a review of the record, the ALJ found that Claimant had
the residual functional capacity (“RFC”) to
perform light work, with additional limitations that Claimant
can never climb ladders, ropes, or scaffolds; can
occasionally perform all other postural activities (climbing
ramps and stairs, balancing, stooping, kneeling, crouching,
and crawling); and can frequently push, pull and reach
overhead with bilateral upper extremities. R. 34. In making
this finding, the ALJ considered objective medical evidence
and opinion evidence of record. Id. The ALJ outlined
the evidence on which he relied in the decision. R. 36-38.
The ALJ noted the following in the decision as it relates to
Seeking evaluation for “diffuse arthralgias and
myalgias” in May 2015, the claimant was assessed with
fibromyalgia and started on medications including Wellbutrin
XL and Neurontin. Exhibit 16F/4. Despite this assessment,
contemporaneous musculoskeletal examination confirms no
synovitis, tendinitis, bursitis, joint effusion, deformity,
crepitus, enthesopathy, or nodules. Exhibit 16F/4. While
records of November 2015 describe joint tenderness and
non-specific trigger points, the claimant retains normal
range of motion and there are no obvious focal neurologic
abnormalities. Exhibit 17F/2. Although Javaid Sheikh,
MD's November 2015 assessment describes the
claimant's fibromyalgia as associated with
“fatigue, disturbed sleep, muscle weakness along with
multiple other somatic complaints, ” the claimant
denies fatigue, headache, sleep disturbance, weight loss,
dizziness, back problems, carpal tunnel, leg cramps, muscle
aches, pain in shoulders, swollen joints, and weakness on
review of systems. Exhibit 17F/1, 2; see also 21F/3,
I evaluated the objective evidence in assessing the
claimant's residual functional capacity, particularly
limiting him to light work with appropriate postural and
manipulative limitations. In spite of the claimant's
impairments, physical examination routinely confirms no joint
tenderness, no deformities, no crepitance, no defects,
dislocations or subluxation, no asymmetry, no effusions, no
atrophic muscles, no tender muscles, and no weakness. Exhibit
3F/10, 12F/4, 18. The claimant retains full range of motion
and 5/5 strength of the upper and lower extremities with
normal gait, erect posture, and the ability to walk on heels
and toes without difficulty. Exhibit 3F/10, 4F/21, 9F/4,
l0F/6, 12F/4, 18, 16F/4. Specifically, motor examination
confirms 5/5 ...