JACQUELINE CHOOLJIAN, Magistrate Judge.
On September 13, 2013, plaintiff Brayon Terrell Nance, III ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's termination of plaintiff's benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument.
Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand.
On March 2, 2006, plaintiff was granted childhood Supplemental Security Income ("SSI") benefits effective September 1, 2005 due to a medically determinable impairment of oppositional defiant disorder which met Listing 112.08 ("Personality Disorders"). (Administrative Record ("AR") 8, 52, 65).
When plaintiff turned 18, the Social Security Administration redetermined plaintiff's eligibility for benefits as required by Social Security regulations. (AR 8, 52). On September 24, 2010, plaintiff was notified that his benefits were being terminated effective September 1, 2010, due to insufficient evidence — specifically, plaintiff failed to submit medical evidence supporting his claimed disability and failed to attend a scheduled consultative examination. (AR 8, 52, 54-55).
On December 28, 2010, plaintiff attended a consultative psychological evaluation. (AR 187-92). A state agency disability hearing officer considered the findings noted in the consultative evaluation, held a hearing (which plaintiff did not attend), and on September 7, 2011, upheld the termination of plaintiff's benefits. (AR 8, 63-73). On September 19, 2011, plaintiff requested a hearing before an Administrative Law Judge. (AR 74).
At a hearing on January 27, 2012, plaintiff stated that he wished to have a representative, and the Administrative Law Judge ("ALJ") continued the hearing for ninety (90) days to give plaintiff an opportunity to obtain representation. (AR 44-50).
On May 25, 2012, the ALJ examined the medical record and heard testimony from plaintiff (who was
The Appeals Council denied plaintiff's application for review. (AR 1).
A child (i.e., an individual under the age of 18) qualifies for SSI benefits essentially if he is not engaging in substantial gainful activity and has "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C); 20 C.F.R. § 416.906. When the child beneficiary turns 18, the Commissioner makes a redetermination of the beneficiary's continuing eligibility under the five-step sequential evaluation process for evaluating new SSI benefit claims by adults.
To qualify for disability benefits, an adult claimant must show that he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error.
To determine whether substantial evidence supports a finding, a court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'"
Plaintiff contends that a reversal or remand is appropriate because the ALJ failed adequately to develop the record of plaintiff's mental impairments. (Plaintiff's Motion at 2-9). While the Court recognizes that the ALJ and the Administration did make efforts to develop the record (e.g., requesting records from the sole treating source identified by plaintiff in his original application, ordering a consultative examination) and that those efforts were at least to some degree frustrated by plaintiff's own conduct (e.g., his initial provision of incorrect contact information for the foregoing treating source, his initial failures to appear for a scheduled consultative examination), the Court nonetheless concludes, for the reasons explained below, that the ALJ did not adequately develop the record and that a remand is warranted for the ALJ to do so and to reevaluate this case after doing so.
Although each claimant bears the burden of proving disability, an ALJ has an affirmative duty "to fully and fairly develop the record and to assure that the claimant's interests are considered."
An ALJ's duty to develop the record further is triggered only "when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."
Although a claimant has the right to be represented at the administrative hearing, the "[l]ack of counsel does not affect the validity of the hearing unless the [claimant] can demonstrate prejudice or unfairness in the administrative proceedings."
On or about January 19, 2010, plaintiff completed an initial Disability Report which called upon him to list and supply contact information for each treating source who had information about his condition. (AR 122-31). Plaintiff identified a single treating source — Shadi Ravori — and supplied contact information for such source. (AR 125). On June 14, 2010, the Administration noted that the contact information for such treating source was incorrect and attempted to obtain correct information from plaintiff, but was initially unable to reach plaintiff because the contact information he had supplied for himself was also incorrect. (AR 185). On June 17, 2010, presumably after learning from plaintiff that Shadi Ravori was affiliated with "Family and New Directions" and obtaining contact information for such entity, the Administration sent a written request for plaintiff's medical records to such entity. (AR 184). On June 29, 2010, the Administration followed up with a telephone call and sent such entity a second request. (AR 184). As of the date the ALJ issued his decision — June 5, 2012 — such entity had not provided any records. (AR 11).
In Psychiatric Review Technique and Case Analysis forms dated September 16, 2010, a non-examining, state agency physician essentially concluded that there was "insufficient evidence" to evaluate plaintiff's mental abilities. (AR 168-80).
Between June 14, 2010 and December 2010, the Administration scheduled plaintiff for a consultative examination on three occasions. (AR 183-85, 187-92, 196, 209). The Administration contemporaneously notified and reminded plaintiff of such appointments, albeit with some difficulty and sometimes with the assistance of third parties, but plaintiff nonetheless apparently failed to appear at two such appointments. (AR 181-85, 209). He finally appeared in December 2010 for the third scheduled appointment as detailed below.
On December 28, 2010, Dr. Ahmad R. Riahinejad, a consultative state agency psychologist, performed a complete psychological evaluation of plaintiff, which included a mental status evaluation and objective psychological testing.
In a January 5, 2011 Psychiatric Review Technique form, a non-examining, state agency psychiatrist concluded — apparently based solely on Dr. Riahinejad's psychological evaluation of plaintiff — that plaintiff had no medically determinable mental impairment. (AR 197-207).
On September 23, 2011, plaintiff's treating physician, Dr. Steven A. Feig, apparently examined petitioner at a "check-up" and petitioner so advised the Administration. (AR 145). The record does not reflect that the Administration requested Dr. Feig's records. (AR 145).
At the May 25, 2012 administrative hearing, the ALJ asked plaintiff if he had "any other evidence with [him] for [the ALJ's] consideration." (AR 27). Plaintiff responded "not right now" but said he had an appointment to see the doctors on the 28th of the following month at a clinic, possibly called "Crenshaw." (AR 27) (emphasis added). Plaintiff also testified that he had sought treatment for his mental condition at such clinic, probably within the prior year, and that his grandmother would take him there. (AR 27, 34). Although the ALJ asked plaintiff for further identifying information for the clinic, plaintiff indicated he did not know such information. (AR 27). At the end of the hearing, the ALJ asked "[i]s there anything else that you want to tell me that you may have remembered while we were talking to the [vocational] expert?" (AR 42). Plaintiff answered "no." (AR 42).
As the ALJ found, there is evidence which suggests that plaintiff suffers from a severe mental impairment. For example, the record currently reflects that (1) plaintiff received SSI benefits as a child based on a mental impairment which met Listing 112.08(A)(2), (A)(4)-(6) & (B)(1)-(3)
Despite the foregoing evidence that plaintiff suffers from a severe mental impairment, the record following such consultative evaluation, remained inadequate to allow for proper evaluation of plaintiff's mental abilities. As the ALJ noted, there is "[no] treating source evidence" in the record. (AR12;
In light of the Administration's prior disability determination, the foregoing ambiguous and inconclusive evidence triggered the ALJ's duty further to develop the record regarding plaintiff's mental impairments.
While this Court, as noted above, recognizes that the Administration and the ALJ made significant efforts to develop the record and that the absence of medical evidence is to some degree attributable to plaintiff himself, it nonetheless concludes on this record that more was reasonably required to satisfy the ALJ's heavy burden to fully and fairly develop the record in this case. More specifically: (1) the record does not reflect that the Administration/the ALJ made any efforts to obtain Dr. Feig's medical records; and (2) the record does not reflect that the Administration/the ALJ made adequate efforts to develop the record relative to plaintiff's visits to the mental health clinic referenced at the administrative hearing. As noted above, although plaintiff advised the Administration regarding his appointment with Dr. Feig in September 2011, and indicated at the administrative hearing that he did not then have any other evidence with him for the ALJ's consideration, but that he did have an appointment the following month at a clinic to which his grandmother usually transported him, the record does not reflect that the ALJ made any efforts to obtain Dr. Feig's records or to include records from the clinic plaintiff was to visit (e.g, by holding the record open so plaintiff could provide the ALJ with such treatment records when they became available or following up with plaintiff's grandmother — from whom the Administration had previously sought and successfully obtained pertinent information (AR 149-62, 183) — regarding the name and address of the clinic).
In light of the foregoing omissions by the Administration/the ALJ, plaintiff's pro se status, his relative youth, and the nature of the asserted mental impairment in issue which potentially contributed to his failure effectively to present his case and/or to cooperate with the psychological testing which was administered, a remand is appropriate to (1) enable the ALJ/the Administration to request the missing records and/or to afford plaintiff the opportunity to supplement the record with such records; and (2) enable the ALJ to reevaluate this case after doing so.
For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.
LET JUDGMENT BE ENTERED ACCORDINGLY.
