Torres v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-80037-CIV-MATTHEWMAN

VICTOR JOSUE TORRES,

Plaintiff,

v.

KILOLO KIJAKAZI,1

Acting Commissioner of Social Security

Administration,

Defendant

______________________________________/

ORDER ON MOTIONS FOR SUMMARY JUDGMENT [DEs 35, 38]

THIS CAUSE is before the Court upon Plaintiff, Victor Josue Torres’ (“Plaintiff”) Motion

for Summary Judgment [DE 35], and Defendant, Kilolo Kijakazi, the Acting Commissioner of

Social Security’s (“Defendant”) Motion for Summary Judgment [DE 38]. Plaintiff has also filed a

reply [DE 40]. The motions are fully briefed and ripe for review. The issue before the Court is

whether the record contains substantial evidence to support the denial of benefits to Plaintiff and

whether the correct legal standards have been applied. Lamb v. Bowen, 847 F.2d 698, 701 (11th

Cir. 1988).

I. FACTS

On December 17, 2018, Plaintiff filed a Title II application for disability and disability

insurance benefits, and a Title XVI application for supplemental security income, alleging an

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Therefore, pursuant to Rule

25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew Saul as the defendant

in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the

Social Security Act, 42 U.S.C. 405(g).

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amended disability onset date of September 26, 2018. [R. 15].2 The claim was denied initially and

upon reconsideration. [R. 15]. Following a telephone hearing on June 1, 2020 [R. 59–86], the

Administrative Law Judge (“ALJ”), Rosanna L. D’Alessio, issued a decision on June 10, 2020,

denying Plaintiff’s request for disability benefits and supplemental security income. [R. 15–28].

A request for review was filed with the Appeals Council and denied on October 22, 2020. [R. 1–

6].

A. Relevant Hearing Testimony

The ALJ held a hearing by telephone on June 1, 2020. [R. 37]. Plaintiff appeared and was

represented by counsel. [R. 37]. At the hearing, a consultative medical examiner; Plaintiff; and a

vocational expert testified.

1. Consultative Medical Examiner

Dr. Steven Goldstein, a consultative medical examiner, testified first as a stipulated medical

expert. [R. 43–48]. Based on his review of the medical evidence of record, Dr. Goldstein described

Plaintiff’s impairments as follows: (1) a seizure disorder, thought to be post-traumatic from

Plaintiff’s head injury,3 with the seizures sounding “like some of them may be complex partial

seizures with secondary generalization”; (2) headaches stemming from a concussion and

medication overuse; (3) left rotator cuff tendonitis; (4) decreased hearing in the left ear; (5) a

traumatic brain injury;4 and (6) a moderate disc bulge and moderate bilateral foraminal narrowing

2 All references are to the record of the administrative proceeding filed by the Commissioner at Docket Entry 27.

3 Plaintiff briefly testified that his head injury stemmed from an assault which he did not remember. [R. 76]. Plaintiff

believed the assault began with an altercation over a girl and remembered his attacker picking him up and slamming

him. [R. 76].

4 Dr. Goldstein appeared to qualify this impairment by noting that he “did not see anyone else note that anywhere in

the record.” [R. 44]. Additionally, Dr. Goldstein stated that Plaintiff’s “decreased sensation on the right side of the

body, and . . . fine tremor in the right side” were not seen “elsewhere in the record.” [R. 44]. When the tremors were

then pointed out in the record, Dr. Goldstein testified that he “didn’t see any exam that showed” them. [R. 46].

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of the lumbar spine. [R. 43–45]. In describing Plaintiff’s impairments, Dr. Goldstein noted that

Plaintiff was a smoker, used marijuana, and had used cocaine as recently as September of 2019.

[R. 44–45]. Accordingly, with Plaintiff’s stated impairments and drug use in mind, Dr. Goldstein

testified that Plaintiff’s impairments did not meet or medically equal the severity of any listed

impairment. [R. 46].

Dr. Goldstein then testified concerning Plaintiff’s limitations. In general, Dr. Goldstein

testified that he “would certainly think [Plaintiff] would be limited to a light level of physical

activities” based on Plaintiff’s overall impairments, including “the usual seizure precautions, such

as not driving . . . [or] being near any dangerous heights or moving machinery.” [R. 46]. More

specifically, with respect to limitations stemming from Plaintiff’s rotator cuff tendonitis, Dr.

Goldstein stated he was “not sure that was something that lasted a 12-month period.” [R. 46–47].

As to limitations stemming from Plaintiff’s headaches, Dr. Goldstein noted that Plaintiff’s

headaches “seemed to affect his ability to concentrate.” [R. 47]. However, Dr. Goldstein also stated

that “obviously, [Plaintiff’s] head injury might affect his ability to concentrate” and that Plaintiff’s

marijuana and cocaine use could also affect his ability to concentrate. [R. 47]. And, with respect

to Plaintiff’s hallucinations and insomnia—which Dr. Goldstein did not include as impairments—

Dr. Goldstein testified that he was “not commenting on the psychiatric aspects of the case.” [R.

48].

2. Plaintiff

Plaintiff testified next, establishing the following facts. Plaintiff was 37 years old at the

time of the hearing. [R. 49]. He completed seventh grade but did not make it through to the end of

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eighth grade. [R. 49]. He is “ESE” and does not read or write at all. [R. 81]. In fact, Plaintiff

required assistance when filling out his Social Security forms. [R. 56].

According to Plaintiff, he last worked a couple of months prior to the hearing. [R. 49].

However, Plaintiff did not stay at that job for more than a week and ended up in the hospital. [R.

50]. Before that, in 2013 and from 2015 through 2018, Plaintiff drove a backhoe and worked as a

heavy equipment operator, which Plaintiff described as “driving.” [R. 50–51]. In 2011, Plaintiff

worked as an “electrician helper,” although he could not recall how long he had worked at that job

because he did not “remember so many things.” [R. 52]. That same year, Plaintiff also worked in

construction, doing “home repairs, and plumbing,” as well as “whatever . . . needed to be done.”

[R. 52–53]. As part of these jobs, Plaintiff testified that he lifted “a lot of weight,” including sheet

rock and wiring in excess of 100 pounds. [R. 53–54].

Plaintiff is right-handed and has tremors. [R. 55]. His fingers and hands lock up and he

“can’t get them to do what [he] want[s] them to do.” [R. 55]. When his fingers or hands lock up,

he loses all strength and “go[es] to shaking bad and . . . can’t grip anything.” [R. 55]. While Plaintiff

previously had tremors once every three months, Plaintiff now has them almost every day. [R. 56].

Similarly, Plaintiff also has seizures almost every day. [R. 57]. Plaintiff described a great

week as being when he can go three or four days without having a seizure.5 [R. 57]. Plaintiff’s

seizures “just keep[] getting worse,” and paralyze and frighten him. [R. 57]. He is uncertain about

the duration of his seizures when he is experiencing them; he simply prays until he wakes up and

they are gone. [R. 57]. Although Plaintiff will occasionally be okay when he wakes up, he will at

times wake up and need to pray himself back to sleep again. [R. 57–58].

5 However, Plaintiff also stated that he could go “[m]aybe as long as a full day” without having a seizure. [R. 71].

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Plaintiff is “overwhelmed” by his seizures’ symptomatology. [R. 58]. Because of the

seizures, Plaintiff cannot drive, often loses his appetite, tends to isolate, and avoids seeing others

or doing anything social. [R. 56–58, 62, 72]. Plaintiff is embarrassed by his condition and does not

want others to see him shaking “like Mohammed Ali.” [R. 62]. Plaintiff even avoids his roommate,

with her needing to “pretty much break the door down” to check on him. [R. 63].

In a typical day, Plaintiff remains isolated and does not really do much. [R. 60]. He feeds

his chickens but cannot clean or cook, although he tries. [R. 60]. Plaintiff’s mother comes over

“every now and then” to “help . . . with [Plaintiff’s] clothes.” [R. 60]. Likewise, Plaintiff’s

roommate also helps when she is not at work. [R. 60]. She cooks for Plaintiff, “helps [Plaintiff] . .

. with clothes and whatever paperwork,” and “pretty much . . . does it all.” [R. 61–62]. Indeed,

Plaintiff has problems keeping up with his hygiene and needs reminders from his roommate on

when to shower, shave, and conduct his daily living activities, including when to take his

medications and when to go to his appointments.6 [R. 70–71].

With respect to Plaintiff’s mental issues, Plaintiff has mood swings that are “so bad that

[he] had to leave his children.” [R. 63]. He goes from “zero to a hundred sometimes” and is

verbally disrespectful. [R. 63]. He breaks things and is unaware that he has done so until he wakes

up. [R. 63]. Plaintiff is also depressed. [R. 64]. He has trouble falling and staying asleep and often

sleeps for only an hour or two at a time. [R. 64]. He has recurring nightmares involving “seeing

this lady, or I don’t know what the heck it is,” making it such that Plaintiff “sometimes [does not]

even want to fall asleep.” [R. 65].

6 Plaintiff’s roommate also takes him to his appointments. [R. 72].

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Plaintiff experiences pain all over his body, including back pain, leg pain, headaches, and

shoulder pain. [R. 65–67]. Plaintiff’s back pain is “pretty much” in his lower back and radiates

down into his legs and to the bottom of his feet. [R. 68]. Plaintiff’s headaches go “all the way down

to [his] cheek and [to the] back of [his] eyeball,” with a constant pressure in his face. [R. 66].

Plaintiff’s neck pain radiates down his arms, sometimes more so on his right side, and leads to an

inability to lift his head and a feeling of dizziness when looking up. [R. 66–67]. And, Plaintiff’s

shoulder pain causes Plaintiff to be unable to reach above his head with his left arm. [R. 67].

Plaintiff’s pain is always present and never goes away. [R. 66]. While Plaintiff’s

medications “ease[] it up a little,” the pain “doesn’t stop.” [R. 68–69]. If Plaintiff’s medications

wear off, Plaintiff is in “triple the pain.” [R. 69]. This pain also causes limitations in Plaintiff’s

posture. [R. 69–70]. Though Plaintiff can bend or twist to a certain degree, Plaintiff cannot sit still

and “can’t really sit down” because of his back and leg pain, and he must rotate between standing

up and sitting down. [R. 65, 69]. According to Plaintiff, he “can’t sit down for less than half an

hour, five, ten minutes” and lies down “to try to get things off and stretch and stuff.” [R. 70].

Plaintiff has been compliant with taking his medications as prescribed. [R. 71]. However,

similar to Plaintiff’s pain medications, his seizure medications are not entirely effective, as they

“ease[ his seizures] up,” but do not stop them. [R. 71]. Thus, Plaintiff’s pain, seizures, and other

symptomatology continue. [R. 69–71].

Additionally, Plaintiff has daily issues with memory, concentration, and being confused.

[R. 72]. He cannot concentrate and cannot get whatever nightmare he just had out of his mind. [R.

72–73]. In fact, beyond nightmares, Plaintiff hallucinates daily and keeps seeing an older lady

“walking and trying to say something,” which frightens him. [R. 73]. When questioned concerning

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his drug usage, Plaintiff testified that he rarely drinks alcohol, but stated that he has used marijuana

and has used cocaine “last year, [maybe] the year before.” [R. 74–75]. However, Plaintiff has

“never been a drug abuser or none of that.” [R. 75].

3. Vocational Expert

Dr. Jeffery Lucas, the vocational expert (“VE”), testified at the hearing. [R. 77–82]. He

first classified Plaintiff’s prior work of “construction worker II,” “electrician helper,” and “heavy

equipment operator.” [R. 77–78]. The ALJ then posed a hypothetical involving an individual with

the same work experience as Plaintiff, who: (1) is capable of lifting and/or carrying up to 20 pounds

occasionally and up to 10 pounds frequently; (2) would be able to stand and walk for a total of six

hours in an eight-hour workday; (3) would be able to sit for a total of six hours in an eight-hour

workday; (4) would need to avoid hazards such as moving machinery and unprotected heights; (5)

would be unable to operate or drive machinery; (6) could occasionally lift overhead with his or her

left extremity; (7) would require simple routine tasks in a stable work environment, with no fast-

paced high production demand; and (8) would require verbal instructions given by supervisors in

order to complete his or her tasks. [R. 78–79]. The VE explained that such an individual would

not be able to perform his or her past relevant work, as actually or customarily performed. [R. 79].

However, “taking into consideration a hypothetical claimant having [Plaintiff’s] age of 37, with a

seventh-grade education,” as well as the same limitations identified above, the VE then explained

that the hypothetical individual could perform other unskilled jobs in the national economy, such

as “cleaner,” “cafeteria attendant,” and “marker.” [R. 79].

Next, Plaintiff’s counsel posed a series of hypotheticals to the VE in which the hypothetical

individual described by the ALJ: (1) would also require the ability to alternate between sitting and

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standing every hour as needed; (2) could only occasionally “finger” due to hand tremors; or (3)

was limited to nothing but incidental interactions with coworkers and only occasional interactions

with supervisors. [R. 80–82]. As to the former, the VE opined that the marker position would

remain and that the cleaner and cafeteria attendant positions could be replaced by router and

document preparer positions, respectively (although he noted that the cafeteria attendant position

would generally have a sit/stand option). [R. 80]. And, with respect to the hypothetical individual

that could only occasionally “finger” due to his hand tremors or that was limited to nothing but

incidental interactions with coworkers and only occasional interactions with supervisors, the VE

opined that the marker position would remain “as eroded,” the router and cafeteria attendant

positions would remain, and the document preparer position would not remain. [R. 81–82].

B. Medical Record Evidence

In reaching her decision to deny Plaintiff’s benefits, the ALJ reviewed the medical

evidence of record, the relevant portion of which is summarized chronologically below.

1. Pre-Amended Onset Date Evidence

The medical record evidence begins with a September 9, 1993 report from Rhonda C.

McLymont, a licensed school psychologist. [R. 505–09]. When Plaintiff was ten years old and in

third grade, Plaintiff’s third-grade teacher referred him to Ms. McLymont because of his weak

academic skills and limited academic success. [R. 505, 508]. Ms. McLymont conducted an

assessment of Plaintiff, finding “severe processing deficits in the areas of auditory processing,

perceptual speed and verbal ability” and learning disabilities “in the areas of reading, mathematics,

written language, spelling and handwriting.” [R. 508].

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Nearly twenty years later, on January 18, 2014, Plaintiff was assaulted by an unknown

assailant and sustained multiple injuries to his head. [R. 555]. Specifically, according to a friend

at the scene of the incident, the assailant struck Plaintiff in the face and repeatedly and forcibly

drove Plaintiff’s head into the concrete. [R. 555]. Plaintiff presented to Oscar Martinez, M.D.,

reporting a loss of consciousness, amnesia, confusion, a contusion, disorientation, a headache, and

nausea. [R. 555]. Dr. Martinez conducted a physical examination of Plaintiff, finding “signs of a

basilar skull [fracture], contusion, abrasion, large raised hematoma on left temporal, . . . right

frontotemporal aspect, [and] hemotympanum of [the] left ear.” [R. 556]. Accordingly, Dr.

Martinez ordered multiple CT scans to verify the extent of Plaintiff’s injuries.

A CT scan of Plaintiff’s brain revealed “left temporoparietal scalp contusion with

subarachnoid hemorrhage in the left hemisphere and hyperattenuation of the left tentorium

concerning for small amount of para tentorial subdural hemorrhage.” [R. 559, 566]. A CT scan of

Plaintiff’s cervical spine was negative. [R. 559, 566]. And, a CT scan of Plaintiff’s maxillofacial

skeleton revealed a nondisplaced fracture of the nasal bone and minor mucosal thickening. [R.

567]. Based on Plaintiff’s physical examination and CT scan results, Plaintiff was transferred to

Saint Mary’s Medical Center for neurosurgery evaluation/care. [R. 513, 561].

At Saint Mary’s, Plaintiff was taken to the intensive care unit and examined by a multitude

of different doctors, who diagnosed Plaintiff with “subarachnoid hemorrhage and bilateral

temporary bone fractures.” [R. 511–518, 520, 551]. Importantly, Plaintiff’s treatment notes from

Saint Mary’s reflect that Plaintiff was previously involved in a car accident in which he “sustained

chronic pain.” [R. 510]. Moreover, Plaintiff’s treatment notes reflect that Plaintiff had a “history

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of polysubstance abuse,” including “use of alcohol and cocaine, which [Plaintiff’s] wife noted had

been worse more recently.” [R. 510].

Ultimately, Plaintiff was discharged from Saint Mary’s on January 27, 2014. [R. 510, 512].

Upon discharge, Plaintiff was “hemodynamically stable and neurologically stable, awake, alert,

[and] following commands.” See R. 512. He was prescribed Keppra as a prophylactic measure to

prevent seizures. [R. 512].

The medical record is devoid of evidence from the next several years. However, on March

10, 2017, Plaintiff presented to the Emergency Department of Hendry Regional Medical Center,

complaining of an aching and non-radiating “back or flank pain,” as well as left shoulder pain. [R.

592–93, 596]. Plaintiff reported that the onset was two weeks prior and that the symptoms “came

on gradually.”7 [R. 592]. Plaintiff stated that the pain was at a 3 on a scale of 1-10, and that it was

worse with movement. [R. 596–97]. Bernardo Kruszel, M.D., provided an impression of

“exacerbation low back pain” and prescribed Robaxim and Ultram for the pain. [R. 599].

Later that same year, on July 25, 2017, Plaintiff again visited Hendry Regional Medical

Center’s Emergency Department, complaining of generalized pain. [R. 578]. While Plaintiff stated

the onset was one or two days prior and described his pain as severe (at a level of 10 out of 10),

Plaintiff reported chronic “pain to his legs, tooth, back and all over his body . . . since 2013.” [R.

579, 580, 584]. A physical examination of Plaintiff revealed right and left-sided back and thigh

tenderness, as well as mild tenderness with palpation. [R. 586]. Moreover, a urinalysis revealed a

positive finding for THC. [R. 589]. Miguel Trujillo, D.O., assessed “body aches—musculoskeletal

pain and physical exhaustion.” [R. 582].

7 Nonetheless, Plaintiff also reported a history of chronic back pain. [R. 593].

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2. Amended Onset Date Evidence

Subsequently, on September 26, 2018—the amended alleged onset date—Plaintiff

presented to Thomas M. Abraham, M.D., reporting that he “started having seizures last night

continuously.” [R. 617–19]. In this regard, Plaintiff reported that he was “not compliant with his

seizure medication and . . . did not understand that he needed to take his seizure medication as

prescribed.”8 [R. 617]. While Plaintiff blamed this lack of understanding on his dyslexia, Dr.

Abraham noted that Plaintiff nonetheless reported “being told by many clinicians . . . to take [his

seizure medications] as prescribed” and additionally noted that Plaintiff last took Keppra “2

months ago and . . . did not like the way he felt.”9 [R. 617].

Regardless, at Plaintiff’s September 26, 2018 visit with Dr. Abraham, Plaintiff also

complained of elevated blood pressure, a severe headache “now 8/10 with blurry vision,”

dizziness, and . . . a staggered gait,” as well as “confusion[,] . . . depression, . . . generalized

weakness,” extremity pain, lumbar pain, and myalgias.10 [R. 617–18]. A physical examination of

Plaintiff revealed that he was “somewhat somnolent, but keenly responsive,” and that Plaintiff had

swelling and redness in his right eyelid. [R. 618]. Moreover, an MRI of Plaintiff’s brain revealed

suspected post trauma concussion syndrome. [R. 626, 661].

Dr. Abraham diagnosed Plaintiff with “acute encephalopathy secondary to seizure and

postictal stat,” status epilepticus, “headache secondary to above,” hypertensive urgency, a

gastrointestinal bleed with stable hemoglobin, chronic back pain with radiculopathy, abdominal

8 While it is unclear when Plaintiff was prescribed this seizure medication, it appears that Plaintiff’s Keppra

prescription from January 2014 had been continuously prescribed. However, at Plaintiff’s March 10, 2017 and July

25, 2017 visits to Hendry Regional Medical Center, there were “no known [current] medications” listed. [R. 592, 578].

9 That same day, Plaintiff was also seen by Andrew D. Dygert, D.O. [R. 628]. Dr. Dygert noted that Plaintiff was not

taking “Keppra or other anti-epileptics regularly.” [R. 628].

10 Plaintiff reported smoking a pack of cigarettes a day and using marijuana for pain relief. [R. 618].

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pain, neuropathy, depression, anxiety, blepharitis of the right eye, a history of hearing loss with

tinnitus, tobacco use disorder, and medication noncompliance. [R. 625]. He prescribed Plaintiff

Norvasc, Fioricet, Neurontin, Keppra, Ativan, Nicoderm, Protonix, Mysoline, Carafate,

Sucralfate, Tobrex, Topamax, and Desyrel. [R. 553–54].

3. Post-Amended Onset Date Evidence

i. Dr. Hans-Louis Charles

Plaintiff next saw Dr. Hans Louis-Charles, on December 4, 2018, for “medical and

medications management.” [R. 970]. At that appointment, a physical examination of Plaintiff was

unremarkable. However, Plaintiff reported pain at a level of 8 out of 10. [R. 971]. Thus, based on

Dr. Louis’ physical examination of Plaintiff—combined with Plaintiff’s injury history and

complaints of pain—Dr. Louis-Charles assessed “absent seizure,” chronic migraine headaches,

essential tremors, a post-traumatic brain injury, chronic lower back pain, severe anxiety disorder,

and PTSD.11 [R 972].

ii. Dr. Michael Rosenberg

Michael Rosenberg, M.D., examined Plaintiff at the behest of the Disability Determination

Division, on January 31, 2019. [R. 662]. During the examination, Plaintiff reported decreased

hearing in his left ear and “personality changes characterized by outbursts of anger, irrationality,

mood swings, aggressive [behavior], . . . decrease[d] comprehension . . . [and] episodes of

disorientation” stemming from his 2014 head trauma. [R. 662]. Moreover, Plaintiff stated he had

11 Plaintiff presented to Dr. Louis-Charles multiple times over the next several months for medication management,

often with normal examination results. [R. 974, 976, 979, 994, 983, 986]. However, on Plaintiff’s May 3, 2019 and

July 3, 2019 follow-up appointments with Dr. Louis-Charles, Plaintiff again complained of pain at a level of 8 out of

10. [R. 984, 986].

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developed seizures, with his last seizure occurring just one day prior. [R. 662]. Indeed, Plaintiff

noted that many of these seizures were within the past six months, that the seizures were increasing

in frequency, and that the seizures: (1) were brought on by nervousness; (2) occurred

spontaneously; (3) were exacerbated by light; and (4) did not result in loss of bowel or bladder

control or make Plaintiff bite his tongue. [R. 662].

Beyond Plaintiff’s mental and neurological changes, Plaintiff also reported a history of

radiating back pain and left shoulder pain that began in 2009 after he was involved in a motor

vehicle accident. [R. 662]. Plaintiff stated these pains were constant and were a 10 out of 10 in

severity. [R. 662]. Plaintiff described the pains as “sharp, dull, and achy,” noting that they were

made worse by “walking, standing, sitting, bending, and use.” [R. 662]. Additionally, Plaintiff

informed Dr. Rosenberg that he “uses” marijuana and that he “stopped using cocaine.” [R. 663].

Dr. Rosenberg conducted a physical examination of Plaintiff, finding that Plaintiff was in

no acute distress, had no balance issues, and was able to rise from his chair without difficulty. [R.

664]. However, Plaintiff had a head tremor; a “[d]ecreased finger snap left ear”; pain with

movement in his lumbosacral spine, cervical spine, and left shoulder; fine tremors in his right hand;

and a slight decrease in sensation in his right extremities. [R. 665]. Consequently, Dr. Rosenberg

diagnosed Plaintiff with “traumatic brain injury characterized by decreased hearing in the left ear,

head tremor and right-hand tremor, personality disorder changes including mood swings, loss of

comprehension, and disorientation.” [R. 665]. He also diagnosed Plaintiff with dizziness (by

history, and not by physical examination), a seizure disorder, moderate back and left shoulder pain,

and mild neck pain. [R. 665]. Upon referral from Dr. Rosenberg thereafter, an x-ray of Plaintiff’s

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lumbar spine revealed minimal vascular calcification. [R. 667]. However, an x-ray of Plaintiff’s

left shoulder was unremarkable. [R. 668].

iii. Dr. Daniel Ward

Daniel L. Ward, Ph.D., also conducted a consultative examination of Plaintiff for the

Division of Disability Determinations, on February 5, 2019. [R. 673]. Plaintiff reported

experiencing ongoing seizure activity, with approximately 8-10 seizures per month, daily night

tremors, daily severe headaches, slowed thinking, short-term memory problems, vacillating speech

difficulties, bouts of confusion and disorientation, difficulty concentrating and focusing, problems

with equilibrium, low frustration tolerance, daily anger outbursts, protracted depression, chronic

trauma related symptoms, and panic attacks which occur “like three times a week” and last “2 to

5 minutes.” [R. 674]. Moreover, Plaintiff reported being in chronic pain, with pain in his back and

neck radiating down to his arms and hands. [R. 673]. And, Plaintiff stated he could not grip

anything due to a “shakiness” that comes and goes. [R. 673].

With respect to Plaintiff’s compliance with his medications, Plaintiff stated he had stopped

taking his anticonvulsant medications a year after his 2014 injury because he “felt [he] was better.”

[R. 673]. However, while off his medications, Plaintiff reported experiencing seizure activity

“every night,” which he described as “tremors without loss of consciousness.”12 [R. 673]. Indeed,

Plaintiff’s friend and roommate, Berneace Pereiro—who accompanied Plaintiff to the

examination—stated that, while Plaintiff was off his medications, he had nightly tremors and “big”

seizures once a week. [R. 673]. She also noted that, while Plaintiff started anticonvulsant

12 Dr. Ward noted that Plaintiff’s description of seizure activity beginning in June 2018 “appeared consistent with

grand mal seizures.” [R. 673].

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medications in June of 2018 and “wasn’t completely compliant,” after Plaintiff experienced a

severe seizure around October of 2018 that led to his hospitalization, Plaintiff had since been

compliant with taking his medications. [R. 673–64]. Nonetheless, despite Plaintiff’s compliance,

Ms. Pereiro asserted that Plaintiff continued to experience nightly tremors and seizure activity

once a week, albeit with a reduced intensity and duration.13 [R. 674].

As part of Dr. Ward’s examination, Plaintiff also reported that he smokes a pack of

cigarettes a day and has been “abusing” marijuana since he was eleven or twelve years old. [R.

674]. In fact, Plaintiff described daily marijuana use for “twenty something years now.” [R. 674].

Similarly, Plaintiff began “abusing” powder cocaine when he was nineteen years old, using it every

other weekend over the course of a three-year period. [R. 674]. Although Plaintiff eventually

stopped using cocaine, Plaintiff used cocaine again in the months leading up to his 2014 head

trauma and in March of 2018. [R. 674].

During the consultative examination, Dr. Ward noted that Plaintiff appeared to be in

obvious physical pain, with a stiff and awkward seated posture. [R. 676]. In this regard, “on several

occasions, [Plaintiff] stood and walked a few steps about the room, then sat again.” [R. 676]. As

to Plaintiff’s mental condition, Dr. Ward described Plaintiff’s chronic trauma related symptoms as

being consistent with PTSD, noted issues with Plaintiff’s memory, and detailed Plaintiff’s recent

auditory and visual hallucinations, which scared Plaintiff. [R. 676–77].

Accordingly, Dr. Ward diagnosed Plaintiff with major depressive disorder, recurrent with

mood-congruent psychotic features; panic disorder; PTSD; mild cannabis use disorder; cocaine

use disorder (remission for 10 months); and an unspecified neurocognitive disorder. [R. 677]. He

13 This is contrary to Plaintiff’s assertion of 8-10 seizures per month.

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then assessed limitations in Plaintiff’s task persistency, recommended that Plaintiff receive

assistance in managing his funds, noted that Plaintiff was able “to see to his own immediate needs

without unusual assistance,” and found that Plaintiff appeared to be “socially handicapped to some

degree at this time due to poor anger control, protracted depression, panic attacks, and chronic

trauma symptoms.” [R. 678]. Thus, as to Plaintiff’s ability to perform work-related activities, Dr.

Ward opined:

It appears [Plaintiff’s] current physical condition is likely causing an equal if not

greater impediment to work activity at this time. If his physical condition permitted

some work activity, [Plaintiff] would likely require more encouragement and

support than do most people when encountering work difficulties or social

challenges. It appears he would not do well in occupations requiring frequent

protracted or demanding social interactions. However, given his current physical

and mental health presentations, it appears [Plaintiff] would likely have significant

difficulty effectively managing the expectations of employment at this time.

[R. 678].

iv. Imaging Studies

In early to mid-February 2019, Plaintiff fell from the side of a moving truck, possibly due

to having a seizure. [R. 91, 680–89]. Other than x-ray imaging revealing foreign bodies in his right

elbow and forearm due to his fall, a CT scan of Plaintiff’s lumbar spine revealed spondylosis and

a “possible right paracentral disc protrusion at L4-5.” [R. 681, 685–86]. A CT scan of his head

revealed “no evidence of an acute intracranial process.” [R. 683]. And, a CT scan of Plaintiff’s

cervical spine revealed no evidence of an acute fracture. [R. 684].

v. Disability Determination – Initial Level

In a Disability Determination Explanation at the Initial Level, on February 6, 2019, Lily

Rocha, M.D., performed a residual functional capacity assessment of Plaintiff. [R. 94–96, 112–

14]. With respect to Plaintiff’s exertional limitations, she stated Plaintiff could: (1) occasionally

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lift and/or carry 50 pounds; (2) frequently lift and/or carry 25 pounds; (3) stand and/or walk for a

total of six hours in an eight hour workday; (4) sit for a total of six hours in an eight-hour workday;

and (5) push and/or pull an unlimited amount, other than shown, for lift and/or carry. [R. 94–95,

112–13]. As to Plaintiff’s postural limitations, she stated Plaintiff could climb stairs/ramps,

balance, stoop, kneel, crouch, and crawl an unlimited amount, but could never climb

ladders/ropes/scaffolds. [R. 95, 113]. And, with respect to Plaintiff’s environmental limitations,

Dr. Rocha stated Plaintiff should avoid all exposure to hazards such as machinery or heights.14 [R.

95–96, 113–14]. On February 14, 2019, Kumar Swami, M.D., agreed with Dr. Rocha’s findings,

except he found that Plaintiff’s daily living activities “suggest[ed] that he can sustain forty hour

workweeks.” [R. 91, 710].

Similarly, on February 19, 2019, Nicholas Rios, Psy.D. completed a mental residual

functional capacity assessment as part of the same Disability Determination Explanation at the

Initial Level. [R. 96–98, 115–16]. Dr. Rios determined that Plaintiff had limitations in

understanding and memory, limitations in sustained concentration and persistency, limitations in

social interaction, and limitations in adaptation. [R. 96–98, 115–16]. Specifically, as to Plaintiff’s

limitations in understanding and memory, Dr. Rios noted that Plaintiff was moderately limited in

his ability to understand and remember detailed instructions. [R. 97, 115]. With respect to

14 Dr. Rocha amended her residual functional capacity assessment on March 25, 2019. [R. 130–32]. She stated that

Plaintiff should avoid concentrated exposure to hazards such as machinery or heights, rather than all exposure. [R.

132]. Notably, she also removed language stating that Plaintiff:

will never have complete recovery with this massive head injury. It has already been 5 year[s] since

his trauma, and he still suffers from limited comprehension. He could not sustain 8 hour work day

5 days a week, as he would be a danger to coworkers and himself from poor seizure control, dyslexia

and now comprehension and memory issues. [T]he simple tasks he is able to do are within his safe

familiar home environment with supervision from his caregiver.

Compare R. 96, with R. 132.

17

Plaintiff’s limitations in sustained concentration and persistence, he stated that Plaintiff was

moderately limited in his ability to: (1) carry out detailed instructions; (2) maintain attention and

concentration for extended periods; (3) work in coordination with or in proximity to others without

being distracted by them; and (4) “complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at a consistent pace without

an unreasonable number and length of rest periods.” [R. 97, 115].

Next, as to Plaintiff’s limitations in social interactions, Dr. Rios found that Plaintiff was

moderately limited in his ability to interact appropriately with the general public. [R. 98, 116].

And, as to Plaintiff’s limitations in adaptation, Dr. Rios opined that Plaintiff was moderately

limited in his ability to respond appropriately to changes in a work setting. [R. 98, 116]. Joan

Joyson, Ph.D., agreed with Dr. Rios’ mental residual functional capacity assessment of Plaintiff.

[R. 711–14]. Thus, despite Plaintiff initially being found disabled, the Office of Quality Review

disagreed and found that Plaintiff was not disabled, based on the aforementioned examinations.

[R. 100, 118, 136, 153, 169, 186].

vi. Drs. Anthony Hall, Jamie Plante, and Barry Werries

Subsequently, on June 4, 2019, Plaintiff presented to Anthony Hall, M.D, upon a referral

from his primary care practitioner. [R. 765]. Plaintiff reported “shaking episodes” that led to losing

strength in his hands, tightening of his jaw, and “blacking out,” with the most recent episode

occurring two days prior. [R. 765]. An examination of Plaintiff revealed a restricted range of

motion and pain in Plaintiff’s neck, tenderness of the lower lumbar region, restricted left shoulder

abduction and elevation, and a slightly antalgic gait. [R. 766]. Dr. Hall assessed lower back pain,

18

other chronic pain, and a cerebral contusion and laceration with loss of consciousness due to brain

injury. [R. 766].

Just two days later, on June 6, 2019, Plaintiff visited Jamie W. Plante, M.D, complaining

of tremors, a headache, and seizures since 2014. [R. 721]. In fact, Plaintiff reported that since his

2014 assault, “he began having events of sudden onset tonic posturing of arms with facial twisting

and grimacing lasting a minute or [two] followed by generalized fatigue.” [R. 721]. In this regard,

Plaintiff “endorsed at least 2 separate significant events with more than 5 or 6 seizures in 1 evening

and another event in which he lost consciousness in the car and woke up several hours later

confused and fatigued.” [R. 722]. Plaintiff also reported chronic lower back pain and upper back

pain with radiation into his left lower extremity and stated that he had insomnia and could not

tolerate crowds, loud noise, or bright lights.15 [R. 722]. Dr. Plante conducted an examination of

Plaintiff, finding decreased sensation on the left side of Plaintiff’s face. [R. 722–23]. Dr. Plante

noted that Plaintiff’s “daily headaches, sensitivity to stimulus, insomnia, [and] mood lability with

irritability” were consistent with post-concussive syndrome, and that Plaintiff’s headaches in

particular were “consistent with post[-]traumatic post[-]concussive syndrome with significant

analgesic overuse rebound.” [R. 724]. Dr. Plante also noted that Plaintiff had been unable to

tolerate his Keppra and Dilantin medications because of mood and irritability, prescribing

Depakote and recommending post-concussive syndrome physical therapy. [R. 722, 724].

Plaintiff presented to Barry Werries, M.D., on June 27, 2019 for an appointment

concerning his left shoulder. [R. 762]. Plaintiff reported pain in his left shoulder since 2009 that

15 Notably, Plaintiff also reported being placed on Keppra and Dilantin but being unable to tolerate the medications

because of his mood and irritability. [R. 722].

19

was “an 8 out of a 10 every day.” [R. 762]. He stated it was worse when he was lifting his arm or

picking something up, and that nothing made him feel better. [R. 762]. Plaintiff also reported

“numbness and tingling that goes all the way down his arm to his long and ring fingers and . . .

tingling in his forearm.” [R. 762]. Dr. Werries assessed tendinitis of the left rotator cuff. [R. 763].

A physical examination revealed a spasm in Plaintiff’s left shoulder with lateral tenderness. [R.

763]. Dr. Werries recommended physical therapy and Naprosyn. [R. 763].

vii. Disability Determination - Reconsideration

Subsequently, in a Disability Determination Explanation at the Reconsideration Level, on

July 19, 2019, Jennifer Meyer, Ph.D., completed a mental residual functional capacity assessment

of Plaintiff. [R. 206–07, 227–29]. Her mental residual functional capacity assessment of Plaintiff

was identical to Dr. Rios’ assessment at the Initial Level, except that Dr. Meyer found Plaintiff

was not significantly limited in his ability to work in coordination with or in proximity to others

without being distracted by them. [R. 206–07, 227–29]. Similarly, in the same Disability

Determination Explanation at the Reconsideration Level, on July 20, 2019, Isaac Moore, M.D.,

completed a residual functional capacity assessment of Plaintiff. [R. 202–05, 224–27]. His residual

functional capacity assessment, too, was identical to an examination from the Initial Level.

Specifically, his residual functional capacity assessment of Plaintiff was identical to Dr. Rocha’s

March 25, 2019 amended functional capacity assessment. Compare R. 130–32, with R. 202–05.

Thus, at the Reconsideration Level, Plaintiff was again found to be not disabled. [R. 209, 231].

viii. Drs. Jamie Plante, Jean Fleurinor, Ronald Young, and Barry Werries

On July 26, 2019, Plaintiff underwent an MRI of his lumbar spine, which revealed

“degenerative changes . . . with foraminal narrowing” and “annular tears at L5-S1.” [R. 768]. And,

20

shortly thereafter, on August 8, 2019, Plaintiff underwent an EEG, which showed “occasional right

temporal sharp waves that indicate an epileptic potential,” although “no electrographic seizures

[were] seen.” [R. 827].

Around this same time, on July 30, 2019, August 1, 2019, and August 22, 2019, Plaintiff

saw Jean Fleurinor, M.D., Ronald Young, M.D., and Dr. Werries, respectively. [R. 770, 877, 874–

75]. At Plaintiff’s visit with Dr. Fleurinor, Plaintiff reported muscle aches, arthralgias/joint pain,

and back pain. [R. 773]. At his appointment with Dr. Young, Plaintiff complained of increasing

left leg pain and numbness, and rated his lower back pain as a 10 out of 10. [R. 877]. And, at his

appointment with Dr. Werries, Plaintiff complained of neck and shoulder pain. [R. 874].

Dr. Fleurinor’s physical examination of Plaintiff revealed that Plaintiff was anxious and

had: (1) decreased hearing; (2) a tender neck with nuchal rigidity; (3) tenderness and limited range

of motion in his musculoskeletal system; and (4) an irregular gait. [R. 773]. Dr. Young’s physical

examination of Plaintiff revealed that Plaintiff appeared “quite comfortable,” with pain in his back

and tenderness throughout his thoracolumbar spine. [R. 878]. Dr. Werries’ physical examination

of Plaintiff, in turn, revealed “spasm in the trapezium and left side of [Plaintiff’s] neck . . . [with]

some lateral tenderness around the shoulder.” [R. 875]. Accordingly, Dr. Fleurinor assessed

lumbago with sciatica, cervical spine sprain, lumbar sprain, gastrointestinal hemorrhage, a history

of nontraumatic ruptured cerebral aneurysm, benign essential hypertension, gastroesophageal

reflux disease without esophagitis, chronic depression, a seizure disorder, and tinea corporis. [R.

780–81]. Dr. Young assessed lumbar disc disease. [R. 878]. And, Dr. Werries assessed tendinitis

of the left rotator cuff and cervicalgia. [R. 875].

21

Thereafter, on September 10, 2019, Plaintiff returned to Dr. Plante. [R. 840]. Dr. Plante

noted that, despite Plaintiff starting his Depakote medication, Plaintiff had “2 seizures last month

but they were mild and he did not lose consciousness.” [R. 840]. Moreover, Dr. Plante reported

the following:

[Plaintiff] continues to have insomnia, can not tolerate crowds, loud noise, bright

lights. He endorsed mood lability with irritability and intolerance. He also reported

daily headaches holocephalic pressure-like pain present upon waking and going to

sleep. He reports hypersensitivity to peripheral scalp and occipital pain. Previously

he had been taking 6 Fioricets a day and states if he does not take 1 his headaches

are terrible. He also endorsed being placed on Topamax which did not help his

headaches and further made his cognitive fog worse. He reports chronic low back

pain and upper back pain with radiation into his left lower extremity since the

trauma. He was placed on high doses of opioids for pain and has been trying to

wean down and off states that he went from 30 mg OxyContin down to 5 mg of

Percocet. He is seeing pain management who is working with him on alternative

therapies.

[R. 841]. A neurological examination revealed decreased sensation in the left side of Plaintiff’s

face. [R. 842]. Accordingly, because the number of Plaintiff’s seizures decreased with Depakote,

Dr. Plante recommended that Plaintiff continue Depakote, diagnosing him with intractable

epilepsy without status epilepticus, unspecified epilepsy type, post-concussive syndrome, seizures,

and traumatic brain injury with loss of consciousness. [R. 843–44].

ix. Dr. Hans Louis-Charles’ Examination

Dr. Hans Louis-Charles completed a mental residual functional capacity and physical

capacity evaluation of Plaintiff, on September 20, 2019. [R. 792–98]. In his mental residual

functional capacity assessment, Dr. Louis-Charles described Plaintiff as moderately impaired

overall. [R. 793]. He then assessed limitations in Plaintiff’s social interactions, sustained

concentration and persistence, and adaptation. [R. 793–96]. With respect to Plaintiff’s social

interactions, Dr. Louis-Charles stated that Plaintiff had a moderate impairment in his ability: (1)

22

to accept instruction from or respond appropriately to criticism from supervisors or superiors; (2)

to respond appropriately to co-workers or peers; and (3) to relate to the general public and maintain

socially appropriate behavior. [R. 793–94]. As to Plaintiff’s sustained concentration and

persistence, Dr. Louis-Charles stated that Plaintiff had: (1) mild impairments in his ability to

maintain attention and concentration for more than brief periods of time and to perform at

production levels expected by most employers; (2) moderate impairments in his ability to perform

and complete work tasks in a normal work day or week at a consistent pace, to process subjective

information accurately and to use appropriate judgment, and to carry through instructions and

complete tasks independently; and (3) a marked limitation in his ability to work in cooperation

with or in proximity to others without being distracted by them. [R. 794–95].

And finally, as to Plaintiff’s adaptation, Dr. Louis-Charles assessed: (1) mild impairments

in Plaintiff’s ability to remember locations and workday procedure and instructions, to be aware

of normal hazards and take necessary precautions, to behave predictably, reliably and in an

emotionally stable manner, and to tolerate customary work pressure; and (2) moderate impairments

in Plaintiff’s ability to respond appropriately to changes in work setting, and to maintain personal

appearance and hygiene. [R. 795]. Dr. Louis-Charles thus concluded Plaintiff was likely to

deteriorate if placed under the stress of a job, noting that Plaintiff’s impairment “lasted or is to be

expected to last 12 months or more.” [R. 796].

As for Dr. Louis-Charles’ physical capacity evaluation of Plaintiff, he stated Plaintiff could

stand/walk for three hours at one time in an eight hour workday; could stand/walk for two hours

total throughout an eight hour workday; could sit for four hours at a time in an eight hour workday;

could sit for five hours total in an eight hour workday; could occasionally lift between 11 and 20

23

pounds; could use his hands for repetitive grasping, pushing and pulling, and fine manipulation;

could use his feet for repetitive movements; could occasionally bend, squat, and crawl, but could

never climb; and could reach above his shoulder level. [R. 797–98].

x. Additional Doctors, Therapy, and a Baker Act

On September 20, 2019, Plaintiff presented to Rafael Angel Baez Stella, M.D. [R. 853].

There, Plaintiff complained of a headache and seizures, as well as insomnia, anxiety, and

depression. [R. 854]. A physical examination of Plaintiff revealed that he was in no acute distress

and had a normal gait and station. [R. 854–55]. Indeed, Plaintiff saw Dr. Baez Stella several times

over the coming months, with largely normal physical examination findings. [R. 858–60, 865].

Plaintiff also presented to Russell Feit, M.D., on September 26, 2019, for an evaluation of

his chronic neck and lower back pain. [R. 1080]. Plaintiff described his cervical and back pain as

a 10 out of 10, and stated that his pain was exacerbated by sitting, standing, walking, lifting,

bending, and lying down. [R. 1080]. Dr. Feit conducted a physical examination of Plaintiff, which

returned entirely unremarkable findings. [R. 1081]. Nonetheless, Dr. Feit assessed chronic

prescription opiate use, lumbar facet arthropathy, chronic pain, and cervicalgia. [R. 1081]. He

stated he would schedule Plaintiff for a “bilateral L2, L3, L4, [and] L5” medial branch block

procedure.16 [R. 1082].

Plaintiff underwent mental therapy from September 26, 2019, to October 30, 2019. [R.

896]. However, his therapy was unsuccessful, as no goals or objectives were achieved. [R. 896].

In fact, Plaintiff was discharged “due to having 2 missed appointments, as per agency policy.” [R.

16 Notably, the next day, on September 27, 2019, Plaintiff presented to Robert C. Gerring, M.D., complaining of sinus

problems. [R. 941]. At that appointment, Plaintiff reported a “history of cocaine use, last reported 1 week ago” which

he stated, “helps him breathe.” [R. 941].

24

897]. Similarly, Plaintiff also underwent physical therapy from September 6, 2019, through

October 25, 2019. [R. 920–39]. At Plaintiff’s first visit (on September 6, 2019), he complained of

“constant severe pain going from [left] side of the neck shooting down his [left] shoulder with

numbness/tingling at his last 2 fingers with spasm, and swelling at his [left] UT’s.” [R. 938]. By

Plaintiff’s seventh and final visit, on October 25, 2019, Plaintiff still complained of left shoulder

pain. [R. 920].

With respect to Plaintiff’s mental condition, on October 23, 2019, Brett Jamie Negin, M.D.,

performed a psychiatric evaluation of Plaintiff. [R. 909–14]. While Dr. Negin’s notes are minimal

and nearly illegible, Dr. Negin did note that Plaintiff’s attitude was evasive and that Plaintiff had

a depressed affect. [R. 911]. However, a cognitive assessment of Plaintiff was within normal limits,

and Plaintiff’s memory, impulse, introspection, and judgment were intact and average. [R. 913].

Moreover, as to Plaintiff’s reported back pain, Plaintiff had a bilateral lumbar medial branch block

procedure at L2-L5, on November 7, 2019, and December 30, 2019. [R. 1071, 1060]. Immediately

after each bilateral lumbar medial branch block procedure Plaintiff reported feeling “100% relief,”

but within a week or two of each procedure, Plaintiff reported only 75–80% relief. [R. 1071, 1060,

1066, 997].

Plaintiff was Baker Acted to JFK Medical Center because of suicidal ideation and a

depressed mood, on December 10, 2019. [R. 960, 953]. While the provided treatment notes are

minimal, the medical record reflects that, upon discharge, Plaintiff was diagnosed with major

depressive disorder, recurrent; chronic post-traumatic stress disorder; a traumatic brain injury;

“htn”; cocaine/cannabis abuse; a seizure disorder; chronic pain; and nicotine dependence. [R. 960].

25

Subsequently, on January 16, 2020, Plaintiff presented to Russell Feit, M.D., for a follow-

up appointment with respect to his neck and lower back pain. [R. 997]. He reported his back pain

as a 10 out of 10, although he somewhat contradictorily described it as a constant, dull ache. [R.

997]. Plaintiff’s pain was alleviated by pain medicine but was exacerbated by sitting, standing,

walking, lifting, bending, and lying down. [R. 997]. A general examination of Plaintiff revealed

that he was in no acute distress but had tenderness and “moderate muscle spasms bilaterally of the

paralumbars.” [R. 998]. Accordingly, Dr. Feit recommended a lumbar facet ablation. [R. 999].

And, over the next two months, Plaintiff twice presented to Dr. Feit, with the same complaints and

examination results. [R. 1051–52, 1047–48].

Lastly, on March 11, 2020, Plaintiff again visited Dr. Plante. [R. 1033]. He presented with

seizures, headaches, irritability, mood, and hypersensitivity to stimulus. [R. 1033]. While Plaintiff

reported “significant improvement in seizure frequency and intensity” after taking Depakote—

which Dr. Plante had previously prescribed—Plaintiff stated “that it made him feel bad so he

discontinued taking it.” [R. 1033]. In any event, Plaintiff continued to take Carbamazepine twice

daily, but noted he had “been having frequent seizures up to 3/week and on average 1-2 every

couple weeks” and that he had an episode “where he had to go to the ER and was having difficulty

with tonic posturing from his neck down [and] did not lose consciousness.” [R. 1033]. A physical

examination of Plaintiff revealed decreased sensation on the left side of Plaintiff’s face, but

otherwise unremarkable results. [R. 1035].

Plaintiff filled out a Supplemental Pain Questionnaire, dated December 26, 2018. [R. 370–

72]. He also completed a Function Report [R. 373–80], and a Supplemental Seizure Questionnaire

26

from that same date. [R. 381–83]. There is also a Supplemental Seizure Questionnaire from July

9, 2019. [R. 404–07].

C. ALJ Decision

The ALJ issued a decision denying Plaintiff’s claim for benefits on June 10, 2020. [R. 15–

28]. In doing so, the ALJ explained the five-step sequential evaluation process for determining

whether an individual is disabled. [R. 16–17]. At step one, the ALJ found that—while Plaintiff had

engaged in substantial gainful activity in 2015 and 2016, and near substantial gainful activity in

2018—there had been a continuous twelve-month period during which Plaintiff did not engage in

substantial gainful activity since his amended alleged onset date. [R. 17–18]. At step two, the ALJ

found that Plaintiff suffers from the following severe impairments: “status post assault resulting in

traumatic brain injury, seizure disorder, headaches, lumbar spine degeneration at L4-5 and L5-S1,

hypertension, left shoulder rotator cuff tendinitis, major depressive disorder, anxiety, and post-

traumatic stress disorder.” [R. 18].

The ALJ then found that Plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1. [R. 18]. To this end, the ALJ specifically referenced Plaintiff’s

mental impairments and the paragraph “B” criteria, but did not mention Plaintiff’s neurological

impairments. [R. 18–19]. Regardless, the ALJ determined that Plaintiff had the following Residual

Functional Capacity (“RFC”):

to perform a reduced range of light work as defined in 20 CFR 404.1567(b) and

416.967(b). Specifically, the claimant could lift and/or carry ten pounds frequently,

and twenty pounds occasionally, sit for six hours, and stand and/or walk for six

hours, in an eight-hour workday. The claimant should avoid hazards, such as

moving machinery or unprotected heights. The claimant should not drive or operate

machinery. The claimant could occasionally lift overhead with the left extremity.

27

The claimant is able to perform simple routine tasks in a stable work environment

with no fast-paced, high production demands. The claimant would require

occasional close interpersonal interaction with coworkers and the public. The

claimant would require verbal instructions given by supervisors in order to

complete tasks.

[R. 19]. In crafting this RFC, the ALJ attested that she had considered all of Plaintiff’s symptoms

and “the extent to which these symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence,” as well as all the opinion evidence and prior

administrative medical findings. [R. 19].

The ALJ next followed the two-step process—first, determining if there is an underlying

determinable physical or mental impairment that could reasonably be expected to produce

Plaintiff’s pain or other symptoms, and then evaluating the intensity, persistence, and limiting

effects of Plaintiff’s symptoms to determine the extent to which they limit his functions. [R. 19].

To this end, the ALJ summarized Plaintiff’s hearing testimony and medical records, and found that

Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged

symptoms; however, [Plaintiff’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.” [R. 20]. For instance, in support of such

finding, the ALJ noted: (1) several normal examination results; (2) the fact that Plaintiff “admitted

he was not compliant with his medication”; (3) Plaintiff’s helpful physical therapy; (4) Plaintiff’s

limited Baker Act records; (5) Plaintiff’s report of “significant improvement in seizure frequency

and intensity” after taking Depakote; (6) a helpful lumbar medial branch block procedure; and (7)

Plaintiff’s September 2019 cocaine use. [R. 20–23]. The ALJ also expressly considered medical

28

opinions from various medical sources and provided reasoning for finding each opinion either

persuasive or unpersuasive. [R. 23–26].

At the conclusion of step four, the ALJ explained that Plaintiff could not perform any past

relevant work. [R. 26]. She noted that he was 30 years old and thus a younger individual on the

date the alleged disability onset date,17 that Plaintiff is illiterate but able to communicate in

English, and that transferability of job skills was not an issue in this case because Plaintiff’s past

relevant work is unskilled. [R. 26]. In considering Plaintiff’s age, education, work experience, and

RFC, the ALJ concluded that there are jobs that exist in significant numbers in the national

economy that Plaintiff can perform. [R. 27]. The vocational expert testified that such jobs include

“cleaner,” “cafeteria attendant,” and “marker.” [R. 27]. Thus, the ALJ found that Plaintiff had not

been under a disability as defined in the Social Security Act from January 18, 2014,18 through the

date of the ALJ’s decision. [R. 27].

II. MOTIONS FOR SUMMARY JUDGMENT

In his Motion for Summary Judgment, Plaintiff argues that: (1) the ALJ’s finding that

Plaintiff’s seizures did not meet or medically equal the criteria of Listing 11.02 is unsupported by

substantial evidence; (2) the ALJ did not properly evaluate the medical source opinions; and (3)

the ALJ’s rejection of Plaintiff’s subjective allegations is not supported by substantial evidence.

[R. 35].

17 The ALJ incorrectly and improperly discussed Plaintiff’s age on the date of the alleged disability onset, rather than

Plaintiff’s age on the date of the amended alleged disability onset. [R. 26]. This was because the ALJ found that

Plaintiff had not been under a disability from January 18, 2014 (the alleged onset date), rather than September 26,

2018 (the amended alleged onset date). [R. 27].

18 See note 17, supra.

29

In Defendant’s Motion for Summary Judgment with Supporting Memorandum of Law and

Response in Opposition to Plaintiff’s Motion for Summary Judgment, Defendant asserts that

substantial evidence supports the ALJ’s finding that Plaintiff’s seizure disorder did not meet or

medically equal the criteria of Listing 11.02; that substantial evidence supports the ALJ’s opinion

evidence and prior administrative medical findings evaluation; and that substantial evidence

supports the ALJ’s finding that Plaintiff’s statements concerning the intensity, persistence, and

limiting effects of Plaintiff’s alleged symptoms were not entirely consistent with the record

evidence. [R. 38].

In reply, Plaintiff contends that—while an ALJ’s failure to discuss a listing, in and of itself,

may not merit remand—"when the ALJ fails to consider the listing and the substantial evidence of

record indicates that the criteria may be met,” there is harmful error warranting remand. [DE 40 at

1]. Further, Plaintiff reiterates that the ALJ failed to properly evaluate the medical source opinions,

and that the ALJ’s rejection of Plaintiff’s subjective allegations concerning his headaches, spinal

impairments, and seizure and mental impairments is not supported by substantial evidence. Id. at

6–10.

III. RELEVANT LAW

Judicial review of the factual findings in disability cases is limited to determining whether

the Commissioner’s decision is “supported by substantial evidence and based on proper legal

standards. Substantial evidence is more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” 42 U.S.C. § 405(g);

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal

citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)). Courts may

30

not “decide the facts anew, reweigh the evidence, or substitute [their] judgment for that of the

[Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

The restrictive standard of review set out above applies only to findings of fact. No

presumption of validity attaches to the Commissioner’s conclusions of law. Brown v. Sullivan, 921

F.2d 1233, 1236 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “The

[Commissioner’s] failure to apply the correct law or to provide the reviewing court with sufficient

reasoning for determining the proper legal analysis has been conducted mandates reversal.”

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (alteration in

original) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145–46 (11th Cir. 1991)).

Social Security regulations establish a five-step sequential analysis to arrive at a final

determination of disability. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920 (a)–(f). The ALJ must first

determine whether the claimant is presently employed. If so, a finding of non-disability is made,

and the inquiry concludes. 20 C.F.R. § 404.1520(b). In the second step, the ALJ must determine

whether the claimant suffers from a severe impairment or combination of impairments. If the ALJ

finds that claimant does not suffer from a severe impairment or combination of impairments, then

a finding of non-disability results, and the inquiry ends. 20 C.F.R. § 404.1520(c).

Step three requires the ALJ to compare the claimant’s severe impairment(s) to those in the

listing of impairments. 20 C.F.R. § 404.1520(d), subpart P, appendix 1. Certain impairments are

so severe, whether considered alone or in conjunction with other impairments, that, if they are

established, the regulations require a finding of disability without further inquiry into the

claimant’s ability to perform other work. See Gibson v. Heckler, 762 F.2d 1516, 1518 n.1 (11th

31

Cir. 1985). If the impairment meets or equals a listed impairment, disability is presumed and

benefits are awarded. 20 C.F.R. § 404.1520(d).

Step four involves a determination of whether the claimant’s impairments prevent him or

her from performing his or her past relevant work. If the claimant cannot perform his or her past

relevant work, then a prima facie case of disability is established. 20 C.F.R. § 404.1520(e). The

burden then shifts to the ALJ to show at step five that, despite the claimant’s impairments, he or

she is able to perform work in the national economy in light of the claimant’s RFC, age, education,

and work experience. 20 C.F.R. § 404.1520(f); Phillips, 357 F.3d at 1239. In order to determine

whether the claimant has the ability to adjust to other work in the national economy, the ALJ may

either apply the Medical Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, appendix 2, or utilize

the assistance of a vocational expert. See Phillips, 357 F.3d at 1239–40.

IV. ANALYSIS

Under the above legal framework, the Court will address the issues raised in this appeal.

To resolve these issues, the Court has carefully reviewed the extensive administrative record,

including the objective medical evidence, and will discuss the relevant portions as necessary to

address each issue.

A. Whether Substantial Evidence Supports the ALJ’s “Implicit” Finding that Plaintiff’s

Seizure Disorder Did Not Meet or Medically Equal the Criteria of Listing 11.02

Plaintiff asserts that the ALJ did not “properly consider whether Plaintiff’s seizures met,

or medically equaled, the criteria of a listed impairment.” [R. 35 at 5]. More specifically, Plaintiff

argues that “the record demonstrates that Plaintiff’s seizures met or medically equaled the criteria

of Listing 11.02(B).” Id. In this regard, Plaintiff notes that the ALJ’s decision does not even

mention Listing 11.02. Id. Further, he argues that, “[t]o the extent the decision implies that Listing

32

11.02 was not met or equaled, substantial evidence does not support such a conclusion.” Id. at 5–

6. Plaintiff thereafter goes through the medical source opinions and administrative record, arguing

that his seizures were at listing level and that his condition did not improve despite his compliance

with medications and treatment. Id. at 6–11.

Defendant argues that Plaintiff failed to meet his burden of proving that his impairments

met or equaled Listing 11.02. [DE 38 at 5]. Indeed, Defendant notes that the ALJ was not required

to specifically discuss Listing 11.02 in coming to her determination at step three. Id. at 5–6.

However, in any event, Defendant argues that the ALJ did in fact implicitly consider Listing 11.02

when the ALJ “discussed Plaintiff’s reports and diagnosis of a seizure disorder, his treatment of a

seizure disorder via medication, and diagnostic testing including a head CT and EEG” and when

she “found Plaintiff’s seizure disorder severe and incorporated seizure precautions in her RFC

assessment.” Id. at 6. Defendant also argues that “substantial evidence supports the ALJ’s implicit

finding that the severity of Plaintiff’s seizure disorder did not meet or medically equal Listing

11.02.” Id. This is because, according to Defendant, Plaintiff “failed to show that his seizures

occurred despite adherence to prescribed treatment at the frequency necessary to satisfy Listing

11.02(B).” Id. at 7. Defendant then cites Plaintiff’s purported non-compliance with his medication,

an EEG in which no seizures were seen, and Plaintiff’s “cocaine abuse” as supportive of the ALJ’s

implicit finding. Id. at 8.

In reply, as stated earlier, Plaintiff first argues that, “[w]hile an ALJ’s failure to discuss a

listing, in and of itself, may not merit remand when the listing criteria is not met, when the ALJ

fails to consider the listing and the substantial evidence of record indicates that the criteria may be

met, the error his harmful and does merit remand.” [DE 40 at 1]. According to Plaintiff, “contrary

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to the Commissioner’s assertion, the [ALJ’s] decision as a whole does not support the ALJ’s

‘implicit’ or absent finding that the listing criteria were not met.” Id. In connection therewith,

Plaintiff notes that the record contains no evidence to support the implication that Plaintiff’s

seizures were drug induced, and that the ALJ’s citation to Plaintiff’s purported non-compliance

with medications was not supported by the evidence and failed to follow SSR-16-3p and SSR 18-

3p. Id. at 2–5.

As just stated, step three requires the ALJ to compare the claimant's severe impairment(s)

to those in the listing of impairments. 20 C.F.R. § 404.1520(d), subpart P, appendix 1. However,

“[w]hile the ALJ is required to consider the Listing of Impairments in making a decision at step

three, [the] ALJ [is not required] to ‘mechanically recite’ the evidence or listings [he or] she has

considered.” Flemming v. Comm'r of Soc. Sec. Admin., 635 F. App’x 673, 676 (11th Cir. 2015).

The claimant seeking disability benefits and/or supplemental security income carries the

burden of proof to show that his impairments meet or medically equal a listed impairment. Bellew

v. Acting Comm'r of Soc. Sec., 605 F. App’x 917, 920 (11th Cir. 2015). “To meet the requirements

of a Listing, the claimant must have a diagnosis included in the Listing and must provide medical

reports documenting that the condition meets the Listing's specific criteria and duration

requirement. An impairment—no matter how severe—that meets only some of the Listing

requirements does not qualify.” Id. (citations omitted). An ALJ’s finding as to whether a claimant

does or does not meet a listed impairment may be implied from the record and need not be explicit

in his or her decision. Id.

Here, at step three of the required analysis, the ALJ explicitly stated that Plaintiff “does not

have an impairment or combination of impairments that meets or medically equals the severity of

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one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” [R. 18]. The ALJ then

discussed Plaintiff’s mental impairments and whether they met or medically equaled the criteria

of Listings 12.03, 12.04, and 12.06. [R. 18].

Yet, importantly, the ALJ did not mention Plaintiff’s neurological impairments (Plaintiff’s

seizures and corresponding seizure disorder) at step three, or even discuss whether Plaintiff’s

seizures met or medically equaled the criteria of Listing 11.02. See R. 18–19. While the ALJ was

not required to specifically discuss Listing 11.02 or to “mechanically recite” the evidence,

Flemming, 535 F. App’x at 676, “an ALJ’s implicit conclusion regarding whether a claimant’s

condition meets a Listing must still be supported by substantial evidence.” Nelson v. Comm’r of

Soc. Sec., 19-cv-788, 2021 WL 1207753, at *4 (M.D. Fla. Mar. 31, 2021) (citing Prince v. Comm’r,

Soc. Sec. Admin., 551 F. App’x 967, 970 (11th Cir. 2014)). And, after careful consideration of the

ALJ’s decision, the Court finds that the ALJ’s purported “implicit” conclusion in this case is not

supported by substantial evidence.

In the ALJ’s decision, she found that Plaintiff’s seizure disorder constituted a severe

impairment. [R. 18]. Thereafter, in discussing the medical record evidence at step four, the ALJ

discussed Plaintiff’s reports of seizures and the medical evidence relating thereto. [R. 20–25].

Specifically, the ALJ noted: (1) Plaintiff’s testimony concerning his daily seizures; (2) Plaintiff’s

reports of seizures in September 2018 with Dr. Abraham; (3) Plaintiff’s report of seizures in his

January 2019 examination with Dr. Rosenberg; (4) Plaintiff’s endorsement of continued seizures

in June 2019; (5) Dr. Goldstein’s testimony concerning Plaintiff’s seizure disorder; and (6) record

evidence from early 2019 that she stated showed Plaintiff only “occasionally” experienced

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seizures. [R. 20–25]. However, the ALJ largely discussed this seizure evidence in the context of

Plaintiff’s purported non-compliance with medication and drug use rather than in evaluating the

full Listing criteria.

1. Listing 11.02(B)

In Plaintiff’s Motion for Summary Judgment [DE 35], Plaintiff argues that the ALJ failed

to consider whether Plaintiff’s seizures met or medically equaled the criteria of Listing 11.02.

Plaintiff specifically focuses his argument entirely on Listing 11.02(B). [R. 35 at 5; see also R. 40

at 1]. That listing provides as follows:

11.02 Epilepsy, documented by a detailed description of a typical seizure and

characterized by A, B, C, or D:

. . .

B. Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at

least 3 consecutive months (see 11.00H4) despite adherence to prescribed

treatment (see 11.00C)[.]

20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.02(B). Thus, for Plaintiff’s impairments to meet

or medically equal the severity of Listing 11.02(B), Plaintiff’s dyscognitive seizures (that is,

seizures “characterized by alteration of consciousness without convulsions or loss of muscle

control”), must occur at least once a week for at least three consecutive months despite Plaintiff’s

adherence to his prescribed treatment. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.02(B).

In this regard, section 11.00H4 provides a specific methodology for counting seizures.

Multiple seizures occurring in a 24-hour period are counted as one seizure, a continuous series of

seizures without a return to consciousness between seizures are counted as one seizure, and

seizures that occur when a claimant is “not adhering to prescribed treatment without good reason”

are not counted. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.00H4. As to what constitutes

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“good reason” for not adhering to prescribed treatment, “physical, mental, education, and

communicative limitations (including any language barriers)”—as well as 20 C.F.R. § 416.930(c)

and 20 C.F.R. § 404.1530(c)—are to be considered. 20 C.F.R. Part 404, Subpart P, Appendix 1, §

11.00H4.d. And, with respect to Listing 11.02(B)’s “despite adherence to prescribed treatment”

language, section 11.00C clarifies that such language means that a claimant has “taken

medication(s) or followed other treatment procedures for [his or her] neurological disorder(s) as

prescribed by a physician for three consecutive months but [his or her] impairment continues to

meet the other listing requirements despite this treatment.” 20 C.F.R. Part 404, Subpart P,

Appendix 1, § 11.00C.

Here, on September 26, 2018, Plaintiff reported that he had not been compliant in taking

his anticonvulsant medications. [R. 617–19]. However, that date was merely the alleged amended

onset date of Plaintiff’s purported disability. Even so, Plaintiff attributed this non-compliance to

his dyslexia, to not understanding that he needed to take his prescribed medicine, and to his

anticonvulsant medications making him feel bad. [R. 617–19]. While the ALJ thereafter repeatedly

referenced Plaintiff’s alleged non-compliance, the ALJ included no discussion whatsoever as to

whether Plaintiff had any “good reason” for not adhering to the prescribed treatment, in accordance

with 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.00H4. This is notable in the instant case

considering Plaintiff’s illiteracy and his repeated statements that certain medications made him

“feel bad.” Indeed, it is troubling to the Court that the ALJ did not attempt to contextualize

Plaintiff’s purported non-compliance.

But more importantly, the ALJ’s reliance on Plaintiff’s alleged non-compliance and

statement that Plaintiff only “occasionally” experienced his seizures as of February 2019 does not

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appear to be supported by the medical record evidence. In fact, during Dr. Ward’s February 5,

2019 examination of Plaintiff, Plaintiff reported having “approximately 8-10 seizures per month.”

[R. 673–64]. At that same examination, Plaintiff’s friend and roommate, Berneace Pereiro, stated

that Plaintiff had been compliant with his medications since around October (when Plaintiff

experienced a severe seizure which led to his hospitalization)19 and stated that Plaintiff was

nonetheless having seizure activity “once a week.” [R. 673–74].

Similarly, over a year later, at Plaintiff’s March 11, 2020 examination with Dr. Plante,

Plaintiff reported having “frequent seizures up to 3/week and on average 1-2 every couple weeks,”

with an episode “where he had to go to the ER and was having difficulty with tonic posturing from

his neck down [and] did not lose consciousness.” [R. 1033]. Although Plaintiff noted he had

stopped taking his Depakote medication because it made him feel bad, Plaintiff was still taking his

prescribed Carbamazepine medication (which “is an anticonvulsant used to control certain types

of seizures”). [R. 1033; DE 35 at 22]. And, the medical record evidence between February 2019

and March 2020 seems to demonstrate that Plaintiff had difficulty tolerating certain of his other

anticonvulsant medications. [R. 722].

Thus, at the very least, this Court is unable to determine whether the ALJ sufficiently

considered Listing 11.02(B)—more specifically, whether the ALJ considered any “good reason”

when determining Plaintiff was non-compliant with his medications. Further, the Court is unable

to determine whether the ALJ found Plaintiff’s seizures occurred with the requisite frequency to

meet or medically equal Listing 11.02(B). The ALJ’s emphasis on Plaintiff’s purported non-

19 It appears that this is in reference to Plaintiff’s September 26, 2018 hospital visit (or, the amended alleged onset

date).

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compliance (which seems to lack substantial evidence and fails to consider whether good reason

exists for non-compliance) simply provides this Court with no basis to find that the ALJ adequately

considered Listing 11.02(B) or its full criteria.20 The ALJ’s failure to even mention Listing 11.02

is concerning to this Court in light of the ALJ’s explicit reference to other Listings at step three.

While it is not necessary for the ALJ to mechanically recite a Listing, under the facts of this case,

where the evidence establishes that the 11.02(B) criteria may be met, and where the ALJ never

even mentioned Listing 11.02 (but chose to mention other Listings), remand is required. See

Flemming, 635 F. App’x at 676; Ingram, 496 F.3d at 1260.

2. Plaintiff’s “Drug Abuse”

Further, the ALJ’s references to Plaintiff’s “drug abuse” is concerning. [R. 23]. Under 20

C.F.R. §§ 404.1535(a) and 416.935(a), if the ALJ finds that a claimant is “disabled and ha[s]

medical evidence of [the claimant’s] drug addiction or alcoholism, [the ALJ] must determine

whether [the claimant’s] drug addiction or alcoholism is a contributing factor material to the

determination of disability.” Additionally, “[t]he key factor [the ALJ] will examine in determining

whether drug addiction or alcoholism is a contributing factor material to the determination of

disability is whether [the ALJ] would still find [the claimant] disabled if [the claimant] stopped

using drugs or alcohol.” 20 C.F.R. § 404.1535(b)(1); 20 C.F.R. § 416.935(b)(1).

20 Plaintiff’s citation to SSR 18-3-p is unavailing. Plaintiff is correct that the ALJ “only perform[s] the failure to

follow prescribed treatment analysis . . . after [he or she] find[s] that an individual is entitled to disability or [is] eligible

for statutory blindness benefits under titles II or XVI of the Act, regardless of whether the individual followed the

prescribed treatment” and that the ALJ “will not determine whether an individual failed to follow prescribed treatment

if [he or she] finds the individual is not disabled.” SSR 18-3p, No. SSA-2016-0034, 2018 WL 4945641, at *3 (Oct. 2,

2018). However, Listing 11.02(B) requires determining whether Plaintiff “adhere[d] to prescribed treatment.” 20

C.F.R. Part 404, Subpart P, Appendix 1, § 11.02(B). Thus, it was not error for the ALJ to discuss compliance despite

a finding that Plaintiff was not disabled.

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Here, although there was no finding of drug addiction or mention of such as an impairment,

the ALJ discussed Plaintiff’s “drug abuse” and cocaine usage in her decision, stating that Plaintiff’s

cocaine use could affect his seizure condition. [R. 23]. The ALJ did so while simultaneously

discussing plaintiff’s “occasional[]” seizures and improvements on medication, thereby implicitly

finding that Plaintiff’s seizures were not of sufficient severity to satisfy Listing 11.02(B). Thus, it

appears the ALJ’s conclusion that Plaintiff’s cocaine use could affect his seizure condition is

internally inconsistent with 20 C.F.R. §§ 404.1535(a) and 416.935(a), which only require the ALJ

to engage in an analysis of whether drug addiction is a contributing factor material to the

determination of disability after a finding of disability. Though nothing would seemingly preclude

the ALJ from engaging in such an analysis without a finding of disability, and although there is

nothing explicitly linking Plaintiff’s “drug abuse” and cocaine use to “drug addiction,” it is odd

that the ALJ chose to engage in such analysis or comment that Plaintiff’s “use of cocaine could

affect [his] seizure condition” when it was “unclear from the record how much of an impact the

drug use had.” [R. 23]. Indeed, the record evidence seems to indicate that Plaintiff only used

cocaine one time following his amended alleged onset date. [R. 941].

3. The ALJ’s Errors as to the Date of Claimed Disability and Age of Petitioner

As discussed in note 17, supra, the ALJ erroneously and improperly found a claimed

disability onset date of January 18, 2014, when in reality the correct claimed onset date was

September 26, 2018. [R. 26–27]. This caused the ALJ to further err in finding that the relevant age

of Plaintiff was 30 years of age, when in fact Plaintiff was 35 years of age as of the amended

alleged onset date. In conjunction with the other errors of the ALJ, these factual errors of the ALJ

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cause this Court some concern and, considered cumulatively, lead the Court to find that the ALJ’s

Decision was not supported by substantial evidence.

4. Overall

In light of the ALJ’s failure to specifically mention Listing 11.02 (while choosing to

explicitly reference other Listings);21 the ALJ’s emphasis on Plaintiff’s purported non-compliance

with his medications, without any discussion of “good reason” as required (which provides this

Court with no way to ascertain whether the ALJ adequately considered the remainder of Listing

11.02(B)); the ALJ’s reference to Plaintiff’s drug abuse (without a finding of disability and with

seemingly minimal evidence); and the ALJ’s factual errors as to the claimed onset date and

relevant age of the Plaintiff, the Court finds that substantial evidence does not support the ALJ’s

Decision and that reversal and remand is warranted. Accordingly, on remand, the ALJ should

specifically address whether Plaintiff’s seizures meet or medically equal the severity of Listing

11.02(B). The ALJ shall also utilize the correct claimed disability onset date and correct relevant

age of the Plaintiff when issuing a Decision.

Further, based on these findings, the Court declines to address whether the ALJ properly

evaluated the medical source opinions or whether the ALJ’s rejection of Plaintiff’s subjective

allegations is supported by substantial evidence. See Dieffenbach o/b/o Dieffenbach v. Comm'r of

Soc. Sec., No. 21-80342-CIV, 2022 WL 3444999, at *8 (S.D. Fla. Aug. 17, 2022), and cases cited

therein. While those issues involve a later step in the five-step sequential evaluation process, it is

abundantly clear that the ALJ’s weighing of the opinion evidence and determination as to

21 The Court clarifies that the ALJ was not required to discuss Listing 11.02(B). It is the ALJ’s reference to other

Listings and the other issues, but not Listing 11.02, as noted above, that causes this Court concern.

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Plaintiffs credibility were improperly colored by a purported non-compliance and drug abuse for

which there is a seeming lack of evidence after the amended alleged onset date. The Court trusts

that on remand, the ALJ will properly reconsider the evidence in light of the Court’s concerns as

addressed above. The Court expresses no opinion as to the ALJ’s ultimate Decision on remand.

IV. CONCLUSION

In light of the foregoing, it is hereby ORDERED AND ADJUDGED as follows:

1. The decision of the Commissioner is REVERSED AND REMANDED pursuant to

sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.

On remand, the Commissioner should consider whether Plaintiff’s seizures meet or

medically equal the severity of Listing 11.02(B), utilize the correct claimed disability

onset date and relevant age of the Plaintiff, and reassess the entire record and reconsider

and weigh all available medical records and medical opinion evidence, as required by

the applicable rules and law.

2. Accordingly, Plaintiff's Motion for Summary Judgment [DE 35] is_ hereby

GRANTED, and Defendant’s Motion for Summary Judgment [DE 38] is hereby

DENIED.

3. Pursuant to Federal Rule of Civil Procedure 58, a separate judgment shall be entered in

accordance with this Order.

ORDERED AND ADJUDGED in Chambers at West Palm Beach, Palm Beach County,

Florida, this 30th day of September, 2022.

United States Magistrate Judge

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