Gomez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JUDITH GOMEZ,

Plaintiff,

v. CASE NO. 8:18-cv-1113-T-MCR

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

_______________________________/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative

decision denying her application for Supplemental Security Income (“SSI”).

Following an administrative hearing held on August 23, 2017, the assigned

Administrative Law Judge (“ALJ”) issued a decision on November 15, 2017,

finding Plaintiff not disabled since June 4, 2015, the alleged amended disability

onset date. (Tr. 9-61.)

In reaching his decision, the ALJ found that Plaintiff’s aortic valve disease

and epilepsy seizure disorder were severe impairments; that Plaintiff did not have

an impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments; and that Plaintiff retained the residual

functional capacity (“RFC”) to perform light work with limitations. (Tr. 17-19.)

1 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Doc. 19.)

Then, after determining that Plaintiff had no past relevant work, the ALJ

concluded that there were jobs, existing in significant numbers in the national

economy, that Plaintiff was able to perform. (Tr. 25.) Based on a review of the

record, the briefs, and the applicable law, the Commissioner’s decision is

AFFIRMED.

I. Standard of Review

The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841

F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are

supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390

(1971). “Substantial evidence is more than a scintilla and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004). Where the Commissioner’s decision is supported by substantial evidence,

the district court will affirm, even if the reviewer would have reached a contrary

result as finder of fact, and even if the reviewer finds that the evidence

preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937

F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th

Cir. 1991). The district court must view the evidence as a whole, taking into

account evidence favorable as well as unfavorable to the decision. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d

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835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to

determine the reasonableness of the Commissioner’s factual findings).

II. Discussion

Plaintiff raises two issues on appeal. First, she argues that the ALJ failed

to make a specific finding at step two of the sequential evaluation process2 about

the severity of her chest pain, extremity numbness, dizziness, headaches, and

medication side effects, and failed to account for these impairments/symptoms

and any resulting limitations in the RFC assessment. Plaintiff also argues that

the ALJ failed to properly apply the pain standard.

In the Eleventh Circuit, “[t]he finding of any severe impairment . . . is

enough to satisfy step two because once the ALJ proceeds beyond step two, he

is required to consider the claimant’s entire medical condition, including

impairments the ALJ determined were not severe.” Burgin v. Comm’r of Soc.

Sec., 420 F. App’x 901, 902 (11th Cir. Mar. 30, 2011). Therefore, even if the ALJ

erred by not finding Plaintiff’s chest pain, extremity numbness, dizziness,

headaches, and/or medication side effects to be severe impairments, the error is

harmless because the ALJ found at least one severe impairment. See Heatly v.

Comm’r of Soc. Sec., 382 F. App’x 823, 824-25 (11th Cir. 2010) (per curiam)

(“Even if the ALJ erred in not indicating whether chronic pain syndrome was a

2 The Commissioner employs a five-step process in determining disability. See

20 C.F.R. § 416.920(a)(4).

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severe impairment, the error was harmless because the ALJ concluded that

[plaintiff] had a severe impairment: [sic] and that finding is all that step two

requires. . . . Nothing requires that the ALJ must identify, at step two, all of the

impairments that should be considered severe.”).

At step two, the ALJ found that Plaintiff’s aortic valve disease and epilepsy

seizure disorder were severe impairments. Although Plaintiff’s chest pain,

extremity numbness, headaches, dizziness, or other medication side effects were

not listed among the severe impairments, the ALJ did not ignore these

impairments/symptoms. For example, in determining the RFC, the ALJ noted

Plaintiff’s testimony that she experienced chest pain without cause and

headaches almost every day; numbness, tingling, and cramps in her hands and

legs; and dizziness as a side effect of her medications. (Tr. 19-20.) The ALJ

also noted that:

The evidence of record does not show symptoms or limitations from

the claimant’s impairments that would preclude work activity within

the [RFC] assessment. For example, . . . treatment notes since the

claimant’s application date show complaints, such as headaches,

palpitations, and chest pain, and physical examination findings of

murmurs at times, bilateral lower extremity dysesthesias, greater on

the right, below the knees, at times, and slight diminished sensibility

along the entire right side of the claimant’s body on July 24, 2017.

Electrodiagnostic testing showed slowing of the motor conduction

velocity across the fibular head on the peroneal nerves, bilaterally,

compatible with the presence of a bilateral peroneal nerve palsy at

the fibular head (Exhibit 15F). However, most physical examination

findings since the claimant’s application date are unremarkable and

do not support limitations greater than those detailed in the [RFC].

Furthermore, the medical evidence of record does not show seizure

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activity that would preclude work activity within the [RFC].°

(Tr. 20.) The ALJ then determined that the RFC assessment was “supported by

the medical evidence of record, including the claimant’s symptoms of chest pain

° The ALJ cited these reasons for finding Plaintiff's allegations “partially

consistent with the evidence of record.” (Tr. 20.) The ALJ found that Plaintiff's

medically determinable impairments could reasonably be expected to cause her alleged

symptoms, but Plaintiff's statements concerning the intensity, persistence, and limiting

effects of these symptoms were not entirely consistent with the medical evidence and

other evidence in the record. (/d.) As the ALJ provided explicit and adequate reasons,

supported by substantial evidence, for his credibility determination, any argument to the

contrary is rejected. Of note, Plaintiff seems to argue that the ALJ erred by not

specifically discrediting “Plaintiff's pain testimony concerning her need to sit when

experiencing chest pain, her need to lay down when having a headaches [sic], her

inability to stand all day due to the dysesthesias in her lower extremities, her lack of

strength in her hands, or the dizziness she experiences as a result of her anti-

convulsant medication.” (Doc. 26 at 16.) Although the ALJ could have discredited each

of Plaintiff's complaints (and any resulting limitations) individually, he was not required

to do so, particularly since his decision shows that he properly applied the pain

standard and provided explicit and adequate reasons for his credibility determination.

see Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014)

(explaining that a court “will not disturb a clearly articulated . . . finding [about subjective

complaints that is] supported by substantial evidence”).

“ There are numerous other references throughout the ALJ’s decision to

Plaintiff's chest pain, extremity numbness, headaches, dizziness, or other medication

side effects. (See, e.g., Tr. 20 (“Treatment notes of Jose P. Pizarro-Otero, M.D. of

Neurophysiology Center, dated June 24, 2015, show that the claimant complained of

throbbing, bi-frontal headache without nausea . .. . The claimant reported about 20

headaches in the month prior to this visit. The claimant also reported bilateral lower

extremity tingling, numbness, and dysesthesias, more in her right leg, since her

surgery.”); Tr. 21 & 23 (noting complaints of occasional dizziness and chest pain with

activity, headaches, cramps in the arms and legs, and side effects from medications,

but stating, inter alia, that Plaintiff's “chest pain was felt to be musculoskeletal and

improved without intervention”); Tr. 22 (“The claimant reported having eight headaches

per month, but did not take Topiramate because it made her drowsy. The claimant’s

headaches reportedly resolved with Dipyrone from Cuba.”); Tr. 23 (“[T]he claimant

complained of three episodes per week of numbness and tingling in her face, arm, and

leg, associated with trembling of the right side, lasting five to seven minutes with

complete resolution. The claimant reported periodic headaches once per week or so,

described as generalized, consisting of intense pressure for several hours, and

resulting in difficulty focusing and feeling as if her memory was slightly affected.”).)

consistent with [the] objective medical evidence of record, including physical

examination findings . . . , lack of evidence of seizures after April of 2015, and

treatment notes of Dr. Pizarro-Otero showing bilateral lower extremity

dysesthesias, greater on the right, below the knees, but otherwise unremarkable

examination findings, including 5/5 strength, a normal gait, no ataxia, no

unsteadiness, no use of an assistive device, normal reflexes, and intact fine

motor movement.” (Tr. 25.)

As shown by the ALJ’s decision, he adequately considered all of Plaintiff’s

impairments, both severe and non-severe, in combination. See Tuggerson-

Brown v. Comm’r of Soc. Sec., No. 13-14168, 572 F. App’x 949, 951-52 (11th Cir.

July 24, 2014) (per curiam) (“[T]he ALJ stated that he evaluated whether [plaintiff]

had an ‘impairment or combination of impairments’ that met a listing and that he

considered ‘all symptoms’ in determining her RFC. Under our precedent, those

statements are enough to demonstrate that the ALJ considered all necessary

evidence.”).

Moreover, the ALJ’s findings are supported by substantial evidence. (See,

e.g., Tr. 380-81 (noting “[n]o acute cardiac or pulmonary process” according to a

chest X-ray from March 19, 2015, despite complaints of intermittent palpitations

and fatigue5); Tr. 447 (noting “[n]o hemodynamically significant carotid stenosis”

5 However, a CT scan of the chest from March 19, 2015 showed significant

aneurism of the ascending aorta measuring up to 6.8 cm in diameter and multiple left

(continued...)

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on March 21, 2015); Tr. 615 (noting chest tightness that resolved on its own as of

March 22, 2015); Tr. 523 (noting no acute cardiopulmonary process according to

a chest X-ray from March 24, 2015); Tr. 411 (noting that a March 25, 2015 EEG

did not support a diagnosis of seizures6); Tr. 446 (noting a negative head CT

scan from March 25, 2015); Tr. 494 (noting no acute intracranial abnormality

according to CT scans of the head from March 25 and March 27, 2015); Tr. 493

(noting, on March 31, 2015, that Plaintiff’s encephalopathy had resolved and no

seizure activity was shown on the EEG); Tr. 667 & 807 (noting no acute

intracranial abnormality according to a CT scan and an MRI of the head from

April 16, 20157); Tr. 842-45 (noting a murmur and chronic joint pain, but otherwise

unremarkable examination on April 21, 2015); Tr. 369-70 (noting a normal

examination, except “light touch BLE dysesthesias R>L below the knees,” on May

5(...continued)

renal calculi with the largest measuring 5 mm. (Tr. 447-48.)

6 However, ECG tests, performed on March 19, March 21, March 25, March 26,

and March 27, 2015, were abnormal. (Tr. 433-35.) On March 26, 2015, Plaintiff had a

second opinion consultation regarding encephalopathy. (Tr. 391.) The impression was:

1. Persistent postoperative encephalopathy with subtle focality on exam

with slightly decreased left upper extremity movement of uncertain

etiology, questionable small cerebral embolic shower.

2. Episode of left body twitching in the immediate postoperative period,

questionable seizures.

3. Recent diagnosis of a large ascending aortic aneurism and severe

aortic insufficiency, status post repair (03/24/2015).

(Tr. 393.)

7 A brain MRI from April 16, 2015 was abnormal. (Tr. 705-06.) An EEG study

from April 17, 2015 was also abnormal. (Tr. 702.)

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6, 2015, despite complaints of headache and paresthesia); Tr. 644-46 (noting

dizziness, intermittent chest pain, and fatigue, but otherwise stable examination

on May 8, 2015); Tr. 838-41 (noting right-sided chest tenderness and murmur but

otherwise unremarkable examination on June 1, 2015); Tr. 641-43 (noting

occasional chest pain and right-sided chest discomfort, stable palpitations,

headache, and dizziness as of June 3, 2015); Tr. 663 (noting no acute

cardiopulmonary process as of June 8, 2015); Tr. 1261 (noting that a brain MRI

from June 22, 2015 showed no evidence of acute infarct or intracranial mass); Tr.

751-53 (noting complaints of headache and paresthesia, but mostly

unremarkable examination as of June 24, 2015); Tr. 638-40 (noting unremarkable

examination despite dizziness and occasional palpitations as of July 1, 2015); Tr.

834-37 (noting lightheadedness and a murmur, but otherwise unremarkable

examination on July 27, 2015); Tr. 763-65 (noting a normal examination on

August 19, 2015, despite intermittent right-sided chest pains); Tr. 993-94 (noting

a normal electromyographic study of both lower extremities, but an abnormal

nerve conduction study, on September 25, 2015); Tr. 1076-80 (noting intermittent

chest pain and palpitations, but mostly unremarkable examination on October 14,

2015); Tr. 966 & 974-77 (noting that Plaintiff was admitted on December 2, 2015

for generalized chest pain after lifting boxes, but the pain was musculoskeletal

and improved without intervention; a CT scan of the head and neck showed no

evidence of filling defect, vascular malformation, or aneurysm, and no acute

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intracranial findings; an X-ray showed no acute pulmonary disease; a CT scan of

the chest showed aortic dissection protocol negative for acute findings; an MRI of

the brain showed, inter alia, no evidence of acute ischemia); Tr. 1081-85 (noting

a normal examination on February 17, 2016); Tr. 989 (noting, on February 26,

2016 that: “[Plaintiff] stopped the Amitriptyline since she states she is not needing

it. She has been seizure free. She continues with headache 8 days per month

and she did not take the Topiramate since it [caused] drowsiness. . . . The

headaches resolve[d] with [D]ipyrone from Cuba.”); Tr. 1054-59 (noting a

murmur, but otherwise unremarkable examination on April 7, 2016); Tr. 1050-53

(noting no symptoms and a normal examination on June 2, 2016); Tr. 1086-91

(noting precordial non-cardiac pain and palpitations, but a normal ECG on June

7, 2016); Tr. 1193-96 (noting no active complaints and a normal examination on

November 1, 2016); Tr. 1185-88 (noting complaints of cramps on both arms and

legs and occasional chest pain, but otherwise unremarkable examination on

March 3, 2017); Tr. 1180-83 (noting occasional dizziness and a murmur, but

otherwise unremarkable examination on March 31, 2017); Tr. 1176-79 (noting

complaints of fatigue and headache, but mostly normal examination on May 16,

2017); Tr. 1243-44 (noting slight diminished sensibility along the right side of

Plaintiff’s body, but otherwise normal examination on July 24, 2017); Tr. 80

(noting “[n]o hemodynamically significant stenosis in the carotid or vertebral

arteries” as of August 15, 2017); Tr. 79 (noting that the brain MRI of October 30,

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2017 appeared stable compared to the scan from 2015); Tr. 64 (noting a

November 9, 2017 unremarkable examination despite reports of weakness and

dizziness); Tr. 71 (noting, on December 20, 2017, that Plaintiff’s intermittent chest

pain was musculoskeletal and should be referred to pain management).)

As reflected in the ALJ’s decision, he considered Plaintiff’s impairments

and incorporated into the RFC assessment only those limitations resulting from

the impairments, which he found to be supported by the record. Therefore,

Plaintiff’s argument that the RFC assessment and the hypothetical question to the

vocational expert are incomplete lacks merit.

III. Conclusion

The Court does not make independent factual determinations, re-weigh the

evidence, or substitute its decision for that of the ALJ. Thus, the question is not

whether the Court would have arrived at the same decision on de novo review;

rather, the Court’s review is limited to determining whether the ALJ’s findings are

based on correct legal standards and supported by substantial evidence. Based

on this standard of review, the Court concludes that the ALJ’s decision that

Plaintiff was not disabled within the meaning of the Social Security Act for the

time period in question is due to be affirmed.

Accordingly, it is ORDERED:

1. The Commissioner’s decision is AFFIRMED.

2. The Clerk of Court is directed to enter judgment consistent with this

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Order, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, on August 19, 2019.

MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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