Alzamora v. Commissioner of Social Security
Filing
34
MEMORANDUM OPINION AND ORDER. The administrative decision is REVERSED and the matter is REMANDED under sentence four of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment and close the case. Signed by Magistrate Judge David A. Baker on 12/22/2014. (LAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LEONORILDA ALZAMORA,
Plaintiff,
-vs-
Case No. 6:13-cv-1338-Orl-DAB
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
______________________________________
MEMORANDUM OPINION AND ORDER
This cause came on for consideration without oral argument1 on review of the Commissioner’s
decision to deny Plaintiff’s applications for a period of disability, Social Security Disability Insurance
(“SSDI”) and Supplemental Security Income (“SSI”) benefits. For the following reasons, the
administrative decision is REVERSED and the matter is REMANDED for additional proceedings
in strict compliance with this Order.
Procedural History
The course of this case has been exceptionally long and complex. For present purposes, the
following history is pertinent.
The 2004 applications
Plaintiff protectively filed applications for a period of disability, SSDI and SSI benefits on
January 23, 2004, alleging disability commencing on January 6, 2003 (R. 14). The claims were denied
initially and upon reconsideration. Plaintiff requested a hearing which was held before an ALJ (R.
14-15). On January 22, 2007, the ALJ found Plaintiff not disabled and issued a notice of unfavorable
decision (R. 15). Plaintiff requested review of the hearing decision, and the Appeals Council denied
1
Although Plaintiff requested argument, error is plain on the face of the record, obviating any need for argument.
the request for review. Plaintiff appealed that decision to the United States District Court for the
District of New Jersey and on December 15, 2008, that Court reversed and remanded Ms. Alzamora’s
case for further administrative proceedings. The Appeals Council then entered an order remanding
her case back to an ALJ.
The 2007 applications
While Plaintiff’s appeal was pending, she filed new applications with the Social Security
Administration on October 30, 2007, alleging disability commencing on January 23, 2007 (R.
138-142). The claims were denied initially and upon reconsideration (R. 87-92, 95-100). Plaintiff
requested a hearing before an ALJ. While this request was pending, the Appeals Council remanded
the original application back to an ALJ for further proceedings (R. 14). The Appeals Council
consolidated the claims and ordered the ALJ to issue a new decision on the associated claims.
A second hearing was held on August 27, 2009, before ALJ Joel H. Friedman (R. 25-82,
427-502). On March 18, 2010, the ALJ issued his notice of unfavorable decision (R. 11-23, 531-543).
Plaintiff requested review of the hearing decision. On May 9, 2011, the Appeals Council denied the
request for review (R. 1-5, 526-530). Plaintiff appealed that decision to the United States District
Court for the Middle District of Florida, and on March 1, 2012, this Court reversed and remanded Ms.
Alzamora’s case for further administrative proceedings (R. 523-524).
The 2010 applications
While Plaintiff’s appeal was pending, she filed new applications with the Social Security
Administration, alleging disability commencing on March 19, 2010 (R. 621-630). While this
application round was pending at the hearing level, the Appeals Council remanded the original
application back to an ALJ for further proceedings (R. 514-518). The Appeals Council consolidated
the claims and ordered the ALJ to issue a new decision on the associated claims (R. 517).
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Plaintiff appeared at her third administrative hearing by video teleconferencing before ALJ
William H. Greer on April 5, 2013 (R. 406, 945-978). On June 27, 2013, the ALJ issued his notice
of unfavorable decision (R. 403-426). Plaintiff waited sixty-one days for the ALJ’s decision to
become the final decision of the Commissioner and this appeal followed (Doc. 1).
The parties consented to the jurisdiction of the United States Magistrate Judge. The matter
has been fully briefed and is ripe for review pursuant to 42 U.S.C. § 405(g).
Nature of Claimed Disability
Plaintiff claims she has been disabled due to back pain, hypothyroidism, depression, and
migraine headaches (R. 155).
Summary of Evidence Before the ALJ
At the time of the current decision under review, Plaintiff was 44 years old (R. 138, 403), with
a high school education, and past relevant work experience as an assistant manager at an insurance
company, order entry supervisor in the garment industry, and babysitter (R. 156, 160).
The medical evidence relating to the pertinent time period is detailed in the ALJ’s opinion.
In the interest of privacy and brevity, it will not be repeated here, except as necessary to address
Plaintiff’s objections. In addition to the medical records of the treating providers, the record includes
the testimony of both Plaintiff and a Vocational Expert (“the VE”); the opinions of consultative
examiners and state agency consultants; and written forms and reports completed by Plaintiff.
By way of summary, the ALJ determined that Plaintiff had the following severe impairments:
disorder of spine, migraine headaches, obesity, gastritis, history of carpal tunnel syndrome and
fibromyalgia (20 CFR 404.1520(c) and 416.920(c) (R. 409); and the record supports this uncontested
finding. The ALJ found that the claimant did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
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1 (R. 411-412). The ALJ then determined that Plaintiff had the residual functional capacity (“RFC”)
to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she is able
to sit up to 7 hours per day but would need to get up once every hour; stand or walk
for up to 3 hours in an 8-hour workday for up to 15 minutes at a time. She can lift up
to 10 pounds occasionally and up to 5 pounds frequently. She is able to occasionally
bend, stoop, crouch, kneel or climb stairs but is precluded from crawling or climbing
ladders, ropes or scaffolds. She is able to reach occasionally above shoulder level. She
is not [to] work around unprotected heights; no work around moving or hazardous
machinery or driving or [sic] motorized vehicles.
(R. 412).
The ALJ determined that Plaintiff could return to her past relevant work (R. 420), and
therefore, the ALJ found Plaintiff was not disabled (R. 421).
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the correct
legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings
are supported by substantial evidence, 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., the evidence must do more than merely
create a suspicion of the existence of a fact, and must include 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).
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
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as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of
factual findings).
Issues and Analysis
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520,
416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 29 C.F.R.
§ 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments
which significantly limit his physical or mental ability to do basic work activities, then he does not
have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s
impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not prevent him from
doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s
impairments (considering residual functional capacity, age, education, and past work) prevent him
from doing other work that exists in the national economy, then he is disabled. 20 C.F.R.
§ 404.1520(f). The plaintiff bears the burden of persuasion through step four, while at step five the
burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, Plaintiff raises due process concerns regarding the completeness of the record and
challenges the ALJ’s findings at steps one through three. Specifically, Plaintiff contends that: 1) the
Commissioner violated her right to an in person hearing by holding the hearing via video-conference,
despite her objection; 2) the ALJ failed to comply with the District Court’s Remand Order and the
Appeals Council’s Remand Order to compile a complete record; 3) the ALJ failed to apply the correct
legal standards to the opinion of Plaintiff’s treating physician, Dr. Stockhammer; and 4) the ALJ
erroneously found that Plaintiff engaged in substantial gainful activity from January 1, 2004 through
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August 31, 2012. Upon review, while the Court does not agree with all of these contentions, it
nonetheless finds that errors of law are present and remand for additional proceedings is required.
The Request for an In-person Hearing
Plaintiff contends that she objected in writing to appearing by video-teleconferencing and
requested an in person hearing before the ALJ, but “[f]or some reason, the record submitted by the
Commissioner does not include the request which was received by the Jacksonville hearing office on
February 21, 2013.” (Doc. 22, p. 11). Plaintiff attaches a copy of the letter to her brief. Plaintiff
claims her due process rights were violated as the ALJ “ignored” her request and “required” her to
appear by video conference, in violation of 20 C.F.R. §404.936(e).2 Plaintiff argues that this is “not
an isolated instance” and claims that there are several other pending cases where requests for in
person hearings were denied. Plaintiff seeks a holding that the failure to give her the in person
hearing she requested is a violation of her due process rights.
For her part, the Commissioner does not dispute that Plaintiff sent a letter to the Jacksonville
office, but notes that: “This letter is not contained in the certified administrative record” (Doc. 26, p.
3, fn. 2). The Commissioner surmises that: “This letter may not have reached the ALJ, because on
March 22, 2013, a reminder notice was sent to Plaintiff and her representative that instructed Plaintiff
to notify the hearing office of her plans to attend the hearing (R. 584).” Even so, the Commissioner
asserts that any error is harmless, as the proceedings were full and fair and no prejudice resulted. It
seems that the Commissioner seeks a holding that a showing of prejudice must be made before a Court
2
20 C.F.R. § 404.936(e) which deals with the “Time and Place for a Hearing before an Administrative Law Judge”
provides in pertinent part:
Good cause for changing the time or place. If you have been scheduled to appear for your hearing by video
teleconferencing and you notify us as provided in paragraph (d) of this section that you object to appearing
in that way, the administrative law judge will find your wish not to appear by video teleconferencing to be
a good reason for changing the time or place of your scheduled hearing and we will reschedule your hearing
for a time and place at which you may make your appearance before the administrative law judge in person.
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can determine that a claimant's rights of due process were violated to such a degree that the case
should be remanded for reconsideration and further development of the record.
The Court finds that the state of this record does not provide an appropriate foundation for
reaching the ultimate question of whether or not an ALJ must comply with 20 C.F.R. § 404.936(e),
as there is no showing that the ALJ even knew that a request for an in person hearing had been made.
If, as the Commissioner contends, the ALJ never received the request (a conclusion supported by the
absence of the letter from the administrative record), the ALJ could not have reviewed it. The record
does not support a finding that the ALJ “ignored” a request he did not receive, let alone that this was
part of a systemic plan to disregard all similar requests.
Moreover, the issue of whether the ALJ’s “error” was harmless does not arise from these facts.
There is no evidence that the ALJ denied the request. Rather, the ALJ apparently did not know the
request had been made. In such a scenario, the ALJ could not have erred as he did not have the
opportunity to err. The Court cannot issue advisory opinions and the limited scope of this Court’s
review precludes a presumption that, if the ALJ had known about the request, he would have denied
it. Put simply, the Court cannot opine as to whether an error that did not occur would be harmless.
The only conclusion supported by this record and the parties’ papers is that Plaintiff made a
written request/objection to the video-conference hearing which, for some unknown reason, was not
received or considered by the ALJ. As the regulation contemplates that the ALJ will act upon such
a request, the appropriate remedy is to remand the matter to allow the ALJ to consider (and act upon)
the request in the first instance.
The Contention that the Record is Incomplete
Remand is also warranted due to the ambiguous state of the administrative record. As set forth
in the parties’ briefs, the matter was previously remanded for additional evaluation and for
compilation or reconstruction of a complete record, including the records pertaining to the 2004
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claims, which could not be located at that time (R. 523-524). The Appeals Council noted the “missing
file(s),” and directed: “Upon remand, the Administrative Law Judge will reconstruct the missing
portions of the January 23, 2004 file(s). He will compile a complete record with all evidence formally3
considered.” (R. 516-517).
The ALJ did refer to a “reconstructed paper file” in his decision (R. 414), noting “the attached
paper file has reconstructed missing portions of the January 23, 2004 file” (R. 421). There is no paper
file identified as such attached to the opinion, however. According to Plaintiff, the “attached paper
file” the ALJ referred to was entered into the administrative record as Exhibit 18F (R. 803-942),
although the Court cannot find a basis for this assertion. Assuming the Plaintiff to be correct, these
records are duplicates of medical exhibits that were already entered into the record.
Plaintiff contends that the ALJ failed to reconstruct the missing portions of the file in that the
administrative transcript “does not contain any information related to Ms. Alzamora’s 2004
applications, including the ALJ’s decision, the Appeals Council’s denial and the New Jersey District
Court’s decision.” (Doc. 22, p. 19). In response to this assertion, the Commissioner filed a
supplemental transcript (Doc. 24, 25). In her brief, the Commissioner explained:
The transcript citations to the documents relating to Plaintiff’s 2004 applications are
now contained in the second supplemental transcript, certified on April 9, 2014. Doc.
24. Plaintiff’s 2004 application for disability insurance benefits can be found at
transcript pages 1050-1052, and the initial and reconsideration denials at pages
1021-1022. Plaintiff’s March 2005 hearing request is at transcript 1035, and the
hearing decision is at transcript pages 1016-1020. Plaintiff’s request for review of the
hearing decision is at transcript page 1011, and the Appeals Council denial of her
request is at transcript pages 1008-1010. The December 15, 2008, remand order from
the United States District Court for the District of New Jersey is at transcript pages
998-999, and the Appeals Council order implementing the court’s order is at transcript
pages 994, 996-997.
(Doc. 26, p. 2 emphasis added).
3
The Court suspects that this may be a typographical error in that the word “formerly” fits the context of the sentence.
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The Commissioner contends that Plaintiff’s argument “has been rendered moot because the agency
has produced the documents in question, which are now contained in the second supplemental
transcript.” (Doc. 26, p. 6 emphasis added).
The Commissioner admits that the missing portions of Plaintiff’s 2004 file were not included
in the transcript that was certified on November 6, 2013, but are “now” contained in the second
supplemental transcript, certified on April 9, 2014 (Doc. 26, p. 11). This, of course, begs the question
as to whether or not the ALJ had the 2004 records before him at the time of his decision. In the
November 6, 2013 certification accompanying the initial record filed in this matter, the Chief of the
Court Case Preparation and Review Branch certified that the filed record “constitute[s] a full and
accurate transcript of the entire record of proceedings relating to this case” (Doc. 16, p. 1). If this
is so,4 and the 2004 records are not included in that “entire record,” it appears that the ALJ did not
comply with the remand Orders.5
Although the records are “now” produced, that does not moot the matter. The material was
to be reconstructed for the use and consideration of the decision-maker ALJ, not for the convenience
of the Court on review. As it appears that the ALJ did not compile or reconstruct the complete record,
as directed, it stands to reason that he could not have considered or reviewed these materials. As such,
the administrative decision must be reversed and the matter remanded for consideration of the
4
As a practical matter, it appears that this is not so, as the Commissioner filed a Supplemental transcript, consisting
of the Transcript of the Oral Hearing, dated April 5, 2013, “which was omitted from the administrative record.” (Doc. 17, p.
1).
5
The supplemental certification notes only that the “material annexed hereto” are true and exact copies, and “[s]uch
material further supplements the administrative records previously certified by the undersigned on November 6, 2013 and
November 26, 2013.” (Doc. 25, p. 1).
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applications in the context of the completed record.6 This conclusion renders consideration of the
remaining contentions premature, if not moot.7
Conclusion
For the reasons set forth above, the administrative decision is REVERSED and the matter is
REMANDED under sentence four of 42 U.S.C. § 405(g), for: 1) consideration of and action on the
Plaintiff’s objection/request to appear in person at hearing; 2) consideration of the applications in the
context of the entire record, including the newly supplemented materials and any in person hearing
that may be held; and 3) such other proceedings as may be deemed necessary and proper by the
Commissioner in order to arrive at a final administrative decision. In view of the extraordinary length
of time the proceedings have taken to date, the Commissioner is directed to use all reasonable efforts
to expedite the conclusion of this matter.
The Clerk is directed to enter judgment accordingly, terminate all pending matters, and close
the file.
DONE and ORDERED in Orlando, Florida on December 22, 2014.
David A. Baker
DAVID A. BAKER
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
6
Although Plaintiff urges the Court to reverse for an award of benefits, such is not warranted here. Remand for an
award of benefits is appropriate only where the Commissioner "has already considered the essential evidence and it is clear that
the cumulative effect of the evidence establishes disability without any doubt." Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.
1993). That standard is not met here.
7
As a practical matter, the Court notes that any error or ambiguity in evaluating the treating physician’s opinion can
be rectified or clarified on remand.
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