Jean v. Commissioner of Social Security

Filing 31

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED and this action is REMANDED for further proceedings. The Clerk is directed to enter judgment accordingly, and close the file. Signed by Magistrate Judge Carol Mirando on 9/29/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROSELAINE JEAN,
Plaintiff,
v.

Case No: 2:16-cv-569-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Roselaine Jean seeks judicial review of the denial of her claims for a
period of disability and disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) by the Commissioner of the Social Security Administration
(“Commissioner”). The Court has reviewed the record, the briefs and the applicable
law.

For the reasons discussed herein, the decision of the Commissioner is

REVERSED, and this matter is REMANDED pursuant to 42 U.S.C. § 405(g),
sentence four.
I.

Issues on Appeal 1

Plaintiff raises three issues on appeal: (1) whether the Administrative Law
Judge (“ALJ”) properly denied Plaintiff’s request for a Creole interpreter; (2) whether
the ALJ was unbiased, impartial and fair in adjudicating Plaintiff’s claims; and (3)
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc.
v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument
that has not been briefed before the court is deemed abandoned and its merits will not be
addressed.”).
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whether the ALJ properly did not consider Plaintiff’s neck injury and intellectual
functioning in assessing her residual functional capacity (“RFC”).
II.

Procedural History and Summary of the ALJ’s Decision

On September 30, 2010, Plaintiff filed an application for SSI. Tr. 170-78. On
her application for SSI, Plaintiff alleged that her disability began October 1, 2000 2
due to epilepsy/seizure disorder. Tr. 200. Plaintiff’s claim was denied initially and
upon reconsideration. Tr. 115-17, 125-26. Plaintiff requested a hearing before an
ALJ and received a hearing before ALJ Larry J. Butler on October 24, 2012. Tr. 13247. On October 23, 2012, Plaintiff filed an application for a period of disability and
DIB. Tr. 197-98. Plaintiff alleged that her disability began January 30, 2004 on her
application for DIB and also requested that this application be merged with her
application for SSI. Tr. 154, 197-98. On October 24, 2012, Plaintiff, who was
represented by counsel, appeared and testified at the hearing before the ALJ. See
Tr. 30-72. Plaintiff’s daughter also appeared and testified, in part, at the hearing. 3
Tr. 57-71.
On December 29, 2014, the ALJ issued a decision finding Plaintiff not disabled
from January 30, 2004 through the date of the decision. Tr. 13-22. At step one, the
ALJ found that Plaintiff met the insured status requirements of the Social Security

Plaintiff amended her alleged onset date to January 30, 2004 during a hearing before
the ALJ. Tr. 33-34.
2

At the hearing, Plaintiff’s counsel did not examine Plaintiff because of Plaintiff’s
limited ability to speak English. Tr. 40. Instead, counsel decided to call Plaintiff’s daughter
as a witness and question her. Tr. 57-71. The Court will address Plaintiff’s limited ability
to speak English in a separate section because Plaintiff raises a related issue on appeal. Doc.
25 at 8-15.
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Act through June 30, 2004 and has not engaged in substantial gainful activity since
January 30, 2004, the alleged onset date. Tr. 15. At step two, the ALJ found that
Plaintiff has one severe impairment: epilepsy. Id. Proceeding to step three, the ALJ
found that Plaintiff does not have “an impairment or combination of impairments
that meets or medically equals the severity of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.” Tr. 18. At step four, the ALJ found that Plaintiff has
the RFC to perform light work, 4 except that “[she] must avoid climbing ladders, ropes,
or scaffolds and exposure to hazards such as moving machinery or unprotected
heights.” Id. Next, the ALJ determined that Plaintiff has no past relevant work. Tr.
20. Considering Plaintiff’s age, education, work experience and RFC, the ALJ found
that there are jobs that exist in significant numbers in the national economy Plaintiff
could perform. Tr. 21. As a result, the ALJ concluded that Plaintiff had not been
under a disability from January 30, 2004 through the date of the decision. Id.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on May 19, 2016.

Tr. 1-3.

Accordingly, the ALJ’s

December 29, 2014 decision is the final decision of the Commissioner. Plaintiff filed

4

The regulations define light work as work that involves:

lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can
also do sedentary work, unless there are additional limiting factors such as
loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. §§ 404.1567(b), 416.967(b).

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an appeal in this Court on July 20, 2016. Doc. 1. Both parties have consented to the
jurisdiction of the United States Magistrate Judge, and this matter is now ripe for
review. Docs. 17, 19.
III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A);
20 C.F.R. § 404.1505(a). 5 The Commissioner has established a five-step sequential
analysis for evaluating a claim of disability. See 20 C.F.R. §416.920. The Eleventh
Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform [her]
The Court notes that after Plaintiff filed her applications and the ALJ issued the
decision, certain Social Security rulings and regulations have been amended, such as the
regulations concerning the evaluation of medical opinions and evaluation of mental
impairments. See e.g., 20 C.F.R. §§ 404.1520a, 404.1520c and 404.1527 (effective March 27,
2017); SSR 16-3p, 2016 WL 1119029 (March 16, 2016). The Court will apply rules and
regulations in effect at the time of the ALJ’s decision. Green v. Soc. Sec. Admin., Comm’r, —
F. App’x —, 2017 WL 3187048, at *4 (11th Cir. July 27, 2017) (in reviewing the ALJ’s decision,
refusing to apply SSR 16-3p retroactively because “administrative rules are not generally
applied retroactively.”); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)
(“[C]ongressional enactments and administrative rules will not be construed to have
retroactive effect unless their language requires this result.”); 20 C.F.R. § 404.1527 (effective
March 27, 2017) (“For claims filed . . . before March 27, 2017, the rules in this section apply.”).
See also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (holding that when the
Appeals Council denies review of the ALJ’s decision, appellate courts review the ALJ’s
decision as the Commissioner’s final decision).
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past relevant work; and (5) if not, whether, in light of [her] age,
education, and work experience, the claimant can perform other work
that exists in “significant numbers in the national economy.”

Atha v. Comm’r Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner. Id. at
933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court’s review
is limited to determining whether the ALJ applied the correct legal standards and
whether the findings are supported by substantial evidence. McRoberts v. Bowen,
841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390
(1971)).

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a
scintilla, i.e., evidence that must do more than create a suspicion of the existence of
the fact to be established, and such relevant evidence as a reasonable person would
accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a
mere scintilla, but less than a preponderance”) (internal citation omitted).
The Eleventh Circuit has restated that “[i]n determining whether substantial
evidence supports a decision, we give great deference to the ALJ’s fact findings.”

Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black
Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). Where
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the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the reviewer would have reached a contrary result as finder of fact,
and even if the reviewer finds that the preponderance of the evidence is against the
Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991);

Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The district court must
view the record as a whole, taking into account evidence favorable as well as
unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record
to determine the reasonableness of the factual findings). It is the function of the
Commissioner, and not the courts, to resolve conflicts in the evidence and to assess
the credibility of the witnesses. Lacina v. Comm’r, Soc. Sec. Admin., 606 F. App’x
520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)).
The Court reviews the Commissioner’s conclusions of law under a de novo standard
of review. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)
(citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
IV.

Discussion

a. Whether the ALJ properly denied Plaintiff’s request for a Creole
interpreter
Plaintiff is a naturalized citizen of the United States whose native language is
Creole-Haitian. Tr. 32-36. Prior to Plaintiff’s hearing before the ALJ, her counsel
requested that an interpreter be provided to her at the hearing. Tr. 261-62. Plaintiff’s
counsel renewed this request at the hearing. Tr. 32-40. Plaintiff’s counsel indicated
during the hearing that:
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I was [s]peaking in English with the daughter. I got the impression that
[Plaintiff] was trying to answer my questions but that she did not always
understand when I asked my question completely.
Tr. 36. Over the objection of Plaintiff’s counsel, the ALJ decided to proceed without
an interpreter:
Plaintiff’s counsel: Your Honor, [Plaintiff] does not understand English
completely. I don’t –
ALJ: You just told me you could speak some English. Do you speak
English?
Plaintiff: No, it’s so-so. No.
ALJ: You told me you could answer some questions in English, didn’t
you? You’re under oath.
Plaintiff: Okay. . . .
Tr. 40. The ALJ further stated:
ALJ: I don’t think it makes any difference what [Plaintiff’s] first
language is. The question is, and I have explained this in writing to your
law firm several times. In my opinion, it’s what the regulation states
and that’s her ability to communicate in English. That doesn’t mean she
has to be bilingual or born in the United States. Her primary language
might be any language in the world. But the question is, can she
communicate in English? As I understand her, she can answer my
questions. So we’re going to go forward on this and I'll see how she does.
Tr. 33.

The ALJ then began questioning Plaintiff without the assistance of an

interpreter.

Tr. 40.

Plaintiff’s counsel decided to question Plaintiff’s daughter

instead of Plaintiff because of Plaintiff’s limited English. Id.
In his decision, the ALJ further explained his reasons for denying Plaintiff’s
request for an interpreter:
[Plaintiff] stated that she speaks both English and Creole at home. She
attended high school through the tenth grade in Haiti before coming to
the United States. [Plaintiff] became a naturalized U.S. citizen on
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September 28, 1993 (Bl5B/5). [Plaintiff] previously completed training
and was certified as a [Certified Nursing Assistant (“CNA”)]-training
and certification being conducted in the English language. [Plaintiff]
also worked as a cashier at Wal-Mart through the year 2000.
On October 23, 2012 (the day before [Plaintiff’s] hearing), a Title II
application for [Plaintiff] was faxed to the Hearing Office. [Plaintiff’s]
Title II application identified an Alleged Onset Date (AOD) of January
30, 2004 (Bl5B/4). The AOD of January 30, 2004 is one day after the
prior unfavorable decision issued on January 29, 2004, for which the
Appeals Council denied a request for review on September 22, 2004. The
section of [Plaintiff’s] Title II application entitled “Language
Preferences” stated:
Preferred language for speaking: ENGLISH
Preferred language for reading: ENGLISH (Bl5B/5).
...
The undersigned finds that [Plaintiff] is able to communicate in English,
as contemplated by 20 CFR 404.1564 and 416.964. [Plaintiff] has been
in the Unites States in excess of three decades and a naturalized citizen
for in excess of two decades. [Plaintiff] spoke English at her prior
disability hearing without the assistance of an interpreter (resulting in
an unfavorable decision issued on January 29, 2004, for which the
Appeals Council subsequently denied a request for review). [Plaintiff’s]
daughter was present at [Plaintiff’s] prior hearing 6 and testified that an
interpreter was not used (12:27:40). At [Plaintiff’s] prior disability
hearing, [Plaintiff] was represented by an attorney. [Plaintiff] completed
CNA schooling, certification, and licensing in English. [Plaintiff’s]
Consultative Examination (CE) dated April 28, 2009 (a general clinical
evaluation with mental status conducted by a licensed psychologist) was
conducted in the English language. There is no indication in the CE
report that [Plaintiff] exhibited any difficulty in completing the
interview and evaluation process using the English language. The CE
report states that although [Plaintiff’s] daughter drove [Plaintiff] to the
appointment, the daughter did not accompany [Plaintiff] during the
evaluation (B4F/3). The request of [Plaintiff’s] representative dated
October 24, 2012 for a supplemental hearing using an interpreter is
denied.
The ALJ noted in his decision that Plaintiff previously filed an application, which
was denied. Tr. 13. The decision denying Plaintiff’s previous application is not before this
Court.
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Tr. 19-20.
Plaintiff argues that the ALJ violated Plaintiff’s due process rights by denying
her request for a Creole interpreter in violation of the Hearings, Appeals, and
Litigation Law Manual (“HALLEX”) and the Social Security Administration’s (“SSA”)
rules and policies. Doc. 25 at 8-11. Plaintiff argues that she did not receive a full and
fair hearing because her limited understanding of the English language impaired her
ability to testify. Id. at 11-15. The Commissioner responds that HALLEX does not
have the force of law on the Commissioner, and Plaintiff has not shown that the ALJ’s
noncompliance with HALLEX is subject to judicial review. Doc. 29 at 3-7. The
Commissioner further argues that even if HALLEX is binding, it did not require the
ALJ to obtain an interpreter for Plaintiff, and Plaintiff was not prejudiced by the
absence of an interpreter. Id. at 7-10. For the reasons discussed herein, the Court
finds that the ALJ did not fully develop the record by denying Plaintiff’s request for
an interpreter.
It is well established that “[t]he ALJ has a basic duty to develop a full and fair
record.” Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (citing

Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (per curiam)); Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003); Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th
Cir. 1997) (the ALJ has an affirmative duty to develop the record fully and fairly).
The Supreme Court has held that “Social Security proceedings are inquisitorial
rather than adversarial. It is the ALJ’s duty to investigate the facts and develop the
arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-9-

11 (2000). “This obligation exists even if the claimant is represented by counsel, or
has waived the right to representation.” Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)). Thus,
an ALJ must “scrupulously and conscientiously probe into, inquire of, and explore for
all relevant facts.” Cowart, 662 F.2d at 735 (internal quotation marks omitted). In
determining whether the ALJ properly developed the record, the Court is “guided by
whether the record reveals evidentiary gaps which result in unfairness or ‘clear
prejudice.’” Graham, 129 F.3d at 1423 (citing Brown, 44 F.3d at 934-35).
Here, the Court finds that the ALJ did not fully develop the record by
conducting his hearing without the assistance of an interpreter. As evidenced by the
hearing transcript, Plaintiff’s counsel clearly notified the ALJ that Plaintiff needed
the assistance of an interpreter because she has only a limited understanding of
English. Tr. 36. Plaintiff’s counsel indicated Plaintiff did not fully understand her
counsel’s questions in English, and her daughter also testified during the hearing
that Plaintiff could not fully answer questions asked in English. Tr. 36, 62. Plaintiff’s
counsel further clarified during the hearing that his staff, not Plaintiff, indicated
Plaintiff’s preferred language as English on her application for DIB, and the staff
completed the application with the help of Plaintiff’s daughter. Tr. 34. Counsel
stated that indicating Plaintiff’s preferred language as English also helped his staff
avoid having to interact with a Creole-Haitian interpreter from the agency. Tr. 3435; cf. Tr. 19 (noting Plaintiff’s application for DIB indicates her preferred language
as English).

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In addition, before the ALJ began questioning Plaintiff, Plaintiff stated that
her ability to speak English is limited. Tr. 40.

Plaintiff also indicated on her

disability report that she does not speak or understand English, and her preferred
language is Creole-Haitian. Tr. 199. In addition, as Plaintiff discusses, Plaintiff’s
primary physician, Alphonsus Zohlandt, M.D., noted on April 4, 2009 that “because
of [Plaintiff’s] limited English, [she] was not able to explain to [the doctor] what type
of pain and how strong the pain was.” Tr. 359; Doc. 25 at 14-15.
Despite this ample evidence indicating Plaintiff’s limited ability to speak
English, the ALJ chose to proceed without an interpreter, which discouraged
Plaintiff’s counsel from questioning Plaintiff and led to Plaintiff’s incomplete
testimony at the hearing:
ALJ: Okay, [Immigration and Naturalization Service] did not ask you
about your English language abilities when you were naturalized. Is
that correct?
Plaintiff: I can.
...
ALJ: What do you do on an average day? What did you do yesterday?
Plaintiff: I just read and the seizure will shake me.
ALJ: The what now?
Plaintiff: The seizure will shake me yesterday. I just lay down all day.
ALJ: Okay, say it again, a little slower.
Plaintiff: The seizure will shake me. I was lay down all day yesterday.
Because I - ...
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ALJ: Yeah. You laid down all day yesterday. When was the last time
before that you had to lay down all day?
Plaintiff: By 10 o’clock last night, I get up this morning. . . .
Tr. 41-42.
Courts have found that an ALJ did not develop a full and fair record when a
claimant, as here, was unable to provide effective testimony without the assistance
of an interpreter. Tuthill v. Astrue, No. C09-5468BHS, 2010 WL 3195789, at *1-*3
(W.D. Wash. Aug. 10, 2010) (finding the ALJ’s failure to fully develop the record
because “there [was] clearly a lack of consistent effective communication between the
ALJ and [the claimant]” due to the claimant’s limited ability to communicate in
English); Novikov v. Astrue, No: C07-5415BHS, 2008 WL 4162941, at *2-*5 (W.D.
Wash. Sept. 2, 2008) (holding the ALJ did not fully develop the record because “[the
claimant’s] answers generally were incomprehensible and because it was uncertain
he understood the questions posed to him, the ALJ should have required the aide of
the translator who was present at the meeting to ensure creation of a good record.”);

Di Paolo v. Barnhart, No. 01-CV-3123 (JG), 2002 WL 257676, at *5-*6, *8 (E.D.N.Y.
Feb. 8, 2002) (finding that “in failing to provide [the claimant] with an interpreter,
the ALJ in this case neglected to fulfill his duty to develop the factual record by
effectively examining [the claimant]. Without an interpreter, [the claimant] was
unable to communicate her position and was therefore denied her right to a full and
fair hearing.”).

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Although the decisions cited above are not binding on this Court, the Court
finds them persuasive because the facts and legal issues presented in those cases are
substantially similar to those at issue here. Accordingly, the Court finds that the
ALJ failed to develop a full and fair record because Plaintiff, as evidenced by the
discussion above, was unable to testify effectively, and her counsel was deprived of
an opportunity to examine her. See Tr. 40-57; Tuthill, 2010 WL 3195789, at *1-*3;

Novikov, 2008 WL 4162941, at *2-*5; Di Paolo, 2002 WL 257676, at *8. Accordingly,
the Court will remand this case and order the ALJ to fully develop the record with
the assistance of an interpreter.

b. Plaintiff’s remaining issues
Plaintiff also argues that the ALJ’s personal beliefs, legal disputes with the
agency and proceedings involving Plaintiff’s counsel compromised the process in this
case. Doc. 26 at 15-20. Plaintiff further asserts that the ALJ erred by not considering
Plaintiff’s neck injury and borderline intellectual functioning in assessing her RFC.
Doc. 26 at 20-21. Because this case must be remanded for a full and fair development
of the record with the assistance of an interpreter, the Court will direct the ALJ to
reconsider Plaintiff’s neck injury and borderline intellectual functioning. In addition,
the Court will direct the Commissioner to assign this case to a different ALJ on
remand in order to avoid the appearance of bias or prejudice against Plaintiff or her
counsel, although the Court does not make specific findings regarding the ALJ’s
alleged bias in this case.

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V.

Conclusion

Upon review of the record, the undersigned concludes that for the reasons cited
in this Opinion and Order, the ALJ did not develop a full and fair record. Accordingly,
the Court will remand this case to a different ALJ for further proceedings in order to
avoid the appearance of bias or prejudice against Plaintiff or her counsel.
ACCORDINGLY, it is hereby
ORDERED:
1.

The decision of the Commissioner is REVERSED, and this matter is

REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for
the Commissioner to:
A.
B.

Consider and evaluate Plaintiff’s neck injury and borderline
intellectual functioning; and

C.
2.

Develop a full and fair record by conducting a hearing with the
assistance of an interpreter;

Conduct any further proceedings deemed appropriate.

The Commissioner shall reassign this case for rehearing to an

Administrative Law Judge other than Administrative Law Judge Larry J. Butler.
3.

The Clerk of Court is directed to enter judgment accordingly, and close

the file.

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DONE and ORDERED in Fort Myers, Florida on this 29th day of September,
2017.

Copies:
Counsel of record

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