DONNAN v. BERRYHILL
Filing
23
MEMORANDUM DECISION AND ORDER. Ordered that the Commissioner is directed to remand this case to the Administrative Law Judge for further proceedings consistent with this Order. That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C. § 405(g), REVERSING the Commissioner's decision and REMANDING this case for further administrative proceedings. That the Clerk is directed to close the file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 1/30/2019. (sdw)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MARK S. DONNAN,
Plaintiff,
vs.
Case No.: 5:17cv148/EMT
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition
pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the
parties’ consent to magistrate judge jurisdiction (see ECF Nos. 7, 8). It is now before
the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for
review of a final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff’s application for supplemental security income
(“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.
Upon review of the record before this court, it is the opinion of the undersigned
that the findings of fact and determinations of the Commissioner are not supported by
substantial evidence; thus, the decision of the Commissioner should be reversed and
remanded.
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I.
PROCEDURAL HISTORY
On September 24, 2013, Plaintiff filed an application for SSI, and in the
application he alleged disability beginning August 12, 2013 (tr. 12).1 His application
was denied initially and on reconsideration, and thereafter he requested a hearing
before an administrative law judge (“ALJ”). A hearing was held on February 1, 2016,
and on March 17, 2016, the ALJ issued a decision in which he found Plaintiff “not
disabled,” as defined under the Act, at any time through the date of his decision (tr.
12–19). The Appeals Council subsequently denied Plaintiff’s request for review.
Thus, the decision of the ALJ stands as the final decision of the Commissioner,
subject to review in this court. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d
1253, 1262 (11th Cir. 2007).
II.
FINDINGS OF THE ALJ
In denying Plaintiff’s claims, the ALJ made the following relevant findings (see
tr. 12–19):
1
All references to “tr.” refer to the transcript of Social Security Administration record filed
on August 18, 2017 (ECF No. 12). Moreover, the page numbers refer to those found on the lower
right-hand corner of each page of the transcript, as opposed to those assigned by the court’s
electronic docketing system or any other page numbers that may appear.
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(1) Plaintiff had not engaged in substantial gainful activity since September
24, 2013, the application date2;
(2) Plaintiff had the following severe impairments: status-post cardiovascular
accident (“CVA”) in August 2013 and essential hypertension;
(3) Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (section 11.04 of the Listing of Impairments was
given particularized scrutiny in reaching this conclusion);
(4) Plaintiff had the residual functional capacity (“RFC”) to perform medium
work as defined in 20 C.F.R. § 416.967(c). Plaintiff could lift and carry, push, and
pull fifty pounds occasionally, and twenty-five pounds frequently. With normal
breaks in an eight-hour day, Plaintiff could sit, stand, and/or walk for six hours;
(5) Plaintiff was capable of performing his past relevant work as a cabinet
maker, finish carpenter, and furniture repairer. This work did not require the
performance of work-related activities precluded by Plaintiff’s RFC;
(6) Plaintiff had not been under a disability, as defined in the Act, since
September 24, 2013, the date the application was filed.
III.
STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether
the decision is supported by substantial evidence from the record and was a result of
the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218
(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only
2
Thus, the time frame relevant to Plaintiff’s claim for SSI is September 24, 2013 (the date
he applied for SSI) through March 17, 2016 (the date the ALJ issued his decision). See Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (indicating that SSI claimant becomes eligible to
receive benefits in the first month in which he is both disabled and has an SSI application on file).
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when convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination
that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th
Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,
the Commissioner’s decision will not be disturbed if in light of the record as a whole
the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);
Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a
scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Lewis, 125
F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates
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against the Commissioner’s decision, the decision must be affirmed if supported by
substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The Act defines a disability as an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To qualify
as a disability the physical or mental impairment must be so severe that the claimant
is not only unable to do his previous work, “but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R.
§ 404.1520(a)–(g),3 the Commissioner analyzes a disability claim in five steps:
1.
If the claimant is performing substantial gainful activity, he is not
disabled.
2.
If the claimant is not performing substantial gainful activity, his
impairments must be severe before he can be found disabled.
3
In general, the legal standards applied are the same regardless of whether a claimant seeks
disability insurance benefits (“DIB”) or SSI, but separate, parallel statutes and regulations exist for
DIB and SSI claims (see 20 C.F.R. §§ 404, 416). Therefore, citations in this Order should be
considered to refer to the appropriate parallel provision. The same applies to citations of statutes
or regulations found in quoted court decisions.
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3.
If the claimant is not performing substantial gainful activity and he has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if his impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4.
If the claimant’s impairments do not prevent him from doing his past
relevant work, he is not disabled.
5.
Even if the claimant’s impairments prevent him from performing his past
relevant work, if other work exists in significant numbers in the national economy that
accommodates his RFC and vocational factors, he is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps
him from performing his past work. 20 C.F.R. § 404.1512. If the claimant establishes
such an impairment, the burden shifts to the Commissioner at step five to show the
existence of other jobs in the national economy which, given the claimant’s
impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052
(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then
prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987).
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IV.
PLAINTIFF’S PERSONAL, EMPLOYMENT AND MEDICAL HISTORY
A.
Personal History
Plaintiff testified at his February 1, 2016, hearing as follows. He stated he was
59 years old at the time of the hearing, single, and living in a house with his brother
(tr. 27–28). When asked when he was last employed, Plaintiff answered that, up until
his stroke, he was self-employed making furniture (tr. 28–29).
When asked about his typical daily activities, Plaintiff responded that “every
other day or every third day I’ll — I’ll have a vomit vile from being tubes to my brain
[sic] and then I sleep at least 12 to 14 hours a night” (tr. 31). Plaintiff added that he
usually throws up before he eats but that it could happen any time because he is
always nauseous and dizzy (tr. 32). He stated that when he exerts himself, such as by
going to the grocery store, he may have to lie down for a while to try to keep from
throwing up (tr. 39). Plaintiff stated that he carries a “barf bag” with him and that he
has “spontaneous vomiting” two or three times per month, but mostly in the morning
(tr. 41–42) .
Plaintiff indicated that he makes his own meals and can bathe and dress himself,
although it is difficult for him to shower because of balance issues (tr. 32–33). He
stated he goes to the grocery store and the laundromat but can walk no more than an
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hour (tr. 33). He indicated he had difficulty standing because he became “wobbly,”
but could sit without difficulty as long as he had a neck brace or other support (id.).
Plaintiff estimated that he could lift and carry ten to fifteen pounds (id.).
When asked what was the most severe thing that bothered him, Plaintiff
answered his balance (tr. 34). Plaintiff added that his balance problems occur every
day and that he was “known to fall down by just turning around” (tr. 35). He stated
that he falls approximately twice per month (tr. 41). Plaintiff also mentioned the
constant “pressing” he felt in the back of his head, as if he were wearing a wood clamp
(tr. 34). He commented that he might get car sick if he is in a car for two hours or so
(tr. 35). He added: “I have many problems. When I walk, I kind of veer to the right
and it looks, like, I’m a drunkard. And then my memory, my — sometimes my
eyesight if it’s too bright outside, it’s almost, like, snow blindness.” (id.).
Plaintiff also described having had hand tremors since his brain surgery, which
cause him problems when writing and cause him to drop objects (tr. 37–38). Plaintiff
acknowledged he had used marijuana after being told that it would help with his
nausea (tr. 38). Plaintiff also stated that he had memory problems, especially shortterm memory (tr. 40).
B.
Vocational Expert
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A vocational expert (“VE”) testified at Plaintiff’s hearing. In summary, the VE
classified Plaintiff’s previous work as a cabinet maker as heavy-level job and his work
as a finish carpenter and furniture repairer as a medium-level job (tr. 43–44). When
asked about a hypothetical person with Plaintiff’s RFC, the VE replied that such a
person could perform all of his past work except for that of the cabinet maker (tr. 44).
He also testified that the medium-level jobs of hand packer, industrial cleaner, or
machine packager could be performed (tr. 45). Whereas in the first hypothetical the
ALJ asked the VE to consider that the individual would have “normal breaks in an
eight-hour day,” for the second hypothetical, the ALJ stipulated that the individual
would require at least two additional fifteen-minute rest breaks (id.). The VE
responded that “[i]t would be very difficult to sustain competitive employment with
that many — much time for extra breaks” (tr. 46).
C.
Relevant Medical History
Plaintiff presented to the Bay Medical Center Emergency Department
(“BMCED”) with a complaint of a headache on the morning of August 12, 2013 (tr.
420).
After a CT scan revealed a “subarachniod hemorrhage,” Plaintiff was
transferred to Shands Hospital in Gainesville, Florida (tr. 430, 435). Plaintiff was
determined to have had a ruptured right posterior inferior cerebellar artery aneurysm
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(tr. 241–49). Brain surgery was performed, consisting of a micro-surgical clipping
of the aneurysm, with a right ventricular drain and a stealth ventriculoperiotoneal
shunt being inserted into his brain. (tr. 241–44). Plaintiff’s previous diagnoses of
hypertension, diabetes mellitus, and diverticulitis were also noted (tr. 213, 425).
On September 18, 2013, approximately five weeks after his surgery, Plaintiff
returned to BMCED, complaining of nausea, vomiting, dizziness, and visual field
disturbance (tr. 391). Plaintiff stated that his nausea and vomiting had been occurring
since he was discharged after surgery, and he described the symptoms as mild but
constant (tr. 392). Plaintiff was accepted as an inpatient (tr. 373–417). On September
22, 2013, his date of discharge, Plaintiff was diagnosed with “intractable nausea,
vomiting, that was improved,” and also with a urinary tract infection and “accelerated
hypertension,” both of which were treated with medication (tr. 386). Plaintiff returned
to BMCED four days later, in the late evening hours of September 26, with complaints
of “multiple episodes of vomiting for the past several days” (tr. 373). On September
26 or 27, 2013, a CT scan was performed, which produced the following result:
“Negative examination. No evidence of disruption or discontinuity of the VP shunt
. . . .” (tr. 384). Plaintiff was discharged on September 27.
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On November 2, 2013, Plaintiff returned to the BMCED with complaints of
headache, dizziness, nausea, and vomiting (tr. 347). He reported that his nausea and
vomiting had been present for weeks, and that his headache had become worse that
day (id.). Having arrived on a stretcher, Plaintiff presented as unable to walk, and he
reported dizziness with movement (tr. 352). Plaintiff also complained of pain in the
back of his head, a headache, and a feeling of heaviness on the left side of his head
(id.). Plaintiff stated he had been having nausea and vomiting for the last three
months (id.).
A CT scan that was obtained on November 1 or 2, 2013, noted no significant
postoperative changes in the suboccipital region or to the ventricular shunt (tr. 369).
Though fluid collection in the scalp and white matter ischemia were noted, as well as
“[o]ld left basal ganglia lacunar infarct,” the doctor analyzing the test results
concluded: “[n]o interval change, as described above” (id.).
Plaintiff was seen at Gulf View Medical on February 4, 2014, again
complaining of intermittent to constant vertigo and intermittent nausea (tr. 456). He
was seen by Physician’s Assistant Donald Dorenkamp, who noted Plaintiff as having
“episodic ataxis with occurrences vertigo [sic]” (id.). His assessments included
gastroesophageal reflux disease, hypertension, nausea, and vertigo, and he noted
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Plaintiff’s brain ventricular shunt (tr. 457). Dorenkamp additionally noted that from
a neurological standpoint there were “no localized findings, gait stable/steady without
assistance, but cautious” (id.).
On June 4, 2104, Plaintiff established primary health care at the St. Andrew
Community Medical Center (“SACMC”), apparently on a referral from his attorney,
and was seen by ARNP Beverly Bond. Plaintiff stated he experienced “occasional
periods of vertigo and ‘dizziness’ since shunt surgery,” and he indicated that he
exercised “as tolerated with dizziness – rides a bicycle” (tr. 516–17). Neither vertigo,
nor nausea or dizziness was included in Bond’s assessment (tr. 518). Plaintiff’s gait
was noted to be slow and deliberate, but steady (id.). “Fine upper extremity tremors”
were observed bilaterally with arm extension, but Plaintiff’s bilateral hand grasp was
found to be “intact and equal” (tr. 517–18).
On June 18, 2014, Plaintiff returned to SACMC, reporting two recent episodes
in which he vomited (tr. 511). It was noted that Plaintiff “continues to [complain of]
periods of vertigo and periods of pressure in his head and tingling” (id.).
Plaintiff returned to SACMC on June 25, 2014, reporting that he had vomited
that morning. It was noted that Plaintiff continued to have a “squeezing pressure” in
his head, but not headaches (tr. 508). A notation was also made suggesting that a
referral would be made back to Shands Hospital (“Shands”) for a consultation and
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evaluation of his shunt (tr. 510). At a July 2, 2014, appointment, Plaintiff related that
he was having vomiting episodes three to five times per week, and it was also noted
that he “continues to state that when he walks, his gaits [sic] steers him to the right.
He continues to have ongoing dizziness as well” (tr. 505). Plaintiff’s assessments
were amended to include ongoing, episodic nausea and vomiting, and ongoing vertigo
(tr. 507).
Plaintiff was provided with a prescription of Meclizine for the
vertigo/dizziness (tr. 510).
At a July 15, 2014, appointment at SACMC, Plaintiff stated he was having
continued dizziness and vomiting and commented that he takes Meclizine for the
problem but it “does not seem to have good control” (tr. 502). It was noted that an
appointment for Plaintiff with a Dr. Ho at Shands had been scheduled for August 7,
2014 (id.). Plaintiff stated he still had the same problem with his gait and the constant
squeezing pressure in his head (tr. 502–03).
On July 22, 2014, Plaintiff continued to complain about nausea and dizziness,
and stated he was nauseous while in the clinic that day (tr. 499–500). Because of high
readings from blood testing, added to his assessments were prediabetes and
hypertriglyceridemia, among others (tr. 501).
On August 13, 2014, Plaintiff returned for an appointment at SACMC after
having gone to his appointment at Shands. According to Plaintiff, an MRI was
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performed at Shands, which showed that the shunt in his head was not occluded and
that the ventricles were draining (tr. 496). As evidently explained to Plaintiff while
at Shands, the squeezing pressure in his head and vertigo were related to the
“incisional position,” and “these symptoms including the episodic nausea and
vomiting may or may not improve over time” (id.).4
At an appointment on September 3, 2014, Plaintiff stated that he was doing well
and was going to visit and care for his elderly father in Ohio (tr. 494). He then
returned to SACMC on November 14, 2014, stating that he was again going to Ohio
in order to move his father back with him to Florida (tr. 491). Plaintiff stated he still
felt the squeezing pressure in his head but that his nausea and vomiting had
“decreased somewhat” (id.).
At his January 29, 2015, visit, Plaintiff indicated that he still had the squeezing
pressure in his head and that his nausea and vomiting were still occurring two times
per week (tr. 488). It was also noted, without explanation, that Plaintiff was still
taking his Meclizine but not “as prescribed” (id.). At an April 1, 2015, appointment,
4
The court could not find the MRI or any other medical documentation from Shands itself
concerning to this follow-up appointment. Instead, the information provided in this paragraph is
derived from medical notes taken by ARNP Bond, which in turn appear to be based upon Plaintiff’s
own subjective reporting of the visit to Shands.
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Plaintiff continued to complain of “intermittent” nausea, vomiting, and dizziness, for
which he was still taking his Meclizine twice daily (tr. 485).
During a July 28, 2015, medical visit, Plaintiff indicated he still had “ongoing
fullness in his head with a noted increase in fuzziness and forgetfulness” (tr. 532).
He further expressed having increased depression and anxiety but noted that “he is no
longer vomiting regularly, which is an improvement” (id.).
At a September 29, 2015, appointment, Plaintiff related that the Prozac he was
prescribed was helping with his depression (tr. 529). Plaintiff also related an incident
where he experienced “blurred vision and near vision loss after driving a long distance
with no sunglasses while on [his prescribed medication] for tooth abscess” (id.).
Plaintiff also stated he had gone to Shands for a two-year postoperative follow-up
examination (id.). Although Plaintiff did not specifically mention his nausea,
vomiting, or vertigo, at least such that it was recorded in the medical report, ongoing
“N/V” and ongoing vertigo remained as two of the assessments of Plaintiff’s medical
condition, and his Meclizine was continued specifically for dizziness and nausea (see
tr. 531, 532).
On a December 18, 2015, medical visit, Plaintiff reported consistent vomiting
that morning, as well as tiredness (tr. 528). While the vomiting might have been
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caused by the flu, which was listed as a reason for the visit, it was also noted that
Plaintiff still had persistent nausea and vomiting, possibly neurogenic in nature (id.).
On November 20, 2013, Plaintiff visited Osama Elshazly, M.D., who performed
a disability evaluation. After noting that Plaintiff had undergone brain surgery, Dr.
Elshazly essentially abstained from evaluating Plaintiff’s after-effects from that
surgery, stating that “[i]t would be beneficial if we get an opinion from a
neurosurgeon about the prognosis of this patient’s condition regarding the ventricular
peritoneal shunt and how it will affect him in the future” (tr. 451). Likewise, Dr.
Elshazly appeared to defer on the matter of any conclusions regarding Plaintiff’s
disability, stating that “[i]t is up to the disability office regarding determination” (id.).
Dr. Elshazly did note Plaintiff’s representation that he had been vomiting
intermittently, had intermittent shortness of breath and no energy, and was almost
bedridden (tr. 449). Plaintiff reported that what bothered him the most was his
dizziness, which he experienced on a daily basis (id.). Dr. Elshazly also noted that
Plaintiff’s grip strength and fine manipulation were within normal limits (tr. 450). On
a Range of Motion report form, Dr. Elshazly indicated that Plaintiff had full range of
motion in all respects (tr. 452–54).
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On June 10, 2015, Plaintiff was evaluated by Krzysztof Lewandowski, M.D.
After noting Plaintiff’s history with brain surgery and the placement of the shunt, Dr.
Lewandowski provided the following:
Patient states that he is imbalanced and gets dizzy when twisting or
bending. Occasionally he falls backwards. He does not have muscle
weakness but has difficulty “transforming his decisions into
movements.” A few times a week he has nausea and vomiting. It
happens when he is stressed. Patient is borderline diabetic.
(tr. 461).
Dr. Lewandowski noted that Plaintiff had arrived at his office alone, that he
walked without a limp and without an assistive device, and that he dressed and
undressed without help (id.). Dr. Lewandowski then gave the following impressions:
This patient had [a] CVA 20 months ago. It seems that he did not sustain
significant neurological impairment. His speech is normal. There is no
weakness or paralysis. His manual dexterity and gait seem to be normal.
He may be having subtle neurological problem [sic] which I did not
detect during this examination. He seems to be functioning without a
problem while in the office with normal gait and balance. He could tiptoe and heel walk and did not need [an] assistive device for ambulation.
Although his strength is not limited, he may need to be careful with
unprotected heights and situations requiring sudden changes.
(tr. 462).
Accordingly, Dr. Lewandowski completed a form titled “Medical Source
Statement of Ability to Do Work-Related Activities (Physical).” He indicated on the
form that Plaintiff would be capable of lifting up to 100 pounds continuously; of
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sitting, standing and walking for a total of eight hours without interruption; of
reaching, handling, fingering, feeling, pushing or pulling continuously; and of
continuously climbing stairs, ramps, ladders or scaffolds, balancing, stooping,
kneeling, crouching and crawling (tr. 464–66). The only less-than-superlative grades
that Dr. Lewandowski gave to Plaintiff on the form were that Plaintiff could tolerate
exposure to unprotected heights only occasionally and to moving mechanical parts and
to operating a motor vehicle only frequently (not continuously) (tr. 467). Dr.
Lewandowski did not provide an answer where the form asked if the limitations he
had found have lasted or would last for twelve consecutive months (tr. 468).
In a letter dated March 6, 2014, Physician’s Assistant Donald Dorenkamp
provided a medical opinion based on his encounter with Plaintiff at Gulf View
Medical in February of 2014. In the letter he states that he did not have access to
Plaintiff’s past surgical records (tr. 525). Dorenkamp provides:
[Plaintiff’s] physical assessment post-operatively after his atriovetntricular [sic] shunt have left him with diminished capacity in
proprioceptive capabilities. These limitations result in intermittent to
constant vertigo, nausea and an inability to position himself three
dimensionally in space. This severely limits or restricts what he can
safely or successfully do throughout the day. He is on medications to
support him palliatively, but long term resolution of the condition is
most probably unattainable pharmacologically or surgically. Sensory
integration or alternative treatments may improve his condition, but the
long term prognosis still remains poor. He requires evaluation by a
physiatrist to adequately determine his limitations/disabilities or what
may possibly improve his condition in the future.
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(tr. 525).
Plaintiff also underwent two disability determinations from state agency
physicians. The first one was performed on December 12, 2013, by Sean Cook, SDM,
who found Plaintiff not disabled (tr. 66). Noting Plaintiff’s brain surgery and
subsequent testing, Cook provided a diagnosis that included “CVA, late effects of
cerebrovascular disease” (tr. 63). Cook found Plaintiff to be partially credible in his
subjective reporting of his symptoms, citing his abilities to drive short distances and
perform errands and household chores (tr. 64). Cook also referenced Dr. Elshazly’s
November 20, 2013, examination, specifically the findings of normal motor strength,
grip, and ability to speak (tr. 65).
The second disability determination, deemed a reconsideration of the first,
occurred on March 26, 2014, and was performed by Cristina Rodriguez, M.D., who
also found Plaintiff not disabled (tr. 77). Dr. Rodriguez identified essentially the same
findings of medical fact as did Cook, but additionally noted Dorenkamp’s medical
impressions from February 4, 2014 (tr. 73).5 Dr. Rodriguez also found Plaintiff to be
partially credible, opining that “[t]here are some allegations and symptoms that appear
in my judgment, to be disproportionate to the expected severity and duration that
5
In both disability determinations, Dorenkamp is misidentified as a doctor, and his last
name is spelled “Dovenkamp.”
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would be expected on basis of the claimant’s medically determinable impairments”
(tr. 74). Neither disability determination addressed Plaintiff’s vertigo, dizziness,
and/or nausea, Dorenkamp’s assessment of vertigo, or his letter of March 6, 2014,
discussing same.
V.
DISCUSSION
Plaintiff contends that, while assessing Plaintiff’s RFC, the ALJ erred by failing
to articulate adequate reasons for discrediting Plaintiff’s subjective testimony
regarding his symptoms.
A claimant may establish that he has a disability through his own testimony
regarding his pain or other subjective symptoms. Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (per curiam). The claimant must show: (1) evidence of an
underlying medical condition and either (2) objective medical evidence that confirms
the severity of the alleged symptoms arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged symptoms. Id.; see also Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); 20 C.F.R. § 404.1529(b); 20 C.F.R.
§ 416.929(b). While the presence or absence of evidence to support the claimed
severity of symptoms is not conclusive, it is a factor to be considered. Marbury v.
Sullivan, 957 F.2d 837, 839–40 (11th Cir. 1992); Tieniber v. Heckler, 720 F.2d 1251,
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1253 (11th Cir. 1983). The ALJ must either explicitly discredit such testimony or the
implication must be so clear as to amount to a specific credibility finding.” Tieniber,
720 F.2d at 1255. The ALJ should consider the claimant’s history, the medical signs
and laboratory findings, the claimant’s statements, statements by physicians, and other
evidence relating to how the symptoms affect the claimant’s daily activities and ability
to work. 20 C.F.R. § 404.1529(c); 20 C.F.R. § 416.929(c); Social Security Ruling
(“SSR”) 96–7p, 1996 WL 374186, at *2 (S.S.A. July 2, 1996).
Plaintiff testified that he is unable to work due to his vertigo, nausea, and
vomiting, along with difficulties with balance, head pressure, difficulty with bending
and standing, and problems with hand tremors, and he asserts that these symptoms
commenced directly after and on account of his stroke. Likewise, the medical record,
as recounted above, demonstrates that Plaintiff consistently complained of his vertigo
and associated issues in the months following his stroke. The ALJ, however, found
these symptoms to be non-severe.
In so finding, the ALJ determined that Plaintiff’s representations as to the
intensity, persistence, and limiting effects of his symptoms were “not entirely
credible” (tr. 17). The ALJ made the following findings with respect to the medical
record:
Somewhat consistent with the allegations of the claimant, the remarkably
limited record of treatment in this case shows that he had a stroke in
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August 2013. A CT scan performed on his head three months
subsequent to the stroke indicated that he continued to experience
residual effects of the cardiovascular accident. Sharply inconsistent with
the claimant’s hearing testimony, the most recent evidence of treatment
indicate [sic] that the claimant has advised his treatment team that his
vomiting episodes have decreased in frequency and that his main
complaints include blurred vision associated with long road trips without
sunglasses relieved by napping and increased forgetfulness rather than
daily dizzy spells.
(tr. 17).
The ALJ’s reference to “the most recent evidence of treatment” is to Plaintiff’s
September 29, 2015, appointment in which he reported having vision problems after
driving a long distance while on medication for an abscessed tooth (tr. 529). This
incident appears to be a single episode rather than a shift in the overall course of
Plaintiff’s medical condition and treatment needs.
The ALJ’s suggestion that the vision issue had become Plaintiff’s main
complaint, essentially replacing his vertigo and nausea, does not appear to be
supported by the record. In fact, it rather seems the case that the driving incident
simply took precedence among Plaintiff’s complaints during the one particular
appointment because it had happened contemporaneously. In other words, while
Plaintiff had reported during this time that his vomiting had lessened, perhaps
significantly, this did not mean that all his associated symptoms (vertigo, dizziness,
balance issues) had altogether ceased, particularly in light of: (1) the regularity with
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which Plaintiff had previously complained of these symptoms after the surgery, and
(2) Plaintiff’s later testimony at his hearing stating that his symptoms remained a
problem. That said, the ALJ’s opinion is fairly ambiguous as to what Plaintiff’s
limitations might have been prior to the time that Plaintiff reported his symptoms to
be improving. The ALJ only describes the medical record during this earlier time
period as being “somewhat consistent” with Plaintiff’s testimony, and in so stating,
the ALJ references only the fact of the stroke itself and the CT scan which showed
“residual effects.”
Importantly, the ALJ does not address the length of this earlier period as it
relates to the statutory standard regarding disability. The standard requires a disabling
condition “which has lasted or can be expected to last for a continuous period of not
less than twelve months . . . .” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(1)
(emphasis supplied). Hence, critical to an analysis of disability is whether an
impairment has either prevented substantial gainful activity for a period of twelve
months or is expected to last that long at the time it is evaluated. See 65 Fed. Reg.
42774 (2000); Barnhart v. Walton, 535 U.S. 212, 217, 122 S. Ct. 1265, 1269, 152 L.
Ed. 2d 330 (2002). Thus, the fact that Plaintiff’s health might have sufficiently
improved later on—as cited by the ALJ—does not change the fact that earlier he was
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not improved and may well have been under a disabling condition that lasted for
twelve months following his stroke.
The ALJ also cited to medical opinions to support his determination that
Plaintiff was not disabled, but the court does not find that his findings in this regard
are substantially supported. Dr. Elshazly’s disability evaluation, which was provided
approximately three months after Plaintiff’s surgery, showed great uncertainty as to
Plaintiff’s prognosis in the aftermath of his surgery. Consequently, Dr. Elshazly
essentially refrained from providing an opinion as to Plaintiff’s disability and
recommended that he be further evaluated by a neurosurgeon. Thus, while Dr.
Elshazly may have found Plaintiff to have full range of motion as to physical
movements, this hardly provides a complete picture as to Plaintiff’s capabilities at the
time. Yet, the ALJ found that Dr. Elshazly’s evaluation results were “essentially
normal” (tr. 17).
Likewise, Dr. Lewandowski’s evaluation and opinion of June 10, 2015, nearly
two years after Plaintiff’s stroke, expressed some reservation as to Plaintiff’s
neurological issues, though his conclusions were firmer than Dr. Elshazly’s. Dr.
Lewandowski suggested that the neurological issues were “subtle” ones that he might
not have been able to “detect” during his physical examination (tr. 462). Nonetheless,
Dr. Lewandowski noted Plaintiff’s lack of observable neurological impairment “while
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in the office” and found him to otherwise have normal physical ability. The ALJ
assigned great weight to Dr. Lewandowski’s opinion, whom he noted had identified
one limitation that Plaintiff “be careful with unprotected heights and situations
requiring sudden changes” (tr. 17, 462).
The ALJ did note the opinions of Physician’s Assistant Dorenkamp, particularly
his findings that Plaintiff’s chronic nausea and vertigo affected his abilities “to
position himself three dimensionally in space” and “severely limit[] or restrict[] what
he can safely or successfully do throughout the day,” but the ALJ gave his findings
little probative weight (tr. 17–18, 525).6 Curiously, the ALJ deemed Dorenkamp’s
opinion a “snapshot view of the claimant” because Dorenkamp produced
documentation of only one medical visit with Plaintiff (tr. 17–18), while the ALJ did
not take a similarly diminished view of the opinions of Drs. Elshazly and
Lewandowski even though they appeared to have seen Plaintiff only once as well. In
any event, Dorenkamp’s opinion would at least stand for the proposition that, at the
“month seven marker” along the twelve-month timeline, there was at least one
“snapshot view” expressing concern over Plaintiff’s neurological repercussions and
6
The ALJ noted that, as a physician’s assistant, Dorenkamp was not qualified to establish
the existence of a medically determinable impairment but could be relied upon to demonstrate the
severity of an impairment and how it might affect the ability to work. See 20 C.F.R. § 404.1513(a),
(d); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004).
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the need for an evaluation from a neurologist or other expert to help determine the
extent of Plaintiff’s limitations.
In sum, the court finds that the ALJ did not adequately support his credibility
assessment of Plaintiff’s testimony using the record in this case. Rather, much of the
record evidence supports Plaintiff’s testimony, if only from the fact that the medical
records consistently note his subjective reporting of his symptoms and their
debilitating effects. While medical opinions cited by the ALJ might otherwise support
his finding, it cannot be overlooked that those opinions came with a significant caveat,
that those giving the opinions were not qualified as neurological experts to evaluate
Plaintiff’s symptoms of vertigo and nausea. While such an evaluation is lacking in
the file, the court also notices a glaring omission in the record, documentation of the
followup evaluation from Shands that, according to Plaintiff, held that Plaintiff’s
symptoms may or may not improve over time.
Moreover, the court is reminded that the ALJ made no explicit reference to the
possibility that Plaintiff’s symptoms might have been more debilitating during the first
twelve months following his stroke. The court therefore cannot discern whether the
ALJ, while reviewing Plaintiff’s symptoms and the available records, was cognizant
of the possibility that Plaintiff could be found disabled based alone on this time
period.
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Finally, the court notes Plaintiff’s second claim, which directly follows from
the first, that the ALJ failed to pose hypothetical questions to the VE that included
limitations reflecting Plaintiff’s symptoms of vertigo, nausea, and the like. The court
notes that the second hypothetical posed by the ALJ, concerning a hypothetical
individual who would need at least two additional fifteen-minute rest breaks during
the course of a working day, might have been asked with regard to Plaintiff’s
problems with vertigo and nausea. The ALJ gave no indication that this was the case,
but if it were, it goes without saying that the VE’s response, that it would be very
difficult for that individual to hold a job, would be of critical importance.
VI.
CONCLUSION
For the reasons provided above, this case should follow the general rule when
errors occur which is to reverse and remand for additional proceedings. See, e.g.,
Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (referring to general practice);
Holt v. Sullivan, 921 F.2d 1221, 1223–24 (11th Cir. 1991).
Accordingly, it is hereby ORDERED:
1.
That the Commissioner is directed to remand this case to the
Administrative Law Judge for further proceedings consistent with this Order.
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2.
That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C.
§ 405(g), REVERSING the Commissioner’s decision and REMANDING this case
for further administrative proceedings.
3.
That the Clerk is directed to close the file.
DONE AND ORDERED this 30th day of January 2019.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case No.: 5:17cv148/EMT
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