REPORT AND RECOMMENDATION

CHARLES A. STAMPELOS, Magistrate Judge.

This is a Social Security case referred to the undersigned magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's application for a period of disability and Disability Insurance Benefits (DIB) filed pursuant to Title II of the Social Security Act (Act). After consideration of the record, it is recommended that the decision of the Commissioner be reversed and the case remanded for further consideration.

I. Procedural History

On April 12, 2012, Plaintiff, Shannon Lesli Levy, filed an application for DIB alleging disability beginning January 26, 2012, complaining of diabetes, degenerative disc disease, Graves' disease, bursitis, and overactive bladder. Tr. 27, 150-51, 166, 170. (Citations to the transcript/administrative record, ECF No. 10, shall be by the symbol "Tr." followed by a page number that appears in the lower right corner.) Plaintiff's date last insured for DIB is December 31, 2016. Tr. 27, 166.

Plaintiff's application was denied initially on May 17, 2012, and upon reconsideration on July 17, 2012. Tr. 27, 77-92. On September 11, 2012, Plaintiff requested a hearing. Tr. 27, 93-94. On February 6, 2014, Administrative Law Judge (ALJ) Thomas J. Gaye held a video hearing and presided from San Jose, California. Tr. 27, 43-76. Plaintiff appeared and testified in Gainesville, Florida, Tr. 48-71, and was represented by Elizabeth F. Stakenborg, an attorney. Tr. 27, 43, 45, 117-18, 120. Rebecca Hayes, M.Ed., L.P.C., an impartial vocational expert (VE), testified during the hearing. Tr. 27, 71-74, 143 (Resume).

On February 27, 2014, the ALJ issued a decision and denied Plaintiff's application for benefits concluding that Plaintiff was not disabled from January 26, 2012, through the date of the ALJ's decision. Tr. 27-28.

On April 15, 2014, Plaintiff requested review of the ALJ's decision and requested additional time to submit additional evidence and included a memorandum and additional patient medical records from Eric Scott, M.D., August 24, 2012, to February 10, 2014, (Tr. 466-83 (Exhibit 15F)), and Prathima Reddy, M.D., February 19, 2014.1 Tr. 4-5, 21-23, 221-24; see infra at 28-29, 36 nn. 9 & 13. On June 18, 2014, the Appeals Council granted Plaintiff's request for additional time to submit "more evidence or a statement about the facts and the law in this case" and gave Plaintiff 25 days to submit additional evidence. The Appeals Council also advised that "[a]ny more evidence must be new and material to the issues considered in the hearing decision dated February 27, 2014." Tr. 7, 14.

On September 21, 2015, the Appeals Council considered Plaintiff's request for review and mentioned Exhibits 17F, page 492, and 18F, pages 493-516, but not Exhibits 15F, pages 466-83, and 16F, pages 484-91. Tr. 1-5; see supra at n. 1. The Appeals Council denied Plaintiff's request for review of the ALJ's decision making the ALJ's decision the final decision of the Commissioner. Tr. 1-5; see 20 C.F.R. § 404.981.

On November 11, 2015, Plaintiff, by counsel, filed a Complaint with the United States District Court seeking review of the ALJ's decision. ECF No. 1. The parties filed memoranda of law, ECF Nos. 12 and 15, which have been considered.

II. Findings of the ALJ

The ALJ made several findings relative to the issues raised in this appeal:

III. Legal Standards Guiding Judicial Review

This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (citations omitted). The court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates against the ALJ's decision. Moore, 405 F.3d at 1211.3

"In making an initial determination of disability, the examiner must consider four factors: `(1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'" Bloodsworth, 703 F.2d at 1240 (citations omitted).

A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212 (2002). In addition, an individual is entitled to DIB if she is under a disability prior to the expiration of her insured status. See 42 U.S.C. § 423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec'y of Health & Human Servs., 845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz Rivera v. Sec'y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).

The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(a)(4)(i)-(v).

A positive finding at step one or a negative finding at step two in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden, however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy in light of the claimant's RFC, age, education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 404.1520(a)(4)(v), (e) & (g). If the Commissioner carries this burden, the claimant must prove that he or she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).

The opinion of the claimant's treating physician must be accorded considerable weight by the Commissioner unless good cause is shown to the contrary. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). This is so because treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) 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, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(c)(2). "This requires a relationship of both duration and frequency." Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). "`The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records.' Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (emphasis added)." Id.

The reasons for giving little weight to the opinion of the treating physician must be supported by substantial evidence, Marbury v. Sullivan, 957 F.2d 837, 841 (11th Cir. 1992), and must be clearly articulated. Phillips, 357 F.3d at 1241. "The Secretary must specify what weight is given to a treating physician's opinion and any reason for giving it no weight, and failure to do so is reversible error." MacGregor, 786 F.2d at 1053.

The ALJ may discount a treating physician's opinion report regarding an inability to work if it is unsupported by objective medical evidence and is wholly conclusory. Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991). Stated somewhat differently, the ALJ may discount the treating physician's opinion if good cause exists to do so. Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Good cause may be found when the opinion is "not bolstered by the evidence," the evidence "supports a contrary finding," the opinion is "conclusory" or "so brief and conclusory that it lacks persuasive weight," the opinion is "inconsistent with [the treating physician's own medical records," the statement "contains no [supporting] clinical data or information," the opinion "is unsubstantiated by any clinical or laboratory findings," or the opinion "is not accompanied by objective medical evidence." Lewis, 125 F.3d at 1440; Edwards, 937 F.2d at 583 (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)). Further, where a treating physician has merely made conclusory statements, the ALJ may afford them such weight to the extent they are supported by clinical or laboratory findings and are consistent with other evidence as to a claimant's impairments. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986).

IV. The Evidence

A. Relevant Medical Evidence

Plaintiff's alleged onset of disability is January 26, 2012. Prior to her onset date, she received treatment from March 2010 through August 2010 from Dr. John Hoehn, a chiropractor, for left and right neck stiffness. Tr. 267-70, 285-86; see Tr. 32. Plaintiff was seen monthly for neck stiffness and pain and stiffness in both sides of her upper and lower back. Examination revealed spasm and tenderness over the lower cervical region, palpation of the thoracic spine indicates spasm and tenderness over the middle and lower region, and spasm and tenderness over the entire lumbar spine. Also in 2010, she received treatment from Sujata Wagh, M.D., for diabetes mellitus. Tr. 307-09; see Tr. 32. She reported having severe hypoglycemic episodes at work. Since the beginning of 2010, her blood sugar control had been poor and she was very stressed. She was diagnosed with diabetes mellitus type I and was told to continue on Lantus and Humalog. Id. Plaintiff received more treatment from Dr. Hoehn for her neck pain and stiffness through November 2010. Tr. 265-66; see Tr. 32.

Plaintiff was treated in early January 2011 by Robert Ashley, M.D. Tr. 320-24; see Tr. 33. She was experiencing bladder urgency and incontinence and was diagnosed with incomplete emptying of the bladder. Plaintiff was then referred to a urologist the same month. Sean McLaughlin, M.D., a urologist, examined Plaintiff. Tr. 366-67. Plaintiff reported leakage with coughing, sneezing, and activities for the past several years that had worsened over the past year. She was diagnosed with stress urinary incontinence and was advised to undergo sling surgery. Id. On February 7, 2011, she presented with stress incontinence. Tr. 364-65. She underwent a urodynamic study of the bladder and was diagnosed with type II stress urinary incontinence. She was advised to undergo surgery to place a midurethral sling. Id.

Plaintiff continued to receive treatment between March 2011 through June 2011 for neck and back pain. Examination revealed spasm and tenderness of her lumbar spine. On May 2, 2011, Plaintiff underwent a cervical spine x-ray. Tr. 283. Her x-ray revealed degenerative disc disease and degenerative joint disease of the cervical spine with stenosis of the right C5-6 level from spur formation. An MRI was recommended. Id.

Plaintiff was seen from June 2011 through July 2011 by Dr. Wagh for diabetes mellitus. Tr. 301-06. On June 16, 2011, she reported fatigue, weight change, and urinary frequency. Tr. 304-06. Examination revealed an elevated hemoglobin A1C and she was told to restart Humalog, Pravastatin, and was changed to the Lantus solostar. Id. Plaintiff presented on July 21, 2011, after having a severe hypoglycemic episode at work. Tr. 301-03. She was found at the Georgia border and it was reported she was driving her patrol car and swerving on the highway. She stated she does not remember the episode. She was diagnosed with diabetes mellitus type I, uncontrolled, and hypoglycemia. She was advised to change to day shift, to split her Lantus dose, and to test her blood sugars every two hours at work. Id. Plaintiff continued treatment for neck and back pain through November 2011 with Dr. Hoehn. Tr. 249, 256-58. Examination revealed spasms, tenderness, and reduced range of motion of her cervical spine, and spasm of her lumbar and thoracic spine.

Plaintiff started seeing Robert Valentine, Jr., M.D., with Medical Associates, Gainesville, Florida, between August 25, 2011, through October 2011 due to continuing neck and back pain. Tr. 228-33; see Tr. 32-34.

On August 25, 2011, she presented for the first time with neck and low back pain, which existed for a few years. Tr. 228-32, 237-46, 360-63; see Tr. 32. She rated her pain as a seven out of ten (7/10) and reported undergoing physical therapy and chiropractic treatment. Her pain was decreased by heat, cold, massage, and muscle relaxers and unaffected, in part, by sitting, standing, walking, bending forwards or backwards, and sideways, twisting, lifting, after exercise, cough/sneeze, rising from the bed or chair, or riding in a vehicle. Tr. 229. She reported chiropractic and massage to be very helpful, exercise of little help, and OTC medications somewhat helpful. Id. She did not consider herself disabled by pain. Id. Examination of the cervical and thoracic spine areas produced generally normal results, including full cervical ROM, cervical spinous processes and cervical facet joints were nontender; thoracic kyphosis was normal, no thoracic facet joint tenderness, thoracic TrP was palpated, and TrP rhomboids, right rhomboid major; lumbar flexion was limited, lumbar extension was extremely limited, no lumbar facet joint tenderness, tenderness at L5 (lumbar spine), lumbar muscular tenderness present, no lumbar spasm, no sacroiliac joint tenderness, and negative Trendelenburg test. Tr. 231. Plaintiff's gait was normal and she performed tandem walking. Id. Regarding "motor," her biceps, triceps, wrist, shoulder were normal bilaterally as were her hip, knee, ankle, and EHL; she was able to walk on toes and heels and no give way was noted. Tr. 228. Her SLR (sitting) was negative for radicular and lumbar pain. Hoffman and Babinski signs and clonus were absent. Adson test was negative bilaterally. Plaintiff was alert, oriented, her affect was stable, and no pain behavior was exhibited.5 Id. Dr. Valentine's impressions included myofascial pain, right rhomboid major and possible facet pain, but joints were not tender to palpation. Possible radicular pain was noted, but "unable to reproduce and appears to be neurologically intact on exam." Id. She underwent trigger point injections into the right rhomboid major and was advised to perform stretching exercises three to four times daily. Id. On October 17, 2011, she again reported right shoulder blade pain, neck and back pain. Tr. 232-33, 247-48. She underwent another trigger point injection to the right rhomboid major. Id.

From September 2011 through November 2011, Dr. Ashley treated Plaintiff for urge incontinence. Tr. 325-32; see Tr. 33. On September 2, 2011, she presented with reports of frequent urination. Tr. 325-26. She was treated with Vesicare tablets for urge incontinence. Id. On November 15, 2011, Plaintiff described swelling over the left elbow. Tr. 331-32. Examination revealed a swollen left olecranon bursa. Plaintiff was referred to an orthopedist. Id.

Phillip L. Parr, M.D., an orthopedist with The Orthopaedic Institute, examined Plaintiff on November 23, 2011. Tr. 348-49. Examination revealed a golf ball sized cystic swelling in the olecranon bursa. Plaintiff was diagnosed with olecranon bursitis of the left elbow. She underwent aspiration of the bursa and a steroid injection into the left elbow. Id.

On December 15, 2011, Dr. Wagh treated Plaintiff for diabetes mellitus. Tr. 297-300; see Tr. 33. She reported starting a new job as a police officer and was willing to transition to an insulin pump. She was diagnosed with uncontrolled diabetes mellitus type I and told to continue on Humalog and Lantus. She was referred for a DEXCOM insulin pump. Id. Plaintiff did not complain of back or neck pain, id., as noted by the ALJ, Tr. 33. Dr. Wagh noted, however: "Musculoskeletal exam reveals — no evidence of proximal muscle weakness[.] Motor strength is 5/5 in the upper and lower extremities and gait and station were normal. [T]he spine is nontender to palpation. Distal extremities reveal — no hypertrophy or discoloration of the nails is seen. No evidence of sores seen on the feet." Tr. 299.

On January 24, 2012, Dr. Hoehn again treated Plaintiff. Tr. 255. Examination revealed spasm and tenderness of her cervical and lumbar spine and she underwent spinal manipulation and mechanical traction. Id.

Dr. Wagh treated Plaintiff from March 2012 through September 2012. Tr. 289-96, 408-18; see Tr. 33. On March 22, 2012, her hemoglobin A1C was elevated. Tr. 293-96. She reported morning hypoglycemia, but did not want to transition to the pump. Id. Muscle pain is noted under review of systems/musculoskeletal. Tr. 294. Under physical exam, Dr. Wagh noted the same findings under musculoskeletal, as she did on December 15, 2011, Tr. 299, but added: "Distal extremities reveal — nails are thickened, discolored, or disfigured — consistent with onychomycosis (Great toes only)."

On April 12, 2012, her blood work showed a low thyroid stimulating hormone value. Tr. 289-92. Plaintiff underwent a neck ultrasound that showed thyroid pseudonodules. She was diagnosed with Graves Disease and uncontrolled diabetes mellitus. She was prescribed Methimazole and was told to reduce her Lantus dose due to late afternoon hypoglycemic. Plaintiff did not want to transition to the insulin pump due to afternoon hypoglycemia. Id. Under review of systems and musculoskeletal, back pain was reported for the first time to Dr. Wagh. Tr. 290. Within the physical examination portion of the notes and under the musculoskeletal exam heading, it was noted that there is was evidence of proximal muscle weakness; motor strength was 5/5 in the upper and lower extremities; gait and station were normal; and the spine was nontender to palpation. Nails were discolored. Tr. 291; see Tr. 33.

On June 20, 2012, her recent blood work was reviewed and her medications were adjusted. Tr. 415-18. Her late afternoon hypoglycemia had improved. Dr. Wagh noted that Plaintiff was not interested in an insulin pump. She exercised by working in her yard; she did not do aerobic exercises. She was restarted on Pravastatin. Tr. 415. Back, muscle, and neck pain were noted. Tr. 416. On September 12, 2012, laboratory values were again abnormal. Her thyroid stimulating hormone level was low at 0.27 with normal range being 0.40-4.50. Tr. 408-13. Although noted as better, her hemoglobin A1C was elevated at 7.4 with normal range being below 5.7. She was told to decrease her Methimazole dose and continue on Lantus and Humalog. She continued to work in the yard. "She exercises regularly and appropriately for age and health, predominantly swimming." Tr. 409; see Tr. 403. Neck, muscle, and back pain were noted. Tr. 409. On December 12, 2012, Dr. Wagh noted that Plaintiff's A1C was 7.5; she received shots in her neck intermittently for cervical pain issues; she otherwise feels well; no complaints; no significant hypoglycemia. Tr. 402. She continued to exercise, predominantly swimming. Tr. 403. Neck and back pain were noted. Id.

On September 11, 2012, Dr. Reddy, also with Interventional Medical Associates, Gainesville, Florida, examined and treated Plaintiff.6 Tr. 448-52. Progress notes dated September 11, 2012, revealed reports of neck and right arm to index finger pain, with an intensity of 8/10. Tr. 448. Plaintiff's past medical and surgical history was noted as myofascial pain; disc displacement, lumbar protrusions multiple levels at L3-4; spondylosis, lumbosacral; low back pain; radiculitis, lumbar/thoracic (right); and post-laminectomy synd., lumbar. Plaintiff did not consider herself disabled by pain. Tr. 449. The positive findings for a review of systems were neck and back pain and frequent urination. Tr. 450. There are also numerous negative findings. Id. A physical examination of Plaintiff's cervical spine noted: cervical ROM full; cervical spinous processes non-tender; cervical facet joints non-tender; and no cervical muscle spasm. Id. It is noted under thoracic spine: thoracic kyphosis normal; no thoracic facet joint tenderness; thoracic TrP palpated; TrP rhomboids, right rhomboid major. Tr. 451. It is noted under lumbar spine: lumbar flexion limited; lumbar extension extremely limited; no lumbar facet joint tenderness; lumbar spinous process tenderness present L5; lumbar muscular tenderness present; no lumbar spasm; no sacroiliac joint tenderness; and negative Trendelenburg test. It is noted under extremities: no clubbing, no extremity cyanosis; no pretibial edema; no pedal edema; trochanters non-tender, gluteals non-tender, knee and ankle ROM full. Id. It is noted, in part, under neurology: gait normal; tandem walking performed; biceps, triceps, wrist, shoulder normal bilaterally; hip, knee, ankle, EHL normal bilaterally; able to walk on toes and heels; no giveway noted; DTR's — normal in biceps, brachioradialis, triceps bilaterally and normal in knees and ankles bilaterally; SLR (sitting) — negative for radicular and lumbar pain; Hoffman sign absent; clonus absent; Babinski sign absent; and no dysmetria. Adson test was negative bilaterally. Plaintiff was alert, oriented, her affect was stable, and no pain behavior was exhibited. Id.; See also Tr. 237-40, 247, 360-63, 424-26, 443-44, 446-52, 457-61, 463-64, 495, 504-05.

The same progress notes discuss the 2012 cervical spine MRI results: retrolisthesis and degenerative disc bulging at C5-6 causing central mild stenosis with facet arthrosis with foraminal stenosis with foraminal stenosis; C6-7 herniated nucleous pulposus (HHP) right paracentral with moderate foraminal stenosis on the right and mild foraminal narrowing on the left; and mild disc bulge at C4-5 without disc protrusion or stenosis with facet arthosis. Tr. 452; see Tr. 34. Impressions included myofascial pain, right rhomboid major and cervical spine; possible facet pain, referral pattern is comparable with lower/middle facet joints on the right, cervical neck pain with motion especially extension; cervical radicular pain right C6-7 due to cervical foraminal stenosis from disc HHP and facet arthrosis. Id. The plan included, in part, trigger point injection, daily stretching program, consideration of other tests. Id. These progress notes as well as others were sent to Drs. Hoehn, Ashley, and Wagh. See, e.g., Tr. 248, 363, 447, 522-23.

On September 24, 2012, Plaintiff reported to Dr. Valentine for a cervical epidural injection, having been referred by Dr. Reddy. Plaintiff was having right C6/7 radicular pain with right C6/7 paracentral HHP and right foraminal stenosis. Tr. 453. She underwent a cervical spine epidural injection at C7-T1.

Plaintiff continued to report neck pain to Dr. Valentine as of January 7, 2013. Tr. 454-56. She underwent trigger point injections to the right rhomboid major and right levator scapulae. Id.

On January 7, 2013, Plaintiff was examined by Dr. Reddy. Tr. 454-56. The results of the physical examination were the same as reported on September 11, 2012. See, e.g., Tr. 228-32, 237-40, 247, 360-63, 424-26, 443-44, 446-52, 457-61, 463-64, 495, 504-05.

On February 18, 2013, she was examined by Dr. Reddy and reported continued neck and shoulder pain. Tr. 457-59; see Tr. 34. This time, she underwent Botox injections into the bilateral upper trapezius, left splenius cervical, bilateral upper thoracic and rhomboids, left levator scapulae, bilateral splenius, and cervical paravertebrals. Plaintiff was prescribed Tramadol and started on Robaxin for cervical spasms. Id. The results of the physical examination were the same as prior examination results.

On April 8, 2013, Plaintiff was examined by Dr. Reddy and continued to have right sided neck and shoulder pain. Tr. 424-26, 460-62. She only had temporary relief with trigger point injections and Botox injections and was referred to Dr. Scott for a neurosurgical evaluation. Id. Physical examination results were the same as prior results.

Plaintiff also continued to receive chiropractic treatment from Dr. Hoehn from November 2012 through February 2013. Tr. 427-40. On February 4, 2013, Dr. Hoehn's plan included Plaintiff continuing isometric stretching and strengthening programs to increase ROM and build core muscle stability and continue NMMT for pain/spasm in areas of complaints. Tr. 440.

Progress notes dated June 12, 2013, revealed additional care by Dr. Wagh. Tr. 397-401. Plaintiff had worsening A1C values (8.4) and again was advised to have insulin pump, but wanted to wait another six months. She was continued on Lantus, Humalog, and Methimazole for hyperthyroidism. It is noted that Plaintiff "just had neck surgery for cervical fusion. She denies polyuria, nocturnal/tingling numbness in her feet. She o/w feels well, no complaints." Plaintiff reported experiencing hypoglycemia almost daily and in the daytime related to yard work. Tr. 397. Neck and back pain were noted. It is again noted that Plaintiff exercises regularly and appropriately for her age and health, predominantly swimming. Tr. 398.

On July 29, 2013, Plaintiff was examined by Dr. Reddy and complained of pain located in the back of her skull and pain in her neck and low back. The intensity was 2-3/10. Tr. 463; see Tr. 34. The results of the physical examination were the same as prior results. Tr. 463-64; Compare with Tr. 228-32, 237-40, 247, 360-63, 424-26, 443-44, 446-52, 457-61, 495, 504-05. The plan included the following: "patient is S/P cervical a CDF with radicular arm pain resolved — will recommend patient follow up with [Dr.] Eric Scott — continue tramadol and robaxin for cervical spasms and pain." Tr. 465. (This is the last page of the record that was before the ALJ.)

On October 23, 2013, (per Exhibit List), Dr. Reddy completed a medical source statement regarding Plaintiff.7 Tr. 422-23. Plaintiff could lift and carry ten pounds occasionally and five pounds frequently and could sit for two hours total and stand and walk for one hour during an eight hour workday. Tr. 422. She could sit at onetime for an hour and stand or walk for one hour before needing to get up and move around. Plaintiff needed to alternate sitting and standing (every hour) to relieve pain or discomfort and she should avoid dust, fumes, gases, extremes of temperature, humidity, and other environmental pollutants. She could never work with hazardous machinery and could rarely climb, balance, bend, or stoop. Plaintiff could occasionally engage in gross and fine manipulation, in reaching, pulling/pushing (arm and/or leg controls), and operating a motor vehicle. Id. Plaintiff would likely be absent from work two days per month as a result of her impairments due to cervical brachial pain, cervical radicular pain, lumbar radiculopathy and status post cervical fusion. Tr. 423. These restrictions applied as of September 12, 2013. Id.

On November 20, 2013, Dr. Reddy examined Plaintiff who complained of current pain in between the right side and pain in the "right wrist/SI."8 Tr. 441. Plaintiff reported no new pain complaints since the last visit. Id. Her pain intensity was 3.5/10. Id. From a neurological standpoint, Plaintiff reported "[w]eakness of arms or legs, right arm. Trouble using your hands. (right)." Id. Plaintiff denied loss of consciousness and balance, trouble walking, and numbness of arms or legs. Id. Dr. Reddy performed a physical examination that included the musculoskeletal system. Tr. 443. Regarding the cervical spine, inspection and palpation revealed: "cervical ROM full, cervical spinous processes nontender, cervical facet joints nontender, no cervical muscle spasm." Id. Regarding the thoracic spine and range of motion, it is noted: "thoracic kyphosis normal, no thoracic facet joint tenderness, thoracic TrP palpated, TrP rhomboids, right rhomboid major." Id. Regarding the lumbar spine, it is noted: "Normal: "lumbar FLEXION limited, lumbar EXTENSION extremely limited, no lumbar facet joint tenderness, lumbar SPINOUS PROCESS TENDERNESS present L5, lumbar MUSCULAR TENDERNESS present, no lumbar spasm, no sacroiliac joint tenderness, negative Trendelenburg test." Id. Regarding extremities, it is noted: "no clubbing, no extremity cyanosis, no pretibial edema, no pedal edema, trochanters nontender, gluteals nontender, knee ROM full, ankle ROM full." Id.; compare with Tr. 228-32, 237-40, 247, 360-63, 424-26, 446-52, 457-61, 463-64, 495, 504-05. Plaintiff was diagnosed with post-laminectomy syndrome, cervical muscle spasm and diabetes mellitus. Id. From a neurological standpoint, Plaintiff's gait was normal and tandem walking was performed. Her biceps, triceps, wrist, and shoulder were normal bilaterally. Her hip, knee, ankle, and EHL were normal bilaterally. Plaintiff was able to walk on toes and heels. No giveway was noted. "DTR's: normal in biceps, brachioradialis, triceps bilaterally. DTRs: normal in knees and ankles bilaterally, SLR (sitting) negative for radicular pain, SLR (sitting) negative for lumbar pain, Hoffman sign absent, clonus absent, HKS/FNF performed, No dysmetria." Id. From a psychiatric standpoint, Plaintiff was alert and oriented; her affect was stable; and pain behavior was not exhibited. Id. Dr. Reddy's diagnoses included: post-laminectomy syndrome cervical; cervicobrachial syndrome; muscle spasm; and diabetes uncomplicated type I "Uncont." Id. Plaintiff was to follow-up as needed. Tr. 444. A care plan included home exercise program. Topical analgesic was reordered, disability forms were faxed, and massage therapy recommended. Id.

B. Medical evidence submitted to the Appeals Council.

1. Introduction

Exhibits 1A through 14F were presented to the ALJ. Tr. 39-42. Exhibit 14F (pages 1-25) ends at page 465 and thereafter the pages are numbered consecutively starting on page 22 of 72 to page 72 of 72. See Tr. 466-516. It appears that Exhibit 15F (Tr. 466-83), Exhibit 16F (Tr. 484-491), Exhibit 17F (Tr. 492), and Exhibit 18F (Tr. 493-516) were provided to the Appeals Council after the ALJ rendered his decision. The Appeals Council referred to Exhibits 17F and 18F, which appear in the record at pages 492-516, but not to Exhibits 15F and 16F.9

Tr. 5.

During the hearing, the ALJ stated that he was aware that Plaintiff had a cervical fusion. Tr. 56. Plaintiff's counsel responded that they "were trying to get records from a Dr. Eric Scott, who did a cervical fusion on her back in April. And we just paid for them, although we've been requesting them since September. So I'm not sure what's taking so long. So I apologize. I'm going to have her testify about the treating with Dr. Scott." Id. Plaintiff described her treatment leading up to her examination and ultimate surgery with Dr. Scott. Tr. 56-59. Plaintiff testified that the cervical fusion resolved her symptoms for a few months and "[i]t was very nice." Tr. 59-60. Plaintiff returned to Dr. Reddy because the pain in her muscles returned. Tr. 60. Dr. Reddy "explained [to her] that the arthritis in [her] neck was still there and they couldn't get rid of that. That this would continue to happen." Id. Plaintiff stated that the symptoms she experienced related to her neck were "[j]ust the pain in [her] back." Id. The pain was not as bad as it was prior to surgery, but "it's there," from her neck and shoulder into her arm and into her index finger joint on her right hand. Id. She described additional problems she was having. Tr. 61-62.

After the VE testified and before the hearing ended, the transcript does not indicate that Plaintiff's counsel requested the ALJ to keep the record open pending receipt of the missing medical records, including the cervical fusion operative report and other patient records from Dr. Scott and the results of a scheduled test (nerve conduction study).10 Tr. 35-36. On June 18, 2014, the Appeals Council granted Plaintiff's counsel's request for an extension of time, Tr. 21-23, 221-24, to submit additional evidence. Tr. 7, 14; see supra at 2-3 and n. 1.

In his decision, the ALJ stated that Plaintiff testified that she underwent a cervical fusion by Dr. Scott in April 2013, "yet the claimant did not provide an operative report and a June 2013 record makes no mention of a cervical fusion. (Exhibit 11F/1-04 [Tr. 397-400 (Dr. Wagh's patient notes of June 12, 2013)]." Tr. 35. The ALJ was partially mistaken. Dr. Wagh noted in the same patient record of June 12, 2013, that Plaintiff "just had neck surgery for cervical fusion." Tr. 397. No operative report was provided to the ALJ.

2. The post-ALJ decision evidence.

Notwithstanding, the following is a summary of the evidence that appears in the record after the ALJ rendered his decision.

An EMG/NCV study was performed in September 2012 that showed evidence of borderline carpal tunnel syndrome which was asymptomatic at that time. Tr. 480-81.

Although Dr. Scott, her treating neurosurgeon, is referred to in patient records that were before the ALJ, Dr. Eric Scott's patient records were not obtained until after the ALJ denied Plaintiff disability benefits. See supra at 2-3 and n. 1.

Dr. Scott treated Plaintiff from April 12, 2013, through May 30, 2014. Tr. 469-79, 492. On April 12, 2013, Plaintiff reported pain in the back of the right cervical region that radiated under the shoulder down the triceps and finger tips of her right hand. Examination revealed trace weakness of the right triceps with some applicable atrophy in the right triceps. Her MRI of the cervical spine was reviewed. Plaintiff was noted to have focal advanced degenerative changes at C5-6 and mild to moderate at C6-7. She also had severe hypertrophy of the uncovertebral joints bilaterally at C5-6. She was diagnosed with right cervical brachial pain and radiculopathy secondary to osteophyte complexes at C5/6 and C6/7, insulin dependent diabetes mellitus, hyperthyroidism and tobacco abuse. He recommended that she undergo surgical intervention since she had failed conservative treatment. Id.

The surgical notes dated April 16, 2013, reveal Dr. Scott's rationale for the surgery. She was noted to have MRI findings that demonstrated severe foraminal narrowing due to spondylostenosis at C5-6 and a disk protrusion to the right at C5-C6-C7. Tr. 475. The surgical findings confirmed severe spondylostenosis at C5-6, moderate at C6-7. There was also severe foraminal narrowing on the right at C5-6 and foraminal extrusion to the right of C6-7. She underwent a cervical discectomy and microsurgical decompression of the spinal cord and roots at C5-6, C6-7, anterior cervical arthrodesis at C5-6, C6-7 using perk cages novabone and bone marrow aspirate and anterior cervical instrumentation. Id.

On April 24, 2013, her staples were removed. Tr. 474. She was fitted with a bone growth stimulator and instructed on its use and was told to continue to wear her hard collar. Id. On June 10, 2013, she presented for a cervical fusion routine follow-up with Dr. Scott, several months after cervical surgery on April 16, 2013. Plaintiff stated that "she is doing very well. She is pain free." Her incision was "very well healed. Her upper extremity strength is intact. She does continue to wear her bone growth stimulator." Tr. 473. She was advised to wear the bone growth stimulator for at least six more months. Id. In a separate report date June 10, 2013, the radiologist noted, in part, "[f]lexion is limited with a slight anterior subluxation of C4 upon C5 measuring about 2 mm in flexion and reduced in extension. That C4-5 disc space is slightly narrowed anteriorly. No other abnormality is apparent." The radiologist's impression was status post anterior cervical spinal fusion (ACDF) C5-C7 and "[m]inimal degenerative change and abnormal motion at C4-5." Tr. 472.

Dr. Scott reexamined Plaintiff on September 4, 2013, post-cervical fusion. Tr. 471. "She is doing very well. Her only symptoms are some hand numbness, especially at nighttime." Id. She was advised to wear the bone stimulator for an additional four months. They discussed "possible carpal tunnel syndrome and possible work-up and treatment of this, however, she does not wish to pursue this at this time." Id.

On January 10, 2014, Dr. Scott noted that Plaintiff was doing well from her ACDF, but continued to have some discomfort in the trapezius. Dr. Reddy had prescribed a compound ointment, which Plaintiff rubbed in and was helpful. Tr. 469. Plaintiff noticed a problem with pain in her right hand and difficulty using a computer mouse. As noted, she still had some trapezius discomfort and was referred to Dr. Reddy for further testing (EMG/nerve conduction study for suspected carpel tunnel syndrome).11 Id.

Dr. Wagh treated Plaintiff for diabetes mellitus on March 12, 2014. Tr. 484. Her hemoglobin A1C was elevated at 8.1. She diagnosed Plaintiff with diabetes mellitus, hyperlipidemia and hyperthyroidism and was continued on her medication. Id. It is again noted that Plaintiff exercises regularly and appropriately for her age and health, predominantly swimming. Tr. 485. Neck, back, joint, and muscle pain and muscle weakness are noted. Id.

Plaintiff was examined by Dr. Reddy on April 3, 2014. Tr. 493-98. Plaintiff complained of current pain in her hand, forearms, and sciatica in both legs. Her current pain intensity was described as 5/10. Tr. 493. Plaintiff denied back and muscle pain and persistent pain in her joints. Tr. 494. The results of Dr. Reddy's physical examination, which included musculoskeletal and neurological aspects, were similar to prior physical examination results, Tr. 495-96. Compare with Tr. 228-32, 237-40, 247, 360-63, 424-26, 443-44, 446-52, 454-55, 457-61, 463-64, 504-05.

Additionally, after the ALJ issued his decision, see supra at 34 n. 11, Plaintiff underwent an MRI of the lumbar spine performed on April 4, 2014. Tr. 492, 500-01.12 The findings in the MRI report stated: "The height of the vertebral bodies are normal. There is marked disc space narrowing at L4-5 with a mixture of modic one, two, three changes. There is no spondylolisthesis." Tr. 500. The impression was "[a]dvanced L4-5 degeneration with mild L4 retrospondylolisthesis of L4 and moderate narrowing of right L4-5 foramen." Id. Plaintiff was referred for a L4 transforaminal epidural steroid injection. Id.

On May 1, 2014, Dr. Reddy examined Plaintiff who complained of current pain in the lower extremities and described it as "aching," with the current reported pain intensity of 5/10. Tr. 503. The patient notes under the objective portion of the examination, including musculoskeletal, extremities, neurological, and psychiatric were similar to prior reports. Tr. 504-05; see Tr. 228-32, 237-40, 247, 360-63, 424-26, 443-44, 446-52, 454-55, 457-61, 463-64, 495-96. Plaintiff was prescribed Norco. Tr. 505. A home exercise program was included in the care plan. Id. A referral to Dr. Scott was recommended for surgical opinion. Continued management and massage therapy with Dr. Hoehn for chiropractic management was noted. Topical compound analgesic was ordered for hand pain and CTS symptoms and Zanaflex was recommended for muscle spasms. Lortab was refilled, which Plaintiff used occasionally limited to severe "IBP only." Tr. 506.

On May 30, 2014, Plaintiff saw Dr. Scott. Tr. 492. Dr. Scott noted that it was more than a year out from her "ACDF" and she reported that her symptoms were fairly stable from that standpoint. Dr. Scott noted that when he saw Plaintiff in January 2014 she was having some problems with her right hand while using a computer mouse. An EMG/nerve conduction study was suggested and later performed.13 Dr. Reddy reported that the study showed carpal tunnel syndrome and Dr. Scott requested the results. Id. It is also noted that Plaintiff had problems with back pain, right buttock, and leg pain. The EMG/nerve conduction study of the lower extremities was normal as per a report of May 1, 2014. Id. Dr. Scott provided his assessment of the April 4, 2014, MRI. Dr. Scott's impression included post laminectomy syndrome with right L4-5 stenosis and status post left L4-5 discectomy. Dr. Scott noted that Dr. Valentine would be requested to perform a right L4 transforaminal ESI. Id.

On June 5, 2014, Dr. Valentine treated Plaintiff. Tr. 510-16. Plaintiff presented with low back and right leg pain and described it as aching and throbbing. The intensity was 7/10. Tr. 510. Under cerebellum, it is noted: "The gait is normal the patient can walk several steps, then turn, and come back; balance is easy, the arms swing at the sides, and turns are accomplished smoothly." Plaintiff was oriented; thought processes were coherent and insight good. No pain behaviors were noted. Tr. 511. She was diagnosed with right L4-5 foramina stenosis with neurogenic claudication, thoracic/lumbosacral neuritis (unspecified) and lumbar spinal stenosis. Plaintiff received a lumbar transforaminal epidural injection at L4. Id.

V. Legal Analysis

Plaintiff argues that the Commissioner's decision to deny her benefits should be reversed because the ALJ's rejection of the opinion of treating physician, Dr. Reddy, is not supported by substantial evidence and that the Appeals Council erred in not remanding the case to the ALJ for evaluation of Plaintiff's treating neurosurgeon's (Dr. Scott) patient records that pre- and Apost-date the ALJ's decision. ECF No. 12 at 1, 13-24.

The ALJ provided a skillful analysis of the relevant facts presented in this record and particularly when he determined whether Plaintiff's impairments were severe or non-severe at step two and when he assessed Plaintiff's RFC. Tr. 29-37.

Plaintiff performed past work as a state trooper. During her employment and, thereafter, Plaintiff was examined and treated by a host of healthcare providers for a myriad of health related issues, including those found to be severe such as degenerative disc disease of the cervical spine and lumbar disc displacement, Tr. 29, as well as other impairments that were rated as non-severe such as diabetes and hyperglycemia, Graves disease, thyroid disorder, problems with her left elbow and bursitis, allergies and urinary incontinence, and depression. Tr. 30-31.

The ALJ discusses her examination and treatment from 2010 through 2013, which included noting conflicting reports by Plaintiff to some of the healthcare providers. Tr. 32-36. For example, the ALJ noted that records from August to September 2011 revealed that Plaintiff sought treatment for a few years for low back and neck pain. Tr. 32. Dr. Wagh treated Plaintiff for diabetes-related problems for several years (2010-2013). Other healthcare providers, including Drs. Valentine and Reddy and Dr. Hoehn (a chiropractor), routinely treated Plaintiff for neck, back, and muscle pain. Tr. 32-36. The ALJ makes much of comparing Dr. Wagh's patient notes with the other patient notes as those latter notes record Plaintiff's report of muscle, back, and neck pain and Dr. Wagh's patient notes do not include the same "level of symptoms." Tr. 32-33. Further, the ALJ notes that Dr. Wagh's records from March to September 2012, stated that Plaintiff "reported intermittent `muscle pain,' `back pain,' and `neck pain,'" and that "[t]he treatment records were dedicated chiefly to discussing the claimant's diabetes and hyperthyroidism." Tr. 33. The ALJ continued:

Tr. 33-34 (emphasis added). (Earlier in his decision, the ALJ expressed his wonder "why the claimant did not mention back pain to Dr. Wagh" after receiving treatment for a few years for low back and neck pain. Tr. 32. Some patient notes from Drs. Valentine and Reddy were sent to Drs. Wagh, Hoehn, and Ashley. See, e.g., Tr. 447, 452-53.) The ALJ continued to discuss records from 2013 that did "not reveal any objective worsening in the claimant symptoms." Tr. 34. The ALJ then explained that his RFC assessment and restriction to light work in light of a May 2, 2011, x-ray of Plaintiff's cervical spine, a 2012 MRI of Plaintiff's cervical spine, the 2011-2013 clinical findings of Drs. Valentine and Reddy, similar clinical findings by Dr. Hoehn, other medical findings, Tr. 34, and Plaintiff's "activities of daily living." Tr. 34-35. The ALJ then discussed several credibility factors that were adverse to Plaintiff. Id.

Next, and relevant to Plaintiff's second argument, the ALJ discussed Plaintiff's cervical fusion.

Tr. 35 (emphasis added). Exhibit 11 F/01 refers to Dr. Wagh's patient note of June 12, 2013, in which Plaintiff stated that "[s]he just had neck surgery for cervical fusion." Tr. 397. Dr. Wagh noted that Plaintiff worked in her yard, did no aerobic exercise, and reported that her hypoglycemia was almost daily in the daytime. Id. At this time, Dr. Wagh also noted that Plaintiff "exercises fairly regularly and appropriately for age and health, predominantly swimming." Tr. 398. A review of systems indicated, in part, that Plaintiff had neck and back pain. Id. (Plaintiff first reported muscle, neck, and back pain to Dr. Wagh on June 20, 2012, Tr. 416, having mentioned back pain on April 12, 2012, Tr. 290.) The ALJ continued to compare Plaintiff's testimony and her daily activities with what she told her healthcare providers, concluding that there were inconsistencies. Tr. 35-36. The ALJ also declined to wait for the results of the reported nerve conduction study, see supra at 36 n. 13, "[g]iven the very significant lack of upper extremity objective findings." Tr. 36.

Having previously discussed relevant excerpts from Dr. Reddy's patient notes, the ALJ rejected the opinion rendered by Dr. Reddy in his medical source statement of October 2013 that Plaintiff's limitations were "consistent with a very restricted range of sedentary work." Tr. 36. The ALJ gave "very limited weight" to this opinion, assuming it "was completed by Dr. Reddy and no weight if it was completed by a non-acceptable medical source." Id. As noted herein, see supra at 25 n. 7, the ALJ assumed the medical source statement was completed by Dr. Reddy. Tr. 36.

Plaintiff bears the burden of proving that she is disabled, and consequently, is responsible for producing evidence in support of her claim. See 20 C.F.R. § 404.1512(a); Moore v. Barnhart, 405 F.3d at 1211. On the other hand, an ALJ has a clear duty to fully and fairly develop the administrative record. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995); 20 C.F.R. § 404.1512(d). See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) ("One of our recent opinions confirms, moreover, that an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record.") (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.")); 20 C.F.R. § 404.1520b. Further, under Social Security Ruling 96-5p, 1996 SSR LEXIS 2, at *6 (July 2, 1996), the ALJ must make "every reasonable effort" to re-contact a medical source when the medical evidence does not support the source's opinion, and the ALJ cannot ascertain the basis for that opinion from the case record. Vesy v. Astrue, 353 F. App'x 219, 225 (11th Cir. 2009) (unpublished). The question here is whether there are "the kinds of gaps in the evidence necessary to demonstrate prejudice" to Plaintiff. Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997).

Plaintiff does not expressly argue that the ALJ decided the case on an inadequate record. ECF No. 12 at 1, 13-24. Yet, this is an essential part of Plaintiff's claim of error. Plaintiff called into question the ALJ's failure to acknowledge that Plaintiff had a cervical fusion in April 2013 and further stated that Plaintiff's counsel told the ALJ at the hearing that she had been trying to get the records from Dr. Scott for five months. Tr. 56; ECF No. 12 at 18-23. Plaintiff argues that the ALJ made a rush to judgment when evaluating and giving "very limited weight" to the opinion of Dr. Reddy, a treating physician, and "very significant weight" to the July 17, 2012, opinion of Dr. Bancks, a non-examining reviewer, without obtaining relevant patient records. Id.; see Tr. 36-37. The Court agrees, although Plaintiff's counsel could have helped the situation by expressly asking the ALJ to extend the time for closing the record.14 On the other hand, the ALJ should have offered to keep the record open for a time certain, see, e.g., supra at 30 n. 10, knowing that relevant patient records would likely be forthcoming.15 The failure to fully and fairly develop the record, especially in light of the ALJ's characterization of the existing and missing records, was prejudicial to Plaintiff, see Graham v. Apfel, 129 F.3d at 1423, and requires a remand for the purpose of requiring the ALJ to review all of the patient records, including Exhibits 15F through 18F, Tr. 466-516, in conjunction with existing records and to reconsider Plaintiff's claim of disability. See generally Cary v. Colvin, Case No. 8:15-CV-462-T-MAP, 2016 U.S. Dist. LEXIS 31618, at *8-9 (M.D., Fla. Mar. 11, 2016). Further, the ALJ should be directed to consider whether he should re-contact one or more of Plaintiff's treating physicians and whether Plaintiff should be referred for an independent physical examination. See Salazar v. Comm'r of Soc. Sec., 372 F. App'x 64, 67 (11th Cir. 2010) (unpublished) (citing 20 C.F.R. § 404.1517). But the ALJ "is not required to order additional examinations if the evidence in the record is sufficient to allow him to make an informed decision." Id. (citing Ingram v. Comm'r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007)). The Court makes no determination whether Plaintiff is disabled.

VI. Conclusion

Considering the record as a whole, the findings of the Administrative Law Judge are not based upon substantial evidence in the record and he did not correctly follow the law. Accordingly, it is respectfully RECOMMENDED that the decision of the Commissioner to deny Plaintiff's application for Social Security benefits be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and REMANDED for further proceedings.