Albra v. Colvin
Filing
58
ORDER granting 41 Defendant's Motion for Summary Judgment; denying 43 Plaintiff's Motion for Summary Judgment. Closing Case. Motions Terminated: 41 Defendant's MOTION for Summary Judgment with Supporting Memorandum of Law filed by Carolyn Colvin, 43 MOTION for Summary Judgment filed by Adem Albra. Signed by Magistrate Judge John J. O'Sullivan on 5/22/2018. (tro) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-60569-CIV-JJO
ADEM ALBRA,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
________________________________/
ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion for Summary
Judgment (DE# 43, 9/20/2017) and the Defendant’s Motion for Summary Judgment
(DE# 41, 09/14/2017). The plaintiff requests the final decision of the Commissioner of
Social Security be reversed and Disability Insurance Benefits (“DIB”) be granted under
Title II of the Social Security Act (“SSA”). The complaint was filed pursuant to the
Social Security Act (“SSA”), 42 U.S.C. §405(g), and is properly before the Court for
judicial review of a final decision of the Commissioner of the SSA. The parties
consented to Magistrate Judge jurisdiction, (DE# 28, 07/12/2017), and this matter was
reassigned to the undersigned pursuant to Judge Altonaga’s Order dated July 13, 2017.
(DE# 30, 07/13/2017). Having carefully considered the filings and applicable law, the
undersigned enters the following Order.
PROCEDURAL HISTORY
In May 2014, Adem Albra (“the plaintiff”) filed an application for Disability
Insurance Benefits (hereinafter “DIB”) alleging a disability onset date of February 10,
2012. (Tr. 140-43, 153).1 The plaintiff’s application was denied initially and upon
reconsideration. (Tr. 73, 86). The plaintiff requested a hearing before an administrative
law judge (“ALJ”) which was held on June 13, 2016. (Tr. 26–61). On October 21, 2016,
the ALJ denied the plaintiff’s application. (Tr. 13–21). The plaintiff filed an appeal to the
Appeals Council requesting review of the ALJ’s decision. The Appeals Council denied
the plaintiff’s request for review on February 24, 2017. (Tr. 1–6). The plaintiff has
exhausted his administrative remedies and this case is ripe for review under 42 U.S.C.§
1383(c)(3). The defendant filed the Defendant’s Motion for Summary Judgment (DE#
41, 09/14/2017) on September 14, 2017, the plaintiff filed a response on September 25,
2017 (DE # 44, 9/25/17), and the defendant filed a reply on October 20, 2017 (DE # 46,
10/20/17). The plaintiff filed the Plaintiff’s Motion for Summary Judgment (DE# 43,
9/20/2017) on September 20, 2017, the defendant filed a response on October 20,
2017 (DE # 46, 10/20/17), and the plaintiff filed a reply on October 25, 2017 (DE # 47,
10/25/17).
FACTS
I. Plaintiff’s Background
The plaintiff was born in 1971, and was 45 years old at the time of the ALJ’s
1
All references to “Tr.” refer to the transcript of the Social Security
Administration. 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.
2
decision (Tr. 153). The plaintiff attended community college, but did not obtain a
degree. (Tr. 31). According to the plaintiff, he was “kicked out from a public college”.
(Tr. 47). The plaintiff has past work experience as a sales representative, sales
manager, and administrative assistant. (Tr. 20, 65, 157). The plaintiff alleged disability
based on human immunodeficiency virus (HIV) and acquired immune deficiency system
(AIDS), secondary polycythemia, hypothyroidism, HIV related cognitive
problems/wasting, chronic fatigue, gastric reflux, gum disease, severe depression, and
general anxiety disorder. (Tr. 156).
II. Medical Evidence - Physical Impairments
On June 14, 2013, the plaintiff was evaluated by Esther Schumann, M.D. at
Northpoint clinic. (Tr. 335-41). No significant symptoms were noted at that time. (Tr.
337). Dr. Schumann’s findings were mostly normal, with the exception of some skin
issues. (Tr. 338). Dr. Schumann diagnosed the plaintiff with AIDS, hypothyroidism,
gastroesophageal reflux disease (GERD), and depression. (Tr. 338). Dr. Schumann
prescribed a number of medications. (Tr. 339). The plaintiff saw Dr. Schumann on
June 28, 2013, for a follow up visit. The physical exam findings on June 28, 2013, were
normal and the therapies in place for the plaintiff were continued. (Tr. 331-32). The
plaintiff saw Dr. Schumann again on September 28, 2013, for his quarterly HIV visit. At
that time, the plaintiff complained of cold-like symptoms, pain in his left ear, and the
smell of fungus for two (2) weeks. (Tr. 312). With the exception of plethoric skin and
redness of the tympanic membrane in the plaintiff’s left ear, Dr. Schumann’s physical
exam findings were relatively normal. (Tr. 316). The plaintiff’s treatment remained
basically the same, but a prescription was made for Diflucan to treat the plaintiff’s
3
athlete’s foot. (Tr. 317).
The plaintiff went to the emergency room on September 28, 2013, complaining
that it was difficult for him to breathe. (Tr. 375). Scott Meyer, M.D., the emergency
room doctor, noted exam findings as normal and diagnosed the plaintiff with bronchitis
and otitis media. (Tr. 376-77). A chest x-ray was taken, and there was no finding of
acute cardiopulmonary disease. (Tr. 378). At that time, the plaintiff was prescribed
medications to treat his bronchial issues (Tr. 377).
The plaintiff visited Northpoint clinic in October 2013, for a follow-up visit
regarding his HIV. (Tr. 307). Normal exam findings were made by Robert Heglar, M.D..
The plaintiff was continued on virtually the same therapies, but a prescription was
added for anxiety. (Tr. 309-10).
The plaintiff returned to Northpoint clinic on January 16, 2014, complaining of
pink eye. (Tr. 292). The plaintiff reported no change in his vision at that time. (Tr.
294). Nancy Garcia, M.D. examined the plaintiff, and found that the plaintiff’s upper
eyelid was swollen and the plaintiff had red conjunctiva. (Tr. 295). The plaintiff was
diagnosed with acute conjunctivitis in the right eye, and prescribed medications to treat
the conjunctivitis. The plaintiff went to the emergency department due to discomfort
and redness in his right eye, on January 18, 2014. (Tr. 368). The plaintiff did not report
any vision loss at that time. (Id.). John Marini, a physician’s assistant examined the
plaintiff and found a corneal abrasion. Mr. Marini also noted that the plaintiff’s visual
acuity, with correction, was 20/20. (Tr. 370). The plaintiff was prescribed an
ophthalmic solution for the corneal abrasion. (Tr. 371).
The plaintiff went to Northpoint clinic complaining about an abscessed tooth in
4
February 2014. (Tr. 287). The plaintiff denied any symptoms related to his eyes at
that time. (Tr. 288). The findings of Arlene Spertus, M.D. were normal (Tr. 289), and
the plaintiff’s therapies were continued. (Tr. 290). In March 2014, the plaintiff saw Dr.
Garcia two times, and denied any issues on those visits. The physical exam findings of
Dr. Garcia were relatively normal at that time, and the plaintiff’s therapies were
continued. (Tr. 262-68, 282-86).
The plaintiff went to the emergency department in May 2014, for contact
dermatitis. (Tr. 246-51). Eye issues were negative. (Tr. 361). Except for a rash on the
plaintiff’s back and arms, the doctor’s physical exam findings were normal. (Tr. 363).
The plaintiff was given medication for his rash. (Tr. 364).
The plaintiff went to Northpoint clinic on June 16, 2014, for an acute upper
respiratory infection. (Tr. 246). The plaintiff did not indicate any eye issues at that time.
(Tr. 248). Physical exam findings by James Dwyer, D.O. were normal. (Tr. 249). The
plaintiff’s therapies remained unchanged, except he was prescribed medications for his
respiratory infection. (Tr. 250). The plaintiff visited Dr. Dwyer again on June 27, 2014,
for a follow-up visit. (Tr. 431-37). Dr. Dwyer’s physical exam findings were normal and
the plaintiff denied any issues related to his eyes. (Tr. 433-34). The plaintiff’s AIDS
symptoms were assessed as asymptomatic by Dr. Dwyer. (Tr. 435).
The plaintiff went to the emergency room and to see Dr. Dwyer in August 2014,
with respect to a rash and an abscess on his back. (Tr. 354-56, 424-30). The plaintiff’s
condition improved when the abscess was drained. (Tr. 355-56). The plaintiff’s AIDS
was again assessed as asymptomatic. (Tr. 427).
The plaintiff saw Dr. Dwyer for follow-up treatment regarding his AIDS in October
5
2014, February 2015, and May 2015. (Tr. 404-23). The plaintiff denied any eye issues
at each of the visits. (Tr. 405, 412, 419). The plaintiff’s AIDS was assessed as
asymptomatic by Dr. Dwyer, and Dr. Dwyer made normal physical exam findings. (Tr.
407-08, 414-15, 421-22). The plaintiff’s therapies were continued. (Tr. 410, 415, 422).
Dr. Dwyer diagnosed the plaintiff with herpes based on the plaintiff’s
hospitalization, but admitted to not reviewing the plaintiff’s hospital records. (Tr. 397).
Dr. Dwyer explained the diagnosis by stating that he “can think of few infections that
would result in corneal scarring outside of HSV.” (Tr. 401).
The plaintiff went to the emergency room on May 17, 2015, complaining of pain
in his left eye. The plaintiff indicated that the pain was a result of pepper sauce
accidently entering his eye while he was at a Mexican restaurant. (Tr. 515). The
plaintiff was found to have 20/25 vision in both eyes with correction, and the plaintiff
indicated that his vision had not changed. (Tr. 515, 517). The plaintiff was examined
by a physician’s assistant named Charles Delaney, who did not find any corneal
abrasions on the plaintiff’s eyes, but diagnosed the plaintiff with conjunctivitis in both
eyes. (Tr. 518). The plaintiff received medication for his eyes. (Id.).
The plaintiff was admitted to the hospital on May 19, 2015, for pain in the right
eye, and indicated that in 2007, he had experienced a similar “eyelid cellulitis”. (Tr.
501). The plaintiff also reported blurred vision. (Id.). Michael Estep, M.D., the
emergency room physician, diagnosed the plaintiff with visual impairment and orbital
cellulitis.(Tr. 504). A CT scan of the plaintiff’s right eye was performed by Michael B.
Gordan, M.D., a radiologist, and Dr. Gordan noted that there was soft tissue swelling
around the plaintiff’s right eye and no other acute process. (Tr. 505). Dr. Gordan
6
indicated that the swelling could be cellulitic process and advised for correlation. (Id.).
Internist Nesreen Kurtom, D.O. examined the plaintiff on May 20, 2015. (Tr.
495). Dr. Kurtom found: that the plaintiff’s pupils were equal and reactive to light; that
his extraocular muscles were intact with periorbital tenderness, erythema, and redness
in the right eye; and that his visual acuity was impaired. (Id.). Dr. Kurtom made the
following diagnoses: visual impairment; orbital cellulitis in the right eye; a history of HIV,
a history of staph infection in the right eye; and hypothyroidism and prescribed
medications. (Id.). Ranya Habash, M.D., an ophthalmologist, diagnosed the plaintiff
with a corneal ulcer and periorbital cellulitis, after examination. (Tr. 500). The plaintiff
was examined by infectious disease specialist Yared Aklilu, M.D. on May 21, 2015, who
indicated that the plaintiff had a history of staph infection in his right eye from 2007.
(Tr. 496). Dr. Aklilu doubted that the conditions from which the plaintiff suffered were
herpes simplex conjunctivitis or a corneal ulcer, and suggested treating the plaintiff for
staph and strep infections. (Tr. 498). On May 22, 2015, the plaintiff was discharged
from the hospital. (Tr. 493).
The plaintiff saw Dr. Dwyer on May 29, 2015, for a follow up appointment
regarding his eye. (Tr. 397-403). Dr. Dwyer indicated that he had not reviewed the
records from the plaintiff’s hospital stay, and noted the plaintiff’s condition as herpes
simplex with other ophthalmic complications. (Tr. 397). Dr. Dwyer thought the plaintiff’s
condition had somewhat remitted, but suggest he visit an ophthalmologist. (Id.). The
findings of Dr. Dwyer were basically normal. (Tr. 400). The specific findings regarding
the plaintiff’s eyes were “PERRL/EOM intact, conjunctiva and sclera clear with out
nystagmus.” (Id.). The plaintiff’s AIDS symptoms were assessed as asymptomatic by
7
Dr. Dwyer. (Tr. 401). Dr. Dwyer’s impressions and recommendations regarding the
plaintiff noted “herpes simplex with other ophthalmic complications” and Dr. Dwyer
explained that he “can think of few infections that would result in corneal scarring
outside of HSV”. (Id.). The plaintiff received a prescription. (Id.).
In August 2015, October 2015, February 2016, and March 2016, the plaintiff saw
Dr. Dwyer. (Tr. 389-96, 691-712). On each visit, the plaintiff denied any eye issues,
(Tr. 390, 692-699, 707), the doctor made normal examination findings, (Tr. 393-94,
694-95, 701-02, 709-10), and the doctor noted the plaintiff’s AIDS symptoms to be
asymptomatic. (Tr. 393, 695, 702, 710). Antiretroviral therapies were continued on the
plaintiff. (Id.).
On a form entitled Medical Report on Adult with Allegation of Human
Immunodeficiency Virus (HIV) Infection dated October 12, 2015, Dr. Dwyer checked off
the box indicating that the plaintiff’s HIV infection was diagnosed via laboratory testing
confirming HIV infection. (Tr. 485). Dr. Dwyer also checked the box indicating the
herpes simplex virus causing “mucocutaneous infection (e.g. oral, genital, perianal)
lasting for 1 month or longer, or infection at a site other than the skin or mucous
membranes (e.g. bronchitis, pneumonitis, esophagitis, or encephalitis), or disseminated
infection” was applicable to the plaintiff. (Id.). There were no other remarks on the
form. (Tr. 485-87).
While the plaintiff treated at Northpoint clinic, he was tested for HIV viral load
and CD4 count. (Tr. 271-72, 300, 302, 320-21, 326, 342, 349, 440, 442, 449, 454-55,
458, 462, 467, 471, 475, 728-29, 735, 737). The plaintiff’s viral load ranged from less
than twenty (i.e. undetectable) to 510, with an average viral load of 78. (Tr. 271, 300,
8
320, 326, 349, 440, 454-55, 467, 471, 728, 735).2 The plaintiff’s CD4 counts ranged
from 825 to 1218, and the average was 997. (Tr. 272, 308, 321, 342, 442, 449, 458,
462, 475, 729, 737).3
III. Medical Evidence - Psychological Impairments
The plaintiff began treating with psychiatrist Amy Kosches, M.D. in March 2012,
for a depressed mood, issues related to sleep, and increased anxiety. (Tr. 386). The
plaintiff indicated that he was prescribed 10 mg of Lexapro by his primary care
physician and had been taking the medication for 8 years. (Id.). Upon examination, Dr.
Kosches found the plaintiff had a depressed and anxious mood, and a constricted
affect. (Tr. 387). Dr. Kosches increased the plaintiff’s Lexapro dosage to 20 mg. (Tr.
388).
The plaintiff saw Branislav Stojanovic, M.D., a psychiatrist , in November 2013,
for complaints of depression, and denied any past psychiatric history. (Tr. 241). The
mental status exam findings by Dr. Stojanovic were normal, except for a flat affect and
a depressed mood. (Tr. 243). On the mental status evaluation, Dr. Stojanovic noted in
the Liabilities and Special Needs section that the plaintiff had poor coping skills. (Id.).
Dr. Stojanovic diagnosed the plaintiff with major depressive disorder and assigned the
Global Assessment of Functioning (GAF) of 75 (Tr. 242), indicative of no significant
2
“Viral loads that are consistently less than 200 copies/ml indicate that the virus
is adequately suppressed and that the risk of disease progression is low.” Lab Tests
Online, HIV Viral Load, https://labtestsonline.org/tests/hiv-viral-load (Last visited April 4,
2018).
3
“A normal CD4 count ranges from 500–1,200 cells/mm3 in adults and teens.”
Lab Tests Online, CD4 Count, https://labtestsonline.org/tests/cd4-count (Last visited
April 4, 2018).
9
mental symptoms. See, American Psychiatric Ass’n, Diagnostic and Statistical Manual
of Mental Disorders, 32-34 (4th ed. 2000, Text Rev.) (describing the GAF scale used in
Axis V of a diagnostic multiaxial evaluation. A GAF score of 71-80 is indicative of no
more than a slight impairment). Dr. Stojanovic prescribed medications. (Tr. 244).
The plaintiff saw Dr. Stojanovic in December 2013, and reported that he felt
better. (Tr. 240). At the visit, the plaintiff indicated that he had some anxiety and
requested Valium. (Id.). The plaintiff was prescribed 10 mg of Valium as needed. (Id.).
The plaintiff visited Dr. Kosches in July 2014, and indicated that he was experiencing
some insomnia and some forgetfulness. (Tr. 384). At that time, the plaintiff also
indicated that his mood was fair. (Tr. 383). Upon examination, Dr. Kosches found the
plaintiff to have a depressed and anxious mood, as well as a constricted affect, but
otherwise a normal mental status. (Tr. 385). Dr. Kosches diagnosed panic disorder,
continued the Lexapro, and prescribed the plaintiff additional medications. (Tr. 383).
The plaintiff saw Dr. Kosches in August 2014, at which time the plaintiff indicated
that he never began taking one of the medications prescribed by Dr. Kosches the
month prior, because the plaintiff thought he had Stevens-Johnson syndrome from his
HIV medications and planned to visit his primary care doctor the same day. (Tr. 383).
The plaintiff reported that his mood was fair, and the plaintiff was continued on his
same medications. (Id.).
The plaintiff was examined by a psychologist, Gloria Montes de Oca, Ph.D., on
behalf of Miami-Dade College in April 2016. (Tr. 522-41). The mental status exam
findings were normal. (Tr. 529-30). Dr. Montes de Oca diagnosed the plaintiff with
narcissistic personality disorder, paranoid personality features, and unspecified
10
depressive disorder, by history, in remission. (Tr. 538). Dr. Montes de Oca did not
think the plaintiff’s mental conditions were disabling, and specifically stated with respect
to the plaintiff that the plaintiff “does not presently demonstrate any acute mental health
symptoms that would impair his ability to function in daily life.” (Tr. 539).
In addition to the above, the plaintiff indicated that he had the ability to go to
school, care for his own personal needs, do household chores, drive, exercise at the
gym, and socialize with his friends. (Tr. 164-66, 263, 283, 293, 314, 330, 337, 433,
526, 530).
IV. State Agency Consultants
Gloria Hankins, M.D., a state agency consultative physician, reviewed the
plaintiff’s record in September 2014. Dr. Hankins opined that the plaintiff retained the
ability to perform medium work with no additional physical restrictions (Tr. 80-81). The
plaintiff’s record was also reviewed by Beth Klein, Ph.D., a state agency consultative
psychologist, who opined that the plaintiff retained the ability to perform simple work
with moderate limitations in dealing with others and responding appropriately to
changes in the work setting (Tr. 82-84).
V. Plaintiff’s Testimony and Reporting
The plaintiff testified that he previously worked as a sales consultant, manager,
and assistant manager in the telecommunications business. (Tr. 32). The plaintiff also
indicated that his past work includes administrative assistant duties and bartending.
(Tr. 32-33). At the time of the hearing, the plaintiff had a driver’s license and drove.
(Tr. 35-36). The plaintiff testified that he has problems getting along with authorities
11
and with others (Tr. 43) and was kicked out of school for his inability to get along with
others. (Tr. 47). The plaintiff attended college until June 2015. (Id.). The plaintiff
indicated that in a typical day he walks his two (2) dogs, prepares himself something to
eat and cleans up in the kitchen area or around the house. (Tr. 53). The plaintiff
testified that he does not live alone, and reported living with his significant other. (Tr. 53,
263). The plaintiff reported exercising 5 times a week and doing cardiovascular
exercises as well as weights. (Tr. 263).
VI. Vocational Expert Testimony
A vocational expert (VE) testified at the ALJ hearing. (Tr. 56-60). The ALJ
asked the VE to assume an individual with the plaintiff’s age, education, work
experience, and residual functional capacity (RFC). (Tr. 56-59). The VE testified that
while that type of individual could not perform the plaintiff’s past relevant work, such an
individual would be capable of performing other work in the national economy, such as:
a hand packager; a box bender; a collator; and a small parts assembler. (Tr. 57-59).
ALJ’S DECISION-MAKING PROCESS
“Disability” is defined 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 has lasted or can last for a continuous period of not less than twelve months
. . . .” 42 U.S.C. §§ 416(I); 423(d)(1); 20 C.F.R. § 404.1505 (2017). The impairments(s)
must be severe, making the plaintiff “unable to do his previous work . . . or any kind of
substantial gainful work which exists in the national economy . . . .” 42 U.S.C. § 423(d)(1);
20 C.F.R. § 404.1505-404.1511.
12
To determine whether the plaintiff is entitled to disability benefits, the ALJ must
apply a five-step analysis. 20 C.F.R. § 404.1520(a)-(f). The ALJ must first determine
whether the plaintiff is presently employed or engaging in substantial gainful activity. 20
C.F.R. § 404.1520(a)(4)(1)(I). If so, a finding of non-disability is made and the inquiry ends.
Id..
Second, the ALJ must determine whether the plaintiff suffers from a severe
impairment or a combination of impairments. 20 C.F.R. § 404.1520(a)(1)(ii). If the plaintiff
does not, then a finding of non-disability is made and the inquiry ends. Id..
Third, the ALJ compares the plaintiff’s severe impairments to those in the listings
of impairments located in Appendix I to Subpart 404 of the Code of Federal Regulations.
20 C.F.R.§ 404.1520(d), Subpart P, Appendix I. 20 C.F.R. § 404.1520(a)(1)(iii). Certain
impairments are so severe, whether considered alone or in conjunction with other
impairments, that if such impairments are established, the regulation requires a finding of
disability without further inquiry into the plaintiff’s ability to perform other work. See Gibson
v. Heckler, 762 F.2d 1517, 1518 n.1 (11th Cir. 1985). If the impairment meets or equals a
listed impairment, disability is presumed, and benefits are awarded. 20 C.F.R. §
404.1520(d).
Fourth, the ALJ must determine whether the plaintiff has the “residual functional
capacity” to perform his or her past relevant work. “Residual functional capacity”(“RFC”),
is defined as “what you can do despite your limitations.” 20 C.F.R. § 404.1520(a)(1)(iv).
This determination takes into account “all relevant evidence,” including medical evidence,
the claimant’s own testimony, and the observations of others. Id. If the plaintiff is unable
13
to perform his or her past relevant work, then a prima facie case of disability is established
and the burden of proof shifts to the Commissioner to show at the fifth step that there is
other work available in the national economy which the plaintiff can perform. 20 C.F.R. §
404.1520(e)-(9); See Barnes v. Sullivan, 932 F.2d 1357, 1459 (11th Cir. 1991) (holding the
claimant bears the initial burden of proving that he is unable to perform pervious work).
Fifth, if the plaintiff cannot perform his or her past relevant work the ALJ must decide
if the plaintiff is capable of performing any other work in the national economy. 20 C.F.R.
§ 404.1520(a) (1)(v).
ALJ’S FINDINGS
At step one, the ALJ determined the plaintiff had not engaged in substantial gainful
activity since February 10, 2012, the alleged onset date. 20 C.F.R. § 404.1571 et seq.).
(Tr. 13).
At step two, the ALJ determined that the plaintiff has the severe impairments of
“AIDS and an affective and anxiety disorder (20 C.F.R. 404.1520(c)).” (Id.). The ALJ
found these impairments “impose more than a minimal restriction of the claimant’s ability
to perform basic work activity and, thus, are severe impairments.” (Id.).
At step three, the ALJ found the plaintiff “does 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. § 404.1520(d),
404.1525 and 404.1526).” (Id.). The ALJ also found the plaintiff’s “mental impairment does
not meet or medically equal the criteria of listing 12.04.” (Id.).
In the decision, the ALJ indicated that “[t]he severity of the claimant’s mental
14
impairment does not meet or medically equal the criteria of listing 12.04.” (Id.). In making
the aforementioned finding, the ALJ considered whether the “paragraph B” criteria were
satisfied. (Id.). In order to satisfy the “paragraph B” criteria, “the mental impairment must
result in at least two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation, each of
extended duration. A marked limitation means more than moderate but less than extreme.
Repeated episodes of decompensation, each of extended duration, means three episodes
within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks.” (Tr.
13-14). The ALJ noted the plaintiff has mild restrictions in activities of daily living. (Tr. 16).
The ALJ based this finding on the plaintiff’s admission that he lives with his significant other
and can take care of personal needs such as bathe and dress. (Id). The plaintiff prepares
simple meals, does the laundry and light cleaning. (Id). The plaintiff also cares for two
dogs, which includes feeding and walking the dogs and shops in stores. (Id.). The plaintiff
noted that he is in contact with close friends on a daily basis, eats in restaurants, watches
television, and that he attended college through June 2015. (Id.).
The ALJ found that the plaintiff has moderate difficulties in social functioning. This
finding was based on the fact that the plaintiff has been in a long-term relationship for 20
years, is able to drive and leave his home alone, socializes with friends once a week,
exercises at a gym five times a week, but has difficulty getting along with others, especially
in an academic setting, and his suspension was not due to an affective disorder or anxiety
disorder. (Id.).
15
Regarding concentration, persistence or pace, the ALJ found the plaintiff has
moderate difficulties. (Tr. 16). The ALJ relied on the plaintiff self reported statements that
he “attended three years of college and was also a student at Miami-Dade College of
Nursing until June 2015.” (Id.). The plaintiff described his past relevant work as sales
manager and representative and administrative assistant. The mental status examinations
of Drs. Stojanovic and Kosches indicated that the plaintiff’s “attention, concentration and
memory were intact, along with cognition, intelligence, and orientation”. (Id.). Dr. Montes
de Oca also observed that the plaintiff’s “attention, concentration, and memory were
normal.” (Id.). The ALJ also found no episodes of decompensation of extended duration.
(Id.).
The ALJ noted that “[b]ecause the claimant’s mental impairments do not cause at
least two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes of
decompensation, each of extended duration, the ‘paragraph B’ criteria are not
satisfied.” (Id.). The ALJ assessed whether the “paragraph C” criteria were satisfied,
and noted that the evidence failed to establish the presence of “paragraph C” criteria.
(Tr. 17).
At step four, the ALJ determined the plaintiff
has the residual functional capacity to perform medium work
as defined in 20 C.F.R. 404.1567(c), except: The claimant
retains the capacity to understand, remember and carry out
short, simple instructions, make simple decisions, attend and
concentrate for extended periods, accept instructions and
respond appropriately to changes in the routine work setting.
He is able to work with others without being distracted and is
able to compete a normal workweek with no more than mild
interference from mental symptoms. The claimant is able to
interact occasionally with supervisors and co-workers and have
16
no contact with the general public.
(Tr. 17).
The ALJ found the plaintiff’s
medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in
the record . . .
(Tr. 18).
The ALJ opined that the record demonstrated the plaintiff’s HIV status was
asymptomatic, his CD4 levels steadily increased over the period in question, his viral
load was less than 20, he had only a small amount of treatment by a mental health
professional, had been given a mild anti-depressant by his primary care doctor, and that
the plaintiff’s allegation that he had been suspended from school as a result of a mental
health condition was not supported by the record. (Id.).
The ALJ noted that despite claims by the plaintiff of eye problems the record
does not support the allegations. (Tr. 19). The ALJ further noted that the plaintiff’s
treating source did not provide an opinion as to the plaintiff’s mental or physical
limitations. (Id.). The ALJ accorded the opinion of Dr. Dwyer great weight because it
was consistent with his lack of objective findings and the plaintiff’s asymptomatic HIV
status. (Id.). The ALJ accorded great weight to the opinion of the State agency
medical consultant who noted that the plaintiff would be able to perform medium work.
(Id.). The ALJ asserted that the opinion of Dr. Gloria Hankins is supported by the lack
of objective findings and the progress notes of Dr. James Dwyer. (Id.). The ALJ also
17
accorded great weight to the State agency psychological consultant, because that
opinion is consistent with the overall medical evidence and the activities of daily living
reported by the plaintiff. (Id.)
In summary, the ALJ opined that the RFC was supported by the opinions of the
State agency medical and psychological consultants. The ALJ noted that the plaintiff
had little mental health treatment, and an April 2016 mental health status did not
support findings of anxiety or depression. (Id.). The ALJ indicated that the plaintiff’s
HIV status had been asymptomatic with basically no infections other than a herpes flare
up. (Id.). The ALJ further noted that the plaintiff had been able to attend school, attend
to his personal needs, do household chores, drive, work out in a gym, and socialize.
(Id.). The ALJ found that based on the VE’s classification of the plaintiff’s past relevant
work, the plaintiff is unable to perform his past relevant work. (Tr. 20).
At step five, the ALJ determined the plaintiff was not disabled because there
were jobs that existed in significant numbers in the national economy that the plaintiff
could perform. (Id.). In making that determination, the ALJ relied on the testimony of
the VE, which the ALJ found was consistent with the information contained in the
Dictionary of Occupational Titles. (Tr. 21).
STANDARD OF REVIEW
The Court must determine whether it is appropriate to grant either party’s motion
for summary judgment. Judicial review of the factual findings in disability cases is limited
to determining whether the record contains substantial evidence to support the ALJ’s
findings and whether the correct legal standards were applied. 42 U.S.C. § 405(g); see
18
Wolfe v. Chater, 86 F.3d 1072, 1076 (11th Cir. 1996) (holding the reviewing court must not
re-weigh evidence or substitute their discretion). On judicial review, decisions made by the
defendant (the Commissioner of Social Security) are conclusive if supported by substantial
evidence and if the correct legal standard was applied. 42 U.S.C. § 405(g) (2006); see
Kelley v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999). Eleventh Circuit Courts have
determined that “substantial evidence” is more than a scintilla, but less than a
preponderance and is generally defined as such relevant evidence which a reasonable
mind would accept as adequate to support a conclusion. See Miles v. Charter, 84 F.3d
1397, 1400 (11th Cir. 1996). In determining whether substantial evidence exists, “the court
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the decision.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
The restrictive standard of review, however, applies only to findings of fact, no
presumption of validity attaches to the Commissioner’s conclusions of law, including the
determination of the proper standard to be applied in reviewing claims. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145011456 (11th Cir. 1991) (holding “Commissioner’s failure to
apply the correct law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates reversal.”);
accord Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The reviewing court must be satisfied that the decision of the Commissioner is
grounded in the proper application of the appropriate legal standards. See Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993). The court may not, however, decide the facts
anew, reweigh evidence or substitute its judgment for that of the ALJ, and even if the
19
evidence weighs against the Commissioner’s decision, the reviewing court must affirm if
the decision is supported by substantial evidence. See Miles, 84 F.3d at 1400; see also
Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). Factual evidence is presumed valid,
but the legal standard applied is not. See Martin, 894 F.2d at 1529. The Commissioner
must apply the correct legal standard with sufficient reasoning to avoid reversal. (Id.).
LEGAL ANALYSIS
I. Substantial Evidence Supports the ALJ’s Finding that the Plaintiff’s Condition
Did not Meet a Listed Impairment
Substantial evidence in the record supports the decision made by the ALJ in this
matter. As indicated by the ALJ, the Commissioner of Social Security has a five-step
evaluation process to determine whether a plaintiff is disabled. (Tr. 11-13). At step
three of the evaluation process, the ALJ must determine if a plaintiff’s impairment or
combination of impairments is severe enough to meet or medically equal the criteria of
those impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 12). See
20 C.F.R. §404.1520(a)(4)(iii).
In order for a plaintiff to meet a listing requirement, the plaintiff must have a
diagnosis that is included in the listings and is required to provide medical reports that
document that he/she met all of the definitive criteria of the listing. See Wilson v.
Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002); 20 C.F.R. § 404.1525(a)-(d). To meet
the requirement of medically equaling a listing, the plaintiff’s impairment must be “at
least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §
404.1526(a); see Wilson, 284 F.3d at 1224. The Supreme Court has opined that “[a]n
20
impairment that manifests only some of those criteria, no matter how severely, does not
qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
It is possible for a plaintiff to meet the HIV listing if there is medical
documentation regarding the plaintiff that establishes the herpes simplex virus that
causes: “a. Mucocutaneous infection (for example, oral, genital, perianal) lasting one
month or longer; or b. Infection at a site other than the skin or mucous membranes (for
example, bronchitis, pneumonitis, esophagitis, or encephalitis); or c. Disseminated
infection.” 20 C.F.R. pt. 404, subpt. P, app. 1, Listing 14.08(D)(2); see also 20 C.F.R.
pt. 404, subpt. P, app. 1, Listing 14.00(F)(3). These require documentation of proof of
the HIV infection (that is, opportunistic conditions or diseases). Documentation may
include laboratory evidence or “other generally acceptable methods consistent with the
prevailing state of medical knowledge and clinical practice.” 20 C.F.R. pt. 404, subpt.
P, app. 1, Listing 14.00(E)(2).
The undersigned notes that even though Dr. Dwyer checked the box on a form
indicating that the plaintiff satisfied the above-mentioned criteria, there is insufficient
medical evidence in the record to support such an opinion. There is one herpes
diagnoses on the record made by Dr. Dwyer on May 29, 2015, when Dr. Dwyer
diagnosed “[h]erpes simplex with other ophthalmic complications” after the plaintiff had
been hospitalized for an eye infection. (Tr. 401). Even though Dr. Dwyer, based on the
plaintiff’s hospitalization, diagnosed the plaintiff with herpes, Dr. Dwyer indicated that he
had not reviewed the plaintiff’s hospital records. (Tr. 397). Dr. Dwyer only noted that
his diagnosis was due to the fact that he “can think of few infections that would result in
corneal scarring outside of HSV.” (Tr. 401). Conversely, during the plaintiff’s hospital
21
stay, an infectious disease doctor, Dr. Aklilu doubted that the plaintiff’s eye condition
was due to herpes, but rather was due to staph or strep. (Tr. 498). Accordingly, there
is not sufficient medical evidence in the record to establish that the plaintiff’s eye
condition was due to herpes rather than some other cause. 20 C.F.R. Pt. 404, subpt.
P, app.1, Listings 14.00(F)(3), 14.08(D)(2).
Moreover, even if the plaintiff provided enough documentation to demonstrate
the presence of herpes, the eye surface is a mucous membrane, causing a herpes
infection of the eye to be a mucocutaneous infection. As noted above, in order to
satisfy Listing 14.08(D)(2)(a), a mucocutaneous herpes infection must last one month
or longer in duration. However, even when Dr. Dwyer diagnosed the plaintiff’s eye
condition as herpes, Dr. Dwyer indicated that the plaintiff’s condition had somewhat
remitted. (Tr. 397). In August 2015, the plaintiff denied any eye issues and the eye
examination findings by Dr. Dwyer were normal. (Tr. 390, 392). Based on the
foregoing, there is insufficient evidence to demonstrate the plaintiff’s infection met the
requirement for duration described in Listing 14.08(D)(2)(a), and substantial evidence
supports the ALJ’s finding that the plaintiff’s conditions failed to meet a listed
impairment. (Tr. 13-17). In Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986),
the Court found
that while the ALJ did not explicitly state that the appellant's impairments
were not contained in the listings, such a determination was implicit in the
ALJ's decision. The ALJ was obviously familiar with the sequential
evaluation process. His statement of the relevant law recognized that an
affirmative determination regarding the applicability of any Appendix 1
listing, the third step of the disability analysis, would require a
determination that the appellant was disabled. Yet the record indicates
that the ALJ reached the final two steps of the analysis when he
determined that the appellant was unable to perform his past work and
22
that he did have the residual capacity for at least light work. While
Appendix 1 must be considered in making a disability determination, it is
not required that the Secretary mechanically recite the evidence leading to
her determination. There may be an implied finding that a claimant does
not meet a listing.
II. The ALJ Properly Assessed the Plaintiff’s RFC and Substantial Evidence
Supports the ALJ’s Evaluation of the Plaintiff’s Subjective Complaints
At step four, in order for the ALJ to determine if the plaintiff was able to perform
his past relevant work, the ALJ was required to assess the plaintiff’s RFC. (Tr. 12).
See 20 C.F.R. § 404.1520(e); Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004).
A plaintiff’s RFC is the most the plaintiff can do despite his/her limitations. The RFC is
based on an evaluation of the relevant evidence in the record. See 20 C.F.R. §§
404.1520(e), 404.1545(a)(1), (a)(3); Social Security Ruling (SSR) 96-8p, 1996 WL
374184. The ALJ must assess the plaintiff’s RFC at the hearing level. See 20 C.F.R.
§404.1546(c); SSR 96-5p, 1996 WL 374183; see also, 20 C.F.R. § 404.1527(d)(2)
(stating that an assessment of the claimant’s RFC is an issue reserved for the
Commissioner); Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010).
In assessing the plaintiff’s RFC, the ALJ properly considered the relevant
evidence from the record. (Tr. 17-19). See 20 C.F.R. § 404.1545(a)(3). After
reviewing the record, the ALJ found that the plaintiff had the RFC, with some mental
restrictions, to perform medium work. (Tr. 17). See 20 C.F.R. §404.1567(c) (defining
medium work); see also SSR 83-10, 1983 WL 31251, at *3 (further defining medium
work). As noted by the ALJ, the record contains significant information that supports
the ALJ’s RFC finding. For example, the plaintiff had little mental health treatment. (Tr.
23
19, 240-44, 383-88). Moreover, Dr. Montes de Oca’s April 2016 mental status exam
findings were normal, (Tr. 19, 529-30), and Dr. Montes de Oca opined that the plaintiff
did not have any limitations in activities of daily living because of mental symptoms.
(Tr. 539). In addition, Dr. Dwyer continually found that the plaintiff’s AIDS was
asymptomatic. (Tr. 19, 393, 401, 408, 415, 422, 427, 435, 695, 702, 710).
Furthermore, as noted by the ALJ, the plaintiff indicated that he was able to go to
school, care for his personal needs, drive, do household chores, exercise at a gym, and
socialize with his friends. (Tr. 19, 164-66, 263, 283, 293, 314, 330, 337, 433, 526, 530).
While it is not dispositive, a plaintiff’s activities may demonstrate that the plaintiff’s
claims of symptoms, including pain, are not as limiting as alleged. See 20 C.F.R. §
404.1529(c)(3)(I); SSR 16-3p, 2016 WL 1119029; Dyer v. Barnhart, 395 F.3d 1206,
1212 (11th Cir. 2005); Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987).
The plaintiff alleges that the ALJ’s assertion that his mental impairment was not
disabling was inconsistent with the government’s position taken in a case regarding the
plaintiff’s expulsion from Miami-Dade College. The plaintiff did not cite to any law in
which different governmental agencies are required to have the same position in
unconnected litigation. Moreover, the plaintiff has not shown that the measure of
disability for Social Security is the same as the measure whether someone can be
excluded from education at a public college due to mental impairment. In contrast,
“[t]he SSA regulations provide a decision by any nongovernmental or governmental
agency concerning whether an individual is disabled, based on that agency's own rules,
does not constitute an SSA decision regarding whether that individual is disabled. 20
C.F.R. § 404.1504.” Ostborg v. Comm'r of Soc. Sec., 610 F. App'x 907, 914 (11th Cir.
24
2015). Accordingly, the undersigned finds that substantial evidence supports the ALJ’s
RFC assessment of the plaintiff.
At step four of the analysis, the ALJ determined that the plaintiff was not able to
perform his past relevant work. (Tr. 20). See 20 C.F.R. § 404.1520(a)(4)(iv), (f). This
led to the necessity of the ALJ’s reaching the fifth step of the analysis, and the
determination of whether the plaintiff could perform other work in the national economy.
See 20 C.F.R. §404.1520(a)(4)(v), (g); Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th
Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). When a plaintiff
demonstrates that he/she is unable to perform his/her past relevant work, the burden
then shifts to the Commissioner to show that other work exists in the national economy
that the plaintiff is capable of performing based on the plaintiff’s RFC and other
vocational abilities. See Doughty, 245 F.3d at 1278 n. 2; Jones, 190 F.3d at 1228. It is
still necessary, however, in order for the plaintiff to meet his/her burden of showing
he/she is disabled, for the plaintiff to demonstrate that he/she is unable to perform the
other jobs identified by the Commissioner. See Doughty, 245 F.3d at 1278 n.2; Jones,
190 F.3d at 1228.
III. Substantial Evidence Supports the ALJ’s Reliance on VE Testimony in Finding
the Plaintiff Could Perform Other Work
In order to assist in the determination of whether the plaintiff is able to perform
other work in the national economy, the ALJ received testimony from a VE. (Tr. 56-60).
See 20 C.F.R. § 404.1560(c); Phillips, 357 F.3d at 1242-44. The ALJ asked the VE to
assume an individual with the plaintiff’s age, education, work experience, and RFC. (Tr.
25
56-59). The VE testified that while that type of individual could not perform the
plaintiff’s past relevant work, such an individual would be capable of performing other
work in the national economy, such as: a hand packager; a box bender; a collator; and
a small parts assembler. (Tr. 57-59). The VE’s testimony, together with the MedicalVocational Guidelines, gave the ALJ the significant evidence necessary to determine
that the plaintiff could perform other work in the economy and that the plaintiff is not
disabled. (Tr. 20-21, 57-59). See 20 C.F.R. § 404.1569, 404.1569a; 20 C.F.R. pt. 404,
subpt. P, app. 2, table no. 3, § 203.29; Phillips, 357 F.3d at 1242-44; Wilson, 284 F.3d
at 1227; Jones, 190 F.3d at 1229.
IV. The Plaintiff Has Not Shown a Need to Have His Record Reviewed By a
Physician Who Has Been Certified by the American Academy of HIV/AIDS
Medicine
It is the basic obligation of an ALJ to “develop a full and fair record.” Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); see Graham v. Apfel, 129 F.3d 1420,
1422 (11th Cir. 1997). “However, there must be a showing of prejudice before it is found
that the claimant's right to due process has been violated to such a degree that the
case must be remanded to the Secretary for further development of the record.”
Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997). When the record contains
adequate evidence for an ALJ to make an informed decision, It is not a requirement for
an ALJ to gather medical expert testimony. See Wilson v. Apfel, 179 F.3d 1276, 1278
(11th Cir. 1999). In this matter, the plaintiff does not demonstrate that medical expert
testimony was necessary to allow the ALJ to make a decision. The plaintiff also does
26
not demonstrate that he suffered prejudice with respect to the development of the
record.
CONCLUSION AND RULING
The undersigned finds the ALJ’s findings and ultimate decision were both based
on substantial evidence and were proper. In accordance with the foregoing, it is
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary
Judgment (DE# 41, 09/14/2017) is GRANTED and that the Plaintiff’s Motion for
Summary Judgment (DE# 43, 9/20/2017) is DENIED. The Clerk of Court is directed to
mark this case as CLOSED.
DONE AND ORDERED at the United States Courthouse, Miami, Florida this 22nd
day of May, 2018.
_______________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
All counsel of record
Adem Albra, Pro Se
860 NE 34 Street
Ft Lauderdale, Fl 33334
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?