Jenkins v. Astrue
Order that the decision of the Commissioner of Social Security denying benefits be REVERSED and REMANDED pursuant to sentence four of 42 USC 405(g). Signed by Magistrate Judge Katherine P. Nelson on 7/10/2013. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JAMES E. JENKINS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff James E. Jenkins brings this action, pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of
Social Security denying his applications for supplemental security income (“SSI”)
and disability insurance benefits (“DIB”).
The parties have consented to the
exercise of jurisdiction by the undersigned United States Magistrate Judge for all
proceedings in this Court pursuant to 28 U.S.C. § 636(c).
(See Doc. 21 (“In
accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in
this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and
administrative record (“R.”) (Doc. 13), Jenkins’s brief (Doc. 14), and the
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Colvin is
substituted for Michael J. Astrue as the proper defendant in this case.
Commissioner’s brief (Doc. 17),2 it is determined that the Commissioner’s decision
denying Jenkins benefits should be REVERSED AND REMANDED for further
proceedings not inconsistent with this decision.3
On September 4, 2008, Jenkins filed applications for DIB and SSI (R.
159-165), alleging disability beginning February 1, 2001 (see R. 159). 4
applications were initially denied.
(See R. 54-57, 67-76.)
A hearing was then
conducted before an Administrative Law Judge on June 1, 2010 (see R. 30-53). On
August 13, 2010, the ALJ issued a decision finding Jenkins was not disabled (R.
18-29), and he sought review from the Appeals Council.
The Appeals Council
issued its decision declining to review the ALJ’s determination on May 30, 2012 (see
R. 1-6)—making the ALJ’s determination the Commissioner’s final decision for
purposes of judicial review, see 20 C.F.R. § 404.981—and a complaint was filed in
this Court on July 19, 2012 (see Doc. 1).
Standard of Review and Claims on Appeal
In all Social Security cases, the plaintiff bears the burden of proving that he or
The Court granted the parties’ request to waive oral argument.
Any appeal taken from this memorandum opinion and order and judgment
shall be made to the Eleventh Circuit Court of Appeals. (See Doc. 21 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court
of Appeals for this judicial circuit in the same manner as an appeal from any other judgment
of this district court.”).)
The alleged onset date was subsequently amended, to June 11, 2009.
she is unable to perform his or her previous work.
Jones v. Bowen, 810 F.2d 1001,
1005 (11th Cir. 1986). In evaluating whether the plaintiff has met this burden, the
examiner must consider the following four factors: (1) objective medical facts and
clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4)
the plaintiff’s age, education, and work history. Id. Once the plaintiff meets this
burden, it becomes the Commissioner’s burden to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Sryock
v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Although at the fourth step “the
[plaintiff] bears the burden of demonstrating the inability to return to [his or] her
past relevant work, the Commissioner of Social Security has an obligation to develop
a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
The task for this Court is to determine whether the ALJ’s decision to deny
plaintiff benefits is supported by substantial evidence.
Substantial evidence is
defined as more than a scintilla, and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Richardson v. Perales, 402
U.S. 389, 401 (1971). “In determining whether substantial evidence exists, [a court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.”
Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). Courts are precluded, however, from “deciding the facts anew or
re-weighing the evidence.”
Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir.
Apr. 1, 2010) (per curiam) (citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir.
And, “[e]ven if the evidence preponderates against the Commissioner’s
findings, [a court] must affirm if the decision reached is supported by substantial
Id. (citing Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004)).
On appeal to this Court, Jenkins asserts two separate claims:
The ALJ failed to fulfill her duty to develop the record when she elected
not to order a consultative examination for the purposes of obtaining
objective studies to confirm the source of [Jenkins’s] low back pain; and
The ALJ erred by failing to consider [Jenkins’s] lack of ability to seek
and afford medical care.
(Doc. 13 at 1.)
As the Court has determined that the decision of the Commissioner
should be reversed and remanded for further proceedings based on Jenkins’s first
claim, there is no need for the Court to consider his second claim, except to the
extent Jenkins’s financial situation weighs in the balance discussed below.
Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 & n.2 (S.D. Ala. 2001); cf.
Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (“Because the ‘misuse of the
expert’s testimony alone warrants reversal,’ we do not consider the appellant’s other
The ALJ’s Decision.
Here, the ALJ made a step-three finding that Jenkins “has the following
questionable ‘severe’ impairment: low back pain[.]”
She then concluded
that, despite his low back pain, he “has the residual functional capacity to perform
medium work as defined in [§§] 404.1567(c) and 417.967(c). [He] has the ability to
lift and/or carry up to thirty pounds occasionally and twenty-five pounds frequently.
[But h]e is limited to simple, routine and repetitive tasks.”
In making her
RFC determination, the ALJ noted that “[t]he medical evidence establishes a history
of low back pain[,]” and offered this recitation of that (very limited) medical evidence:
In August 2004, [Jenkins] underwent a consultative general medical
examination performed by Dr. Dee Dee Kidd at the request of the
Agency. The impressions were back pain. On physical examination,
Dr. Kidd noted [Jenkins] had tenderness in the paraspinal musculature
on the left side. He had full range of motion, good strength and normal
sensation. She noted slight weakness; however[, she] indicated that it
was 5/5 with normal sensation. He was able to heel walk, toe walk
and squat. Dr. Kidd recommended an MRI.
At the request of the Office of Disability Determinations, a consultative
general medical examination was conducted by Dr. Huey Kidd on July
20, 2009. [Jenkins] ha[d] complaints of back pain but denied any
numbness or tingling. [Dr. Kidd’s] impression was low back pain.
Dr. Kidd’s examination was essentially unremarkable. He noted
[Jenkins] was able to heel walk, able to toe walk, able to bend and touch
his toes, able to squat and to stand without difficulty. [Jenkins] was
observed to be able to ambulate without difficulty. There were no
neurological deficits. Dr. Kidd opined that he did not really find
anything on the physical examination that should prevent [Jenkins]
from being able to work.
Dr. Richard Whitney, a state agency medical consultant[,] found that
[Jenkins] did not have a medically determinable impairment. The
lack of treatment records and the July 2009 consultative examination
support this finding. However, giving the claimant the benefit of
doubt, I will find a ‘severe’ back impairment.
(R. 25 (record citations omitted).)
After finding that Jenkins failed to carry his
burden to show that any alleged numbness in his right leg established a medically
determinable impairment (see id.), the ALJ assigned “great weight” to the consults
provided by Drs. Kidd and relied on the lack of “medical evidence contained in the
record other than the consultative examinations” (R. 25; see also id. (“There is no
indication that [Jenkins] has required ongoing medical treatment.
There is no
record of any emergency room visits or hospitalization for his impairment.”) to
establish her ability-to-perform-medium-work RFC (R. 25-26).
A Claimant’s Burden to Prove Disability Versus an ALJ’s Duty
to Develop the Record.
While “the burden is on [Jenkins] to prove he is disabled[,]” Sellers v.
Barnhart, 246 F. Supp. 2d 1201, 1210 (M.D. Ala. 2002),5 there also is no doubt that
“[a]n administrative law judge has a duty to develop a full and fair record.”
Astrue, Civil Action No. 3:09cv366–CSC, 2010 WL 2952686, at *2 (M.D. Ala. July 26,
2010) (citing Kelley v. Heckler, 761 F.2d 1538 (11th Cir. 1985)); accord Salazar v.
Commissioner of Soc. Sec., 372 Fed. App’x 64, 67 (11th Cir. Apr. 6, 2010) (per curiam)
(citing Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam)); Waits
v. Astrue, No. CV 12–J–2371–NE, 2013 WL 625311, at *4 (N.D. Ala. Feb. 20, 2013)
(“The ALJ always has an affirmative duty to develop a fair, full record.” (citing
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (emphasis added)))6; compare
There, the court cited § 404.1512(s), which provides:
In general, you have to prove to us that you are blind or disabled. Therefore,
you must bring to our attention everything that shows that you are blind or
disabled. This means you must furnish medical and other evidence that we
can use to reach conclusions about your impairment(s) and, if material to the
determination of whether you are blind or disabled, its effect on your ability to
work on a sustained basis.
In this regard, the Supreme Court has noted, “Social Security proceedings are
inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and
Williams v. Commissioner of Soc. Sec., No. 6:09–cv–1129–Orl–28GJK, 2010 WL
2432032, at *9 (M.D. Fla. May 24, 2010). (“Although the ALJ has the duty to fully
develop the record, the Claimant carries the burden of establishing he is disabled.”
(citing Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991))), with Carroll v.
Astrue, No. 1:09–CV–1232, 2010 WL 2643420, at *3 (N.D. Ohio July 1, 2010)
(“Generally, the ALJ has a duty to develop a reasonable record, and the ALJ must
look fully into the issues.
20 C.F.R. §§ 404.944, 416.1444. However, the claimant
has the burden of providing a complete record with enough evidence and detail to
enable the ALJ to make a disability determination. 20 C.F.R. § 416.912.” (some
develop the arguments both for and against granting benefits.”
110–11 (2000). And the Eleventh Circuit has observed,
Sims v. Apfel, 530 U.S. 103,
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty
of the ALJ to investigate the facts and develop the arguments both for and
against granting benefits; review by the Appeals Council is similarly broad.
The regulations also make the nature of the SSA proceedings quite clear.
They expressly provide that the SSA “conducts the administrative review
process in an informal, nonadversary manner.”
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000) (citing Sims and quoting 20
C.F.R. § 404.900(b)).
In Carroll—where “[t]he objective evidence that was available in the record
did not support Plaintiff’s complaints of back pain[, but r]ather, [it] indicated that Plaintiff[ ]
had normal cervical spine x-rays and nearly normal strength in his legs, and did not need
any ambulatory aids to walk”—the court noted its recent decision rejecting “an argument
stating that ‘if the ALJ needed more information regarding her condition, “it was
incumbent” upon him to seek out further evidence of disability.’ . . . [There,] the ALJ did not
need more information because substantial evidence supported the ALJ’s determination,
and the plaintiff had the ‘opportunity to seek out and introduce new evidence that could
change the ALJ’s mind.’” Id. at *3 (quoting Fagan v. Astrue, No. 1:09 CV 00019, 2010 WL
481278, at *6-7 (N.D. Ohio Feb. 5, 2010)). And the court went on to conclude,
An ALJ’s affirmative duty to develop a full and fair record, in certain cases,
“extends to obtaining a consultative examination when the same would be of benefit
in the administrative process.”
Waits, 2013 WL 625311, at *4 (citing 20 C.F.R. §§
404.1517; 416.917); accord Cox v. Astrue, No. 5:11–CV–02319–LSC, 2012 WL
4008953, at *5 (N.D. Ala. Sept. 12, 2012) (“The Commissioner’s duty to develop the
record includes ordering a consultative examination if one is needed to make an
informed decision.” (citing Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984)
(citing, in turn, Ford v. Secretary of Health & Human Servs., 659 F.2d 66, 69 (5th
Cir. Unit B 1981)) (emphasis added)))). And “[t]he failure of an ALJ to order a
consultative examination, when such an evaluation is necessary to make an
informed decision, constitutes justifiable cause for a remand to the Commissioner.”
Rease v. Barnhart, 422 F. Supp. 2d 1334, 1372 (N.D. Ga. 2006) (citing Reeves; Ford;
Turner v. Califano, 563 F.2d 669 (5th Cir. 1977)); see, e.g., Holladay v. Bowen, 848
Because the claimant has the burden of providing a complete record with
enough evidence and detail to enable the ALJ to make a disability
determination, Plaintiff’s allegations that the ALJ failed to develop the record
should be rejected. See 20 C.F.R. § 416.912.
Furthermore, when a claimant is represented by an attorney, the ALJ may
assume that the claimant has presented his strongest case for benefits.
Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007). Here, the attorney
specifically told the ALJ that there are no medical records in the file regarding
the back pain, and that there was only Plaintiff’s testimony. Without any
records, the ALJ had no basis to form a determination regarding the back
pain. Thus, the ALJ was justified in omitting any claims regarding back
pain in his findings.
Id. at *4 (record citation omitted).
F.2d 1206, 1210 (11th Cir. 1988).8
“In determining whether it is necessary to remand a case for development of
the record, [a court should] consider ‘whether the record reveals evidentiary gaps
which result in unfairness or clear prejudice.’”
Salazar, 372 Fed. App’x at 67
(quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (per curiam)); see also
Cox, 2012 WL 4008953, at *5 (“Plaintiff must show that the lack of records created
an evidentiary gap, resulting in unfairness or clear prejudice.” (citing Edwards v.
Sullivan, 937 F.2d 580, 586 (11th Cir. 1991))). For example, in Sims v. Astrue, the
plaintiff had lumbar degenerative disc disease, and an evidentiary gap—a lack of
current MRIs or x-rays—clearly necessitated remand: “based on the inadequate
development of the record, the court [could not] determine whether the ALJ’s
conclusion that the plaintiff [was] not disabled [was] based on substantial evidence.”
2010 WL 2952686, at *5.9
There, the Eleventh Circuit reaffirmed Reeves and Ford, but held “[i]n this
the absence of a coronary arteriogram made it impossible for the ALJ to
determine with absolute certainty that Holladay does not suffer from ischemic
heart disease. Yet the statute does not require absolute certainty; it requires
only substantial evidence to sustain the Secretary’s findings. The absence of
an arteriogram did not render the ALJ incapable of making an overall
disability determination. It caused him only to proceed beyond the third step
of the sequential evaluation process. Without in any way retreating from the
rule announced in Ford and Reeves, we conclude that the ALJ did not err in
denying Holladay’s request for a consultative examination.
848 F.2d at 1210.
There, unlike here, there was extensive objective medical evidence, see id. at
*2-4, and the court remarked,
pursuant to 20 C.F.R. § 416.917, the ALJ is required to order additional
Here, a Clear Evidentiary Gap Prejudices Jenkins and
As excerpted above, the ALJ’s decision states, almost in passing, that, in 2004,
Dr. Dee Dee Kidd—performing a consultative examination for DDS—“recommended
(R. 25.) Dr. Kidd stated, more fully, “It would probably help if he had an
MRI to see if he has anything going on in his back. He does not have numbness
going down his leg. He hasn’t had any testing on his back. An MRI would help
and also orthopedic or neurosurgery exam.”
While Dr. Huey Kidd, in his
2009 consultative examination, does not make a similar recommendation, these two
consultations, to which the ALJ, understandably, assigned “great weight,” were the
entire medical record before the ALJ.
And the ALJ also based her decision,
moreover, on the lack of “medical evidence contained in the record . . . .”
(R. 25; see
also id. (“There is no indication that [Jenkins] has required ongoing medical
treatment. There is no record of any emergency room visits or hospitalization for
medical tests when the claimant’s medical sources do not give sufficient
medical evidence to make a determination as to disability. The ALJ failed to
obtain updated MRIs or x-rays or otherwise develop the medical evidence
regarding Sims’ current lumbar degenerative disc disease. Although the
plaintiff was sent for a consultative physical examination, it is apparent from
the record that no recent x-rays or MRIs were obtained to determine the
extent of the plaintiff’s lumbar disc disease. The court is at a loss as to why
the ALJ would order a consultative physical examination without also
requesting additional imaging be done, particularly in light of the nature of
the plaintiff’s complaints.
Although the medical records demonstrate
numerous trips to her treating physicians by the plaintiff complaining of pain,
the ALJ took no further steps to explore the nature of the plaintiff’s current
degenerative disc disease by securing updated MRI testing or x-rays. Rather,
the ALJ relied on imaging from 2003 to support her conclusion that Sims is
not presently disabled and has not been disabled since 2007.
Id. at *4 (citations omitted and emphasis in original).
Further, Jenkins’s counsel specifically requested that the ALJ obtain objective
evidence. Before questioning at the June 1, 2010 hearing commenced, counsel for
Jenkins made this opening statement:
Mr. Jenkins suffers from back pain that we contend would prevent him
for doing continuous work activity. And also, Your Honor, we
specifically request pursuant to Sims v. Apfel that Your Honor consider
ordering a consultative examination where x-rays can be done on Mr.
As Exhibit 1F [the 2004 consult] notes, there are no objective findings
of record. We request pursuant to [Sims v. Apfel] that you consider
ordering for x-rays in this case so his back pain can be established
objectively, and we certainly think that those objective findings will
reveal significant abnormalities.
Where, like here, a claimant lacks his own medical evidence and a consulting
physician—after noting an impairment on physical examination—recommends that
a claimant’s record be augmented by objective medical evidence, an ALJ skirts his
affirmative duty to develop a full and fair record by not ordering the taking of
objective medical evidence, such as an MRI or x-rays. On the facts of this case,
some sort of objective medical evidence (such as an MRI) was “needed to make an
Cox, 2012 WL 4008953, at *5. And, like Magistrate Judge
Coody, in Sims v. Astrue, the undersigned is also “at a loss” as to why, here—in light
of Dr. Kidd’s 2004 recommendation that an MRI be performed—a consultative
physical examination was performed in 2009 without the taking of objective
As to the ALJ’s decision to base her RFC on the lack of medical evidence, Freel
v. Astrue, No. 3:10–cv–01164–MCR, 2012 WL 628463 (M.D. Fla. Feb. 27, 2012), is
the ALJ discredited [the opinion of a treating source, Dr. Fetchero,]
because there was insufficient medical evidence in the record.
However, as Plaintiff observed, part of the reason for the lack of
medical evidence was Plaintiff’s inability to pay for an MRI. While the
Commissioner is correct the plaintiff has the burden of proving his
disability, it is similarly true that the ALJ has a duty to develop a full
and fair record, even when[, like Jenkins here,] the plaintiff is
represented by counsel. This duty includes ordering a consultative
examination or additional testing if needed to make an informed
decision. The ALJ is not required to order a consultative examination
or additional testing unless the record shows that such an examination
is necessary for the ALJ to render a decision.
Here, two physicians, Dr. Fetchero and Dr. Choisser, both indicated an
MRI was necessary for further diagnosis and the ALJ noted this in his
decision. The responsibility of ordering the MRI fell on the ALJ
due to the ALJ’s duty to develop a full and fair record unless the
record contained sufficient evidence for the ALJ to make an
informed decision. However, the ALJ was only required to order the
MRI if there was insufficient evidence in the record to support an
overall disability determination. The regulations do not require
absolute certainty in a disability decision; instead, the requirement is
substantial evidence to sustain the ALJ’s determination. Here, the
undersigned is not prepared to require the ALJ to order an MRI,
however, as the ALJ’s only remaining reason for discrediting Dr.
Fetchero’s opinion is that there is insufficient evidence in the record
and it is documented that part of the reason for the lack of evidence in
the record is Plaintiff’s inability to pay for an MRI, the Court cannot
find that lack of evidence is a sufficient reason on its own for
discrediting Plaintiff’s treating physician’s opinion. Accordingly, the
undersigned finds the ALJ erred in discrediting Dr. Fetchero’s opinions
by failing to provide sufficient good cause for doing so. The Court will
therefore, remand this matter back to the ALJ and ask that he
reconsider the opinions of Dr. Fetchero, keeping in mind that if he
cannot point to substantial evidence in the record to do otherwise, he
must grant it significant weight. Additionally, the ALJ shall
consider whether an MRI would assist him in determining
Plaintiff’s disability status.
Id. at *6-7 (internal citations omitted and emphasis added).10
While the court in Freel did not remand that case for the taking of objective
evidence alone, the record in this case is thin and, moreover, because both a
consulting physician and the plaintiff’s counsel—at the hearing before the ALJ, not
just on appeal to this Court—requested objective evidence be taken, the ALJ’s
decision to rely soley on the two consulting opinions and a lack of other medical
evidence prejudices Jenkins and necessitates remand.
Contra Carroll, 2010 WL
2643420, at *3-4 (rejecting a “failure to develop the record” argument where
objective evidence already available in the record failed to support complaints of
Finally, in remanding this matter, in which the ALJ did arguably find a
“severe” impairment and, thus, moved past the second step of the sequential
analysis, the undersigned is cognizant of Holladay’s holding that only substantial
evidence, not absolute certainty, is required. See 848 F.2d at 1210. But, here,
unlike in Holladay, no objective medical evidence exists and, moreover, a consulting
physician identified a need for objective testing. Further, also unlike in Holladay,
no regulation prevents the Commissioner from paying for the testing requested here.
In determining whether remand is appropriate in cases such as this one, the
On appeal, Jenkins’s second ground is that the ALJ failed to consider his lack
of ability to seek and afford medical care. (See Doc. 14 at 8-9 (citing his hearing testimony
(see R. 38)).) Without taking up this issue, it should be noted that Jenkins’s ability to afford
medical care also raises the specter of his inability to obtain his own MRI or x-rays. Thus,
relying on Freel, it appears that it is the Commissioner’s burden, pursuant to a duty to
develop the record, under the facts of this case, to pay for an MRI or x-rays.
Court must balance an ALJ’s duty to develop a full and fair record against a
claimant’s responsibility to prove disability. And the facts of this case, considered
against the nonadversarial nature of Social Security administrative proceedings, tip
the balance in favor of remand.
Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Jenkins benefits be REVERSED AND REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the
Equal Access to Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292
(1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 10th day of July, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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