Douglas v. Commissioner of Social Security

Filing 18

ORDER adopting 15 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Eric A. Douglas. The Clerk is DIRECTED to enter judgment in favor of Defendant Commissioner of Social Security and against Plaintiff Eric A. Douglas and close the file. Signed by Judge Roy B. Dalton, Jr. on 8/20/2018. (ctp)(JLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERIC A. DOUGLAS,
Plaintiff,
v.

Case No. 6:17-cv-490-Orl-37DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________
ORDER
In the instant action, Plaintiff Eric A. Douglas (“Douglas”) appeals a final decision
of the Commissioner of the Social Security Administration (“Commissioner”) denying
his claims for disability, social security disability insurance benefits and supplemental
security income payments. (Doc. 1.) Douglas seeks remand of his application under
sentence six of 42 U.S.C. § 405(g) for presenting new, noncumulative, and material
evidence. (See Doc. 14, pp. 13–21.) On referral, U.S. Magistrate Judge Daniel C. Irick
issued a Report and Recommendation (Doc. 15 (“R&R”)) recommending the Court affirm
the Commissioner’s final decision. Douglas then filed a partial objection (Doc. 16
(“Objection”)), to which the Commissioner responded (Doc. 17). On de novo review, the
Court finds that the Objection is due to be overruled and the R&R adopted.
I.

BACKGROUND

Douglas first filed claims for a period of disability, disability insurance benefits,
and social security income payments on May 22, 2013, alleging disability beginning April
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30, 2013. (Doc. 11, p. 1 (citing R. 257–66, 287).) 1 His claim was initially denied and denied
again upon reconsideration. (Id. (citing R. 184–91, 197–208).) Douglas then requested a
hearing, which was held on October 15, 2015 in front of an Administrative Law Judge
(“ALJ”) with counsel present. (Id. (citing R. 45–123, 209).) On November 12, 2015, the ALJ
issued an unfavorable decision, concluding Douglas was not disabled. (Id. (citing R. 21–
44).) Douglas requested review of the ALJ’s decision before the Appeals Council of the
Social Security Administration, which was denied. (See R. 12–17, 19.) As such, the ALJ’s
decision finding no disability became the Commissioner’s final decision.
Before the hearing, among other documents Douglas filled out, he completed a
form titled, “Claimant’s Recent Medical Treatment,” where he noted monthly treatment
with Miguel Morales, M.D., a hospitalization at Lakeside Alternatives for attempted
suicide, and treatment at Orlando Foot & Ankle Clinic with Christopher L. Reeves, DPM.
(R. 375–76.) But medical records for Douglas’s treatment with: (1) Dr. Morales dated May
22, 2014 through March 9, 2015, May 18, 2015, June 15, 2015, and October 29, 2015; (2)
Lakeside dated January 4, 2014 and April 1, 2014; and (3) the Orlando Foot & Ankle Clinic
dated October 27, 2014 through September 4, 2015 (collectively, “Records”) were not part
of the administrative record. (Doc. 14, p. 14; see also Docs. 14-1, 14-2, 14-3.)
Armed with this realization, when seeking review from the Appeals Council,
Douglas wrote on his “HA-520-U5” Request for Review form, “I did see Dr. Morales on
5/22/2014 and before 4/20/15 on a monthly basis and am compliant with his orders.”

The Court cites the administrative record as “R.” in reference to the Social
Security Transcript located at Doc. 12.
1

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(R. 19.) His roommate also penned a letter to his counsel about the missing records, which
Douglas’s counsel submitted to the Appeals Council (“Letter”). (R. 383–407.) But neither
Douglas nor his counsel submitted the Records to the Appeals Council for their review,
despite the HA-520-U5’s directives about additional evidence:

(R. 19.) Without receiving the Records, the Appeals Council did not consider them—but
it did consider the Letter and made it part of the administrative record. (See R. 12–17.)
Douglas now seeks remand for consideration of his disability status with these
Records, claiming: (1) they are new, non-cumulative, and material; and (2) good cause
excuses his failure to submit them at the administrative level. (Doc. 14, pp. 13–21.) On
referral, Magistrate Judge Irick did not reach the former issue; rather, he found that
Douglas failed to demonstrate good cause. (Doc. 15, pp. 4–6.) Specifically, he found
unpersuasive Douglas’s arguments that: (1) the ALJ’s duty to develop the record required
him to obtain these Records; (2) the Appeals Council also had a duty to develop the
record, which mandated obtaining the Records; and (3) Douglas’s counsel’s failure to
submit the Records constituted good cause. (See id.) Magistrate Judge Irick recommended
affirming the Commissioner’s decision accordingly. (Id. at 6–7.) Douglas then filed a
partial objection, directed at Magistrate Judge Irick’s second finding that the Appeals
Council did not have a duty to obtain these records. (Doc. 16.) The Commissioner
responded (Doc. 17), so the matter is ripe.

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II.

LEGAL STANDARDS

When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990).
III.

ANALYSIS

Douglas objects to the R&R on the basis that the Appeals Council violated its duty
to develop the record in failing to obtain the Records as part of their review. (Doc. 17.)
Upon de novo review of the record, the Court agrees with Magistrate Judge Irick that the
Appeals Council has no such duty, so overrules the Objection.
“It is well-established that the ALJ has a basic duty 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) now § 416.912(d)(1)). This requires the ALJ to develop a claimant’s complete
medical history for the 12 months preceding the month an application is filed. See id.; see
also 20 C.F.R. § 416.912(d). Douglas argues that the Appeals Council has a corollary duty
to develop the record, relying on Sims v. Apfel, 530 U.S. 103, 110–11 (2000). Not so. Sims
stands for the proposition that a claimant “need not exhaust issues in a request for review
by the Appeals Council in order to preserve judicial review of those issues.” Id. at 112. In
so finding, the Court delineated the roles of the ALJ and the Appeals Council: “the ALJ’s
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duty [is] to investigate the facts and develop the arguments for and against granting
benefits, . . . and the Council’s review is similarly broad.” Id. at 111 (citation omitted). The
Court then explained that the Council’s review is plenary and it reaches decisions after
evaluating the entire record, including new and material evidence. See id. (citations
omitted). So because the Council conducts a sweeping, all-encompassing review, the
Court concluded that a claimant need not point out or develop specific issues for the
Council to review—instead, identifying and fleshing out such issues is the Council’s
“primary responsibility.” See id. at 112. That’s Sims—nothing more. With this, the Court
finds no support for Douglas’s alternative reading that Sims requires the Appeals
Council, in its review process, to obtain records not submitted by the claimant.
Douglas next claims that the Appeals Council’s duty to obtain the Records arises
from “HALLEX,” the Hearings, Appeals and Litigation Law Manual. (Doc. 16, p. 3.)
Putting aside that Douglas did not argue this previously (see Doc. 14), “HALLEX is an
agency handbook not mentioned in § 405(g), so it cannot serve as the basis to remand
[Douglas’s] case.” See Carroll v. Soc. Sec. Admin., Com’r, 453 F. App’x 889, 892 (11th Cir.
2011). 2 Thus, even if the Appeals Council deviated from agency procedures outlined in
HALLEX in place at the time of Douglas’s appeal, such does not constitute “good cause”
for Douglas’s failure to submit the Records. See id.
As it stands, the onus lies with the claimant to submit “new” evidence to the

While unpublished opinions are not binding precedent, they may be considered
as persuasive authority. See 11th Cir. R. 36-2; see also United States v. Almedina,
686 F.3d 1312, 1316 n.1 (11th Cir. 2012).
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Appeals Council for its evaluation. See Enix v. Comm’r of Soc. Sec., 461 F. App’x 861, 863
(11th Cir. 2012) (denying motion to remand because good cause not demonstrated when
medical records existed and claimant “did not submit these documents to the agency,
specifically the Appeals Council, while her administrative appeal was pending,” even
though the records “existed and could have been submitted while [her] administrative
proceedings were ongoing”). Once submitted and accepted, the Appeals Council must
consider the impact, if any, the new evidence has on the disability application. See Mitchell
v. Comm’r of Soc. Sec. Admin, 771 F.3d 780, 784 (11th Cir. 2014). Yet the Appeals Council is
under no such obligation if the claimant just provides notice of additional evidence he
believes would affect the decision. As this is Douglas’s argument for why good cause
excuses his failure to submit the Records to the Appeals Council, it fails. Thus, his
Objection is due to be overruled.
Having disposed of Douglas’s Objection, the Court reviews the remaining,
objection-free portions of the R&R for clear error. See Wiand v. Wells Fargo Bank, N.A.,
No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016); see also Marcort
v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Finding none, the Court concludes
that the remainder of the R&R is due to be adopted.
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Plaintiff Eric A. Douglas’s Objection to Report and Recommendation Dated
June 6, 2018 (Doc. 16) is OVERRULED.

2.

U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation
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(Doc. 15) is ADOPTED, CONFIRMED, and made a part of this Order.
3.

The Commissioner’s decision is AFFIRMED.

4.

The Clerk is DIRECTED to:
a.

Enter judgment in favor of Defendant Commissioner of Social
Security and against Plaintiff Eric A. Douglas; and

b.

Close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 20, 2018.

Copies to:
Counsel of Record

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