Weber v. Commissioner of Social Security et al

Filing 26

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED, and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgment in favor of Plaintiff Thomas E. Weber, and to close the file. Signed by Magistrate Judge Carol Mirando on 2/24/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS WEBER,
Plaintiff,
v.

Case No: 2:16-cv-25-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Plaintiff Thomas Weber appeals the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his claims for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”).

The Court has

reviewed the record, the briefs and the applicable law. For the reasons discussed
herein, the decision of the Commissioner is REVERSED, and this matter is
REMANDED pursuant to 42 U.S.C. § 405(g), sentence four.
I.

Issues on Appeal

Plaintiff raises five issues on appeal: (1) whether the Administrative Law
Judge (“ALJ”) violated HALLEX 1 by not addressing Plaintiff’s request for a subpoena
and objections to the vocational expert (“VE”); (2) whether the ALJ properly accorded
little weight to the opinion of Jerilee Lomas, D.O.; (3) whether the ALJ properly
evaluated the opinion of David Cumberbatch, DPM; (4) whether the ALJ properly
HALLEX refers to the Social Security Administration’s Hearings, Appeals, and
Litigation Law Manual.
1

assessed Plaintiff’s credibility; and (5) whether substantial evidence supports the
ALJ’s hypothetical questioning.
II.

Procedural History and Summary of the ALJ’s Decision

On November 5, 2012, Plaintiff protectively filed applications for a period of
DIB and SSI alleging that he became disabled and unable to work on March 1, 2008
due to his right ankle that was shattered in 1994, and his left knee pain.
162-75.

Tr. 65,

The Social Security Administration denied his claim initially on December

1, 2012, and upon reconsideration on February 13, 2013.

Tr. 107-30.

Plaintiff

requested and received a hearing before ALJ Charles R. Howard in Kingport, TN on
April 17, 2014.

Tr. 47, 131-38.

Plaintiff appeared and testified at the hearing by

video teleconference from Fort Myers, Florida.
represented by an attorney.

Tr. 47.

Tr. 47, 133.

Plaintiff also was

The VE, Gary Maisel, testified at the hearing.

Id.
On May 7, 2014, the ALJ issued a decision finding that Plaintiff was not
disabled and denied his claim.

Tr. 19-28. The ALJ first determined that Plaintiff

met the insured status requirements of the Social Security Act through December 31,
2013.

Tr. 21.

At step one, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since March 1, 2008, the alleged onset date.

Id. At step

two, the ALJ determined that Plaintiff has the following severe impairments: right
ankle disorder status post open reduction and internal fixation and subsequent
removal of a screw; left knee degenerative joint disease; and back disorder.

Id. At

step three, the ALJ concluded that Plaintiff “does not have an impairment or

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combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 23.
In doing so, the ALJ specifically considered the four broad functional areas set
out in the regulations for evaluating mental disorders in section 12.00 of the Listing
of Impairments, the so-called “paragraph B” criteria. 2

Tr. 21-22.

In the first

functional area of daily living, the ALJ determined that Plaintiff has no restriction.
Tr. 22. The ALJ noted, “[Plaintiff] reported that he lived with his uncle and aunt,
did some housekeeping including cleaning, laundry, and shopping.

He reported that

he was independent with personal care and had a driver’s license.

He reported that

he watched television, listened to the radio, and read.”

Tr. 22.

In the next functional area, social functioning, the ALJ found that Plaintiff has
no limitation. Tr. 22.

The ALJ noted that Plaintiff lived with his uncle and aunt,

Id.

had a driver’s license, and shopped.

In the third functional area of

concentration, persistence, or pace, the ALJ found Plaintiff to have mild limitations.

Id. The ALJ indicated that the record of Plaintiff’s daily activities such as watching
television, listening to the radio, and reading showed mild limitations in
concentration, persistence, and pace.

Id. In the fourth functional area of episodes

of decompensation, the ALJ found that Plaintiff had experienced no episodes of
decompensation of an extended duration.

Id.

Taking into account the effects of all of Plaintiff’s impairments, the ALJ
determined that Plaintiff has the residual functional capacity (“RFC”) to perform

2

20 C.F.R., pt. 404, subpt. P. app. 1.

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sedentary work.

Tr. 23.

The ALJ found, “[Plaintiff] can occasionally climb ramps

and stairs, balance, stoop, kneel, crouch, and crawl, but never climb ladders, ropes,
or scaffolds; and he should avoid operation of foot controls with the right lower
extremity.”

Id.

The ALJ found that Plaintiff’s impairments were not as severe or

limiting as alleged and would not have precluded him from performing work at the
assessed RFC.

Tr. 25.

The ALJ found that Plaintiff was unable to perform his past

relevant work (“PRW”) as a stocker, but there are jobs existing in significant numbers
in the national economy that Plaintiff can perform.
Plaintiff was not disabled and denied his claim.

Tr. 26-27. Thus, the ALJ found

Tr. 28.

Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on November 19, 2015.

Tr. 1-5.

7, 2014 decision is the final decision of the Commissioner.
in this Court on January 19, 2016.

Doc. 1.

Accordingly, the May

Plaintiff filed an appeal

Both parties have consented to the

jurisdiction of the United States Magistrate Judge, and this matter is now ripe for
review.

Docs. 17, 18.

III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months.
423(d)(1)(A); 20 C.F.R. § 404.1505(a).

42 U.S.C. §§ 416(i)(1),

The Commissioner has established a five-step

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sequential analysis for evaluating a claim of disability.
416.920.

See 20 C.F.R. §§ 404.1520;

The Eleventh Circuit has summarized the five steps as follows:

(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”

Atha v. Comm'r, Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner.
616 F. App'x at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Atha,

The scope of

this Court’s review is limited to determining whether the ALJ applied the correct
legal standards and whether the findings are supported by substantial evidence.

McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing 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., evidence that must do more than create a
suspicion of the existence of the fact to be established, and 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) (internal citations omitted); see also Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence

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is something more than a mere scintilla, but less than a preponderance”) (internal
citation omitted).
The Eleventh Circuit recently has restated that “[i]n determining whether
substantial evidence supports a decision, we give great deference to the ALJ’s
factfindings.”

Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir.

2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th
Cir. 1996).

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 preponderance of the
evidence is against the Commissioner’s decision.

Edwards v. Sullivan, 937 F.2d 580,

584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991).
“The district court must view the record as a whole, taking into account evidence
favorable as well as unfavorable to the decision.”

Foote, 67 F.3d at 1560; see also

Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must
scrutinize the entire record to determine the reasonableness of the factual findings).
It is the function of the Commissioner, and not the courts, to resolve conflicts in the
evidence and to assess the credibility of the witnesses.

Lacina v. Comm'r, 2015 WL

1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).

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IV.

Discussion

a. Whether the ALJ violated HALLEX 1-2-5-55 and 1-2-5-78 by not
addressing Plaintiff’s request for a subpoena and written objection to
the VE in his decision
“The [HALLEX] is a policy manual written by the Social Security
Administration to provide guidance on procedural matters.”
F. Supp. 2d 1369, 1372 (S.D. Fla. 2011).

Warren v. Astrue, 830

“[R]emand is required only if the ALJ

violates the procedures in the HALLEX and only if the violation prejudices the
claimant.”

Cohan v. Comm'r, Soc. Sec. Admin., No. 6:10-cv-719-Orl-35DAB, 2011

WL 3319608, at *5 (M.D. Fla., July 29, 2011).
The HALLEX provides that first, a claimant must make a request for subpoena
with the requisite details at least ten days before the hearing date.
78(B)(1).

HALLEX I-2-5-

Then the ALJ evaluates the request and issues a subpoena if “[t]he

claimant or ALJ cannot obtain the information or testimony without the subpoena;”
and “[t]e evidence or testimony is reasonably necessary for the full presentation of
the case.”

HALLEX I-2-5-78(B)(2).

If the ALJ denies the request, “the ALJ must

notify the claimant of the denial, either in writing or on the record at the hearing,”
“enter the request into the record as an exhibit,” and “explain why the ALJ declined
to issue a subpoena.”

HALLEX I-2-5-78(D).

With respect to the VE, the ALJ must

“advise the claimant of the reason for the VE’s presence” and ask “the claimant and
the representative whether they have any objection(s) to the VE testifying.”
HALLEX I-2-6-74(B).

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Plaintiff argues that the ALJ violated HALLEX I-2-5-55 by not issuing a
written ruling on objections to the VE, and HALLEX I-2-5-78 by not addressing in
writing Plaintiff’s request for a subpoena.

Doc. 21 at 8. Plaintiff alleges that he

submitted a request for a subpoena and objections to the VE in writing on April 3,
2014, fourteen (14) days before the hearing.

Id. The Commissioner argues that

although the ALJ did not address Plaintiff’s objections or request for a subpoena in
his decision, Plaintiff does not show that the ALJ’s non-compliance with the HALLEX
was prejudicial. Doc. 22 at 5.

In fact, the Commissioner asserts that during the

hearing, neither Plaintiff nor Plaintiff’s counsel questioned the VE regarding his
testimony on the number of jobs.

Id. The Commissioner argues that the ALJ’s

error was harmless because Plaintiff does not show that he suffered prejudice from
the ALJ’s error.

Id.

The Court finds that contrary to Plaintiff’s argument, HALLEX I-2-5-55 does
not mandate the ALJ to address objections to the VE in writing, as it only
circumscribes a general rule for obtaining vocational expert opinion at the hearing. 3
HALLEX I-2-5-55.

3

On the other hand, HALLEX I-2-5-78(D) provides the relevant

The provision provides in its entirety,
When an administrative law judge (ALJ) obtains a vocational
expert (VE) opinion during a hearing, the ALJ will generally
explain why the VE is present before his or her opening
statement. See Hearings, Appeals and Litigation Law
(HALLEX) manual I-2-6-50. For detailed instructions on
obtaining VE testimony at a hearing, see HALLEX I-2-6-74. For
more information about opening statements, see HALLEX I-252.

HALLEX I-2-5-55.

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authority, and the record shows that the ALJ did not ask Plaintiff and his attorney
whether they objected to the VE’s testimony and also did not address Plaintiff’s
request for a subpoena in writing or on the record.

Tr. 19-28, 59-63.

As the Commissioner argues, however, Plaintiff does not allege at all that he
suffered prejudice as a result of the ALJ’s non-compliance with the HALLEX.

See

Cohan, 2011 WL 3319608, at *5. In fact, during the hearing, Plaintiff did not discuss
his outstanding request for a subpoena or objections to the VE. Tr. 59-63.

Absent

a showing of prejudice, the Court will not vacate and remand the Commissioner’s
decision solely because the ALJ did not strictly comply with the HALLEX.

See

Cohan, 2011 WL 3319608, at *5.
b. Whether the ALJ properly accorded little weight to Dr. Lomas’
opinion.
In assessing Plaintiff’s RFC, the ALJ discussed the treatment notes of Dr.
Lomas, noting that Dr. Lomas “has treated [Plaintiff] intermittently for his right
ankle pain since May 2013.

On examinations, he noted that [Plaintiff] walked with

a cane and that he had edema on two occasions.
medications.”

He treated [Plaintiff] with

Tr. 24.

The ALJ also considered Dr. Lomas’ physical capacity evaluation dated
October 9, 2013. 4

Tr. 26. 288.

The ALJ summarized Dr. Lomas’ evaluation as

follows:
He indicated that [Plaintiff] could lift up to 35 pounds occasionally, but
never carry. He noted that [Plaintiff] could occasionally push/pull
The ALJ’s decision incorrectly indicates that the date of the evaluation was
December 9, 2013. Tr. 26.
4

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seated and seldom bend and reach above shoulder level, but never
push/pull standing, squat, crawl, or climb. He reported that [Plaintiff]
could sit for 8 hours, stand for 1 hour, sit/stand for 1 hour in an 8-hour
workday. He noted that [Plaintiff] would have mild restrictions being
around moving machinery, exposed to marked changes in
temperature/humidity, and driving automobile equipment.
He
reported that [Plaintiff] had moderate to marked pain. He felt that
[Plaintiff] would not be capable of independently carrying out routine
ambulatory activities, such as shopping, banking, climbing a few stairs
at a reasonable pace. He indicated that [Plaintiff] would likely to be
absent from work four or more days a month.
Tr. 26, 308-10.

The ALJ decided to accord little weight to Dr. Lomas’ evaluation

because “it is not supported by his own treatment records.”

Tr. 26.

Specifically, the

ALJ noted that Plaintiff walked with a cane and had edema twice according to Dr.
Lomas’ medical records, and Dr. Lomas treated Plaintiff with medications and did
not refer him to any specialists.

Id. The ALJ also found that “Dr. Lomas’ opinion

is [] not supported by [Plaintiff’s] reported activities of daily living.”

Id.

Under the Social Security regulations, opinions of treating sources usually are
given more weight because treating physicians are the most likely to be able to offer
detailed opinions of the claimant’s impairments as they progressed over time and
“may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations . . . .”
20 C.F.R. § 404.1527(c)(2).

Medical source opinions may be discounted, however,

when the opinion is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if the opinion is inconsistent with the record as a
whole.

SSR 96-2p; Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159-60 (11th

Cir. 2004).

If the opinion of a treating physician as to the nature and severity of a

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claimant’s impairment is supported by acceptable medical evidence and is not
inconsistent with other substantial evidence of record, the treating physician’s
opinion is entitled to controlling weight. SSR 96-2p; 20 C.F.R. § 404.1527(c).

By

contrast, if the ALJ does not afford controlling weight to a treating physician’s
opinion, he must clearly articulate the reasons for doing so.

Winschel, 631 F.3d at

1179.
Accordingly, “[a]n ALJ must give a treating physician’s opinion substantial
weight, unless good cause is shown.”

Castle v. Colvin, 557 F. App’x 849, 854 (11th

Cir. 2014) (citing Phillips, 357 F.3d at 1240); Lewis, 125 F.3d at 1440; Sabo v. Chater,
955 F. Supp. 1456, 1462 (M.D. Fla. 1996); Hunter, 808 F.3d at 822-23. “Good cause
exists when the ‘(1) treating physician’s opinion was not bolstered by the evidence;
(2) evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.’”
F.3d at 1179 (quoting Phillips, 357 F.3d at 1241).

Winschel, 631

Although the regulations require

that the ALJ consider all factors set forth in 20 C.F.R. § 404.1527(c), the ALJ is not
required to expressly address each factor so long as he demonstrates good cause to
reject the opinion. Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir.
2011).
Plaintiff argues that the ALJ’s decision to accord little weight to Dr. Lomas’
opinion is a reversible error.

Doc. 21 at 13-14. Plaintiff asserts that Dr. Lomas

noted swelling in Plaintiff’s ankle several times and did not refer Plaintiff to any
specialists because Plaintiff already saw Dr. Cumberbatch before receiving

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treatments from Dr. Lomas.

Id.

Plaintiff also argues that Plaintiff’s daily

activities reported on December 17, 2012, such as doing some housekeeping and being
independent with personal care, are not inconsistent with Dr. Lomas’ opinion.

Id.

at 14; Tr. 266. Plaintiff asserts that doing minimal daily activities is not dispositive
evidence of one’s ability to perform sedentary work.

Doc. 21 at 15.

The Commissioner does not contest that Dr. Lomas is Plaintiff’s treating
physician.

Doc. 22 at 10.

Instead, the Commissioner argues that the ALJ correctly

found that Plaintiff appeared with a cane and had edema during two of his visits to
Dr. Lomas.

Id. at 12.

The Commissioner asserts that even if the ALJ made a

misstatement of facts, it was not prejudicial and does not require remand.

Id.

Furthermore, the Commissioner asserts that Plaintiff does not show any basis for his
argument that Dr. Lomas did not refer Plaintiff to any specialist because Plaintiff
saw Dr. Cumberbatch before seeing Dr. Lomas.

Id. at 13.

Here, the Court finds that, contrary to the ALJ’s finding, Dr. Lomas’
examination dated October 9, 2013 is consistent with Dr. Lomas’ treatment notes.
Plaintiff saw Dr. Lomas five times, on May 30, 2013, July 8, 2013, August 13, 2013,
October 9, 2013, and March 14, 2014.

Tr. 293-310.

On May 30, 2013, Dr. Lomas

noted that Plaintiff shattered his ankle in 1994, which caused an ankle deformity,
and had bone grafts. Tr. 303.
pain.

Tr. 296.

During this visit, Plaintiff reported having a lot of

Plaintiff’s physical examination revealed arthralgia in Plaintiff’s

right ankle and left hip.

Id. Plaintiff also had edema. Id. Dr. Lomas, however,

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noted that Plaintiff was not in acute distress and appeared jovial.

Tr. 297.

Dr.

On July 8, 2013, Dr. Lomas noted that Plaintiff was walking with a cane.

Tr.

Plaintiff reported having pain in his right ankle during this visit.

Id.

Lomas directed Plaintiff to follow up in one month.

295.

Id.

Plaintiff’s extremities also did not have a full range of motion. Id.

Furthermore,

Plaintiff stated that although Omeprazole 5 did not help, taking two pills of
Omeprazole did.

Id. Plaintiff, however, was not in acute distress and was alert,

appropriate, and oriented to person, time, and place.

Id.

On August 13, 2013,

Plaintiff saw Dr. Lomas because both of his ankles were swollen for five days, and his
right foot by the toes was bleeding.

Tr. 294.

taking medications helped him with pain.
Plaintiff elevate his legs.

Plaintiff reported that elevating and

Id.

Dr. Lomas recommended that

Id. In addition, Plaintiff’s extremities continued not to

have a full range of motion.

Id. On the other hand, Plaintiff continued to appear

alert, oriented to person, place, and time, appropriate, and in no acute distress.

Id.

On October 9, 2013, Plaintiff reported continued swelling in legs, increased
pain, and weakness to Dr. Lomas. Tr. 293. Plaintiff stated that his dad helps with
shopping, and he does not drive.
severe.

Id. He also noted that sometimes his pain is

Id. During this visit, Plaintiff walked with a cane and had right ankle pain

and edema.

Id.

In addition, Plaintiff’s physical examination revealed that his

extremities did not exhibit a full range of motion.

Id. Plaintiff, however, continued

Omeprazole decreases the amount of acid produced in the stomach. Drugs.com,
https://www.drugs.com/omeprazole.html (last visited Feb. 14, 2017).
5

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to appear alert, oriented to person, place, and time, appropriate, and in no acute
distress.

Id. On March 14, 2014, Plaintiff paid his last visit to Dr. Lomas. Tr.

307. Plaintiff still was walking with a cane and reported having right ankle pain.

Id.

Plaintiff’s physical examination also was similar to the last one.

Id.

Throughout Plaintiff’s five visits, Dr. Lomas prescribed various types of medications
to treat Plaintiff.

Tr. 306.

Although the ALJ correctly noted that Dr. Lomas treated Plaintiff with
medications and did not refer him to any specialist, substantial evidence in the record
does not support the ALJ’s finding that Dr. Lomas’ evaluation performed on October
9, 2013 is inconsistent with Dr. Lomas’ own treatment notes. Tr. 293-310.

During

three of Plaintiff’s five visits to Dr. Lomas, Dr. Lomas noted that Plaintiff had edema
or swelling: on May 30, 2013, August 13, 2013, and October 9, 2013.

Tr. 293-94, 296.

Plaintiff also reportedly walked with a cane three times: on July 8, 2013, October 9,
2013, and March 14, 2014.

Tr. 293, 295, 307.

Hence, the record not only

contradicts the ALJ’s finding that Plaintiff walked with a cane and had edema on two
occasions but also shows that Plaintiff’s pain and swelling in his right ankle persisted
and consistently limited his movement.

Tr. 26.

Furthermore, the ALJ’s reliance on Plaintiff’s report of daily activities does not
consider the most recent change in Plaintiff’s daily activities available on the record.
On December 17, 2012, David Pulver, M.D., conducted an internal medicine
examination of Plaintiff.

Tr. 266.

Dr. Pulver recorded that the Division of

Disability Determination referred Plaintiff to him for an examination.

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Id. During

this visit, Plaintiff reported as activities of his daily living that he lives with his uncle
and aunt and does some of the housekeeping, including cleaning, laundry, and
shopping.

Id. Plaintiff also stated that he is independent with personal care and

during his free time, watches TV, listens to the radio, and reads. Id.

Based on Dr.

Pulver’s examination, the ALJ noted in the area of daily activities, Plaintiff has no
limitations.

Tr. 22.

He also relied on this report to assign little weight to Dr.

Lomas’ evaluation. Tr. 24.
It is not clear, however, whether the ALJ considered Plaintiff’s report to Dr.
Lomas on October 9, 2013 that Plaintiff’s dad helps with shopping, and he does not
drive.

Tr. 293.

Plaintiff’s report to Dr. Lomas is consistent with Dr. Lomas’

treatment notes that recorded Plaintiff’s pain and swelling as well as Plaintiff’s
walking with a cane. Tr. 293-310.

Furthermore, Plaintiff’s report on October 9,

2013 is Plaintiff’s most recent report of daily activities on the record and also
contradicts Plaintiff’s report of daily activities to Dr. Pulver made on December 7,
2012.

Tr. 266, 293.

Nonetheless, in assessing Plaintiff’s RFC, the ALJ did not

discuss at all Plaintiff’s report on October 9, 2013.

Tr. 24, 26.

As a result, based on the review of the record, the Court finds that the ALJ
erred in according little weight to Dr. Lomas’ evaluation of October 9, 2013 based on
the evaluation’s inconsistency with Dr. Lomas’ own treatment notes and Plaintiff’s
report of daily activities on December 7, 2012.

Winschel, 631 F.3d at 1179 (quoting

Phillips, 357 F.3d at 1241).
Plaintiff also argues that the ALJ erred in the following respects: in rejecting

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Dr. Cumberbatch’s opinion; in evaluating Plaintiff’s credibility; and in failing to pose
a complete hypothetical question to the VE.

Because this case must be remanded

for consideration of Dr. Lomas’ opinion, the Court need not address these arguments.
ACCORDINGLY, it is hereby
ORDERED:
1.

The decision of the Commissioner is REVERSED and this matter is

REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g),
for the Commissioner to:
A.

Review and consider all of Plaintiff’s medical records including
Dr. Lomas’ and Dr. Cumberbatch’s opinions and determine the
weight to be given to such evidence and the reasons therefor, and,
further:
i.

the effect, if any, they have on his assessment of Plaintiff’s
RFC in combination with his other impairments; and

ii.
B.

the effect, if any, on the hypothetical presented to the VE;

Re-evaluate Plaintiff’s subjective complaints, credibility and
testimony in light of the objective evidence in the record, including
Dr. Lomas’ and Dr. Cumberbatch’s opinions and Plaintiff’s ability to
pursue medical treatment;

C.

Pose a new hypothetical to a VE consistent with the RFC
findings; and

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D.

Make any other determinations consistent with this Opinion and
Order, or in the interests of justice.

2.

The Clerk of Court is directed to enter judgment in favor Plaintiff,

Thomas Weber, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 24th day of February,
2017.

Copies:
Counsel of record

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