Colon v. Commissioner of Social Security, No. 8:2008cv01191 - Document 22 (M.D. Fla. 2009)
Court Description: ORDER adopting 19 REPORT AND RECOMMENDATION in part re 1 Complaint filed by Catherine Colon. The Court affirms the decision of the Commissioner. The Clerk of Court shall enter a final judgment in favor of Defendant Michael J. Astrue, Commissioner of Social Security, and close this case. Signed by Judge Elizabeth A. Kovachevich on 9/18/2009. (JM)
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Colon v. Commissioner of Social Security Doc. 22 UNITED STATES MIDDLE DISTRICT TAMPA CATHERINE B. LUIS COLON, DISTRICT OF COURT FLORIDA DIVISION COLON o/b/o JR. (Deceased) Plaintiff, v. CASE NO. MICHAEL J. 8:08-CV-1191-T-17TEM ASTRUE, Commissioner of Social Security, Defendant. ORDER This cause Dkt. Dkt. 19 Report 20 Objection Dkt. 21 Response In this of is case, before Plaintiff seeks The decision of the Objections to in which Commissioner be has final Record the it is affirmed Judge decision Plaintiff's has entered his recommended that (Dkt. ("A.R.")(Dkt. Report and being "aware of" correct legal standard; 20). has renews Plaintiff's side effects 2) and and the filed all objections of medication the ALJ did not the 19). Plaintiff Recommendation (Dkt. 1) 12). claims security independently examined the pleadings, arguments previously made include: Security denying assigned Magistrate Report and Recommendation Administrative review of the insurance benefits and supplemental income benefits. The Court on: and Recommendation the Commissioner of Social for disability the the Court make is not findings Dockets.Justia.com Case No. 8:08-1191-T-17TEM regarding the effect ability to work as 737 (11th Cir. good cause of prescribed medication required by Cowart 1981); for not 3) Council sooner; Council is 5) Plaintiff's Schweiker, 662 F.2d 731, Plaintiff is not required to establish submitting the additional Appeals new; v. on 4) the evidence the evidence evidence to the submitted to the Appeals submitted to the Appeals Council is material. I. Standard of The there the is scope of of (1971). adequate may not judgment to for deferential scrutinize A. a that of 1239 reweigh the for record of the (11th Cir. v. more 1983). or the a its decision to correct 402 U.S. accept 401. The Court substitute At Bloodsworth v. Heckler, "despite the Court must entirety to determine the reached." Bowen. Bridges v. 1987) . Errors the outset, typographical errors the in Court as its Discussion Scrivener's and would at However, support scintilla, review of claims...[the] in whether whole person Richardson evidence, 1) Perales, than reasonable Commissioner. (11th Cir. standard [the] a is a whether Richardson evidence as and 2) conclusion. facts, reasonableness F.2d 622 applied. evidence support decide in the record as Commissioner; were relevant limited to determining: evidence Substantial 703 F.2d 1233, II. the standards such review is substantial findings legal 389 is Review notes the ALJ's that there opinion. For are some example, the 815 Case No. opinion 8:08-1191-T-17TEM states: "At his car while riding sentence This the claimant obviously should have been: "At the hearing was hit by a The presence of not create such any real testified that he was his bike." claimant car while (A.R. 18) testified that riding his scrivener's hit by errors is he bike." unfortunate, confusion when considering the but did record as a whole. B. Objections 1. Side Effects Plaintiff weight specific findings 10/30/2007, involved closed head in item of and a After accident, at a evidence the ALJ did the to make not make left ACL tear, a of the right Luis 151-261). the for the any of medication. onset On 9/16/2005, in which clear reasons administrative accident (A.R. Standard and the amended the date of Plaintiff Legal duty side effects the laceration Healthcare a that that, car fracture, Regional the ALJ has to 9/16/2005. injury, Incorrect to as notes a - argues Plaintiff from 2/16/2004 that each Plaintiff The Court the Medication argues accorded to decision. was of hearing of of disability Plaintiff Luis Colon Plaintiff left segmented shoulder Colon was sustained a (A.R. fibular 156). treated at Orlando Case No. 8:08-1191-T-17TEM Plaintiff submitted additional to the ALJ on entered on 11/16/2007 12/31/2007. (A.R. In steps 1 through 21). Additional Appeals Council on 2/28/2008 4 of the sequential 5, the in order. at a stops If step of it the is on determined that a analysis, analysis for the plaintiff. The steps plaintiff the is At are not analytical step followed disabled process at that point. demonstrating an Sullivan, by is Commissioner. sequential A disability a to submitted to the 437). the burden shifts The opinion of the ALJ was evidence was (A.R. determining disability, the burden evidence and closing argument 918 claimant four has 2) inability to F.2d 1567 the initial 1) (11th Cir. 1990). objective medical diagnoses work. of pain and disability, claimant and his or i.e. friends; education and work history. the Commissioner facts (11th Cir. the and then to case, the and is 3) subjective testimony of 4) the guided clinical the claimant's relevant work. Before the ALJ acknowledged that Plaintiff's functional residual Heckler, 720 age, F.2d sequential analysis proceeded to stopped when the ALJ concluded his past v. v. 1983) . In this Tieniber Lucas In determining whether of examining physicians; evidence family burden of return to past satisfied this burden, factors: findings; claimant bears it was that Plaintiff reaching this necessary to capacity step could analytical (A.R. 4, return determine ("RFC") 1251 13). step, Case No. 8:08-1191-T-17TEM The ALJ acknowledged presence a two-step process of medically determinable physical impairments, limit the then determining the claimant's extent ability to do basic limiting effects of pain or other symptoms credibility of ALJ further evidence, his the evidence, statements acknowledged in addition to dosage, the claimant symptoms." (A.R. The ALJ statements takes or has found that the Plaintiff's not impairments performing rules symptoms somewhat on the medical In and were inter effects credible so in severe and The other when making alia. of of record. "[t]he any medication subjective credible the as to preclude The ALJ the record, to to side to the combination of to activity as conclusion as experienced had testimony extent of applying Plaintiff stated expected based SSR 96-7p. credibility, including testimony effects of medication. Plaintiff's testimony that some pain and from Social Plaintiff's Plaintiff's and experienced side severe establishing required under found Plaintiff's testimony, took ten medications, Plaintiff finding evidence, exaggerated over what would be ALJ accorded some weight that a to alleviate pain or other regulations. reaching his Plaintiff substantiated consider Plaintiff had a gainful findings the ALJ considered that side make pain and limitations fully substantial Security and taken extent of establishing that but including, not entire the ALJ must When 18). regarding his impairments, the objective medical effectiveness, symptoms functionally are the ALJ must credibility determination, type, persistence or based on that the work activities. the the or mental to which statements about by objective medical intensity, of determining effects, limitations as a The Plaintiff concluding result of Case No. 8:08-1191-T-17TEM Plaintiff's physical and mental considering the medical evidence the medical evidence did not limitations that activity. did not (A.R. find Plaintiff's did not complaints fatigue. In which Jackson v. entire testimony Bowen. subjective record, the appearance and demeanor at Inconsistencies other claimant's between evidence may not complaints, treatment, credible a or would only to affect (A.R. 18-19). tests cause but the subjective limitations, it is 1114 frequency the and to 1989). consider type of medical the claimant's and accorded as (8th Cir. hearing. subjective the weight such appropriate administrative among work-related number of daily activities, the functional identified why the ALJ F.2d 1111, including the that complained. to other 873 after found severe from all condition what applies also fully the ALJ such performed Plaintiff However, whole, The ALJ clearly standard" of pain but assessing the 18-19). any underlying "pain a Plaintiff was precluded Plaintiff's constant pain of as substantiate treating physicians find The impairments. to complaints the and subjective evidence. As shows to the Plaintiff's medication, Plaintiff's medical evidence following: Date Medication 3/31/2005 Tylenol, 8/22/2005 Naproxen, 4/2006 Reference Trazodone, aspirin, Lorazepam, Flexeril Paxil A.R. 75 A.R. 116 A.R. Motrin 319, 320 4/26/2006 Paroxetine, Lorazepam, Trazodone, A.R. 331 Case No. 8:08-1191-T-17TEM Tramodol, 5/23/2006 Acetominophen, Paroxetine, A.R. A.R. Tramodol, Naproxen Paxil, Ativan, Neurontin Trazodone, 124 34 6 363 Acetominophen Lorazepam, 8/10/2007 341 A.R. Naprosyn, Trazodone, 7/18/2007 Trazodone, A.R. Tramodol, 6/18/2007 Lorazepam, Naproxen Tramodol, Paxil, Lorazepam A.R. 409 Tramodol, Paxil, Lorazepam A.R. 399 A.R. 398 A.R. 128 Ativan 9/11/2007 Trazodone, Depakote 10/30/2007 Paroxetine, Amitriptyline, Lorazepam, Ibuprofen, Trazodone, Depakote, Tramodol, Gabapentin, Paxil, Cyclobenzaprine In does Plaintiff's not Disability Report complain of side Disability Report of side effects included 121-127). associated with list provided nine to times when A.R. 422), and has Center, completed by a (A.R. this 128). In and (A.R. are The Court use 422). the Paxil included notes As of (A.R. evidence and there 399, 5/23/2006, anxiety: Fidel Arbolaez, Peace Dr. for Manuel River and JayCare Medical Center. (A.R. the caused any current problems. and depression Dr. in that treated by various medical providers Mosul, are side effects ran out of his medication Winter Haven Hospital, ALJ considered the Plaintiff family member, Tramodol ten medications alcohol leg pain, Vigil 8/22/2005, 113-120). 10/30/2007, used alcohol that Plaintiff was Dr. the Plaintiff Plaintiff denied of of On the ALJ were Galceran, 6/18/2007, (A.R. associated with Trazodone, (A.R. complaints effects of 15-17). The Case No. 8:08-1191-T-17TEM There Colon's (A.R. are observations A.R. 262, financial problems gas A.R. (A.R. disability benefits Luis the record complaints were disproportionate 148, At in 276). 406), (A.R. Colon what his Plaintiff or hearing, counter and constant leg pain mention any problem with effect related to Plaintiff's with their side effects, closing argument, testified he has his medication. As the Plaintiff's to take (A.R. naps in inability to pick up heavy counsel in the 477). The medical as walk. that of constant be a left daily. hearing. as a In Plaintiff result Colon on leg pain, of all healed his notes fracture support required an the ALJ Plaintiff needs feet an for extended that medical leg taken on a whole do not Plaintiff that The Court Plaintiff's showing testimony of afternoon and cannot essentially normal, records side 22). to walk, of any other stated only that testimony to be imaging reports or administrative Plaintiff s (A.R. and did not current medications, list understood time Colon a complaints of Plaintiff took Plaintiff's periods returning to work as a fatigue to assistive device Plaintiff providers. Plaintiff brought to reported goal 469-470), sleepiness, the medication counsel Colon obtaining cashier, (A.R. objective data the ALJ asked when mentioned only hand and back problems, objects, the Luis of to medical problems would be station attendant to Plaintiff and Plaintiff's 337) the administrative that 9/11/2007 were (A.R. 371, 372). Plaintiff's assistive device to Case No. At 8:08-1191-T-17TEM the hearing, the ALJ summarized his understanding of the claim: "The argument basically is a combination of the injuries plus the combination of the resulting depression and problems been exemplified by a GAF...would preclude work...You 96.8p, ATTY: (A.R. recent Yes, is decline the Claimant are making 96.9p, that an that has in from all argument under correct?" sir.... 470-471). It is conflicts the ALJ's in the role to assess evidence. In credibility and resolve this case, the ALJ assessed Plaintiff's credibility and resolved conflicts adversely to Plaintiff. the pointing out where the record evidence shows In Plaintiff's claim that he medications severe enough to disable the is substantial The Court notes concerning much more medical side there effects normal Court was of finds accorded limitations, but impairment was evidence is very constant examinations, gait and no that to as that little Plaintiff's severe as pain. acute the in the medical the ALJ's other evidence not a Plaintiff underscores evidence and Recommendation, of medication by testimony about Plaintiff's weight that records The Court the from working, opinion of testimony Plaintiff in distress complaints of a whole. in the looking record and at saw (A.R. makes and the ALJ himself, providers opinion of record as Yet, in conflict between suffered from side effects other evidence, supported by Report in 368, clear pain 369). that and convinced the ALJ that nor other the reported by some Plaintiff, severe Case No. 8:08-1191-T-17TEM enough to preclude Plaintiff's After consideration of that the ALJ's failure to the evidence error. Side as to this Effects not i.e. to duty. prejudice must has the the The Court notes the to Plaintiff hearing questions this overrules harmless Plaintiff's duty is a a Ability full facts. rises to represented remand is this case, Plaintiff the by to Work and When a fair claimant level of counsel, is a clear required to allow relevant evidence or that, in the questions, side effects side on case, to close Luis Colon the an can provide the ALJ acknowledged the time record open wished to focused on this evidence at the ALJ afforded ask additional of those the The ALJ held evidence a accorded evidence. did not have all 476). In is Plaintiff's relevant be shown before evidentiary gap. further - claimant submission of additional no the Court finds the weight of medication duty to develop counsel, When a the Court issue. explore represented by special effects relevant work. record, specifically state of Medication An ALJ always record, side the whole After consideration, objection 2. of to return to past submit. to of the receive (A.R. hearing In Plaintiff's counsel the but did pose not effects of medication, Plaintiff's 10 (A.R. additional 477) . counsel he addition, opportunity any and the work activities at impact (A.R. 477). Case No. 8:08-1191-T-17TEM After consideration, err in failing medication at Security. to that in the he Expert. economy. In Plaintiff's past as and mental effects Oct. of 26, 2007). the ALJ misstates step that it, Expert categorized to the physical At establish the ALJ did not Commissioner of Social (11th Cir. performed national that side the opinion of a plaintiff must work as to Pilnick v. the Vocational relevant performed notes finds further as 2007 WL 3122168 at *1 testimony of past inquire the hearing. The Court analysis, the Court 4 of the he as or cannot it this is case, the sequential return to generally the Vocational relevant work and testified requirements of those jobs. (A.R. 471) . The analysis use of is a vocational discretionary. 416.960(b)(2). In his residual mental demands of claimant was performed." If occupation. 1986); a gas C.F.R. 4 of Sees. the ALJ states: functional the sequential 404.1560(b)(2); "[I]n comparing capacity with the physical perform it as the undersigned finds he can be Bowen, duties found able finds substantial evidence Plaintiff's Plaintiff was record as and meet 1293 the in his return to that (11th Cir. in his employment as the ALJ was a whole. objection as to this 11 that required only to pump gas. that the opinion of in the to 801 F.2d 1291, Plaintiff testified that attendant, and actually and generally of the occupation as he practiced it Jackson v. The Court step a plaintiff can perform the SSR 82-61. overrules to position, station 20 at the work performed, able physical demands specific past See opinion, the claimant's the expert supported by The Court issue. Case 3. No. Good Cause The On 8:08-1191-T-17TEM opinion February 29, of the ALJ was 2008, the Appeals Council (A.R. 437-461. evidence in support submitted by the Report the documents material for not denied Council to the Appeals evidence evidence to for Review additional Plaintiff's found the decision Council Request information did {A.R. the Magistrate Plaintiff did not the the 2007. were 4-5). Judge not found new and demonstrate good cause sooner. The Magistrate Plaintiff's evidence under cases involving a Judge "sentence remand. Under of but Recommendation, and introducing considered six" and 31, Request considered changing the ALJ's submitted evidence, of Plaintiff's Plaintiff, for December submitted additional Council the Appeals not provide a basis In Plaintiff The Appeals for Review because entered on 42 U.S.C. Sec. remand available, Under "sentence 405(g), "sentence four," four" and two different "sentence the Court may affirm, the decision of the Commissioner, "sentence four" remand The Court enters a there are results final from an judgment, error and may six." modify or with or without of a the remand types reverse remand. A Commissioner. for further proceedings. A "sentence six" remand material evidence becomes claimant could not hearing. the This type Commissioner. enter a final is available available to have presented that of At remand does the judgment, time but not a 12 a claimant when claimant, evidence result of remand, retains to the at and the the original from an error Court jurisdiction new, does over the of not case. Case No. 8:08-1191-T-17TEM A "sentence material may six" remand is not return to the Court four" properly presented to for entry of remand Inqram v. Commissioner of (11th Cir. claimant has 2007). Melkonvan v. a Plaintiff to "New" Given & level, final the 501 R, establish is "evidence has been Security Admin.. considered by 496 the first F.3d 1253, when a time to the required to show good cause. 89, 99-100 the Court (1991). sustains finds that good claimant judgment. appropriate when not U.S. and new of the administrative record." Social claimant Sullivan. to the R After the Under a sentence four remand, After consideration, objection is a submitted information for Appeals Council, to mean judgment. the Appeals Council the Commissioner and is part 4. final is presented at the administrative A "sentence 1269 a it is Plaintiff's not necessary for cause. Evidence the "not posture of previously this case, submitted" the Court to the ALJ. interprets 20 "new" C.F.R. 404.976. After objection 5. consideration, as to "Material" Plaintiff correct legal this the Court sustains Plaintiff's issue. Evidence argues that the Appeals Council standards and did not make determination when it submitted Information Pharmacy denied review. Sheets 13 the did not apply correct Plaintiff Catherine on the the medications Colon taken by Case No. 8:08-1191-T-17TEM Plaintiff's decedent, for each medication Luis Colon, and identified the by underlining the side side effects effects. Plaintiff argues: "Mrs. Colon confirmed which side husband had experienced prior underlining them on the effects to his Pharmacy her death by Information Sheets." "The new evidence also consisted of a page from the Physicians' Desk Reference which provided additional corroboration to Mr. Colon's the statement, Pharmacy The Appeals Council Plaintiff. Council to that the statement Sheets...." considered the additional The question correct and conclusion is in whether evidence by the Appeals denying review after consideration. The additional information provided to establishes only that: for Colon's Information submitted by came Mrs. Ibuprofen prescription effects 600 mg. 1) on the Appeals Council Plaintiff Colon obtained a prescription 6/29/2007; for Gabapentin 300 mg. 2) Plaintiff Colon obtained a on 6/29/2007; 3) certain are associated with medications prescribed for side Plaintiff Luis Colon. The does not Plaintiff evidence change submitted by the intended prior testimony of result the in Plaintiff this information case. or To from Mrs. Plaintiff Luis Colon, presented under oath, Colon is the cumulative extent Colon to that support the testimony is signed under penalty of perjury. 14 and the not Based Case No. on the 8:08-1191-T-17TEM record, separated from his Plaintiff's (A.R. 341, wife, A.R. understanding which himself three FL, with Mrs. It does already Plaintiff found Luis effects complain that about the same very Plaintiff medication. The side Colon as probative value very to Colon. a daily Luis direct The Colon The Court testimony by additional evidence limited amount side and detailed effects. little was the decedent's Plaintiff side effects. Luis years, Plaintiff on when and corroboration of a testimony by that could provide observed, to sense suffered by there was Colon as confirmation not make reside, personally did not the decedent resided in Lakeland, side she that for 410). of is Catherine Colon, with whom he did not basis is wife, children observations has the Court's effects of the additional of of evidence was slight. If there the Appeals that was Council, the Appeals consideration, issue. any error that Council ORDERED that it application error was did not the Court Accordingly, in in its standards The Court conclusion. Plaintiff's as set are J. Astrue, enter a After this forth above. sustained in part The Court The Court affirms the decision of the Commissioner. shall finds objection as adopts and incorporates the Report and Recommendation Court by is Plaintiff's Objections and overruled in part legal harmless. err overrules of final Commissioner of judgment Social 15 in favor Security, of and therefore in part. The Clerk of Defendant Michael close this case. Case No. 8:08-1191-T-17TEM DONE and ORDERED in Chambers, of September, in Tampa, 2009. ELI Stttted States Copies All to: parties and counsel of record 16 Florida on this
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