Ripson v. Commissioner Social Security

Filing 22

OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Mac R. McCoy on 3/7/2018. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KRISTIN B. RIPSON,
Plaintiff,
v.

Case No: 6:16-cv-1932-Orl-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Kristin Beth Ripson’s Complaint (Doc. 1) filed on November
4, 2016. 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 and disability
insurance benefits. 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, including Plaintiff’s Reply (Doc. 20) and the
Commissioner’s Surreply (Doc. 21). 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 August 7, 2013, Plaintiff filed an application for disability insurance benefits. (Tr. at
138, 239-42). Plaintiff asserted an onset date of June 8, 2012, but later amended her onset date
to June 9, 2013. (Id. at 239, 251). Plaintiff’s application was denied initially on October 7, 2013
and on reconsideration on February 20, 2014. (Id. at 138, 151). An initial hearing was held
before Administrative Law Judge (“ALJ”) Mary Brennan on September 29, 2015, and a
subsequent hearing was held before ALJ Brennan on January 8, 2016. (Id. at 83-126). The ALJ
issued an unfavorable decision on February 3, 2016. (Id. at 63-76). The ALJ found Plaintiff not
to be under a disability from June 8, 2012, through the date of the decision. (Id. at 76).
On September 19, 2016, the Appeals Council set aside its earlier action of May 13, 2016
to consider additional evidence. (Id. at 1). After consideration of this additional evidence, the
Appeals Council denied Plaintiff’s request for review. (Id. at 1-6). Plaintiff filed a Complaint
(Doc. 1) in the United States District Court on November 4, 2016. This case is ripe for review.
The parties consented to proceed before a United States Magistrate Judge for all proceedings.
(See Doc. 16).
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 Soc. Sec., 542 F. App’x 890, 891 (11th Cir.

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2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must 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, 123740 (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 March 31,
2019. (Tr. at 65). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since June 8, 2012, the alleged original onset date. (Id.).
At step two, the ALJ determined that Plaintiff had the following severe impairments: depression,
spondylosis, and lumbar facet arthropathy. (Id.). At step three, the ALJ determined that Plaintiff
did not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526). (Id. at 66).
At step four, the ALJ found the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a reduced range of light
work as defined in 20 [C.F.R. §] 404.1567(b) as follows: the claimant can lift and
carry 20 pounds occasionally and 10 pounds frequently. The claimant can sit for 6
hours, and can stand and/or walk for 4 hours, over the course of an 8-hour workday.
Standing and walking are limited to 30[-]minute intervals. The claimant can
occasionally climb ramps and stairs but can never climb ladders, ropes and
1

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 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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scaffolds. The claimant can occasionally stoop, kneel, crouch and crawl. The
claimant can frequently reach waist to chest with both arms. The claimant can
occasionally reach overhead with both arms. The claimant can frequently perform
handling (gross manipulation) with both hands, with no limitations on fine
manipulation. The claimant can tolerate occasional exposure to extreme heat or
cold, or to humidity. The claimant can tolerate occasional exposure to vibration
and proximity to moving mechanical parts. The claimant can never work in high,
exposed places. Regarding mental residual functional capacity, the claimant can
perform simple routine tasks on a sustained basis over a normal 8[-]hour workday
with occasional close interpersonal interactions with coworkers, and occasional
interaction with the public.
(Id. at 67).
The ALJ determined that Plaintiff was unable to perform her past relevant work as a
receptionist, an order clerk, and a front desk receptionist. (Id. at 74). The ALJ considered
Plaintiff’s age, education, work experience, and residual functional capacity, and found that there
were jobs that existed in significant numbers in the national economy that Plaintiff could
perform. (Id. at 75). The ALJ noted that the vocational expert identified the following
representative occupations that Plaintiff was able to perform: document preparer, DOT #
249.587-018, sedentary level, unskilled work with an SVP of 2; addressing clerk, DOT #
209.587-010, sedentary level, unskilled work with an SVP of 2; marker, DOT # 209.587-034,
light level work with an SVP of 2; and router, DOT # 222.587-038, light level, unskilled work
with an SVP of 2. (Id. at 75). 2 The ALJ concluded that Plaintiff was not under a disability at
any time from June 8, 2012, through the date of the decision. (Id. at 76).
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
2

“DOT” refers to the Dictionary of Occupational Titles.

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(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); 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 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 Appeals Council erred in refusing to remand the case for a new
hearing due to new and material medical evidence submitted that had a
reasonable possibility of changing the administrative outcome.

2)

Whether the ALJ provided sufficient rationale based on substantial
evidence for giving the medical opinions of Plaintiff’s treating physicians
little weight.

3)

Whether the ALJ failed to include in the hypothetical question to the
vocational expert her own findings that Plaintiff had moderate difficulties
in social functioning and maintaining concentration, persistence, or pace.

(Doc. 18 at 14, 18, 23).

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A.

New Evidence Submitted to the Appeals Council

Plaintiff argues that the Appeals Council erred in denying Plaintiff’s request for review
and in refusing to remand this action for a new hearing before an ALJ based upon new and
material evidence submitted to it. (Doc. 18 at 14). Plaintiff claims that she submitted additional
evidence to the Appeals Council from two medical sources, Dr. Vinuela and Dr. Weiss. (Id.).
Treating psychiatrist Luis M. Vinuela, M.D.’s additional evidence included his report entitled,
“Medical Opinion Re: Ability To Do Work-Related Activities (Mental)” for the time period
beginning January 16, 2014 through March 28 2016. (Id. at 14-15 (citing Tr. at 907-909)). The
remaining additional exhibits comprised the treatment records, laboratory findings, and a
medical opinion from neurologist Gary Weiss, M.D. for the time period beginning December 1,
2015 through October 18, 2016. (Id. at 15 (citing Tr. at 18-48)).
Plaintiff asserts that the Appeals Council “ignored the limitations provided by Dr.
Vinuela in Exhibit 26” and found Dr. Weiss’ notes and opinion are not chronologically relevant.
(Id. at 15). As to Dr. Vinuela, Plaintiff claims that his opinion clearly contradicts Plaintiff’s
RFC. (Doc. 18 at 16). As to Dr. Weiss, Plaintiff argues that Dr. Weiss’ records and opinion are
chronologically relevant because he opined that “Plaintiff’s impairments have lasted or can be
expected to last at least twelve months.” (Id.; Doc. 20 at 2).
The Commissioner contends that Dr. Vinuela’s opinion “does not identify any objective
evidence or medical judgment supporting it.” (Doc. 19 at 10). The Commissioner also contends
that Dr. Weiss’ opinion and treating notes were not chronologically relevant to the time period
adjudicated in the hearing decision. (Id. at 5). The Commissioner asserts that the ALJ issued her
decision on February 3, 2016 and Dr. Weiss’ opinion is dated October 18, 2016, clearly after the
date of the hearing decision. (Id. at 5). Further the Commissioner contends that Plaintiff’s

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characterization that Dr. Weiss’ opinion dates back to December 1, 2015 is unsupported by the
record. (Id. at 5-6).
1.

Legal Standard

Generally, the administrative process permits a claimant to present new evidence at each
stage of the administrative process. Ashley v. Comm’r, Soc. Sec. Admin., 707 F. App’x 939, 943
(11th Cir. 2017); 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 1253. 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. (citing
20 C.F.R. §§ 404.970(b), 416.1470(b)); Ashley, 496 F.3d at 943 (citing Washington v. Comm’r
Soc. Sec., 806 F.3d 1317, 1320 (11th Cir. 2015)). 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 1253. In addition, the new evidence
must not be cumulative of other evidence of record. Ashley, 496 F.3d at 943-44. “[W]hen the
Appeals Council erroneously refuses to consider evidence, it commits legal error and remand is
appropriate.” Washington, 806 F.3d at 1321.
Against this backdrop, the Court turns to the Appeals Council’s decision and then to the
new evidence submitted by Dr. Weiss. Due to the importance of certain dates, the Court
highlights specific key dates below.

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2.

Appeals Council’s Decision

On September 19, 2016, the Appeal Council entered a Notice of Appeals Council
Action. (Tr. at 1). The Appeals Council set aside its earlier action of May 13, 2016 that denied
Plaintiff’s request for review so that it could consider additional information. (Id.). After
considering the additional information, the Appeals Council “found no reason under our rules to
review the Administrative Law Judge’s decision. Therefore, we have denied your request for
review. This means that the Administrative Law Judge’s decision is the final decision of the
Commissioner of Social Security in your case.” (Id.).
When concluding that the additional information “does not provide a basis for changing
the Administrative Law Judge’s decision,” the Appeals Council considered “whether the
Administrative Law Judge’s action, findings[,] 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.” (Id.). Further, the Appeals Council
specifically mentioned the following additional evidence. (Id. at 2). “We also looked at
evidence from Gary Weiss MD [sic] dated June 21, 2016 to August 5, 2016 (27 pages). The
Administrative Law Judge decided your case through February 3, 2016. This new information is
about a later time. Therefore, it does not affect the decision about whether you were disabled
beginning on or before February 3, 2016.” (Id.) (emphasis added).
3.

Gary Weiss’s Treatment Notes and Opinion
a.

Plaintiff’s June 21, 2016 Visit to Dr. Weiss

On June 21, 2016, Plaintiff first visited Gary Weiss, M.D. (Id. at 41). Plaintiff presented
herself for a neurological evaluation as advised by her attorney. (Id.). Plaintiff complained that
she fell off a bed, injured her left ankle, and had spine problems that started after a fall in

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December 2013. (Id.). Plaintiff reported that a rheumatologist, Dr. Pachaidee, diagnosed her
with fibromyalgia in 2013 and she was under the care of Dr. Gayles for cervical and lumbar pain.
(Id.). Plaintiff also reported having over twenty (20) procedures on her spine, including nerve
blocks, facet injection, and a spinal stimulator surgically placed in July 2015. (Id.). Plaintiff
reported the stimulator helped some, but she still had untreated pain. (Id.).
Plaintiff complained of daily headaches in her frontal lobe and migraines occurring twice
a month. (Id.). Plaintiff reported facial pain, blurred vision, difficulty reading, photo/phono
sensitivity, severe memory loss, dizziness, and some visual loss. (Id.). Plaintiff also complained
of overall joint and muscle pain due to fibromyalgia. (Id.). Plaintiff reported that her balance
was poor, she stumbled frequently, and reported falling. (Id.). Plaintiff reported constant neck
pain that radiated into her bilateral shoulders, which was also associated with muscle spasms.
(Id. at 41). Plaintiff reported left arm pain that radiated into her hand and her left pointer finger
was numb. (Id. at 41-42). Plaintiff complained of a decreased grip, weakness bilaterally in her
hands, and dropping items frequently. (Id. at 42). Plaintiff complained of thoracic pain that
radiated in her bilateral rib cage with muscle spasms and low back pain that radiated to her hips
and groin area. (Id.). Generally, sitting, standing, and walking increased the severity of the pain.
(Id.). Plaintiff reported numbness in her left foot and toe, excessive daytime fatigue, a history of
irritable bowel syndrome, and sleeping poorly at night. (Id.).
Dr. Weiss assessed Plaintiff with memory loss with headaches, visual symptoms, “UMN”
(upper motor neuron) signs, and rule out “CNS” (central nervous system) disease, and “MS”
(multiple sclerosis). (Id. at 44). Dr. Weiss also assessed Plaintiff with daily headaches with
twice a month migraines, neck pain, thoracic spine pain, “LBP” (low back pain) with “LLE sx”
(left lower extremity symptoms), a history of fibromyalgia, a history of an injury to the left

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ankle, and a spinal stimulator. (Id. at 44-45). Dr. Weiss’ plan was to obtain an MRI of the brain,
an MRI of the spine, and other specific tests. (Id. at 45). Some of these tests were to evaluate
Plaintiff’s “CNS” (central nervous system) function and to evaluate for “MS” (multiple
sclerosis). (Id.).
b.

Tests

On July 5 and 8, and August 3 and 4, 2016, Plaintiff underwent an MRI of the Cervical
Spine without paramagnetic contrast, an MRI of the Brain with and without paramagnetic
contrast agent, an MRI of the Lumbosacral Spine, an MRI of the Thoracic Spine, an MRI of the
Cerebrals, an MRA of the Carotids, a Pattern Reversal Visual Evoked Potentials, a Brainstem
Auditory Evoked Potentials, a Quantitative Electroencephalogram, and an EEG. (Id. at 29-40).
c.

August 5, 2016 Visit

Plaintiff returned to Dr. Weiss on August 5, 2016, to review the test results. (Id. at 23).
Dr. Weiss found the Brainstem Auditory Evokes Potentials test to be within normal limits on the
left, but abnormally delayed on the right. (Id. at 26). He found the Visual Evoked Potentials
were abnormal and symmetric. (Id.). Importantly, he found an abnormal “MRI of the brain with
and without paramagnetic contrast agent with periventricular and 10 small, scatter white matter
lesions on FLAIR consistent with ischemic or demyelinating disease.” (Id.). Dr. Weiss assessed
Plaintiff with RRMS (relapsing/remitting multiple sclerosis) with memory loss and headaches,
visual symptoms, ataxia, “UMN” (upper motor neuron) signs with abnormal “VEP/BSEP/MRI
brain.” (Id. at 27). Dr. Weiss also assessed Plaintiff with neck pain, thoracic spine pain,
fibromyalgia, as well as other complaints. (Id.). After reviewing the various tests with Plaintiff,
Dr. Weiss found that he “believed” that Plaintiff has “RRMS” (relapsing/remitting multiple

10

sclerosis), and also found that Plaintiff was “[c]learly TTD (temporary total disability)” for at
least one year and may be permanently totally disabled. (Tr. at 27-28).
d.

October 18, 2016 Multiple Sclerosis Medical Source Statement

On October 18, 2016, Dr. Weiss completed a Multiple Sclerosis Medical Source
Statement. (Id. at 18-21). Dr. Weiss found Plaintiff is probable for multiple sclerosis. (Id. at
18). He diagnosed this condition based upon Plaintiff’s symptoms, complaints, and diagnostic
testing. (Id.). Dr. Weiss found that Plaintiff is “[c]learly . . . temporarily totally disabled x 1 yr
and maybe P.T.D. [permanently totally disabled].” (Id.). After listing Plaintiff’s symptoms, Dr.
Weiss found that Plaintiff had “significant and persistent disorganization of motor function in
two extremities resulting in sustained disturbance of gross and dexterous movement or gait and
station.” (Id.). In support of this statement, Dr. Weiss noted Plaintiff had decreased strength
with left sided “UMN” (upper motor neuron) weakness in arm and leg, reflexes +2/12, bilateral
Hoffman signs, and left Babinski sign. (Id.). Dr. Weiss found Plaintiff’s fatigue was typical for
patients with multiple sclerosis. (Id. at 19). Dr. Weiss also found Plaintiff severely limited in
her ability to work. (Id. at 19-20).
e.

Analysis as to Dr. Weiss’ Treatment Notes and Opinion

To be very clear, Plaintiff asserts that the Appeals Council erred by not remanding this
action due to new and material medical evidence submitted to it. (Doc. 18 at 14-18). Plaintiff
spends a great deal of her discussion on Dr. Weiss’ October 18, 2016 medical opinion, arguing
that the Appeals council “ignored that Dr. Weiss’ opinion dated 10/1[8]/16 specifically states
that the limitations he assigned Plaintiff were effective 12/01/15 – before the ALJ’s 2/3/16
unfavorable decision.” (Id. at 15 (emphasis in original)). Again, to be very clear, the Appeals
Council rendered its decision on September 19, 2016, approximately one month before Dr.

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Weiss completed the Multiple Sclerosis Medical Source Statement on October 18, 2016. (Tr. at
1, 21). Thus, this document was never before the Appeals Council and the Appeals Council
could not have erred by failing to consider it. Moreover, the Appeals Council specifically stated
that it reviewed evidence from Dr. Weiss from June 21, 2016 to August 5, 2016, and again
these dates are well before the October 18, 2016 medical source statement by Dr. Weiss. As
such, the Court will not consider the October 18, 2016 Multiple Sclerosis Medical Source
Statement by Dr. Weiss.
That said, the Court will consider the additional medical evidence submitted to the
Appeals Council from Dr. Weiss, namely the treatment notes and testing dated June 21, 2016
through August 5, 2016 to determine if these documents are chronologically relevant to the time
period on or before the ALJ’s hearing decision. See Ingram, 496 F.3d at 1253. The Appeals
Council found these treatment notes were not chronologically relevant to the time period on or
before the ALJ’s hearing decision of February 3, 2016. (Tr. at 2). To determine if these
treatment notes are chronologically relevant, the Court examines Plaintiff’s complaints prior to
the ALJ’s hearing decision and in Dr. Weiss’s treatment notes.
Plaintiff complained, inter alia, to Dr. Weiss at her June 21, 2016 visit of headaches, poor
balance, stumbling frequently, falling, pain in her neck and shoulders, decreased grip, and
weakness bilaterally in her hands as well as dropping items. (Id. at 41-42). These symptoms
mirror complaints Plaintiff made to Dr. Homi S. Cooper, M.D. on October 15, 2015. (Id. at
736). Specifically, Plaintiff complained to Dr. Cooper of headaches, cervical pain radiating
bilaterally to her shoulders, not having good balance, a fall in the shower, barely able to hold a
coffee cup, using two hands to grip the cup, and numbness in her fingers. (Id.). Plaintiff also
reported to the Florida Pain Clinic on August 20, 2015, November 2, 2015, and November 30,

12

2015 of problems with balance. (See id. 851, 854, 855, 863, 864). Thus, prior to the ALJ’s
hearing decision, Plaintiff reported some similar symptoms that she complained of to Dr. Weiss
and some of these symptoms led Dr. Weiss to order additional testing, and the results led Dr.
Weiss to “believe” Plaintiff has Multiple Sclerosis. (Id. at 27, 45). Thus, Plaintiff reported
similar complaints prior to the ALJ’s hearing decision and the Court finds that Dr. Weiss’
treatment notes are chronologically relevant and relate to the time on or before the ALJ’s hearing
decision.
Next, the Court considers whether Dr. Weiss’ treatment notes and testing are new and
material evidence. See Ingram, 496 F.3d at 1253. Plaintiff visited Dr. Weiss after the ALJ’s
hearing decision and, thus, this evidence is new. (See Tr. at 22-48). Further, Dr. Weiss
conducted additional testing that did not exist on or before the ALJ’s hearing decision. (See id.
at 29-40, 46-48). Both the treatment notes and the testing are new evidence because they were
not presented to the ALJ and they relate to Plaintiff’s symptoms and complaints before and after
the ALJ’s hearing decision.
Lastly, the Court considers whether this new evidence is material and would change the
administrative outcome. See Ingram, 496 F.3d at 1253. The Court turns to the language of the
ALJ’s hearing decision. Specifically, the ALJ noted that Plaintiff “reported all sorts of
symptoms which do not appear to be verified by objective medical evidence including balance
problems, difficulty walking, and weakness in the fingers and hands.” (Tr. at 71). Later, the
ALJ also noted that “[n]othing in the exam results would support the complaints of problems
with balance, walking, or weakness.” (Id.). Finally, the ALJ found that “this is a case where the
subjective reports of a wide array of symptoms including pains, weakness, balance problems and
panic attacks, are not supported by reference to objective evidence.” (Id.). Dr. Weiss’ records

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include extensive testing to determine if Plaintiff suffers from Multiple Sclerosis or other similar
diseases. (Id. at 29-40, 45, 46-48). Dr. Weiss determined based on these tests that he believed
Plaintiff suffered from a type of Multiple Sclerosis. (Id. at 27). The ALJ was not privy to this
new objective testing, which supported Plaintiff’s complaints relating to balance, walking, and
weakness problems, including hand weakness. Thus, the Court finds that there is a reasonable
possibility that Dr. Weiss’ records would change the administrative outcome. Accordingly, the
Court remands this action to the Commissioner to reconsider the records submitted from Dr.
Weiss.
B.

Plaintiff’s Remaining Arguments

Plaintiff’s remaining issues focus on Dr. Vinuela’s records submitted to the Appeals
Council, the weight the ALJ afforded medical opinions of Plaintiff’s treating physicians, and the
hypothetical question presented to the vocational expert. (Doc. 18 at 14, 18, 23). Because the
Court finds that on remand, the Commissioner must reevaluate the medical evidence of Dr.
Weiss in light of all of the evidence of record, the disposition of these remaining issues would, at
this time, be premature.
III.

Conclusion
Upon consideration of the submission of the parties and the administrative record, the

Court finds that the decision of the Commissioner 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 reconsider: (1)
the medical records of Dr. Weiss and Dr. Vinuela; (2) the weight afforded

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Plaintiff’s treating physicians; and (3) the hypothetical question presented to the
vocational expert.
(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.

DONE AND ORDERED in Fort Myers, Florida on March 7, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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