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Day v. Commissioner of Social Security

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

September 21, 2017

TAMMIE JO DAY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF DECISION

          DANIEL CIRICK UNITES STATES MAGISTRATE JUDGE

         Tammie Jo Day (Claimant) appeals the final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability benefits for a period of disability from February 15, 2004 through October 19, 2012. Doc. 1. Claimant argues that the Administrative Law Judge (the ALJ) erred by: 1) failing to comply with this Court's remand order and the remand order issued by the Appeals Council in considering the opinions of Claimant's treating physician, Dr. Jeremy Mirabile, M.D.; 2) failing to appropriately consider the opinions of Dr. Alvan Barber, M.D. and Dr. Frank S. Alvarez, Jr., M.D.; 3) violating Claimant's due process rights by refusing to issue Claimant's requested subpoenas for the hearing before the ALJ; and 4) failing to properly evaluate Claimant's credibility in relation to her asserted pain and limitations. Doc. 25 at 2. Claimant argues that the matter should be reversed and remanded for an award of benefits or, in the alternative, for further administrative proceedings. Id. For the reasons set forth below, the Commissioner's final decision is REVERSED and REMANDED for further proceedings.

         I. PROCEDURAL HISTORY.

         On April 7, 2006, Claimant filed an application for a period of disability, disability insurance benefits, and supplemental security income, alleging a disability onset date of February 15, 2004. R. 2360. On September 24, 2009, Claimant's applications were denied by an ALJ, who entered a decision finding that Claimant was not disabled. Id. On September 15, 2010, the Appeals Council remanded the case for the ALJ to consider a medical source statement and to consider whether Claimant's past work had been at the level of substantial gainful activity. Id. On remand, on July 25, 2012, another ALJ denied Claimant's applications, finding that Claimant was not disabled. Id.

         The Appeals Council denied review and that decision was ultimately appealed to this Court. See Doc. 1, 6:14-cv-272-DAB. On August 8, 2014, the Commissioner requested remand, and the Court remanded this matter for the purpose of conducting the following additional proceedings:

Specifically, the Administrative Law Judge (ALJ) will obtain additional evidence concerning the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence, including, as warranted, allowing questioning of any post-hearing evidence by the claimant. The ALJ will give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations. In so doing, the ALJ shall evaluate all opinions and explain the weight given to such opinion evidence.

Doc. 24, 6:14-cv-272-DAB (emphasis added).

         Pursuant to the Court's order of remand, the Appeals Council directed that the ALJ obtain additional evidence, give further consideration to Claimant's maximal residual functional capacity (RFC), and “evaluate all opinions . . . and explain the weight given to such opinion evidence.” R. 2360-61. In particular, the Appeals Council singled-out the opinions of Dr. Barber and Dr. Mirabile, stating in its remand order as follows:

. The previous decision did not address the claimant's request to submit questions to consultative examiner Alvan Barber, M.D., in violation of HALLEX I-2-7-30(H), which provides that [i]f the Plaintiff requests an opportunity to question the author(s) of any postearing report ... the ALJ must determine if questioning of the author is required to inquire fully into the matters at issue, and if so, whether the questioning should be conducted through live testimony or written interrogatories" HALLEX I-2-7-30(H).
. The decision also did not discuss or assign weight to three opinions from treating physician, Jeremy Mirabile, M.D. Dr. Mirabile wrote four letters expressing his medical opinion, dated July 19, 2006, October 26, 2006, January 10, 2007, and January 31, 2008 (Tr. 1231, 1235, 1656, 1689, 1701, 1884, 048). The decision only discussed and assigned weight to the last of them (Tr. 25). The regulations require that the decision both consider all the evidence and specify what weight is given to medical opinion evidence (20 C.F R. §§ 404.1527(e)(2), 416927(e)(2)).

R. 2516.

         On December 11, 2015, on remand a second time, a third ALJ entered a partially favorable decision, finding that Claimant was not disabled from the alleged onset date in 2004 through October 19, 2012, but that Claimant was disabled from October 19, 2012 through January 8, 2014.R. 2360-86. This decision ultimately became the Commissioner's final decision. This appeal followed, challenging only the determination that Claimant was not disabled prior to October 19, 2012. Doc. 25 at 1-2.

         II. THE ALJ'S DECISION.

         The ALJ found that Claimant suffered from the following severe impairments:

a history of a seizure disorder, status post cerebral trauma, encephaloma[la]cia of the left frontal lobe, osteoarthritis of the right hip and right ankle, right shoulder pain status post humerus fracture, asthma, chronic obstructive lung disease, borderline intellectual functioning, a history of a substance abuse disorder, a generalized anxiety disorder, a depressive disorder and post-traumatic stress disorder. Beginning on the established onset date of disability, October 19, 2012, the claimant had the following additional severe impairments: degenerative disc disease of the thoracic and lumbar spine with a severe T2 compression fracture and moderate effacement of the spinal cord, status post laminectomy fusion.

R. 2364. The ALJ also found that Claimant suffered from the following non-severe impairments: hypertension, hepatitis C, and obesity. Id. The ALJ found that Claimant did not meet or equal any listed impairment. R. 2364-66.

         The ALJ found that, from the alleged onset date in 2004 through October 19, 2012, Claimant had the RFC to perform light work as defined by 20 C.F.R. §§ 404.1567(b) and ...


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