Regina R. Wims
(Plaintiff Pro Se)
PO Box 5471
Gainesville, FL 32627
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FOX ROCKEFELLER
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant
Case No.: 6:22-cv-154-Orl-PGB-DCI
PLAINTIFF’S TRIAL BRIEF
Plaintiff FOX ROCKEFELLER (Proceeding Pro se, hereafter Plaintiff) respectfully
submits this Trial Brief in accordance with this Court’s Scheduling Order dated April 21, 2022.
I. Procedural History
On November 21, 2019, the Plaitiff filed application for Title II benefits. In that
application, the claimant alleged disability beginning November 21, 2019. This claim was denied
initially on June 25, 2020 and upon reconsideration on December 31, 2020. Thereafter, the
claimant filed a written request for a hearing.
On June 10, 2021, the administrative law judge held a hearing. As a result of said
hearing, the Administrative Law Judge entered an Unfavorable Decision on June 22, 2021.
Plaintiff filed a timely request for review to the Appeals Council. On November 24, 2021, the
Appeals Council denied the Plaintiff's request for review. The denial of disability and disability
insurance benefits by the Appeals Council constitutes a final decision of the Social Security
Administration. Plaintiff has, therefore, fully and completely exhausted his administrative
remedies.
This action is brought to review the decision of the Appeals Council of the Social
Security Administration dated November 24, 2021 affirming the Administrative Law Judge's
decision of June 22, 2021, in which the Administrative Law Judge rendered an Unfavorable
Decision.
Plaintiff filed this case at this Honorable Court on or about January 25, 2022. On or about
April 21, 2022, the Court issued a Scheduling Order, which Ordered the parties to file Briefs
pursuant to the said Order. Plaintiff therefore files this Brief.
II. Statement of Jurisdiction
The Court has jurisdiction to review the final decision of the Commissioner of the United
States Social Security Administration on the bringing of a civil action regardless of the amount
in controversy within 60 days after mailing to the Plaintiff a notice of adverse decision pursuant
to Section 205(g) of the Social Security ACT, as amended (42 U.S.C. 405(g)).
III. Standard of Review
The Eleventh Circuit reviews the ALJ's decision "to determine if it is supported by
substantial evidence and based on proper legal standards." Crawford v. Comm'r, 363 F.3d 1155,
1158 (11th Cir. 2004). "Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion. Even if the
evidence preponderates against the ALJ's findings, we must affirm if the decision reached is
supported by substantial evidence." Id. With respect to the ALJ's legal conclusions, the Court’s
review is de novo. See Carson v. Comm'r of Soc. Sec., 2011 WL 4375018, at *1 (11th Cir. Sept.
21, 2011); See also Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).
IV. Statement of issues
i. Whether the administrative law judge erred when it failed to consider the
opinion of particular medical source(s).
The pertinent question for this court now is whether the decision under review is
supported by substantial evidence in light of the whole record. See Ingram v. Comm'r of Soc.
Sec., 496 F.3d 1253, 1267-68 (11th Cir. 2007); see also Smith v. Soc. Sec. Adm., 272 F. App'x
789 (11th Cir. 2008) (the court must determine whether the denial of benefits was erroneous).
Further, the Eleventh Circuit has held that "[i]ssues concerning the credibility of witnesses and
weight of the evidence are questions of fact which require resolution by the trier of fact." Tippens
v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986).
Plaintiff avers that the ALJ opinion is based on dismissed medical opinion from certain
providers involving misdiagnosis and this opinion directly opposed those of treating physicians,
Xrays, and function forms. The Xrays in March of 2021 confirmed the correct diagnosis and
have helped to determine the plantiff's functional rating and it is the opinion of these doctors
including 3 different signed function forms justly deserve equal weight(404.1520c). Plaintiff's
current doctors found Plaintiff's diagnosis to be "not Fibromyalgia", meaning a misdiagnosis, but
rather "severe" and "Cranio-cervical instability" which opposses that of the ALJ who stated
"Plantiff is better after the chiropractor." This diagnosis was firmly established in March 2021 by
Dr. Centeno and the function form was provided to the court confirmed by my previous attorney.
Furtherly, "Bipolar disorder" established by Mindful Health, confirms a "Bipolar" diagnosis but
ALJ determined Plaintiff had no severe mental dysfunction.
It is noteworthy that no other psychiatrist opinions were provided or requested, but the
ALJ again assigned controlling weight regarding mental function and severity to information
collected from non-mental health providers including both Dr. Qazi, Plaintiff's primary care
doctor at the time, and Dr. Hsu, who was treating Fibromyalgia, a confirmed misdiagnosis, as
stated in the denial letter. The Plaintiff did not seek assistance, diagnosis, or treatment specific to
his mental issues including PTSD and other mental problems from Dr Qazi or from Dr Hsu
because they were not his Psychiatrist. Therefore, these doctors were not aware of the facts
regarding Plaintiff's specific complaints of mental health problems, but their opinions were the
most regarded by ALJ to determine Plaintiff was fit to work mentally. To treat these major
conditions, including PTSD, ADD, Bipolar disorder, and craniocervical instability, the Plaintiff
seeked a correct diagnosis for his physical problems and another for his mental issues. He
obtained and received proper care from Dr. Centeno and Mindful Health. Therefore, ALJ opinion
and decision to give controlling weight to Fibromyalgia diagnosis with no severe loss of function
was based on a misdiagnosis and, therefore, is incorrect.
Also, ALJ’s opinion of Plaintiff's mental function, status, and severity, is incorrect.
Attached is confirming evidence via psychiatrist function form (3rd RFC evidence of disability).
The diagnosis of "craniocervical Instability" was accepted by Plaintiff's primary care doctor Dr.
Dieuvil and Plaintiff's chiropractors. The plaintiff has serious dysfunction as stated on all three
function forms and the reason for Plaintiff's application for disability benefits. This physical
diagnosis has been confirmed by Xrays taken in March 2021. The evidence provided by
qualified treating providers: Dr. Centeno, Dr Dieuvil, Mindful Health, and Dr. Gomez should
have controlling weight. Dr. Qazi misdiagnosed Plaintiff as "healthy" and Dr. HSU
misdiagnosed Plantiff with fully functional Fibromyalgia. The opinions of Dr. Qazi and Dr. Hsu
do not discount or deny those of the treating psychiatrist/orthopedist when considering Plaintiffs
mental and physical dysfunction.(Lester vs Chatter 69 F.3d 1453 (9th Cir. 1995))
In response to ALJ hearing denial section 5 to wit:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform less than the full
exertional range of light work as defined in 20 CFR 404.1567(b). The claimant
could lift or carry less than ten pounds frequently and twenty pounds
occasionally (from very little, up to 1/3 of an 8-hour workday). The claimant
could stand/and or walk (with normal breaks) for a total of six hours in an 8-
hour workday. He could sit (with normal breaks) for a total of six hours in an
8-hour workday. The claimant can frequently climb ramps and stairs, but not
ropes or scaffolds, and ladders exceeding six feet. The claimant could perform
each of the following postural activities occasionally: balancing, stooping,
crouching, kneeling and crawling. The claimant can perform frequent gross and
fine manipulation…
Plaintiff avers that the evidence and opinion, supported by Xray imaging, provided by Dr.
Centeno and reviewed by Dr. Katz(See Exhibit 77) on March 11, 2021, is a qualifying medical
opinion that directly opposes the ALJ response above. Also, Dr. Christopher J. Centeno, M.D. is,
correctly, "an international expert and specialist in Interventional Orthopedics and the clinical
use of bone marrow concentrate in orthopedics. He is board-certified in physical medicine and
rehabilitation" See https://centenoschultz.com/our-staff/.
Further, the ALJ stated "[t]he symptoms themselves are not sufficient to establish a
medically determinable impairment" opposes professional medical opinion including basic
symptoms of Cranio-cervical instability, previously misdiagnosed as fibromyalgia, as provided
by Dr. Centeno.
1. Cranio-cervical instability- the patient is a c1-2 screw fixation candidate.
CCI likely explains many of his ongoing symptoms and I do not believe he has
fibromyalgia. In particular, digital motion XRAY findings today show
significant Atlanto-Axial Instability that is surgical.
2. Loss of cervical lordosis
Plaintiff avers that lesser weight was applied to beneficial medical evidence, including
Xrays, the patient's diagnosis and functions as opined by Dr. Centeno and Dr. Dieuvil. Plaintiff is
still hesitant to consider a c1-c2 fusion as of this writing due to the extreme risks involved in this
procedure up to and including possible death. This is also a very expensive procedure but the
Plaintiff has no income. This specific qualifying evidence is in direct conflict with ALJ’s
statement to wit "Regarding records within the relevant timeframe, primary care provider
Mustaqeem Qazi, M.D., on the initial December 5, 2019 examination, noted the claimant was
using a cane. However, Dr. Qazi observed a normal study, including a normal motor function,
and the extremities and spine were also normal." Dr. Centeno agrees that both Dr. Qazi and Dr.
Hsu were incorrect and they were dismissed as Plaintiff's doctors following his last visits in
2020. They also did not complete any scans or Xrays vs. Dr. Centeno's review of Xrays. To ALJ
credit, the initial application stated "fibromyalgia" because this "misdiagnosis" determination had
not been made until 2 years later, but this doesn't discount the symptoms, function, or complaints
of Plaintiff. Finally, "the opinion of an examining physician is entitled to greater weight than the
opinion of a nonexamining physician" See Lester vs Chatter 69 F.3d 1453 (9th Cir. 1995).
Plaintiff further assers that per ALJ’s denial to wit, "Furthermore, the chiropractors
repeatedly determined the claimant was responding to care and was better (Exhibits 9F, 11F,
14F)", Plaintiff submitted records showing 250 visits to Chiropractor appointments in a 12
month period, which should be a clear indication that Plaintiff requires treatment for chronic
subluxations caused by instability and any improvement to his condition is temporary. This alone
takes up a great deal of time and requires more breaks from all other tasks in life. The term
"better" does not confirm "stability" or "function." To clarify, Planitiff's function is chronically
and severely diminished regardless of these treatments. This is confirmed by these same
Chiropractor records as the Plaintiff is "subluxated" upon arrival at each and every appointment
250 times each year; meaning the majority of daily hours are spent in a subluxated state.
Plaintiff's Craniocervical Instability furtherly confirms the Plaintiff has an unstable spine and
chronic subluxations of the human body's most important joint, where the head attaches to the
neck. "Craniocervical instability is caused by ligament laxity between the skull and the top two
vertebrae (the atlas and the axis). This allows excessive movement and leads to a long list of
physical and neurological symptoms."
Plaintiff is not aware of any job that allows for 250 extra doctor visits a year on top of the
normal breaks to get these treatments. The Plantiff is subluxated and in a state of pain and
dysfunction 250 or more days of the year. Plaintiff has not received a "cure" from these
treatments. Chiropractor adjustments do help Plaintiff feel "better," but it's only a temporary
relief until the dysfunction quickly returns because of "ligament laxity" as confirmed by Xrays
and diagnosis of Atlantoaxial/craniocervical instability. These 250 chiropractor visits a year don't
include any other treatments Plaintiff receives, including appointments with therapists,
orthopedist, primary care doctor, or psychiatrist.
Accordingly, Plaintiff avers that the ALJ erred in failing to consider the crucial evidence
submitted by Plaintiff.
ii. Whether the ALJ was biased
The ALJ plays a crucial rule in the disability review process and "not only is he duty-
bound to develop a full and fair record, he must carefully weigh the evidence, giving
individualized consideration to each claim that comes before him." Miles v. Charter, 84 F.3d
1397 (1996) at 1401 The ALJ's impartiality is integral to the system. Id.
The rulings of ALJs are biased if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible." Liteky v. United States (92-6921), 510 U.S.
540 (1994) at 555; see also Bronson v. Barnhart, 56 Fed. Appx. 793, 794 (9th Cir. 2003) (ALJ
disqualified because the ALJ's hostility towards the claimant's counsel "was so severe and
pervasive that it colored the entire hearing with bias"; see also Miles v. Charter, 84 F.3d 1397
(1996) at 1399-401 (finding that an ALJ demonstrated bias when the ALJ, relying on
extrajudicial knowledge, discredited a medical source's opinion because the medical source
regularly provided favorable examination reports for claimant).
In the instant action, when furtherly examined, negative bias continues, since little to no
weight was given to benefiting evidence such as Dr. Qazi stating in writing "no work until
further notice" and also evidenced in ALJ testimony "Dr. Qazi submitted a form noting that
fibromyalgia and irritable bowel syndrome restrict nearly all of the claimant’s functions (Exhibit
5F)." This evidence was discounted or denied by the ALJ. Plaintiff has symptoms similar to
many blue book listings regarding dysfunction of the spine/nerves such as "nerve root
compression" (See exhibit 76) and/or mental health listings such as "Bipolar". All mental Health
providers and several inpatient psychiatric hospitalizations all confirm extreme mental illness.
Briefly mentioned by ALJ "It was repeatedly observed recent memory was impaired" and "With
regard to concentrating, persisting or maintaining pace, the claimant has a moderate limitation";
but this opinion was also not given controlling weight. Per ALJ denial testimony". It was
repeatedly observed attention and concentration were diminished" but again, not given
controlling or even equal weight.
No evidence has ever been provided by another qualified Orthopedics specialist or
Psychiatrist to confirm ALJ's opinion which overall lead to incorrect denial. Function forms
regarding both mental health diagnosis/function and the Instability diagnosis/function were
factually the only qualified professional function reports provided to ALJ/SSA. Therefore,
evidence qualifying Plaintiff for disability by Dr. Centeno and Dr. Dieuvil, noting 8 substantial
qualifying dysfunctions, were treated unfairly and denied. These 2 function forms should, at
least, have equal weight according to the rules (404.1520c). The plantiff attempted to make this
clear during the hearing, but is certified to have mental problems which is the ongoing reason for
past multiple hospitalizations for mental illness. It was severe enough that Plantiff was Baker
acted and handcuffed and placed in a mental ward, by the police, in 2018. With all that in mind,
Plantiff was asked to talk about his mental health in the hearing. Plantiff has a confirmed
diagnosis of PTSD and had an emotional/mental breakdown due to PTSD regarding "oatmeal".
This mental breakdown was disregarded, but this is direct evidence of Plaintiff's mental
dysfunction. A disability determination was made without a functioning applicant. The
continuation of the hearing while Plaintiff was in a Bipolar/PTSD state negatively impacted the
remainder of the hearing including the testimony of the vocational expert whose answers were
opinions based solely on the specific questions being asked.
The ALJ's questions heavily differred from the evidence provided by Plaintiff's doctors
on the said 2 function forms. The plantiff's opinion is that, because of the misdiagnosis, the
medical evidence in these 2 function forms was, to this day, not treated fairly by ALJ. Plantiff
believes if the evidence from these 2 forms were assigned equal weight by law, "no job exists"
allowing for the limitations certified by these doctor signed function forms. Furtherly, the mental
decline during the hearing is direct evidence of client's inability to remain mentally stable
enough to deal with others in a work setting. Notabaly, the ALJ asking about "oatmeal" sent the
Plantiff into an episode of crying, depression, anxiety while on the phone. Disregarding these
facts and forms, the vocational expert opined the plaintiff "could do medical device assembly",
completely opposing the opinion of the Plaintiff's preferred and accepted doctors, Centeno and
Dieuvil, and for this court's confirmation, a 3rd function form from Dr. Gomez. Plaintiff does not
accept the misdiagnosis and will not be seeking treament for fibromyalgia. The opinion of the
ALJ, "Because the claimant’s mental impairment does not cause at least two “marked”
limitations or one “extreme” limitation, the “paragraph B” criteria are not satisfied" opposes all
of these facts and disregards all current medical opinion and function forms. The Plaintiff does
have at least two "marked" limitations and meets the criteria.
V. Conclusion
In summary, three different doctors have provided qualified evidence of the Plaintiff's
disability. The doctors stated thus:
i. Dr. Dieuvi: "Plaintiff would miss 3 or more days of work due to medical
problems" and "would need to elevate feet more than 15 minutes per hour"
ii. Dr. Centeno A.: "would miss 3 or more days per month due to medical problems"
B. "Assuming a normal work day allowing a morning break, lunch break and
afternoon break, how many extra breaks per day? More than 1 per day" C."patient
requires a cervical fusion to try to restore stability" D. "more than 3 days per
month would not stay focused for at least 7hrs of work day."
iii. Dr. Gomez: "Would your patient's impairment substantially interfere with his or
her ability to work on a regular and sustained basis at least 20% of the time?"
'Yes'
This evidence of dysfunction and disability directly opposses the ALJ’s opinion. Dr.
Centeno stated that Plaintiff is disabled in a function form. Dr. Dieuvil, Plaintiff's treating doctor
since 2018, also agreed Plaintiff is disabled per function form. Overall, the most beneficial
evidence for the plaintiff's case has been incorrectly assessed and/or processed up to this point.
Plaintiff is not aware of any job that allows missing 3 days of work per month, "more than 1
extra break every day", or "feet raised for 15 minutes per hour." Plaintiff has both physical and
mental limitations: "atlanto-axial instability"(Centeno) and major depressive disorder, Bipolar
disorder, ADD(attention deficit disorder) and PTSD".
Accordingly, Many errors have been made as a matter of law in failing to find the
Plaintiff was under a disability within the meaning of the Social Security Act and entitled to a
period of disability and disability insurance benefits starting November 21, 2019. The plaintiff
also has other medical problems that were not part of the equation which add to the amount of
time, energy, and function plaintiff requires to work including diverticulosis, irritable bowel
syndrome, alpha-gal syndrome, or testosterone deficiency. In conclusion, Plaintiff is limited
from "working on a regular and sustained basis"(SSR 83-10) required for "sendentary" work.
In light of the foregoing, Plaintiff prays this Honorable Court reverses the ALJ’s opinion,
and rules in favor of Plaintiff. Plaintiff further prays for any other Order this Court deems just.
Respectively submitted
Date: ____________
_________________________
Fox Rockefeller, with assistance from spouse Irina Novikova
7627 Clubhouse Estates Dr
Orlando, FL 32819
(913) 703-3555
foxrockefeller@gmail.com
irinavnovikova@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify on the ____________day of _______________, 2022, that a true and correct
copy of the foregoing Plaintiff’s Trial Brief were served by placing a copy in the United States
Postal Service, with postage prepaid, addressed upon the following:
SERVICE ON:
[ENTER DEFENDANT’S ADDRESS]
__________________________
Fox Rockefeller, with assistance from spouse Irina Novikova
7627 Clubhouse Estates Dr
Orlando, FL 32819
(913) 703-3555
foxrockefeller@gmail.com
irinavnovikova@yahoo.com
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