Hospedales v. Colvin
ORDER granting 24 plaiintiff's Motion for Summary Judgment; denying 25 defendant's Motion for Summary Judgment. Remanding case. Closing Case. Motions Terminated: 24 Plaintiff's MOTION for Summary Judgment and Memoran dum in Support filed by Joan Hospedales, 25 Defendant's MOTION for Summary Judgment with Supporting Memorandum of Law filed by Commissioner, Social Security Administration. Signed by Magistrate Judge John J. O'Sullivan on 12/7/2017. (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. 16-24361-CIV-O’SULLIVAN
NANCY A. BERRYHILL1
Acting Commissioner of Social Security
THIS MATTER is before the Court on the Plaintiff’s Motion for Summary
Judgment (DE# 24, 04/23/2017) and the Defendant’s Motion for Summary Judgment
(DE# 25, 05/23/2017). The plaintiff seeks reversal of the Social Security
Administration’s denial of Supplemental Security Income (“SSI”) Benefits. In the
alternative, the plaintiff requests a remand for further administrative proceedings. The
complaint was filed pursuant to the Social Security Act, 42 U.S.C. §405(g) (“Act”) and is
properly before the Court for judicial review of a final decision of the Commissioner of
the Social Security Administration (“SSA”). On January 31, 2017, the parties consented
to Magistrate Jurisdiction (DE# 18, 01/31/2017), and this matter was referred to the
undersigned for entry of judgment by Judge Altonaga on February 1, 2017 (DE #20,
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner, Carolyn W. Colvin, as the defendant in this suit.
2/1/17). Having carefully considered the filings and applicable law, the undersigned
enters the following Order.
On March 15, 2012, the plaintiff, Joan Hospedales, filed an application for a
period of disability and disability insurance benefits under Title II of the Social Security
Act and a concurrent application for supplemental security income under Title XVI of
the Act. (Tr. 74, 247-56). In these two applications, the plaintiff indicated that her
disability began on June 9, 2011. (Id.). The applications underwent the initial level of
administrative review on August 17, 2012, and they were denied. (Tr. 118-42). The
applications were reviewed and considered again after the plaintiff filed a request. The
claims were again denied on November 14, 2012. The plaintiff then filed a timely
written request for hearing on January 15, 2013. 20 C.F.R. §§404.929 et seq. and
416.1429 et seq; (Tr. 150-54).
The Administrative Law Judge (“ALJ”) held a video hearing on April 1, 2015. 20
C.F.R. §§404.936(c) and 416.1436(c); (Tr. 38-73). An attorney represented the plaintiff
in connection with her applications during the hearing and presented evidence on her
behalf. (Id.). Pursuant to 20 C.F.R. §§404.1560(b)(2), 404.1566(e), 416.960(b)(2), and
416.966(e), the Commissioner engaged a vocational expert (VE). (Tr. 68-72). The VE
appeared at the hearing and provided testimony. (Id.). The VE “testified that a person
with plaintiff’s RFC and vocational profile would be capable of performing plaintiff’s past
All references to “Tr.” refer to the transcript of the Social Security Administration record filed
on January 30, 2017. (DE# 17, 01/30/2017). The page numbers listed in this document refer to the bold
numbers 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.
relevant work as a nursing aide as that job is generally performed in the national
economy.”3 Def.’s Mem. at 3; see Tr. 70, 72, 334. The Dictionary of Occupational Titles
(“DOT”) designates the job of nursing aide, as the job is generally performed in the
national economy, as performed at a medium-exertion level. (Tr. 70, 72, 343). The VE
also testified that in her opinion, if the DOT were to reevaluate the exertional level of the
job of a nurse’s aid, the job would be classified as heavy. (Tr. 72).
Following the hearing, the plaintiff amended her alleged onset date of disability
to January 1, 2012. (Tr. 12, 343-44). After the hearing, the ALJ left the record open at
the plaintiff’s request to allow the plaintiff to submit additional evidentiary records. (Tr.
58). On April 2, 2015, the plaintiff provided additional records from Damian Lue, O.D.,
and from Taylor/Caplin Breast Health Center. (Tr. 1415-16).
The ALJ found that the plaintiff was disabled from January 1, 2012, through
March 19, 2013. Following the ALJ’s findings, the plaintiff timely appealed. (Tr. 5). The
Appeals Council denied the plaintiff’s request for review. (Tr. 1-3). The plaintiff
thereafter filed this action for review of the Commissioner’s decision. This case is ripe
for judicial review under both 42 U.S.C. §§ 405(g) and 1383(c)(3).
At the time of the hearing on April 1, 2015, the plaintiff was sixty-two years (62)
old, single, and living with her disabled daughter. (Tr. 45). The plaintiff completed
primary school and vocational school. (Tr. 45, 47). In vocational school, the plaintiff
RFC stands for residual functional capacity.
learned “typing, bookkeeping, and shorthand.” (Id.). The plaintiff was a childcare
provider until 2002. (Tr. 49). She worked as a child monitor. (Tr. 49). The plaintiff is a
Certified Nursing Assistant (“CNA”). (Tr. 49). From 2003-2011, the plaintiff worked at
Triad Senior Living (“Triad”) as a CNA. (Tr. 48). The plaintiff alleged that she stopped
working as a CNA at Triad because she was experiencing problems related to prolapse.
Summary of Medical Evidence
The plaintiff originally alleged that her disability started in June of 2011. (Tr. 46).
Following the hearing on April 1, 2015, the plaintiff amended that date to January 1,
2012. (Tr. 57, 343-44). The plaintiff testified that her symptoms from prolapse forced
her to stop working by the end of June 2011. (Tr. 48). The plaintiff indicated that in
2011, walking was a problem due to the prolapse because it gave a sensation of the
womb and she had urinary leakage. (Tr. 55). At the ALJ hearing, in explaining the lack
of early documentation regarding the plaintiff’s prolapse, the plaintiff’s attorney noted
that “once the cancer showed up the prolapse almost non-as if it didn’t exist.” (Tr. 57).
In January of 2012, the plaintiff was diagnosed with cancer in the left breast. (Tr.
1135). On February 15, 2012, the plaintiff was admitted to the Adult Surgical Ward of
Eric Williams Medical Sciences Complex-X-Ray Radiology Department. (Tr. 346) The
admitting diagnosis was an “OT: mastectomy and axillary clearance.” (Id.). The
operation was performed, and the plaintiff was discharged on February 17, 2012. (Id.).
On February 20, 2012, the plaintiff “underwent left modified radical mastectomy,” and
on February 28, 2012, surgery was performed to remove the cancer from her left
breast. (Tr. 58, 1135). Beginning June 8, 2012, the plaintiff underwent two cycles of
chemotherapy. (Tr. 1135). In September 2012, the plaintiff received endocrine therapy
with Femara, and the therapy continued through June 1, 2014. (Tr. 1147, 1213). Clinic
notes dated September 7, 2012, show that the plaintiff experienced no acute distress,
and had a point score of zero, an affect that was appropriate, and a gait and
coordination that were within normal limits. (Tr. 1248).
Clinic notes dated September 26, 2012, indicate that the plaintiff reported that
she was feeling well overall and that she denied any other complaints. (Tr. 1237). The
same clinic notes also indicate that the plaintiff was not under any acute distress, was
negative for gastrointestinal issues, and was negative for neurologic issues. (Tr. 1238).
From November 26, 2012, through January 11, 2013, the plaintiff completed radiation
treatment. (Tr. 1147, 1213). Clinic notes dated March 20, 2013, indicate that since
completing radiation, the plaintiff was doing well and felt better. (Tr. 1213).
Clinic notes dated June 7, 2013, represent that there was not acute distress in
the plaintiff’s general appearance. (Tr. 1206). In this same evaluation, the plaintiff’s pain
score was zero. (Id.). The notes also indicated that the plaintiff’s neurologic evaluation
represented that the plaintiff’s affect was appropriate, and that her gait and coordination
were within normal limits. (Id.). The same observations about the plaintiff’s appearance
and gait were made on both June 29, 2012, and July 20, 2012. (Tr. 1284, 1292). On
May 8, 2012, the plaintiff had a consultation with Doctor Judith Hurley at Jackson
Health System. (Tr. 1318). The notes indicate that the plaintiff tested negative for
dysuria4, urinary frequency or hesitancy, and hematuria.5 (Id.). The plaintiff was also
negative for pain, stiffness, swelling, and joint limitation. (Id.). The plaintiff also did not
have “palpable cervical, supraclavicular, axillar, or inguinal lymph nodes.” (Id.). The
plaintiff did not show any signs of distress and had a pain score of zero. (Id.). The
plaintiff had an affect that was appropriate, and her gait and coordination were both
normal. (Tr. 1319). On March 20, 2013, the plaintiff had “clinically improved from acute
radiation dermatitis” and there was “no evidence of . . . other side effects.” (Tr. 1214).
Twenty-one months later, on December 30, 2014, Jackson Health System clinic notes
indicated that the plaintiff had done well after multimodality of treatment, did not have
any breast complaints, and her breast exam was stable. (Tr. 1138).
On October 4, 2013, a gynecological ultrasound showed a prolapse of the
plaintiff’s uterus. (Tr. 1188). On October 22, 2013, the plaintiff was diagnosed with
uterovaginal prolapse. (Tr. 1184). On January 27, 2014, the plaintiff indicated that the
prolapse caused her to have the “feeling [of] something hanging out of her vagina,” and
a “pressure like sensation [that was] bothersome in clothing.” (Tr. 1179). In December
2014 the plaintiff underwent a vaginal hysterectomy. (Tr. 1101). The surgery was
successful. (Tr. 1098-1133).
Clinic notes dated June 1, 2014, for which Judith Hurley was listed as the
attending provider, noted that the plaintiff was “on continued surveillance with no
“Dysuria is the medical term for pain or discomfort when urinating.” “Dysuria.”
Drugs.com, https://www.drugs.com/health-guide/dysuria.html (last visited on Aug. 8, 2017).
Hematuria is “the presence of blood in urine.” “Hematuria.” Google.com,
6j0j4&sourceid=chrome&ie=UTF-8 (last visited on Aug. 8, 2017).
evidence of disease.” (Tr. 1147). The same clinic notes indicated that the plaintiff had a
“followup appointment with Urology due to complaints of uterine prolapse.” (Tr. 1148).
On March 20, 2014, a gynecological ultrasound was performed, and “showed
retroverted uterus with endometrium.” (Id.). The right ovary was normal, and the left
ovary contained a “clear cyst.” (Id.). On June 9, 2014, the plaintiff had a urine culture
performed, and gall stones were found in the plaintiff’s bladder. (Tr. 1141).
On March 24, 2015, the Breast Cancer Institute at Jackson Memorial Hospital
notified the plaintiff that the results of her March 23, 2015, mammogram required that
she return to Jackson Memorial Hospital for a “full workup.” (Tr. 42, 1417).
On August 13, 2012, Walter Harris, M.D., in a Disability Determination
Explanation, opined that the plaintiff had exertional limitations. Specifically, the plaintiff
was able to: (1) occasionally lift and/or carry 50 pounds; (2) frequently lift and/or carry
25 pounds; (3) stand or walk about 6 hours in an 8-hour day; (4) sit about 6 hours in an
8-hour day; and (5) push and/or pull an unlimited amount. (Tr. 79). On October 11,
2012, Gloria Hankins, M.D., in a Disability Determination Explanation, opined that the
plaintiff’s exertional limitations were the same as outlined by Dr. Harris in August 2012.
The Administrative Hearing
At the time of the ALJ hearing, the plaintiff was sixty-two years old. (Tr. 45). The
plaintiff was single and living with her daughter, which is the only person the plaintiff
takes care of or supports. (Tr. 45, 47). The daughter does not work because she has
epilepsy. (Tr. 45-46). The plaintiff mainly supervises her daughter when the daughter
showers, in case the daughter has a seizure while showering. (Tr. 46, 65). The plaintiff
indicated that her height and weight at the time of the hearing was about 5'7" and about
178 pounds. (Tr. 47). The plaintiff noted that she completed primary school and
vocational school for typing, bookkeeping, and shorthand, and that she does not have a
high school equivalency diploma. (Id.).The plaintiff testified that she receives financial
help from two churches that she attends. (Tr. 47-48). The plaintiff stated that she had
not done any odd jobs for cash in the four years prior to the hearing date and that she
was not working at the time of the hearing. (Tr. 48). The plaintiff indicated that her last
date of work was in June of 2011. (Id.) At that time, the plaintiff was working as a CNA
at Triad. (Id.). The plaintiff stated that she worked at Triad from 2003-2011until
symptoms of prolapse6 caused her to move too slowly and end her employment. (Id.).
As noted by the plaintiff’s attorney at the ALJ hearing, once the plaintiff was diagnosed
with cancer, the prolapse became secondary. (Tr. 57). The plaintiff indicated that some
of her self-employment income came from being a CNA. (Id.). The plaintiff also alleged
to have worked as a CNA at a “very heavy level.” (Tr. 49).
The plaintiff testified that she is able to take care of her own grooming and
personal hygiene, with the exception that she cannot lift her left hand too high to comb
her hair. (Tr. 51). The plaintiff is right-handed and can comb her hair using her right
The plaintiff attributes her employment termination to symptoms of prolapse; however,
the ALJ noted that the plaintiff first sought medical treatment for prolapse in January of 2014.
(Tr. 61). After a request by the ALJ for the plaintiff to provide medical records documenting her
prolapse between the time of the alleged onset of June 2011 to January 2014, (Tr. 56), the
plaintiff provided documentation of an October 22, 2013 prolapse diagnosis. (Tr. 1184).
hand. (Id.). The plaintiff indicated that she must use both hands to stretch and grab
something, such as coffee creamer. (Tr. 66). The plaintiff stated that it is very strenuous
for her to unscrew things such as water bottles, and that she is only able to do so with
her right hand. (Tr. 67). The plaintiff further stated that she could only lift a gallon of milk
with her right hand, not her left. (Id.).
The plaintiff indicated that she does light housework, including vacuuming, but
not sweeping or mopping. (Tr. 52). The plaintiff also indicated that she does laundry
and washes dishes and that sometimes her daughter’s friends come over and offer help
with housework. (Id.). For socializing, the plaintiff attends church and has breakfast with
her church friends. (Id.). The plaintiff has never had a driver’s license. (Tr. 52-53). For
transportation, the plaintiff uses a company called SDS, which is provided for by the
county. A friend also drives the plaintiff to and from the store about once a month. (Id.).
The plaintiff alleged that she is unable to work because of strain and that
sometimes she has a lot of weakness and falls. (Tr. 54). The plaintiff indicated that she
is unaware of why she falls, but sometimes she falls on the street and that she does not
feel safe anymore as a result. (Id.). The last time the plaintiff fell prior to the hearing
was on February 17, 2015, and prior to that she fell in December 2014. (Id.). The
plaintiff claimed that she did not require medical care after either of the falls. (Id.). The
plaintiff explained that sometimes she feels as if she can barely walk and that
sometimes she has to rock in order to rise from a chair. (Id.). The plaintiff said she is
able to lift five pounds using her left hand and ten pounds using her right hand. (Tr. 55).
The plaintiff claimed that she has limitations regarding the duration she can stand or
walk. (Id.). The plaintiff indicated that doctors encourage her to build her strength and
that sometimes she walks a mile and must stop. (Id.). The plaintiff indicated that in
2011 the prolapse affected her ability to walk because it gave her a “sensation to the
womb” and would cause her to leak urine, requiring her to wear a pad. (Id.). The plaintiff
stated that she wore protective undergarments on a daily basis. (Tr. 56).
The plaintiff noted that when she was diagnosed with cancer, she did not attend
to her prolapse issues in order to attend to her cancer. (Id.). In May of 2014, the plaintiff
was cleared for surgery for the prolapse, which was first reported to Dr. Jorge Garcia on
January 27, 2014. (Tr. 61, 1179). The plaintiff stated that while she healed from
chemotherapy treatment until the beginning of 2014, she was not able to work due to
bloodwork, bone testing, and heart testing, but these work interruptions were resolved
after the plaintiff’s prolapse surgery in December of 2014. (Tr. 61-62). The plaintiff did
not go back to work after that because of regular checkups in Trinidad, one of which
was on August 4, 2014, to check on some continuing bleeding issues. (Id.).
The plaintiff testified that she tried to go back to work for about one month in
January of 2014 and that she was unable to do so. (Tr. 62-63). The plaintiff testified
that she was working for a private person and was being paid cash. (Id.). The plaintiff
indicated that a friend referred her to the job, and the plaintiff thought the job was going
to be “light.” (Id.). The plaintiff further indicated that she stopped the job because she
did not feel well. (Id.).
The plaintiff stated that she experienced urine leakage. (Tr. 63-64). The plaintiff
explained that when her bladder was tested the results showed that there was a little
leakage, requiring her to wear pads during the day and night. (Tr. 64). The plaintiff
noted that the leakage was greater before the prolapse surgery. (Tr. 66). The plaintiff
indicated that before she had the surgery she had to wear large maternity pants
because she urinated when she walked and also when she stood up to begin walking.
(Id.). The plaintiff indicated that at the time of the hearing she still had leakage issues
requiring her to wear pads. (Id.) At the time of the hearing, the plaintiff was taking
hydrocodone7 for lower back pain about twice a week, Glyburide8 and Metformin9 for
diabetes, and Nifedipine10 for high blood pressure. (Tr. 64, 65).
Vocational Expert (VE) Testimony
A VE testified at the ALJ hearing. (Tr. 68-72). The VE was asked hypothetical
questions and to presume that the hypotheticals referred to “an individual of the
Claimant’s age, education, and work history.” (Tr. 69-70). The ALJ asked whether such
an individual “would be capable of performing any of the Claimant’s past work or any
other work.” (Tr. 70). The ALJ also took “judicial notice of the applicable grid rules given
“Hydrocodone is an opioid pain medication.” “Hydrocodone.” Drugs.com,
https://www.drugs.com/hydrocodone.html (last visited Aug. 8, 2017).
“Glyburide is an oral diabetes medicine that helps control blood sugar levels. Glyburide
is used to treat type 2 diabetes. This medicine is not for treating type 1 diabetes.” “Glyburide.”
Drugs.com, https://www.drugs.com/glyburide.html (last visited Aug. 8, 2017).
“Metformin is an oral diabetes medicine that helps control blood sugar levels.
Metformin is used to improve blood sugar control in people with type 2 diabetes.” “Metformin.”
Drugs.com, https://www.drugs.com/metformin.html (last visited Aug. 8, 2017).
“Nifedipine is in a group of drugs called calcium channel blockers. It works by relaxing
the muscles of your heart and blood vessels. Nifedipine is used to treat hypertension (high blood
pressure) and angina (chest pain).” “Nifedipine.” Drugs.com,
https://www.drugs.com/nifedipine.html (last visited Aug. 8, 2017).
. . . if the Claimant were limited and unable to perform her past work,” and the ALJ
noted that the claimant in this case has “been over the age of 55 at all times during the
pendency of this case.” (Id.). The first hypothetical asked:
consistent with the DDS, opinions of Dr. Harris and Dr. Hankins, please
assume a limitation to medium exertional work, however the individual would
have additional limitations that I will describe and should never climb ladders,
ropes, or scaffolds, overhead reaching with the left non-dominant extremity
would be limited to occasional. Given those limitations, would such an
individual be able to perform any of the Claimant’s past work or any other
(Id.). The VE responded, “I would say yes to past work and there would be other
medium, unskilled work that could be performed.” (Id.). The ALJ then asked whether
the VE was referring to “past work as generally performed and the child monitor job also
as actually performed,” to which the VE answered, “Right. The physical demand as the
nurse’s aid was performed would be no.” (Id.). The second hypothetical added the
following: “[A] limitation to light exertional work would preclude the performance of past
work. Is that right?” The VE responded, “Yes.” (Tr. 71).
The third hypothetical entailed the same limitations as hypothetical one, but the
ALJ also included the following: what if “the individual were off-task at least 20% of the
workday due to the effects of surgery and chemotherapy . . . the individual would not be
able to perform any of he past work. Is that correct?” (Id.). The VE answered, “That is
correct.” (Tr. 71). The ALJ then asked about such an individual’s ability to do any other
work. (Id.). The VE indicated that there would not be any other work available if the
“20% were on a consistent basis.” (Id.).The ALJ then asked the VE if her testimony was
consistent with the DOT. (Id.). The VE answered, “I would say yes, however the DOT
does not cover the off-task and that would be based upon my professional experience
and research.” (Id.).
The plaintiff’s attorney asked the VE whether the “CNA job is listed as medium
under the DOT.” (Tr. 72). The VE responded that a CNA job is listed as medium. (Id.).
The plaintiff’s attorney then asked the VE whether from her personal experience, she
agrees that CNA work is typically performed at a medium level or if it would be
performed at a higher level. (Id.). The VE responded that in her
professional experience and personal experience, I also worked as a CNA,
it would be if not heavy to very heavy. I think that it does describe it as
medium, but obviously the DOT has not been updated in several years and
if they were to update it with this job title, in my opinion, I would say it would
be at a higher physical demand than what it currently is stated to be.
THE 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) (2004) ; 423(d)(1) (2004); 20 C.F.R. §
404.1505 (2012). The impairment(s) must be severe, making the plaintiff “unable to do
his previous work . . . or any other kind of substantial gainful work which exists in the
national economy . . .”(42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505 (2012).
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. If so, a finding of non-disability is made and
the inquiry ends.
Second, the ALJ must determine whether the plaintiff suffers from a severe
impairment or a combination of impairments. If the plaintiff does not, then a finding of
non-disability is made and the inquiry ends.
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. Certain impairments are
so severe, whether considered alone or in conjunction with other impairments, that if
such impairments are established, the regulations require a finding of disability without
further inquiry into the plaintiff’s ability to perform other work. Gibson v. Heckler, 762
F.2d 1516, 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” is
defined as “what you can do despite your limitations.” 20 C.F.R § 404.1545(a)(1). This
determination takes into account all relevant evidence, including medical evidence, the
plaintiff’s own testimony, and the observations of others. If the plaintiff is unable 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 step five that there is
other work available in the national economy which the plaintiff can perform. 20 C.F.R.
§ 404.1520(e); See Barnes v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991) (holding
that the claimant bears the initial burden of proving that he is unable to perform
Fifth, the ALJ must decide, if the plaintiff cannot perform his or her past relevant
work, if he or she is capable of performing any other work in the national economy.
THE ALJ’S FINDINGS
At step one, the ALJ found that “[t]he claimant meets the insured status
requirements of the Social Security Act through June 30, 2013.” (Tr. 17). At step two,
the ALJ found that “[t]he claimant has not engaged in substantial gainful activity since
January 1, 2012, the date the claimant became disabled.” 20 C.F.R. §§404.1520(b),
404.1571 et seq., 416.920(b) and 416.971 et seq.; (Id.). At step three, the ALJ found
that the plaintiff had the severe impairment of breast cancer from January 1, 2012,
through March 19, 2013. (Tr. 18). At step four, the ALJ found that, “[f]rom January 1,
2012, through March 19, 2013, the claimant did not have an impairment or combination
of impairments that met or medically equaled the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (20 C.F.R. §§404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).” (Tr. 20). At the fifth step, the ALJ found
that the plaintiff had the RFC to do medium level work. (Tr. 21).
STANDARD OF REVIEW
The Court must determine if 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)
(2006); see Wolfe v. Chater, 86 F.3d 1072, 1076 (11th Cir. 1996) (holding that the
reviewing court must not re-weigh evidence or substitute its 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); Kelley v. Apfel, 185 F.3d 1211, 1213 (11th Cir.
1999). Substantial evidence is more than a scintilla, but less than a preponderance.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). Substantial evidence is relevant evidence that a reasonable
person would accept as adequate to support the ALJ’s conclusion. Richardson, 402
U.S. at 401. 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. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991) (“[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. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). The
court may not, however, decide facts anew, re-weigh evidence, or substitute its
judgment for that of the ALJ, and even if the evidence weighs against the
Commissioner’s decision, the reviewing court must affirm if the decision is supported by
substantial evidence. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); 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. Martin, 894 F.2d at 1529. The Commissioner
must apply the correct legal standard with sufficient reasoning to avoid reversal. Id.
The plaintiff argues that: (1) “the vocational expert testified there was no work a
hypothetical individual such as the plaintiff could perform;” (2) “the ALJ violated SSR
00-04p by failing to resolve the conflict between the vocational expert’s testimony and
the Dictionary of Occupational Titles;” and (3) “the substantial evidence does not
support the residual functional capacity established by the ALJ.” Pl.’s Mem. at 6, 8, and
10 (DE# 24, 04/23/2017).
THE ALJ FOUND THAT, BEGINNING MARCH 20, 2013, THE PLAINTIFF WAS
CAPABLE OF PERFORMING HER PAST RELEVANT WORK AS A NURSING
AIDE, AND THE ALJ FAILED TO PROPERLY RECOGNIZE THE TESTIMONY
OF THE VE REGARDING HOW THE DOT WOULD CLASSIFY A NURSE’S AID
IF THE DOT WOULD REEVALUATE
The VE’s Testimony
The ALJ found that, as of March 20, 2013, the plaintiff is not disabled, and, as a
result, the undersigned finds that the ALJ opined that the plaintiff can perform past
relevant work as a nurse’s aid as the job is generally performed in the national
economy. (Tr. 30, 69).
The VE gave an opinion as to what the DOT (DOT-IV § 355.674-014) would say
about the exertional level of a nurse’s aid if an update occurred (Tr. 30, 69; Pl.’s Mem.
at 6). The VE noted that the plaintiff could perform past relevant work as it is performed
in the general economy, which the DOT describes as medium. (Tr. 69-71); DOT-IV §
355.674-014. The VE opined, however, that the DOT would classify a nurse’s aid job as
a heavy exertion job, after an update. (Tr. 71).
The ALJ based her decision to deny the plaintiff’s benefits on the VE’s testimony
that the plaintiff’s job as nurse’s aide was of a medium exertional level. (Tr. 30, 69). The
ALJ concluded that the plaintiff is capable of returning to her past relevant work as
nurse’s aid. (Tr. 30). The plaintiff asserts that, “when the vocational expert was
questioned, [the VE] stated that [the VE] disagrees with the DOT.” (Tr. 72). The plaintiff
also alleges that, “when asked to explain, the vocational expert stated that the DOT has
not been updated for many years,” and that the VE “felt that if it was updated it would
be more accurate and show that nurse’s aid required at least a heavy exertional
demand.” (Tr. 72); Pl.’s Mem. at 6.
The record supports the plaintiff’s assertions. The VE noted that “the DOT has
not been updated in several years and if they were to update it with [the job title of
nurse aid],” the DOT would classify a nurse’s aid at a higher physical demand. (Tr. 72).
The VE opined it would be possible for an individual who is limited to doing medium
exertional work, among other limitations, to perform past work and other medium,
In the VE’s opinion, however, the plaintiff is unable to perform the physical
demands of her previous work as a nurse’s aid. (Tr. 70-72). The VE indicated that her
testimony was consistent with the DOT, but that the DOT does not cover anything offtask. (Tr. 71). The plaintiff asserts that the “ALJ held that the Plaintiff was limited at
most to medium exertional demands.” Pl.’s Mem. at 6. The plaintiff indicates that “the
job of nurse’s aid requiring heavy to very heavy exertional demands makes it impossible
for the Plaintiff to perform.” Pl.’s Mem. at 6. The VE’s testimony that a nurse’s aid, the
past relevant work of the plaintiff, would be classified as “heavy to very heavy” if the
DOT were to make updates to the description, further supports the plaintiff’s assertion.
The plaintiff’s medical history shows that, on August 13, 2012, Walter Harris,
M.D., in a Disability Determination Explanation, opined that the plaintiff had some
exertional limitations and was able to: (1) occasionally lift and/or carry 50 pounds; (2)
frequently lift and/or carry 25 pounds; (3) stand or walk about 6 hours in an 8-hour day;
(4) sit about 6 hours in an 8-hour day; and (5) push and/or pull an unlimited amount.
(Tr. 79). On October 11, 2012, Gloria Hankins, M.D., in a Disability Determination
Explanation, opined that the plaintiff’s exertional limitations were the same as outlined
by Dr. Harris in August 2012. (Tr. 100). The plaintiff’s exertional limitations preclude the
plaintiff from performing a heavy exertion job.
The DOT labels the job of nurse’s aid as one requiring medium exertion. (Tr. 69,
71). However, the VE indicated that if the exertion level of a nurse’s aid was
reevaluated, the exertion level would be classified as heavy. Two Past Relevant Work
Summaries were completed by vocational experts regarding the plaintiff’s ability to work
as a nurse’s aid. (Tr. 69, 332, 334). The VE testified consistently with these
summaries, indicating that an individual like the plaintiff can perform past work and
other medium, unskilled work. (Tr. 70). However, according to the VE, a nurse’s aid
would be classified as heavy, not medium, if the DOT revamped the exertional levels.
(Tr. 72). Because the plaintiff is unable to perform her past relevant work, the
undersigned remands this matter for the ALJ to determine at Step 5 if the plaintiff is
capable of performing any other work in the national economy.
The ALJ Violated SSR 00-04p Because There Was a Conflict Between
the Vocational Expert’s Testimony and the Dictionary of
SS 00-4p requires that the ALJ ask the VE if the VE’s testimony is consistent
with the DOT. See SSR 00-4p; 65 Fed. Reg. 75, 759-01, 75, 760 (Dec. 4, 2000); Def’s
Mem. at 8. SS 004p provides that
Identify and obtain a reasonable explanation for any conflicts between
occupational evidence provided by VEs . . . and information in the
[DOT], including its companion publication, the Selected
Characteristics of Occupations Defined in the Revised Dictionary of
occupational Titles (SCO), published by the Department of Labor, and
Explain in the determination or decision how any conflict that has
been identified was resolved.
SSR 00-4p (Dec. 4, 2000).
[T]he adjudicator has an affirmative responsibility to ask about any possible
conflict between that VE . . . evidence and information provided in the DOT.
In these situations, the adjudicator will:
Ask the VE . . . if the evidence he or she has provided conflicts with
information provided in the DOT; and
If the VE’s . . . evidence appears to conflict with the DOT, the
adjudicator will obtain a reasonable explanation for the apparent
SSR 00-4p, (Dec. 4, 2000).
As alleged by the plaintiff, the VE did “specifically state that in her opinion the
DOT is wrong.” Pl.’s Mem. at 13. The ALJ asked the VE whether the VE’s testimony at
the hearing was consistent with the DOT. (Tr. 71). The VE responded, “I would say yes,
however the DOT does not cover the off-task and that would be based upon my
professional experience and research.” (Tr. 71).
The VE testified that, based on her personal experience having worked as a
CNA, the job of a CNA is heavy to very heavy. (Tr. 72). The VE stated that the DOT
describes work as a CNA as medium, but that the DOT had not been updated for
several years and, if it were to be updated, the VE believed a CNA would have a higher
exertional level listed. (Tr. 72). The VE offered an opinion as to how she thought the
DOT may describe a CNA job if the DOT was updated.
The undersigned finds that the ALJ violated SSR 00-04p, because of the conflict
between the VE’s testimony and the DOT. Accordingly, the undersigned remands this
matter for the ALJ to obtain a reasonable explanation for the apparent conflict and
explain how this conflict was resolved.
THE ALJ DID NOT PROPERLY ACCOUNT FOR THE PLAINTIFF’S
UTEROVAGINAL PROLAPSE IN ASSESSING THE PLAINTIFF’S RFC
BEGINNING MARCH 20, 2013 AND SUBSTANTIAL EVIDENCE DOES NOT
SUPPORT THE RFC ESTABLISHED BY THE ALJ
The evidence in this matter does not support the RFC established by the ALJ in
this case. “[T]he mere existence of [a condition] does not reveal the extent to which
[the condition]” limits the claimant’s “ability to work or undermine the ALJ’s
determination in that regard.”). Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir.
2005). “[T]he ‘severity’ of a medically ascertained [impairment] must be measured in
terms of its effect upon ability to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality.” Higgs v. Bowen, 880 F.2d 860, 863
(6th Cir. 1988). “The mere diagnosis [of a condition], of course, says nothing about the
severity of the condition.”). Id. Even if a claimant has an impairment that an ALJ
decides is severe, the fact that the claimant has a severe impairment does not
determine to what extent the impairment limits a claimant’s ability to work, or whether it
does at all. See Moore v. Barnhart, 405 F.3d at 1208. The claimant bears the burden,
through steps one through four of the analysis, of proving the existence and severity of
limitations caused by her impairments and that she is precluded from performing her
past relevant work. Menendez v. Colvin, 12-21505-CIV, 2015 WL 1311460, at *2 (S.D.
Fla. Mar. 23, 2015); see Hale v. Bowen, 831 F.2d 1007, 1001, 1007 (11th Cir. 1987).
The plaintiff asserts that “[t]he substantial evidence of record does not establish
or support an [RFC] as established by the ALJ.” Pl.’s Mem. at 10. The plaintiff provides
that, “[a]fter establishing an [RFC] for the claimant the ALJ then found an additional
severe impairment.” Pl.’s Mem. at 10; (Tr. 25). The plaintiff alleges that “whatever the
effect is [of the uterovaginal prolapse] must be included in the hypothetical to the
vocational expert and must be included in the ALJ’S [RFC].” Pl.’s Mem. at 11.
The ALJ found that the uterovaginal prolapse is an additional physical
impairment. (Tr. 25). The plaintiff asserts that “[i]t is impossible to have a severe
impairment without any effect on the residual functional capacity.” (Id.).11 The plaintiff
stated that her symptoms of prolapse prevented her from working as a CNA in June
In the body of her opinion, the ALJ indicated that the prolapse was an additional
physical impairment. (Tr. 25).
2011. (Tr. 48). At the ALJ hearing, the plaintiff’s attorney explained that after the
plaintiff’s cancer diagnosis, the prolapse issue became secondary. (Tr. 57). The
plaintiff’s medical documents indicate that she was officially diagnosed with
uterovaginal prolapse on October 22, 2013. (Tr. 1184). However, medical records
indicate that the plaintiff complained of prolapse symptoms a year prior to this
diagnosis. (Tr. 1179). The plaintiff received medical treatment for her prolapse
beginning in January 2014. (Tr. 61 & 1179).
After January 2014, the next description of the effects of the uterovaginal
prolapse in the record is found in the transcript of the April 1, 2015, hearing. (Tr. 26,
66). During the hearing, the plaintiff asserted that the uterovaginal prolapse was
causing her pain and weakness. (Tr. 54). The plaintiff explained that, because of the
weakness, she fell twice, once in December of 2014 and once on February 17, 2015.
(Id.). In addition, the plaintiff asserted that the uterovaginal prolapse affected her ability
to walk, and explained that sometimes standing up from a chair was difficult. (Tr. 54).
In addition to the weakness, the plaintiff asserted that the uterovaginal prolapse was
causing her to experience urinary leakage. (Tr. 66). The ALJ failed to indicate whether
the prolapse was accounted for in the ALJ’s RFC. Accordingly, a remand is appropriate
for the ALJ to make a determination regarding the disabling nature of the plaintiff’s
Accordingly, it is
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary
Judgment (DE# 25, 05/23/2017) is DENIED, the Plaintiff’s Motion for Summary
Judgment (DE# 24, 04/23/2017) is GRANTED, and this case is REMANDED to the ALJ
for the reasons stated herein.
DONE AND ORDERED at the United States Courthouse, Miami, Florida, this 7th
day of December, 2017.
JUDGE JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE
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