Hernandez v. Commissioner of Social Security

Filing 23

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. Signed by Magistrate Judge Mac R. McCoy on 5/30/2017. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARENA HERNANDEZ,
Plaintiff,
v.

Case No: 8:16-cv-781-T-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Marena Hernandez’s Complaint (Doc. 1) filed on March 31,
2016. 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).
I.

Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.

Eligibility

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); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.

Procedural History

On April 4, 2012, Plaintiff filed an application for disability insurance benefits (“DIB”)
and on April 5, 2012, Plaintiff filed an application for supplemental security income (“SSI”).
(Tr. at 153, 154, 302-319). Plaintiff asserted an onset date of April 14, 2010. (Id. at 302, 310).
Plaintiff’s applications were denied initially on June 20, 2012, and on reconsideration on
September 7, 2012. (Id. at 175, 176). A hearing was held before Administrative Law Judge
(“ALJ”) Dores D. McDonnell, Sr. on April 29, 2014. (Id. at 91-114). The ALJ issued an
unfavorable decision on May 8, 2014. (Id. at 70-78). The ALJ found Plaintiff not to be under a
disability from April 14, 2010, through the date of the decision. (Id. at 78).
On January 27, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 17). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on March 31, 2016.
This case is ripe for review. The parties consented to proceed before a United States Magistrate
Judge for all proceedings. (See Doc. 13).
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 Soc. Sec., 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

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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

2

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 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (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).
The ALJ found that Plaintiff met the insured status requirements through June 30, 2016.
(Tr. at 72). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since April 14, 2010, the alleged onset date. (Id.). At step
two, the ALJ found that Plaintiff suffered from the severe impairment of hypertension (20 C.F.R.
§§ 404.1520(c) and 416.920(c)). (Id.). 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. pt. 404, subpt. P, app. 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Id. at 74). At step four, the ALJ
determined that Plaintiff has the residual functional capacity (“RFC”) to perform medium work,
finding she “can lift and/or carry 25 pounds frequently and 50 pounds occasionally and stand,
walk, or sit for 6 hours each in an 8-hour workday. (Id. at 75). The claimant has no limitations
in pushing/pulling with hand or foot controls. (Id.). She further experiences no manipulative,
visual, communicative, postural, or environmental limitations.” (Id.). The ALJ determined that
Plaintiff is capable of performing her past relevant work as a driver, laundry aid, and cashier and

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.

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dishwasher in a restaurant. (Id. at 78). The ALJ determined that this work does not require the
performance of work-related activities precluded by Plaintiff’s RFC. (Id.). The ALJ concluded
that Plaintiff was not under a disability from April 14, 2010, through the date of the decision.
(Id.).
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 Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
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 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) (court must scrutinize the entire
record to determine reasonableness of factual findings).

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II.

Analysis
On appeal, Plaintiff raises three issues. As stated by Plaintiff, the issues are:
1)

The ALJ erred by failing to properly consider the severity of Plaintiff’s
impairments of bilateral hand pain and depression and their combined effect on
her residual functional capacity.

2)

New and material evidence submitted to the Appeals Council warrants remand.

3)

Substantial evidence failed to support the ALJ’s finding that Plaintiff had the RFC
for medium work.

(Doc. 21 at 3). The Court will address each issue in turn.
A.

Severity of Bilateral Hand Pain and Depression and the Effect on RFC

Plaintiff raises a number of arguments relating to this issue. Some of these arguments
relate to the ALJ’s consideration of the severity of Plaintiff’s hand pain, some relate to her
depression, others relate to the resulting RFC determination, and still others relate to the weight
afforded certain physicians’ opinions. (Doc. 21 at 13-18). As a threshold matter, how the ALJ
considered the treating physicians’ reports will impact the Court’s analysis as to the ALJ’s
consideration of the severity of Plaintiff’s bilateral hand impairments and the resulting RFC
determination. Thus, the Court will begin its analysis by considering Plaintiff’s arguments
concerning the lack of weight afforded certain physicians’ opinions by the ALJ.
In that regard, Plaintiff argues that the ALJ failed to mention and weigh the treatment
records and opinions of Shrinath Kamat, M.D., Tampa Family Health Care in 2012, and Scott
Gargasz, M.D. that relate to her bilateral hand impairments. (Doc. 21 at 15-16). The
Commissioner asserts that the ALJ accurately considered Plaintiff’s medical treatment and
discussed her alleged carpal tunnel syndrome in depth. (Doc. 22 at 11). Further, the
Commissioner responds that the ALJ is not required to cite to every piece of evidence in the file.
(Doc. 22 at 11).

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1.

Legal Standard

“The Secretary must specify what weight is given to a treating physician’s opinion and
any reason for giving it no weight, and failure to do so is reversible error.” MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). The Eleventh Circuit has held
that whenever a physician offers a statement reflecting judgments about the nature and severity
of a claimant’s impairments, including symptoms, diagnosis, and prognosis, what the claimant
can still do despite his or her impairments, and the claimant’s physical and mental restrictions,
the statement is an opinion requiring the ALJ to state with particularity the weight given to it
and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F3d 1176, 1178-79 (11th Cir.
2011). Without such a statement, “it is impossible for a reviewing court to determine whether
the ultimate decision on the merits of the claim is rational and supported by substantial
evidence.” Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight
unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th
Cir. 2004). The Eleventh Circuit concluded that good cause exists when: (1) the treating
physician’s opinion was not bolstered by the evidence; (2) the evidence supported a contrary
finding; or (3) the treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records. Id.
To determine whether the ALJ’s opinion is supported by substantial evidence, the Court
will review and consider the medical records from Dr. Kamat, Tampa Family Health Care, and
Dr. Gargasz in turn.

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2.

Dr. Kamat

Dr. Kamat’s treatment records begin on July 25, 2012. (Tr. at 705-07). On that date,
Plaintiff complained of pain and paresthesia in both hands as well as weakness. (Id. at 705).
Plaintiff reported that carpal tunnel repair surgery was conducted in March of 2012 on the left
hand, but with no benefit. (Id.). Plaintiff stated that she had a lot of pain in both hands and these
symptoms began approximately two (2) years prior to the appointment. (Id.). Plaintiff
complained that she was in quite a bit of discomfort and pain in bother her hands and wrists and
the pain radiated into her forearms. (Id.). Upon examination, Dr. Kamat found Plaintiff’s
handgrip limited due to pain and the Phalen’s test positive bilaterally. (Id. at 706). Dr. Kamat
diagnosed Plaintiff with paresthesia (pain and weakness in both upper extremities, especially in
the hands, more so on the left), carpal tunnel syndrome, “however coexisting the peripheral
neuropathy or other entrapment neuropathies cannot be ruled out.” (Id. at 707). Dr. Kamat
determined the symptoms were worsening. (Id.). Dr. Kamat ordered certain testing and
prescribed medication. (Id.). On December 27, 2012, Plaintiff returned to Dr. Kamat with the
same complaints. (Id. at 688). Plaintiff reported little improvement in her pain level and that the
medication she was taking did not help much. (Id.). Dr. Kamat diagnosed Plaintiff with
paresthesia in both upper extremities and that her condition was worsening. (Id. at 689). Dr.
Kamat prescribed different medications and advised Plaintiff to do isometric stretch exercises for
her hands. (Id. at 688).
On March 27, 2013, Plaintiff returned to Dr. Kamat with continuing pain and spasms in
her left hand. (Id. at 685). Plaintiff claimed that her medication was no longer effective, her
hands cramped, and she had tenderness in her palms. (Id.). Dr. Kamat noted Plaintiff appeared
to be developing a fibrous tissue or contraction of the fascia of the palm. (Id.). Dr. Kamat

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prescribed different medications. (Id. at 685-86). On June 19, 2013, Plaintiff saw Dr. Kamat
and reported some improvement with the prescription medication regimen. (Id. at 677). On
September 18, 2013, Plaintiff reported that the medications helped to ease the pain to a bearable
level, but she continued to have numbness and an achy feeling in her left hand. (Id. at 674). On
December 19, 2013, Plaintiff reported to Dr. Kamat that she had some improvement in her pain
and numbness. (Id. at 671).
3.

Tampa Family Health Care

Plaintiff went to Tampa Family Health Care and saw Margaret F. Amanti, D.O. on
February 9, 2011. (Id. at 620-21). Dr. Amanti diagnosed Plaintiff with carpal tunnel syndrome
and prescribed medication and a brace to wear at night. (Id. at 621). Plaintiff returned on
February 22, 2011, complaining of pain and numbness in both hands as well as other symptoms.
(Id. at 616, 619). Plaintiff indicated her hands were swollen and she could not move them
without pain. (Id. at 616). Plaintiff indicated the medication worked for a few days and then her
symptoms returned. (Id.). Plaintiff was prescribed medications, instructed to use a brace at
night, and to follow through with a hand specialist. (Id. at 618). Plaintiff returned on March 7,
2011 with the same complaints. (Id. at 613-14). She was given a note to excuse her from work
for two (2) weeks. (Id. at 614). Plaintiff went to Family Health on March 21, 2011 with the
same symptoms and again on October 5, 2011. (Id. at 610, 606). At the October visit, upon
examination, Plaintiff was found to have bilateral swollen wrists, Phalen’s maneuver showing
hand-numbness/tingling in the median nerve distribution, Tinel’s sign being positive, a reverse
Phalen’s test was performed, and a carpal compression test of the wrists showing weakness
bilaterally in her hands. (Id. at 608). Plaintiff was prescribed medications and referred to a hand
surgeon. (Id. at 608). On February 2, 2012, Plaintiff returned to obtain a referral for her hands.

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(Id. at 586). Plaintiff’s wrists showed abnormalities, and tenderness on palpation, moving her
wrists elicited pain, Phalen’s maneuver showed hand numbness/tingling in the median nerve
distribution, Tinel’s sign was positive, and her wrists were weak bilaterally. (Id. at 588). On
April 3, 2012, Plaintiff returns for a referral for a hand surgeon for her right hand. (Id. at 578).
Plaintiff had surgery on her left hand. (Id.). Plaintiff stated that her pain is managed with
medication. (Id.).
4.

Dr. Gargasz

Plaintiff went to Dr. Gargasz on November 28, 2011, complaining of pain in both hands
with numbness and tingling bilaterally. (Id. at 529). Plaintiff complained that the numbness and
tingling woke her up at night, and they were worse when driving, brushing her hair, and brushing
her teeth. (Id.). Also, Plaintiff complained of dropping objects and having a weaker grip. (Id.).
Plaintiff stated that she wore splints and these helped. (Id.). Dr. Gargasz assessed Plaintiff with
carpal tunnel syndrome and trigger finger. (Id. at 530). Plaintiff returned on December 5, 2011
with similar complaints. (Id. at 531). Dr. Gargasz determined that Plaintiff required injections
to the carpal tunnel bilaterally and may require injections to the trigger fingers if the pain did not
subside. (Id. at 532). Plaintiff returned on January 9, 2012 claiming that she continued to have
pain and that the injections did not help. (Id. at 534). On Plaintiff’s January 30, 2012 visit, Dr.
Gargasz determined that Plaintiff would require injections for her trigger fingers. (Id. at 538).
Plaintiff continued to complain that the trigger finger injections helped only a little and that she
continued to have pain, numbness, and tingling in her wrists. (Id. at 540). After surgery on her
left hand, Plaintiff reported that she was doing well, but still had some pain and stiffness. (Id. at
543). On April 16, 2012, Plaintiff reported that the left hand had full extension, but she was
unable to close it, and she continued to have pain in her right hand. (Id. at 546-47). On her

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return on May 7, 2012, Plaintiff had pain and swelling in her left hand as well as tingling and
numbness bilaterally. (Id. at 549-50).
5.

Analysis

Upon review of the ALJ’s decision, the ALJ failed to mention or consider the treatment
notes of Dr. Kamat, Tampa Family Health Care, and Dr. Gargasz concerning Plaintiff’s carpal
tunnel impairment. 2 At the fourth step in the evaluation process, the ALJ is required to
determine a claimant’s RFC and based on that determination, decide whether the plaintiff is
able to return to his or her previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986). The determination of a claimant’s RFC is within the authority of the ALJ. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Along with the claimant’s age education, and
work experience, the RFC is considered in determining whether the claimant can work. Id.
Weighing the opinions and findings of treating, examining, and non-examining physicians is an
integral part of the ALJ’s RFC determination at step four. See Rosario v. Comm’r of Soc. Sec.,
877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012).
In this case, the ALJ failed to mention or consider the treatment notes of Dr. Kamat,
Tampa Family Health Care, or Dr. Gargasz in connection with Plaintiff’s carpal tunnel
impairment. Dr. Kamat considered the nature and severity of Plaintiff’s bilateral hand
impairments including Plaintiff’s symptoms of pain, numbness, and weakened grip strength.
(See Tr. at 688, 685, 686, 674, 671, 678, 705, 706). Further, Dr. Kamat diagnosed Plaintiff with
2

At one point in the decision, the ALJ refers to Exhibit 8F, which includes the treatment notes
from Tampa Family Health Care, but the reference is to cardiac issues, poor exercise habits, and
not taking her medications as prescribed. (Tr. at 76). The ALJ included a string cite to Exhibits,
Exhibit 7F, which comprises the treatment notes of Dr. Gargasz, but it is impossible to discern a
portion of the paragraph, if any, that specifically refers to Dr. Gargasz’s treatment records or
opinions. (Id. at 73). Otherwise, the ALJ fails to mention or cite to either of these medical
providers’ treatment notes or records as to Plaintiff’s carpal tunnel impairment.

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carpal tunnel syndrome. (See id. at 707, 689). The records from Tampa Health Care reflect a
diagnosis of carpal tunnel syndrome and also reflect numbness and pain bilaterally in Plaintiff’s
hands and a weakness in Plaintiff’s wrist. (See e.g., id. at 610, 613, 616, 619, 621). Similarly,
Dr. Gargasz’s records reflect a diagnosis of carpal tunnel syndrome and complaints of pain,
numbness, tingling, and weakness. (See e.g., id. at 529, 530, 532, 532, 534, 538). In the
decision, however, the ALJ failed to mention or state the weight he afforded the opinions of Dr.
Kamat, Tampa Family Health Care, and Dr. Gargasz concerning Plaintiff’s carpal tunnel
impairment. Yet, without the benefit of these medical records, the ALJ determined that Plaintiff
had no limitations in pushing/pulling with hand or foot controls and no manipulative limitations.
(Id. at 75). The Court finds that the ALJ’s decision is not supported by substantial evidence as to
Plaintiff’s manipulative limitations. Accordingly, this action must be remanded to allow the ALJ
to consider the medical records relating to Plaintiff’s manipulation limitations in conjunction
with the other medical records in evidence.
The Commissioner argues that the ALJ is not required to cite to every piece of medical
evidence, citing to Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). In Dyer, plaintiff
appealed the final decision of the administrative law judge denying his social security disability
claims. Id. at 1209. The district court reversed the administrative law judge’s decision, finding
that the ALJ applied the wrong pain standard, the medical records supported Plaintiff’s
complaints, and the ALJ failed to consider the medications prescribed. Id. The Eleventh Circuit
held that the district court improperly reweighed the evidence and failed to give substantial
deference to the Commissioner’s decision and, thus, reversed and remanded the district court’s
decision with instructions to enter judgment consistent with the ALJ’s findings. Id. at 1212. In
Dyer, the Eleventh Circuit held that there is “no rigid requirement that the ALJ specifically refer

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to every piece of evidence in his decision, so long as the ALJ’s decision [] is not a broad
rejection[,] which is not enough to enable [the district court or this Court] to conclude that [the
ALJ] considered her medical condition as a whole.” Id. (citation and internal quotation marks
omitted).
The instant case is distinguishable from Dyer. In Dyer, the ALJ failed to mention that
plaintiff took pain medication on only one occasion in connection with an injury unrelated to
Dyer’s impairments in connection with his application for disability. Id. Here, the ALJ failed
even to address the reports of Dr. Kamat, Tampa Family Health Care, and Dr. Gargasz and their
opinions that clearly relate to Plaintiff’s disability claim. Given the lack of analysis as to these
records concerning Plaintiff’s carpal tunnel syndrome, the Court is unable to conduct a
meaningful judicial review of the ALJ’s opinion concerning his conclusion that Plaintiff is not
disabled. See Robinson v. Astrue, No. 8:08-CV-1824-T-TGW, 2009 WL 2386058, at *4 (M.D.
Fla. Aug. 3, 2009) (holding that when an ALJ fails to provide specific reasons for his
determinations, then the ALJ’s general statements do not “permit meaningful judicial review”).
Accordingly, this action must be reversed and remanded.
III.

Plaintiff’s Remaining Arguments
Plaintiff’s remaining arguments focus on Plaintiff’s depression; the severity of Plaintiff

bilateral hand pain and its effect on Plaintiff’s RFC; evidence submitted to the Appeals Council;
and the ALJ’s RFC determination. Because the Court finds that on remand, the Commissioner
must evaluate the medical evidence of Dr. Kamat, Tampa Family Health Care, and Dr. Gargasz
in light of all of the evidence of record, the disposition of these remaining issues would, at this
time, be premature.

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IV.

Conclusion
Upon consideration of the submission of the parties and the administrative record, the

Court finds that the decision of the Appeals Council is not supported by substantial evidence.
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 consider the
records of Dr. Kamat, Tampa Family Health Care, and Dr. Gargasz in conjunction
with all of the other medical evidence of record.

(2)

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.

(3)

The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.

DONE AND ORDERED in Fort Myers, Florida on May 30, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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