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Lugo v. Commissioner of Social Security

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

June 14, 2019

FREDDY LUGO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          LESLIE R. HOFFMAN UNITED STATES MAGISTRATE JUDGE.

         TO THE UNITED STATES DISTRICT COURT:

         Freddy 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 Commissioner.

         I. PROCEDURAL HISTORY.

         On 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.

         After 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.

         II. FACTUAL BACKGROUND.

         A. Claimant's Medical Conditions.

         Claimant 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.

         In May 2015, after filing his claim for disability benefits, Claimant was also diagnosed with fibromyalgia. R. 645.[1] On May 6, 2015, Claimant sought treatment from Dr. Javaid S. Sheikh, M.D., a rheumatologist. R. 645-49 (Exhibit 16F).[2] 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.

         On 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.

         On 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.

         Claimant's 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.

         B. Hearing Before the ALJ.

         At the 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.[3] 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.

         At the 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.

         At the 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.

         C. The ALJ's Decision.

         After 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.[4] 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.

         Based 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 Claimant's fibromyalgia:

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, 23F/2.
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 ...

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