Garoutte v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/15/2018. (JLC)

FILED
2018 Feb-15 PM 03:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KRISTINA GAROUTTE,
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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) Case No.: 4:16-CV-2087-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Kristina Garoutte (“Garoutte”) brings this action under 42 U.S.C. §

405(g). Garoutte seeks a review of a final adverse decision of the Commissioner of
the Social Security Administration (“Commissioner”), who denied her application for
supplemental security income (“SSI”). Garoutte filed her application on February 13,
2014. After that, Garoutte exhausted the administrative remedies available before the
Commissioner. This case is now ripe for judicial review under section 205(g) of the
Social Security Act (the “Act”), 42 U.S.C. § 405(g).
Garoutte appeals the ALJ’s decision on eight different grounds. After
reviewing the entire record and the arguments set forth, this Court REVERSES and

REMANDS the decision of the Commissioner.
II.

RELEVANT BACKGROUND
Garoutte was 36 years old when she filed her application. (Tr. 25). Her past

relevant work includes being a merchandise displayer. (Id.). The alleged onset date
is January 1, 2013. (Id. at 13). On February 13, 2014, Garoutte filed an application
for SSI. (Id.). The Social Security Administration denied that application on April 10,
2014. (Id.). On March 19, 2015, Administrative Law Judge Claire R. Strong held a
video hearing. (Id.). The ALJ issued her decision on May 29, 2015, which was
unfavorable to Garoutte. (Id. at 27). The ALJ determined that Garoutte suffers from
numerous severe impairments but found that her impairments did not meet the
severity of the ones included in the Code of Federal Regulations. (Id. at 15, 17). The
ALJ also determined that Garoutte could still perform substantial gainful activity. (Id.
at 25-26). Garoutte requested the Appeals Council review her claim. (Id. at 1-4).
They refused. (Id.).
Garoutte filed her Complaint in the Northern District of Alabama on December
23, 2016. (Doc. 1). She filed her brief in support of her Complaint on July 6, 2017.
(Doc. 12). The Commissioner responded on September 6, 2017. (Doc. 16).
Additionally, the parties have addressed Garoutte’s Notice of Supplemental
Authority. (Docs. 17, 18).
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III.

STANDARDS
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
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2d 1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a

period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.1 The Regulations define “disabled” as
“the inability to do 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

1

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
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(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
V.

FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After considering the record, the ALJ made the following findings:
1.

The claimant has not engaged in substantial gainful activity since
February 13, 2014, the application date (20 CFR 416.971 et seq.).

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2.

The claimant has the following severe impairments: status post
disk herniation at L5-S1 with impinging nerve root from motor
vehicle accident on August 1, 2003; chronic post traumatic
lumbago with radiculopathy; and obesity (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 416.967(b) except the
claimant requires a sit/stand option. She can bend, reach
overhead, and push/pull on an occasional basis. She is limited to
unskilled work.

5.

The claimant is unable to perform any past relevant work (20
CFR 416.965).

6.

The claimant was born on [REDACTED] and was 36 years old,
which is defined as a younger individual age 18-49, on the date
the application was filed (20 CFR 416.963).

7.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).

8.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

9.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 416.969 and 416.969(a)).
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10.

The claimant has not been under a disability, as defined in the
Social Security Act, since February 13, 2014, the date the
application was filed (20 CFR 416.920(g)).

(Tr. 15-26) (emphasis omitted).
VI.

ANALYSIS
Garoutte assigns eight different grounds for appeal. Her eighth argument is that

“[t]he Appeals Council failed to review new submissions dated after the date of the
ALJ [d]ecision solely because the records were dated after the date of the [d]ecision,
without considering if the submissions were chronologically relevant.” (Doc. 12 at
2, 42-51) (emphasis omitted). She then later refers to four different letters submitted
by counsel to the Appeals Council. (Id. at 42). Those letters are dated October 12,
2015, December 4, 2015, June 8, 2016, and October 10, 2016. (Id.). Attached to those
letters were submissions of new medical records. (Id.); (see also Tr. 13E, 14E, and
15E). However, the Court was unable to locate in the record the letter from June 8,
2016, containing “medical records from Dr. Morton Rickless dated [February 1, 2016,
to February 23, 2016]". (Id.).
The Commissioner confirmed that these medical records are not in the
administrative record. (Doc. 16 at 24 n. 2). However, even though these documents
are not in the record before the Court, and even though there is no indication that the
Appeals Council ever considered these records, and even though there is no clear
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indication the ALJ ever considered these records (because they were submitted to the
Appeals Council), the Commissioner essentially wants the Court to overlook that
omission and affirm. (See id.). When this Court has an incomplete record, apparently
through no fault of the claimant, the Court cannot just say it does not matter.
All documents filed by counsel in this Court must comply with Rule 11 of the
Federal Rules of Civil Procedure. See FED. R. CIV. P. 11. Garoutte’s brief, signed by
her attorney, states that “[c]ounsel submitted the following on appeal. . . Letter dated
6/8/2016 with the submission of medical records from Dr. Morton Rickless.” (Doc.
12 at 42). The Court takes Garoutte’s counsel at his word that he, or someone at his
firm, submitted these medical records to the Appeals Council. Garoutte’s eighth
argument is that the Appeals Council did not consider the later submissions to
determine whether they were chronologically relevant. (Doc. 12 at 2, 42-51). Given
that the records from Dr. Morton Rickless are nowhere to be found in the record, it
appears that not only did they not consider if the records were chronologically
relevant, but that the records were not considered at all.
Additionally, the letter from Garoutte’s counsel, dated October 10, 2016, makes
reference to the June 8, 2016, letter. (Tr. 253). That letter states that “new, material,
and chronologically relevant records were submitted” with the June 8, 2016, letter.

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(Id.).2 The Court would hope that upon receipt of that letter, the Appeals Council
double-checked the administrative record to ensure they had all of counsel’s
additional submissions that counsel told them were “new, material, and
chronologically relevant.” (Id.).
The Commissioner cites to the Eleventh Circuit in Mitchell in support for the
idea that “[Garoutte] failed to show that such evidence was chronologically relevant
to the period considered by the ALJ, and failed to show that the evidence rendered the
ALJ’s decision erroneous or unsupported by substantial evidence.” (Doc. 16 at 24 n.
2) (citing Mitchell v. Commissioner, Social Sec. Admin., 771 F.3d 780, 785 (11th Cir.
2014)). However, Mitchell does not control the outcome of this case. In Mitchell, the
claimant submitted new evidence to the Appeals Council after the ALJ did not rule
in his favor. Mitchell, 771 F.3d at 781-82. Then, “[t]he Appeals Council denied [the
claimant’s] request for review, explaining that it had considered [the claimant’s]
reasons for disagreeing with the ALJ's decision as well as his additional evidence.”
Id. The panel noted that they “[d]id not have a similar basis [to the court in Epps] for
doubting the Appeals Council’s statement that it considered Mitchell’s additional
evidence.” Id. at 784. The Eleventh Circuit “[held] that the Appeals Council is not

2

The letter also makes reference to another letter from February 2, 2016. (Tr. 253).
Garoutte does not mention this letter in her brief. (See Doc. 12 at 42).
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required to explain its rationale when denying a request for review.” Id. at 785. Here,
the Court has a basis to doubt the Appeals Council considered additional evidence
when that evidence is not found in the administrative record.
“It is well-established that the ALJ has a basic duty to develop a full and fair
record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The same is true
of the Appeals Council. See Sims v. Apfel, 530 U.S. 103, 111 (2000) (“It is the ALJ's
duty to investigate the facts and develop the arguments both for and against granting
benefits . . . and the Council's review is similarly broad.”); Butler v. Astrue, 926 F.
Supp. 2d 466, 477 (N.D.N.Y. 2013) (“The duty to develop the record extends to the
Appeals Council.”) (citing Sims, 530 U.S. at 111). It is also true that “the claimant
bears the burden of proving that he is disabled, and, consequently, he is responsible
for producing evidence in support of his claim.” See Ellison, 355 F.3d at 1276. Here,
the Court has a brief, signed by counsel, governed by Rule 11, assuring the Court that
these medical records were submitted. (See Doc. 12 at 42, 51). Since these medical
records do not appear in the administrative record, the Court finds the record was not
fully developed.
This Court “[has] no way of knowing whether the evidence missing from this
case would sustain [claimant’s] contentions of her inability to work. In the absence
of proof to the contrary, however, [the court] must assume that it does lend credence
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to her allegations.” Brown v. Shalala, 44 F.3d 931, 936 (11th Cir. 1995). Without any
assurances that the Appeals Council even looked at the missing records, this Court
is compelled by fairness to remand the case for further consideration.3
VII. CONCLUSION
The Court passes no judgment on Garoutte’s multitude of other arguments or
on whether she is ultimately disabled. The Court does find that this case is due to be
sent back down to the Appeals Council for them to find (or otherwise obtain) and
consider these missing records. These records might not change a thing. They might
not be material; they might not be chronologically relevant. If they are neither of
those things, the Court expects the Appeals Council to say so in accordance with
Eleventh Circuit precedent. However, until the Appeals Council actually looks at
these records, they cannot know. In conclusion, the decision of the Commissioner is
due to be, and hereby is, REVERSED and REMANDED.

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The Eleventh Circuit in Brown stated:

In evaluating the necessity for a remand, we are guided by “whether the record
reveals evidentiary gaps which result in unfairness or ‘clear prejudice.’ ” Smith,
677 F.2d at 830 (quoting Ware v. Schweiker, 651 F.2d 408, 413 (5th Cir.Unit A
July 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982)).
Brown, 44 F.3d at 935-36.
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DONE and ORDERED this 15th day of February, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

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