Booker v. Commissioner of Social Security
Filing
15
OPINION AND ORDER reversing the administrative decision and remanding for further proceedings. The Clerk is directed to enter judgment. Signed by Magistrate Judge Thomas B. Smith on 12/14/2017. (EC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ROMONA M. BOOKER,
Plaintiff,
v.
Case No: 6:16-cv-2247-Orl-TBS
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
Plaintiff Romona M. Booker appeals to this Court from a final decision of
Defendant, the Commissioner of Social Security (“Commissioner”) denying her
application for disability insurance benefits under the Social Security Act, 42 U.S.C.
§416. After due consideration, the Commissioner’s final decision is reversed and this
case is remanded.
Background
On February 2, 2013, Plaintiff applied for benefits, alleging disability arising
from a variety of impairments, including major depressive disorder (“MDD”),
psychosocial disorder, panic and anxiety attacks, post-traumatic stress disorder
(“PTSD”), an eating disorder, sleep disorder, chronic asthma, severe chondromalysia,
and fibrocystic breast disease (Tr. 229). She was 47 years old on her June 1, 2010
alleged onset date (Tr. 211), with past relevant work experience as a Project
Manager/CAD designer and Project Coordinator/Property Manager at various
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The parties have consented to the jurisdiction of the United States Magistrate Judge.
properties (Tr. 88-89, 236). Her claims were denied at the initial and reconsideration
levels (Tr. 110, 127, 130-31, 137-39, 269, 286), and Plaintiff requested and received
an administrative hearing before an administrative law judge (“ALJ”) (Tr. 34-97). The
ALJ rendered an unfavorable decision on June 15, 2015 (Tr. 6-28). On October 31,
2016, the Appeals Council denied Plaintiff’s request for review (Tr. 1-4). Accordingly,
the ALJ’s decision became the Commissioner’s final decision and this appeal timely
followed (Doc. 1).
The ALJ’s Decision
When determining whether an individual is disabled, the ALJ must follow the
five-step sequential evaluation process which appears at 20 C.F.R. §§
404.1520(a)(4) and 416.920(a)(4). Specifically, the ALJ must determine whether the
claimant: (1) is currently employed; (2) has a severe impairment; (3) has an
impairment or combination of impairments that meets or medically equals an
impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past
relevant work; and (5) retains the ability to perform any work in the national economy.
See Phillips v. Barnhart, 357 F.3d 1232, 1237-1240 (11th Cir. 2004). The claimant
bears the burden of persuasion through step four and, at step five, the burden shifts
to the Commissioner to prove that other jobs exist in the national economy that the
claimant can perform. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Phillips, 357
F.3d at 1241 n.10.
Here, the ALJ performed the required sequential analysis. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since her alleged
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onset date (Tr. 11). 2 At step two, the ALJ determined that Plaintiff suffered from the
severe impairments of “mild degenerative disc disease at L5-S1; deformity of right small
finger with surgery in 2014; asthma/chronic obstructive pulmonary disease (COPD);
chronic bilateral joint disease/chondromalacia patella; post-traumatic stress disorder
(PTSD) and panic attacks, status post sexual trauma; major depression; and history of
marijuana and alcohol abuse” (Tr. 11). The ALJ held that claimant’s history of cysts in her
breasts and a sleep disorder were not severe (Tr. 11-13).
At step three, the ALJ found that, through her date last insured, 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 CFR Part 404, Subpart P, Appendix 1
(Tr.13). Next, the ALJ decided that, through her date last insured, Plaintiff had the
residual functional capacity to perform a limited range of light work, as defined in 20
CFR 404.1567(b) (Tr. 15). The ALJ said:
Specifically, the claimant has the following exertional and
non-exertional limitations: she can lift/carry no more than
20 pounds occasionally and 10 pounds frequently; no
standing/walking more than six hours out of an eight hour
day and for no more than 30 minutes at one time; no
sitting more than six hours out of an eight hour day and for
no more than one hour at a time; can do unlimited
pushing/pulling up to the exertional limitations; no more
than frequent balancing; no more than occasional
stooping, kneeling, crouching, crawling, or climbing ramps
or stairs; no climbing ladders, ropes, or scaffolds; no work
in areas of concentrates dusts, fumes, gases, or other
pulmonary irritants; no work around dangerous, moving
machinery or unprotected heights; no more than simple,
routine work; can maintain attention and concentration for
two-hour intervals necessary to complete simple tasks; no
more than occasional interaction with co-workers or
supervisors but no contact with the general public; no
more than occasional changes to the workplace setting.
2
Plaintiff’s disability insured status expired on December 31, 2014 (Tr. 226).
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(Tr. 15).
At step four, the ALJ determined that Plaintiff was unable to perform any past
relevant work (Tr. 26). But, based on the testimony of a vocational expert, the ALJ
determined at step five that, considering the Plaintiff’s age, education, work
experience, and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that she can perform (Tr. 26-27). Consequently, the
ALJ concluded that Plaintiff was not under a disability from her alleged onset date
through her date last insured (Tr. 27).
Standard of Review
The scope of the Court's review is limited to determining whether the ALJ
applied the correct legal standards and whether the ALJ’s findings are supported by
substantial evidence. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). Findings of fact are conclusive if supported by substantial evidence. 42
U.S.C. § 405(g). Substantial evidence is “more than a scintilla but less than a
preponderance. It is such relevant evidence that a reasonable person would accept
as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011) (citation omitted). When 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. Miles
v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The district court “may not decide
facts anew, reweigh the evidence, or substitute our judgment for that of the
[Commissioner.]” Id. "The district court must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the decision." Foote v. Chater,
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67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam); accord Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992) (the court must scrutinize the entire record to
determine the reasonableness of the factual findings).
Discussion
Plaintiff contends that the ALJ erred in weighing the medical opinions of record
and in evaluating Plaintiff’s allegations of disabling limitations. On review, I find
remand for additional consideration and explanation is required.
Evaluation of Medical Opinions
The Eleventh Circuit has held that whenever a physician offers a statement
reflecting judgments about the nature and severity of a claimant’s impairments,
including symptoms, diagnosis, and prognosis, what the claimant can still do despite
his or her impairments, and the claimant’s physical and mental restrictions, the
statement is an opinion requiring the ALJ to state with particularity the weight given to
it and the reasons therefor. Winschel, 631 F.3d at 1178–79 (citing 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.
1987).) When evaluating a physician's opinion, an ALJ considers numerous factors,
including whether the physician examined the claimant, whether the physician treated
the claimant, the evidence the physician presents to support his or her opinion,
whether the physician's opinion is consistent with the record as a whole, and the
physician's specialty. See 20 C.F.R. §§ 404.1527(c), 416.927(c). All opinions,
including those of non-treating state agency or other program examiners or
consultants, are to be considered and evaluated by the ALJ. See 20 C.F.R. §§
404.1527, 416.927, and Winschel.
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Substantial weight must be given to the opinions, diagnosis and medical
evidence of a treating physician unless there is good cause to do otherwise. See
Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d
580, 583 (11th Cir. 1991); 20 C.F.R. § 404.1527(d). Good cause for disregarding an
opinion can exist when: (1) the opinion is not bolstered by the evidence; (2) the
evidence supports a contrary finding; or (3) the opinion is conclusory or is
inconsistent with the source’s own treatment notes. Lewis, 125 F.3d at 1440.
Regardless of whether controlling weight is appropriate, “the Commissioner ‘must
specify what weight is given to a treating physician’s opinion and any reason for
giving it no weight.” Hill v. Barnhart, 440 F. Supp. 2d 1269, 1273 (N.D. Ala. 2006)
(citation omitted); see also Sullivan v. Comm’r. Soc. Sec., No. 6:12-cv-996-Orl-22,
2013 WL 4774526, at *7 (M.D. Fla. Sept. 4, 2013); Bumgardner v. Comm’r Soc. Sec.,
No. 6:12-cv-18-Orl-31, 2013 WL 610343, at *10 (M.D. Fla. Jan. 30, 2013); Bliven v.
Comm’r Soc. Sec., No. 6:13-cv-1150-Orl-18, 2014 WL 4674201, at *3 (M.D. Fla.
Sept. 18, 2014); Graves v. Comm’r Soc. Sec., No. 6:13-cv-522-Orl-22, 2014 WL
2968252, at *3 (M.D. Fla. June 30, 2014).
Plaintiff, a veteran of the United States Air Force, was treated primarily at the
VA clinic for multiple complaints, including complaints of PTSD and MDD as well as
bilateral knee pain. She contends that the ALJ failed to properly evaluate the medical
opinions of her treating psychiatrist and psychologist.
The lengthy record includes numerous visits to the VA for mental health (and
other) treatment. 3 In the administrative decision, the ALJ addressed the mental
3 In the interests of privacy and brevity, I need not detail the particular traumas which form the
basis of Plaintiff’s PTSD and MDD. What is significant is that the VA found Plaintiff’s PTSD was 100%
disabling, as of January 31, 2013 (Tr. 295-296).
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health records and opinions of Plaintiff’s treating psychiatrist Lante Quinones, M.D.
and treating psychologist Camillia Westwell, Psy.D., finding, in part:
The claimant's treatment provider has opined GAF scores
ranging from 44 through 53 over the past few years
(Exhibits IF page 61, 2F page 128, and 4F pages 56, 61,
and 90).
The undersigned notes that a GAF of 41-50 corresponds
to serious symptoms (e.g. suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupation, or school functioning
(e.g., no friends, unable to keep a job). A GAF of 51-60
corresponds to moderate symptoms (e.g. flat affect and
circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or coworkers).
As such, the undersigned gives little weight to these GAF
findings. Ms. Booker has not displayed difficulty
functioning in these domains to the level indicated. In
addition, during her routine office visits with the VAMC
she has displayed normal mood, affect, judgment, and
memory.
L. Quinones, M.D. from the VAMC opined in May 2014
that the claimant had significant cognitive problems-recall,
attention, and concentration. The examiner opined this
would cause difficulty with work and social settings as Ms.
Booker would have mood swings, paranoia, and severe
anxiety, which would impact her work abilities. Dr.
Quinones found limited abilities in social environments as
the claimant demonstrated guarded and suspicious
behaviors. The examiner found Ms. Booker had no useful
ability to maintain attention for two hour segments; to work
in coordination with or proximity to others without being
unduly distracted by them; to complete a normal workday
and workweek without interruptions form psychologically
based symptoms; to accept instructions and respond
appropriately to criticism from supervisors; to get along
with coworkers or peers without unduly distracting them or
exhibiting behavioral extremes; to deal with normal work
stress; to understand and remember detailed instructions;
to carry out detail instructions; to set realistic goals or
make plans independently of others; to deal with stress of
semiskilled and skilled work and to use public
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transportation. Dr. Quinones also opined that the claimant
would miss more than four days a month but could
manage benefits if awarded (Exhibit 7F).
Camillia Westwell, Psy.D. noted in May 2014 that the
claimant's medications which were prescribed for mood
created serious issues with reliability, alertness, focus and
efficiency. She opined that Ms. Booker's mood symptoms
impaired her ability to handle people and focus and to
handle simple stress and activities of daily living. The
examiner opined that the cognitive symptoms would
impact the claimant's ability to remember, concentrate,
pay attention and would cause cognitive clouding (Exhibit
8F). The examiner found moderate symptoms impeding
ability to recall detail, set and carry out basic goals, and
communicate as seriously when needed. Dr. Westwell
found Ms. Booker was a severely depressed female with
anxiety reactions and phobic responses that were
stopping her from doing regular tasks. She noted that
there were days where hygiene was lacking and the
claimant remained in bed, at which time she was highly
unreliable (Exhibit 8F).
In this case, there is a lack of objective, clinical, or
laboratory findings to support the severe degree of
limitations that Dr. Quinones and Dr. Westwell finds. The
medical record reveals no significant evidence of
compromise that would affect the claimant's ability to
function to the degree as indicated. The examiners do not
relate their opinions to any specific findings and their
opinions are not supported by reports, which indicate only
routine outpatient care, with sporadic use of prescribed
medication. In addition, their assessments are
inconsistent with the claimant's self-reported activities of
daily living such as cleaning or providing care for her
grandmother. The undersigned, therefore, gives little
weight to Dr. Quinones' and Dr. Westwell's assessments
of the claimant's residual functional capacity.
(Tr. 24-25 –emphasis added). Plaintiff claims that the reasons offered for discrediting
the opinions of these treating providers are inadequate and the ALJ’s evaluation is
not supported by substantial evidence. I agree.
The ALJ found there was a lack of “objective, clinical, or laboratory findings” to
support the severe limitations opined by Drs. Quinones and Westwell (Tr. 25). Given
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the nature of mental illness, I am at a loss as to what kind of “laboratory finding” the
ALJ is looking for here. As for objective or clinical findings, Plaintiff was administered
the MMPI-2, which was interpreted by her provider as suggestive for PTSD (Tr. 452).
The ALJ found Plaintiff’s PTSD to be a severe impairment at step two, so I assume
he accepted the result of this objectively administered test. The record also includes
GAF scores which appear to be “clinical findings,” yet the ALJ discredited these as
unsupported because “during [Plaintiff’s] routine office visits with the VAMC she has
displayed normal mood, affect, judgment, and memory.” While the treatment records
do show that Plaintiff sometimes presented with normal mood, affect, judgment, and
memory, the records also include examinations where Plaintiff was found to be
dysthymic, with congruent affect (Tr. 356, 325); presented with depressed mood (Tr.
339, 495, 480, 476, 466, 472); with underlying anger and poor insight (Tr. 334); and
with a restricted affect (Tr. 472, 495). To the extent the ALJ is implying that the record
includes only “normal” mental status examinations, this finding is not supported by
substantial evidence.
The second reason offered by the ALJ to discount the treating providers’
opinions is also unsupportable. The ALJ states that: “The medical record reveals no
significant evidence of compromise that would affect the claimant's ability to function
to the degree as indicated. The examiners do not relate their opinions to any specific
findings and their opinions are not supported by reports, which indicate only routine
outpatient care, with sporadic use of prescribed medication.” In fact, the doctors did
relate their opinions to specific findings. Dr. Quinones noted Plaintiff had “significant
cognitive problems” with memory, recall, attention and concentration (Tr. 903). Her
“significant difficulties cognitively” were noted to impact certain identified work
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abilities (Tr. 904). It was explained that Plaintiff would have difficulty with work and
social settings “related to mood swings, paranoia, severe anxiety.” (Tr. 903). Dr.
Quinones explained that the paranoia limits Plaintiff’s abilities in social environments
(Tr. 904). Dr. Westwell cited medication side effects as well as Plaintiff’s ongoing
mood and cognitive symptoms, as creating serious issues with reliability, alertness,
focus and efficiency (Tr. 905). Dr. Westwell cited severe depression with anxiety
reactions and phobic responses to explain Plaintiff’s difficulty working at a regular job
on a sustained basis (Tr. 906). Dr. Westwell opined both impairments affected
Plaintiff’s sleep, concentration, and mood (Tr. 454). These are specific findings which
are consistent with and supported by the opinion of another VA psychologist, Dr.
Stephen Gedo (Tr. 411-421). 4
As for the “routine outpatient care” and “sporadic use of prescribed
medication,” it is true, as argued by the Commissioner, that a course of conservative
treatment tends to negate a claim of disabling pain (Doc. 14 at 30, citing Wolfe v.
Chater, 86 F.3d 1072, 1078 (11th Cir. 1996).) The Commissioner fails, however, to
explain how this applies to allegedly disabling mental illness; an impairment which, by
its nature, does not lend itself to “non-conservative” treatment options such as
surgery. Moreover, the treatment notes do not support a finding that Plaintiff’s care
was “routine.” Plaintiff attempted, and failed, a course of Prolonged Exposure
psychotherapy (Tr. 357-358, 334, 325) and her prognosis was guarded, due to
“complex trauma and her high avoidance” (Tr. 455). As for her medications, Plaintiff
and her doctors noted undesirable side effects (Tr. 85, 905) and the medication was
4 Although not argued by the parties, the ALJ failed to consider and weigh Dr. Gedo’s opinion
as required by Winschel. This opinion should be considered and weighed along with the other
opinions, on remand.
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considered by Dr. Westwell to be only partially effective (Tr. 455 – “Medication has
partial effects …. Cases of complex trauma are difficult to treat.”).
Finally, I fail to see the inconsistency between “claimant's self-reported
activities of daily living such as cleaning or providing care for her grandmother” and
disabling mental limitations due to PTSD and MDD. See, e.g., Mace v. Comm’r, 605
F. App’x 837 (11 Cir. 2015) (noting the episodic nature of mental impairments;
remanding where the ALJ failed to consider, as recognized by the regulations, that
individuals with chronic mental impairments often structure their lives so as to
minimize their stress and reduce their symptoms and signs – and thus such
individuals “may be much more impaired for work than” otherwise indicated); Menzie
v. Colvin, No. 3:14CV370/LAC/EMT, 2015 WL 5004608, at *10 (N.D. Fla. Aug. 21,
2015) (finding lack of consideration for mercurial nature of mental illness, remanding
where the ALJ's decision to discount the opinions of Plaintiff's treating sources
“seems derived from an overemphasis on Plaintiff's ‘good days’ without regard for her
‘bad days.’”). The ALJ’s stated rationale 5 is insufficient to support discounting the
opinions of Plaintiff’s treating specialists.
In addition to the mental health providers, Plaintiff argues that the ALJ did not
address the opinion of another VA examiner. On July 22, 2011, Sandra Trent, P.A.
was asked to evaluate joint injury for purposes of a possible increase in Plaintiff’s
Veterans Administration disability benefit (Tr. 421). Trent noted Plaintiff had knee
In her brief, the Commissioner offers the additional rationale that the record does not support
portions of the assessments (Doc. 14 at 30). Because this rationale was not provided by the ALJ, it is
not appropriately considered on review. Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)
(declining to affirm “simply because some rationale might have supported the ALJ's conclusion.”).
5
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surgery in August 1998 due to degenerative joint disease (Tr. 422). Plaintiff reported
that her condition worsened with more pain, less range of motion, difficulty walking,
standing, climbing, or squatting (Tr. 422). On exam, Trent noted an antalgic gait and
poor propulsion (Tr. 422). There was an abnormal wear pattern on the right shoe and
other evidence of abnormal weight bearing (Tr. 423). Trent noted right knee crepitus,
tenderness, pain at rest, abnormal motion, clicks or snaps, and grinding. She also
noted objective evidence of pain with restricted range of motion and objective
evidence of pain with three repetitions of range of motion (Tr. 423). Trent opined
Plaintiff’s pain moderately affected her doing chores, shopping, recreation, and
traveling, and mildly affects her grooming, dressing and driving capabilities (Tr. 425).
Trent opined that Plaintiff’s pain prevents any exercise and sports activities (Tr. 425).
Included in a section entitled “Medical History” is a series of questions which appear
to be answered by Trent. Those questions include:
STANDING LIMITATIONS: Able to stand for 15-30 minutes
FUNCTIONAL LIMITATIONS ON WALKING: Able to walk I/4 mile
ASSISTIVE DEVICES/AIDS:
1 Cane, Brace
FREQUENCY OF USE: Always
(Tr. 422). Plaintiff argues that Trent’s “opinions” concerning standing and walking
limitations and the need for a cane and brace were never considered by the ALJ. The
Commissioner counters that these are not medical opinions, but a medical history
given by Plaintiff and, as the ALJ noted the examination (Tr. 16), there is no error.
The issue of whether or not this is a medical opinion is one for the ALJ in the first
instance. As the ALJ noted the examination but did not mention the limitations noted,
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and remand is required for reconsideration of other medical opinions, it is appropriate
for the ALJ to revisit this examination on remand, developing the record further, if
necessary.
Credibility
A claimant may seek to establish that he has a disability through his own
testimony regarding pain or other subjective symptoms. Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005). “In such a case, the claimant must show: (1) evidence of
an underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.” Id. Where an ALJ decides not to
credit a claimant’s testimony about pain or limitations, the ALJ must articulate specific
and adequate reasons for doing so, or the record must be obvious as to the credibility
finding. Jones v. Dep’t of Health and Human Servs., 941 F.2d 1529, 1532 (11th Cir.
1991) (articulated reasons must be based on substantial evidence). A reviewing court
will not disturb a clearly articulated credibility finding with substantial supporting
evidence in the record. Foote, 67 F.3d at 1562.
Plaintiff contends that the ALJ did not properly evaluate her allegations of
disabling limitations as being consistent with the treatment record and opinions of Dr.
Quinones, Dr. Westwell, and Trent. I agree that the failure to properly consider and
explain the weight given to the opinions of these providers warrants reconsideration
of the ALJ’s credibility finding. In determining the credibility of an individual's
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statements, “the adjudicator must consider the entire case record.” SSR 96-7p. 6 As I
have found that additional consideration of the medical record is appropriate, it
follows that the credibility finding should be revisited and formulated anew.
Conclusion
Now, it is ORDERED that:
(1) The Commissioner’s final decision is REVERSED AND REMANDED under
sentence four of 42 U.S.C. §405(g) for further proceedings consistent with the
findings in this Order.
(2) The Clerk is directed to enter judgment and CLOSE the file.
(3) Plaintiff is advised that the deadline to file a motion for attorney’s fees
pursuant to 42 U.S.C. § 406(b) shall be thirty (30) days after Plaintiff receives notice
from the Social Security Administration of the amount of past due benefits awarded.
(4) Plaintiff is directed that upon receipt of such notice, she shall promptly
email Mr. Rudy and the OGC attorney who prepared the Commissioner’s brief to
advise that the notice has been received.
DONE and ORDERED in Orlando, Florida on December 14, 2017.
Copies furnished to Counsel of Record
SSR 96-7p has been superseded by SSR 16-3p, effective March 28, 2016. The ALJ’s
administrative decision was rendered in 2015.
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