United States District Court, N.D. Ohio, Eastern Division
PATRICIA GAUGHAN JUDGE
REPORT AND RECOMMENDATION
JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE
Carlos Flores (“Plaintiff” or
“Flores”), challenges the final decision of
Defendant, Nancy A. Berryhill,  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.
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)
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.)
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
Personal and Vocational Evidence
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.
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.)
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.”
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.)
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.
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
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.)
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.
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
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.)
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.)
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.
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.
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.
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
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.)
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.)
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.)
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.)
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.).
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
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.)
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.)
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.)
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.)
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
• 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
• 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.)
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
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.
State Agency Reports
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.)
October 2, 2013, Catherine Ugarte, a single decision
maker, 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.)
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.) ...