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Mendoza v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

April 10, 2017

STEPHANIE MENDOZA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF DECISION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         Stephanie Mendoza (the “Claimant”), appeals to the District Court a final decision of the Commissioner of Social Security (the “Commissioner”) denying her application of Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Doc. No. 1. Claimant argues that the Appeals Council erred by failing to review the Administrative Law Judge's (the “ALJ”) decision in light of new evidence submitted for the first time to the Appeals Council. Doc. No. 18 at 18-23. Claimant requests that the Commissioner's final decision be reversed and remanded for further proceedings. Id. at 34. For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for further proceedings.

         I. BACKGROUND

         A. Claimant's Treatment with Dr. Weiss

         The history of this case is essential to its outcome. On January 8, 2015, Claimant visited Dr. Gary Weiss with complaints of back pain. R. 532. After the visit, Dr. Weiss recorded his impressions in a treatment note. R. 532-535. Dr. Weiss' treatment notes show Claimant making formal visits with Dr. Weiss three additional times: 1) on January 22, 2015; 2) on April 28, 2015; and 3) on September 15, 2015. R. 523, 539, 574.[1] None of the aforementioned treatment notes contain specific functional limitations. R. 523-542, 573-76.

         On July 22, 2015, Dr. Weiss completed a Physical Restrictions Evaluation Form (the “Physical Evaluation”). R. 569-572. Dr. Weiss stated that the Physical Evaluation covered the time period from December 6, 2014 to July 22, 2015. R. 569. The following statements are taken from the Physical Evaluation. Claimant should sit without interruption for thirty to sixty minutes. R. 569. Claimant should stand or walk without interruption for five to ten minutes. Id. Claimant can sit for three hours, stand/walk for one hour, and lie down/recline for four hours in an eight-hour work day. Id. Claimant is totally and permanently disabled. Id. Claimant is unable to lift or carry because of her disability.[2] R. 570. Claimant's impairments are reasonably expected to produce Claimant's alleged subjective symptoms. R. 571.

         B. Claimant's Applications and the ALJ's Decision

         On September 20, 2014, Claimant filed applications for DIB and SSI. R. 34. In both applications, Claimant alleges an onset date of June 1, 2014. Id. On November 3, 2014, Claimant's applications were denied initially. Id. On February 26, 2015, Claimant's applications were denied upon reconsideration. Id. On March 17, 2016, Claimant filed a request for hearing. R. 158. On July 8, 2015, Claimant attended a video hearing before the ALJ. R. 53-85. On October 28, 2015, the ALJ issued an unfavorable decision (the “Decision”). R. 34-47. In the Decision, the ALJ determined Claimant's disability through the five-step sequential evaluation process.[3] Id. At step two of the sequential evaluation process, the ALJ found Claimant to have the following severe impairments: 1) carcinoma of the right breast, status post-chemotherapy and bilateral mastectomy and residual arthralgia and neuropathy; 2) a small C5-C6 herniated nucleus pulposus of the cervical spine; and 3) asthma. R. 36-37. The ALJ also found that Claimant's low back pain and sciatica were not severe impairments:

While the record documents complaints of low back pain and sciatica…there are [n]o reported abnormalities of the thoracic or lumbar spines on objective testing. Further, no functional limitations are established in conjunction with this condition.

         R. 37 (emphasis added). Thus, the ALJ found that Claimant's low back pain and sciatica were not severe impairments because: 1) the objective medical evidence showed no reported thoracic or lumbar spine abnormalities; and 2) there are no additional functional limitations established in conjunction with Claimant's purported back pain and sciatica. Id. At step four, the ALJ made a finding on Claimant's residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds that [Claimant] has the [RFC] to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 6 hours total in an 8-hour workday, and sit 6 hours total in an 8-hour workday. She must avoid concentrated exposure to atmosphere conditions such as fumes, odors, dust, and gases.

R. 40. Thus, the ALJ found that Claimant: 1) could lift and/or carry twenty pounds occasionally and ten pounds frequently; 2) could stand and/or walk six hours total in an eight-hour workday; 3) could sit for six hours total in an eight-hour work day; and 4) must avoid concentrated exposure to atmosphere conditions such as fumes, odors, dust, and gases. Id.

         At step four, the ALJ also made a finding on Claimant's credibility, finding Claimant's “statements concerning the intensity, persistence, and limiting effects of limiting effects of the residual symptoms from [her] breast cancer, neck/back pain, and asthma…not entirely credible.” R. 42. In making his credibility finding, the ALJ considered Dr. Weiss' treatment notes from January 8, January 22, and April 28, 2015. R. 44, 523-542. The Physical Evaluation and the September 15, 2015 treatment note (collectively, the “New Evidence”) were not in the record at the time of the Decision. R. 44, 569-576.

         At step four, the ALJ also weighed the opinions in the record:

As for the opinion evidence, the undersigned affords great weight to the DDS State Agency reconsideration determinations dated February 24, 2015. Dr. Krishnamurthy opined that [Claimant] could perform light work activity on a sustained basis. [Claimant] could lift and carry 20 pounds occasionally and 10 pounds frequently. [Claimant] could stand/walk/sit for about 6 hours during an 8-hour workday, with unlimited pushing/pulling - including environmental limitations only. Lastly there were no [m]ental allegations reported.
The undersigned affords great weight to the DDS State Agency's findings and opinions above because they are credible and supported by the objective medical evidence. The record revealed that [Claimant] was not disabled from performing her daily activities since 2014 for prolonged periods. Accordingly, the DDS ...

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