Rieves v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

RICHARD BRIAN RIEVES,

Plaintiff,

v. CASE NO. 6:19-cv-2219-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 his application for a period of disability and

disability insurance benefits (“DIB”). Following an administrative hearing

held via video on October 30, 2018, the assigned Administrative Law Judge

(“ALJ”) issued a decision, finding Plaintiff not disabled from December 4,

2013, the alleged disability onset date, through December 5, 2018, the date of

the ALJ’s decision.2 (Tr. 15-30, 38-58.) Based on a review of the record, the

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

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

Magistrate Judge. (Doc. 17.)

2 Plaintiff had to establish disability on or before December 31, 2019, his date

last insured, in order to be entitled to a period of disability and DIB. (Tr. 16.)

and REMANDED.

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 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, he argues that the ALJ

failed to apply the correct legal standards to the treating opinion of Pedro T.

Oliveros, M.D., P.T. He explains that at steps four and five of the sequential

evaluation process, the ALJ failed to account for Dr. Oliveros’s opinion that

Plaintiff needed to avoid prolonged/repetitive use of his hands and needed to

allow for frequent microbreaks and failed to explain why the opinion was not

adopted. Second, Plaintiff argues that the ALJ failed to apply the correct

legal standards to Plaintiff’s testimony regarding pain and limitations, which

was rejected by the ALJ “because of the many examinations that showed

normal muscle strength in all extremities and in grip strength, normal gait

and station, normal coordination, intact sensation, normal or good range of

motion, and no evidence of muscle atrophy.” Plaintiff argues that the ALJ’s

reason for rejecting his testimony was neither specific nor adequate and that

in evaluating his testimony, the ALJ failed to consider any other factors set

forth in 20 C.F.R. § 404.1529(c)(3).

Defendant responds that the ALJ properly gave little weight to the

limitations opined by Dr. Oliveros because they were vague, unsupported by

and inconsistent with the record evidence, and did not explain how

functionally limited Plaintiff was. Defendant adds that Dr. Oliveros did not

describe Plaintiff’s manipulative limitations in functional terms, did not

define the terms “prolonged” or “repetitive,” and did not define the term

“microbreaks” or explain how it differs from customary workday breaks.

Defendant argues that the ALJ already included manipulative limitations in

the residual functional capacity (“RFC”) assessment by limiting Plaintiff to

frequent handling and fingering, which arguably encompasses Dr. Oliveros’s

opinion. As to the second issue on appeal, Defendant argues that the ALJ

properly discounted Plaintiff’s testimony because it was inconsistent with the

objective medical evidence showing mild to moderate examination findings,

including Dr. Perdomo’s examination findings and the physical therapy notes

showing improvement in Plaintiff’s pain level.

A. Standard for Evaluating Opinion Evidence and

Subjective Symptoms

The ALJ is required to consider all the evidence in the record when

making a disability determination. See 20 C.F.R. § 404.1520(a)(3). With

regard to medical opinion evidence, “the ALJ must state with particularity

the weight given to different medical opinions and the reasons therefor.”

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).

Substantial weight must be given to a treating physician’s opinion unless

there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436,

1440 (11th Cir. 1997).

“‘[G]ood cause’ exists when the: (1) treating physician’s opinion was not

bolstered by the evidence; (2) evidence supported a contrary finding; or (3)

treating physician’s opinion was conclusory or inconsistent with the doctor’s

own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th

Cir. 2004). When a treating physician’s opinion does not warrant controlling

weight, the ALJ must nevertheless weigh the medical opinion based on: (1)

the length of the treatment relationship and the frequency of examination,

(2) the nature and extent of the treatment relationship, (3) the medical

evidence supporting the opinion, (4) consistency of the medical opinion with

the record as a whole, (5) specialization in the medical issues at issue, and (6)

any other factors that tend to support or contradict the opinion. 20 C.F.R. §

404.1527(c)(2)-(6).

Although a treating physician’s opinion is generally entitled to more

weight than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d

513, 518 (11th Cir. 1984) (per curiam); 20 C.F.R. § 404.1527(c)(2), “[t]he

opinions of state agency physicians” can outweigh the contrary opinion of a

treating physician if “that opinion has been properly discounted,” Cooper v.

Astrue, No. 8:06-cv-1863-T-27TGW, 2008 WL 649244, *3 (M.D. Fla. Mar. 10,

2008). Further, “the ALJ may reject any medical opinion if the evidence

supports a contrary finding.” Wainwright v. Comm’r of Soc. Sec. Admin., No.

06-15638, 2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see also

Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).

When a claimant seeks to establish disability through his own

testimony of pain or other subjective symptoms, the Eleventh Circuit’s three-

part “pain standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

1991) (per curiam). “If the ALJ decides not to credit such testimony, he must

articulate explicit and adequate reasons for doing so.” Id.

The pain standard requires (1) evidence of an underlying medical

condition and either (2) objective medical evidence that confirms

the severity of the alleged pain arising from that condition or (3)

that the objectively determined medical condition is of such a

severity that it can be reasonably expected to give rise to the

alleged pain.

Id.

Once a claimant establishes that his pain is disabling through

“objective medical evidence from an acceptable medical source that shows . . .

a medical impairment(s) which could reasonably be expected to produce the

pain or other symptoms,” pursuant to 20 C.F.R. § 404.1529(a), “all evidence

about the intensity, persistence, and functionally limiting effects of pain or

other symptoms must be considered in addition to the medical signs and

laboratory findings in deciding the issue of disability,” Foote, 67 F.3d at 1561.

See also SSR 16-3p3 (stating that after the ALJ finds a medically

3 SSR 16-3p rescinded and superseded SSR 96-7p, eliminating the use of the

term “credibility,” and clarifying that “subjective symptom evaluation is not an

examination of an individual=s character.” SSR 16-3p.

determinable impairment exists, the ALJ must analyze “the intensity,

persistence, and limiting effects of the individual’s symptoms” to determine

“the extent to which an individual’s symptoms limit his or her ability to

perform work-related activities”).

As stated in SSR 16-3p:

In considering the intensity, persistence, and limiting effects of

an individual’s symptoms, [the ALJ must] examine the entire

case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.

. . .

In evaluating an individual’s symptoms, it is not sufficient for our

adjudicators to make a single, conclusory statement that “the

individual’s statements about his or her symptoms have been

considered” or that “the statements about the individual’s

symptoms are (or are not) supported or consistent.” It is also not

enough for our adjudicators simply to recite the factors described

in the regulations for evaluating symptoms.4 The determination

or decision must contain specific reasons for the weight given to

the individual’s symptoms, be consistent with and supported by

the evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated

the individual’s symptoms.

. . .

4 These factors include: (1) a claimant’s daily activities; (2) the location,

duration, frequency, and intensity of the claimant’s pain or other symptoms; (3) any

precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side

effects of any medication taken to alleviate the claimant’s pain or other symptoms;

(5) any treatment, other than medication, received by the claimant to relieve the

pain or other symptoms; (6) any measures (other than treatment) used to relieve the

pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and (7) any other factors concerning

the claimant’s functional limitations and restrictions due to pain or other

symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 16-3p.

In evaluating an individual’s symptoms, our adjudicators will not

assess an individual’s overall character or truthfulness in the

manner typically used during an adversarial court litigation. The

focus of the evaluation of an individual’s symptoms should not be

to determine whether he or she is a truthful person. Rather, our

adjudicators will focus on whether the evidence establishes a

medically determinable impairment that could reasonably be

expected to produce the individual’s symptoms and given the

adjudicator’s evaluation of the individual’s symptoms, whether

the intensity and persistence of the symptoms limit the

individual’s ability to perform work-related activities[.]

SSR 16-3p.

“[A]n individual’s attempts to seek medical treatment for symptoms

and to follow treatment once it is prescribed” will also be considered “when

evaluating whether symptom intensity and persistence affect the ability to

perform work-related activities.” Id. “[I]f the frequency or extent of the

treatment sought by an individual is not comparable with the degree of the

individual’s subjective complaints, or if the individual fails to follow

prescribed treatment that might improve symptoms, [the adjudicator] may

find the alleged intensity and persistence of an individual’s symptoms are

inconsistent with the overall evidence of record.” Id. However, the

adjudicator “will not find an individual’s symptoms inconsistent with the

evidence in the record on this basis without considering possible reasons he

or she may not comply with treatment or seek treatment consistent with the

degree of his or her complaints.” Id. In considering an individual’s treatment

history, the adjudicator may consider, inter alia, one or more of the following:

• That the individual may have structured his or her

activities to minimize symptoms to a tolerable level by avoiding

physical activities or mental stressors that aggravate his or her

symptoms;

• That the individual may receive periodic treatment or

evaluation for refills of medications because his or her symptoms

have reached a plateau;

• That the individual may not agree to take prescription

medications because the side effects are less tolerable than the

symptoms;

• That the individual may not be able to afford treatment

and may not have access to free or low-cost medical services;

• That a medical source may have advised the individual

that there is no further effective treatment to prescribe or

recommend that would benefit the individual;

• That due to various limitations (such as language or mental

limitations), the individual may not understand the appropriate

treatment for or the need for consistent treatment.

Id.

B. Dr. Oliveros’s Records and Opinions

On December 2, 2014, Plaintiff presented to Dr. Oliveros with

complaints of low back pain radiating to his bilateral lower extremities with

associated paresthesia on the last three toes of his left foot. (Tr. 816-17.)

Plaintiff reported that at times, he was not “able to move or feel those three

toes,” the pain was “worse with activity, sneezing, lifting, bending and

prolonged sitting,” and was “better with rest (laying supine) and with PRN

[as needed] pain medications.” (Tr. 817.) Plaintiff also experienced “constant

paresthesia and coldness in the middle, ring and little finger of his right

hand” and neck discomfort since his lumbar fusion in November of 2014. (Id.)

Dr. Oliveros noted that Plaintiff’s musculoskeletal conditions had interfered

with his daily activities and function. (Id.)

Dr. Oliveros summarized Plaintiff’s medical history, in part, as follows:

[After a motor vehicle accident on December 4, 2013,] [t]he

patient complained of low back pain, worse on the left lower

lumbar region. Due to the persistence of his symptoms, he

underwent chiropractic care for about 3 months. The passive

treatment only provided him with temporary relief. Due to the

lack of improvement, he consulted a surgeon (Dr. Greenberg) and

after discussing his options he decided to undergo a lumbar

laminectomy on 03-20-14. After about a month of improvement,

his low back pain returned. The patient then underwent post-

op[erative] physical therapy for about 7 months. Again, the

patient only reported mild and very short-lived benefit from the

therapy. The patient then consulted Dr. Jose Torres,

Anesthesiologist, who performed various invasive procedures

such as TPIs [i.e., trigger point injections]. He recalls that he

responded well to the TPIs. However, he states that he was

discharged from his practice because he could not produce an [sic]

urine sample. The patient then followed up with Dr. Greenberg

and on 11-18-14 he had a lumbar fusion with instrumentation.

After the procedure, the patient was unable to feel his legs. He

had to go in for a second procedure on 11-20-14, in which some of

the screws were removed. The sensation in his legs returned

except for the lateral aspect of the left foot/toes. The patient has

an appointment tomorrow with the surgeon to discuss post-

op[erative] [physical therapy] clearance. In the meantime, he has

been managing his pain with PRN Hydrocodone 5/325[]mg and

Methocarbamol 500[]mg. On the average, he takes 5 of the

Hydrocodone and about 3 of the muscle relaxant in a day.

(Tr. 816.)

Plaintiff’s physical examination on December 2, 2014 was normal,

except for decreased sensation to light touch and pinprick in the lateral two

fingers of the right hand with positive Tinel’s sign along the ulnar nerve at

the wrist and particularly the elbow; decreased sensation in all toes,

especially the lateral three toes; 4+/5 strength of the right little finger

abductors; 4/5 strength of the left ankle and toe flexors (he was only able to

do one toe raise on the left); 4+/5 strength of the left toe extensors/ankle

dorsiflexors; positive Straight Leg Raising/slump test on the left; and diffuse

tenderness of the lumbar paraspinals. (Tr. 818-19.) Dr. Oliveros diagnosed

persistent low back pain status post lumbar fusion with instrumentation and

probable right ulnar mononeuropathy. (Tr. 819.) Dr. Oliveros refilled

Plaintiff’s medications, including Hydrocodone 10/325, and encouraged

Plaintiff “to remain active as tolerated, but avoid prolonged positioning and

frequently change positions for comfort.” (Id.)

On April 23, 2015, Plaintiff underwent an electrodiagnostic study of his

upper extremities. (Tr. 824.) The study showed “electrophysiologic findings

of a moderate carpal tunnel syndrome bilaterally, slightly worse on the

right,” “electrophysiologic findings consistent with bilateral mild ulnar

mononeuropathy,” and “no electrophysiologic evidence of an active right C5-

T1 radiculopathy.” (Tr. 827.) The following recommendations were made:

In regard to the bilateral CTS [i.e., carpal tunnel syndrome],

recommendations as follows: conservative and surgical

intervention. Trial of conservative care including wrist splints at

neutral/zero position, avoid prolonged/repetitive use of the hands,

allow for frequent microbreaks, short term NSAID’s for 1-2 weeks

at a time for exacerbations, [and] off label use of Neurontin or

Lyrica. Though of limited benefit, trial of Vit[amin] B6

supplements. Recommend follow up EMG/NCS in one year to

determine the status of the carpal tunnel syndromes and the

ulnar mononeuropathies. Advised to try using an elbow cushion

to minimize irritation of the ulnar nerves and avoid prolonged

full elbow flexion. If conservative treatment fails, consider

surgical interventions.

(Tr. 827-28.)

On June 18, 2015, Dr. Oliveros authored a letter stating that Plaintiff

was under his care for the following musculoskeletal conditions:

1. Left SI [i.e., sacroiliac] joint dysfunction likely posterior

torsion[,]

2. Persistent low back pain [status post] lumbar fusion with

instrumentation[,]

3. Probable right ulnar mononeuropathy[,]

4. Moderate CTS bilaterally[, and]

5. Mild ulnar mononeuropathy bilaterally[.]

(Tr. 1004.) The letter also stated:

Despite undergoing low back surgery, though improved,

[Plaintiff] has persistent low [back] pain, interfering with his

function and activities. The current medication regimen[,] i.e.

Butrans 10 mcg weekly and as needed Hydrocodone 10/325 and

Gabapentin[,] has provided him acceptable pain relief allowing

him to remain functional and perform his exercises. Except for

constipation, he denies any other adverse or side effects from the

current medications. He denies cognitive dysfunction[,] such as

drowsiness. It is medically necessary for him to continue with

the current opioid regimen to be able to remain functional and

return to work.

(Id.)

Dr. Oliveros saw Plaintiff multiple times in 2016 ‒ on January 26,

February 18, March 14, April 11, May 9, June 6 and 29, July 27, September

22, October 17, November 17, and December 15. On January 26, 2016,

Plaintiff reported that his back pain was “worse with sitting, standing and

lifting,” was “better with rest, medications and therapy,” and he continued to

have “good” days and “bad” days. (Tr. 754.) Plaintiff’s physical examination

that day was generally normal, except for decreased sensation to light touch

and pinprick in the lateral two fingers of the right hand, with positive Tinel’s

sign along the ulnar nerve at the wrist and particularly the elbow; decreased

sensation in all toes, especially the lateral three toes; positive trigger point

with taut bands affecting the left intrascapular muscles; 4+/5 strength of the

right little finger abductors; 4/5 strength of the left ankle and toe flexors (he

was only able to do one toe raise on the left); 4+/5 strength of the left toe

extensors/ankle dorsiflexors; tenderness of the left SI joint area; and a leg

discrepancy (the left leg was shorter than the right leg). (Tr. 756.) Dr.

Oliveros diagnosed bilateral moderate CTS; bilateral mild ulnar

mononeuropathies; left SI joint dysfunction, likely posterior torsion;

persistent low back pain status post lumbar fusion with instrumentation;

probable right ulnar mononeuropathy; and opioid induced constipation. (Id.)

Plaintiff was advised to “use the lumbar brace/SI belt PRN for

exacerbations.” (Id.)

On February 18, 2016, Plaintiff continued to report “frequent

paresthesia on the ulnar nerve distribution of his hands bilaterally, but

worse on the right.” (Tr. 758.) The physical examination findings and

diagnoses remained the same as in January. (TR. 760.)

On March 14, 2016, Plaintiff reported an exacerbation of his low back

pain, which “was severe enough that he was almost bed-ridden for

approximately 2-3 days,” and “frequent paresthesia on the ulnar nerve

distribution of his hands bilaterally, but worse on the right.” (Tr. 762.) The

physical examination findings remained the same as in the previous visit, but

Plaintiff also had increasing pain with active sitting Straight Leg Raising

test on the left. (Tr. 764.) His diagnoses also remained the same, with the

additional diagnosis of “[e]xacerbation of [the] [l]eft SI joint disfunction[,]

likely anterior torsion.” (Tr. 764.)

On April 11, 2016, in addition to his previous complaints, Plaintiff

reported bilateral upper extremity paresthesia and noted that his arms

would “fall[] asleep” at night. (Tr. 766.) On May 9, 2016, Plaintiff confirmed

these complaints. (Tr. 770.) On that day, he underwent another

electrodiagnostic study of his upper extremities, which revealed

“electrophysiologic findings of a right moderate carpal tunnel syndrome and

of a left mild-moderate carpal tunnel syndrome,” an “electrophysiologic

finding consistent with a mild left ulnar mononeuropathy,” and “no

electrophysiologic evidence of an active right C5-T1 radiculopathy.” (Tr. 777.)

The following recommendations were made:

In regard to the bilateral CTS, recommendations as follows:

conservative and surgical intervention. Trial of conservative care

including wrist splints at neutral/zero position, avoid

prolonged/repetitive use of the hands, allow for frequent

microbreaks, [and] short term NSAID’s for 1-2 weeks at a time

for exacerbations. Continue the Gabapentin for symptomatic

relief. Though of limited benefit, trial of Vit[amin] B6

supplements. Recommend follow up EMG/NCS in one year to

determine the status of the carpal tunnel syndromes and the

ulnar mononeuropathy.

(Id.)

On June 6, 2016, Plaintiff reported that even though he had been

wearing wrist splints at night, he still experienced persistent paresthesia in

both arms and had to frequently reposition himself for comfort, and there was

“tenderness along the medial epicondyle bilaterally.” (Tr. 780.) Dr. Oliveros

reviewed the recent electrodiagnostic study with Plaintiff and recommended

conservative treatment, unless the CTS remained bothersome, in which case

a surgical consultation might be considered, particularly for the right

moderate CTS. (Tr. 783.) In the meantime, in addition to the wrist splints,

he recommended a trial of Voltaren gel to be applied to the wrists and elbows

and an increased dose of Gabapentin. (Id.) Plaintiff was also taking other

medications, such as Hydrocodone 10/325. (Id.)

On June 29, 2016, Dr. Oliveros noted that although Plaintiff felt better

compared to his initial examination, he was “still unable to return to work

due to his pain,” because “he could not tolerate an 8-hour workday[,]

particularly standing/walking and repetitive lifting.” (Tr. 785.) Dr. Oliveros

also noted:

During the interim period, the patient has responded well to

Voltaren gel applied to the elbows and the wrists bilaterally.

There is less tenderness and soreness around the areas.

However, he still has persistent paresthesia in his arms, with

nocturnal exacerbations. Every time he tries to lie on either side,

he experiences diffuse numbness in the forearms and occasionally

into the pectoralis muscles. If he tries to lie supine, the

paresthesia is more distally, into the hands. He has been

wearing his wrist splints at nighttime and the wrist pain has

been less.

(Id.) Dr. Oliveros stated that “the paresthesia ha[d] been tolerable but

remain[ed] worse at night.” (Tr. 788.) He added that if it remained

bothersome, a surgical consultation could be considered, particularly for the

right moderate CTS. (Id.)

On July 27, 2016, Plaintiff complained of pain and swelling in his right

knee, along with his other conditions. (Tr. 750.) A cane was recommended

along with his usual medications and physical therapy. (Tr. 753.) On

September 22, 2016, Plaintiff reported that with the “cervical traction and

therapeutic exercises[,] the paresthesia in his hands ha[d] decreased on a

temporary basis.” (Tr. 842.) On October 17, 2016, Plaintiff made the same

statement. (Tr. 849.)

On November 17, 2016, Dr. Oliveros made the following observations:

The patient continues to have “good” and “bad” days. . . . He has

continued with his physical therapy treatment, which enable[s]

him to be functional.

He is rating his low back and intrascapular pain at 5/10 today. It

is a frequent to constant pain worse with prolonged sitting[,]

bending and lifting. It is better with therapy[,] rest and

medications.

. . .

He has intermittent bilateral knee pain, worse on the right,

associated with crepitation and stiffness, worse with prolonged

standing/walking, kneeling[,] and squatting.

(Tr. 853.)

On physical examination, there was, inter alia, tenderness along the

medial joint line in both knees, worse on the right; tenderness in the

peripatellar area; positive trigger point with taut bands affecting the lower

intrascapular muscles, the left QL/gluteus medius, and the left intrascapular

muscles; increased thoracic kyphosis; 4+/5 strength of the right little finger

abductors; 4/5 strength of the left ankle and toe flexors (he was only able to

do one toe raise on the left); 4+/5 strength of the left toe extensors/ankle

dorsiflexors; tenderness of the left SI joint area; and a leg discrepancy. (Tr.

856.)

Dr. Oliveros diagnosed cervical spondylosis; thoracic spondylosis;

probable right knee degenerative joint disease (“DJD”) and patellofemoral

dysfunction; anxiety; persistent low back pain status post lumbar fusion with

instrumentation; intrascapular pain secondary to myofascial pain and

postural syndrome; right moderate CTS and left mild-moderate CTS; left

mild ulnar mononeuropathy; left SI joint dysfunction likely anterior torsion;

and opioid induced constipation, resolved. (Id.) Dr. Oliveros noted, inter alia,

that with the cervical traction and therapeutic exercises, the paresthesia in

Plaintiff’s hands had decreased on a temporary basis. (Tr. 857.)

During a follow-up visit on December 15, 2016, Dr. Oliveros made the

following observations:

During the interim period, [Plaintiff’s] pain has somewhat

increased. He admits that, due to pain, he has not been as

compliant with his HEP [i.e., home exercise program] as he

should have. Today he is complaining mostly of low back pain

and intrascapular pain. His pain is worse with prolonged

positioning (sitting), bending and lifting. It is better with rest,

therapy and by taking his medications.

(Tr. 862.) On physical examination, some of the abnormal findings included:

decreased sensation to light touch and pinprick in the lateral two fingers of

the right hand with positive Tinel’s sign along the ulnar nerve at the wrist

and particularly the elbow; decreased sensation in all toes, but worse on the

lateral three toes; some dizziness with Dix Hallpike’s maneuver; tenderness

along the medial joint line in both knees, worse on the right; tenderness in

the peripatellar area; positive trigger point with taut bands affecting the

lower intrascapular muscles, the left QL/gluteus medius, and the left

intrascapular muscles; increased thoracic kyphosis; increasing pain on the

left side with active sitting Straight Leg Raising test; 4+/5 strength of the

right little finger abductors; 4/5 strength of the left ankle and toe flexors (he

was only able to do one toe raise on the left); 4+/5 strength of the left toe

extensors/ankle dorsiflexors; tenderness of the left SI joint area; and a leg

discrepancy. (Tr. 864-65.)

Dr. Oliveros diagnosed probable benign paroxysmal positional vertigo

(“BPPV”); cervical spondylosis; thoracic spondylosis; probable right knee DJD

and patellofemoral dysfunction; anxiety; persistent low back pain status post

lumbar fusion with instrumentation; intrascapular pain secondary to

myofascial pain and postural syndrome; right moderate CTS and left mild-

moderate CTS; left mild ulnar mononeuropathy; left SI joint dysfunction

likely anterior torsion; and opioid induced constipation, resolved. (Tr. 865.)

Plaintiff’s medications were re-filled, and he was provided a prescription for

cervical traction, but he was waiting for his insurance to approve it. (Tr.

866.) Plaintiff reported that physical therapy had been helpful and that with

the cervical traction and therapeutic exercises, the paresthesia in his hands

had decreased on a temporary basis. (Id.)

C. The ALJ’s Decision

The ALJ found at step two of the sequential evaluation process5 that

Plaintiff had the following severe impairments: degenerative disc disease of

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

See 20 C.F.R. § 404.1520(a)(4).

the lumbar spine status-post-surgery, cervical spondylosis, bilateral carpal

tunnel syndrome, anxiety, depression, and post-traumatic stress disorder

(“PTSD”). (Tr. 18.) Further, the ALJ found that Plaintiff had the RFC to

perform a range of light work6 with the following limitations:

[The claimant] is limited to occasional climbing of stairs and

ramps and never climbing ladders or scaffolds. The claimant is

limited to occasional balancing, stooping, kneeling, crouching,

and crawling. He can frequently[,] but not constantly[,] perform

fingering and handling bilaterally. The claimant can have no

exposure to industrial types of vibration. He needs to avoid

concentrated exposure to hazards, such as unprotected heights

and moving mechanical parts. The claimant is limited to

understanding, remembering, and carrying out simple

instructions. He can tolerate occasional interaction with

supervisors, coworkers, and the public. The claimant can only

make simple, work-related decisions and tolerate only occasional

change in work location. He is unable to work at a strict

production rate, like the type of rate required to work on an

assembly line.

(Tr. 20.)

In making this finding, the ALJ discussed Plaintiff’s subjective

complaints, the objective medical findings, and the records and opinions of

treating, examining, and non-examining sources. (Tr. 20-27.) The ALJ

addressed Plaintiff’s testimony as follows:

At the hearing, the claimant testified he is unable to work

because of back pain. He testified that he has problems with

6 By definition, light work involves lifting no more than twenty pounds at a

time with frequent lifting or carrying of objects weighing up to ten pounds; it

requires a good deal of walking, standing, or sitting most of the time with some

pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b); SSR 83-10.

standing, walking, and sitting in an office chair. The claimant

stated [that] with pain medication he could walk about 100 feet

and sit for approximately 45 minutes maximum. He testified he

could lift 10 pounds.

Additionally, the claimant complained of problems with

concentration, memory, understanding, following instructions,

completing tasks, and getting along with others (Exhibits 6E and

11E). He reported symptoms such as chest tightness, sweaty

palms, confusion, lightheadedness, and pain that radiated from

his back to his legs (Exhibits 3E and 5E).

(Tr. 21.)

After addressing the medical evidence, the ALJ found that Plaintiff’s

statements about his functional limitations were not entirely consistent with

the medical and other evidence in the record. (Tr. 24.) The ALJ explained:

The imaging studies showing the claimant had degenerative disc

disease of the lumbar spine and cervical spondylosis support[]

limiting the claimant to light work (Exhibits 2F, 3F, 4F, 8F-12F,

14F, 20F, 21F, and 38F). Additionally, the fact the claimant had

multiple lumbar surgeries[,] as well as periodic abnormalities[,]

such as tenderness and decreased range of motion to [sic] the

cervical and lumbar spine, decreased sensation to the lower

extremity, positive straight leg raise, paraspinal muscle spasms,

and antalgic gait[,] supports limiting the claimant to light work

with the postural and environmental limitations described in the

[RFC] (Exhibits 5F, 6F, 7F, 9F, 10F, 11F, 28F-31F and []36F).

Furthermore, the EMG study revealing carpal tunnel syndrome

and the occasional examinations showing positive Tinel’s and

abnormal sensation in the hands, wrists, and/or elbows supports

the manipulative limitations (Exhibits 7F, 9F, 10F, 16F, 30F,

31F, and 36F). Nevertheless, additional or greater limitations

are not supported because of the many examinations that showed

normal muscle strength in all extremities and in grip strength,

normal gait and station, normal coordination, intact sensation,

normal or good range of motion, and no evidence of muscle

atrophy (Exhibits 2F-6F, 9F, 10F, 16F, 17F, 19F, 22F, 28F-31F,

and 34F-36F).

(Tr. 24-25.)

The ALJ then addressed the medical opinion evidence. (Tr. 25-27.)

The ALJ stated:

The claimant’s doctor, Jonathan Greenberg, M.D., opined []he

needed to be off [work for] six weeks and upon return to work was

restricted to lifting 10 to 20 pounds (Exhibits 2F-4F and 14F).

His chiropractor, Mark Boylan, D.C., opined he needed to avoid

body positions and exertions that contributed to physical stress

and increased his symptoms (Exhibit 1F). Another provider,

Pedro T. Oliveros, Jr., M.D., opined the claimant needed to take a

prescribed opioid regimen to remain functional and return to

work (Exhibits 30F and 36F). The treatment notes from

Francisco Rodriguez, M.D., often indicated the claimant was

impaired from work/school (Exhibit 25F).

The consultative examiner, Dr. Perdomo, opined the claimant

could stand and walk for four hours in an eight-hour day with

normal breaks as well as sit for four to six hours in an eight-hour

day with normal breaks (Exhibit 17F). Dr. Perdomo opined the

claimant could occasionally lift and carry no more than 25 pounds

(Id.). He opined the claimant should avoid repetitive bending,

stooping, and crouching but did not require an assistive device for

ambulation (Id.).

(Tr. 25.)

The ALJ found that Dr. Perdomo’s opinions were entitled to “some

weight” because:

These opinions are somewhat consistent with the evidence as [a]

whole. The medical evidence showed the claimant had

degenerative disc disease of the lumbar spine that required

surgical intervention that supports limiting the claimant to light

work with the postural and environmental limitations described

in the [RFC] above (Exhibits 1F-4F, 7F, 9F-11F, 14F, 29F-31F

and 34F-36F). Moreover, the examination findings[,] showing

tenderness to palpation of the cervical and lumbar spine,

decreased sensation in the left lower extremity, and occasional

limited range of motion and positive straight leg [raising test,]

support[] light work and the postural and environmental

restrictions (Exhibits 1F-6F, 9F, 10F, 14F, 16F, 19F, 23F, and

28F). However, the[] opinions are entitled to only some weight

because the evidence supports finding additional or greater

limitations. For example, an EMG revealed bilateral carpal

tunnel syndrome and examinations showed episodes of decreased

sensation or positive Tinel’s sign in the hands, wrists, and/or

elbows (Exhibits 1F, 2F, 3F, 7F, 9F, 10F, 16F, 29F-31F, and 34F-

36F).

(Tr. 25-26.)

Then, the ALJ gave “little weight” to the opinions of Dr. Greenberg, Dr.

Boylan, Dr. Oliveros, and Dr. Rodriguez for the following reasons:

These opinions are entitled to little weight because they are not

consistent with the evidence as a whole. First, the opinion from

Dr. Greenberg appeared to be temporary in nature (Exhibits 2F-

4F and 14F). Second, the opinions from Dr. Boylan and Dr.

Oliveros are vague and do not provide any explanation of how the

claimant is functionally limited (Exhibits 1F, 30F, and 36F).

Third, the opinion from Dr. Rodriguez is also vague and does not

provide any functional limitations nor does the opinion explain

what causes the claimant to be impaired from those activities

(Exhibit 25F). Fourth, the evidence does not support their

opinions because multiple examinations showed the claimant had

normal muscle strength, normal motor function, normal muscle

bulk or tone, intact sensation, normal range of motion, and a

normal gait, station, and coordination (Exhibits 3F, 5F, 6F, 7F,

9F-11F, 16F, 17F, 19F, 22F, 28F-31F, and 34F-36F).

Additionally, some of the opinions address issues reserved to the

Commissioner, i.e., whether the claimant is disabled and the

claimant’s ability to work (20 CFR § 404.1527(d)).

(Tr. 26.)

The ALJ concluded that the RFC assessment was “supported by the

imaging studies, the objective findings, the mental status examinations, the

claimant’s statements to his treating providers, and the impressions and

assessments reported by the medical professionals.” (Tr. 27.) Then, at step

four, the ALJ determined that Plaintiff was unable to perform any past

relevant work. (Id.) However, at the fifth and final step of the sequential

evaluation, the ALJ determined, after considering Plaintiff’s age, education,

work experience, RFC, and the testimony of the Vocational Expert (“VE”),

that there were jobs existing in significant numbers in the national economy

that Plaintiff could perform, such as a mailroom clerk, an office assistant,

and a routing clerk. (Tr. 28-29.) All of these representative occupations are

light, unskilled, with a Specific Vocational Preparation (“SVP”) of 2. (Id.)

D. Analysis

The Court agrees with Plaintiff that the ALJ’s failure to account for (or

properly discount) Dr. Oliveros’s opinion warrants a remand. On April 23,

2015 and May 9, 2016, based on the results of electrodiagnostic tests that

took place on the same dates, Dr. Oliveros opined that Plaintiff needed to

avoid prolonged/repetitive use of the hands and to allow for frequent

microbreaks. (Tr. 777, 827-28.) The ALJ did not consider this opinion and

did not seem to incorporate it in the RFC assessment which, inter alia,

limited Plaintiff to “frequent[] . . . fingering and handling bilaterally.” (Tr.

20.) In the decision, the ALJ mentioned, and accorded “little weight” to,

another opinion by Dr. Oliveros, namely, that it was medically necessary for

Plaintiff to continue with his current opioid regimen to be able to remain

functional and to return to work. (Tr. 25-26 (stating that this opinion was

entitled to little weight because it was vague and did not provide any

explanation of how functionally limited Plaintiff was); Tr. 1004.)

In light of the ALJ’s consideration of Dr. Oliveros’s opinion as to

Plaintiff’s opioid regimen, Defendant urges the Court to affirm the ALJ’s

decision and argues that the reasons for discounting one of Dr. Oliveros’s

opinions would apply with full force to the other opinion regarding avoiding

prolonged/repetitive use of the hands and allowing for frequent microbreaks.

It seems that Defendant urges the Court to accept a post hoc rationalization

for affirming the administrative decision. (See Doc. 22 at 10.) However, the

Court cannot do so. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1964) (“[A]

simple but fundamental rule of administrative law . . . [is] that a reviewing

court, in dealing with a determination or judgment which an administrative

agency alone is authorized to make, must judge the propriety of such action

solely by the grounds invoked by the agency.”).

However, assuming arguendo that the ALJ intended to cite the same

reasons for not crediting any of Dr. Oliveros’s opinions, those reasons are not

supported by substantial evidence. Dr. Oliveros’s opinion that Plaintiff

needed to avoid prolonged/repetitive use of the hands and to allow for

frequent microbreaks speaks directly about Plaintiff’s functional limitations,

is not on an issue reserved to the Commissioner, and does not seem to be

vague. Moreover, this opinion is supported by the evidence of record,

including the electrodiagnostic tests that took place on the same dates, the

examination findings and impressions, and Plaintiff’s statements to his

treating providers.

For example, Plaintiff regularly reported “constant paresthesia and

coldness in the middle, ring and little finger of his right hand” and/or

“persistent paresthesia in both arms,” despite treatment, and noted that his

arms would “fall[] asleep” at night. (Tr. 766, 770, 780, 785, 788, 817; see also

Tr. 758, 762; but see Tr. 842, 849, 857, 866 (noting that the paresthesia in the

hands had decreased temporarily).) His complaints were confirmed on

physical examination, which consistently showed decreased sensation to light

touch and pinprick in the lateral two fingers of the right hand with positive

Tinel’s sign along the ulnar nerve at the wrist and elbow and diminished

strength of the right little finger abductors, among other abnormal findings.

(Tr. 756, 760, 764, 818-19, 856, 864-65.)

The electrodiagnostic study of Plaintiff’s upper extremities from April

23, 2015 showed “moderate carpal tunnel syndrome bilaterally, slightly worse

on the right” and “bilateral mild ulnar mononeuropathy.” (Tr. 827.) The

electrodiagnostic study from May 9, 2016 revealed “a right moderate carpal

tunnel syndrome,” “a left mild-moderate carpal tunnel syndrome,” and “a

mild left ulnar mononeuropathy.” (Tr. 777.) Dr. Oliveros’s opinion was based

on the results of these electrodiagnostic tests and was consistent with

Plaintiff’s reported complaints and examination findings.

Defendant states that “the ALJ already included manipulative

limitations in the RFC finding, limiting Plaintiff to frequent, but not

constant, handling and fingering bilaterally, which would account for any

limitation to ‘prolonged and repetitive use of the hands,’ arguably

encompassing any manipulative limitation opined by Dr. Oliveros.” (Doc. 22

at 10.) Even if the Court could speculate whether the RFC assessment

encompasses Dr. Oliveros’s opinion as to the need to avoid

prolonged/repetitive use of the hands, there is no indication that the ALJ

either took into account or properly discounted the other part of Dr.

Oliveros’s opinion pertaining to the need to take frequent microbreaks.

Based on the foregoing, a remand is appropriate so the ALJ may

reconsider Dr. Oliveros’s opinions. In light of this conclusion, the Court need

not separately address Plaintiff’s second argument. See Jackson v. Bowen,

801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam); Freese v. Astrue, 2008

WL 1777722, at *3 (M.D. Fla. Apr. 18, 2008); see also Demenech v. Sec’y of the

Dep’t of Health & Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per

curiam). However, on remand, the ALJ should also reconsider Plaintiff’s

testimony regarding pain and limitations.

Accordingly, it is ORDERED:

1. The Commissioner’s decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ

to: (a) reconsider the opinions of Dr. Oliveros, explain what weight they are

being accorded, and the reasons therefor; (b) reconsider Plaintiff’s testimony

regarding pain and limitations; (c) reconsider the RFC assessment, if

necessary; and (d) conduct any further proceedings deemed appropriate.

2. The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.

3. In the event that benefits are awarded on remand, any § 406(b)

or § 1383(d)(2) fee application shall be filed within the parameters set forth

by the Order entered in In re: Procedures for Applying for Attorney’s Fees

Under 42 U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D.

Fla. Nov. 13, 2012). This Order does not extend the time limits for filing a

motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. §

2412.

DONE AND ORDERED at Jacksonville, Florida, on March 2, 2021.

; MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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