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Norris v. Berryhill

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

February 5, 2018

GINNY LYNN NORRIS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Hon. Roy B. Dalton, Jr. United States District Judge

          REPORT AND RECOMMENDATION [1]

          JAMES R. KLINDT UNITED STATES MAGISTRATE JUDGE

I. Status

         Ginny Lynn Norris (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's (“SSA('s)”) final decision denying her claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is mainly a result of chronic pain in her legs and back, asthma, and mental disorders. Modified Transcript of Administrative Proceedings (Doc. No. 21; “Tr.” or “modified administrative transcript”), filed August 21, 2017, at 798, 799, 801, 802.

         This case has a long and tortured history that is explained in detail below. The ultimate issue comes down to whether the Administrative Law Judge's decision being reviewed by this Court failed to comply with the Appeals Council's explicit instruction to consolidate several applications and render a new decision based on all of the then-pending applications. But, the issue is complicated because Defendant requests that this Court consider a proposed supplemental transcript, filed late in the case, after Plaintiff's Brief was filed. A discussion follows.

         II. Proceedings in the SSA and the Prior Case in this Court

         On November 12, 2009, Plaintiff filed applications for DIB and SSI, alleging an onset disability date of January 1, 2007 in the DIB application, and an onset disability date of February 1, 2006 in the SSI application.[2] Tr. at 146-50 (DIB), 140-45 (SSI). It was later determined by the SSA that due to prior applications in which Plaintiff claimed an onset date after 2006, Plaintiff could “not use 2006” for her onset date in these applications. Tr. at 238 (emphasis omitted). Plaintiff therefore proceeded with January 1, 2007 as the alleged onset date. See Tr. at 763; Plaintiff's Brief (Doc. No. 19; “Plaintiff's Brief” or “Pl.'s Br.”), filed July 17, 2017, at 2 n.1. Plaintiff's applications were denied initially, see Tr. at 102-05, 543 (DIB); Tr. at 97-101, 544 (SSI), and were denied upon reconsideration, see Tr. at 92-94, 545 (DIB); Tr. at 89-91, 546 (SSI).[3]

         On February 7, 2011, an Administrative Law Judge (“first ALJ”) held a hearing, during which he heard from Plaintiff, who was represented by counsel; a vocational expert (“VE”); and two medical experts (“ME(s)”). See Tr. at 761-826. At the time of the hearing, Plaintiff was thirty-seven years old. Tr. at 793. On March 11, 2011, the first ALJ issued a decision finding that Plaintiff was disabled, but that Plaintiff's “substance [abuse was] a contributing factor material to the determination of disability.” Tr. at 550-64, 563 (emphasis and citation omitted). The ALJ therefore found that Plaintiff was not “disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of th[e] decision.” Tr. at 563 (emphasis omitted). On September 14, 2012, the Appeals Council denied Plaintiff's request for review, making the first ALJ's Decision the final decision of the Commissioner. Tr. at 565-67.

         On October 31, 2012, Plaintiff commenced an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) in the Orlando Division of this Court, seeking judicial review of the Commissioner's final decision. See Complaint (Doc. No. 1), Norris v. Comm'r of Soc. Sec., 6:12-cv-1632-Orl-41TBS. On January 25, 2013, Defendant filed an Unopposed Motion to Remand, in which Defendant sought to remand the matter pursuant to sentence six of 42 U.S.C. § 405(g)[4] and § 1383(c)(3) so that the Appeals Council could “review any materials submitted by [P]laintiff's representative and, if all materials are complete, [prepare] the certified administrative record.” Tr. at 573. Defendant represented, “If not, the Appeals Council will remand the case to an [ALJ] for reconstruction of the administrative record.” Tr. at 573. On February 13, 2013, upon the recommendation of Thomas B. Smith, United States Magistrate Judge, an Order was entered by Charlene Edwards Honeywell, United States District Judge, remanding the Commissioner's decision pursuant to sentence six of 42 U.S.C. § 405(g) for further administrative action. See Tr. at 569-70 (Order); Tr. at 571-72 (Report and Recommendation).

         On remand from this Court, the Appeals Council entered an Order on March 20, 2013 vacating the Commissioner's final decision and remanding the case to the first ALJ for further proceedings. Tr. at 578-80. One of the reasons for the remand was that “the hearing decision contain[ed] a list of exhibits that describe[d] the evidence of record considered, ” but “exhibits 16F through 26F [could not] be located, ” so “further development [was] necessary.” Tr. at 578. Another reason was that “further evaluation of [Plaintiff's] mental impairments [was] warranted.” Tr. at 578. Accordingly, the Appeals Council included a host of instructions for the first ALJ on remand. Tr. at 578-80.

         The first ALJ on remand held a hearing on March 11, 2014, during which he heard from Plaintiff, who remained represented by counsel, and from a VE and a ME. See Tr. at 1215-55. When this hearing occurred, Plaintiff was forty-one years old. Tr. at 1232. After the hearing, on June 9, 2014, the first ALJ wrote a letter to Plaintiff's counsel proposing to include a list of exhibits as “additional evidence” in the file and inviting counsel to comment on it.[5] Tr. at 837-38. In response, Plaintiff's counsel wrote a June 21, 2014 letter commenting on the additional evidence. Tr. at 40-43, 839-42 (duplicate).

         On July 18, 2014, the first ALJ issued another decision finding Plaintiff not disabled through the date of the decision. Tr. at 15-39. Plaintiff opted not to seek review by the Appeals Council, see Pl.'s Br. at 3, instead filing, on September 30, 2014, an Amended Complaint in the original case in this Court, see Am. Compl. (Doc. No. 14), 6:12-cv-1632-Orl-41TBS. After the filing of the Amended Complaint and a Motion to Reopen the Case by Defendant (Doc. No. 15), 6:12-cv-1632-Orl-41TBS, the case was reopened and assigned to Carlos E. Mendoza, United States District Judge, along with Judge Smith (Doc. Nos. 16, 17), 6:12-cv-1632-Orl-41TBS.

         Upon the unopposed motion of Defendant and the recommendation of Judge Smith, Judge Mendoza on May 18, 2015 entered an Order reversing and remanding the matter pursuant to sentence four of 42 U.S.C. § 405(g). See Motion (Doc. No. 23), 6:12-cv-1632-Orl-41TBS; Report and Recommendation (Doc. No. 24), 6:12-cv-1632-Orl-41TBS; Order (Doc. No. 25), 6:12-cv-1632-Orl-41TBS. The instructions on remand were as follows:

On remand, it is expected that the [ALJ] will offer Plaintiff the opportunity to appear and testify in person at a hearing and obtain further evidence from a psychological medical expert, who should review all mental health evidence available, to clarify the nature and severity of Plaintiff's impairments in accordance with 20 C.F.R. §§ 404.1527(e) and 416.927(e) and Social Security Ruling 96-6p; and give further consideration to all opinions, including those of consultative examiners and State agency consultants, pursuant to the provisions of 20 C.F.R. §§ 404.1527 and 416.927 and Social Security Rulings 96-2p, 96-5p, 96-6p; and explain the weight given to such opinion evidence.

Order (Doc. No. 25), 6:12-cv-1632-Orl-41TBS; see also Judgment (Doc. No. 26), 6:12-cv-1632-Orl-41TBS. None of the documents from Case No. 6:12-cv-1632-Orl-41TBS referred to in this paragraph or the preceding paragraph are contained in the modified administrative transcript.

         On remand from this Court, the Appeals Council entered an Order on November 20, 2015, vacating the Commissioner's final decision and remanding the matter to a different ALJ (“second ALJ”) for further proceedings. Tr. at 1318-20. The second ALJ was given the following instructions.

         Upon remand, the [second ALJ] will:

• Offer [Plaintiff] the opportunity to appear and testify in person at a hearing and obtain further evidence from a psychological [ME], who should review all mental health evidence available, to clarify the nature and severity of [Plaintiff]'s impairments (20 CFR [§§] 1527(e) and 416.927(e)[] and Social Security Ruling 96-9p).
• Give further consideration to all opinions, including those of consultative examiners and State agency consultants, pursuant to the provisions of 20 CFR [§§] 404.1527 and 416.927 and Social Security Rulings 96-2p, 96-5p, 96-6p, and explain the weight given to such opinion evidence.

Tr. at 1319-20. The Appeals Council observed that Plaintiff had filed “subsequent claims” for DIB and SSI on January 17, 2013. Tr. at 1320; see Tr. At 581-92, 593, 594-605, 635-41. So, because “[t]he Appeals Council's action with respect to the present paper claims render[ed] the subsequent claims duplicate, ” the second ALJ was directed to “consolidate the claim files, create a single paper record, and issue a new decision on the consolidated claims.” Tr. at 1320 (citing 20 C.F.R. §§ 404.952, 416.1452; HALLEX I-1-10-10).

         It is evident that the second ALJ never became aware of the instructions regarding consolidation of the claims. The second ALJ held a hearing on August 3, 2016, during which she heard testimony from Plaintiff, who remained represented by counsel, and from a ME. Tr. at 1422-43.[6] At the time of this hearing, Plaintiff was forty-three years old. Tr. At 1425. During the hearing, the second ALJ indicated her understanding of why the case had been remanded: “[we] are sitting here today based upon a November 20th, 2015 remand specifically requesting clarification of the nature and severity of your psychiatric impairment, mainly because of the findings previously regarding the implications of the polysubstance abuse.” Tr. at 1424. At another point in the proceeding, the ME, a board certified psychiatrist, seemed confused about the intended scope of his testimony. Tr. At 1425-26. The ME referred to the file as “prolific” and noted that he had recently received “medical documentation principally related to 2014, but some records also from 2016.” Tr. at 1425-46.

         The second ALJ clarified the scope of the proceedings with the ME:

Well, what we have here is an extended claim with an application filed in 2009 with an alleged disability onset date of January 1st, 2007. There were previous decisions in this file which specifically addressed whether [Plaintiff]'s substance abuse exacerbated other symptoms of psychiatric impairments. So the indication from the courts ha[s] been that they would like a psychiatrist to review the full record, which it sounds like you do. [sic] have because we have that gap in our records as well, and form an opinion as to the actual diagnoses and impairments that existed in 2007 and forward.

Tr. at 1426.

         Following the hearing, the second ALJ issued a decision (“the Decision”) on September 1, 2016, finding Plaintiff was not disabled through the date of the Decision. Tr. at 1259-86. The second ALJ in ...


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