Hill v. Astrue (CONSENT)

Filing 23

MEMORANDUM OPINION AND ORDER reversing and remanding case to the Commissioner for further proceedings consistent with this opinion; further ORDERING that, in accordance with Bergen v. Commr of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11 Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice of any amount of past due benefits awarded to seek attorneys fees under 42 U.S.C. § 406(b). Signed by Honorable Charles S. Coody on 4/15/10. (djy, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION R A N D Y HILL, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C I V IL ACTION NO. 1:09cv01-CSC (WO) M E M O R A N D U M OPINION and ORDER I . Introduction P lain tiff Randy Hill ("Hill") applied for disability insurance benefits1 pursuant to Title II of the Social Security Act, 42 U.S.C. 401 et seq., and for supplemental security income b e n e fits under Title XVI of the Social Security Act, 42 U.S.C. 1381 et seq., alleging that h e was unable to work because of a disability. His application was denied at the initial a d m in is tra tiv e level. The plaintiff then requested and received a hearing before an A d m in is tra tiv e Law Judge ("ALJ"). Following the hearing, the ALJ also denied the claim. T h e Appeals Council rejected a subsequent request for review. The ALJ's decision c o n se q u e n tly became the final decision of the Commissioner of Social Security (C o m m issio n er).2 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). The case is 1 The plaintiff's insured status for purposes of disability insurance benefits expired on March 31, 2005. Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social 2 n o w before the court for review pursuant to 42 U.S.C. 405 (g) and 1631(c)(3). Pursuant to 28 U.S.C. 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United S ta te s Magistrate Judge conducting all proceedings in this case and ordering the entry of final ju d g m e n t . Based on the court's review of the record in this case and the briefs of the parties, th e court concludes that the decision of the Commissioner should be reversed and this case r e m a n d e d to the Commissioner for further proceedings. I I . Standard of Review U n d e r 42 U.S.C. 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months . . . To make this determination,3 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. 404.1520, 416.920. (1 ) (2 ) (3 ) (4 ) (5 ) Is the person presently unemployed? Is the person's impairment severe? D o e s the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? Is the person unable to perform his or her former occupation? Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next Security matters were transferred to the Commissioner of Social Security. A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 3 2 q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).4 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of t h e record which support the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. Hill was 40 years old at the alleged date of onset of disability and McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A). 4 3 4 5 years old at the time of the hearing before the ALJ.5 (R. 17 & 80). He has a tenth grade e d u c atio n . (R. 19). His prior work experience includes work as a laborer (R. 77) and a b u tche r (R. 23). Following the hearing, the ALJ concluded that the plaintiff has severe im p airm e n ts of osteoarthritis and herniated nucleus pulposus at L4-L5.6 (R. 75). The ALJ f u rth e r concluded that Hill has "a history of diverticular bleeding with acute anemia," but this c o n d itio n was not a "severe medically determinable impairment" because it was treated and it did not meet the 12 month durational requirement to be considered severe. (R. 75). The A L J further concluded that Hill had no mental impairment. (Id.). The ALJ found that Hill was unable to perform his past relevant work as a laborer but c o n c lu d e d that he has the residual functional capacity to perform work that does not require lif tin g or carrying more than 20 pounds occasionally or 10 pounds frequently; h e can only perform work that will allow for difficulty bending, standing or s ittin g no longer than six hours in an 8 hour day; and work that requires no re a d in g and no skills. (R. 76). Finally, the ALJ concluded that there exists jobs in significant number in the national ec o n o m y that Hill could perform, and thus, he was not disabled. (R. 77-78). Hill testified at the administrative hearing that he was forty-five years old and that his birthday was September 1, 1960. (R. 17). This would make Hill 47 years old. However, other documents demonstrate that Hill's birthday is actually September 1, 1962. (R. 80-81, 98, 101, 109, 112). The ALJ found that Hill had a severe impairment of "herniated" which is indicative of the lack of attention to detail in his opinion. (R. 75). The consultative examiner diagnosed Hill with a "herniated nucleus polposus at L4-L5 level." (R. 172). The court concludes that the ALJ's failure to include "nucleus polposus" was simply a scrivener's error. 6 5 4 B. Plaintiff's Claims. As stated by Hill, he presents two issues for the Court's re v ie w : 1. T h e Commissioner's decision should be reversed, because the ALJ i m p ro p e rly rejected Mr. Hill's testimony concerning the limitations im p o s e d by his medically determinable impairments. T h e Commissioner's decision should be reversed, because the ALJ's re sid u a l functional capacity is inconsistent with the opinion of Dr. C ra w f o rd , to whom the ALJ assigned great weight. 2. (P l's Br. at 3). IV. DISCUSSION D u rin g the administrative hearing 7 after learning that Hill previously had worked as a butcher, the ALJ made the following comment: "King (sic) of wonderful what a nasty old p ig can do once you cut it up." (R. 23). No matter how you slice it, the ALJ failed in his h a n d lin g of this case. An ALJ has a duty to develop a full and fair record. Kelley v. Heckler, 7 6 1 F.2d 1538 (11 th Cir. 1985). The ALJ must conscientiously probe into, inquire of and e x p lo re all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v . Schweiker, 662 F.2d 731, 735-36 (11 th Cir. 1981).8 As will be explained, the court co n clud es that the ALJ failed to fully and fairly develop the record concerning the plaintiff's in te lle c tu a l functioning and mental impairments. 7 Characterizing the proceeding before the ALJ as an "hearing" requires a willing suspension of disbelief. See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 8 5 A . Limited Intellectual Functioning. It is patently obvious from reading the tra n sc rip t that Hill has limited intellectual ability. What is not plain is the extent or effect of h is limitation on his ability to work. Q: A: Q: A: * Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: M r. Hill, tell me, sir, how old are you? I'm 45. Y o u r date of birth? 9 -1 -6 0 * * H o w much do you weigh? 197 Is that your normal weight? N o I wasn't, now that I lost weight since then. O k a y, how much [INAUDIBLE] I think my normal weight is usually 174. O k a y, you put on 20 pounds. R ig h t. W h y? H uh? O v e r what period of time did you put on 20 pounds? T h a t's what the doctor told me at one time I should weigh. I was w e ig h in g 203. O k a y, so you're about normal then. . . . * * * Q: A: Q: A: Q: A: Q: A: Q: A f te r you left high school did you get any education or training? N o , sir. L e a rn to read and write? S o m e , a little bit I do. W e ll, you say a little bit, do you have enough reading to read a n ew sp ap er? S o m e [INAUDIBLE] some I can't. Y o u ever read the bible? N o , sir, [INAUDIBLE] I don't. C o u ld you write me a letter to tell me about your medical problems? 6 A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: (R . 17-22). N o , sir, I couldn't do that [INAUDIBLE] Y o u had a driver's license, how did you get that license? You take a w ritten test? W e ll, I failed it the first time, then the second time she read it out to me an d [INAUDIBLE]. Y o u know how to handle money and pay bills? N o , my girl, my lady friend does all that. N o , I don't care what she knows how to do, I want to know what you k n o w how to do. Do you know how to handle money and pay bills? N o , I never had did it, Judge, to be honest with you. Y o u never paid bills? N o , I never had did it. W e ll, if you pulled into a gas stations and you got $11.50 worth of gas a n d you handed the clerk a $20.00 bill how much money would that c le rk have to give you back? You got $20.00 If I had a $20.00 bill? a $20.00 bill take away $11.50, what's due to you? $ 7 .5 0 . M o re o v e r, Hill testified that he failed the first grade and that he received special help in school from his teachers beginning in the seventh grade and continuing until he dropped o u t in the eleventh grade. (R. 32). At the conclusion of the hearing, Hill's attorney s u g g e s te d that the ALJ develop the record regarding Hill's intellectual abilities.9 The ALJ d e c lin e d that suggestion. A L J : W e ll, I don't think it's necessary because the testimony as elicited was r e s p o n s e to unskilled work with minimal reading ability, entry-level, u n s k ille d , minimal reading, and he was worked in semi-skilled and s k ille d jobs in the past which would show at least a performance IQ that w a s fairly good. Some people don't have verbal IQs that are so good b u t performance IQ is very good. So, I don't see any need to pursue 9 Hill's lawyer said that he "would not be opposed if [the ALJ] so chose to develop the record regarding [Hill's] intellectual abilities." (R. 43). 7 th a t at this point. I really don't think the record needs to be developed [ IN A U D IB L E ]. The past work shows that [INAUDIBLE]. (R. 43-44). There is sufficient evidence in the record from which the ALJ should have concluded th a t it was necessary to secure additional evidence regarding the plaintiff's intellectual f u n c tio n in g before rendering a decision regarding his disability. Hill testified that he failed th e first grade, and had special help from teachers for four years. This testimony, coupled w i th his colloquies with the ALJ during the administrative hearing, should have led the ALJ to conclude that additional information was needed to properly evaluate Hill's intellectual lim ita tio n s .1 0 The ALJ's determination that the record did not need to be developed re g a rd in g Hill's intellectual capabilities is contrary to the evidence, and erroneous as a matter o f law. B. Mental Impairments. In addition to Hill's limited intellectual functioning, the A L J failed to develop the record regarding whether Hill suffered from any additional mental im p a irm e n ts. During the administrative hearing, Hill testified that he had been to the county m en tal health center "four or five times" because he was having difficulty sleeping. (R. 28). W h e n the ALJ noted that he did not have the records from mental health, Hill's attorney re s p o n d e d that he was unaware that Hill had been to mental health. (Id.). Consequently, n e ith e r the ALJ nor the attorney ever sought the medical records of Hill's mental health The ALJ's suggestion that Hill would score well on an IQ test because of his prior work as a brick mason's helper or butcher borders on the ludicrous aside from it being pure speculation. Indeed, the ALJ's conclusion is tantamount to him substituting his opinion for that a psychologist or psychiatrist. 10 8 tr e a tm e n t. Not only did the ALJ fail to get Hill's mental health records, he then compounded his e rro r by failing to secure a consultative psychological examination for Hill. Where a c o n su ltativ e evaluation is needed to make an informed decision, it is error for an ALJ not to o rd e r such an evaluation. Reeves v. Heckler, 734 F.2d 519 (11 th Cir. 1984). Under the circu m stan ce s of this case, the court concludes that there was sufficient information before th e ALJ to require him to obtain a psychiatric or psychological evaluation about Hill's mental im p a irm e n ts so he could make an informed decision. "[I]n any case where there is evidence w h ic h indicates the existence of a mental impairment the . . . [Commissioner] may determine th a t the claimant is not disabled only if the . . . [Commissioner] has made every reasonable e f f o rt to obtain the opinion of a qualified psychiatrist or psychologist." McCall v. Bowen, 8 4 6 F.2d 1317, 1320 (11 th Cir. 1988). While the ALJ is entitled to make credibility d e ter m in a tio n s, the ALJ may not substitute his judgment for the judgments of experts in their f ie ld of expertise. Psychiatrists deal with quintessentially subjective information with respect to which they must exercise professional, interpretive judgment. "`Even a "mild" mental im p a irm e n t may "prevent [a] claimant from engaging in the full range of jobs contemplated b y the exertional category for which the claimant otherwise qualifies.'" Allen v. Sullivan, 8 8 0 F.2d 1200, at 1202 (11 th Cir. 1989). B y failing to secure Hill's mental health records and refer him for a consultative p s yc h o lo g ic a l examination, the ALJ improperly substituted his judgment for that of a 9 p syc h o lo g ist with respect to the question of whether the plaintiff has a mental impairment. T h e court concludes that the case should be remanded to further develop the record r e g a rd in g the extent of the plaintiff's intellectual functioning and mental impairments and th e ir effects on his ability to work. C . Credibility Analysis and Pain. During the administrative hearing, Hill testified that he suffered from lower back pain, neck pain, headaches and dizziness.1 1 (R. 26, 31-33). T h e Commissioner must consider a claimant's subjective testimony of pain if he finds e v id e n c e of an underlying medical condition, and either (1) objective medical evidence to c o n f irm the severity of the alleged pain arising from that condition, or (2) that the objectively d e ter m in e d medical condition is of a severity that can reasonably be expected to give rise to th e alleged pain. Mason v. Bowen, 791 F.2d 1460, 1462 (11 th Cir. 1986); Landry v. Heckler, 7 8 2 F.2d 1551, 1553 (11 th Cir. 1986). If the Commissioner fails to articulate reasons for r e f u s in g to credit a claimant's subjective pain testimony, then the Commissioner has, as a m a tter of law, accepted the testimony as true. This rule of law is well-established in this c irc u it. See Brown v. Sullivan, 921 F.2d 1233, 1236 (11 th Cir. 1991); Holt v. Sullivan, 921 Despite Hill's testimony, the ALJ in his analysis of the evidence simply ignores evidence that Hill suffers from headaches and dizziness. Thus, the ALJ makes no findings regarding Hill's headaches or dizziness or pain related to these conditions in his disability determination. The ALJ must conscientiously probe into, inquire of and explore all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). Even if the ALJ concludes that these impairments are not severe, he must still consider their effects on Hill's ability to perform work. The ALJ must consider every impairment alleged by the plaintiff and determine whether the alleged impairments are sufficiently severe - either singly or in combination - to create a disability. See Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986). All of the plaintiff's impairments must be considered in combination, even when the impairments considered separately are not severe. Hudson, 755 F.2d at 785. 11 10 F .2 d 1221 (11 th Cir. 1991); Hale v. Bowen, 831 F.2d 1007 (11 th Cir. 1987); MacGregor v. B o w e n , 786 F.2d 1050 (11 th Cir. 1986). M o re o v e r, "[p]ain is clearly a non-exertional impairment that limits the range of jobs th e claimant can perform." Foote v. Chater, 67 F.3d 1553, 1559 (11 th Cir. 1995); Walker, 8 2 6 F.2d at 1003 ("Pain is a nonexertional impairment."). See also Phillips v. Barnhart, 357 F .3 d 1232, 1242 fn 11 (11 th Cir. 2004) ("Nonexertional limitations or restrictions affect an in d iv id u a l's ability to meet the other demands of jobs and include . . . pain limitations. . .") F u rth e rm o re , in this circuit, pain itself can be disabling. See Foote, 67 F.3d at 1561; M a r b u r y v. Sullivan, 957 F. 2d 837, 839 (11 th Cir. 1992). W h e re an ALJ decides not to credit a claimant's testimony, the ALJ must articulate s p e c if ic and adequate reasons for doing so, or the record must be obvious as to the credibility f in d in g . Foote, 67 F.3d at 1561-62; Jones v. Dept. of Health & Human Servs., 941 F.2d 1 5 2 9 , 1532 (11 th Cir. 1991) (articulated reasons must be based on substantial evidence). If p r o o f of disability is based on subjective evidence and a credibility determination is, th e re f o re , critical to the decision, "`the ALJ must either explicitly discredit such testimony o r the implication must be so clear as to amount to a specific credibility finding.'" Foote, 67 F .3 d at 1562, quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11 th Cir 1983) (although no e x p lic it finding as to credibility is required, the implication must be obvious to the reviewing c o u rt ). The ALJ acknowledged that Hill has impairments that would reasonably be expected 11 to produce the type of pain about which he complains but the ALJ then concluded that Hill's s ta te m e n ts about his pain were "not credible to the extent that they are inconsistent with the re sid u a l functional capacity assessment for the reasons explained below." (R. 76). Without f u rth e r explanation, the ALJ simply states that Hill's " actual impairments are anatomically in c o n g ru e n t with his degree of alleged impairments." (Id.). The ALJ's discussion of Hill's c o n su ltativ e examination and colon surgery are not reasons to discredit him. The facts re c ited by the ALJ might support reasons, but the ALJ did not articulate those reasons. Rote re c ita tio n of the medical evidence is not a substitute for articulating clear reasons for d isc re d itin g the plaintiff. Consequently, the ALJ's conclusory credibility analysis is simply d e f ic ie n t as a matter of law. It also appears that the ALJ discredited Hill's testimony because he has not been re f erre d to a pain clinic, and his medication was prescribed by a gastroenterologist and not a n orthopedist. See R. 77. The problem with this analysis is that the ALJ failed to consider w h e th e r the plaintiff's financial ability influenced his ability to secure treatment. During the a d m in istra tiv e hearing, the ALJ commented on Hill's failure to secure treatment. I 'm asking what treating records are there? People that don't go to doctors, d o n ' t avail themselves of medical treatment in my opinion generally don't h a v e much to complain about. People who need a doctor see a doctor. Makes s e n s e doesn't it? (R. 27). T h e ALJ's cavalier comment is particularly disingenuous in light of Hill's testimony th a t he could not afford to see a doctor. "I haven't [been to a doctor] because they won't see 12 m e because I don't have insurance and the proper way to pay them for the treatments." (R. 2 8 ). Hill testified at least twice during the hearing that he was unable to secure or afford tre a tm e n t. (R. 28, 31). He told the consultative examiner that he was financially unable to se c u re or follow treatment. (R. 169). While failure to seek treatment is a legitimate basis to d is c re d it the testimony of a claimant, poverty excuses noncompliance with prescribed m e d ic a l treatment or the failure to seek treatment. Dawkins v. Bowen, 848 F.2d 1211 (11 th C ir. 1988). It is clear from the record that the ALJ heard testimony that Hill was unable to p a y for treatment. Notwithstanding this evidence, the ALJ then failed to consider or further d e v e lo p the evidence to determine whether Hill's failure to seek or obtain treatment was due to poverty. Consequently, the court concludes that the ALJ failed to develop the record re g a rd in g the plaintiff's financial situation as it relates to his failure to seek treatment. D . Residual Functional Capacity finding. The ALJ determined that Hill suffers f r o m severe impairments of osteoarthritis and herniated lumbar nucleus pulposes. He also d e te rm in e d that he has the residual functional capacity to perform work that does not require lif tin g or carrying more than 20 pounds occasionally or 10 pounds frequently; h e can only perform work that will allow for difficulty bending,1 2 standing or s ittin g no longer than six hours in an 8 hour day; and work that requires no re a d in g and no skills. (R. 76) (footnote added). At the request of the Social Security Administration, Hill had a physical consultative 12 Needless to say, this limitation makes no sense. 13 e v a lu a tio n by Dr. Willis Crawford ("Crawford") on March 21, 2006. (R. 169-72). During th a t evaluation, Dr. Crawford reported that Hill h a s a considerable amount of difficulty in ambulation as well as in s t a n d in g from a sitting position. He guards his left knee more than a n y th in g else and seems to have a great deal of difficulty bending it. * * * He is able to tandem walk. He is unable to walk on his heels, toes, or hop. He c a n move from the chair onto th exam table but has to make extra effort in o r d e r to get there by himself without help. He is able to shake hands and dress w ith o u t assistance. He can write. His left leg appears to be more affected or m o r e painful at any rate more than any of his other extremities. IM P R E S S IO N S : 1. O s te o a rth ritis , marked, generalized. 2. P ro b a b ly heriated nucleus pulposus at L4-L5 level. C O M M E N T S : This man can sit with difficulty and stand with more d ifficu lty . He can walk but he limps and guards his left knee. He can lift lig h t loads but he cannot carry anything. He can hear and speak and tr a v e l. (R. 171-72) (emphasis added). Despite Dr. Crawford's assessment that Hill could sit with difficulty, stand with more d if f ic u lty and not carry anything, the ALJ concluded that Hill has the residual functional c a p ac ity to sit or stand for six hours, and carry 20 pounds occasionally and 10 pounds f re q u e n tly. (R. 76). Although the ALJ refers to Dr. Crawford's report in his recitation of the m e d ic a l evidence, the ALJ makes no specific findings regarding Dr. Crawford's assessment o f Hill's residual functional capacity. The ALJ is not free to simply reject a physician's o p i n io n without reason, nor may he pick and choose between the opinions selecting those 14 p o rtio n s which support his ultimate conclusion. At a minimum, the record demonstrates that there exists a conflict or ambiguity in the e v id e n c e regarding Hill's abilities to sit, stand and carry. When there is a conflict, in c o n sis ten c y or ambiguity in the record, the ALJ has an obligation to resolve the conflict, g iv in g specific reasons supported by the evidence as to why he accepted or rejected one o p in io n regarding the plaintiff's capacity for work over another. In this case, the ALJ d e te r m i n e d that Hill could sit or stand for no more than 6 hours and could carry up to 20 p o u n d s , but he ignored the conflicting evidence that suggests Hill may not be able to stand o r sit for that length of time or carry anything. (R. 76-77). An ALJ may not arbitrarily pick a n d choose facts from the medical evidence to support his conclusion without articulating s p e c if ic , well supported reasons for crediting some evidence while discrediting other e v id e n c e . Marbury, supra. "In the absence of such a statement, it is impossible for a re v ie w in g court to determine whether the ultimate decision on the merits is rational and s u p p o rte d by substantial evidence." Cowart, 662 F.2d at 735. "Failure to do so requires the c a se be vacated and remanded for the proper consideration." Hudson v. Heckler, 755 F.2d 7 8 1 , 785 (11 th Cir. 1985). Consequently, the court is unable to determine whether the ALJ's d e c is io n is supported by substantial evidence. V. Conclusion "S o c ial Security proceedings are inquisitorial rather than adversarial. It is the ALJ's d u ty to investigate the facts and develop the arguments both for and against granting 15 b e n e f its ." Sims v. Apfel, 530 U.S. 103, 110-111 (2000). In light of the inadequate d e v e lo p m e n t of the record, the court cannot determine whether the ALJ's conclusion that the p la in tif f is not disabled is based on substantial evidence. Accordingly, the decision of the C o m m is s io n e r will be reversed and this case remanded to the Commissioner for further p ro c e e d in g s consistent with this opinion. A separate final judgment will be entered. It is further O R D E R E D that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1 2 7 8 fn. 2 (11 th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice of an y amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. 406(b). S e e also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11 th Cir. 2008). D o n e this 15 th day of April 2010. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 16

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