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Wood v. Berryhill

United States District Court, M.D. Florida, Orlando Division

September 20, 2017

KATRINA F. WOOD, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          DOUGLAS N. FRAZIER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).

         I. Social Security Act Eligibility, Standard of Review, Procedural History, and Statement of Facts

         A. Social Security Act Eligibility

         The law 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, 416.905-416.911.

         B. Standard of Review

         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 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).

         The ALJ 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).

         At step 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. § 1520(c).

         At step 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.

         At step 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.

         At step 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. 2001).

         C. Procedural History

         Plaintiff 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, 8).

         Plaintiff 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).

         While 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).

         On 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. (Tr. 985-96).

         On 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).

         D. Statement of Facts

         In this 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.

         As noted above, on September 16, 2013, Plaintiff's case was reversed and remanded by this Court for further administrative proceedings. (Tr. 1016-33).

         The Commissioner's Hearings, Appeals and Litigation Law Manual (“HALLEX”) Section I-2-8-18(B)(1) provides:

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.

         On Monday, January 20, 2014, Plaintiff's case became a “delayed court remand case” as this Court had remanded her case 126 days prior.

         On 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. (Tr. 1050).

         On 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).

         On 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).

         On 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 Jacksonville;
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 for transfer:

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).

         The 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.” (Tr. 1057).

         On 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).

         On 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).

         Plaintiff 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 ...

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