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Flores v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

December 15, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         Plaintiff, Carlos Flores (“Plaintiff” or “Flores”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends the Commissioner's final decision be AFFIRMED.


         In June 2013, Flores filed an application for SSI alleging a disability onset date of June 21, 2013, claiming he was disabled due to carpal tunnel, back pain, liver problems, arthritis, depression and tendinitis. (Transcript (“Tr.”) 232.) The applications were denied, and Flores requested a hearing before an administrative law judge (“ALJ”). (Tr. 101, 118)

         On May 8, 2015, an ALJ held a hearing, during which Flores, represented by counsel, and an impartial vocational expert (“VE”), testified. (Tr. 28.) On May 28, 2015, the ALJ issued a written decision finding Flores was not disabled. (Tr. 28-39.) The ALJ's decision became final on February 7, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On February 28, 2017, Flores filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 11 & 13.) Flores asserts the following assignments of error:

(1) The ALJ's assessment of Plaintiff's residual functional capacity is not supported by substantial evidence;
(2) The ALJ erred in failing to include Plaintiff's illiteracy and inability to speak English in the hypothetical question to the vocational expert;
(3) Material new evidence warrants remand. (Doc. No. 11 at 1.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Flores was born in June 1974 and was 40 years-old at the time of his administrative hearing, making him a “younger person” under social security regulations. (Tr. 37.) See 20 C.F.R. §416.963(c). He has a limited education and is unable to communicate in English. (Id.) He has past relevant work as a hand packager, gas station attendant, and construction worker II. (Id.)

         B. Medical Evidence[2]

         1. Mental Impairments

         On January 11, 2013, Flores visited his primary care physician, Azra Shaikh, M.D., reporting depression due to his physical pain and inability to work. (Tr. 335.) On March 26, 2013, Dr. Shaikh noted Flores had been taking both Cymbalta and Paxil. (Tr. 331.) She advised Flores to only take Paxil and discontinue the Cymbalta. (Id.)

         Flores then received treatment at a mental health clinic from July 11 - August 21, 2013. (Tr. 454.) His diagnoses were adjustment disorder with mixed anxiety and depressed mood, and rule out mood disorder due to general medical condition. (Id.) Flores discontinued treatment due to termination of his insurance plan. (Id.) His therapist, Irving Perez, M.A., noted Flores was receiving treatment “for depression and anxiety in the context of ongoing medical conditions and the loss of his job.” (Tr. 429.)

         Flores underwent a consultative examination with Stanley E. Schneider, Ed.D., on November 6, 2013. (Tr. 432.) He reported anxiety, low energy, poor motivation, weight gain, and poor sleep. (Tr. 433.) He denied any psychiatric hospitalization, but indicated some outpatient mental health treatment. (Id.) Flores stated he obsessed over things he could no longer do, and referenced losing his job and hurting his hands. (Tr. 435.)

         Based upon this examination, Dr. Schneider diagnosed Flores with major depressive disorder, secondary to chronic pain, with underlying anxiety. (Tr. 436.) He noted Flores was socially withdrawn and in chronic pain. (Tr. 438, 439.) Dr. Schneider then completed a “Medical Source Statement of Ability to Do Work-Related Activities.” He found Flores was 1) mildly limited in his abilities to interact appropriately with co-workers and supervisors; 2) moderately limited in his ability to carry out simple instructions; and 3) markedly limited in his ability to understand and remember simple instructions, and make judgements on simple work-related decision. (Tr. 438-439.) Dr. Schneider also found extreme limitations in the following areas:

• understanding and remembering complex instructions,
• carrying out complex instructions,
• the ability to make complex work-related decisions,
• interacting appropriately with the public,
• responding appropriately to usual work situations and to changes in a routine work setting.

(Tr. 438-439.)

         2. Physical Impairments

         Flores underwent a series of x-rays on January 18, 2012. X-rays of his bilateral calcanei (i.e., heel) revealed calcaneal spurs, but no fracture or dislocation. (Tr. 466.) An x-ray of his lumbar spine indicated degenerative changes at multiple levels with osteophyte formation. (Tr. 467.) On February 27, 2012, Flores saw Sheku Idriss, D.O., and reported back pain, as well as numbness in both hands. (Tr. 337.) On examination, he had tenderness in his back and decreased sensation in his hands. (Id.) Dr. Idriss prescribed Celebrex and Tramadol. (Id.)

         On January 13, 2013, Flores visited Dr. Azra Shaikh, with complaints of back pain and depression. (Tr. 335.) On examination, he had spasms in his back, along with a positive straight leg raise. (Id.)

         Flores visited the Orthopedic Institute of Pennsylvania on March 7, 2013 for an evaluation of his neck, middle, and lower back pain. (Tr. 356). He reported numbness and tingling in his hands, and back pain radiating into his thighs. (Id.) Danielle Miller-Griffie, PA-C examined him. Flores was able to rise from the seated position without difficulty, and his gait and coordination were grossly normal. (Id.) He had discomfort with palpation in the thorcolumbar area, decreased sensation in his fingers, and negative straight leg raises. (Id.) He was able to heel and toe walk, without weakness. (Tr. 357.) Ms. Miller-Griffie, PA-C recommended he wear night splints for his carpal tunnel syndrome, undergo physical therapy for his back and neck pain, and take Mobic for pain control. (Id.)

         Flores returned to Dr. Shaikh on March 26, 2013. (Tr. 330). He requested a referral for an MRI of his back. (Id.) He had tenderness in his upper cervical and thoracic spine, and reported he was currently in physical therapy. (Id.) Flores insisted work was triggering his back pain. (Id.)

         Flores saw Dr. Shaikh again on April 22, 2013. He reported physical therapy was not helpful. (Tr. 330.) He indicated he had three sessions of physical therapy, and it made his pain worse. (Id.) Dr. Shaikh recommended Flores continue with physical therapy, and prescribed Neurontin. (Id.)

         On April 23, 2013, Flores returned to the Orthopedic Institute of Pennsylvania. He reiterated physical therapy and Mobic were not helpful. (Tr. 342.) He indicated the pain was radiating from his lower back to his bilateral thighs. (Id.) He reported numbness and tingling in his hands at night, despite the night splints. (Id.) On examination, Flores moved about the room normally, his spine was not tender, and he was able to heel and toe walk without weakness. (Id.) He also had good strength in his bilateral extremities. (Id.) Ms. Miller-Griffie ordered a lumbar MRI. (Id.)

         An April 30, 2013 MRI of the lumbar spine revealed mild degenerative disc disease of the lower lumbar spine, with no central canal or neural foraminal stenosis or disc herniation. (Tr. 359.) Flores later underwent an EMG of his bilateral upper extremities on May 3, 2013, which revealed 1) mild to moderate median nerve neuropathy/entrapment at or about the right wrist; 2) mild median nerve neuropathy/entrapment at or about the left wrist; and 3) borderline/mild ulnar nerve entrapment/neuropathy at the right elbow. (Tr. 371.) There was no evidence of bilateral radial or left ulnar nerve entrapment/neuropathy. (Id.)

         Flores returned to the Orthopedic Institute of Pennsylvania on May 7, 2013. He was still having pain from his neck to his lower back, along with numbness and tingling in both hands. (Tr. 340.) On examination, his gait was normal, he rose from the seated position without difficulty, and was able to heel and toe walk. (Id.) He had pain upon palpation in his back and a decreased range of motion in his neck. (Id.) Ms. Miller-Griffie reviewed the MRI and also cervical spine x-rays. She noted the cervical spine x-rays revealed maintained vertebral height and good alignment. (Id.) She assured Flores there was “nothing bad” on the MRI, and no indication for surgery. (Tr. 341.)

         Flores visited the Orthopedic Institute of Pennsylvania on May 20, 2013 for a consultation regarding his arms. Dr. Stephen Dailey, M.D., an orthopedist, was the examiner. (Tr. 343.) Flores reported he was having trouble opening boxes and gripping at work. (Id.) Dr. Dailey reviewed the EMG, and noted it was consistent with bilateral carpal tunnel syndrome and possible cubital tunnel syndrome on the right. (Id.) He administered an injection into Flores' right wrist, and told him to return in two weeks. (Id.)

         Flores returned to Dr. Dailey on June 7, 2013. He indicated no relief from the right wrist injection. (Tr. 345.) He was wearing braces on both wrists, and reported his symptoms had not changed despite not working for the past 2.5 months. (Id.) On examination, he had a full range of motion in his wrists, and his sensation was intact. (Id.) He had diffuse tenderness in his wrists. (Id.) Dr. Dailey told him he did not think his carpal tunnel would respond to surgery, and recommended he obtain a second opinion. (Id.)

         Flores established with primary care doctor Abdulai Bukari, M.D., on June 10, 2013. He reported back and neck pain, and indicated Naprosyn had not been helping. (Tr. 411.) On examination, Flores' entire spine and left trapezoids were tender. (Tr. 412.) He had no muscle atrophy, and the grip in his left hand was slightly weak. (Id.) Dr. Bukari prescribed Flexeril and ordered a cervical spine x-ray. (Id.)

         Flores sought a second opinion regarding his arms from orthopedist Robert Maurer, M.D., on June 17, 2013. He was wearing bilateral wrist splints, and indicated they were helpful. (Tr. 387.) On examination, Flores had normal motion in his neck. (Tr. 388.) Both arms had positive median nerve compression tests, positive Tinel's signs, and positive Phalens' tests. (Id.) Dr. Maurer told Flores his right cubital tunnel syndrome symptoms were not severe enough for surgery, but did recommend carpal tunnel syndrome procedures on both wrists. (Id.) On this date, Dr. Maurer also filled out a form which indicated Flores was able to return to work on June 17, 2013, but “with no constant, repetitive, motion.” (Tr. 407.)

         Flores underwent a right-sided carpal tunnel release on June 20, 2013. (Tr. 379.) He followed up with Dr. Maurer on June 26, 2013. He still had some stiffness, but was healing well, and some of the pain had improved. (Tr. 385.) Flores continued to have left hand pain, however, Dr. Maurer scheduled him for a left carpal tunnel release. (Tr. 386.)

         Flores returned to Dr. Maurer on July 3, 2013. His preoperative numbness had resolved, though he still had stiffness in his digits. (Tr. 383.) Flores indicated he was not ready for left hand surgery. (Id.) Dr. Maurer recommended he have a month of physical therapy for his right hand, and then have his left carpal tunnel procedure. (Id.)

         Flores underwent right hand physical therapy from July 29 - August 13, 2013, totaling 14 visits. (Tr. 391.) He made little progress on most of his therapy goals. (Id.) Flores did have decreased numbness, but was still having high levels of pain. (Tr. 392.) He also had edema. (Id.).

         Flores returned to Dr. Maurer's office on August 14, 2014. Dr. Maurer told him it was normal to still have some pain and swelling in the right hand, and noted Flores' paresthesia had largely resolved on the right hand. (Tr. 381.) Flores reported persistent symptoms on his left, and Dr. Maurer told him to schedule a left-sided carpal tunnel release in the near future. (Id.) Dr. Maurer opined Flores “may continue to work light duty, one-handed work, using his right hand at this time until surgery on the left.” (Id.)

         On August 21, 2013, Flores presented to Dr. Bukari. He reported neck pain and left thigh pain. (Tr. 410.) His entire spine was tender, as was his left thigh. (Id.) Dr. Bukari renewed Flores' prescriptions for Flexeril and Naprosyn. (Id.) She also ordered a cervical spine x-ray, which revealed mild degenerative disc disease and cervical spondylosis. (Tr. 411, 414.)

         On November 11, 2013, Flores saw Dr. Michael Darowish, M.D., in consultation for his right arm pain. He reported increasing pain and numbness since his surgery. (Tr. 446.) He reported his left arm was troublesome, but not as much as his right. (Id.) On examination, Flores had a positive Tinel's sign, and his right wrist was tender with a color change. (Tr. 447.) Dr. Darowish felt he possibly had reflex sympathetic dystrophy. (Id.) He prescribed Neurontin; recommended physical therapy, and ordered a bone scan. (Id.) Dr. Darowish opined “given his significant hand dysfunction, I do not think return to work is feasible at present.” (Id.)

         A November 27, 2013 bone scan revealed mild hyperemia on the right hand, most likely reactive due to recent surgery. (Tr. 445.) There were no findings consistent with complex regional pain syndrome. (Id.)

         In August 2014, Flores began treatment with chiropractor, Curtis Rifle, D.C. (Tr. 485.) Treatment notes indicated he saw Dr. Rifle approximately 13 times between August 22, 2014 and November 10, 2014. (Tr. 481 - 485.) These treatment notes indicate pain and muscle spasm in the lumbar spine. (Tr. 481, 485.) In October 2014, Flores reported pain with walking and standing. (Tr. 484.)

         Dr. Rifle filled out a form regarding Flores' limitations on May 4, 2015. He noted he had treated Flores for about a month, and his prognosis was poor. (Tr. 487.) He noted Flores had a reduced range of motion in his lumbar and cervical spine, along with tenderness. (Id.) Dr. Rifle then provided the following limitations for Flores:

• He could sit for 15 minutes at a time, stand for 15 minutes at a time, stand/walk for less than two hours in an 8-hour workday, and sit for about two hours in an 8-hour workday.
• He would need a job which permitted shifting positions at will. He would need to walk for five minutes every 15 minutes, and would need to take a 10-15 minute break every hour.
• He does not need a cane to ambulate. He can rarely lift 10 pounds, and never lift 20-50 pounds. He could never twist, bend, crouch, squat, climb stairs, or climb ladders.
• He has significant limitations in reaching, handling and fingering, and would only be able to use his hands/fingers/arms for 10% of the workday.
• He would be off-task more than 25% of the workday. He would miss about three days of work per month.

(Tr. 488 - 490.)

         On April 20, 2015, Flores began treatment with podiatrist Munketh Salem, DPM. Flores reported bilateral heel pain for the past three years, and worsening pain in the past two months. (Tr. 496.) Dr. Salem reviewed his old x-rays, which indicated bilateral heel spurs. (Id.) Flores reported he was taking Tramadol as needed for pain, and could not be on his feet for long periods. (Id.) On examination, he had full strength in his feet and ankles, and full, active range of motion in his feet. (Tr. 497.) He had pain with palpation, and mildly limited dorsiflexion in the ankle. (Id.) Dr. Salem prescribed Flores a short course of steroids and therapeutic exercises. (Tr. 498.) He also submitted requests to Flores' insurance for orthotics. (Id.)

         Flores returned to Dr. Salem on May 4, 2015. Dr. Salem injected Flores' left plantar heel, and told him to continue with daily stretching. (Tr. 494.) He told Flores if his symptoms did not improve, he would need to go to physical therapy. (Id.)

         C. State Agency Reports

         1. Mental Impairments

         On December 18, 2013, state agency psychologist Francis Murphy, Ph.D., reviewed Flores' records and completed a “Psychiatric Review Technique.” (Tr. 95.) Dr. Murphy determined Flores had mild restrictions in activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, and pace, and no repeated episodes of decompensation. (Id.) Dr. Murphy also completed a “Mental Residual Functional Capacity (“MRFC”) Assessment. (Tr. 98.) He determined Flores was “capable of engaging in simple, repetitive work activities on a sustained basis.” (Tr. 99.)

         2. Physical Impairments

         On October 2, 2013, Catherine Ugarte, a single decision maker[3], reviewed Flores' records and completed a Physical Residual Functional Capacity (“RFC”) Assessment. (Tr. 97.) Ms. Ugarte determined Flores could occasionally lift and carry 50 pounds, frequently lift and carry 25 pounds; stand and/or walk for a total of 6 hours in an 8-hour workday; and sit for a total of 6 hours in an 8-hour workday. (Id.)

         D. Hearing Testimony

         During the May 8, 2015 hearing, Flores testified to the following:

• His highest level of education is the 11th grade. He did not graduate high school. He is unable to read, speak, or write in English. He is able to read, speak, and write in Spanish. (Tr. 52.)
• He lives with his girlfriend. (Tr. 50.) He does not have a drivers' license, and he uses public transportation. (Tr. 51.) His girlfriend helps him get dressed and bathes him. (Tr. 74.) His girlfriend does the household chores. (Id.)
• He is right-handed. (Tr. 50.) He does not feel he can work due to issues with his right hand. He had surgery on his right hand, and subsequent to this procedure, developed complex regional pain. (Tr. 59.) He is going to receive intensive treatment at the Cleveland Clinic, but it has not yet been scheduled. (Tr. 65, 66.)
• He cannot make a fist or hold anything with his right hand. (Id.) He is not having any problems with his right shoulder, but has problems with his right elbow down to his fingers. (Tr. 60.)
• He also has problems with his left arm. (Id.) He does not have as much strength in his left arm as he did before. He can hold things in his left hand, and is able to make a fist with his left hand. (Tr. 61.) He also has left shoulder pain and neck pain. (Tr. 61.) He feels he is getting pain in his left arm and hand because of overuse, since he cannot use his right arm. (Tr. 66.)
• He has scoliosis and disc problems in his lower back. (Tr. 63.) His entire back hurts. (Id.) His thighs go numb. (Tr. 64.) His left leg hurts. (Tr. 66.)
• He has a heel spur in his left foot. (Id.) He has received injections for this issue. (Tr. 65.)
• He can walk for a block and a half. (Tr. 71.) He can carry a small grocery bag, but he cannot carry anything with his right arm at all. (Id.)
• He takes medication for depression, and it helps a little. (Tr. 67.) He has poor sleep due to his pain. (Tr. 68.) He sees a psychiatrist once a month. (Tr. 70.) His depression is getting worse, and some days he does not come out of his bedroom. (Id.) He has problems with attention, concentration, and decision-making. (Tr. 72.) ...

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