United States District Court, M.D. Florida, Orlando Division
MEMORANDUM OF DECISION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
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.
Claimant's Treatment with Dr. Weiss
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,
None of the aforementioned treatment notes contain specific
functional limitations. R. 523-542, 573-76.
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. R. 570. Claimant's
impairments are reasonably expected to produce Claimant's
alleged subjective symptoms. R. 571.
Claimant's Applications and the ALJ's
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. 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
(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
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.
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 ...