Cooper v. Commissioner of Social Security

Filing 42

MEMORANDUM AND OPINION reversing the Commissioner's decision and remanding with instructions. Signed by Magistrate Judge Monte C. Richardson on 3/27/2017. (MEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
VERNA JEAN COOPER,
Plaintiff,
v.

CASE NO. 3:15-cv-864-J-MCR

ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
_________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and Disability Insurance
Benefits. Plaintiff alleges she became disabled on November 30, 2011. (Tr. 22.)
Plaintiff’s claims were denied initially and on reconsideration. (Tr. 130-34, 14246.) A hearing was held before the assigned Administrative Law Judge (“ALJ”)
on January 10, 2014, at which Plaintiff was represented by an attorney. (Tr. 4294.) The ALJ found Plaintiff not disabled from November 30, 2011, the alleged
onset date, through March 15, 2014, the date of the decision. (Tr. 22-33.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from November 30, 2011 through March 15, 2014. Plaintiff has
exhausted her available administrative remedies and the case is properly before

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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 25, 27.)

the Court. The undersigned has reviewed the record, the briefs, and the
applicable law. For the reasons stated herein, the Commissioner’s decision is
REVERSED AND REMANDED.
I.

Standard of Review
The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “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). Where 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 evidence
preponderates 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 evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
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II.

Discussion
Plaintiff raises two general issues on appeal. Plaintiff argues that the ALJ

erred in failing to develop the record despite evidentiary gaps and missing
records from Plaintiff’s primary care physician, Judella Haddad, M.D., and
Plaintiff’s treating providers for her mental health impairments, Drs. Lockey and
Latteny. Plaintiff also contends that the Appeals Council failed to properly
analyze the new evidence submitted by her. Specifically, Plaintiff submitted a
clinic note dated January 5, 2015 (the “Clinic Note”), interpreting an April 4, 2014
echocardiogram and opining that Plaintiff is a New York Heart Association class
III, denoting severe limitations. (Tr. 13-17.) Plaintiff also attempted to fax
medical records from Drs. Haddad and Latteny to the Appeals Council, but they
never made it into the record. (Tr. 12.)
Defendant contends that Plaintiff failed to meet her burden of proving
disability and that the ALJ did not err in failing to develop the record. Defendant
also argues that the Appeals Council did not err in reviewing the new evidence
because the Clinic Note was not chronologically relevant, as the Appeals Council
determined, and because the alleged missing records were never faxed to the
Appeals Council.
A.

The ALJ’s Decision and Appeals Council Review

The ALJ found that Plaintiff had severe impairments, including congestive
heart failure, Chronic Obstructive Pulmonary Disease, osteoarthritis,
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hypertension, obesity, diabetes mellitus, and Gastroesophageal Reflux Disease.
(Tr. 24.) However, the ALJ found that Plaintiff had non-severe impairments,
including small singer’s vocal cord nodule, Reinkes edema, 20/40 vision, affective
disorder, and anxiety related disorders. (Id.) The ALJ discussed a May 2012
Psychological Evaluation Report from Allison Keiter, Psy.D. in assessing
Plaintiff’s mental impairments as non-severe. (Tr. 24-25, 524-28.) In the report,
Dr. Keiter opined, inter alia, that Plaintiff can follow and understand simple
directions and instructions, and is able to maintain concentration and attention,
but may have occasional difficulties maintaining a regular schedule. (Tr. 25,
527.) In concluding that Plaintiff’s mental impairments were non-severe, the ALJ
afforded Dr. Keiter’s opinions “no significant weight,” explaining that the
“examination records and the longitudinal treatment records do not corroborate
the conclusion of occasional difficulties maintaining a regular schedule,” and
because Plaintiff “routinely denied experiencing any mental health symptoms,”
subsequent to the examination. (Tr. 25.) The ALJ determined that “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 404.1520(d), 404.1525, 404.1526).” (Tr. 27.)
The ALJ then determined that Plaintiff had the residual functional capacity
(“RFC”) to perform light work with limitations. (Id.) As part of this determination,
the ALJ discounted Plaintiff’s credibility, noting that she received only minimal
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treatment for her alleged disabling impairments. (Tr. 31.) The ALJ afforded
weight to one record medical opinion – the opinion of non-examining state
agency medical consultant, David Guttman, M.D. (Id.) The ALJ afforded Dr.
Guttman’s opinions regarding Plaintiff’s suggested limitations “great weight,”
explaining that the opinions are well supported by the record. (Id.)
Continuing on with the evaluation, the ALJ determined that Plaintiff could
perform her past relevant work as a sales agent, underwriter, and receptionist.
(Tr. 32.) The ALJ ultimately concluded that Plaintiff was not disabled. (Id.)
At the hearing before the ALJ, Plaintiff informed the ALJ that her file did not
include recent treatment records from the doctors who treated her subsequent to
her onset date, but prior to the ALJ’s decision. (Tr. 63-68.) Plaintiff explained
that she would have obtained the records prior to the hearing and brought them
to the hearing if she was aware that her attorney did not have the records. (Tr.
68.)
Plaintiff’s attorney apparently did not undertake to represent Plaintiff on
Appeal, and Plaintiff herself timely requested review of the decision on May 15,
2014 (Tr. 18.) Although the record is limited in this regard, it does appear that
Plaintiff’s attorney notified the agency on March 3, 2015 that certain records
(presumably not in the record) were available. (Tr. 5 (addressing letter to
Plaintiff’s attorney and stating that “[i]n the request for review, you told us that
evidence is available from Shan[d]s.”).) Nevertheless, Plaintiff, on her own,
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attempted to fax multiple records to the Appeals Council. (Tr. 12-17.) The
records include a handwritten cover sheet submitted by Plaintiff, indicating that 19
pages were faxed to the Appeals Council. Plaintiff listed on the cover sheet
undated records from Drs. Haddad and Latteny, which apparently were never
received by the agency, as well as the Clinic Note, which was received by the
Appeals Council. On May 11, 2015, the Appeals Council denied Plaintiff’s
request for review. (Tr. 1-4.) In the denial letter, the Appeals Council notified
Plaintiff that it received the Clinic Note dated January 5, 2016, but found it not to
be chronologically relevant.2 (Tr. 2.)
B.

Analysis

Plaintiff argues that the ALJ erred in failing to adequately develop the
record regarding the missing records. Defendant responds that Plaintiff has the
burden of proving disability by submitting her own records and she failed to meet
such burden. Defendant also points out that the ALJ has only a basic duty to
develop the record where, as here, the claimant is represented by counsel.
The claimant bears the burden of proving that he or she is disabled and is
responsible for producing evidence to support his or her claim for disability.
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Nevertheless, because

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The Appeals Council made no mention of the records from Drs. Haddad and
Latteny, as indicated on the cover sheet, (Tr. 1-4) and the Commissioner advised that
the only records that could be located were those contained in the current certified
record. (Doc. 40 at 17, n.17.)
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social security proceedings are inquisitorial, not adversarial, the ALJ has a basic
obligation to develop a full and fair record. Graham v. Apfel, 129 F.3d 1420, 1422
(11th Cir. 1997) (per curiam) (citing Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981)). This obligation requires the ALJ to “investigate facts and
develop the arguments both for and against granting benefits.” Sims v. Apfel,
530 U.S. 103, 111 (2000). Further, this basic duty applies regardless of whether
the claimant is represented by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th
Cir. 1995). In determining whether it is necessary to remand a case for
development of the record, “the Court must balance an ALJ’s duty to develop a
full and fair record against a claimant’s responsibility to prove disability.” Elliott v.
Colvin, No. 12-00682-N, 2013 WL 5289101, at *4 (S.D. Ala. Sept. 18, 2013). In
doing so, the Court considers “whether the record reveals evidentiary gaps which
result in unfairness or clear prejudice.” Id. at 935 (quotation marks and citations
omitted).
The circumstances presented in this case tip the balance in favor of
remand. Although Defendant correctly notes that it is Plaintiff’s burden to prove
that she is disabled, Plaintiff informed the ALJ multiple times during the course of
her hearing that relevant medical records existed, but the ALJ failed to sufficiently
probe the facts regarding the missing records so as to satisfy the duty to present
a full record. For example, with respect to Plaintiff’s mental impairments, the ALJ
inquired as to whether they interfere with Plaintiff’s ability to work, to which
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Plaintiff responded in the affirmative, due to her anxiety. (Tr. 61-63.) The ALJ
inquired into whether Plaintiff was currently being treated for anxiety, to which
Plaintiff responded that she was currently being treated for anxiety by her primary
care physician, Dr. Haddad, as well as being referred to and treated in 2013 by
psychiatrist, Dr. Lockey, and another mental health professional, Dr. Latteny. (Tr.
63.) Plaintiff even testified that she had been treated the month prior to the
hearing and that her therapist told her she had post traumatic stress disorder.
(Tr. 64, 75.) Despite this testimony, the ALJ did not inquire further to obtain
relevant information regarding the doctors, such as the doctors’ background,3
treatment regimen, or opinions with respect to impairments. (Tr. 63-65.)
Additionally, Plaintiff’s attorney informed the ALJ that Plaintiff requested her office
to obtain medical records from at least one provider in the weeks leading up to
the hearing. (Tr. 75 (“Q. Okay. And you had talked to our office a couple of
weeks ago and gave us a fax number to get [Dr. Latteny’s] records, correct? A.
Mm-hmm.”).) However, the ALJ did not inquire as to whether those records were
ever requested or received on Plaintiff’s behalf, and did not inquire as to whether
Plaintiff desired to hold the record open to obtain such documents. See, e.g.,
Boone v. Barnhart, 353 F.3d 203, 208 n.11 (3d Cir. 2003) (noting that the ALJ

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Notably, Plaintiff stated that she had Dr. Lockey’s business card in her purse,
but the ALJ did not ask her to confirm his full name or to provide any information with
respect to his practice. (Tr. 63 (“Q Well, who’s your psychiatrist? Dr. Neil Lockey
[phonetic], or something like that. I have his card in my purse. Q. When did you last see
Dr. Lockey?”).)
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has a duty to follow up on counsel’s inquiry to a witness during a DIB hearing in
order to ensure a complete record) (citations omitted).
The ALJ’s failure to sufficiently probe the facts regarding the missing
mental health records is prejudicial in light of the evidentiary gaps presented in
the record. Namely, in finding Plaintiff’s mental impairments non-severe, the ALJ
discounted the opinions of Dr. Keiter (who prepared the only examining mental
impairment report during the alleged disability period), citing Plaintiff’s
subsequent denial of psychiatric symptoms and Dr. Haddad’s lack of reference to
psychiatric symptoms as reasons for doing so. (Tr. 25.) Medical records from Dr.
Haddad and other treating mental health providers indicating treatment for
anxiety may shed light on the severity of Plaintiff’s mental impairments in a way
that the records before the ALJ cannot. See, e.g., Brown, 44 F.3d at 935 (“The
lack of medical and vocational documentation supporting an applicant’s
allegations of disability is undoubtedly prejudicial to a claim for benefits. We have
no way of knowing whether the evidence missing from the case would sustain
[claimant’s] contentions of her inability to work.”);4 see also Rothfeldt v. Acting
Comm’r of Soc. Sec., No. 15-15005, 2016 WL 60680619, at *3 (11th Cir. Oct. 18,
2016) (“[Evidentiary] gaps exist when omitted medical records are relevant to the

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Although the undersigned recognizes the distinction that the claimant in Brown
was not represented by an attorney, the Eleventh Circuit in Brown recognized the ALJ’s
duty to develop a full and fair record exists “[w]hether or not the applicant is represented
[by counsel].” Brown, 44 F.3d at 934.
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applicant’s claim of disability and the missing evidence might sustain the
contention of an inability to work.”) (citations omitted); Parker v. Colvin, No. 3:13cv-1398(CSH), 2015 WL 928299, at *13 (D. Conn. Mar. 4, 2015) (“The ALJ had a
duty to review the records of plaintiff’s providers for her mental health impairment,
namely, the records from the Morris Foundation, before reaching a conclusion
regarding plaintiff’s mental impairments, particularly when the ALJ reached his
conclusion as to plaintiff’s ‘mild’ limitations in light of a lack of treatment
records.”).
With respect to her physical impairments, Plaintiff testified that Dr. Haddad
opined that certain limitations preclude her from performing work. Specifically,
Plaintiff testified that Dr. Haddad opined that she was limited with respect to
walking and that she could not lift more than five pounds. (Tr. 68-70.) Plaintiff
further testified that her doctors have required her to take breathing treatments at
least three to four times per day. (Tr. 69-70.) Plaintiff informed the ALJ that she
did not know that her file did not include the most recent records from her treating
doctors, or else she would have obtained them herself. (Tr. 67-68 (“Q. If you
could try to remember [when Dr. Haddad] most recently [asked you to consider
filing for disability], that seems like it would be the kind of thing you might
remember. A. Yeah, it should be, but just like my medical records from my ENT
is not. They should have been here. My medical records from Dr. Latteny should
have been here, but they’re not here . . . If I would have known I would have
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brought all that with me. . . Q. Okay. Why – you didn’t know that that’s what we
were going to talk about today? A. I didn’t know that my attorney did not have
[the records].”).) Although Plaintiff had trouble recalling the exact dates of the
recent treatment records from Dr. Haddad, she did reference 2012 as the date
when she thought Dr. Haddad prescribed lifting limitations. (See Tr. 67 (“Q. I’m
looking for a month and a year, when did she most recently [ask you to consider
filing for disability]. A. “I didn’t know I needed all that information, if I did I would
have written it down.”), 70 (“Q. And did [Dr. Haddad] give you a specific weight
instruction, or did she just tell you not to lift anything? A. Not to lift anything over
five pounds. Q. Okay. Do you remember when she told you that? A. It had to be
maybe 2012.”).)
Despite being informed of missing records and limitations prescribed by
treating doctors, the ALJ did nothing further to probe or investigate the facts with
respect to this issue, other than to question Plaintiff’s attorney on the record as
presented. (Tr. 66-71.) Notably, upon learning this information, the ALJ neither
confirmed with Plaintiff’s attorney that the record was complete, nor inquired
whether the record should be kept open to attempt to obtain any missing records.
Cf. Larry v. Comm’r of Soc. Sec., 506 F. App’x 967, 969 (11th Cir. 2013) (“The
ALJ then specifically asked [the plaintiff’s attorney] if he had any additional
exhibits, and his attorney replied that the record was complete. Thus, any
alleged error the ALJ may have made in not obtaining more recent medical
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records was invited.”) (citations omitted); Rease v. Barnhart, 422 F. Supp. 2d
1334, 1343 (N.D. Ga. 2006) (“[H]earings before the Commissioner [] are nonadversarial in nature, and oblige the adjudicator (A[ppeals] C[ouncil] and ALJ) to
ensure that the hearing record is complete.”); Ford v. Astrue, No. 3:09-cv-688-JJBT, 2011 WL 611661, at *3 (M.D. Fla. Feb. 11, 2011) (“One way to develop a
full and fair record is by ‘keeping the record open after the hearing to allow
supplementation of the record.’”) (quoting Tonapetyan v. Halter, 242 F.3d 1144,
1150 (9th Cir. 2001)).
The ALJ’s error in failing to ensure a complete record in this regard was
similarly prejudicial in light of the evidentiary gaps presented in the record.
Although multiple treatment records from Dr. Haddad exist in the record, the last
treatment note from her appears to be from May 2012. The ALJ found Plaintiff
not disabled “through the date of th[e] decision [in this case],” rendered in March
2014 (nearly two years later). (Tr. 32.) Further, despite over 200 pages of
medical records spanning the period between 2008 and 2014, the record
contains no physical RFC assessments by any treating or examining physician.
Cf. Hoehn v. Colvin, No. 14-CV-6401L, 2016 WL 241365, at *3 (W.D.N.Y. Jan.
21, 2016) (finding that the ALJ failed to fully develop the record where although
the record included approximately 300 pages of medical treatment notes from
2008 through 2012, the ALJ did not request any RFC assessments from the
plaintiff’s treating physicians or direct the plaintiff obtain one). Rather, the ALJ
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relied on the opinions of the non-examining state agency consultant, affording
him “great weight.” (Tr. 31.) It is important to note that in analyzing the medical
evidence as a whole, the ALJ found no support for Plaintiff’s alleged disabling
symptoms and limitations because Plaintiff received “only minimal treatment for
the allegedly disabling impairments,” that was routine and conservative in nature
(Tr. 31).
While the Commissioner argues that the Court cannot rely on Plaintiff’s
subjective beliefs with respect to missing records to show error, the holding in
Brown belies such argument. 44 F.3d at 935-36 (“The lack of medical and
vocational documentation supporting an applicant’s allegations of disability is
undoubtedly prejudicial to a claim for benefits. We have no way of knowing
whether the evidence missing from this case would sustain [the claimant’s]
contentions of her inability to work. In the absence of proof to the contrary,
however, we must assume that it does lend credence to her allegations.”)
(emphasis added). Nevertheless, radiology reports in the record from Shands
Jacksonville in August 2013 reveal Dr. Haddad as Plaintiff’s attending physician.
(Tr. 556.) It also appears that Plaintiff attempted to fax at least some of the
missing records to the Appeals Council.5 Cf. Rivera v. Comm’r of Soc. Sec., No.

5

The undersigned recognizes that the records from Drs. Haddad and Latteny
listed on the fax cover sheet are undated. However, the undersigned finds it reasonable
to believe that the records attempted to be faxed by Plaintiff were those not included in
the record in light of Plaintiff’s testimony, as well as the fact that no records exist from
Dr. Latteny.
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6:12-cv-232-Orl-GJK, 2013 WL 557214, at *8 (M.D. Fla. Feb. 14, 2013)
(“Because the ALJ only had a basic duty to develop the record, Claimant bears
the ultimate burden of presenting evidence to support her allegations of disability.
Although the ALJ in this case did not direct Claimant to produce the missing
medical records, Claimant also did not request the ALJ grant her additional time
to provide them. Nor has Claimant attempted to provide the missing records to
the Appeals Council or otherwise attempted to supplement the record.”)
(emphasis added) (internal citations omitted); Ford, 2011 WL 611661 at *4 & n.3
(holding that the ALJ failed to develop the record where the ALJ did not consider
recent medical records that were omitted from the record but submitted to the
Appeals Council). Similarly, it appears Plaintiff’s attorney notified the agency that
certain records were available. (Tr. 5 (addressing letter to Plaintiff’s attorney and
stating that “[i]n the request for review, you told us that evidence is available from
Shan[d]s.”).) Even the Clinic Note faxed by Plaintiff to the Appeals Council
makes multiple references to Dr. Haddad prescribing medications in 2014. (Tr.
15-16.)
Upon review, the Court cannot conclude that the ALJ developed a full and
fair record. As noted by the Eleventh Circuit in Brown, the undersigned is not
suggesting that “a remand is warranted any time a claimant alleges that the ALJ
has neglected to complete the record.” 44 F.3d at 936 n.9. However, based on
the circumstances presented in this case and reviewing the record as a whole,
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the undersigned concludes that remand is warranted here. In light of this
conclusion, the Court finds it unnecessary to consider Plaintiff’s other argument
that the Appeals Council erred in considering the Clinic Note. Jackson v. Bowen,
801 F.2d 1291, 1294 n.2 (11th Cir. 1986). However, the Commissioner will be
directed to reconsider all evidence, including the new evidence made part of the
record, in rendering a decision. See, e.g., Alexander v. Comm’r of Soc. Sec.,
Case No.: 8:13-cv-1602-T-GJK, 2014 WL 4211311 at *3 n.3 (M.D. Fla. Aug. 26,
2014) (citing Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (stating that on
remand the ALJ must reassess the entire record)).
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is REVERSED pursuant to sentence

four of 42 U.S.C. § 405(g) and REMANDED with instructions to the
Commissioner to: (a) develop a full and fair record with respect to the alleged
missing records as discussed herein and (b) conduct any further proceedings
deemed appropriate.
2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
3.

Plaintiff’s counsel is advised that, in the event benefits are awarded

on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the
parameters set forth by the Order entered in Case No.: 6:12-124-Orl-22 (In re:
Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
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1383(d)(2)). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on March 27, 2017.

Copies to:
Counsel of Record

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