Alfred v. Social Security Administration

Filing 20

RULING ON MOTIONS granting 10 Motion to Compel; granting 14 Motion to Remand: IT IS ORDERED that this matter be REVERSED and REMANDED to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further administrative proceedings. Signed by Magistrate Judge Patrick J Hanna on 12/8/2015. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
LULA ALFRED

CIVIL ACTION NO. 6:14-cv-03436

VERSUS

JUDGE HAIK

U.S. COMMISSIONER
SOCIAL SECURITY
ADMINISTRATION

MAGISTRATE JUDGE HANNA

RULING ON MOTIONS
Currently pending are the claimant’s motion to compel (Rec. Doc. 10) and the
Commissioner’s motion to remand (Rec. Doc. 14). The motion to compel is not
opposed. The motion to remand is opposed to the extent that certain conditions on
the remand are requested by the claimant. (Rec. Doc. 17). Considering the evidence,
the law, and the arguments of the parties, and for the reasons fully explained below,
both motions are GRANTED.
BACKGROUND
The claimant, Lula Alfred, alleges that she has disabling medical conditions.
She started receiving Social Security disability benefits in 1987, but medical
improvement resulted in a ruling dated July 5, 2002, terminating her benefits as of
September 1, 1997. (Rec. Doc. 7-1 at 25). She was not required to repay any of the
benefits that she received between 1997 and 2002. (Rec. Doc. 7-1 at 25). She then

filed a new Social Security disability claim, alleging a disability onset date of August
1, 2002. On August 25, 2004, her application was denied, and she was found not to
be disabled from August 1, 2002 through August 25, 2004. (Rec. Doc. 7-1 at 609615). The claimant requested Appeals Council review of that ruling, but no action
was taken by the Appeals Council for several years. In the meantime, the claimant
filed another application for disability benefits, alleging an onset date of May 19,
2008, and she was awarded disabled widows’ benefits and SSI benefits starting on
that date. (Rec. Doc. 7-1 at 623). In an order dated May 29, 2012, which included
an apology for the delay in ruling (Rec. Doc. 7-1 at 603), the Appeals Council
ordered a new hearing with regard to the application that was ruled on in 2004, as
well as an opportunity for the claimant to submit additional evidence. (Rec. Doc. 7-1
at 602). A hearing was held on June 4, 2013,1 and a new ruling was issued on
October 25, 2103. (Rec. Doc. 7-1 at 581-594). The ALJ determined that the claimant
has the following severe impairments: hypertension with a history of lacunar infarct,
rare supraventricular ectopic beats per Holter monitor, and vision impairment
resulting in monocular vision (Rec. Doc. 7-1 at 586), but further found that those

1

The hearing transcript indicates that the hearing was held on June 4, 2014 (Rec. Doc.
7-1 at 775, 840), but that apparently is a typographical error since the hearing testimony was referred
to in the ALJ’s ruling dated October 25, 2013 (Rec. Doc. 7-1 at 581, 583, 584, 592, 593), and the
ruling refers to a hearing held on June 4, 2013 (Rec. Doc. 7-1 at 581).
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conditions are not disabling (Rec. Doc. 7-1 at 594). In this action, the claimant is
appealing that ruling. Therefore, she is now seeking benefits for the period from July
6, 2002 (the onset date alleged in her application dated August 1, 2002) to May 18,
2008 (the date preceding the date on which the claimant was found to be disabled).
THE MOTION TO COMPEL
In the motion to compel (Rec. Doc. 10), the claimant seeks to require the
Commissioner to supplement the record with certain documents that were omitted
from the record. In particular, the claimant argues that the exhibit list that should
appear on page 5C and the documents comprising Exhibit C-5-F are missing. (Rec.
Doc. 10 at 3). This is important because the ALJ’s October 2013 ruling refers to the
missing exhibit. (Rec. Doc. 7-1 at 582).
The Commissioner responded (Rec. Doc. 13) to the motion by admitting that
page 5C and Exhibit C-5-F are missing from the certified administrative record
transcript and stating that the Commissioner had already requested that a new
transcript, including the missing items, be prepared.

As of the date of the

Commissioner’s response, however, that request remained pending.
Having a complete administrative record is critical to this appeal. Accordingly,
the motion to compel will be granted, and the Commissioner will be ordered to

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reconstruct the record and, in particular, to supplement the record with the documents
noted by the parties to be missing from the record as it currently exists.
THE MOTION FOR REMAND
After the claimant filed her motion to compel, the Commissioner filed a motion
for remand. (Rec. Doc. 14). In that motion, the Commissioner argued that this matter
should be reversed and remanded for reconstruction of the administrative record, for
another hearing, and for a new decision. (Rec. Doc. 14-1 at 1). Thus, the remand
motion seeks the same remedy requested in the motion to compel as well as additional
relief.
The claimant opposed the motion for remand (Rec. Doc. 17), asserting two
broad objections to the Commissioner’s proposed remand order. In reality, the
claimant does not oppose remand, but proposes two significant conditions on this
Court’s anticipated remand order.
First, the claimant argues that, because she has conditions that are slowly
progressing, the Commissioner should be ordered to comply with SSR 83-20 in
establishing the onset date of her alleged disability. More particularly, the claimant
requests an order requiring that the Commissioner be aided by three medical advisers,
i.e., an ophthalmologist, a psychiatrist, and an internist, in determining the onset date
of her alleged disability by inference.
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This Court finds, however, that SSR 83-20 does not require a medical adviser
in every case in which the claimant has a slowly progressive impairment. The rule
itself states that “[w]ith slowly progressive impairments, it is sometimes impossible
to obtain medical evidence establishing the precise date an impairment became
disabling.” [Emphasis added.] The clear implication of this statement is that a
claimant’s medical records can sometimes be relied upon to establish the date on
which such an impairment became disabling. The rule states that the ALJ must make
be “an informed judgment of the facts in the particular case” and this judgment must
have “a legitimate medical basis.” The rule further states that, in those cases when
onset must be inferred, the ALJ “should call on the services of a medical advisor.”
Although the claimant argues that this is a case in which the nature of her
impairments requires the onset date to be inferred, this Court has not yet reviewed the
voluminous administrative record, which as noted previously is missing some
evidence, and consequently has not evaluated whether the evidence in the record is
sufficient to allow determination of the claimant’s disability onset date (if she was,
in fact, disabled during the relevant time period) without the assistance of a medical
advisor. Therefore, it would be premature for this Court to order the ALJ to which
this case is remanded to obtain the services of three medical specialists as advisors
with regard to the determination of the disability onset date. Instead, this Court will
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simply remind the Commissioner that all pertinent rules and regulations, including
but not limited to SSR 83-20, must be complied with in deciding whether the claimant
was disabled between July 6, 2002 and May 18, 2008 and if so when that disability
began.
The claimant’s second proposed condition for remand is that this matter should
be assigned to a different ALJ on remand, citing alleged errors made by ALJ
Lawrence T. Ragona at the June 2013 hearing and in his October 2013 decision.
Without fully evaluating the issues raised by the claimant in support of this objection,
which go to the merits of the claimant’s appeal, this Court notes that the transcript of
the hearing (Rec. Doc. 7-1 at 775 to 840) reveals that there was animosity between
ALJ Ragona and the claimant’s representative during the hearing. That animosity is
sufficient to persuade this Court that a different ALJ should review this matter on
remand.2 Accordingly, this Court will grant the motion to remand and order that this
matter be assigned to an ALJ other than Judge Ragona.
CONCLUSION
For the foregoing reasons,

2

Cases in this circuit have previously been remanded with instructions to have a
different ALJ assigned to reconsider the evidence. See, e.g., Hunter v. Comm'r of Soc. Sec. Admin.,
No. 3:11-CV-2649-O, 2012 WL 4741231, at *13 (N.D. Tex. Sept. 6, 2012), report and
recommendation adopted, No. 3:11-CV-2649-O, 2012 WL 4748212 (N.D. Tex. Oct. 4, 2012);
Jimmerson v. Apfel, 111 F. Supp. 2d 846, 846 (E.D. Tex. 2000).
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IT IS ORDERED that this matter be REVERSED and REMANDED to the
Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further
administrative proceedings including but not limited to (a) reconstruction of the
administrative record in its entirety to ensure that all evidence be included therein,
including but not limited to the exhibit list purported to appear at page 5C of the
current record and the documents constituting Exhibit C-5-F of the current record, (b)
permitting the claimant to supplement the record as necessary or appropriate, (c)
holding another hearing before an ALJ other than Judge Ragona, (d) if warranted,
obtaining medical expert testimony regarding the onset date of the claimant’s alleged
disability; and (e) issuing a new decision prepared in accordance with all applicable
rules and regulations including but not limited to SSR 83-20.
Signed at Lafayette, Louisiana, on December 8, 2015.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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