Bowes v. Commissioner of Social Security

Filing 16

MEMORANDUM OF DECISION. The Commissioner's final decision is REVERSED and REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. Section 405(g). The Clerk is directed to enter a separate judgment in favor of the Claimant and to close the case. Signed by Magistrate Judge Gregory J. Kelly on 8/5/2014. (PAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
STEPHEN J. BOWES,
Plaintiff,
v.

Case No: 6:13-cv-766-Orl-GJK

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MEMORANDUM OF DECISION
Stephen J. Bowes (the “Claimant”), appeals to the District Court from a final decision of
the Commissioner of Social Security (the “Commissioner”) denying his application for benefits.
Doc. No. 1. Claimant alleges an onset of disability beginning September 21, 2001, and Claimant
is insured for benefits through December 31, 2006. R. 30. Claimant argues that the Appeals
Council erred by failing to review the Administrative Law Judge’s (the “ALJ”) decision because
new and material evidence submitted by Claimant for the first time to the Appeals Council renders
the ALJ’s decision erroneous and contrary to the weight of the evidence currently in the record.
Doc. No. 12 at 16-17. For the reasons set forth below, the Commissioner’s final decision is
REVERSED and REMANDED for further proceedings.
I.

BACKGROUND.
The history of this case is critical to its outcome. On October 16, 2008, after a hearing, a

prior ALJ issued an unfavorable decision. R. 71-82, 940-57. On August 19, 2010, the Appeals
Council granted Claimant’s request for review and remanded the case for further proceedings. R.
63-66. In its remand order, the Appeals Council directed the ALJ to:

Fully develop the record by obtaining all treatment and examination
records for the relevant period at issue; ask the claimant what
available medical records have not been obtained; then obtain the
identified records and obtain identified medical source statements
from the claimant’s treating sources in order to complete the
administrative record. . . .
R. 65 (emphasis added). Thus, the Appeals Council specifically ordered the ALJ on remand to
obtain all treatment records for the relevant time period and to obtain further medical source
statements from Claimant treating sources in order to make a complete record. Id.
Pursuant to 20 C.F.R. §§ 404.977(b) and 416.1477(b) an ALJ “shall take any action that is
ordered by the Appeals Council. . . .” Id. The Eleventh Circuit has characterized such remand
orders as mandates, stating that the lower court, in this case the ALJ, “‘may not alter, amend, or
examine the mandate, or give any further relief or review, but must enter an order in strict
compliance with the mandate.’” Apone v. Commissioner of Social Security, 2011 WL 3055266,
at *1 (11th Cir. Jul. 25, 2011) (describing the standard of review when a claimant alleges an ALJ
failed to comply with Appeals Council’s remand order) (unpublished) (quoting Piambino v.
Bailey, 757 F.2d 1112, 1119 (11th Cir. 1985)).1 Unfortunately, in this case, the ALJ did not comply
with the Appeals Council’s order. See R. 36-37, 45 (ALJ’s decision noting that medical record,
specifically Claimant’s treatment records during relevant time period, is not complete); R. 976
(testifying non-examining expert stating he does not have six years of psychological treatment
notes); R. 977-80 (testifying non-examining expert stating that due to lack of complete treatment
records the medical record is insufficient for him to reach an opinion as to Claimant’s functional
limitations); Doc. No. 15 at 7 (Commissioner’s brief essentially acknowledging that the medical
record is incomplete).

1

In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority.

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II.

ADMINISTRATIVE PROCEEDINGS.
On February 3, 2011, the ALJ held a hearing at which Claimant and a non-examining

psychiatrist, Dr. Larry Benovitz, testified after conducting a review of the incomplete medical
records. R. 974-80.

Dr. Benovitz noted that Claimant testified to undergoing psychological

treatment nearly every three weeks during the relevant time period, but he did not have those
records. R. 976. The ALJ also noted that those treatment notes were not in the record. R. 976 (“It
doesn’t appear that [those treatment notes] are in here completely.”).

Although Dr. Benovitz

repeatedly stated throughout his testimony that the medical records were incomplete (see R. 97578), the following exchanges are significant:
ALJ:

Is the record sufficient for you to determine the Claimant’s
limitations prior to the date last insured?

DR.:

Not on an ongoing basis, no.

...
ALJ:

So far it seems to me that you’ve said it is that the record is
lacking in continuity and insufficient to establish ongoing
symptoms and, or limitation. Would you agree then that the
record is insufficient as to support any of the numerous
[medical opinions] with regard to the severity of the
Claimant’s condition and functional limitations prior to the
date last insured?

DR.:

Yeah.

ALJ:

With that in mind are you able to state at all if the Claimant
had any of the limitations reported prior to the date last
insured?

DR.:

The records do not allow me to make that [INAUDIBLE]. .
..

R. 978-80. Thus, due to the insufficiency of the medical record, Dr. Benovitz was unable to offer
any medical opinion regarding the severity of Claimant’s impairments or the functional limitations
resulting therefrom. Id.

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On April 26, 2011, the ALJ issued a decision finding Claimant not disabled. R. 29-49. In
the decision, the ALJ accurately describes the order of the Appeals Council, including “that the
[ALJ] should fully develop the record by obtaining all treatment and examination records for the
relevant period at issue . . . in order to complete the administrative record.” R. 29. The ALJ also
acknowledges that “Dr. Benovitz asserted that he did not have the [treatment notes] from Dr.
Shapiro, [Claimant’s long-term treating psychologist] and the [ALJ] stated that the record did not
contain many records from Dr. Shapiro, except a page or so of actual psychology notes.” R. 36.
Further, the ALJ states that “the records were incomplete [and] were not sufficient to determine
limitation assessments.” R. 45. Nevertheless, and despite Dr. Benovitz not actually offering a
medical opinion with respect to Claimant’s functional limitations, the ALJ affords “Dr. Benovitz’s
opinion deference over all inconsistent opinions,” (see R. 33) including the opinions of Claimant’s
treating neurologists, pain specialist, psychiatrist, and psychologist (R. 45), all of whom opined
that Claimant has significant exertional and non-exertional functional limitations.2 In short, the
ALJ utilized Dr. Benovitz’s inability to offer an opinion as a basis to reject all of the opinions from
Claimant’s treating physicians and as the foundation for finding Claimant is not disabled. R. 33,
45.

The ALJ found that Dr. Benovitz’s “opinion” was entitled to deference over the opinions of Drs. Jacobson, Shapiro,
Klein, Scharfman, and Newman. R. 45. Dr. Jacobson, a psychiatrist, generally opined in 2009 (R. 789-90) and 2011
(R. 817-24) that Claimant is markedly limited in several domains of functioning. Notably, Dr. Jacobson’s 2011
opinion states that Claimant symptoms and limitations have existed since October 17, 2003. R. 824. Dr. Shapiro,
Claimant’s long-term treating psychologist, provided four (4) medical opinions, all of which indicate that Claimant
has significant functional limitations. R. 205-06, 387-88, 782, 825-31. In his January 11, 2011 opinion, Dr. Shapiro
opined that Claimant’s symptoms and limitations have been present since 2001. R. 831. Dr. Klein, a physician
specializing in pain, opined that Claimant has significant exertional limitations, including in the ability to sit, stand,
and walk. R. 787-88. Claimant’s treating neurologist, Dr. Marc Scharfman, provided three (3) medical opinions
regarding Claimant’s exertional and non-exertional limitations, all opining that Claimant has significant limitations,
which have been present since October 27, 2000 (R. 392, 786). R. 389-93, 394-95, 783-86. On December 12, 2011,
Dr. Richard Newman, a neurologist opined that Claimant has 31 percent total body impairment, a guarded prognosis,
and a reduced functional capacity. R. 396-99.
2

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After the ALJ’s unfavorable decision, Claimant sought review from the Appeals Council.
R. 4-7. Claimant submitted additional evidence, consisting of nine (9) years of treatment notes
from Dr. Shapiro, Claimant’s treating psychologist. R. 842-939. As set forth above, the record
before the ALJ contained four (4) medical opinions from Dr. Shapiro, all of which indicated that
Claimant has significant functional limitations during the relevant time period (see supra n.2). R.
205-06, 387-88, 782, 825-31. As noted by Dr. Benovitz at that hearing (R. 978) and the ALJ at
the hearing and in the decision (R. 36, 976, 980), the failure of the record to contain Dr. Shapiro’s
treatment notes was critical to Dr. Benovitz’s statement that the record was incomplete and
insufficient to determine Claimant’s functional limitations. R. 37. Unfortunately, Dr. Shapiro’s
treatment notes are handwritten and illegible. R. 843-939.
On March 28, 2013, the Appeals Council denied Claimant’s request for review. On May
15, 2013, Claimant appealed the Commissioner’s final decision to the District Court. Doc. No. 1.
Claimant argues that Appeals Council erred by failing review the ALJ’s decision because Dr.
Shapiro’s treatment notes are new, material evidence and they render the ALJ’s decision erroneous
or contrary to the weight of evidence. Doc. No. 12 at 16-17.
III.

ANALYSIS.
It is rare that this Court is presented with an issue that so clearly warrants remand.

Nevertheless, this is such case.3

As set forth below, the Appeals Council erred by failing to review the ALJ’s decision based on new and material
evidence, and the ALJ’s decision itself is fundamentally flawed. These errors are apparent on the face of the record.
Although it did not happen here, this case is an example of an instance where the Commissioner frequently agrees
further administrative review should occur and voluntarily moves for remand. Such decisions promote the interest
the parties and the Court have in obtaining a just, speedy, and inexpensive resolution of proceedings such as this.
When that does not occur the limited resources possessed by Claimant, the Commissioner, and the Court are wasted
and the large backlog of disability cases continues to grow.
3

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Claimants may generally present new evidence at each stage of the administrative
proceedings. 20 C.F.R. §§ 404.900(b), 416.1470(b); Ingram v. Commissioner of Social Security,
496 F.3d 1253, 1261 (11th Cir. 2007). If additional evidence is presented for the first time to the
Appeals Council, it must consider the evidence if it is “new and material” evidence relating “to
the period on or before the date of the [ALJ’s] hearing decision.” 20 C.F.R. §§ 404.970(b),
416.1470(b).4 On appeal, this Court will reverse only if the new and material evidence renders
the ALJ’s denial of benefits erroneous. Ingram, 496 F.3d at 1262.
Setting aside for the moment whether it was proper, the ALJ relied upon Dr. Benovitz’s
opinion that the record was incomplete and insufficient (primarily because it did not contain any
of Dr. Shapiro’s treatment records) to reject the numerous medical opinions of Claimant’s treating
physicians and as the basis for the ALJ to conclude that Claimant did not have significant
functional limitations. See R. 37 (“Dr. Benovitz opined that the records were incomplete, were
not sufficient to determine limitation assessments, and any limitation assessments were not
supported by the medical evidence of record.”), 45 (ALJ giving great weight to Dr. Benovitz’s
opinion and giving it deference over all other medical source opinion that found significant
functional limitations). The ALJ’s decision concludes that Claimant does not have significant
functional limitations (despite the numerous opinions to the contrary) because the record lacks
treatment notes. The Claimant then provided nine (9) years of treatment records from Dr. Shapiro
to the Appeals Council. R. 842-939. Thus, the core of the ALJ’s decision and Dr. Benovitz’s
opinion, i.e., that the record is incomplete and insufficient to determine if Claimant has any
significant functional limitations due to the lack of treatment records, is now eviscerated.

Dr. Shapiro’s treatment records span nine (9) years, including the relevant time period. R. 842-939. They were not
in the record before the ALJ and they are central to the ALJ’s decision. Thus, the Court easily finds that they are new
and material.
4

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Accordingly, the new and material evidence presented to the Appeals Council plainly renders the
ALJ’s decision erroneous and remand is required. See Ingram, 496 F.2d at 1262.5
The Appeals Council’s error was precipitated by two additional and critical errors by the
ALJ. First, the ALJ failed to comply with the Code of Federal Regulation when the ALJ did not
take the specific action ordered by the Appeals Council in its original remand -- to obtain “all
treatment and examination records for the relevant period at issue.” R. 65.

By doing so, the

record before the ALJ was plainly incomplete and insufficient to reach an assessment of the
Claimant’s functional limitations, which warranted review by the Appeals Council.
Second, the ALJ’s reliance on Dr. Benovitz’s opinion to reject all other medical opinions
and to find that Claimant did not have significant functional limitations is flawed. In Thornton v.
Astrue, 356 F. App’x. 243, 249 (11th Cir. 2009), the Eleventh Circuit stated:
The administrative law judge also erred by basing his decision on
Rubin's inconclusive opinion. Rubin found that the evidence was
insufficient to find Thornton disabled because “there [were] no
[records] covering [patient's] treatment, functioning or meds.”
Rubin's opinion might have been different had she reviewed those
records. The burden rests with the administrative law judge “to
develop a full and fair record.” Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003) (citing 20 C.F.R. § 416.912(d)).
Id. at 249. Thus, the Court is persuaded that it is error for the ALJ to base the decision in this case
on Dr. Benovitz’s opinion that there were insufficient and incomplete medical records to make a
determination about Claimant’s functional limitations when the Appeals Council had specifically
directed the ALJ to obtain those treatment records prior to reaching a decision.

While Dr. Shapiro’s treatment notes are illegible, that is not a valid reason to affirm. R. 842-939. When critical
treatment notes are illegible, it is the Commissioner’s responsibility to obtain clarification, “be it a new or more
detailed report, rendered either orally or in a more legible written format (printed or typewritten).” Krape v. Astrue,
2009 WL 4892337, at *11 (S.D. Fla. Dec. 16, 2009) (citing 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1)).
5

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IV.

REMEDY.
Claimant requests a remand for an award of benefits. Doc. No. 12 at 25. A remand for an

award of benefits is appropriate only in two narrow circumstances: (1) where the Commissioner
has already considered all of the essential evidence and it is clear that the claimant is disabled
beyond a doubt; and (2) where the claimant has suffered an injustice. Davis v. Shalala, 985 F.2d
528, 534 (11th Cir. 1993); Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982).

As the

Commissioner has clearly not considered all of the essential evidence, the first avenue for an award
of benefits is inappropriate. Thus, the Court must determine whether Claimant has suffered an
injustice.
In Walden, the Eleventh Circuit held that “[d]ue to the perfunctory manner of the hearing,
the quality and quantity of the errors pointed out, and the lack of substantial evidence to support
the ALJ’s decision, the [Eleventh Circuit] is of the opinion that the [claimant] has suffered an
injustice.” Id. at 840. This case has been proceeding before the Commissioner since March 22,
2006, over eight (8) years since Claimant filed his application for benefits. R. 140. Although this
is the first time the case has been presented to the District Court, the Commissioner has erred at
every stage of the proceedings. The ALJ’s decision presently before the Court is fatally flawed
and should have been reviewed by the Appeals Council. While a decision on the merits of
Claimant’s claim has been unnecessarily delayed, the Court can not determine that Claimant has
suffered an injustice because medical records central to that claim have never been properly
evaluated and weighed. Therefore, the Court finds that it must remand for further proceedings.
On remand, the Commissioner should take all reasonable and necessary steps to expedite the
proceedings, including but not limited to re-contacting Dr. Shapiro to obtain clarification of his

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illegible treatment notes.

See Krape v. Astrue, 2009 WL 4892337, at *11 (S.D. Fla. Dec. 16,

2009) (citing 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1)).
V.

CONCLUSION.
For the reasons stated above, the case must be remanded to the Commissioner for further

proceedings.6 Accordingly, it is ORDERED that:
1.

The final decision of the Commissioner is REVERSED and REMANDED for
further proceedings pursuant to sentence four of Section 405(g); and

2.

The Clerk is directed to enter judgment in favor of the Claimant and against the
Commissioner, and to close the case.

DONE and ORDERED in Orlando, Florida on August 5, 2014.

Electronic copies to:
Counsel of record
Copies by Regular U.S. Mail to:
The Honorable Denise Pasvantis
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Office
Suite 1550 New River Center
200 E. Las Olas Boulevard
Fort Lauderdale, FL 33301

6

Claimant also argues that the ALJ erred by: misstating the opinion and evaluation findings of Dr. Patrick Gorman;
lacking good cause to reject or give little weight to the opinions of Claimant’s treating physicians; and failing to
demonstrate substantial evidence supporting the ALJ’s credibility determination. Doc. No. 12 at 17-26. The final
decision must be remanded and, therefore, it is unnecessary to reach those arguments at this time because on remand
the ALJ must reassess the entire record. See Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983).

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