United States District Court, S.D. Florida
ORDER ON THE PARTIES' MOTIONS FOR SUMMARY
JUDGMENT (DE 17 & 18)
SHANIEK M. MAYNARD, UNITED STATES MAGISTRATE JUDGE.
CAUSE comes before this Court upon the above
motions. Having reviewed the motions, the responsive
pleadings, and the administrative record (DE 10), and having
held a hearing thereon on June 18, 2019, this Court finds as
Plaintiff applied for supplemental security income
("SSI") under Title XVI of the Social Security Act
on November 18, 2014. The application was denied on the first
two levels of administrative review. On August 24, 2017,
following a hearing, an Administrative Law Judge
("ALJ") rendered a decision finding the Plaintiff
not disabled under the terms of the Social Security Act. The
Appeals Council denied the Request for Review on June 28,
2018, thereby leaving the ALJ's decision final and
subject to judicial review.
Plaintiff is a high school graduate and has vocational
training as a nail technician. She reports having worked as a
nail technician, and is a licensed cosmetologist in New York,
North Carolina, and Florida. (R.60.) The ALJ found that her
earnings have not risen to the level of Substantial Gainful
Activity ("SGA")1 since November 18, 2014, the date
of her application for SSI.
medical record begins on January 29, 2012 when the Plaintiff
sought treatment at St. Joseph's Physicians Hospital in
New York. She returned to St. Joseph's on February 8th,
complaining of insomnia, anxiety, depression, and pain in her
upper gastrointestinal tract. (R.532.) She was diagnosed with
symptomatic cholelithiasis and underwent a cholecystectomy
(the removal of the gallbladder) on October 4th.
June 4, 2012, Plaintiff was involved in a car accident. While
crossing an intersection, she was t-boned by a driver who had
run a red light. She did not seek immediate medical care.
was not until a month later, on July 2, 2012, when Plaintiff
visited Dr. Baird at the North Country Orthopedic Group on
the referral of her attorney. She complained of neck pain
radiating into her left upper arm with numbness, as well as
tingling and pain in the left hip. (R.359.) An MRI of her
cervical spine taken on July 10th showed cervical spondylosis
at the C3-4 through C6-7 intervertebral discs without spinal
cord compression. On July 19th, Dr. Baird reviewed her MRI
results and determined that there was degenerative change in
her cervical spine with mild spinal stenosis. There was no
cord signal change nor acute disc herniation. Dr. Baird was
"optimistic of slow improvement" in her symptoms.
(R.358.) Plaintiff was prescribed Naprosyn and physiotherapy.
followed up with Dr. Baird on September 4, 2012. Her neck and
hip were still hurting, and she also reported that her lower
back had begun to hurt. (R.360.) She told Dr. Baird that she
had started physical therapy and that it was relieving her
neck pain. (There are no records of this physical therapy,
however.) Dr. Baird recommended that she continue to
participate in physical therapy for her neck, back, and hip,
and have a physiatrist conduct electrodiagnostic studies of
her left upper extremity.
October 11, 2012, Plaintiff returned to Dr. Baird. She had
yet to have the electrodiagnostic tests done. She told Dr.
Baird that she was moving to Florida in the immediate future.
Dr. Baird suggested she have the electrodiagnostic studies
done in Florida, so she could address her problems there.
Later that month, Plaintiff sold all her possessions and
drove from New York to Florida.
November 8, 2012, she sought treatment from Dr. Anuj Prasher
at South Florida Orthopedics. (R.486.) X-rays were taken of
her cervical and lumbar spines. The x-rays revealed
spondylosis in her cervical spine and evidence of grade 1
spondyloisthesis at the L4-5 level in her lumbar spine. Dr.
Prasher ordered MRI's for both her lumbar and cervical
spines, which took place on November 12th. The lumbar spine
MRI revealed L4-5 mild grade 1 degenerative anterolisthesis
and moderate facet joint and ligamentum flavum hypertrophy,
with mild to moderate left subarticular recess narrowing with
mild displacement of the descending left L5 nerve root and
mild bilateral neural foraminal narrowing. (R.354.) The
cervical spine MRI revealed multilevel disc osteophytes from
the C3-4 through C6-7 levels with facet joint arthropathy.
Plaintiff followed up with Dr. Prasher on November 15th. She
reported she had moderate pain that occurred intermittently,
aggravated by range of motion, driving, sitting, standing,
and daily activities. Upon physical examination, her upper
body strength was normal and she was able to walk without
difficulty. She was not in apparent distress. Dr. Prasher
noted that whiplash was likely the cause of her neck pain. He
prescribed her Ultram, and injected her with Bupivacaine,
Lidocaine, and Depo-Medrol, which gave her immediate relief.
(R.496.) She was referred to Mid-Florida Anesthesia
Associates for pain management.
Plaintiff presented to Mid-Florida on December 4, 2012.
(R.443.) She was seen by Dr. Alvarez for an initial
evaluation of her pain. She reported that she was continuing
to work part-time. She also reported zero pain relief from
physical therapy. (There are no records of this physical
therapy, either.) Dr. Alvarez ordered a lumbar facet joint
injection, by which to diagnose the source of her lower back
December 11, 2012 Plaintiff received the first of two lumbar
facet joint injections from Dr. Alvarez at Treasure Coast
Center for Surgery. She reported reduced pain from a
"7" to a "2" on a "0" to
10" scale. (R.442.) She received the second injection on
January 8, 2013, which also reduced her pain. (R.438-9.)
Because the Plaintiffs pain was relieved by the lumbar facet
joint injections, the source of her back pain was determined
to derive from the facet joints. On January 28, 2013,
Plaintiff returned to Dr. Kuchera at Mid-Florida Anesthesia
Associates. (R.432.) Dr. Kuchera explained the treatment
options available to Plaintiff, and she and Dr. Kuchera
agreed to proceed with a rhizotomy. A rhizotomy is a
procedure that interrupts spinal nerve roots that travel
through the facet joints. The intent of interrupting those
nerves is to relieve pain arising from the facet joints.
Plaintiff underwent the rhizotomy at Mid-Florida on February
6th. The procedure was successful and significantly reduced
her pain. (R.430.) She did not seek additional treatment for
June 28, 2013, Plaintiff returned to Mid-Florida Anesthesia
Associates and was seen by Dr. Swartz. She reported to Dr.
Swartz that her back pain had significantly improved
following the February rhizotomy. Her neck pain persisted and
was worsening, however. (R.424.) Dr. Swartz recommended that
she receive facet joint injections in her cervical spine to
diagnose the cause of her pain and proceed with appropriate
treatment. Her lumbar and cervical spine were stable, and she
had normal tone, bulk, and strength. (R.426.)
July, she received two cervical facet joint injections. Both
injections were successful and significantly reduced her
pain. (R.421, 423.)
August 5th she returned to Dr. Kuchera at Mid-Florida
Anesthesia Associates. Dr. Kuchera noted that she was
"doing great after the cervical facet" injections.
(R.414.) She reported that her back pain had returned and was
radiating into her left leg, however. She also reported that
she was forced to stop working as a nail tech due to the
combination of back and neck pain. (R.414.) Dr. Kuchera
ordered epidural steroid injections into her lumbar spine.
She received the steroid injections on August 18th, which
reduced her pain.
Because the July cervical facet joint injections had reduced
the pain in her cervical spine, Plaintiff was scheduled for a
cervical rhizotomy. She underwent that procedure on September
4, 2013. The procedure was successful and provided her with
significant relief. (R411.)
Commissioner sent the Plaintiff to a consultative
psychological evaluation conducted by Dr. Mihalovich on
September 18th. When asked why she was applying for benefits,
she identified intrusive thoughts. (R.333.) During the
evaluation, she discussed her prior addiction to cocaine and
her criminal record. She explained that she cannot take
opioid medication for pain because of her addiction. She is
divorced, has two adult children, lives alone, and spends her
day caring for her home and looking for work. She has some
friends and family and chooses not to date. She is heavily
involved in AA and sometimes attends church. She is a
licensed cosmetologist in New York, North Carolina, and
Florida, and has been looking for work since moving to
Florida. Dr. Mihalovich noted that she presented herself in
an appropriate fashion, displayed normal motor skills, was
alert and oriented, and thought logically. Dr. Mihalovich
determined that she had dysthymia, anxiety, and cocaine
dependence. Her cognitive abilities appeared to be intact,
and her judgment and insight were appropriate for independent
living. Dr. Mihalovich determined she was capable of managing
October 2013 Plaintiff presented to Dr. Alvarez to receive a
facet joint injection in her lumbar spine. The injection
reduced her pain. On November 27, 2013 she underwent another
lumbar rhizotomy, which again provided relief. (R.394.)
December 27th she returned to Dr. Kuchera for a follow-up on
her lumbar rhizotomy. She reported that the pain in her low
back was severe, but she was able to perform activities of
daily living without assistance. (R.388.) Her range of motion
was mildly decreased and functional, and her lower back
exhibited mild tenderness. Her cervical and lumbar spines
were stable, and she demonstrated normal tone, bulk and