Spinelli v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

FRANK SPINELLI,

Plaintiff,

v. CASE No. 8:20-cv-609-TGW

KILOLO KIJAKAZI,

Acting Commissioner of Social Security, |

Defendant.

ee

ORDER

The plaintiff seeks judicial review of the denial of his claim for

Social Security disability benefits.2 Because the Commissioner’ s finding

that the plaintiff experienced substantial post-operative improvement is

inconsistent with his determination that the plaintiffs residual functional

capacity did not change during the alleged disability period, the decision will

be reversed and remanded for further consideration. .

'Kilolo Kijakazi became the Commissioner of Social Security on July 9, 2021, and

should be substituted as the defendant. See Fed. R. Civ. P. 25(d).

parties have consented in this case to the exercise of jurisdiction by a United

States Magistrate Judge (Doc. 12).

I.

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The plaintiff, who was fifty-six years old at the time of the

administrative hearing and who has a high school education, has worked as

a corrections officer (Tr. 23). He filed a claim for Social Security disability

benefits, alleging that he became disabled due to low back pain with

herniations and nerve impingements, a torn right shoulder rotator cuff,

depression, anxiety, high blood pressure, and right elbow and hand weakness

and shaking (Tr. 393). The claim was denied initially and upon

reconsideration.

The plaintiff then had a de novo hearing before an

administrative law judge, who found that the plaintiff had several severe

impairments, but that they were not disabling (see Tr. 173-181). The

Appeals Council granted review of that decision and remanded the case for

further proceedings (Tr. 191-92),

The same law judge conducted another hearing. He found that

the plaintiff had severe impairments of degenerative disc disease of the

lumbar and cervical spine, lumbar herniated nucleus pulposus (“HNP”) with

radiculopathy, status post-lumbar and cervical fusion, migraine headaches,

and bilateral shoulder disorders (Tr. 18). The law judge concluded that

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with those impairments the plaintiff had the residual functional capacity to

perform

light work as defined in 20 CFR 404.15 67(b), with 3

the ability to lift 20 pounds occasionally, lift and

carry 10 pounds frequently, stand and walk for

about 6 hours, and sit for up to 6 hoursinan 8-hour °: . |

workday with normal breaks. He must avoid

climbing ropes and scaffolds but can frequently

navigate stairs and ladders. He can frequently

balance, stoop, kneel and crouch, and he can

occasionally crawl. Further, he can frequently

reach bilaterally but can reach overhead only :

occasionally. He must avoid concentrated

exposure to extreme cold, excessive vibration, and

to use of hazardous, industrial machinery.

(Tr. 19-20).

The law judge determined that with those limitations the

plaintiff could not perform past relevant work (Tr. 23). However, based

upon the testimony of a vocational expert, the law judge found that jobs

existed in significant numbers in the national economy that the’ plaintiff

could perform, such as a security guard (Tr. 24). Accordingly, the law

judge decided that the plaintiff was not disabled (id.). The Appeals Council

let the decision of the law judge stand as the final decision of the

Commissioner.

Il.

In order to be entitled to Social Security disability benefits, a

claimant must be unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which

... has lasted or can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. 423(d)(1)(A). A “physical or mental

impairment,” under the terms of the Act, is one “that results from anatomical,

physiological, or psychological abnormalities which are “femonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42

U.S.C. 423(d)(3).

A determination by the Commissioner that a claimant 7 not

disabled must be upheld if it is supported by substantial evidence. 42

U.S.C. 405(g). Substantial evidence is “such relevant evidence, as a

reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Under the stibstantial

evidence test, “findings of fact made by administrative agencies ... may be

reversed ... only when the record compels a reversal; the mere fact that the

record may support a contrary conclusion is not enough to justify a reversal

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of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc).

It is, moreover, the function of the Commissioner, and not the

courts, to resolve conflicts in the evidence and to assess the credibility of the

witnesses. Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971). Similarly,

it is the responsibility of the Commissioner to draw inferences from the

evidence, and those inferences are not to be overturned if they are supported

by substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990 (Sth

Cir, 1963).

Therefore, in determining whether the Commissioner's decision

is supported by substantial evidence, the court is not to reweigh the evidence,

but is limited to determining whether the record as a whole contains

sufficient evidence to permit a reasonable mind to conclude that the claimant

is not disabled. However, the court, in its review, must satisfy itself that

the proper legal standards were applied and legal requirements were met.

Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988).

III.

The relevant time period for this claim is the six-year period

between December 20, 2013 (the alleged disability onset date) and

December 30, 2019 (the date of the law Judge’s decision) (Tr. 16). The law

judge found, with the plaintiffs improved functioning after spinal surgery,

that the plaintiff could perform a range of light work and, therefore, he was

not disabled. The plaintiff contends that the law judge failed to consider a

closed period of disability for the time before his back and neck surgeries.

The law judge discussed that the plaintiff underwent two ppinal

surgeries. He noted objective medical evidence showing that the surgeries

were successful, and he found that the surgeries significantly alleviated the

plaintiff's back and neck symptoms (see Tr. 22, 23).

Specifically, the law judge recounted that, before surgery in

2015, a lumbar MRI showed the plaintiff had (Tr. 20):

herniation at L1-L2, herniation at L3-L4, L2-L3

extrusion abutting the L2 exiting nerve on right,

broad based disc herniation at L3-4, broad based

dise protrusion and flattening at L4-5, and facet

hypertrophy and arthropathy at L5-S1.

However, as the law judge noted, the plaintiff's back and leg pain, improved

after the plaintiff's fusion and laminectomy in 2016, and imaging showed

that the plaintiffs multilevel spondylosis was stable (Tr. 21). Additionally,

a post-surgery MRI showed that the plaintiff had “[nJo flumbar] disc

herniation, fracture or spinal stenosis” (Tr. 777).

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Furthermore, the law judge discussed that, in 201 6, the Plaintiff

complained of neck pain that radiated to both arms and that, in 201 7, the

plaintiff had “positive impingement signs in his right shoulder” (Tr. 21). A

cervical MRI in January 2017 showed multiple disc bulges and a herniated

disc, anterolisthesis, and severe compression of left C6 and C7 nerve roots

(Tr. 1141, 878-79). The plaintiff was diagnosed with cervical disc

herniation (Tr. 987).

However, following the plaintiff’s cervical fusion in December

2017, “the [plaintiff] no longer showed impingement signs in either shoulder

and complained of no acromioclavicular pain bilaterally” (Tr. 21), The law

judge added that the plaintiff regained

full neck mobility and was not tender to palpitation

of the cervical spine except in the left lower °-

paraspinal region. Notably, he displayed full

range of motion in his bilateral shoulders and had

normal cervical sensation at C5-Cg despite a

diagnosis of C7-T] spondylosis. In November,

the claimant reported 80% relief of his neck

symptoms after surgery ....

(Tr. 21-22, exhibit citations omitted).

Moreover, the law judge relied on evidence of the plaintiff's

medical improvement in discounting the opinions of two physicians that the

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plaintiff was limited to sedentary work (see Tr. 22-23). Thus, he| rejected

reviewing physician Andrew Brown’s opinion that the plaintiff was limited

to sedentary work partly because Dr. Brown “[did] not have the benefit of

reviewing the [plaintiffs medical] records post-cervical fusion, which

Suggest the [plaintiff] experienced significant Symptom relief from the

surgery” (Doc. 22, p. 9, citing Tr. 23), Additionally, the law judge gave

limited weight to examining physician Vincent Kiesel’s opinion because it

was “issued ... prior to the claimant’s April 2016 surgery, which aijeviated

some of the claimant’s symptoms” (Tr. 22-23),

Conversely, the law Judge afforded some weight to reviewing

physician Dr. Cynthia Kimble’s opinion that the plaintiff could perform light

work because her opinion is “consistent with medical records showing

improvement in back Symptoms since surgery in April 2016 and

improvement in neck symptoms since surgery in 2017” (Tr. 22).

Notwithstanding the law Judge’s findings of medical

improvement, the law judge determined that the plaintiff had ‘the same

residual functional capacity for the entire alleged disability period (Tr. 19-

20). The plaintiff contends this was error.

In this regard, the plaintiff argues (Doc. 22, p. 7):

°

[t]he flaw in the logic of the [law Judge’s] decision

is that if the claimant had improved after his

surgeries, he must have had a different residual :

functional capacity prior to the surgeries, than after

the surgeries. Otherwise, the decision would not ° - !

have noted medical improvement.

Therefore, the plaintiff contends (id., p. 8),

[t]he decision should have contained two residual

functional capacity assessments, one prior to the

dates of the surgeries, and a reasonable time for

recovery, and one after the surgeries and a 2

reasonable time for recovery.

Moreover, the plaintiff asserts, this is not harmless error because he may be

entitled to a closed period of disability.

The plaintiff is correct that the decision contains a material

inconsistency. Thus, the law judge unquestionably found that the plaintiff's

condition improved after surgery (see supra, pp. 6~8). Furthermore, the law

judge relied upon the plaintiff's post-surgical improvement to discount two

physicians’ opinions limiting the plaintiff to sedentary work (see supra, p.

8). However, the law judge’s determination of the residual functional

capacity does not reflect changes in the plaintiffs pre- and post-surgery

: .

functioning.

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Due to this inconsistency, the law judge’s finding that the

plaintiff would have the same residual functional capacity throughout the

alleged disability period is not supported by substantial evidence.

Accordingly, it is appropriate to remand the matter for further consideration.

See Kelly v. Heckler, 736 F.2d 631, 632 (11th Cir. 1984) (remanding a case

when two findings appear inconsistent and they cannot be reconciled from

the law judge’s decision); Hendley v. Astrue, No. 5:10-cv-398 CAR, :2012

WL 1019165, at *1 (M.D. Ga.) (“because the ALJ’s findings appear

contradictory, and because the Court cannot discern a reasonable path for the

ALJ’s decision, the Court cannot conclude that the ALJ’s smo was

harmless”). .

The Commissioner attempts to gloss over this inconsistency,

arguing that the law judge’s “‘suggest[ion] that [the plaintiff] was ‘more

disabled and limited prior to his surgery in 2018’ ignores the ALI’s |

findings ... that Plaintiff failed to prove his disability at any point in the

relevant period” (Doc. 23, p. 15). The Commissioner’s response misses the

point of the plaintiffs argument. Thus, it does not matter that the post-

surgery RFC is supported by substantial evidence, since the sin does

not argue to the contrary. Rather, the plaintiff points out that the law pe

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expressly found that the plaintiff's surgeries improved his conditions, and

that improvement is neither reflected in the plaintiff's RFC nor explained

why it was not. Without an explanation, there is an apparent inconsistency

that precludes meaningful judicial review of the plaintiff's contention that a

closed period of disability was warranted. See Ryan v. Heckler, 762 F.2d

939 (11th Cir. 1985).

It is, therefore, upon consideration,

ORDERED:

That the decision of the Commissioner of Social Security is

REVERSED and the matter remanded for further proceedings. The Clerk

shall enter judgment in accordance with this Order and CLOSE this case.

DONE and ORDERED at Tampa, Florida, this of

September 2021.

Diva 77. NA

THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE

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