Nottingham v. Commissioner of Social Security
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 2/7/2018. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
MARY L. NOTTINGHAM
Case No: 6:16-cv-2050-Orl-CM
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff Mary L. Nottingham seeks judicial review of the denial of her claim
for a period of disability and disability insurance benefits (“DIB”) 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. 1
Issues on Appeal 2
Plaintiff raises three issues 3 on appeal: (1) whether the residual functional
capacity (“RFC”) findings of the Administrative Law Judge (“ALJ”) are supported by
Both parties have consented to the jurisdiction of the United States Magistrate
Judge. Docs. 13,17.
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.”).
For clarity and judicial efficiency, the Court will discuss Plaintiff’s issues in a
different order than presented in her brief.
substantial evidence and whether the ALJ developed a full and fair record; (2)
whether the ALJ properly assessed Plaintiff’s severe impairments; and (3) whether
substantial evidence supports the ALJ’s assessment of Plaintiff’s credibility.
Summary of the ALJ’s Decision
Plaintiff was 64 years old at the time of the hearing before ALJ Stephen
Calvarese on November 5, 2015. Tr. 60, 64. Plaintiff alleged disability due to pain
in her back, leg and neck and severe depression. Tr. 209. On November 24, 2015,
the ALJ issued a decision finding Plaintiff not disabled from April 5, 2013, the alleged
disability onset date, through the date of the decision. Tr. 19-29. In his decision, at
step two of the sequential process, 4 the ALJ found that Plaintiff had the severe
impairments of degenerative disc disease of the lumber spine and obesity and nonsevere impairments of hypertension, mild chronic kidney disease, an affective
disorder and an anxiety-related disorder. Tr. 21. In doing so, the ALJ found that
Plaintiff had mild limitations in activities of daily living, social functioning and
concentration, persistence or pace, and no episodes of decompensation. Tr. 22-23.
At step three, the ALJ found that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled a listing. Tr. 23. Prior to step four,
the ALJ then determined that during the relevant period Plaintiff had the RFC to
perform light work 5 with additional physical restrictions. Tr. 24. Next, at step
The sequential evaluation process is described in the ALJ’s decision. Tr. 19-21.
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
four the ALJ found that Plaintiff could perform her past relevant work as a
supervisory cashier as generally performed.
As a result, he found
Plaintiff was not disabled. Tr.28-29.
Standard of Review
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
McRoberts v. Bowen, 9 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). 6
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).
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, [a claimant] must have the ability to do
substantially all of these activities. If someone can do light work, [it is
determined] 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).
After the ALJ issued the decision, certain Social Security rulings and regulations
were 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. Hargress
v. Soc. Sec. Admin., Comm’r, 874 F.3d 1284, 1290 (11th Cir. 2017) (declining to apply SSR
16-3p retroactively to the ALJ’s decision); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
208 (1988); 20 C.F.R. § 404.1527 (effective March 27, 2017) (“For claims filed . . . before March
27, 2017, the rules in this section apply.”).
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) (citation
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 or found that the preponderance of the evidence is against the
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); 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).
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)).
a. Plaintiff’s RFC and the ALJ’s development of the record
Plaintiff argues the ALJ failed to adequately consider all “pertinent medical
evidence” when considering Plaintiff’s RFC and to properly consider and weigh the
medical opinions of record, specifically records from Plaintiff’s treating physician,
Morphan Sharma, M.D., and nerve conduction studies ordered by Plaintiff’s
neurologist, Jeffrey S. Corak, M.D.
Doc. 23 at 8-18.
Plaintiff asserts the ALJ had
an affirmative duty to obtain these records and erred by failing to do so.
Commissioner responds Plaintiff has not shown a violation of her due process rights
or demonstrated clear prejudice.
Doc. 24 at 5-9.
Based on the admittedly scant
evidence available to the ALJ and because the additional evidence, if considered, may
have changed the ALJ’s decision, the Court finds that remand is required.
Manuel Crisanto, M.D., was Plaintiff’s primary care physician who treated her
at Deltona Medical Center from 2008 through March 2013 for her medical conditions,
including her depression.
Tr. 213, 333-375.
Plaintiff testified she sought
treatment from Dr. Sharma for her anxiety and other general medical issues
following her treatment with Dr. Crisanto because of insurance coverage issues.
76-81; see Tr. 247, 397-415 (records of colonoscopy and other tests ordered by Dr.
Sharma in from July to November 2014), 430-32 (record of neurologic consultation
referred by Dr. Sharma in October 2015).
At the hearing, Plaintiff’s counsel
informed the ALJ that he anticipated getting “some updates” from Dr. Sharma
“imminently,” and while he expected them in time for the hearing, he did not
anticipate it would take “more than a few days” to receive them. Tr. 63.
Okay. What I normally do is I don’t leave the record open
for any specific length of time. But I will promise you that
if I receive the documents before I decide the case, I’ll
definitely consider them.
Id. The ALJ issued his opinion on November 24, 2015, 19 days after the hearing.
It is undisputed there were no treatment records from Dr. Sharma in the record
before the ALJ nor later before the Appeals Council.
See generally record.
noted, however, there are other medical records from medical providers referred by
See Tr. 247, 397-415, 430-32.
Plaintiff testified she experiences numbness and tingling in her hands when
they are stationary. Tr. 25, 84-85.
She uses a cane when she leaves her home.
In October 2015, Jeffrey S. Corak, M.D conducted a consultative neurological
examination, noting Plaintiff’ complained of a two-year history of numbness and
tingling in her fingers and feet.
Dr. Corak opined that Plaintiff’s
complaints of numbness and tingling in her fingers and her feet “may be the result of
peripheral and/or compressive neuropathies.”
He recommended further
evaluation in one month, after the nerve conduction studies.
There are no
records, however, the nerve studies were completed; nor are there any additional
records from Dr. Corak.
See generally record.
The ALJ discussed Dr. Corak’s
examination, noting Plaintiff had “normal strength and sensation throughout” and
her gait was normal. Tr. 26.
He also acknowledged Dr. Corak’s opinion and that
he had recommended nerve conduction studies.
The ALJ based decision his in part on Plaintiff’s infrequent trips to the doctor
and limited medical evidence of record for the relevant time period.
Id. He further
the record does not contain any opinions from treating or
examining physicians indicating that [Plaintiff] is disabled
or even has limitations greater than those determined in
this decision. The above [RFC] assessment is supported by
the level of care [Plaintiff] has received and the results of
diagnostic testing and fairly benign neurological and
musculoskeletal assessments and examinations of record
as detailed above.
Tr. 27. The problem with this conclusion is the last medical record from Dr. Crisanto
was in March 2013, prior to Plaintiff’s alleged onset date.
testified she began seeing Dr. Sharma after Dr. Crisanto because of insurance
Tr. 79-80. But there are no records from Dr. Sharma in the file.
reports from physicians referred by him, all dated during the relevant time period,
2014 to 2015.
The ALJ was made aware that additional records existed.
78-81. Nonetheless, he issued his opinion without waiting for or requesting those
This was error.
It is well established that the ALJ has a duty to develop a full and fair record.
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, 110-11 (2000).
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
Graham, 129 F.3d at 1423 (citing Brown v. Shalala, 44 F.3d 931,
934-35 (11th Cir. 1995)).
If the record was sufficient for the ALJ to evaluate
Plaintiff’s impairments and functional abilities and does not show the kind of gaps in
the evidence necessary to demonstrate prejudice, there is no error and the
Commissioner’s decision must stand.
See id. Instead, the claimant must make “a
showing of prejudice before [the court] will find that the claimant’s right to due
process has been violated to such a degree that the case must be remanded to the
[ALJ] for further development of the record.”
Brown, 44 F.3d at 935.
claimant cannot show prejudice by speculating that she would have benefitted from
a more comprehensive hearing.”
McCabe v. Comm’r of Soc. Sec., 661 F. App’x 596,
599 (11th Cir. 2016) (citing Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)).
Prejudice is shown when “the ALJ did not have all the relevant evidence before him
or did not consider the evidence in reaching his decision.”
Id. (citing Kelley, 761 F.2d
The Commissioner asserts that the medical record contains treatment and
progress records and examination reports from January 2010 to October 2015, and
“[t]here is no proof that recent records from Dr. Sharma would show Plaintiff is more
limited that what the evidence of record from 2014  already shows.”
Doc. 24 at 6.
The latter records the Commissioner cites to, however, are the tests ordered by Dr.
Sharma and the report of Dr. Corak, ordering additional tests.
Tr. 412-14, 431.
But the ALJ did not have any records of Dr. Sharma before him to evaluate the results
of the tests Dr. Sharma ordered.
Likewise, there is no record of the nerve conduction
studies ordered by Dr. Corak.
Here, although the ALJ was made aware of the missing records, he failed
either to direct Plaintiff to obtain the records or obtain these records on his own before
reaching a decision. Instead, the ALJ relied on the lack of evidence and supporting
documentation to determine that Plaintiff did not suffer from a disability.
This prejudiced Plaintiff.
Kelley, 761 F.2d at 1540. It is indisputable that the
ALJ is required to consider “all relevant evidence of a claimant’s remaining ability to
do work despite his impairments,” when determining a claimant’s RFC.
C.F.R. § 404.1545(a); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
because the ALJ did not review potentially critical evidence during the relevant time
frame, the Court is unable to determine whether the ALJ’s decision is supported by
b. Plaintiff’s remaining arguments
Plaintiff also argues the ALJ erred by failing to properly assess her severe
impairments and her credibility.
Doc. 23 at 6-8, 18-20.
Because this case must be
remanded to obtain and consider records from Drs. Sharma and Corak, the Court will
direct the ALJ to re-evaluate the severity of Plaintiff’s impairments and her
ACCORDINGLY, it is hereby
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:
Obtain and review the records from Morphan Sharma, M.D., and
any nerve conduction studies ordered by Jeffrey S. Corak, M.D.,
consider these records in conjunction with all of Plaintiff’s
medical records and determine the weight to be given to such
evidence and the reasons therefor;
Re-assess the severity of Plaintiff’s alleged impairments;
Re-evaluate Plaintiff’s credibility; and
Conduct any further proceedings deemed appropriate.
The Clerk of Court is directed to enter judgment accordingly, and close
DONE and ORDERED in Fort Myers, Florida on this 7th day of February,
Counsel of record
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