Gonzalez v. Commissioner of Social Security
Filing
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OPINION AND ORDER that the decision of the Commissioner is reversed and remanded. Signed by Magistrate Judge Mac R. McCoy on 2/7/2017. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PAULA GONZALEZ,
Plaintiff,
v.
Case No: 2:15-cv-649-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Paula Gonzalez’s Complaint (Doc. 1) filed on October 16,
2015. Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability, disability
insurance benefits, and supplemental security income. The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and
the parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
I. Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A. Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B. Procedural History
On October 1, 2012, Plaintiff filed an application for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”). (Tr. at 90, 91, 208-215). Plaintiff asserted
an onset date of September 12, 2010. (Tr. at 208). Plaintiff’s applications were denied initially
on December 17, 2012, and on reconsideration on May 30, 2013. (Tr. at 90, 91, 120, 121). A
hearing was held before Administrative Law Judge (“ALJ”) Donna Lefebvre on June 4, 2014.
(Tr. at 41-69). The ALJ issued an unfavorable decision on July 15, 2014. (Tr. at 24-33). The
ALJ found Plaintiff not to be under a disability from September 12, 2010, through the date of the
decision. (Tr. at 33).
On August 28, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at 15). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on October 16, 2015.
This case is ripe for review. The parties consented to proceed before a United States Magistrate
Judge for all proceedings. (See Doc. 19).
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Social Security, 542 F. App’x 890, 891
(11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must
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Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
2
determine whether the claimant: (1) is performing substantial gainful activity; (2) has a severe
impairment; (3) has a severe impairment that meets or equals an impairment specifically listed in
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can
perform other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d
1232, 1237-40 (11th Cir. 2004). The claimant has the burden of proof through step four and then
the burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F.
App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2015. (Tr. at 26). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since September 12, 2010, the alleged onset date. (Tr. at
26). At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
cervical degenerative disc disease status post fusion; spasmodic torticollis; and left shoulder
superior labrum from anterior to posterior (SLAP) tear. (Tr. at 26). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpt. P,
Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(Tr. at 16-17). At step four, the ALJ determined that Plaintiff has the residual functional
capacity (“RFC”) to perform less than the full range of sedentary work with the following
limitations:
can lift up to 10 pounds occasionally and 10 pounds frequently; can stand and walk
for 2 hours in an 8-hour workday with normal breaks; can sit for 6 hours in an 8hour workday with normal breaks; can frequently reach overhead bilaterally; can
1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
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frequently climb ramps and stairs; can never climb ladders or scaffolds; can
frequently balance, stoop, kneel, crouch, and crawl; cannot have concentrated
exposure to extreme cold or excessive vibration; cannot operate moving or
hazardous machinery; and cannot work around unprotected heights.
(Tr. at 29). The ALJ determined that Plaintiff was capable of performing her past relevant work
as an accounting clerk, finding that this work does not require the performance of work-related
activities precluded by Plaintiff’s RFC. (Tr. at 32). The ALJ concluded that Plaintiff was not
under a disability from September 12, 2010, through the date of the decision. (Tr. at 33).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); and Barnes v. Sullivan,
932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at
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1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the
entire record to determine reasonableness of factual findings).
II. Analysis
On appeal, Plaintiff raises three issues. As stated by Plaintiff they are:
1)
Whether the ALJ properly rejected the opinion of physical therapist, James
Stoeberl, who completed a functional capacity evaluation of Plaintiff on the
grounds that Plaintiff put forth low effort and a physical therapist is not an
acceptable medical source.
2)
Whether substantial evidence supports the ALJ’s lack of limitations as to
Plaintiff’s use of her left upper extremity in the RFC assessment given that the
record is replete with evidence that Plaintiff suffers from left upper extremity pain
and left cervical radiculopathy.
3)
Whether the Appeals Council erred denying Plaintiff’s request for review
when Plaintiff provided additional medical evidence including the opinion of Rajan
Sareen, M.D. who saw Plaintiff one month after the ALJ’s decision.
(Doc. 24 at 10, 13, 18). First, the Court will address the issue concerning the new evidence
submitted to the Appeals Council.
A. New Evidence Submitted to Appeals Council
Plaintiff states that she submitted new, additional evidence to the Appeals Council
comprised of an examination report from Rajan Sareen, M.D. dated August 20, 2014, and his
opinion in the form of a medical source statement. (Doc. 24 at 18). Plaintiff contends that Dr.
Sareen’s examination showed Plaintiff suffering from left shoulder, neck, and back pain, which
is gradually worsening and radiating a tingling and numbness in her left hand and left arm.
(Doc. 24 at 19). Further, Plaintiff claims that Dr. Sareen found Plaintiff’s grip strength in her left
hand to be reduced to 75% and that she has a reduced range of motion in several joints. (Doc. 24
at 19). Moreover, Plaintiff asserts that in Dr. Sareen’s evaluation, he found Plaintiff to be
capable of performing handling with her left hand for 1/3 of a workday, and reaching and
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fingering with her left hand for less than 1/3 of a workday. (Doc. 24 at 19). Plaintiff argues that
Dr. Sareen’s examination notes and evaluation provide new and material evidence that relates
back to the date of the ALJ’s decision demonstrating that Plaintiff is more limited than the RFC
findings by the ALJ. (Doc. 24 at 19). Further, Plaintiff claims that the vocational expert testified
at the hearing that manipulative limitations would preclude Plaintiff from performing her past
relevant work as an accounting clerk. (Doc. 24 at 19).
The Commissioner argues in response that the record as a whole supports the ALJ’s
decision and the additional evidence submitted to the Appeals Council does not render the ALJ’s
decision contrary to the weight of the evidence. (Doc. 26 at 18). The Commissioner asserts that
the new evidence is from a month after the ALJ’s decision and Plaintiff fails to demonstrate that
it relates back to the relevant time period. (Doc. 26 at 18-19). The Commissioner claims that
Dr. Sareen’s findings are inconsistent with the records as a whole. (Doc. 26 at 20). Moreover,
the Commissioner contends that Dr. Sareen’s examination of Plaintiff does not support all of the
manipulative limitations he assessed in his evaluation. (Doc. 26 at 20).
Here, the Appeals Council received the following additional evidence relating to Dr.
Sareen: “Medical exam and medical source statement completed by Rajan Sareen, M.D. dated
August 20, 2014.” (Tr. at 5). The Appeals Council denied Plaintiff’s request for review, stating
“[w]e found no reason under our rules to review the Administrative Law Judge’s decision.
Therefore, we have denied your request for review.” (Tr. at 1). The Appeals Council stated that
it would review the case if: “[w]e receive new and material evidence and the decision is contrary
to the weight of all the evidence now in the record.” (Tr. at 1). Further, the Appeals Council
considered, “the reasons you disagree with the decision and the additional evidence listed on the
enclosed Order of Appeals Council. We considered whether the Administrative Law Judge’s
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action, finding, or conclusion is contrary to the weight of the evidence currently of record. We
found that this information does not provide a basis for changing the Administrative Law Judge’s
decision.” (Tr. at 2).
A claimant is generally permitted to present new evidence at each stage of her
administrative process. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007);
20 C.F.R. § 404.900(b). Evidence submitted for the first time to the Appeals Counsel is
determined under a Sentence Four analysis. Ingram, 496 F.3d at 1261. The Appeals Council
must consider new and material evidence that “‘relates to the period on or before the date of the
administrative law judge hearing decision’ and must review the case if ‘the administrative law
judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of
record.’” Id. (quoting 20 C.F.R. §§ 404.970(b); 416.1470(b)). New evidence is considered
material and thereby warranting a remand if “‘there is a reasonable possibility that the new
evidence would change the administrative outcome.’” Ingram, 496 F.3d at 1261.
First, the Court must address whether the evidence submitted of Dr. Sareen is new
evidence. The examination and evaluation by Dr. Sareen of Plaintiff occurred on August 20,
2014, just over a month from the date of the ALJ’s decision. (Tr. at 535-27). The Court finds
that this evidence is new and was not considered by the ALJ when she rendered her decision.
Second, the Court will address whether the new evidence from Dr. Sareen was relevant to
the time period on or before the date of the ALJ’s decision. In this case, the ALJ’s decision was
dated July 15, 2014. (Tr. at 24-33). Dr. Sareen examined Plaintiff and completed the evaluation
on August 20, 2014, just over a month from the date of the decision. (Tr. at 525-57). Dr. Sareen
noted that Plaintiff complained of left shoulder, neck and mid-back pain in the lower back area
for four (4) years since she injured herself helping a patient. (Tr. at 525). Plaintiff reported that
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her pain gradually worsened. (Tr. at 525). Dr. Sareen determined that Plaintiff’s condition
existed since September 12, 2010. (Tr. at 527, 529). Moreover, Dr. Sareen acknowledged that
he had read the medical records before and after the onset date of disability in formulating his
evaluation. (Tr. at 529).
Upon consideration of Dr. Sareen’s examination records and evaluation, the Court finds
that these records relate back to the relevant time period. The examination and evaluation
occurred just over a month from the date of the ALJ’s decision. Thus, Dr. Sareen’s records were
close in time to the date of the ALJ’s decision. Further, Plaintiff complained to Dr. Sareen of left
shoulder, neck and mid-back pain. (Tr. at 525). Plaintiff had a history of complaints for pain in
her shoulders, neck, and back dating from September 2010. (See, e.g., Tr. at 316, 323, 329, 332,
337, 342, 348, 351, 480, 489). These conditions did not develop between the date of the ALJ’s
decision and the date Plaintiff saw Dr. Sareen. Further, Dr. Sareen noted that Plaintiff’s
complaints of pain originated four (4) years prior due to an injury at work. (Tr. at 525).
Although Plaintiff reported that her pain is becoming worse, Plaintiff reported that it was a
“gradual[]” worsening of the pain. (Tr. at 525). It is apparent from the record that Plaintiff’s
complaints of pain and related symptoms existed prior to the date of Dr. Sareen’s examination
and evaluation and related to the relevant time period in this case.
Third, the Court will consider whether the new evidence is material and warranting
remand due to there being a reasonable possibility that the new evidence would change the
administrative outcome of the case. See Ingram, 496 F.3d at 1261. Upon examination, Dr.
Sareen found positive tenderness in the left shoulder and back, grip strength reduced to 75% in
the left hand, dexterity decreased in the left hand, and range of motion decreased in several
joints. (Tr. at 525). Dr. Sareen’s impression was, inter alia, chronic shoulder, neck, and back
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pain due to an injury at work. (Tr. at 526). His conclusions and recommendations included:
Plaintiff suffers from chronic shoulder, neck and back pain; decreased range of motion in
multiple joints; and decreased grip strength in the left hand. (Tr. at 526).
In the evaluation, Dr. Sareen determined that Plaintiff’s condition existed since
September 12, 2010. (Tr. at 527). In the Medical Source Statement, Dr. Sareen found that
Plaintiff was limited as follows:
•
lifting less than 10 pounds, and 10-20 pounds occasionally in an 8-hour workday
•
standing and/or walking to a total of less than 2 hours in an 8-hour workday
•
sitting for less than 2 hours in an 8-hour workday
•
less than 1/3 of the workday for climbing, balancing, stooping, bending, kneeling,
crouching, and crawling
•
Less than 1/3 of the workday for reaching in all directions and fingering (fine
manipulation)
•
1/3 of the workday for handling
•
No limitations as to feeling
•
Requiring a break every 30 minutes that will last an hour or longer due to positive
tenderness and positive paravertebral spasms
•
Requiring hours of rest in the morning and afternoon.
(Tr. at 528). Dr. Sareen found that Plaintiff was limited in standing, walking, and sitting due to
decreased range of motion and pain. (Tr. at 528). Dr. Sareen attributed Plaintiff’s manipulative
limitations to decreased grip strength in Plaintiff’s left hand. (Tr. at 528).
The Commissioner asserts that substantial evidence supports the ALJ’s decision that
Plaintiff is able to perform a range of sedentary work with additional reaching, postural, and
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environmental limitations. (Doc. 26 at 19). The Commissioner claims that Dr. Sareen’s
assessment was inconsistent with the record as a whole and his findings were not specific as to
which joints had decreased range of motion. (Doc. 26 at 20).
The Court has concerns regarding the manipulative limitations found by Dr. Sareen. To
recap, Dr. Sareen found Plaintiff limited in reaching all directions, handling, and fingering on the
left side. In reviewing the hypothetical posed by Plaintiff’s counsel at the hearing, Plaintiff’s
counsel asked the vocational expert if an individual with the following limitations could perform
Plaintiff’s past relevant work as an accounting clerk: (1) could not reach overhead bilaterally;
(2) was limited to frequent reaching in all directions on the upper right extremity including
handling, gross manipulation and fine manipulation (but not overhead); and (3) was limited on
the left upper extremity to occasional use for reaching in all directions, gross manipulation, and
fine manipulation. (Tr. at 67-68). The vocational expert responded that this individual would
not be able to perform Plaintiff’s past relevant work and would not be able to perform work at
the sedentary level with manipulative restrictions. (Tr. at 68).
Plaintiff complained of left shoulder, neck and back pain throughout the medical records.
Dr. Sareen examined Plaintiff most recently and found that she had extensive manipulative
limitations. The vocational expert testified that an individual with manipulative limitations could
not perform Plaintiff’s past relevant work and may not be able to perform work at the sedentary
level. Upon consideration of Dr. Sareen’s examination record and evaluation, there is a
reasonable possibility that this new evidence would change the administrative outcome. Thus,
the Court finds that the Appeals Council erred in failing to review the ALJ’s decision and review
the new evidence submitted to it.
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III. Plaintiff’s Remaining Arguments
Plaintiff’s remaining arguments focus on a physical therapist’s report concerning
Plaintiff’s limitations on the left upper extremity and whether the RFC failed to include
limitations concerning Plaintiff’s left upper extremity. These issues are intertwined with the new
medical evidence of Dr. Sareen submitted to the Appeals Council. Because the Court finds that
on remand, the Commissioner must evaluate the new evidence in light of all of the evidence of
record, the disposition of these remaining arguments would, at this time, be premature.
IV. Conclusion
Upon consideration of the submission of the parties and the administrative record, the
Court finds that the decision of the Appeals Council is not supported by substantial evidence.
IT IS HEREBY ORDERED:
(1) The decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g) for the Commissioner to consider Dr.
Sareen’s examination records and evaluation dated August 20, 2014, in
conjunction with all other medical evidence of records.
(2) If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order
(Doc. 1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.
(3) The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.
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DONE AND ORDERED in Fort Myers, Florida on February 7, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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