The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RUBEN ELEAZAR JARAMILLO,
Plaintiff,
v. Case No.: 6:20-cv-1722-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Ruben Eleazar Jaramillo seeks judicial review of the final decision
of the Commissioner of the Social Security Administration (“SSA”) denying his
claim for a period of disability and disability insurance benefits. The Commissioner
filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by
the appropriate page number), and the parties filed a joint legal memoranda setting
forth their respective positions. For the reasons set out herein, the decision of the
Commissioner is REVERSED and REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
I. Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A. Social Security Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death, or which has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do his previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004).
In conducting this review, this Court may not reweigh the evidence or substitute its
judgment for that of the ALJ, but must consider the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted); Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s conclusions of
law are not presumed valid and are reviewed under a de novo standard. Keeton v.
Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); Maldonado
v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2 (11th Cir. July 8,
2021); Martin, 894 F.2d at 1529. “The [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.” Keeton, 21 F.3d at
1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is currently engaged in substantial gainful employment. 20 C.F.R.
§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform his past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits him to perform other work that
exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g),
416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove he is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff filed an application for a period of disability and disability insurance
benefits on August 2, 2018, alleging disability beginning May 1, 2018. (Tr. 102,
190-91). The application was denied initially on December 7, 2018, and upon
reconsideration on March 12, 2019. (Tr. 102, 119). Plaintiff requested a hearing and
on December 30, 2019, a hearing was held before Administrative Law Judge
(“ALJ”) Julio Ocampo. (Tr. 35-72). On January 27, 2020, the ALJ entered a decision
finding Plaintiff not disabled from May 1, 2018, through the date of the decision.
(Tr. 16-29).
Plaintiff requested review of the hearing decision, but the Appeals Council
denied Plaintiff’s request on July 28, 2020. (Tr. 1-6). Plaintiff initiated the instant
action by Complaint (Doc. 1) filed on September 21, 2020, and the case is ripe for
review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 23).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff meets the insured status requirements
of the Social Security Act through December 31, 2022. (Tr. 18). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since May 1, 2018, the alleged onset date. (Tr. 18). At step two, the
ALJ found that Plaintiff had the following severe impairments: “multiple sclerosis,
urinary tract disorder, spine disorder, status/post C6/7 anterior cervical discectomy
with allograft, depression, anxiety, and neurocognitive disorder.” (Tr. 18). At step
three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 §§ C.F.R.
404.1520(d), 404.1525, and 404.1526). (Tr. 19).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform less
than the full range of sedentary work as defined in 20 [C.F.R.
§] 404.1567(a). The claimant can frequently reach in all
directions bilaterally. The claimant can frequently handle and
finger bilaterally. The claimant can occasionally climb ramps
and stairs, but can never climb ladders, ropes, or scaffolding.
The claimant can occasionally balance, stoop, knee, crouch,
and crawl. The claimant may only occasionally work at
unprotected heights and around moving mechanical parts. The
claimant can only have occasional exposure to humidity and
wetness, dust, odor, fumes, or other pulmonary irritants. The
claimant can only have occasional exposure to extreme cold
and extreme heat. The claimant is limited to unskilled work
because he is limited to performing simple routine tasks and
making simple work[-] related decisions.
(Tr. 20). At step four, the ALJ found that Plaintiff was unable to perform his past
relevant work as a music teacher, elementary school teacher, and teacher aide I. (Tr.
27).
At step five, the ALJ relied on the testimony of a vocational expert to find that
considering Plaintiff’s age (45 on the alleged onset date), education (at least high
school), work experience, and RFC, there are jobs that exist in significant numbers
in the national economy that Plaintiff could perform. (Tr. 27-28). Specifically, the
ALJ found that Plaintiff could perform such occupations as:
(1) addresser, DOT1 209-587.010, sedentary, SVP 2
(2) touch up screener (printer circuit board assembly), DOT 726.684-110,
sedentary, SVP 2
(3) lacquerer, DOT 715.684-138, sedentary, SVP 2.
(Tr. 28). The ALJ concluded that Plaintiff had not been under a disability from May
1, 2018, through the date of the decision. (Tr. 29).
II. Analysis
On appeal, Plaintiff raises a single issue: whether the ALJ applied the correct
legal standards to Plaintiff’s testimony regarding his limitations. (Doc. 25, p. 14).
Plaintiff argues the ALJ’s reasons for rejecting Plaintiff’s testimony regarding his
limitations is insufficient and not supported by substantial evidence. (Doc. 25, p.
16). The Commissioner contends the ALJ properly reviewed the entire record
including Plaintiff’s subjective complaints in accordance with the appropriate
regulatory criteria and legal authority. (Doc. 25, p. 19).
1 DOT refers to the Dictionary of Occupational Titles.
A claimant may establish that he is disabled through his own testimony of
pain or other subjective symptoms. Ross v. Comm’r of Soc. Sec., 794 F. App’x 858,
867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
In such a case, a claimant must establish:
“(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. (quoting Dyer, 395 F.3d at 1210). When evaluating a claimant’s testimony, the
ALJ should consider: “(1) the claimant’s daily activities; (2) the ‘duration,
frequency, and intensity’ of the claimant’s symptoms; (3) ‘[p]recipitating and
aggravating factors’; (4) the effectiveness and side effects of any medications; and
(5) treatment or other measures taken by the claimant to alleviate symptoms.” Id.
(quoting 20 C.F.R. §§ 404.1529(c), 416.929(c)(3)). The ALJ must consider these
factors given all of the evidence of record. Id. And if the ALJ discredits this
testimony, then the ALJ “‘must clearly articulate explicit and adequate reasons for’
doing so.” Id. (quoting Dyer, 395 F.3d at 1210). The ALJ may consider the
consistency of the claimant’s statements along with the rest of the record to reach
this determination. Id. Such findings “‘are the province of the ALJ,’ and we will ‘not
disturb a clearly articulated credibility finding supported by substantial evidence.’”
Id. (quoting Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014)).
A decision will be affirmed as long as the decision is not a “broad rejection which is
not enough to enable [a reviewing court] to conclude that the ALJ considered [the
claimant’s] medical condition as a whole.” Dyer, 395 F.3d at 1211 (quotation and
backets omitted).
In the decision, the ALJ made the following findings as to Plaintiff’s
subjective complaints:
After careful consideration of the evidence, I find that
the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision.
As for the claimant’s statements about the intensity,
persistence, and limiting effects of his or her symptoms, they
are inconsistent because the medical evidence of record does
not support the claimant’s allegations that he has frequent
urinary accidents or that he goes to the bathroom ten times a
day and has to be near a bathroom. The treatment record from
Dr. Havkin showed the claimant recommended further
treatment, but the claimant did not proceed with further testing.
Later examinations noted the claimant no longer required the
use of a catheter.
(Tr. 26).
Plaintiff argues that the ALJ’s findings that the record does not support
Plaintiff’s allegations that he has frequent urinary accidents, goes to the bathroom
ten times a day, and has to be near a bathroom is belied by the record. (Doc. 25, p.
18). Plaintiff also argues that even though the ALJ claimed Boris Havkin, M.D.
recommended further treatment or testing, the ALJ did not support this statement
with citation to the record and it is unclear what further treatment or testing he was
referencing. (Doc. 25, p. 16). And finally, Plaintiff argues that the ALJ provided no
reasons why he rejected Plaintiff’s testimony regarding his severe fatigue and
resultant limitations. (Doc. 25, p. 18).
The ALJ found Plaintiff’s statements that he had frequent urinary accidents,
he went to the bathroom ten times a day, and he had to be near a bathroom
inconsistent with and unsupported by the medical evidence of record. (Tr. 26). In the
decision, the ALJ noted the following regarding Plaintiff’s urinary issues. Plaintiff
sought emergency medical treatment for decreased urine output and inability to void
his bladder. (Tr. 22). Plaintiff reported episodes of increased urinary frequency and
would occasionally urinate on himself. (Tr. 22). Plaintiff had a Foley catheter
inserted so that he could void urine. (Tr. 22). Dr. Havkin’s November 28, 2018
treatment note regarding urinary retention reported that while the catheter was
inserted, Plaintiff was prescribed an antibiotic for a urinary tract infection. (Tr. 22).
In early December 2018, Plaintiff sought emergency treatment for problems with his
Foley catheter, which was replaced, allowing him to empty his bladder. (Tr. 22).
Later in December, the ALJ noted that Plaintiff returned to Dr. Havkin for continued
painful urination. (Tr. 23). Plaintiff underwent a complete circumferential
cystoscopy, including retroflexion with the bladder. (Tr. 23). At a consultative
examination conducted by Monika Lippold, M.D. in January 2019, Plaintiff reported
some urinary incontinence, had a small amount of spillage twice a week, and was no
longer catheterized. (Tr. 24).
The medical records as cited by the ALJ are replete with treatments for urinary
problems such as being unable to void the bladder, frequent urination, and
incontinence. Dr. Havkin found that some of these issues are tied to Plaintiff’s long-
standing history of multiple sclerosis, “and therefore [there is a] significant potential
impact of the diagnosis on his lower urinary tract function.” (Tr. 584). The ALJ
failed to cite to any medical records that are inconsistent with or do not support
Plaintiff’s claims of frequent urinary accidents, his need for frequent bathroom
visits, or his need to be near a bathroom.
The ALJ also found Plaintiff’s subjective complaints inconsistent with the
record because “[t]he treatment record from Dr. Havkin showed the claimant
recommended further treatment, but the claimant did not proceed with further
testing.” (Tr. 26).2 In November 2018, Dr. Havkin recommended further objective
evaluation with TRUS/UDS/cystourethroscopy3 prior to making other therapeutic
recommendations. (Tr. 584). In December 2018, Plaintiff had a cystourethroscopy
2 The ALJ’s statement is unclear. It is doubtful that “the claimant recommended further treatment.”
(Tr. 26). From the context, the Court interprets the statement to mean that Dr. Havkin
recommended further treatment or testing.
3 “TRUS” stands for trans rectal ultrasound guided biopsy and “UDS” stands for urodynamic
studies which tests the bladder, sphincters, and urethra.
performed by Dr. Havkin and his TRUS was reviewed. (Tr. 572). Dr. Havkin found
Plaintiff would not benefit from any aggressive treatments. (Tr. 572). The ALJ failed
to cite to medical records that support his statement that Dr. Havkin recommended
further unidentified tests or treatment that Plaintiff refused or failed to complete.
Considering the evidence as a whole, the ALJ’s reasons to discount Plaintiff’s
subjective complaints concerning his urinary problems and suggested treatment or
testing are not supported by substantial evidence. Plaintiff complained of urinary
frequency and incontinence and the medical records show the medical providers
treated Plaintiff for these ongoing complaints. And without citation to the record, the
ALJ’s statement that Plaintiff did not proceed with some unidentified treatment or
testing is not supported by the record. For these reasons, the Court will remand this
action to the Commissioner to reconsider Plaintiff’s subjective complaints. Upon
remand, the Commissioner is directed to also consider Plaintiff’s allegations of
severe fatigue and any resultant limitations.
III. Conclusion
The decision of the Commissioner is REVERSED, and this action is
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for the Commissioner
to reconsider Plaintiff’s subjective symptoms in conjunction with the other evidence
of record. The Clerk of Court is directed to enter judgment consistent with this
opinion, terminate any motions and deadlines, and thereafter close the file.
DONE and ORDERED in Fort Myers, Florida on October 1, 2021.
sou TLAS N. ce
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties