Hughes v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/15/2017. (KEK)

FILED
2017 Sep-15 PM 03:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONNIE LYNN HUGHES ,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No.: 2:16-CV-208-MHH

MEMORANDUM OPINION
Pro se plaintiff Donnie Lynn Hughes brings this action pursuant to Title II of
Section § 205(g) of the Social Security Act.

Mr. Hughes seeks review of a

decision by the Commissioner of the Social Security Administration denying his
claims for a period of disability and disability insurance benefits. See 42 U.S.C.
§ 405(g).

After careful review, the Court remands this action to the

Commissioner.1

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).

STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.

“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). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”

Costigan v.

Comm’r of Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
2

the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
PROCEDURAL AND FACTUAL BACKGROUND
On December 28, 2012, Mr. Hughes filed a Title II application for a period
of disability and disability insurance benefits. (Doc. 7-6, p. 2). Mr. Hughes
alleges that he became disabled on March 25, 2011. (Doc. 7-6, p. 2). The Social
Security Administration denied Mr. Hughes’s claim on February 20, 2013. (Doc.
7-5, p. 4). Consequently, Mr. Hughes filed a written request for a hearing. (Doc.
7-5, p. 16).
The Social Security Administration granted Mr. Hughes’s request, and on
April 28, 2014, Mr. Hughes appeared and testified at a video hearing before an
administrative law judge. (See Doc. 7-3, pp. 78–115). Julia Russell, a vocational
expert, and Joel S. Roger, an attorney who represented Mr. Hughes, also appeared
at the hearing. (See Doc. 7-3, p. 79). 2 At the time of his hearing, Mr. Hughes was
43 years old. (Doc. 7-3, p. 83).
2

Although Mr. Hughes was represented by counsel at the hearing, he submitted his appeal pro
se. Consistent with the pleading standards that apply to pro se litigants, the Court has construed
Mr. Hughes’s arguments liberally. See Gluchowski v. Comm’r of Soc. Sec., 2014 WL 2916750,
at *5 n.4 (M.D. Fla. June 26, 2014) (“[A]lthough Plaintiff was represented by counsel at the
hearing, Plaintiff is proceeding pro se. The Court must construe pro se pleadings liberally.”)
(internal citation omitted); see generally Tannenbaum v. United States, 148 F.3d 1262, 1263

3

Mr. Hughes testified that he attended school through the seventh grade and
left during his eighth grade year at the age of sixteen. (Doc. 7-3, p. 90). Mr.
Hughes stated that after he failed the first grade his school wanted to place him in
special education, but his mother refused. (Doc. 7-3, p. 90). Mr. Hughes tried to
get his GED, but he did not pass the test. (Doc. 7-3, p. 91). Mr. Hughes testified
that he reads on a third-grade level, he cannot spell, and he struggles with writing.
(Doc. 7-3, pp. 90–91, 107). Mr. Hughes has work experience as a maintenance
worker, water meter reader, and maintenance mechanic. (Doc. 7-3, p. 108). Mr.
Hughes indicated that as a water meter reader, he dug with a shovel; he had no
other tasks. (Doc. 7-3, pp. 107–08).
On May 27, 2014, the ALJ denied Mr. Hughes’s request for disability
benefits.

The ALJ found that Mr. Hughes did not have an impairment or a

combination of impairments that meets or medically equals the severity of an
impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526).

(Doc. 7-3, pp. 59, 65).

The ALJ

applied the Social Security Administration’s “five-step sequential evaluation
process for determining if an individual is disabled,” noting that the evaluation
would not proceed to the next step “[i]f it is determined that the claimant is or is
not disabled at a step of the evaluation process[.]” (Doc. 7-3, p. 63).
(11th Cir. 1998) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.”).

4

The ALJ found that Mr. Hughes had not “engaged in substantial gainful
activity since March 25, 2011, the alleged onset date[.]” (Doc. 7-3, p. 64). The
ALJ also found that Mr. Hughes has the following severe impairments:
“degenerative disc disease of the cervical and lumbar spine; depression; [and]
anxiety.” (Doc. 7-3, p. 64). The ALJ determined that “the[se] impairments are
‘severe’ within the meaning of the Regulations because they more than minimally
limit the claimant’s ability to perform basic work activities.” (Doc. 7-3, p. 64).
Additionally, the ALJ observed that Mr. Hughes has non-severe impairments
including: snoring; sleep apnea; waking up jerking and jumping; dyspnea (defined
as difficult or labored breathing), hypersomnia, unspecified; periodic limb
movement disorder; and chronic obstructive bronchitis without exacerbation.
(Doc. 7-3, p. 65). With respect to these conditions, the ALJ stated:
[On] March 2011, the claimant complained of snoring, nocturnal
apnea, waking up jerking and jumping and dyspnea. A pulmonary
function test indicated mild obstructive and restrictive lung deficits
and mildly reduced diffusing capacity. A chest x-ray was normal.
The claimant’s physician diagnosed rule out [sic] obstructive sleep
apnea, hypersomnia, unspecified; snoring; periodic limb movement
disorder; chronic obstructive bronchitis without exacerbation. [Mr.
Hughes] was prescribed symbicort inhalations.
The claimant followed up for his respiratory complaints in January
2012. He noted no acute pulmonary complaints. He was still
smoking. A physical examination revealed normal breathing. The
claimant had diminished breath sounds but no rales, no rhonchi, no
wheezing and no edema. The claimant’s most recent chest x-ray
revealed hyperinflation, increased interstitial marking and multiple
5

head granulomas.
The claimant was diagnosed with chronic
obstructive bronchitis without exacerbation and tobacco abuse.
There is no further evidence of any pulmonary issues or complaints
after January 2012. The claimant mentioned no complaints at the
hearing. He admitted, however, that he continues to smoke against
the recommendations of his physicians (Hearing Testimomy).
Accordingly, as there is no evidence in the record that indicates that
these impairments would cause the claimant any more than minimal
functional limitations, the undersigned finds them to be nonsevere.
(Doc. 7-3, p. 65).
The ALJ next determined that Mr. Hughes’s impairments do not meet or
medically equal the severity of an impairment listed in the regulations. (Doc. 7-3,
p. 65). With respect to Mr. Hughes’s physical impairments, the ALJ found that the
criteria under listings 1.04A, 1.04B, and 1.04C were not satisfied based on the
medical evidence.

(Doc. 7-3, p. 65).

With respect to Mr. Hughes’s mental

impairments, the ALJ found that the severity of these impairments do not meet or
medically equal the criteria of listing 12.04B or 12.04C. (Doc. 7-3, p. 65). Listing
12.04B requires evidence that the mental impairment “result[s] in at least two of
the following: marked restriction of activities of daily living; marked difficulties
in maintaining concentration, persistence or pace; or repeated episodes of
decompensation. (See Doc. 7-3, p. 65-66) (referencing listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1).

The ALJ noted that “[a] marked

limitation means more than moderate but less than extreme.” (Doc. 7-3, p. 66).
6

The ALJ concluded that Mr. Hughes’s mental impairments were moderate but not
marked. (Doc. 7-3, p. 66).
Based on the above factual findings, the ALJ concluded that Mr. Hughes had
the “residual functional capacity to perform light work as defined in 20 C.F.R.
§ 404.1567(b) and § 416.967(b) with some exceptions. (Doc. 7-3, p. 67). The ALJ
opined:
[Mr. Hughes] is able to occasionally balance, stoop, kneel, crouch,
crawl and climb ramps and stairs but never ladders, ropes or scaffolds;
must avoid all exposure to hazardous machinery and unprotected
heights; must avoid concentrated exposure to extreme cold, extreme
heat, fumes, dusts, gases and poor ventilation; must work in an
environment where tasks are learned through demonstration as
opposed to reading; . . . the claimant may have casual contact with
coworkers, supervisors and the public; the claimant must work in an
environment where changes are infrequent but when necessary are
introduced gradually; must be permitted to alternate between sitting
and standing every 30 minutes to an hour while remaining on task; is
able to perform goal-oriented work rather than work that requires
stringent production or fast pace; the claimant will be off task 10% of
the day.
(Doc. 7-3, p. 67).
Based on this residual functional capacity assessment, the ALJ determined
that Mr. Hughes is not capable of performing his past relevant work, but there are
jobs that exist in significant numbers in the national economy that Mr. Hughes can
perform. (Doc. 7-3, p. 72). The ALJ relied on the hearing testimony of Ms.
Russell, a vocational expert, who stated that Mr. Hughes could perform the
requirements of occupations such as machine tender, bakery worker, and sorter.
7

(Doc. 7-3, p. 73). The ALJ concluded that Mr. Hughes is not disabled within the
meaning of the Act, and the ALJ denied Mr. Hughes’s application for benefits.
In concluding that Mr. Hughes is not disabled, the ALJ gave great weight to
the opinions from state agency medical consultants Dr. Robert Heilpern, M.D. and
Dr. Robert Estock, M.D. Neither Dr. Heilpern nor Dr. Estock examined Mr.
Hughes. The ALJ did not state what, if any, weight he afforded to the findings of
Mr. Hughes’s treating physicians.
The ALJ determined that Mr. Hughes’s testimony concerning his limitations
was only partially credible. The ALJ found that although Mr. Hughes had a severe
back injury in March 2011, “by February 2012, the claimant was noted to be at
maximum medical improvement and able to return to work.” (Doc. 7-3, p. 68).
Mr. Hughes testified that the doctor who released him to return to work had
previously scheduled him for back surgery. (Doc. 7-3, pp. 101-102). Mr. Hughes
testified that the doctor—a workmen’s compensation physician and not Mr.
Hughes’s treating physician—released him to return to work only because he (Mr.
Hughes) declined the doctor’s recommendation for back surgery. (Doc. 7-3, p.
102). Mr. Hughes testified: “I was up for major back surgery. And six days later I
was back at work[.]” (Doc. 7-3, p. 101).
On June 26, 2013, Mr. Hughes sought review by the Appeals Council of the
ALJ’s decision. (Doc. 7-3, p. 57). As part of his appeal, Mr. Hughes presented
8

medical records from Southside Pain Management, dated September 16, 2014
through December 8, 2015 that were not before the ALJ. (Doc. 7-3, pp, 10-56).
Those records reflect ongoing complaints of back pain, MRI imaging showing disc
protrusions at L4-5 and L5-S1, and degenerative changes of the lumbar spine;
multiple lumbar steroid injections; continued discussion of the potential for
surgical intervention; continued complaints of coughing, wheezing, and shortness
of breath (though the provider noted no dyspnea and normal air movement); and
anxiety and depression. (See Doc. 7-3, pp. 8-34).
In a ruling dated December 8, 2015, the Appeals Council affirmed the ALJ’s
decision, finding that the new medical records did not provide a basis for altering
the ALJ’s opinion. Mr. Hughes then appealed to this Court and supplemented the
medical evidence in support of his claim for disability benefits. Mr. Hughes filed
the following new medical evidence in this Court:
•Request for Medical Information, dated July 20, 2015, completed by Dr.
Ronald Moon, Jr., D.O., indicating that Mr. Hughes is not physically or mentally
able to work due to chronic, recurrent neck and low back pain. (See Doc. 9, p. 3).
•Treatment notes dated February 24, 2012 from Valley Center for Nerve
Studies and Rehabilitation, (treating physician not clear from records), indicating
neck pain, radiation of pain in the arms and numbness in the right leg. (See Doc. 9,
p. 7).
•Treatment notes dated February 29, 2012, by Dr. Michael S. Kendrick,
M.D., with diagnoses of “degeneration of thoracic or lumbar intervertebral disc”;
“lumbar or lumbosacral intervertebral disc”; “thoracic or lumbosacral neuritis or
radiculitis, unspecified”; “degeneration of cervical intervertebral disc”; and
“brachial neuritis or radiculitis NOS[.]” Dr. Kendrick also noted symptoms of
9

restless legs (treated with Remeron and Klonopin); depression (dysthymic
disorder) and anxiety (treated with Klonopin); and “positive straight-leg raising
test (bilateral) and extension decreased.” (See Doc. 9, pp. 9-10).
•Treatment records dated August 11, 2006 and August 12, 2006—treating
physician unknown—notes are not legible due to poor print quality. (Doc. 9, p.
16).
•MRI report dated April 12, 2011, noting “[m]inimal discogenic
degenerative change at L4-5, with mild central disc protrusion at L5-S1; creating
no significant central canal stenosis or definite neural impingement.” (Doc. 9, p.
20).
•Treatment notes from Shelby Center for Nerve Studies and Rehabilitation,
completed by Dr. Eric Beck, M.D., dated February 24, 2012, noting limited range
of motion in the head and neck and joint pain in the hands. (Doc. 9, p. 25).
•Treatment notes from Birmingham Neurosurgery & Spine Group, P.C.,
completed by Dr. E. Carter Morris, M.D., indicating an impairment rating of 10%
and releasing Mr. Hughes to light duty with restrictions from the functional
capacity exam. (Doc. 9, p. 29).
•Treatment notes from Birmingham Neurosurgery & Spine Group, P.C.,
completed by Dr. E. Carter Morris, M.D., dated March 12, 2012, noting Mr.
Hughes’s continued complaints of neck and back pain and Dr. Morris’s assessment
that Mr. Hughes “is not having a cervical disc problem” and “his lumbar
degenerative disc problem is no worse than it was a year ago.” (Doc. 9, p. 30).
•Incomplete treatment notes from Birmingham Neurosurgery & Spine
Group., P.C., completed by Dr. E. Carter Morris, dated September 28, 2011 – only
1/3 pages submitted with no discernible information. (Doc. 9, p. 31).
Mr. Hughes also filed in this Court a number of medical records that already
were part of the administrative record. 3

3

Compare Doc. 9, p. 4–5 with Doc. 7-9, pp. 15-16; Doc. 9, p. 6 with Doc. 7-10, p. 21; Doc. 9, p.
8 with Doc. 7-9, p. 34; Doc. 9, p. 13–14 with Doc. 7-13, pp. 7-8; Doc. 9, p. 15 with Doc. 7-13, p.
11; Doc. 9, pp. 17–18 with Doc. 7-13, pp. 12-13; Doc. 9, p. 19 with Doc. 7-9, p. 108; Doc. 9, p.

10

The Commissioner of the Social Security Administration submitted a
memorandum in support of her decision. The Commissioner contends that (1)
substantial evidence supports her decision and (2) Mr. Hughes’s newly submitted
evidence does not warrant remand because the evidence is either duplicative,
outside the relevant time period, or immaterial to a finding of disability. (Doc. 10,
pp. 5-12). Mr. Hughes contends that there is no job he can perform, given his
mental and physical limitations. (Doc. 11).
ANALYSIS
To be eligible for disability insurance benefits, a claimant must be disabled.
Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013). “A
claimant is disabled if he is unable to engage in substantial gainful activity
[because of] a medically-determinable impairment that can be expected to result in
death or which has lasted or can be expected to last for a continuous period of at
least 12 months. Gaskin, 533 Fed. Appx. at 930 (citing 42 U.S.C. § 423(d)(1)(A)).
The Social Security Administration applies a five-step sequential analysis to
determine if a claimant is disabled.
This process includes a determination of whether the claimant (1) is
unable to engage in substantial gainful activity; (2) has a severe and
medically-determinable physical or mental impairment; (3) has such
21 with Doc. 7-9, p. 108; Doc. 9, p. 22 with Doc. 7-8, p. 79; Doc. 9, p. 23 with Doc. 7-8, p. 66;
Doc. 9, p. 24 with Doc. 7-8, p. 85; Doc. 9, pp. 26–27 with Doc. 7-8, pp. 81-82; Doc. 9, p. 35 with
Doc. 7-9, p. 134; Doc. 9, p. 36 with Doc. 7-8, p. 62; Doc. 9, p. 37 with Doc. 7-12, p. 113; Doc. 9,
p. 38 with Doc. 7-8, p. 14; Doc. 9, p. 39 with Doc. 7-12, p. 24; Doc. 9, pp. 40–43 with Doc. 7-12,
pp. 102-105.

11

an impairment that meets or equals a Listing and meets the duration
requirements; (4) can perform his past relevant work, in the light of
his residual functional capacity; and (5) can make an adjustment to
other work, in [] light of his residual functional capacity, age,
education, and work experience.
Gaskin, 533 Fed. Appx. at 930 (citation omitted).

“The claimant’s residual

functional capacity is an assessment, based upon all relevant evidence, of the
claimant’s ability to do work despite his impairments.”

Id. (citing Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); see also 20 C.F.R. §
404.1545(a)(1).
In the present case, the ALJ found that Mr. Hughes’s degenerative disc
disease of the cervical and lumbar spine, depression, and anxiety were severe
impairments that cause more than a minimal limitation on his ability to perform
basic work activities. (See Doc. 7-3, p. 64). Nevertheless, the ALJ concluded that
Mr. Hughes is not disabled because he is capable of successfully adjusting to other
work that exists in significant numbers in the national economy. (See Doc. 7-3, pp.
6-10).
With respect to Mr. Hughes’s mental impairments, the ALJ determined that
Mr. Hughes’s treatment records “fail to reveal the type of significant clinical and
laboratory abnormalities one would expect if [Mr. Hughes] were in fact disabled.”
(Doc. 7-3, p. 71).

The ALJ relied on Mr. Hughes’s treatment records from

Grayson and Associates. (See Doc. 7-3, p. 71). The treatment notes from Grayson
12

and Associates contain the only treating and examining information in the record
concerning Mr. Hughes’s mental impairments. After reviewing these records, the
ALJ stated:
Treatment notes from Grayson and Associates indicate that the
claimant’s mental impairments are generally stable on medication. In
November 2011, the claimant presented complaining of depression
and poor sleep. A mental status examination revealed a depressed
mood, flat affect, impaired memory and concentration and paranoid
thinking when anxious. The claimant was prescribed Remeron and
Klonopin (Ex. 8F at 9). By August 2012, the claimant had a normal
mental status examination and complained of no mental health
problems (Ex. 8F at 4). In September 2012, he complained that he
was down and stressed about money. He had a depressed mood, but
no suicidal or homicidal ideation (Ex. 8F at 5). By November 2012,
however, his mood was euthymic again. (Ex. 8F at 2). The most
recent treatment notes from November 2012 indicate that the claimant
had a depressed and anxious mood, but was otherwise stable on
medication (Ex. 8F at 3).
(Doc. 7-3, p. 71).
In terms of Mr. Hughes’s mental residual functional capacity, the ALJ
assigned “great weight” to the opinion of Dr. Robert Estock, a non-examining state
agency medical consultant. (See Doc. 7-3, p. 72). Dr. Estock opined that Mr.
Hughes has only “moderate limitations in activities of daily living, social
functioning and concentration, persistence or pace[.]” (See Doc. 7-4, pp. 10-11).
As part of his review, Dr. Estock referred to the treatment records from Grayson
and Associates and indicated that the “notes [are] hard to read.” (See Doc. 7-4, p.
5). Dr. Estock provided the following observations with respect to Mr. Hughes’s
mental residual functional capacity:
13

A. Claimant is able to understand and remember simple instructions.
B. Claimant is able to carry out short and simple instructions and
attend and concentrate for 2 hour periods on simple tasks with
customary breaks and rest during the regular workday. Claimant
may benefit from a flexible schedule. Claimant may miss 1-2 days
a month of work due to psychological signs and symptoms.
C. Claimant’s interaction and contact with the general public should
be casual. Criticism and feedback from supervisors and coworkers in the workplace should be casual and non-confronting or
supportive.
D. Changes in the workplace should be gradually introduced.
Claimant may need assistance in setting realistic goals and making
plans.
(Doc. 7-4, p. 11).
Based on a review of the record, the Court does not find substantial evidence
to support the ALJ’s decision regarding Mr. Hughes’s mental residual functional
capacity. The Court has carefully reviewed the treatment notes from Grayson and
Associates. The notes document Mr. Hughes’s visits in May 2010, December
2010, January 2011, March 2011, May 2011 (2), October 2011, November 2011,
February 2012, March 2012, June 2012, September 2012, and November 2012 (2).
All of the records contain handwritten notes. Dr. Estock noted that the Grayson
and Associates records are “hard to read.”

(Doc. 7-4, p. 5).

That is an

understatement. The handwritten notes from the November 2011 and September
2012 visits are legible, and the items circled on the typed portion of the mental
status exam results of the March 2012 (could be September 2012) and November
14

2012 records are discernable. The latter amount to a “circle which applies” section
that describes Mr. Hughes’s appearance, speech, mood, affect, thinking, cognition,
suicidal ideation, homicidal ideation, and hallucinations. (See Doc. 7-10, pp. 2730). The balance of the Grayson and Associates records, all containing narrative
remarks, are illegible. (See Doc.7-10, pp. 27-33; 35-37). The Court does not find
any indication in the records that Mr. Hughes is “stable on medication” as the ALJ
twice noted. (See Doc. 7-3, p. 71) (“claimant’s mental impairments are generally
stable on medication”; “claimant had a depressed and anxious mood but was
otherwise stable on medication[.]”). Neither the ALJ nor Dr. Estock seems to have
been able to decipher the narrative portion of the illegible mental health records to
determine whether those notes indicate that Mr. Hughes’s mental impairments
were impacting his daily functioning or his ability to work.
In Yasmin v. Commissioner of Social Security, 2009 WL 799457, *13 (M.D.
Fla. Mar. 24, 2009), the Court found that the ALJ had not satisfied his duty to fully
and fairly develop the record where key portions of the medical records were not
legible. The Yasmin court, relying on decisions from the Second and Eighth
Circuits, held that “the illegibility of important evidentiary material can warrant a
remand for clarification and supplementation.” Id. (citing Miller v. Heckler, 756
F.2d 679, 680–81 (8th Cir. 1985); Brissette v. Heckler, 730 F.2d 548, 550 (8th Cir.
1984); Cutler v. Weinbarger, 516 F.2d 1282, 1285 (2d Cir. 1975); and Bishop v.
15

Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990)).

The Yasmin court found

persuasive the Eight Circuit’s reasoning in Bishop:
It is the ALJ’s duty to develop the record fully and fairly, even in
cases in which the claimant is represented by counsel. Based on the
record before us, we cannot determine whether Bishop’s combined
impairments following his back surgery meet or equal a listed
impairment or whether he is otherwise disabled. We doubt that the
ALJ could decipher all the medical reports any better than we could.
On remand, the parties should determine which of the medical records
are relevant and provide the ALJ with legible copies of these records
or direct interrogatories to doctors and hospital personnel. If the ALJ
requires additional evidence to make a disability determination, he
should order consultative examinations to be performed at the expense
of the Social Security Administration.
20 C.F.R. §
404.1517(a)(1989).
Yasmin, 2009 WL 799457 at * 13 (quoting Bishop, 900 F.2d at 1262). 4 This Court
also finds the reasoning of Bishop persuasive.
Mr. Hughes’s records from Grayson and Associates are important because
they provide the only information in the record from a treating source concerning
Mr. Hughes’s mental impairments. Failure to decipher those records or further
develop the administrative record to account for the poor quality of the Grayson
and Associates records is not harmless error. Because the records are largely
illegible, the Court finds that remand is appropriate so that the Commissioner may
take steps to clarify the content of the records or order a consultative evaluation.
4

In Yasmin, the Court noted that it could not find an opinion directly on point from the Eleventh
Circuit. Yasmin, WL 799457, at *13. This Court likewise has not located an Eleventh Circuit
opinion addressing the issue of whether illegible medical records on which the ALJ purports to
rely warrant remand.

16

Development of this evidence is particularly important because the ALJ
stated in his RFC analysis that Mr. Hughes would need to be off task 10% of the
day. (Doc. 7-3, p. 67). The ALJ posed a series of hypothetical questions to the
vocational expert that incorporated various periods of time that Mr. Hughes would
be off task. See Montana v. Comm’r of Social Security, WL 4975325, *6 (M.D.
Fla. 2016) (quoting Winchell v. Comm’r of Social Security, 631 F.3d 1176, 1180
(11th Cir. 2011)) (ALJ may rely on a hypothetical question if the hypothetical
“comprises all of the claimant’s impairments” which are supported by the medical
evidence). The vocational expert, Ms. Russell, testified that if Mr. Hughes needed
to be off task for 15% of the day, then no jobs would exist in the national economy
that Mr. Hughes could perform. (Doc. 7-3, pp. 111-12). Without identifying an
evidentiary basis for the RFC assessment that Mr. Hughes would need to be off
task for 10% of the day, and in the absence of legible medical records that would
enable the ALJ or this Court to evaluate that potential limitation, the Court cannot
determine whether substantial evidence supports the ALJ’s residual functional
capacity assessment.

17

CONCLUSION
Consistent with the foregoing, the Court REMANDS this action for further
findings and proceedings consistent with this opinion.5
DONE and ORDERED this September 15, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

5

Because the Court remands this action for reconsideration of Mr. Hughes’s mental
impairments, the Court does not reach the question of whether the new evidence that Mr. Hughes
presented to this Court warrants remand.

18