Reid v. Social Security
ORDER: The decision of the Commissioner be VACATED, and Plaintiff's appeal be REMANDED for further administrative proceedings consistent with this opinion. Signed by Judge Brian A. Jackson on 3/31/2021. (EDC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LARISSA MARIE REID
COMMISSIONER OF THE SOCIAL
Plaintiff Larissa Marie Reid seeks judicial review of a final decision of the
Commissioner of the Social Security Administration (“Commissioner”) pursuant to
42 U.S.C. § 405(g) of the Social Security Act. (Doc. 1). Having found all the procedural
prerequisites met (Tr. 1–3), the Court has properly reviewed Plaintiff’s appeal. See
42 U.S.C. § 405(g); 20 C.F.R. § 404.981 (“The Appeals Council’s decision, or the
decision of the administrative law judge if the request for review is denied, is binding
unless you . . . file an action in Federal district court . . . .”).
For the reasons provided herein, the Court ORDERS that the decision of the
Commissioner be VACATED, and Plaintiff’s appeal be REMANDED for further
administrative proceedings consistent with this opinion.
Plaintiff began receiving Supplemental Security Income Benefits1 as a child on
See 20 C.F.R. § 416.110 (“The basic purpose underlying the supplemental security income
program is to assure a minimum level of income for people who are . . . disabled and who do
not have sufficient income and resources to maintain a standard of living at the established
Federal minimum income level.”).
January 1, 2004,2 and those benefits continued throughout her childhood. (Tr. 17, 50).
After she turned 18, however, the Commissioner redetermined Plaintiff’s eligibility
20 C.F.R. § 416.987(b). (Tr. 234, 308) (born Oct. 6, 1996; reached her eighteenth
birthday on Oct. 6, 2014). The redetermination found Plaintiff’s “allegations of
seizures and autism” were not disabling as of May 7, 2015. (Tr. 17, 48, 52). Plaintiff
appealed the unfavorable redetermination (Tr. 52, 55–57, 69–71, 72–75) until her
claim was eventually denied by an Administrative Law Judge (“ALJ”). The ALJ held
a 15-minute administrative hearing (Tr. 41–47) before issuing an unfavorable
decision on Plaintiff’s case on July 27, 2018. (Tr. 17–27). Plaintiff’s request for review
of the ALJ’s decision was denied by the Appeals Council on March 19, 2019. (Tr. 1–
3). The ALJ’s decision rested as the Commissioner’s final decision when the Appeals
Council denied Plaintiff’s request for review. See 20 C.F.R. § 404.981.
STANDARD OF REVIEW
This Court’s review of the Commissioner’s decision is limited to an inquiry of
whether there is substantial evidence to support the findings of the Commissioner
and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson
v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994).
Substantial evidence “means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 (citation
omitted). Substantial evidence will not be found, however, when “there is a
The record does not clearly indicate the medical impairments on which Plaintiff’s childhood
benefits were based.
conspicuous absence of credible choices or no contrary medical evidence.” Hames v.
Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quotations omitted).
Conflicts in the evidence are for the Commissioner “and not the courts to
resolve.” Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not
reweigh the evidence or try the case de novo. See, e.g., Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (“This is so because substantial evidence is less than
a preponderance but more than a scintilla.”). If the Commissioner’s decision is
supported by substantial evidence, then it is conclusive and must be upheld. Estate
of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000). But if the Commissioner fails
to apply the correct legal standards or fails to provide a reviewing court with a
sufficient basis to determine that the correct legal principles were followed, it is
grounds for reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).
In determining disability, the Commissioner (through an ALJ) works through
a five-step sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden
is on the claimant throughout the first four steps to prove disability. If the claimant
is successful in sustaining his or her burden at each of the first four steps, the burden
shifts to the Commissioner at step five. See Muse v. Sullivan, 925 F.2d 785, 789
(5th Cir. 1991) (explaining the five-step process). First, the claimant must prove he
or she is not currently engaged in substantial gainful activity. 20 C.F.R.
§ 404.1520(b); 20 C.F.R. § 416.920(b). Second, the claimant must show that his or her
impairment is “severe” in that it “significantly limits your physical or mental ability
to do basic work activities . . . .” 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). At
step three, the ALJ must conclude that the claimant is disabled if he proves that his
or her impairments meet or medically equal one of the impairments contained in the
Listing of Impairments. See 20 C.F.R. § 404.1520(d) (step three of sequential process);
20 C.F.R. § 416.920(d) (same); 20 C.F.R. pt. 404, subpt. P, app’x 1 (Listing of
Impairments). Fourth, the claimant bears the burden of proving that he or she is
incapable of meeting the physical and mental demands of his or her past relevant
work. 20 C.F.R. § 404.1520(f); 20 C.F.R. § 416.920(f).
If the claimant is successful at all four of the preceding steps then the burden
shifts to the Commissioner to prove, considering the claimant’s residual functional
capacity, age, education, and past work experience, that he or she is capable of
performing other work. 20 C.F.R § 404.1520(g)(1). If the Commissioner proves other
work exists that the claimant can perform, the claimant is given the chance to prove
that he or she cannot, in fact, perform that work. Muse, 925 F.2d at 789.
Here—after only a 15-minute hearing, in which Plaintiff was not represented
by counsel—the ALJ made the following determinations, relying heavily on Plaintiff’s
Step 1: Plaintiff turned 18 years old on October 6, 20143 and while she
was eligible for supplemental security income benefits as a child, “she
was found no longer disabled as of May 7, 2015, based on a
redetermination of disability under the rules for adults . . . .”
Step 2: Plaintiff suffered from the following severe impairments during
the relevant period4—seizure disorder, autism spectrum disorder, social
The ALJ incorrectly states that Plaintiff turned eighteen years old on October 5, 2014. (Tr.
18). However, Plaintiff celebrated her eighteenth birthday on October 6, 2014. (Tr. 234, 308).
The relevant period of disability is between May 7, 2015 (when Plaintiff’s disability was
found to have ceased), and July 27, 2018 (the date of the ALJ’s unfavorable decision).
anxiety disorder and specific learning disorder.
Step 3: Plaintiff did not meet or medically equal any listed impairment,
including Listing 11.02 (seizures), Listing 12.02 (neurocognitive
disorders), Listing 12.06 (anxiety disorders), Listing 12.10 (autism
spectrum disorder), and Listing 12.11 (specific learning disorder).
As for the severity of Plaintiff’s mental impairments, the ALJ assessed
the following limitations under Listing 12.00’s Paragraph B5 criteria: no
limitation in understanding, remembering, and applying information;
no limitation in interacting with others; a moderate limitation in
concentrating, persisting, and maintaining pace; and a moderate
limitation in adapting and managing oneself.
RFC: Plaintiff retained the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels but with the
following non-exertional limitations: the claimant is limited to
understanding, remembering, and carrying out no more than semiskilled work activity. She cannot perform a job that requires multitasking. She can work at a low-stress job that requires only occasional
decision making and occasional changes in the work setting. She should
avoid even moderate exposure to hazards, such as dangerous machinery
or unprotected heights. Finally, she cannot climb ladders, ropes, or
Step 4: Plaintiff had no past relevant work.
Step 5: Considering Plaintiff’s age (younger individual), education (high
school), work experience (no past relevant work), and RFC, a significant
number of jobs existed in the national economy that Plaintiff could
The Paragraph B of each mental disorder categorized within Listing 12.00 (except 12.05)
“provides the functional criteria used to assess how a claimant’s mental disorder(s) limits his
or her functioning:
These criteria represent the areas of mental functioning a person uses in a
work setting. They are: Understand, remember, or apply information; interact
with others; concentrate, persist, or maintain pace; and adapt or manage
oneself. We will determine the degree to which your medically determinable
mental impairment affects the four areas of mental functioning and your
ability to function independently, appropriately, effectively, and on a sustained
basis. . . .
Listing 12.00A(2)(b), 20 C.F.R. pt. 404, subpt. P, app’x 1.
In support of her appeal, Plaintiff raises several, albeit somewhat
disorganized, arguments. (Doc. 13). But ultimately, she argues that substantial
evidence does not support the RFC where the ALJ ignored limitations supported by
the evidence and failed to “fully and fairly” develop the record by conducting only a
15-minute hearing, during which Plaintiff was unrepresented. The Court agrees.
As discussed below, the starting point must be the conclusory and perfunctory
hearing in which the ALJ elicited a mere two and a half pages of testimony from
Plaintiff.6 (Tr. 43–45). He then used that superficial hearing testimony to craft an
Plaintiff additionally argues that the ALJ “failed to obtain a valid waiver of representation”
at the hearing and that this “invalid waiver prejudiced Reid because the ALJ failed to fulfill
his duty to develop the record.” (R. Doc. 13 at 9–13). Although Plaintiff received several
written notices of her right to counsel and postponements of her hearing in order to obtain
counsel (Tr. 76–89, 92–110, 114, 115–33, 137), the ALJ made no effort to explain the right to
counsel orally and in person or to otherwise ensure that Plaintiff understood that right from
the prior written notices. (Tr. 37, 41). He simply told Plaintiff if she did not have counsel at
the next scheduled hearing, “we’re going” no matter what. (Tr. 37).
Despite the Commissioner’s arguments to the contrary, its own hearing manual requires an
ALJ to “advise the claimant of the right to representation” at the hearing. HALLEX § I-2-6-52,
1993 WL 643033 (last updated Nov. 20, 2018). And this requirement is consistent with
mandates from the Fifth Circuit. See also Norden v. Barnhart, 77 F. App'x 221, 223 (5th Cir.
2003) (waiver was knowing and intelligent; “Norden received written notices of his right to
representation prior to the hearing. At the hearing, the ALJ again informed Norden of his
right to representation.”); Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir. 2003) (“We
conclude that the numerous written notices Castillo received—along with the ALJ's reminder
to Castillo at the hearing of her right to counsel—sufficiently informed her of her right to an
attorney, and that she validly consented to proceed without representation.”) (emphasis
Beyond that, the requirement for some form of oral notice by the ALJ seems especially
prudent in a case like Plaintiff’s, where the ALJ assessed learning deficits (Tr. 18) and was
addressing a claimant of low-average intelligence (Tr. 386, 387). See Oringderff v. Astrue,
2010 WL 3782188, at *6 (S.D. Tex. Sept. 10, 2010) (“In a number of cases, courts have found
that a claimant did not validly waive the right to counsel when written notification of her
RFC that failed to incorporate limitations supported by the record. Moreover, the ALJ
seems to have cherry-picked or otherwise mischaracterized evidence to support his
findings. See Schofield v. Saul, 950 F.3d 315, 321 (5th Cir. 2020) (“the ALJ is an
examiner charged with developing arguments both for and against granting
A. Plaintiff Did Not Receive a Full and Fair Hearing
At the administrative level, a disability claimant may seek review before an
ALJ of an unfavorable decision at the lower level. See 20 C.F.R. § 416.1429 (“If you
are dissatisfied with” an unfavorable decision made at a lower level “you may request
a hearing” before an ALJ.); 20 C.F.R. § 416.1430(a)(1)–(4) (identifying the lower-level
decisions subject to ALJ review). The ALJ will conduct an administrative hearing,
20 C.F.R. § 416.1444, before issuing a written decision, 20 C.F.R. § 416.1453(a).
Because the results of administrative hearings before ALJs “gravely affect the
claimants, the hearings must be conducted in such a manner as to assure their
objective: the determination of a matter of moment on the basis of a record adequately
developed.” Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). The function of the
ALJ “is not merely to sit and listen.” Id. Instead, the ALJ has a duty to “fully and
rights was not followed up by a comprehensive oral notification . . . . Here, [unlike Castillo],
 there is evidence that the claimant's ability to understand the written notices may have
been impaired [and] the ALJ took no steps to ascertain her understanding.”). But ultimately,
it is not necessary to decide whether Plaintiff validly waived her right to representation,
because the Court finds that remand is warranted based on the prejudice resulting from the
ALJ’s failure to conduct a full and fair hearing. Thomas v. Schweiker, 573 F. Supp. 327, 330
(W.D. Tex. 1983) (“Whether or not the right to representation has been waived by a Social
Security claimant, the record must still disclose that there has been a full and fair hearing.”);
Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997) (“The ALJ has this same duty to develop
the record when a plaintiff is without counsel regardless of whether the plaintiff's waiver of
counsel was valid.”).
fairly” develop the facts relevant to the claim for disability. Sun v. Colvin,
793 F.3d 502, 509 (5th Cir. 2015). If the ALJ fails to fulfill this duty, “he does not have
before him sufficient facts on which to make an informed decision and consequently
the decision is not supported by substantial evidence.” James v. Bowen,
793 F.2d 702, 704 (5th Cir. 1986); see also Hardman v. Colvin, 820 F.3d 142, 147
(5th Cir. 2016) (“When a full and fair record is lacking, the ALJ will not have
sufficient facts on which to make an informed decision and thus his decision will not
be supported by substantial evidence.”).
But where, as here, a claimant appears at the hearing unrepresented, “[t]he
ALJ’s basic obligation to develop a full and fair record rises to a special duty”—one
that “requires the ALJ to scrupulously and conscientiously probe into, inquire of, and
explore for all the relevant facts.” Kane, 731 F.2d at 1219–20. With that in mind, “the
[Fifth Circuit] often focuses on the ALJ's questioning of the claimant in order to
determine whether the ALJ gathered the information necessary to make a disability
573 F. Supp. 327, 330 (W.D. Tex. 1983) (Courts “have found good cause to remand
cases in which the ALJ failed to diligently explore all relevant facts, especially when
the claimant was uneducated, appeared without representation, and an adequate
showing was made that the absence of counsel prejudiced the claimant.”).
Here, the hearing lasted a mere 15 minutes and produced only a 7-page
transcript (Tr. 41–47), of which only two and half pages include testimony from
Plaintiff (Tr. 43–45), who appeared without the benefit of counsel. The sheer brevity
of the hearing (Tr. 41–47), and the minimal amount of time devoted to Plaintiff’s
testimony (Tr. 43–45) raises an inference that the ALJ failed to conduct a full and
fair hearing. See Rials v. Califano, 520 F. Supp. 786, 789 (E.D. Tex. 1981) (“[T]he
hearings lasted only twenty minutes. This, in and of itself, raises an inference that
there was not a full and fair hearing.”); Battles v. Shalala, 36 F.3d 43, 45
(8th Cir. 1994) (remanding claim where the hearing lasted only ten minutes and was
fully transcribed in eleven pages); Lashley v. Sec'y of Health & Hum. Servs., 708 F.2d
1048, 1052 (6th Cir. 1983) (“The hearing was brief. It lasted a mere 25 minutes, and
was fully transcribed in approximately 11 pages. In addition Lashley possessed
limited intelligence, was inarticulate, and appeared to be easily confused.”);
Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993) (The hearing lasted 10
minutes. “It matters that Ms. Thompson was not asked enough questions or the right
questions at the hearing because her answers were needed by the ALJ as evidence to
support his determination of her credibility.”); see also Ass'n of Admin. L. Judges v.
Colvin, 777 F.3d 402, 405 (7th Cir. 2015) (in a case brought by ALJs under the
Administrative Procedures Act, the 7th Circuit stated: “Suppose . . . the Social
Security Administration ordered that disability hearings were to last no more than
15 minutes. The quality of justice meted out by the administrative law judges would
be dangerously diminished.”).
But the “length or brevity” of the hearing, alone, is not enough. Bancolita v.
Berryhill, 312 F. Supp. 3d 737, 742 (N.D. Ill. 2018). Instead, the transcript itself
convinces the Court that Plaintiff did not receive a full and fair hearing—especially
in the absence of counsel—and that this failure resulted in prejudice which warrants
B. The ALJ’s Error Resulted in Prejudice and Warrants Remand
To begin, the ALJ's questioning of Plaintiff is best described as perfunctory,
cursory, and not designed to explore the complexities of Plaintiff's impairments. This
is evident in the simplistic questions the ALJ asked and his failure to ask any
meaningful follow-up questions in response to Plaintiff's testimony. Consider the
following exchange regarding Plaintiff’s mental health:
ALJ: So, any mental health issues?
CLMT: Depression and anxiety.
ALJ: [T]hose are simply diagnoses. Do they interfere with you doing
CLMT: Well, my anxiety sometimes gets in the way of everything.
Shockingly, no additional or follow-up questions were explored by the ALJ.
This was the extent of Plaintiff’s testimony regarding the limitations posed by her
anxiety and depression.
To be sure, this testimony is from a young woman of low average intelligence
(Tr. 387), who suffered from a language delay (Tr. 319, 387), and has been described
as a “poor historian” (Tr. 433), “shy,” and “socially reticent” (Tr. 385). Despite this, as
well as the support for these mental impairments found in the record, there was no
follow-up by the ALJ, in abdication of his fundamental duties as a hearing officer. He
made absolutely no effort to probe further or develop the facts both for and against
Plaintiff’s claim for disability. This ultimately resulted in prejudice.
First, the ALJ failed to find that either Plaintiff’s depression or general anxiety
disorder were severe impairments, despite the ample record evidence related to these
conditions. (Tr. 532) (diagnosis: major depression with anxiety); (Tr. 491, 557)
(diagnosis: autism spectrum disorder, anxiety disorder NOS, panic attack); (Tr. 555)
(diagnosis: major depression, autism); (Tr. 554, 556, 558) (presented as anxious and
fidgety); (Tr. 548) (“she still seems anxious due to her autism but denies”); (Tr. 558)
(reported anxious mood); (Tr. 507, 538, 597, 602) (presented at emergency room in
August of 2016 for depression and suicidal ideation); (Tr. 531–36, 554) (hospitalized
for 5 days in November 2017 following suicidal ideation/attempt because of
depression and anxiety associated with stress from school); (Tr. 554) (feeling down,
better off dead most days); (Tr. 556) (anxiety because of school, tired, trouble
concentrating); (Tr. 558) (anxious and scared about starting school again, not
sleeping, tired every day).
While it would seem the ALJ summarily brushed aside this evidence and failed
to assess her depression and generalized anxiety disorder7 as severe impairments,
the Court cannot be sure. This is because the ALJ offered no explanation for his
severity finding—or lack, therefore—at Step 2. (Tr. 18). Without any explanation
from the ALJ, “it is impossible for the court to determine whether the ALJ applied
The Court notes that Plaintiff has only argued that the ALJ erred by not finding her
generalized anxiety disorder NOS severe at step 2. However, both impairments are supported
by the record and both should be considered on remand.
the correct legal standard or whether the finding is supported by substantial
evidence. A more thorough explanation of the basis for [the ALJ’s Step 2] finding is
necessary. Accordingly, reversal and remand are appropriate.” Harmon v. U.S.
Comm'r, 2015 WL 9226138, at *7 (W.D. La. Nov. 17, 2015); see also Anthony v.
Sullivan, 954 F.2d 289, 294 n.5 (5th Cir. 1992) (“a claimant need only prove that her
impairment is something more than a slight abnormality” at step 2; the burden is “de
Also significant, the ALJ relied largely on the following testimony in finding
Plaintiff had “no limitation” in her ability to interact with others (Tr. 19):
ALJ: Okay. Any problems getting along with people?
CLMT: No sir.
The ALJ did not inquire further, which is remarkable under the circumstances
of this case.
To begin, the record is replete with evidence demonstrating that Plaintiff has
“serious problem[s]” “cooperat[ing]” with others, “making and keeping friends,” and
overall “has a hard time in social settings.” (Tr. 202); (Tr. 222) (referred to
psychotherapy and social worker for “social skills development”); (Tr. 248, 249) (poor
social skills); (Tr. 204, 216, 227, 250, 251, 317, 319, 385, 387) (same); (Tr. 549, 555)
(diagnosed with autism, “as evidenced by failure to develop appropriate interpersonal
overwhelmingly comes from those who know Plaintiff or have observed her behavior
in social settings over a long period of time. (Tr. 202, 204, 210, 222, 227, 248, 249,
250, 251, 317, 385, 549, 555) (issues with social interactions reported by teachers,
doctors, and mother). Indeed, consistent with her testimony, Plaintiff has previously
denied reports of behavioral and social issues. (Tr. 385) (Dr. Durbin noted that
Plaintiff reported no behavioral issues, which was contradicted by school records from
2015, indicating she “has a hard time in social setting. Becomes frustrated . . . .”).
Given this record evidence, it was error for the ALJ not to probe further into
Plaintiff’s limitations in social interactions. The Court therefore cannot find
substantial evidence supporting the ALJ’s decision, especially considering that he
ignored the relevant and probative evidence cited above and that he chose instead to
rely on Plaintiff’s incomplete testimony, thereby failing to incorporate these
limitations into the RFC. See SSR 83-14 (“Depending on the nature and extent of a
person's mental impairment which does not meet or equal the criteria in the Listing
of Impairments, relatively broad or narrow types of work may be precluded (e.g., . . .
dealing frequently with members of the public--a particular type of work at any level
Consistent with the evidence cited above, the record also contained 3 medical
consultants, each of whom assessed similar limitations in social interaction.
(Tr. 384–88, 407–09, 465–67). Specifically, all three psychologists assessed moderate
to marked limitations in “social interaction” and “the ability to get along with others.”
(Tr. 387) (moderate limitations); (Tr. 408) (moderate limitations); (Tr. 466) (moderate
to marked limitations); see also Listing 12.00F(2)(c) (moderate equates to fair);
Listing 12.00F(2)(d) (marked equates to serious). Based on these limitations, all 3
psychologists found that Plaintiff could only perform work requiring limited
interaction with the public and co-workers, including jobs where she received only
“gentle correction” from supervisors. (Tr. 387, 409, 467). All 3 opinions are consistent
with the evidence cited above, yet the ALJ rejected each of them, along with the
remaining evidence of record, in finding Plaintiff had no limitation in social
interactions. Again, he chose to rely on her testimony. (Tr. 45).
An ALJ “may not simply ignore entire lines of contrary evidence, and cannot
simply cherry-pick facts that support a finding of non-disability while ignoring
evidence that points to a disability finding.” Davis v. Saul, 446 F. Supp. 3d 406 (N.D.
Ind. 2020). The Fifth Circuit has long cautioned against ALJ’s who ‘play doctor.’
Indeed, this principle—“that an ALJ should not substitute his lay opinion for the
medical opinion of experts”—is “especially profound in a case involving  mental
disability[ies].” Salmond v. Berryhill, 892 F.3d 812, 818 (5th Cir. 2018). Here, the
ALJ rejected nearly the entire record, including “the medical opinions of treating[,]
examining [and non-examining] doctors alike, without contradictory evidence from a
medical expert of any kind” regarding Plaintiff’s impairments in social interactions.
Salmond v. Berryhill, 892 F.3d 812, 819 (5th Cir. 2018). The record therefore does not
contain substantial evidence supporting the ALJ’s finding that Plaintiff has no
limitation in social interactions, and remand is warranted.
Beyond that, when asked during the hearing why she cannot work, Plaintiff
testified that her autism prevents her from “multi-tasking.” (Tr. 44). In denying her
disability claim, the ALJ explained: “At the hearing, she clarifies that the only reason
she is unable to work is due to her inability to multi-task.” (Tr. 19). The record clearly
supports additional limitations resulting from Plaintiff’s impairments—autism,
anxiety, depression, learning disorder, social anxiety, and seizure disorder.
(Tr. 384–88, 407–09, 465–67). The ALJ was not free to ignore the record evidence for
the convenience of the superficial testimony elicited at the hearing.
Finally, throughout his decision, the ALJ consistently cites to Plaintiff’s
hearing testimony that “she was able to attend college on a full-time basis” as support
for Plaintiff’s ability to perform semi-skilled work and his ultimate finding that
Plaintiff was no longer disabled. (Tr. 19, 24, 25). To be clear, the ALJ’s terminology
seems to assume that Plaintiff is attending a 4-year college. (ALJ’s Decision, Tr. 20)
(plaintiff “had a good Christmas and was planning on returning to school for the next
semester.”) (emphasis added); (Hearing, Tr. 43) (“[Y]ou’re in college . . .What, first
year, second year, what?). This is problematic for several reasons.
First, and perhaps most important, the ALJ mischaracterizes the record. See
Moon v. Colvin, 139 F. Supp. 3d 1211, 1220 (D. Or. 2015) (ALJ cannot mischaracterize
statements or documents to reach his conclusion). According to the administrative
transcript, Plaintiff reported being “in school at a medical institute college in Baton
Rouge for medical billing and coding.” (Tr. 516). Later, Plaintiff reportedly told her
therapist that she had completed 8 months of the program and needed 3 more months
to obtain her certification. (Tr. 556); (Tr. 548) (certificate). Based on these summaries
found in her medical records, the ALJ seemingly presumed Plaintiff was attending a
traditional 4-year college:
ALJ: And, I believe the record says you’re in college?
CLMT: Yes, sir.
ALJ: Okay. What, first year, second year, what?
ALJ: Oh. Okay. Are you attending full-time, part-time, what?
Not only is this exchange confusing, because the record does not suggest that
Plaintiff is attending a 4-year college, but if the ALJ in fact believed she were, his
failure to probe further was a gross dereliction of duty. See Schofield v. Saul, 950 F.3d
315, 321 (5th Cir. 2020) (“[T]he ALJ is an examiner charged with developing
arguments both for and against granting benefits.”)
The record sufficiently establishes Plaintiff’s “low average” intelligence (Tr.
387), participation in IEPs and receipt of accommodations throughout school (Tr. 181,
182, 189, 197–206, 224–27, 303–07, 315–34), learning deficits (224, 225, 319, 323),
poor and sometimes failing grades (Tr. 197, 224, 225, 305), and the constant
assistance and support she receives from her mother, with whom she still lives (Tr.
216, 244, 246, 251). But despite all this, the ALJ assumed that Plaintiff attends a
4-year college without any issues. He made no effort to question where she was
attending college, the curriculum, her major, whether she was receiving educational
support or accommodations, her grades, etc. This failure was prejudicial, as the ALJ
cites Plaintiff’s college attendance to discount her “low average intelligence” (Tr. 20,
387) and find her capable of performing semi-skilled work when medical source
statements and prior RFCs assessed a limitation to unskilled work. (Tr. 64–65)
(simple, unskilled work); (Tr. 467) (simple instructions involving two-steps); (Tr. 387)
(ability to carry out “simple” instructions).
The ALJ’s reliance on Plaintiff’s ‘college attendance’ is likewise problematic
because he ignored ample record evidence that attending school for medical billing
and coding negatively impacted Plaintiff’s mental health. In October of 2017, Plaintiff
reported being anxious and nervous “all the time” because of school; she had trouble
sleeping and concentrating; and she appeared anxious and fidgety. (Tr. 556). In
November of 2017, she was hospitalized following a suicide attempt. (Tr. 531–36).
Following her release, she reported feeling down and “better off dead” most days
(Tr. 554); she appeared anxious and fidgety and explained that her recent suicidal
ideation was due to depression and stress caused by school (Tr. 554). And although
she reported feeling happier on December 28, 2017, her therapist noted Plaintiff “still
seem[ed] anxious” despite her denials. (Tr. 548). And on January 12, 2018—the last
treatment note found in the record—Plaintiff presented as fearful and anxious and
was reportedly having anxiety about starting school again. (Tr. 558–59).
Despite this evidence, none of which was apparently considered by the ALJ, he
made no meaningful inquiry into Plaintiff’s current school (or college) program,
including its impact on her mental health. See Kane v. Heckler, 731 F.2d 1216, 1218
(5th Cir. 1984) (But given “the medical reports and Kane's suggestion of pain, it was
the duty of the ALJ to inquire further . . . . The duty does not exact a lengthy hearing
or protracted inquiry. It does exact a careful effort to make a complete record. Kane's
testimony suggesting cumulative symptoms sufficient to be disabling was not to be
merely disregarded or ‘uh-huh’ed” during the 5 minute hearing.”); Montalvo v.
Barnhart, 239 F. Supp. 2d 130, 138 (D. Mass. 2003) (“[A] number of factors converged
so as to make the administrative hearing a due process minefield: Plaintiff had a
limited education, appeared pro se, needed a translator, testified to memory
problems . . . . Despite these problems, the hearing lasted, at most, twenty-two
minutes, spanning a mere eleven transcript pages. Most problematically, the ALJ
was insufficiently forthcoming during the proceeding with respect to a fundamental
element of the case, Plaintiff's residual functional capacity, as to enable Plaintiff to
present his position fairly and adequately.”); Koschnitzke v. Barnhart, 293 F. Supp.
2d 943, 949 (E.D. Wis. 2003) (“Where, as here, the ALJ failed to adequately explore
the claimant's allegations of pain, pain was a primary component of the claim, and
the claimant was unrepresented by counsel, the Commissioner's position cannot be
considered substantially justified.” The court also noted that the hearing lasted a
mere 20 minutes.); Harris v. Barnhart, 259 F. Supp. 2d 775, 779 (E.D. Wis. 2003)
(“The Commissioner did not come close to meeting her burden in this case. The
hearing was perfunctory, lasting just twenty-three minutes, and the ALJ made no
meaningful inquiry into several key areas.”); Bancolita v. Berryhill, 312 F. Supp. 3d
737, 741–42 (N.D. Ill. 2018) (remanding warranted “where hearing . . . was just
sixteen minutes long. The transcript of the testimony at the hearing covered just
eleven pages and fewer than five of those transcribe [the claimant’s] testimony” and
the ALJ failed to ask about key issues).
As explained above, the ALJ’s failure to conduct a full and fair hearing
precludes any finding of substantial evidence. The conclusory testimony elicited at
the hearing, and relied on by the ALJ, prejudiced Plaintiff and warrants remand.
IT IS ORDERED that the decision of the Commissioner be VACATED,
and Plaintiff’s appeal be REMANDED for further administrative proceedings
consistent with this opinion.
Baton Rouge, Louisiana, this 31st day of March, 2021
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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