Fleming v. Commissioner of Social Security
OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. See Opinion and Order for further details. Signed by Magistrate Judge Mac R. McCoy on 9/15/2016. (JTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
DELORIS A. FLEMING,
Case No: 8:15-cv-1517-T-MRM
COMMISSIONER OF SOCIAL
OPINION AND ORDER
This cause is before the Court on Plaintiff Deloris A. Fleming’s Complaint (Doc. 1) filed
on June 26, 2015. Plaintiff seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying her claim for a period of disability, disability
insurance benefits, and supplemental security income. The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and
the parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
Social Security Act Eligibility, the ALJ’s Decision, and Standard of Review
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work, or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911.
B. Procedural History
On February 4, 2010, Plaintiff filed applications for disability insurance benefits and
supplemental security income asserting an onset date of April 1, 2008. (Tr. at 156, 163).
Plaintiff’s applications were denied initially on June 15, 2010, and on reconsideration on October
22, 2010. (Tr. at 78-81). A hearing was held before Administrative Law Judge (“ALJ”) Arline
Colon on March 21, 2012. (Tr. at 38-77). ALJ Colon issued an unfavorable decision on May
17, 2012. (Tr. at 18-37). On November 30, 2012, the Appeals Council denied Plaintiff’s request
for review. (Tr. at 1-4).
Plaintiff then filed a Complaint before this Court in Case No. 8:13-cv-00318-EAK-TBM
on February 1, 2013. On February 4, 2014, the Honorable Thomas B. McCoun, III, United
States Magistrate Judge, entered a Report and Recommendation recommending that the case be
reversed and remanded. (Tr. at 950-60). On February 21, 2014, the Honorable Elizabeth A.
Kovachevich, United States District Judge, entered an Order adopting the Report and
Recommendation. (Tr. at 961-63). The Court reversed the decision of the Commissioner
denying Plaintiff’s claims for a period of disability and remanded the case for further
proceedings. (Tr. at 962).
On remand, the Appeals Council noted that Plaintiff had filed a subsequent application
for disability insurance benefits and supplemental security income on February 4 and 5, 2013.
(Tr. at 968). The Appeals Council stated that on July 15, 2013, “the State agency personnel
determined that the claimant was disabled beginning on March 14, 2013.” (Tr. at 968). The
Appeals Council affirmed the favorable determination. (Tr. at 968). However, for the period
prior to March 14, 2013, the Appeals Council vacated the final decision of the Commissioner of
Social Security and remanded this case for further proceedings consistent with the order of the
District Court. (Tr. at 968). The Appeals Council ordered the ALJ to “offer the claimant the
opportunity for a hearing, take any further action needed to complete the administrative record,
and issue a new decision on the issue of disability before March 14, 2013.” (Tr. at 968).
On November 4, 2014, ALJ Colon conducted an additional hearing. (Tr. at 825-74). On
April 2, 2015, ALJ Colon issued an unfavorable decision. (Tr. at 800-24). The ALJ found
Plaintiff not to be under a disability from June 12, 2009 through March 13, 2013. (Tr. at 815).
No exceptions were filed to the ALJ’s decision, and the Appeals Council did not review the
decision. (Doc. 21 at 2; Doc. 22 at 2).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on June 26, 2015.
Defendant filed an Answer (Doc. 12) on September 29, 2015. Both parties filed memoranda in
support of their positions. (Docs. 21, 22). The parties consented to proceed before a United
States Magistrate Judge for all proceedings. (See Doc. 16). This case is now ripe for review.
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Social Security, 542 F. App’x 890, 891
(11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must
determine whether the claimant: (1) is performing substantial gainful activity; (2) has a severe
impairment; (3) has a severe impairment that meets or equals an impairment specifically listed in
Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past relevant work; and (5) can
perform other work of the sort found in the national economy. Packer, 542 F. App’x at 891
(citing 20 C.F.R. § 404.1520; Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004)).
The claimant has the burden of proof through step four and then the burden shifts to the
Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2
(11th Cir. 2013).
In this case, the ALJ found that Plaintiff met the insured status requirements of the Social
Security Act through March 31, 2013. (Tr. at 805). At step one of the sequential evaluation, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since June 12, 2009, the
amended alleged onset date. (Tr. at 805). 2 At step two, the ALJ found that Plaintiff suffered
from the following severe impairments: obesity; disorders of the spine; asthma; diabetes with
possible neurological manifestations; asthma; osteoarthritis and left knee meniscus tear and
chondromalacia. (Tr. at 805). At step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d),
416.925 and 416.926). (Tr. at 808). The ALJ specifically stated that she considered listings l.04
and 9.08 in making that determination. (Tr. at 808).
Based on the evidence, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to:
lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand/walk 4
hours in an 8-hour day and sit 6 hours in an 8-hour day; she can occasionally stoop,
balance, kneel, crouch and crawl; she cannot climb ladders, ropes or scaffolds; she
can occasionally climb ramps and stairs; she should avoid concentrated exposure
to hazards such as moving mechanical parts of equipment and machinery, avoid
At the initial hearing, Plaintiff, via her representative, amended her alleged onset date to June
12, 2009. (Tr. at 803).
concentrated exposure to vibration, concentrated exposure to fumes, odors, dust,
gasses and poor ventilation; she can only frequently reach overhead.
(Tr. at 808).
At step four, the ALJ determined that Plaintiff was unable to perform her past relevant
work as a as a cashier, store manager, “phlemobotomist [sic],” and certified nurse’s assistant.
(Tr. at 814). The ALJ stated that the vocational expert (“VE”) “testified that someone with the
claimant’s residual functional capacity could not have performed any of this past work.” (Tr. at
814). The ALJ did note, however, that the VE found that Plaintiff could have performed the job
of suit attendant (DOT 358.677-014; a job with a light exertional level and an SVP of 2). (Tr. at
814). 3 Nevertheless, because it was unclear if Plaintiff had performed the job at substantial
gainful activity level, it was not considered past work. (Tr. at 814).
At step five, considering Plaintiff’s age, education, work experience, and RFC, the ALJ
found that “there are jobs that exist in significant numbers in the national economy that the
claimant can perform.” (Tr. at 814). Specifically, the ALJ noted that the VE testified that an
individual with Plaintiff’s age, education, work experience, and RFC would be able to perform
the requirements of representative occupations such as:
1. office helper (DOT 239.567-010; a job with a light exertional level and an SVP
of 2; 207,000 such jobs available in the national economy and 10,400 in the
2. office mail clerk (DOT 209.687-026; a job with a light exertional level and an
SVP of 2; 122,000 such jobs available in the state and 3,100 in the state); and
3. storage facility rental clerk (DOT 295.367-026; a job with a light exertional
level and an SVP of 2; 43,000 such jobs available in the national economy and
2,900 in the state).
“DOT” refers to the Dictionary of Occupational Titles. “SVP” refers to the term specific
(Tr. at 815). The ALJ found the VE’s testimony to be consistent with the information contained
in the Dictionary of Occupational Titles, except as to the testimony regarding the stand and walk
limitations, which was based on the VE’s professional experience. (Tr. at 815). Based on the
testimony of the VE, the ALJ found that, considering Plaintiff’s age, education, work experience,
and RFC, Plaintiff “was capable of making a successful adjustment to other work that existed in
significant numbers in the national economy.” (Tr. at 815). Thus, the ALJ determined that a
finding of “not disabled” was appropriate. (Tr. at 815). The ALJ found Plaintiff not to have
been under a disability from June 12, 2009 through March 13, 2013. (Tr. at 816).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Richardson, 402 U.S. at 401;
Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as the finder of fact,
and even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding the court must scrutinize
the entire record to determine reasonableness of factual findings).
Plaintiff argues four issues on appeal:
1. The ALJ erred in the consideration of Ms. Fleming’s medically
determinable impairment of pseudo-stroke and erred in not properly
considering it when assessing Ms. Fleming’s symptoms and credibility.
2. The ALJ erred in assessing Ms. Fleming’s statements regarding the nursing
homes and thereby did not properly consider them when assessing Ms.
3. The ALJ erred in assessing Ms. Fleming’s credibility by failing to assess
the regulatory factors.
4. The ALJ erred in assessing the severity of Ms. Fleming’s back injury.
(Doc. 21 at 11-23).
A. The ALJ’s Credibility Determination of Plaintiff
The first three issues raised by Plaintiff concern the ALJ’s credibility assessment of
Plaintiff. The Court addresses the issues regarding Plaintiff’s credibility below.
i. Legal Standard
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can reasonably be expected to give
rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt
v. Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be
reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). If an ALJ
discredits the subjective testimony of a plaintiff, then he must “articulate explicit and adequate
reasons for doing so. Failure to articulate the reasons for discrediting subjective testimony
requires, as a matter of law, that the testimony be accepted as true.” Wilson, 284 F.3d at 1225
(internal citations omitted). Nevertheless, in reviewing credibility, the Eleventh Circuit has
stated that “[t]he question is not . . . whether [the] ALJ could have reasonably credited [the
claimant’s] testimony, but whether the ALJ was clearly wrong to discredit it.” Werner v.
Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011).
The factors an ALJ must consider in evaluating a plaintiff’s subjective symptoms are:
“(1) the claimant’s daily activities; (2) the nature and intensity of pain and other symptoms; (3)
precipitating and aggravating factors; (4) effects of medications; (5) treatment or measures taken
by the claimant for relief of symptoms; and other factors concerning functional limitations.”
Moreno, 366 F. App’x. at 28 (citing 20 C.F.R. § 404.1529(c)(3)). “A clearly articulated
credibility finding with substantial supporting evidence in the record will not be disturbed by a
reviewing court.” Foote, 67 F.3d at 1562.
ii. Ms. Fleming’s Pseudo-Stroke
The Court first addresses Plaintiff’s arguments regarding her pseudo-stroke.
1. The Parties’ Arguments
Plaintiff contends that the ALJ erred in the consideration of Ms. Fleming’s medically
determinable impairment of pseudo-stroke and erred in not properly considering it when
assessing Ms. Fleming’s symptoms and credibility. (Doc. 21 at 12). Specifically, Plaintiff
argues that the ALJ treated her statements about her limitations with “great suspicion” because
“her allegations of a stroke were determined by her physicians to not be a true stroke but was a
pseudo stroke.” (Id. (citing Tr. at 811-12)). Plaintiff argues that “[t]his characterization is based
on an apparent significant ignorance of the nature of a pseudo-stroke, causing an improper and
false conclusion about Ms. Fleming and her credibility.” (Id.).
Plaintiff argues that the only medical evidence in this case regarding Plaintiff’s pseudostroke comes from Dr. Vasquez and Dr. Cohen. (Id. at 14). Plaintiff states that on July 15, 2010,
Dr. Vasquez, a hospital neurologist, concluded that Plaintiff’s symptoms “were not a true stroke
nor true dysarthria (a neurological disorder causing difficulty in speech), but were more likely a
conversion disorder.” (Id. at 12 (citing Tr. at 564-66). Additionally, Plaintiff states that on
September 22, 2010, Dr. Cohen, another hospital neurologist, “concluded that her symptoms
were those of a pseudo-stroke, which he described as a somatization disorder likely brought on
by stress, and was probably similar to her previous episodes.” (Id. (citing Tr. at 619)).
Citing the Diagnostic and Statistical Manual of Mental Disorders of the American
Psychiatric Association, Plaintiff states that a “conversion disorder is presumed to be the
expression of an underlying psychological conflict or need” and that “[c]onversion symptoms are
presumed to result from an unconscious process.” (Id. at 13). Further, Plaintiff states that a
“[s]omatization disorder is a psychiatric condition marked by multiple medically unexplained
physical, or somatic, symptoms.” (Id.). Plaintiff argues that both doctors determined that
Plaintiff’s “stroke” was a conversion reaction and/or a somatization disorder. (Id. at 14). In
doing so, Plaintiff contends that “both physicians determined that her pseudo-stroke was not a
factitious disorder nor was it malingering.” (Id. at 14-15). Rather, Plaintiff argues that “[i]t was
not something over which she had control.” (Id. at 15).
Defendant disagrees, arguing that substantial evidence supports the ALJ’s credibility
determination. (Doc. 22 at 4). Defendant argues that the ALJ properly found that “Plaintiff’s
allegations were not entirely credible because she exaggerated her symptoms or misstated her
medical history to the ALJ.” (Id. at 8 (citing Tr. at 811-13)). Defendant states that while
“Plaintiff argues that the ALJ’s focus on the diagnosis was improper, because the somatization
disorder or conversion disorder could have caused the symptoms she alleged,” “diagnostic
testing did not corroborate Plaintiff’s allegations of right-sided weakness.” (Id. at 9 (citing Tr. at
811)). Defendant points to a September 2010 motor exam and stated that it “revealed normal
tone, bulk and strength in the lower extremities.” (Id. (citing Tr. at 618)). Defendant argues that
the exam showed that Plaintiff “was able to use her right hand to feed herself and use the phone.”
(Id. (citing Tr. at 619)). Defendant notes that Plaintiff “exhibited normal strength and sensation
in December 2010 and March 2011.” (Id. (citing Tr. at 662, 670)). Further, Defendant states
that in February 2012, Plaintiff “exhibited normal sensation and only a slight decrease in strength
in her right upper and lower extremities.” (Id. at 9-10 (citing Tr. at 733)). Additionally,
Defendant argues that by January and February 2013, Plaintiff’s “strength and sensation were
normal again.” (Id. at 10 (citing Tr. at 1147, 1150)). Finally, Defendant states that “Plaintiff
testified that she never received treatment for her right-sided weakness.” (Id. (citing Tr. at 843)).
2. Relevant Case Law
Plaintiff argues that the ALJ’s characterization of Plaintiff’s pseudo-strokes “is based on
an apparent significant ignorance of the nature of a pseudo-stroke, causing an improper and false
conclusion about Ms. Fleming and her credibility.” (Id. at 13). Plaintiff cites Bright-Jacobs v.
Barnhart, 386 F. Supp. 2d 1295, 1333 (N.D. Ga. 2004) in support. (Id. at 14). In Bright-Jacobs,
the Court reversed and remanded the case, finding “that the ALJ failed to properly evaluate the
claimant’s credibility.” Id. The ALJ found that “the claimant’s testimony regarding the pain and
limitations was not fully credible.” Id. The Court agreed with that finding, stating that “the
claimant’s testimony as to her medical conditions generally contradicts the objective medical
evidence as determined by her treating physicians.” Id. Because the claimant’s testimony
contradicted the objective medical evidence, the Court stated that “in the abstract, an ALJ could
find that her testimony is not credible.” Id. Nevertheless, the Court stated that this result “is
precisely the nature of her disabling somatization disorder: the claimant actually believes that
she is suffering from disabling medical conditions even though such medical conditions are
illusory or less severe.” Id. (emphasis added). The Court stated that “in order to properly
evaluate the claimant’s credibility, the ALJ must determine whether the claimant actually
believes she suffers from the enumerated severe disabling medical conditions.” Id. (emphasis
added). Thus, because the ALJ failed to ascertain “whether the alleged medical problems were
real to the claimant,” the Court held that the ALJ committed reversible error by failing to
properly evaluate the claimant’s credibility. Id.
In addition to the case cited by Plaintiff, similar reasoning was utilized by the Court in
Carradine v. Barnhart, 360 F.3d 751 (7th Cir. 2004) (Posner, J.). In Carradine, the Seventh
Circuit reversed and remanded the case finding that the ALJ improperly “based his credibility
determination on serious errors in reasoning rather than merely the demeanor of the witness.” Id.
at 754. There, the ALJ believed that the claimant was exaggerating her pain. Id. Further, the
ALJ stated that psychological testing confirmed a finding that the claimant was inclined to
exaggerate her account of limitations. Id. Nevertheless, the Court noted that testing indicated
that “psychological stress and personal conflicts likely affected the claimant’s account of
physical symptoms and ailments.” Id. Specifically, the Court stated that testing “did not indicate
invalid responses or exaggeration of psychological symptoms,” rather, the test results indicated
somatization. Id. While the ALJ found that the results implied the claimant “exaggerates the
severity of symptoms she reports,” the Court found that they implied “no such thing.” Id.
Instead, the Court stated that the test results implied that the source of the claimant’s pain was
psychological rather than physical. Id. The Court stated that “[i]f pain is disabling, the fact that
its source is purely psychological does not disentitle the applicant to benefits.” Id. The Court
Pain is always subjective in the sense of being experienced in the brain. The
question whether the experience is more acute because of a psychiatric condition is
different from the question whether the applicant is pretending to experience pain,
or more pain than she actually feels. The pain is genuine in the first, the psychiatric
case, though fabricated in the second. The cases involving somatization recognize
this distinction. The administrative law judge in our case did not.
Id. at 754-55.
The Court continued, stating that the ALJ’s misunderstanding was further shown by his
remark that the “medical examiners and treating physicians have not been able to find objective
evidence to support [the claimant’s] extreme account of pain and limitation.” Id. at 755
(emphasis added). The Court stated that this “inability is consistent of course with a
psychological origin of the pain.” Id. The Court stated that the ALJ “could not get beyond the
discrepancy between [the claimant’s] purely physical ailments, which although severe were not a
plausible cause of disabling pain, and the pain to which [the claimant] testified.” Id. The Court
found that the ALJ “failed to take seriously the possibility that the pain was indeed as severe as
[the claimant] said but that its origin was psychological rather than physical.” Id. The Court
stated that the evidence the claimant presented “went far beyond a merely self-serving,
uncorroborated claim of pain by a malingerer.” Id.
Nevertheless, the Court specifically stated that it was not deciding that the claimant was
entitled to benefits. Id. at 756. In fact, the Court acknowledged that the claimant may have been
exaggerating her pain. Id. at 756. Yet, the Court stated that “an administrative agency’s decision
cannot be upheld when the reasoning process employed by the decision maker exhibits deep
logical flaws, even if those flaws might be dissipated by a fuller and more exact engagement
with the facts.” Id. (internal citations omitted).
A third illustrative case is Tedford v. Colvin, No. C12-4076-LTS, 2013 WL 3338477, at
*16 (N.D. Iowa July 2, 2013). There, the Court reversed and remanded the case, finding that the
ALJ “failed to consider the impact of somatization disorder when assessing [the claimant’s]
credibility and her RFC.” Id. The Court noted that “[a]lthough the ALJ expressly found that
[the claimant’s] allegations were not credible,” the ALJ’s primary reasons for discrediting [the
claimant] – exaggeration of symptoms and lack of objective medical evidence supporting
symptoms – “are indicative of the mental impairment itself.” Id. The Court stated that “[t]his is
troubling because the ALJ recognized that [the claimant] had pseudoseizures and her symptoms
were ‘probably psychogenic,’” but still used the psychological nature of the claimant’s
symptoms as a basis to discredit her.” Id. The Court found that the ALJ “did not adequately
consider [the claimant’s] mental impairment.” Id. Thus, the Court held that “[e]xaggeration of
symptoms and lack of objective medical evidence supporting physical symptoms are not good
reasons for discrediting a claimant diagnosed with somatization disorder.” Id.
The Mayo Clinic defines conversion disorder as “a condition in which you show
psychological stress in physical ways.” Mayo Clinic, Conversion disorder, Definition, available
20029533 (last visited August 29, 2016). Further, the Mayo Clinic states that “[t]he condition
was so named to describe a health problem that starts as a mental or emotional crisis – a scary or
stressful incident of some kind – and converts to a physical problem.” Id. The Mayo Clinic
states that “[c]onversion disorder signs and symptoms appear with no underlying physical cause,
and you can’t control them.” Id. (emphasis added). Similarly, the Mayo Clinic states that
somatic symptom disorder “involves having a significant focus on physical symptoms – such as
pain or fatigue – to the point that it causes major emotional distress and problems functioning.”
Mayo Clinic, Somatic symptom disorder, Definition, available at
http://www.mayoclinic.org/diseases-conditions/somatic-symptom-disorder/basics/definition/con20124065 (last visited August 29, 2016).
In this case, Plaintiff contends that the doctors “determined that her pseudo-stroke was
not a factitious disorder nor was it malingering” and that “[i]t was not something over which she
had control.” (Doc. 21 at 14-15). In fact, the record appears to demonstrate that Plaintiff
actually believed that she had strokes and resulting symptoms from them such as poor memory
and right-side weakness. For instance, at the first hearing, Plaintiff stated on multiple occasions
that she had a short memory after her “stroke.” (Tr. at 888, 903). In addition to her complaints
of memory problems, Plaintiff stated at the hearing that her last stroke “was very bad to me on
my right side.” (Tr. at 903). Plaintiff testified that she could not put on her clothes. (Tr. at 903).
Additionally, at the second hearing, when responding to questioning about why she did not have
back surgery sooner, Plaintiff blamed her stroke. (Tr. at 837). Furthermore, Plaintiff repeated
her complaints of right-side weakness, (Tr. at 839), and stated that her memory was “awful” after
her stroke (Tr. at 853).
Nevertheless, while Plaintiff stated that she had strokes and symptoms from them, the
medical evidence contradicts that testimony. As the ALJ stated, the medical evidence
demonstrates that Plaintiff did not have a stroke. (Tr. at 811). The ALJ cited a CT scan taken in
July of 2010 that revealed nothing unusual, with “no evidence of old strokes.” (Tr. at 811 (citing
Tr. at 564)).
Further, the medical evidence contradicts Plaintiff’s reports of right-side weakness. As
discussed by the ALJ, Dr. Vasquez noted that Plaintiff alleged that she could not use her right
arm or right leg, but when stimulated with slight pain, Plaintiff withdrew “quite well.” (Tr. at
811 (citing Tr. at 565)). Moreover, as stated by the ALJ, Dr. Vasquez noted Plaintiff “was able
to use her right arm, that it did not fall without any controlled movement, and that when asked to
move her left leg she was able to use her right leg in the process, while pretending that she could
not move her right leg when specifically asked to move her right leg.” (Tr. at 811 (citing Tr. at
The ALJ further cited a September 2010 CT scan that revealed no acute intracranial
abnormality. (Tr. at 811 (citing Tr. at 615)). At that time, Plaintiff presented with right-sided
weakness. (Tr. at 615). As the ALJ stated, Dr. Cohen expressed skepticism of Plaintiff’s
“stroke.” (Tr. at 811 (citing Tr. at 618)). The ALJ noted that Dr. Cohen “found the claimant’s
effort was extremely poor in using her right leg—despite the motor examination revealing
normal strength in all her extremities.” (Tr. at 811 (citing Tr. at 618)). Additionally, as
discussed by the ALJ, Dr. Cohen noted that Plaintiff “was able to briefly lift her leg off the bed
and that she had resistance to passive movement.” (Tr. at 811 (citing Tr. at 618)). The ALJ
stated that Dr. Cohen further “noted the claimant also was able to use her right hand, despite her
apparent attempts to make it appear that she could not” and that Plaintiff “was seen by the nurses
using the telephone and feeding herself with her right hand.” (Tr. at 811 (citing Tr. at 618)).
Nonetheless, as the ALJ acknowledged, Dr. Vasquez noted Plaintiff “was very worried
about her financial situation.” (Tr. at 811 (citing Tr. at 565)). In fact, as pointed out by Plaintiff,
the record shows that Dr. Vasquez believed Plaintiff that could have a conversion disorder. (Tr.
at 565) (emphasis added). Additionally, the ALJ further acknowledged Dr. Cohen’s diagnosis of
pseudo-stroke. (Tr. at 811 (citing Tr. at 619)). Dr. Cohen concluded that the pseudo-stroke was
“a somatization disorder brought on by the extreme stress that she is under.” (Tr. at 619)
(emphasis added). Dr. Cohen further stated that he
had a frank discussion with the patient and told her that due to the stress her central
nervous system including the brain was not able to function up to 100% and
therefore there was difficulty controlling her body and this was being made worse
not only by the past stress but the anxiety she was experiencing.
(Tr. at 619). Furthermore, a history of conversion disorder is noted at other places in the medical
history. (Tr. at 723, 725, 731, 732, 738).
In this case, the medical evidence of record clearly contradicts Plaintiff’s testimony
regarding her stokes and alleged symptoms from them. Nevertheless, her testimony appears to
show that she actually believed that she had strokes and resulting symptoms from those strokes.
As the cases cited above demonstrate, these are exactly the circumstances that would be expected
from someone with a conversion and/or somatization disorder. See Carradine, 360 F.3d at 754;
Bright-Jacobs, 386 F. Supp. 2d at 1333; Tedford, 2013 WL 3338477, at *16. As such, this case
appears to be analogous to the cases cited above.
For instance, in Bright-Jacobs, the Court stated that the very nature of the claimant’s
somatization disorder means that “the claimant actually believes that she is suffering from
disabling medical conditions even though such medical conditions are illusory or less severe.”
386 F. Supp. 2d at 1333. Similarly, in Carradine, the Court stated that the claimant’s test results
– showing somatization – implied that the source of the claimant’s pain was psychological rather
than physical. 360 F.3d at 754. Further, in Tedford, the Court stated that the claimant’s
exaggeration of symptoms and lack of objective medical evidence supporting symptoms are
indicative of somatization disorder. 2013 WL 3338477, at *16.
In all three cases, the Court reversed and remanded the decision of the ALJ. See
Carradine, 360 F.3d at 754; Bright-Jacobs, 386 F. Supp. 2d at 1333; Tedford, 2013 WL
3338477, at *16. Here, as in the cases above, the Court cannot conclude that the ALJ’s
credibility determination is based on substantial evidence when it is unclear whether or not she
considered the possible effects of Plaintiff’s conversion and/or somatization disorders. See
Bright-Jacobs, 386 F. Supp. 2d at 1333; Tedford, 2013 WL 3338477, at *16. In this case, the
diagnoses by Dr. Vasquez and Dr. Cohen of a conversion and/or somatization disorder go far
beyond a mere self-serving, uncorroborated claim by a malingerer. See Carradine, 360 F.3d at
754. Thus, in order to properly evaluate Plaintiff’s credibility, the ALJ must determine whether
Plaintiff actually believes she suffers from her allegedly severe disabling medical conditions.
See Bright-Jacobs, 386 F. Supp. 2d at 1333. Accordingly, because the ALJ failed to ascertain
whether the alleged medical problems were real to Plaintiff, the Court finds that the ALJ
committed reversible error by failing to properly evaluate Plaintiff’s credibility. See id. On
remand, the Commissioner is directed to further evaluate Plaintiff’s alleged conversion and/or
somatization disorders as it relates to Plaintiff’s credibility and her RFC assessment, including
any additional psychological or medical examinations that may be necessary to complete the
The Court notes, however, that it is not deciding that Plaintiff is entitled to benefits. See
Carradine, 360 F.3d at 754. As in Carradine, the possibility certainly exists that Plaintiff is
exaggerating her symptoms. See id. at 756. Nonetheless, under these circumstances presented
here, the ALJ’s decision cannot be upheld without an evaluation of Plaintiff’s alleged conversion
and/or somatization disorder(s), even if that evaluation with its fuller and more exact engagement
of the facts leads to the same conclusion—i.e., that Plaintiff is not credible. See id.
iii. Plaintiff’s Stay in Nursing Homes and the ALJ’s Consideration of
the Regulatory Factors
Because the Court has found that the ALJ improperly discounted Plaintiff’s credibility,
on remand, the Court directs the Commissioner to fully re-evaluate Plaintiff’s credibility and
RFC assessment, including Plaintiff’s testimony, arguments, and other evidence regarding her
stay in nursing homes. Additionally, on remand, the Commissioner is directed to fully consider
the appropriate regulatory factors in determining Plaintiff’s credibility.
Plaintiff’s Back Injury
Because the Court has found that, upon remand, the Commissioner must fully re-evaluate
Plaintiff’s credibility and RFC assessment, and because that evidence may impact the Court’s
analysis of other elements of the Commissioner’s decision, the Court finds that any ruling on
Plaintiff’s remaining arguments regarding the severity of her back injury would be premature at
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is not supported by substantial evidence.
Accordingly, IT IS HEREBY ORDERED:
1) The decision of the Commissioner is REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g) for the Commissioner to reconsider Plaintiff’s
credibility and RFC assessment, including Plaintiff’s alleged conversion and/or
2) The Clerk of Court is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
3) If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order
(Doc. 1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.
DONE AND ORDERED in Fort Myers, Florida on September 15, 2016.
Copies furnished to:
Counsel of Record
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