Perez v. Commissioner of Social Security

Filing 26

OPINION AND ORDER reversing and remanding the Commissioner's decision pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 2/9/2016. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RUTH J. PEREZ,
Plaintiff,
v.

CASE NO. 8:14-cv-2264-T-MCR

CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her applications for a Period of Disability, Disability Insurance
Benefits (“DIB”), and Supplemental Security Income (“SSI”). Plaintiff alleges she
became disabled on January 22, 2011. (Tr. 17, 35.) A hearing was held before
the assigned Administrative Law Judge (“ALJ”) on January 14, 2013, at which
Plaintiff was represented by an attorney. (Tr. 32-57.) The ALJ issued a decision
finding that Plaintiff was not disabled from January 22, 2011 through February 21,
2013, the date of the decision.2 (Tr. 17-26.)
In reaching the decision, the ALJ found that Plaintiff had not engaged in
substantial gainful activity (“SGA”) since January 22, 2011. (Tr. 19.) In addition,
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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 17, 18.)
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Plaintiff had to establish disability on or before September 30, 2011, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 17.)

the ALJ found that Plaintiff had the following severe impairments: osteoarthritis,
depression, and mood disorder. (Tr. 20.) Further, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”) to perform light work with additional
limitations, such as the ability to perform “routine, repetitive tasks in an
environment with limited work stress and limited contact with the public.” (Tr. 21.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from January 22, 2011 through February 21, 2013. Plaintiff has
exhausted her available administrative remedies and the case is properly before
the Court. The Court has reviewed the record, the briefs, and the applicable law.
For the reasons stated herein, the Commissioner’s decision is REVERSED and
REMANDED.
I.

Standard of Review

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
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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 v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.

Discussion

Plaintiff argues that the ALJ’s RFC assessment and credibility
determination are not supported by substantial evidence because the ALJ failed
to consider all the evidence in the record with respect to her mental impairments,
misstated the evidence, and minimized the severity of her symptoms based on
the change in her diagnosis from depression to mood disorder. In addition,
Plaintiff argues that the ALJ’s RFC assessment is not supported by substantial
evidence to the extent it was based in part on the ALJ’s determination that
Plaintiff’s unsuccessful work attempts in 2011 at Denny’s (for four days) and
Subway (for four days),3 showed that she was capable of performing SGA.

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In some parts of her brief, Plaintiff states that she worked at Denny’s and
Subway for four weeks, rather than four days, in 2011. However, given that Plaintiff’s
earnings totaled only $325.81 from both jobs, the Court accepts Plaintiff’s earlier
reference to four days at each job as more accurate.
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The Court agrees with Plaintiff that the ALJ failed to consider all relevant
evidence in the record with respect to her mental impairments, misstated the
evidence, and seemed to minimize the severity of her symptoms based on the
changed diagnosis.4 First, the ALJ did not discuss or acknowledge Plaintiff’s
treatment records from Mental Health Care, Inc. after the August 2011 visit. This
is significant because these records tend to show deterioration in Plaintiff’s
condition compared to the earlier records that the ALJ considered, and tend to
support Plaintiff’s claim of disability. See Lord v. Apfel, 114 F. Supp. 2d 3, 13
(D.N.H. 2000) (stating that although the Commissioner is not required to refer to
every piece of evidence in his decision, the Commissioner may not ignore
relevant evidence, particularly when it supports the claimant’s position); Meek v.
Astrue, 2008 WL 4328227, *1 (M.D. Fla. Sept. 17, 2008) (“Although an ALJ need
not discuss all of the evidence in the record, he may not ignore evidence that
does not support his decision . . . . Rather, the judge must explain why significant
probative evidence has been rejected.”) (internal citations and quotation marks
omitted).
For example, in November 2011, Plaintiff was seen by Dr. Nirmala Apte, a
psychiatrist at Mental Health Care, Inc., who asked Plaintiff’s brother to join the

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With respect to the changed diagnosis, the ALJ stated: “Although [Plaintiff’s]
GAF[] scores are fairly low, her diagnoses [sic] changed from depression to a mood
disorder.” (Tr. 24.) The ALJ does not explain how this change may have impacted the
severity of Plaintiff’s symptoms.
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interview and to monitor Plaintiff’s medications because Plaintiff was not sure
what medications she was taking. (Tr. 480.) Plaintiff’s brother informed Dr. Apte
that the family kept a watch on her, made sure she was not keeping the stove on,
and watched for her safety. (Id.) At the time of the interview, Plaintiff stated: “I’m
getting confused, I burn my food, I don’t remember things, when I go out, I get
lost, now I’m going to move in with my daughter.” (Id.) She also reported that
“she constantly experiences anxiety when she has an appointment[,] . . . can’t
sleep the day before; it’s just too much for her like it’s a task,” that “at times she
feels that she does not want [to] live anymore,” and “she doesn’t believe that her
medication is working well and reports that she is still feeling depressed and
crying.” (Tr. 482.) Dr. Apte observed that Plaintiff was tearful and oriented to
three spheres. (Tr. 480.) Plaintiff was diagnosed with mood disorder NOS and
post-traumatic stress disorder. (Tr. 484-85.) Dr. Apte asked Plaintiff’s brother to
provide supervision for Plaintiff, to make sure she is taking her medications, to
take the rest of the medications away from her if she has any at home, and to
take her to the Crisis Center, if needed. (Tr. 480.)
On December 14, 2011, Plaintiff was again brought to the Mental Health
Care, Inc. by her brother. (Tr. 479.) She was “crying uncontrollably,” rocking
back and forth and beating herself in the head with both of her hands as she
began to describe what was going on. (Id.) Plaintiff reported feeling depressed,
overwhelmed, confused at times, and stated she did not know how she was going
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to make it. (Id.) Plaintiff’s brother stated that none of his family members felt
comfortable leaving Plaintiff alone, they always worried about her, and that
although he was not sure if she would actually attempt to commit suicide, they
were very concerned. (Id.) The treatment note provided:
The patient was unable to state that she will not harm herself. She
appears to be very hopeless right now. She made some references
to the fact that she has given up and she has no desire to live
anymore. . . . Therefore, the patient is not able to state that she is not
suicidal. When I did discuss going to the Crisis Center, she says no
and then she says . . . yes, but she is unable to contract for her
safety at this time. Therefore, the program supervisor was made
aware that the patient needed to be Baker Acted and the Plant City
police was called and they made [sic] aware of patient’s status.
(Id.) The record indicates that Plaintiff was discharged on December 16, 2011
and placed with a family member. (Tr. 477.)
Because there is no indication that the ALJ considered these records,
which seem to suggest greater limitations than assessed by the ALJ, the Court
cannot conclude that the ALJ’s decision is supported by substantial evidence.
See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (“Unless the [ALJ]
has analyzed all evidence and has sufficiently explained the weight he has given
to obviously probative exhibits, to say that his decision is supported by substantial
evidence approaches an abdication of the court’s ‘duty to scrutinize the record as
a whole to determine whether the conclusions reached are rational.’”).
Further, it appears that the ALJ picked and chose parts of the record that
supported his findings and, to some extent, misstated the evidence. For
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example, although in his decision, the ALJ stated that during the August 2011
examination by Dr. Apte, Plaintiff “was oriented in all spheres” (Tr. 23), the
treatment record does not include such a statement (see Tr. 450). The treatment
record actually provides that Plaintiff was “still having crying spells”; she was sad,
tearful, depressed, and withdrawn; she had “difficulty with her daily functioning”;
she was “hearing someone calling her name and telling her, ‘You’re ugly, you’re
stupid’”; and she was “not experiencing any improvement on her current
medication. (Tr. 450.) Rather than consider these statements, the ALJ
apparently focused on the remainder of the treatment record, which showed that
Plaintiff was in contact with reality and had fair judgment and insight. (Tr. 23.)
Similarly, when evaluating Dr. Annette Sanchez’s treatment records, the
ALJ stated that there was no indication of hallucinations. (Tr. 24.) This
statement is contradicted by Dr. Sanchez’s mental status examination, which
showed that Plaintiff continued to have “visual hallucinations (seeing the image of
her friend with massive burns as she saw her in the hospital, or someone passing
by her) which she stated makes her anxious because it makes her wonder if she
is losing her mind.” (Tr. 384.)
Based on the foregoing, the Court cannot conclude that the ALJ’s decision
is supported by substantial evidence. Therefore, on remand, the ALJ will be
directed to consider all relevant evidence. In light of this conclusion and the
possible change in the RFC, the Court need not address Plaintiff’s remaining
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arguments regarding credibility or SGA. See Jackson v. Bowen, 801 F.2d 1291,
1294 n.2 (11th Cir. 1986) (per curiam); Freese v. Astrue, 2008 WL 1777722, at *3
(M.D. Fla. Apr. 18, 2008); see also Demenech v. Sec’y of the Dep’t of Health &
Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam).
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is REVERSED pursuant to sentence

four of 42 U.S.C. § 405(g) and REMANDED with instructions to the ALJ to: (a)
consider all relevant evidence of record, explain the weight given to the evidence
and the reasons therefor, (b) reconsider the RFC assessment, if necessary, and
(c) conduct any further proceedings deemed appropriate.
2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
3.

Should this remand result in the award of benefits, pursuant to Rule

54(d)(2)(B) of the Federal Rules of Civil Procedure, Plaintiff’s attorney is
GRANTED an extension of time in which to file a petition for authorization of
attorney’s fees under 42 U.S.C. § 406(b). Plaintiff’s attorney shall file such a
petition within thirty (30) days from the date of the Commissioner’s letter sent to
Plaintiff’s counsel of record at the conclusion of the Agency’s past due benefit
calculation stating the amount withheld for attorney’s fees. See In re: Procedures
for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) & 1383(d)(2), Case
No. 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 13, 2012). This Order does not extend
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the time limits for filing a motion for attorney’s fees under the Equal Access to
Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on February 9, 2016.

Copies to:
Counsel of Record

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