United States District Court, M.D. Florida, Orlando Division
KATRINA F. WOOD, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
DOUGLAS N. FRAZIER UNITED STATES MAGISTRATE JUDGE.
Katrina F. Wood, seeks judicial review of the final decision
of the Commissioner of the Social Security Administration
(“SSA”) regarding her claim for a period of
disability, Disability Insurance Benefits
(“DIB”), and Supplemental Security Income
(“SSI”). The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.”
followed by the appropriate page number), and the parties
filed memoranda setting forth their respective positions. For
the reasons set out herein, the decision of the Commissioner
is AFFIRMED pursuant to § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
Social Security Act Eligibility, Standard of Review,
Procedural History, and Statement of
Social Security Act Eligibility
defines disability as the inability to do 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 twelve months. 42 U.S.C.
§§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. The impairment must be
severe, making the claimant unable to do her previous work,
or any other substantial gainful activity which exists in the
national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511,
Standard of Review
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 and is
such relevant evidence as a reasonable person would accept as
adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner's findings, we
must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm'r,
363 F.3d 1155, 1158 (11th Cir. 2004) (citing Lewis v.
Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997));
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990). In conducting this review, this Court may not reweigh
the evidence or substitute its judgment for that of the ALJ,
but must consider the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the
decision. Martin v. Sullivan, 894 F.2d 1329, 1330
(11th Cir. 2002); Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995). However, the District Court will
reverse the Commissioner's decision on plenary review if
the decision applied incorrect law, or if the decision fails
to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v.
Dep't of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994). The Court reviews de novo the
conclusions of law made by the Commissioner of Social
Security in a disability benefits case. Social Security Act,
§ 205(g), 42 U.S.C. § 405(g).
must follow five steps in evaluating a claim of disability.
20 C.F.R. §§ 404.1520, 416.920. At step one, the
claimant must prove that she is not undertaking substantial
gainful employment. Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001), see 20 C.F.R. §
404.1520(a)(4)(i). If a claimant is engaging in any
substantial gainful activity, she will be found not disabled.
20 C.F.R. § 404.1520(a)(4)(i).
two, the claimant must prove that she is suffering from a
severe impairment or combination of impairments.
Doughty, 245 F.3d at 1278, 20 C.F.R. §
1520(a)(4)(ii). If the claimant's impairment or
combination of impairments does not significantly limit her
physical or mental ability to do basic work activities, the
ALJ will find that the impairment is not severe, and the
claimant will be found not disabled. 20 C.F.R. §
three, the claimant must prove that her impairment meets or
equals one of impairments listed in 20 C.F.R. Pt. 404, Subpt.
P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R.
§ 1520(a)(4)(iii). If she meets this burden, she will be
considered disabled without consideration of age, education
and work experience. Doughty, 245 F.3d at 1278.
four, if the claimant cannot prove that her impairment meets
or equals one of the impairments listed in Appendix 1, she
must prove that her impairment prevents her from performing
her past relevant work. Id. At this step, the ALJ
will consider the claimant's RFC and compare it with the
physical and mental demands of her past relevant work. 20
C.F.R. § 1520(a)(4)(iv), 20 C.F.R. § 1520(f). If
the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
five, the burden shifts to the Commissioner to prove that the
claimant is capable of performing other work available in the
national economy, considering the claimant's RFC, age,
education, and past work experience. Doughty, 245
F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If the claimant
is capable of performing other work, she will be found not
disabled. Id. In determining whether the
Commissioner has met this burden, the ALJ must develop a full
and fair record regarding the vocational opportunities
available to the claimant. Allen v. Sullivan, 880
F.2d 1200, 1201 (11th Cir. 1989). There are two ways in which
the ALJ may make this determination. The first is by applying
the Medical Vocational Guidelines (“the Grids”),
and the second is by the use of a vocational expert
(“VE”). Phillips v. Barnhart, 357 F.3d
1232, 1239 (11th Cir. 2004). Only after the Commissioner
meets this burden does the burden shift back to the claimant
to show that she is not capable of performing the
“other work” as set forth by the Commissioner.
Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir.
filed applications for a period of disability, DIB and SSI on
April 21, 2008, alleging disability commencing on November
19, 2007. (Tr. 54-55, 914-20). Plaintiff's claims were
denied initially on October 28, 2008, and upon
reconsideration on March 6, 2009. (Tr. 39-41, 45-47, 921-26).
Plaintiff requested a hearing and, on October 19, 2010, a
hearing was held before Administrative Law Judge
(“ALJ”) Gerald F. Murray. (Tr. 48, 933-84). On
November 22, 2010, the ALJ issued a decision finding that
Plaintiff was not disabled. (Tr.10-21). Plaintiff requested a
review of the hearing decision on January 26, 2011, which was
denied by the Appeals Council on April 23, 2012. (Tr. 4A-7,
appealed that decision to the United States District Court
for the Middle District of Florida and, on September 16,
2013, the Court reversed and remanded the case for further
administrative proceedings. (Tr. 1016-1033).
Plaintiff's case was pending in federal court action, she
protectively filed a new application with the SSA for a
period of disability, DIB, and SSI. (Tr. 1122-25).
Plaintiff's applications were denied initially. (Tr.
1039-42). While these claims were pending, on December 3,
2013, the Appeals Council remanded the original application
back to an ALJ for further proceedings. (Tr. 1034-38). The
Appeals Council ordered the ALJ to “consolidate the
claim files, create a single record, and issue a new decision
on the consolidated claims.” (Tr. 1038).
April 21, 2015, a second administrative hearing was held,
this time before ALJ Teresa J. McGarry (“the
ALJ”). On April 29, 2015, Plaintiff signed a form to
amend her onset date from November 19, 2007, to September 1,
2011. (Tr. 1111, 1126). On May 15, 2015, ALJ McGarry issued a
fully favorable decision finding that Plaintiff had been
disabled since her amended onset date of September 1, 2011.
September 11, 2015, Plaintiff initiated the current action by
Complaint (Doc. 1). The case is now ripe for review pursuant
to 42 U.S.C. § 405(g).
Statement of Facts
case, Plaintiff's arguments do not relate to the
ALJ's findings at step one through five of the sequential
evaluation process. Instead, Plaintiff contends that remand
is necessary due to the ALJ's actions prior to the entry
of the favorable decision. To evaluate these arguments it is
necessary to summarize the proceedings leading up to the
ALJ's decision dated September 1, 2011.
noted above, on September 16, 2013, Plaintiff's case was
reversed and remanded by this Court for further
administrative proceedings. (Tr. 1016-33).
Commissioner's Hearings, Appeals and Litigation Law
Manual (“HALLEX”) Section I-2-8-18(B)(1)
Hearing offices will identify court remands through the Case
Processing and Management System (CPMS). Hearing
offices must give priority attention to court remand
cases, with time-limited court remands receiving the
highest priority. For priority and assignment of court remand
cases, see HALLEX I-2-1-55.
(Emphasis added). HALLEX Section I-2-1-55(D) Special
Situations That Require a Change in the Order in Which Cases
Are Assigned provides:
4. Delayed Court Remand Case
A delayed court remand case is over 125 days old (counting
from the date of the court's order) or a court remand
that the AC remanded to an ALJ a second time. Flag and assign
the case immediately. If the AC remanded a second time,
assign to a different ALJ.
Monday, January 20, 2014, Plaintiff's case became a
“delayed court remand case” as this Court had
remanded her case 126 days prior.
September 22, 2014, Plaintiff's representative requested
that her hearing be scheduled at the Orlando Hearing Office
which is closer to her home than the Jacksonville Hearing
Office (Tr. 1050- 51). Plaintiff's representative was
noted that Plaintiff did not have a car and it was unlikely
that she would be able to find someone to drive her all the
way to Jacksonville. (Tr. 1050). Plaintiff's
representative informed the ALJ that Plaintiff could not
afford to continue to wait for a hearing as she was diagnosed
with chronic renal failure and might have to go on dialysis.
October 14, 2014, the ALJ responded to the
representative's letter dated September 22, 2014, and
denied Plaintiff's request to have her case transferred
to the Orlando Hearing Office (Tr. 1056). The ALJ noted
“[h]aving reviewed the file it appears that Plaintiff
arrives at her doctor's offices or the hospital by
private car. There is evidence that she has been in two car
accidents since 2011. There is no evidence to show she cannot
obtain transportation to Jacksonville.” (Tr. 1056).
October 15, 2014, a fax cover sheet was sent to
Plaintiff's representative from the Jacksonville Hearing
Office requesting that Plaintiff's medical records be
updated (Tr. 1055). It was noted that Plaintiff's
“case is still in RTS [ready to schedule] but will be
scheduled shortly.” (Tr. 1055).
November 6, 2014, Plaintiff's representative wrote a
letter to the ALJ regarding her denial of the request to
transfer Plaintiff's case to the Orlando Hearing Office
(Tr. 1059). The representative stated that the ALJ continued
to deny all of the requests to transfer cases for good cause
with no consideration of the provisions of 20 C.F.R. §
404.936 and the HALLEX. (Tr. 1060). The representative
further noted the reasons that the ALJ had denied the
requests for transfer:
1. You can walk 190 miles round trip from Deland to
2. Your mother, who lives somewhere else in Volusia County,
has a car.
3. If you request a hearing, you have the absolute obligation
to get there regardless of where Social Security schedules it
and regardless of the provisions in 20 C.F.R. § 404.936
and the HALLEX.
(Tr. 1060). The representative further noted that there were
now two additional reasons that she was denying the requests
4. Someone drove you to the hospital in Volusia County;
5. You were in someone else's car that was in an accident
within the last three years.
(Tr. 1060). The representative renewed his request that
Plaintiff's case be transferred to Orlando. (Tr. 1061).
He further requested that the ALJ recuse herself from hearing
Plaintiff's case “on the basis of bias,
retaliation, and a lack of independence” and the fact
that Plaintiff's representative had filed a judicial
misconduct complaint against her which was still pending
investigation. (Tr. 1061).
same day, Plaintiff's representative wrote a second
letter to the ALJ regarding Plaintiff's Halifax Health
records that were going to cost $242.15 to get copied. (Tr.
1057-1058). Plaintiff's representative stated that
Plaintiff did not have the money to pay for the records so
the representative requested that the hearing office staff
request the records “as required by the HALLEX.”
November 13, 2014, the ALJ responded to the
representative's November 6, 2014 letter. (Tr. 1062). She
again denied the request to transfer Plaintiff's case to
the Orlando Hearing Office. (Tr. 1062). The ALJ
further denied the representative's request to recuse
herself from the case because he had “not presented
sufficient, accurate facts to support either request.”
(Tr. 1062). She also denied the representative's request
to order and pay for medical records that Plaintiff could not
afford to obtain. (Tr. 1062).
November 18, 2014, Plaintiff's representative responded
to the ALJ's letter and noted that he had already
requested the medical records. (Tr. 1063). The representative
noted that the issue was what needed to be done to get the
Jacksonville ODAR to pay for the medical records as required
by 20 C.F.R. § 404.1514. (Tr. 1063).
provides that her counsel, on February 9, 2015, requested
that the ALJ issue a subpoena to Halifax Health:
for the production of all records related to all treatment of
Ms. Wood since November 22, 2010. Ms. Wood has received
treatment relevant to her disabling medical impairments at
Halifax Health since that time. I have requested these
records, but Halifax Health will not ...