CAROL MIRANDO, Magistrate Judge.
Plaintiff James West appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for a period of disability, Disability Insurance Benefits ("DIB") and supplemental security income ("SSI"). For the reasons discussed herein, the decision of the Commissioner is reversed, and this matter is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four.
Plaintiff presents four issues on appeal: (1) whether the Administrative Law Judge ("ALJ") developed a full and fair record in the hearing; (2) whether substantial evidence supports the ALJ's credibility determination, (3) whether the ALJ properly addressed whether Plaintiff met or equaled Listing 1.03, and (4) whether substantial evidence supports the testimony of the Vocational Expert ("VE") that Plaintiff can perform other work in the national economy. Because the Court finds that the ALJ failed to properly develop the record by allowing Plaintiff to supplement the record to submit additional evidence during the relevant time period and having the Commissioner associate Plaintiff's prior claims file and consider relevant medical records therefrom, this Court cannot properly evaluate whether substantial evidence supports the ALJ's decision as to any issue presented by Plaintiff. Accordingly, the case must be reversed and remanded to the Commissioner consistent with this opinion.
On November 30, 2010, Plaintiff filed applications for a period of disability and DIB
The ALJ first determined that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2008. Tr. 15. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 10, 2000, his alleged onset date. Id. At step two, the ALJ determined that Plaintiff had the following severe impairments: necrosis of the hips; status post bilateral hip replacement surgery; status post left knee replacement; status post gunshot wound to the left shoulder; status post fracture of the left tibia and fibula; major depressive disorder; and alcohol dependence. Tr. 13. At step three, the ALJ concluded that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." Tr. 14. Specifically, she stated she considered whether any of Plaintiff's physical impairments, either singly or in combination, meets or medically equals any of the listed impairments, and concluded they do not. Id. The ALJ did not specifically discuss any of the listings with respect to Plaintiff's physical impairments, only Listing 12.05 with respect to Plaintiff's mental impairments. Tr. 14-16. Taking into consideration the entire record, the ALJ determined that Plaintiff has the Residual Functional Capacity ("RFC") to:
Tr. 16-17. The ALJ found that Plaintiff's medically determinable impairments reasonably could be expected to cause the alleged symptoms, but his statements concerning the intensity, persistence and limiting effects of the symptoms were not credible for reasons explained in the decision. Tr. 17.
After considering the VE's testimony, the ALJ then found that Plaintiff is incapable of performing any of his past relevant work as an auto parts distributor manager, which is performed at the light exertional level with an SVP
Plaintiff requested review of the ALJ's decision, and the Appeals Council ("AC") denied Plaintiff's request for review on June 8, 2015. Tr. 1-5. Accordingly, the ALJ's decision is the final decision of the Commissioner. Plaintiff filed an appeal in this Court on August 7, 2015. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 14.
A claimant is entitled to disability benefits when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step sequential analysis for evaluating a claim of disability. See 20 C.F.R. § 404.1520; 416.920. The Eleventh Circuit has summarized the five steps as follows:
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The claimant bears the burden of persuasion through step four, and, at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The Eleventh Circuit has noted that the Commissioner's burden at step five is temporary, because "[i]f the Commissioner presents evidence that other work exists in significant numbers in the national economy, `to be considered disabled, the claimant must then prove that he is unable to perform the jobs that the Commissioner lists.'" Atha, 616 F. App'x at 933 (citing Doughty v. Apfel, 245 F.3d 1274, 1278 n. 2 (11th Cir. 2001)).
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 substantial evidence. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). 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., 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); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that "[s]ubstantial evidence is something more than a mere scintilla, but less than a preponderance") (internal citation omitted). "The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision." Foote, 67 F.3d at 1560; 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).
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). "This obligation exists even if the claimant is represented by counsel, or has waived the right to representation." Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)).
A Social Security claimant has a statutory right to be represented by counsel at the hearing for an ALJ. Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982); 42 U.S.C. Sec. 406. This right can be waived. Id. When the right to representation has not been waived, however, the ALJ has a special duty to develop the record, as described by the Eleventh Circuit in Brown v. Shalala:
44 F.3d 931, 934-35 (11th Cir. 1995). The Social Security regulations also address this obligation and the relevant time period:
20 §§ C.F.R. 404.1512(d), 416.912(d) (emphasis added); see also Smith v. Comm'r of Soc. Sec., 501 F. App'x 875, 878 (11th Cir. 2012) (noting `[t]he ALJ has a basic obligation to develop a full and fair record, and must develop the medical records for the twelve months prior to the claimant's filing of her application for disability benefits"), citing Ellison, 355 F.3d at 1276. The Eleventh Circuit has held that "[i]n evaluating the necessity for a remand, we are guided by `whether the record reveals evidentiary gaps which result in unfairness or clear prejudice." Brown, 44 F.3d at 935 (quoting Smith, 677 F.2d at 830 (internal citation and quotation marks omitted)).
Here, Plaintiff filed his applications for DIB and SSI on November 30, 2010. Tr. 189-96. His date last insured was March 31, 2008. Tr. 13. Thus, to establish entitlement to DIB, as noted, Plaintiff must establish disability from the alleged onset date of January 10, 2000 through March 31, 2008. See 42 § U.S.C. 423; Tr. 38.
At the start of the hearing, as noted, the ALJ asked Ms. West if she wanted to be a witness at the hearing or represent Plaintiff, noting she could only do one or the other:
Tr. 31. After that exchange, the ALJ discussed Plaintiff's right to counsel:
Tr. 33. The ALJ also addressed the relevant time periods with respect to Plaintiff's claims for disability benefits and supplemental security income benefits:
Tr. 38-39.
Next, the ALJ noted that Plaintiff had filed a previous application in 2005, and the following exchange ensued:
Tr. 40 (emphasis added).
Plaintiff argues that the ALJ failed in her duty to develop the record, noting there are some periods of time in which there are no medical records, suggesting gaps in the evidence. Doc. 18 at 11. Plaintiff suggests that because he was not represented by counsel, the ALJ had a heightened duty to determine if there were additional records that were not submitted for time periods in which were evidentiary gaps and to permit Plaintiff an opportunity to review the record prior to the hearing. Id. Plaintiff noted four such gaps: (1) from the alleged onset date January 10, 2000 until January 12, 2007 (Tr. 422); (2) from December 2007 (Tr. 372) to June, 2008 (Tr. 385-405); (3) between October 2008 (Tr. 415) and April 2011 (Tr. 432) and (4) from June 18, 2013 (Tr. 679) through the date of the ALJ's decision on December 20, 2013 (Tr. 21). Id.
The Commissioner responds that Plaintiff's contention is meritless, as some of the so-called gaps actually contained medical evidence that is in the record; and further, the record shows the Commissioner requested records from each of Plaintiff's listed providers. Doc. 21 at 5-6. Moreover, the Commissioner asserts the ALJ properly informed Plaintiff of his right to an attorney, and confirmed Plaintiff wished to go forward without one. Id.
As noted, Plaintiff previously filed an application for DIB and SSI on January 28, 2005, which was denied on October 19, 2005. Tr. 198-200. The ALJ in this case was aware of the prior filing, as she discussed it in the hearing and it was part of the record before her, yet she stated she was going to consider Plaintiff's records from June 2005 through the DLI. Tr. 40, 198-200. Medical records from Plaintiff's alleged onset date of January 10, 2000 through his DLI of March 31, 2008 certainly are relevant to the ALJ's consideration of Plaintiff's DLI claim, and yet only a scant two pages from 2005 or before were in the record. Tr. 683-84. Here, while Plaintiff submitted the two pages of evidence from 2005, he stated he was unable to re-submit all the evidence that was submitted in his 2005 case because it was not in his possession but rather in the possession of the Commissioner. Doc. 24 at 5. Although this issue was not raised at the hearing below, upon reviewing the hearing transcript, in relevant part set forth above, the Court agrees with Plaintiff that it was not entirely clear that Plaintiff understood what medical records were relevant to which of his claims. His lack of representation by counsel compounds this issue.
An ALJ may properly rely upon evidence from prior Social Security applications. Leonard v. Astrue, 487 F.Supp.2d 1333, 1337 (M.D. Fla. 2007) (finding it was not error for the ALJ to consider the evidence from Plaintiff's prior application); see 20 C.F.R. §§ 404.900(b), 404.1520(a)(3) (stating that all evidence of record will be considered by the ALJ); Naudain v. Apfel, 119 F.Supp.2d 812, 818 (C.D.Ill.2000) ("[A]n ALJ may properly rely upon evidence presented at a prior hearing in making his determination."); see also Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir.1996) (finding the ALJ's review of conflicting testimony from two prior hearings appropriate); Banks v. Barnhart, 434 F.Supp.2d 800, 808 (C.D.Cal.2006) (noting that the ALJ relied on vocational expert testimony from a prior hearing). Indeed, SSA internal guidance documents, the Commissioner's Hearings, Appeals and Litigation Law Manual ("HALLEX") and the Program Operations Manual System (POMS), support this proposition. See HALLEX Section 1-2-6-584( "[i]f there was a prior ALJ decision, the ALJ must associate the prior ALJ decision with the current claim(s) file"); POMS DI 20505.010 (providing that the field office will associate any prior folder with the current claim or document the claim to identify prior claims activity when it is sent to the Disability Determination Services, and sometimes, it is necessary to have the prior folder in order to adjudicate a current claim).
Likewise, the Commissioner admits there is additional relevant medical evidence from 2013 identified by Plaintiff concerning his mental limitations that is not in the record. Tr. 356, 359. Plaintiff reports receiving medical treatment in October 2013 from Southeastern Alabama Medical Center yet there is no corresponding medical record. Plaintiff's own report of this treatment described that the reason for this visit was he was hearing people and voices and not shutting down and sleeping. Tr. 359. Plaintiff was given medication to induce sleep. Id. Although Plaintiff noted his alcohol level was high, he stated the problem was instead his bipolar condition and manic depressive disorder, which he noted run in the family. Id. Because there were no treatment records of this hospital visit in the record, the ALJ did not consider it.
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. See 20 C.F.R. § 404.1545(a); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997). Here, 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 substantial evidence.
The record before the ALJ reveals evidentiary gaps, which may have resulted in unfairness or clear prejudice to Plaintiff. Brown, 44 F.3d at 935. The Court finds the ALJ had a duty to develop a full and fair record, particularly in light of Plaintiff's lack of representation, and in doing so permit Plaintiff to supplement the record with his prior records and require the Commissioner to associate the prior claims folder and consider the relevant medical records from Plaintiff's previous application. The Court therefore concludes that remand is warranted. On remand, Plaintiff shall be allowed to supplement the record before the ALJ accordingly.
ACCORDINGLY, it is hereby
